The 2011 Transitional Constitution of the Republic of South Sudan (hereafter, 2011 Constitution) expressly protects the rights to life, liberty, dignity, humane treatment, and freedom from torture. Article 11 provides that:
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.
Article 12 further declares that:
Every person has the right to liberty and security of person; no person shall be subjected to arrest, detention, deprivation or restriction of his or her liberty except for specified reasons and in accordance with procedures prescribed by law.
Article 25(1) provides that: "The right to peaceful assembly is recognized and guaranteed...."
Chapter 2 of the 2011 Constitution addresses the role and mandate of law enforcement agencies, including the police service. The mission of the South Sudan Police Service is set out in Article 155(2), which is to:
(a) 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.
In line with its mission, Article 155(5) of the 2011 Constitution provides that:
The Police of South Sudan shall be governed by this Constitution and the law. It shall respect the will of the people, the rule of law and order, civilian authority, democracy, human rights, fundamental freedoms and execute judicial orders.
The Constitution also provides for the establishment of a National Prisons Service, which "shall be a decentralized professional service".Art.156(1), 2011 Constitution.The Constitution stipulates that the mission of the National Prisons Service
shall be correctional, reformative and rehabilitative. It shall respect the will of the people, the rule of law and order, civilian authority, democracy, human rights and fundamental freedoms.Art.156(2), 2011 Constitution.
It is provided that:
Prisons authorities shall treat prisoners humanely. Any treatment that is cruel, inhuman, degrading of the dignity of prisoners or that may expose their health to danger is prohibited and punishable by law.
Otherwise the Constitution does not lay down detailed rules for the use of force by law enforcement agencies.
|1966 Covenant on Civil and Political Rights (ICCPR)||Not party|
|ICCPR Optional Protocol 1||Not party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||No|
|CAT Optional Protocol 1||Not party|
|1998 Rome Statute of the International Criminal Court||Not party|
|1981 African Charter on Human and Peoples' Rights||Not party|
|1998 Protocol to the African Charter on the African Court||Not party|
|Article 34(6) declaration regarding individual petitions||N/A|
|Malabo Protocol on Amendments to the African Court of Justice and Human Rights||Not party|
Police Use of Force
The primary legislation governing the police in Sudan is the 2009 Southern Sudan Police Service Act. The law provides that the South Sudan National Police Service (SSNPS) has the primary responsibility of ensuring the security of citizens and maintaining public order; it is also responsible for implementing the law in accordance to national and international standards.
The 2009 Southern Sudan Police Service Act allows necessary and reasonable use of force by the police. In Section 8(2) it states that:
To perform the duties and responsibilities mentioned above, police personnel may use reasonable force where necessary according to the restrictions provided for by law.
The 2008 Code of Criminal Procedure Act also allows the use of "all reasonable means necessary" when effecting an arrest. Section 87 stipulates that:
If a person liable to arrest who resists on endeavor to arrest him or her or attempts to evade the arrest, the person authorised to arrest him or her may use all reasonable means necessary to effect the arrest; provided that, this section shall not give the right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for a term which may exceed ten years. [Emphasis added]
Although this section of the 2008 Code does not explicitly refer to the use of force, "all reasonable means necessary" presumably means that the force used must be both reasonable and necessary.
The 2009 Southern Sudan Police Service Act would seem to impede police accountability as it offers broad immunities to police officers. Section 51(1) states that:
Any act done by a police personnel in good faith while discharging his or her functions and duties, or in performance of his or her functions and duties under any law, regulation, order, rule or instruction of a competent authority or person authorised to issue the same by virtue of the Code of Criminal Procedure Act, 2008, or any other law in force, or any regulations issued thereunder, shall not constitute an offence.
Section 51(2) goes on to say that:
No police personnel shall be arrested for or charged with murder in connection with acts committed in the course of his or her duty, except with a written authorisation obtained from the President in the case of officers, or a written authorisation from the Minister or Inspector General in the case of non-commissioned officers and privates.
Use of Force in Custodial Settings
Beyond the duty set out in the 2011 Constitution to treat all prisoners humanely, there are no detailed provisions on use of force against those in custodial settings in either the 2011 Constitution or the 2003 Prisons Act.
Police accountability is a major concern in South Sudan as the country lacks an independent oversight body. The 2009 Southern Sudan Police Service Act establishes police courts to adjudicate cases of offences allegedly committed by any police personnel. The jurisdiction of the police courts is laid down in section 52 of the Act:
(1) Police Courts shall decide on acts and omissions by any police personnel subject to the provisions of this Act, which are considered criminal acts, or contraventions of this Act or any other legislation or regulations, if committed while discharging official duties.
(2) Complaints against police personnel received through a civilian complaint system, established by regulations, shall be referred to judicial courts subject to the regulations.
(3) Without prejudice to the provisions of subsection (1) above, the Minister, upon the recommendation of the Inspector General, may refer any criminal case to any court if that will serve the cause of justice.
Despite the fact that the 2009 Act provides for civilian complaints, no such system has been established in South Sudan. The only plausible avenue is for civilians to lodge complaints through the South Sudan Human Rights Commission, whose mandate is to
investigate, on its own initiative or on a complaint made by any person or group of persons against any violation of human rights.Section 7(1)(b), 2009 Southern Sudan Human Rights Commission Act.
Views and Concluding Observations of United Nations Treaty Bodies
South Sudan has not yet adhered to the 1966 International Covenant on Civil and Political Rights. It is a state party to the 1984 Convention against Torture, but the Committee against Torture has not yet discussed the situation in South Sudan. In 2015, however, the UN High Commissioner for Human Rights issued a report on South Sudan in which he noted that:
While some accountability measures in specific individual cases were noted, including arrests and investigations in relation to the alleged killings of civilians by police in Central Equatoria and Northern Bahr el Ghazal in November 2014, in general there appeared to have been no meaningful efforts by national actors to hold perpetrators of gross violations of human rights accountable."Human rights situation in South Sudan, Report of the United Nations High Commissioner for Human Rights", UN doc. A/HRC/28/49, 27 March 2015, §45.
On 5 December 2014, senior officials of the Presidential Committee on Human Rights Abuses, established in January 2014 to investigate human rights violations and abuses committed by security agents and opposition forces, informed the UN that its report had been finalised and submitted to the President. At the same time, the Inspector General of Police of South Sudan informed the UN that investigations conducted by the National Police Service into the violence that erupted in December 2013 "had been unable to link any police officer to human rights violations"."Human rights situation in South Sudan, Report of the United Nations High Commissioner for Human Rights", UN doc. A/HRC/28/49, 27 March 2015, §46.
South Sudan has not ratified the Protocol on the African Court of Human and Peoples' Rights.
The majority of cases in South Sudan are undocumented making it difficult to report on the country’s national jurisprudence surrounding police or prison officer use of force.