It is now two weeks since we learned from the mainstream media that the Chairman of the Sudan People’s Liberation Movement-in-opposition (SPLM-IO) and South Sudan’s First Vice President Dr. Riek Machar’s home in Juba was surrounded by soldiers. This worrying action on the part of the de facto government is an affront to the IGAD-brokered 2018 accord.
Regrettably, in the IGAD communique released after the conclusion of the 3rd Extraordinary Summit of IGAD Heads of State and Government on the Situation in the Republic of South Sudan after fighting in Nasir and Ulang counties, our regional heads of state are either “snoring or ignoring” as was said by journalist John Pen De Ngong on a NTV live interview on the night of 9 July 2016.
Dr. Machar has not only gone silent but is absent in the public arena. Of late, he has not been seen driving to and from his office. Maybe he is still working from home!
On 12 March, I learned that he failed to show up at an event organized by the Ministry of Federal Affairs. Evidently, Dr. Machar’s conspicuous absence and pin drop silence prove beyond reasonable doubt that he is experiencing some form of restrictions which I explain hereunder.
The surrounding of Dr. Machar’s home was part of a wider political scheme orchestrated to disarm and dismantle the SPLM-IO in its entirety. The political plot to confine and investigate SPLM-IO officials followed the armed clashes in SPLM-IO’s strongholds of Nasir and Ulang where the South Sudan People’s Defense Forces (SSPDF) suffered a humiliating defeat last week.
As we have seen and heard on social media, the outcome of the Nasir clashes between SSPDF and the Nuer White Army prompted the hasty deployment of Uganda People’s Defence Forces (UPDF) to protect Juba.
On 12th March, the nominated Member of Parliament, Honorable Gatwech Puoch, was singled out and arrested in the ongoing government crackdown on SPLM-IO stalwarts. Perhaps, Honorable Gatwech’s arrest was linked to his roles in the recent joint press conferences in which he led his fellow national MPs in criticizing the deployment of SSPDF in Nasir County, terming it as a blatant violation of the 2018 revitalized agreement. I believe Gatwech’s democratic utterances were misconstrued to be subversive.
Ultimately, it will be recalled that the surrounding of Dr. Machar’s home came on the back drop of President Kiir’s controversial decision and subsequent decree to appoint Dr. Benjamin Bol Mel as the Vice President replacing Dr. James Wani Igga.
These traitorous political actions by government’s handlers are designed to kill two birds with one stone. First, to divert public attention from the looming succession politics not just within the ruling SPLM Party, but in the national leadership. Second, to attack and antagonize SPLM-IO, and especially Dr. Machar, with a view to reduce and eliminate any threat to Kiir’s political heir.
Without much ado, the point I wanted to expound is that on 11 March, staunch government critic, exiled Journalist and former South Sudan Broadcasting Corporation (SSBC) employee, Garang John, wrote on his Facebook page that Dr. Machar whad been arrested in Juba. In a quick response, Machar’s acting press secretary, Puok Baluang, however refuted the claim, terming it “rubbish.”
In another dismissive Facebook post by SPLM-IO’s Canada-based political commentator, James Nyoldit wrote that ‘‘Dr. Riek Machar is not arrested. Disregard misinformation and lies being peddled around social media.’’
Upon perusing the aforementioned reactions by Puok Baluang and James Nyoldit, I asked myself if the duo were denying that Dr. Machar’s home is surrounded or whether they are saying the cordon does not amount to an arrest?
In September 2022, Kenyan lawyer Dr. Duncan Ojwang once opined on NTV-Kenya that “he who asks the question must know the answer.”
I would like to answer these questions by giving the legal meaning to the “surrounding of Riek Machar’s home.” There is no doubt and dispute that Dr. Machar’s home in Juba was surrounded. It is common knowledge that the surrounding of Machar’s house is known to all and sundry.
First of all, the surrounding of the first vice president’s home has both political and legal meanings. The surrounding of Machar’s home is political in the sense that the first vice president is the factor to be dealt with in the ongoing succession politics. More often than not, Machar is deemed to be the undisputed political threat to President Kiir and his anointed heir in the person of Dr. Bol Mel.
Over the years, Dr. Machar appeared to be an ambitious and impatient man who cannot wait to be the president of South Sudan. His quest for the presidency is not illegal on account that it is his democratic right enshrined in the Interim Constitution of South Sudan. If anything, some people can only condemn his alleged impatience.
In Kiswahili, they say “haraka haraka haina Baraka” which loosely means “hurrying has no blessings.” In time, we say time waits for no man. In spite of Machar being the nearest and second person in the national leadership hierarchy by virtue of him being the first vice president, President Kiir is determined to see that Machar does not ascend to presidency as his successor.
On the other hand, the surrounding of Machar’s home has a legal connection given the proximity and direct impact on individuals’ legal rights and freedom of movement.
To put it straight, the question as to whether or not the surrounding of Machar’s home amounts to an arrest is a legal question whose answer is the reason for penning this missive. As we are fondly aware, the alleged surrounding of Machar’s home was not ordered by any legal body in the country and thus his confinement is unlawful.
The illegality of his confinement can be referred to as false imprisonment. By definition, false imprisonment is the deprivation of someone’s freedom of movement without legal justification. To put it differently, “False imprisonment occurs when a person intentionally and illegally restrains another person’s ability to move freely.”
For instance, an act of surrounding someone’s house to prevent him or her from leaving or escaping from where he is amounts to false imprisonment. The offense of false imprisonment can be committed without the complainant’s knowledge. For example, locking someone’s door without his consent at the time he was asleep and reopening the door before he woke up is false imprisonment.
In short, a person who interferes with an individual’s freedom of movement without his or her consent is culpable of unlawful imprisonment punishable in law. In a legal language, we say a false imprisonment is a tort that is both a civil and criminal wrong. In addition, false imprisonment has got three elements namely willful confinement, confinement without the person’s consent, and illegal confinement.
Usually, unlawful imprisonment can be committed in different ways such as the use of physical force, and physical barriers such as being locked up inside the vehicle. Moreover, to claim false imprisonment, the complainant must justify that he was confined in a bounded area.
Finally, having brought to the fore these definitions and elements of false imprisonment, I can confidently say that I concur with the assertion of Garang John that the surrounding of Dr. Riek Machar’s home amounts to arrest because his conditions meet the criteria of false imprisonment. Later, if Machar is heard or seen to have consented to his house confinement in Juba, then the matter ceases to be false imprisonment. But if Machar’s consent was sought by duress as dictated by his present conditions and circumstances, then his confinement remains valid in the eye of the law.
In conclusion, as a country, we aspire for a democratic state governed by the rule of law and constitutionalism. Therefore, no person should be confined and arrested without any legal justification.
The writer is the National Chairperson for Legal and Constitutional Affairs of the South Sudan People’s Movement (SSPM) and can be reached via eligodakb@yahoo.com.
The views expressed in ‘opinion’ articles published by Radio Tamazuj are solely those of the writer. The veracity of any claims made is the responsibility of the author, not Radio Tamazuj.