Home | Comment & Analysis    Tuesday 13 February 2018

James Dak’s death penality is absolute miscarriage of justice

By Deng Gai Gatluak

The death sentence and 20 years life imprisonment against James Gatdet Dak is illegal and politically motivated. The Transitional Constitution of South Sudan (TCSS), 2011 is the supreme law of the land and the guiding principle of distinct laws that exist in South Sudan. The general principle of the common law is that, "any law that is inconsistent with the constitution is habitually considered null and void." On that note, article 3 (1) (2) (3) of the transitional constitution of South Sudan, 2011 stipulated that, the constitution derives its authority from the will of the people and shall be the supreme law of the land. It shall have a binding force on all persons, institutions, organs and agencies of government throughout the country. (2) The authority of government at all levels shall derive from the constitution and the law. (3) The States’ constitutions and all laws shall conform to the constitution.

Nonetheless, James Gatdet was charged with treason and sentenced to death and 20 years life imprisonment according to section 64 read together with sections 75 and 76 of the South Sudan Penal code, 2008.

However, these provisions of the Penal Code, 2008 contradicts the provisions of the supreme law of the land under article 21 (1) of the Transitional Constitution of South Sudan, 2011. This article restricted death penalty and stated that "No death penalty shall be imposed, save as punishment for extremely serious offences in accordance with the law."

On top of that, according to article 11 of the TCSS, 2011, "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."

On a separate note, an accused person is presumed innocent until his or her guilt is proved according to the law. Therefore, if the court proved beyond reasonable doubt that Gatdet was perhaps guilty of treason, then he should solely be charged of 20 years life imprisonment, but not death penalty, owing to the fact that, death penalty is prohibited by the supreme law of the land (transitional constitution of South Sudan, 2011).

Ultimately, it’s incontrovertible that I am a staunch die-hard supporter of the Transitional Government of National Unity (TGONU), but truth must be told, with the view that, no one is above the law and as a concerned citizen of South Sudan, it is my constitutional right and an obligation to defend the constitution as provided for under article 4 (3) of the transitional constitution of South Sudan, 2011.

This is my sincere appeal on behalf of Cde. James Gatdet Dak.

Deng Gai Gatluak is a law lecturer at Starford International University (SIU), (teaching constitution and administrative law). he is also a member of National Dialogue Steering Committee (Secretariat). He can be reached at denggaigatluak@ymail.com