South Sudan Appeal Court says phone wiretapping “unconstitutional”
May 28, 2017 (NAIROBI) – The Court of Appeal in South Sudan has ruled as “unconstitutional” a controversial wiretapping system used by South Sudan National Security Service (NSS) to listen to phone calls.
In delivering its verdict in the case of the 16 people accused of corruption in the president’s office, the Appeal Court held that “The trial judge had erred in facts and law when he convicted accused N0.1 John Agou Wuoi, accused N0.2 Anyieth Chaat Paul and accused N0.8 Kur Ayuen Kou on illegally and improperly obtained evidence from wiretapping telephone which violated Article 22 of the Transitional Constitution of the Republic of South Sudan 2011”.
The court agreed with a precedence cited by Advocate Kiir Chol Deng and summarised by the learned judges on page 56 of the judgment, which stated: “Map Vs. Ohio (1962) where the Supreme Court of the United States of America held that: evidence obtained in violation of the constitution has to be excluded from State as well as Federal trials, that is to say the prosecution cannot use evidence gained by illegal means to convict the accusees, even if the evidence is not obtained in direct contravention of the letter of the Constitution, where such evidence is obtained in such manner as to be reprehensible according to the spirit of the constitution, such evidence shall not be admitted”.
Another precedence cited and summarised on page 73 of the judgement read; “I also agree with learned Advocate Kiir Chol Deng in citing the Kenyan precedent of the appeal of the case of The Republic Vs. Gachoka and another (1999) EKLR, the court of appeal of Kenya held that “at the end of the day, it is the duty of the courts to enforce the provisions of the constitution, otherwise there would be no reason for having those provisions in the first place”.
The Court of Appeal further to said this on the issue of illegal searches and arrest carried out by the General Intelligence Bureau on page 70 of the judgement, “the arrests and search may not have conformed to provisions of section 75,76 and 77 of the Code Criminal Procedures Act 2008”.
The accused were arrested under section 7 of the National Security Service Act 2014, but not convicted under the same section thereof.
The Court of Appeal, on page 65 of the judgment, said “the judge of the court of instance did not also clarify role of each accused in commissioning of the offence, that is the link to the whole thing and these needs to be made clear in the judgement from evidence provided to the court”.
The judge had never quoted the specific sections of the laws subject to violations or the charges, nor did he discuss ingredients of the alleged offences committed by the accused in relation to evidence adduced by the parties before the court but accused were generally convicted without specifying acts or role of each accused in commission of the crime and intention”, it further stated.
The court verdict went further on page 66 stating, “in other words the trial judge should discuss mens rea and actus reus (action and intention) of different offences alleged to have been committed by each individual in order to prove guilt or commission of the alleged offence beyond reasonable doubt”.
The court cited a precedence of the Sudanese case of Sudan government Vs Fatima Hussein reported in SLJR 1966 at page 75-80; it has been remarked in the Sudan by Imam J “it is clear that for any crime to be complete, generally speaking, requirement of the law concerning mens rea and actus reus (action and intention) must both be satisfied else no crime would have been committed and the accused would be entitled to an acquittal”.
The majority decision of the appeal court ruled on page 64 of the Court of Appeal Judgement; “it is clear that the trial judge had erred in law when he decided to sentences the 16 accused persons to imprisonment for 7 years each for violation of sections 14/15 of Anti-money Laundering and Counter Terrorist Financing Act 2012 without conviction. It is also clear from records that the trial judge did not quote sections 14/15 of AMLACTF of 2012 and discuss them in light of the evidence adduced before the court by both parties, prosecution and defence to reach a just conclusion. It is a duty of the Court to discuss ingredients of every offence by posing questions and answering the same from evidence availed before it by the parties and the law, section in question, subject of violations.
In response to some grounds or contentions raised by the defence lawyers in their memorandum of the appeals presented to the court on behalf of appellants, the court had this to say to respond to No.4 on page 71 of the judgement “at this moment NO comment since it is my view somewhere in this judgement that the judgement of the court of the first instance be quashed and case papers be returned to the trial judge to discuss evidence adduced before it with law, that is to discuss ingredients of the offences with evidence available”.
Appearing in court on 4th May 2016 as prosecution witness N0.24, Napoleon Adok Gai, the spy- master behind the new advance communication gadget told the court the phone interception recordings he played in court as evidence against accused N0.8, Kur Ayuen Kou were done on his own personal accord. He was not authorised by his superior like the Director General of General Intelligence Bureau to monitor phone number either written or verbally.
This particular advance communication wiretapping device sold to the Government of South Sudan is now a subject of a legal battle in Israel. This is after an Israeli Member of Parliament filed a lawsuit, challenging the legality of Israel Defense Ministry decision to keep selling sophisticated wiretapping spy tools to South Sudanese government even after the bloody civil war broke out.
Tamar Zandberg, who currently represents Meretz party in the Israeli parliament, Knesset, filed a Legal case with High Court of Justice arguing that Jerusalem should stop selling listening devices to Juba because the tools are being used by the South Sudanese government to monitor its citizens unlawfully.
In her legal challenge, MP Tamar Zandberg added that she wants the High Court of Justice of Israel to legally barred the export license issued by Israeli’s Defense Ministry, saying the license allows South Sudanese government to keep buying sophisticated listening devices from the Israeli government.
A recent report released by the U.N panel of experts accused the Israeli government of supplying South Sudan with high-tech communications interception equipment.
The report further said that Israel keeps exporting modern spy devices to South Sudan’s government even after it agreed to a UN request to stop selling weapons to the violence-wracked nation.
In that report, the panel also alleged that the “advance spy tools” are being used by Juba to “eavesdrop on its opponents.”
(ST)