Fair legal procedures and impacts of past experiences
By Zechariah Manyok Biar
December 30, 2011 — Some people who have sent me e-mails in response to my recent article, “How to discourage revenge attacks in South Sudan,” have expressed their concerns in how my proposals for the marking of cattle and the use of helicopter gunship as a means of deterring revenge attacks could be done without violating individuals’ rights, especially the rights of chiefs. I take these concerns seriously and would write few articles in my attempt to answer them.
I take these concerns seriously because of the current nature of our government and its legal system. Our government is a blend of many past experiences. The prominent ones are the liberation governance experiences and the experiences of the totalitarian Sudanese system of government. I will first write about the influence of our liberation governance experiences before turning to how the totalitarian Sudanese system of government have influenced our legal system which in turn affects fair legal procedures in the settling of legal issues. In the concluding article, I will point out ways that unfair legal procedures contribute to our current problems which include arbitrariness in the punishment of the accused criminals.
During the liberation war, as Nhial Bol Aken of the Citizen Newspaper once puts it, a commander of any area was the judge, the politician, the civil servant, the chief, the police officer and even the religious leader. He would decide what he thought fitted and implement it. This was done because having many systems operating independently would have been a great obstacle to the liberation war itself. So any system apart from that of the army was suspended.
But criminals did not have to wait for the liberation war to be over so that a legal system is set up to try them when they committed crimes. They were still committing crimes. So the Movement had to write laws that would help commanders punish those criminals within a legal system. But most of the commanders were not lawyers. They did not know what it meant to have a fair procedure in the trial of criminal cases. They would only do what they thought was legal.
People were not told before time of what the law said and there were no defense lawyers to know laws on behalf of lawbreakers. The Movement’s only legal document, The Manifesto, for example, was only read when somebody was being executed, making you wonder how a person learning for the first time about the existence of an article in the law that would lead to his death would die in few minutes after learning what that article meant. No second chance was given.
Some commanders would fool people by telling them that their punishment was coming from above–above being the highest authority–because they knew that many people did not have easy access to the highest authority. Those commanders were proven wrong by the highest authority, Dr. John Garang, in Chukudum in the current Eastern Equatoria State during the leadership convention in 1994 in which community chiefs participated. One chief who understood what it meant to have a national law wanted to know from the highest authority how some of the laws that were used to punish lawbreakers in his area applied to other areas in South Sudan.
He brought it to the attention of Dr. Garang that in his area, whenever a soldier lost one bullet, a commander would ask the relatives of that soldier to pay five to ten cows as fine for the lost bullet. Whenever the chiefs asked the logic behind such a fine, they would be told that the decision came from above. In the chief’s understanding, if such decisions came from the highest authority, then the value of five cows or ten would translate to non-cows properties, too. There was no money and he knew that not every community owned cattle in South Sudan. So, he asked how many chicken those who do not have cows paid for one lost bullet. Dr. Garang simply replied by saying that he was the highest authority that those commanders where talking about and he did not know the existence of such a law. So, there were no directives from above to fine civilians for the bullet lost by their uniformed relatives.
Other decisions were based on the feeling of an area commander. Whatever the area commander felt was illegal was in fact illegal. What he felt was lawful was lawful. There were no national guiding principles on what was illegal and what was not.
These few examples show you the reason why many people are concerned about my proposals for the control of criminal activities, especially the discouragement of revenge attacks. Some leaders still have the liberation commanders’ legal mindset and can use crook ways to punish the people they regard personally as criminals, regardless of what fair legal process is. The decision based on individual feeling is still common in our country today.
So, how do I think official atrocities could be controlled under my proposals? For example, some law enforcers may harm innocent people under the disguise of trying to deter criminal activities. The answer would have to wait for some more articles. But to remind the reader, I was clear in my recent article that nobody has the right to punish any criminal apart from the government. The government, on the other hand, punishes under a clearly defined legal system. Unfair legal procedure, in fact, would increase the crime. My point is still not enough to address the concerns. I will have to write some more articles.
In my next article, I will show how the totalitarian Sudanese legal system influences our current legal system in the Republic of South Sudan, partly causing the concerns I am trying to deal with. That article or articles may show us the importance of a perfect legal system if we are to agree that a clearly defined legal system can punish criminals without touching an innocent person.
Zechariah Manyok Biar lives in Juba, Republic of South Sudan. He can be reached at [email protected]