Home | Comment & Analysis    Wednesday 20 February 2019

South Sudan and the inhumanity of the death penalty

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By Kur Ayuen Kou

I am deeply appalled by the continuous use of the death penalty as the best form of punishment in our fractured society. In a span of one week, South Sudan has carried out six executions on inmates, some of who have not exhausted all their legal options, including the right to appeal for clemency to His Excellency the President of the Republic. REST IN PEACE!

This is a worrisome development in a country that is preaching forgiveness, tolerance and peace. It’s very painful that the government can embark on this undertaking when it has other weighty state responsibilities.

As a concerned citizen of our nascent Republic, we are a call to duty when the responsibility knocks on our doors. The duty to protect, preserve and defend the constitution does not only lie with the government, it’s a collective responsibility of every citizen. Our national heroes including our President gave their lives to liberate millions of us from the bondage of slavery.

I am not writing for the sake of making noise, my writing on the subject is a deep-seated belief in the application of fair justice. I am writing to correct what is fundamentally wrong in our justice system that I bore witness.

The course of justice that led to the execution of these citizens is a distinctive process which seems not to have been entirely observed. It starts with a police officer responding to a crime and conducts an investigation. Once the suspect is fully interrogated, he/she is presented before a court of law. Upon conviction, he/she will be sentenced and convicted to the degree of his/her crime. The convict has the right to appeal his conviction to higher courts including the Appeal and the Supreme courts. After exhausting all legal options, the convict has the right to apply for a pardon to his Excellency the President of the Republic. If clemency plea is rejected by the President, it would be automatically presumed that the President has confirmed the conviction and sign the execution order.

In three of the six cases executed, these standards seem not to have been followed. One guy whom I will not name for the sake of the grieving family was tried in absentia even though he was in prison as a remand prisoner for more than ten years. Three other individuals were still waiting for their appeal judgement, eight years since their conviction and subsequent appeal after fourteen days as the law requires. The appeal court, the second highest court did not pronounce any judgement prior to their executions. Have we now abandoned the rule of law, the cornerstone of justice?

These oversights amount to culpability and the weaknesses of the justice system in the Country. And the very reason why the death penalty should not be carried out at all time. Fast it backwards, two underage brothers were executed in 2017 in complete violation of their rights under article 21 of South Sudan’s Transitional Constitution as amended. This article restricts the use of the death penalty on any person under the age of eighteen.

These excesses affirm the UN General Assembly’s resolution 62/149 which stated that “Death Penalty undermine human dignity”. It further expounds that“any miscarriage or failure of justice in the death penalty’s implementation is irreversible and irreparable”.

When it comes to our laws, the South Sudan Transitional Constitution has those safeguards. The right to life is the foundation of all human rights. The constitution grantee it under article 11, Life and Human Dignity, “Every person has the inherent right to life, dignity and the integrity of his or her person which shall be protected by law; no one shall be arbitrarily deprived of his or her life”.but still state officers are not ready to do the right thing.

What is puzzling, from time to time and despite the glaring facts, there is a concerted denial from the government about the use of the death penalty as a form of punishment in the country. There is this narrative that South Sudan has never executed anyone since its inception in 2011. You can’t fool all the people all the time. The secrecy surrounding all these executions indicated that the state is guilty of the practice. It’s inhumane and cruel to take out human life of which all other rights depend on. If you are not alive, you cannot claim any right. Anything that takes away human life from God gifted existence is tantamount to murder, the very thing that needs to be corrected with that form of punishment.

Death penalty retentionist deterrent hypothesis is discarded a long time ago. Countries that are still carrying out the death penalty on some of the most gruesome crime are still experiencing those crimes. It’s not the number of people that you hanged through state sanction killing that deter others from committing those same crimes. Human impulses determined the action that leads to murder.

Resolution 62/149 of the UN General Assembly categorically declared that “there is no conclusive evidence that death penalty deterrent argument by many countries that retain capital punishment reduces crimes of murder from being committed in those countries”.

We are a progressive society. To be held in the bondage of historical form of justice as the best practices annihilate our best values as a society. Do we love to see human being struggling like a chicken, pleading for his/her dear life during the execution? With all the state power, his life is exterminated without his wish.

It is time to rethink as a country on the use of the death penalty. I urge our leadership, Religious and Political leaders, our Parliamentarians who are the makers of our laws, the Executive headed by our President as the implementing authority of those laws to look at the logic of the use of death penalty. At the end of the day, you have two broken families and communities who have lost their dear one. One as a result of a crime committed to what every form and the other one, a state-sanctioned killing. We have been taught in school that two wrong don’t make a right.

We must, as a country revisited and revise those laws like the penal code and the code of criminal procedures 2008. The discretion given by law to the nearest family member in section 206 (b) of the penal code 2008 has been repeatedly misused and has put so many innocent people at risk. Section 48 of the same penal code,“Acts Committed by Several Persons in Furtherance of Common Intention” is no exception. This section is being used without clearly demarcating the element of action and intention of each accused in the crime. As long as the prosecution and the complainant have bundled you together, be sure you will be convicted together. Criminal actions that constitute a join act must clearly outline in the text of the laws. Leaving it to individual judicial officers to interpret has resulted in too many miscarriages of justice.

We all believe as a country that laws are made to govern society, not to be used against the people. Immediate corrective measures need to be undertaken to arrest the situation, to stop further executions.

I personally appeal to our President’s usual human conscience to envoke his moratorium commitment under the UN charter to stay further execution. South Sudan as a member state of the United Nations has obligation under international law to subscribe to best practices that are moving human dignity forward. We should strive to uproot those gallows at our midst to the museums, not to be seen ever again. It must never touch a human born.

In the absence of the constitutional court, I appeal to His Excellency the President to consider setting up clemency review committee in his office to advise him on existing cases of death sentences with the view to commute them to life imprisonment.

nile.kou@gmail.com



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