South Sudan: Who to arrest, detain, search and seize?
By Luka Biong Deng
December 23, 2014 – I was arrested, detained, deported from Yei with my properties sought and seized not by police or national security service but by the Military Intelligence of the Sudan People’s Liberation Army (SPLA) on Sunday 14th December 2014, when I was conducting UK-funded research on strengthening institutions of accountability in South Sudan. After finishing the same research at the national level (council of states and national legislative assembly), Western Bahr el Ghazal State and Terekeka County in Central Equatoria State, I went to Yei as the last area of the research. After briefing the Deputy Mayor of Yei Municipality and informing him about the purpose of research, I was arrested at gunpoint, detained for more than five (5) hours with my properties sought and seized by SPLA Military Intelligence. I was accused of distributing money to mobilize Equatorian youth against the government.
I was later released when the Military Intelligence found no money with me for the alleged mobilization of Equatorian youth but some of my properties are still seized in their custody. Although this incident was an isolated event as the command of the Sudan People’s Liberation Army (SPLA) distanced itself from the event, it raises fundamental question of which institution in South Sudan is constitutionally mandated to arrest, detain, search and seize? This question is important as our parliament will soon discuss the National Security Bill, 2014 that was hurriedly passed but rightfully returned by President Salva Kiir to the Parliament to be reviewed in the light of serious concerns raised by the public about the Bill.
While one appreciates the right decision of President Salva not to assent to the Bill, the next phase of discussing this Bill should be subjected to a careful public scrutiny. The way the Bill was passed by the Parliament may need to be critically reviewed. The parliament has constitutionally obligation to make public to know about what happened so that such practice would be avoided in the future. The Parliament can either undertake its internal audit or to form an independent investigation committee to look into the way the Bill was passed.
When I was invited by South Sudan Human Rights Commission to be part of the panel in commemorating the Human Rights Day on 10th December 2014 under the theme “Human Rights Everyday”, I made it clear that the Transitional Constitution of South Sudan, 2011 defines the mandate of National Security Service in Article 159 (e) that states: “The National Security shall be professional and its mandate shall focus on information gathering, analysis and advice to the relevant authorities”.
The genesis of this constitutional provision of the mandate of the National Security Service goes back to the Comprehensive Peace Agreement (CPA) as Sudan People’s Liberation Movement (SPLM) insisted to discuss and to clearly define the mandate of National Security Service in the CPA. Specifically, the Power Sharing Protocol that was signed on 26th May 2004 stated in section 2.7.2.4 that National Security Service shall be “professional and its mandate shall be advisory and focused on information gathering and analysis”. The same provision about the mandate of National Security Service was included with the same wording in the Sudan Interim National Constitution, 2005. It is clear that the National Security Service is not constitutionally mandated to arrest, detain, search and seize.
Unlike the National Security Service, the Police Service’s mission is clearly defined in the South Sudan Transitional Constitution, 2011 in Article 155 (2) “(a) to prevent, combat and investigate crime, maintain law and public order, protect the people and their properties, and (b) uphold and enforce this Constitution and the law”. How such mission of the Police Service is to be discharged is detailed in the Southern Sudan Police Service Act and criminal procedure law that mandated, with due legal process, the Police Service to arrest, detain, search and seize.
In revising the South Sudan National Security Service (NSS) Bill, members of parliament may need to look carefully at the sections of the Bill that are related to powers of arrest, detention, search and seizure with the aim of either deleting or carefully reviewing them in the context of the provisions of the constitution and the due process of law. In particular Section 12 about the powers and functions of the NSS should be restricted to the constitutional provisions in Article 155 and as well provided for in sub-section 12 (h) of the Bill. The other sub-sections ((a) to (g)) of Section 12 of the Bill should be deleted.
Section 50 of the Bill is about the powers to arrest and it gives not only the officer of NSS but any member appointed by Minister of National Security or Director General of NSS the power to arrest without a warrant and to exercise all the powers of police service in carrying out the powers and functions of NSS. This is the most serious Section of the Bill as it contradicts the provisions of Article 155 of the Constitution as well as creating overlapping of functions with the Police Service.
This Section 50 of the Bill should be deleted and subsequently Section 51 of the Bill about the rights of a person under arrest, detention and confinement will be redundant and should also be deleted. The provisions of Section 51 of the Bill contravene with provisions of Bills of Right particularly Article 19 of the Constitution about fair trial.
Specifically, Article 19 (2) of the Constitution clearly states that “any person who is arrested shall be informed, at the time of arrest, of the reasons for his or her arrest and shall be promptly informed of any charges against him or her”. Also Article 19 (4) of the Constitution states that “a person arrested by the police as part of an investigation, may be held in detention, for a period not exceeding 24 hours and if not released on bond to be produced in court. Specifically, Section 51 (a) of the Bill states that “any person arrested or detained shall be informed about the charge or charges against him or her within 24 hours”. As such the Bill provides only for informing the arrested or detained person about the charges within 24 hours rather than informing him or her at the time of arrest of the reasons for his arrest as provided for by the constitution. The Bill is also silent about the period for holding a person in detention as the constitution makes it very clear that the period for detaining a person for investigation should not exceed 24 hours.
Other Sections of the Bill such as sections 18 and 52 regarding complaints against members of NSS and their immunity from criminal proceedings respectively may require serious revision so as to ensure that such complaints are adequately addressed and such immunity is not abused.
It is important that we should strengthen our institutions not by providing them with excessive functions and powers that may stifle their effectiveness and may intervene with other functions and powers of other institutions; a recipe for institutional conflict. With my personal experience in Yei, it is absolutely important that the role of Military Intelligence to be clearly defined so as not to overlap with the functions and powers of police and national security service. What I have observed in Yei is that the power to arrest, detain, search and seize is being exercised by police, military intelligence and national security. This has resulted in conflict between and among these institutions and has weakened the capacity of security apparatus to maintain law and order in the area.
Certainly, the National Security Service is an important institution in the light of increasing security threats facing our new nation. Internally, South Sudan faces serious challenges that threaten the very survival of our new nation. Serious economic crimes are being committed with impunity. The current crisis has equally shown the narrow national security interests and foreign policies that are pursued by most of our neighbouring countries to maximize their narrow national strategic interests in South Sudan. In fact South Sudan has become a battleground for regional and global interests. With increased fragility, South Sudan is becoming a breeding ground for international terrorism, particularly the threat of political Islam at our doorstep from Sudan. All these security challenges are compounded by our country being a landlocked country with bad neighbours, particularly Sudan that will continue to pose a real threat to the stability of South Sudan.
What our National Security Service needs is not more powers and functions to arrest, detain, search and seize but rather more capacity to strengthen its ability to gather information and to analyze such information and to disseminate such information for relevant institutions to take actions. If our National Security Service could be able to collect and analyze internal and external security threats to our new nation, the relevant institution will be in a better position to discharge their functions on an informed basis. Rather than arresting, detaining, searching and seizing properties, the National Security Service would supply its analyzed information upon which the Police Service could act on to arrest, detain, search and seize properties of any suspected person in accordance with the law.
By focusing and specializing in areas of relative comparative advantage, our institutions would be able to be more effective and more cooperative rather than competing with each other. Passing a National Security Service Bill that would strengthen it to perform its constitutional mandate is a necessity and all of us we should be ready to assist our National Security Service to become effective and a reliable source of intelligent information needed to put our country on the path of peace, prosperity and stability.
Luka Biong Deng is a Director at Centre for Peace and Development Studies, University of Juba. He is a Global Fellow at Peace Research Institute Oslo and Associate Fellow at Harvard Kennedy School. Deng can be reached [email protected], [email protected]