BY: Daniel Juol Nhomngek, Kampala Uganda, DEC/23/2018, SSN;
The claim that rape took place in Bentiu is true as there is no smoke without fire. The government investigation that concluded that there is no evidence to substantiate reports that women and girls were raped in Bentiu is not credible as the government cannot investigate against itself and produce a credible report. The team that investigated the report is not the main body under the law of South Sudan to investigate the human rights violations. Human Rights Commission of South Sudan is the legitimate body to have the conclusive report on all human rights violations. We still believe that the rape cases reported on 30 November by the medical charity Médecins Sans Frontières (MSF) that they had treated 125 women and girls who were raped, beaten, and robbed over a 10-day period between November 19 and 29 alone in the town of Bentiu is not investigated yet and I call upon the UN Human rights commission not rely on that report but to take its own initiative to investigate the matter to confirm whether the finding of the government is credible.
Since the war broke out in December 2013, the rates of human rights violations in South Sudan have increased. Women have been raped; enforced disappearances have been registered, arbitrarily arrest and detention are order of the day. For instance, individuals have been detained for over years in unhealthy detention centres. The killings with impunity as seen in the case of unknown gunmen have been ongoing. Deprivation of personal and community properties have occurred.
Ruthless oil drilling and other mineral extractions have been reported. The drilling of oil in some areas like Pariang in Ruweng State has left the land barren, which makes it unproductive. As a result, places where oil is drilled has currently become very dangerous for human beings to inhabit as women are giving birth to deformed children, cows, birds and other animals are dying after drinking contaminated water by toxic chemicals resulting from mining.
At communities’ levels among cattle keeping communities, cattle raids is fueling communal violence among different cattle keeping communities. This has resulted into uncontrolled killings among civilians without accountability that sees, thousands of civilians being killed. In some areas, kidnapping of children is constantly going on while underage girls are being forced to arranged marriages. The forced and arranged marriages have resulted into serious domestic violence against women and because of this women are always the primary victims.
All the violations of human rights stated above and others not reported at different parts of the country have caused untold sufferings and gross injustices among and against citizens. The reasons for not either getting effective redress against the ongoing human rights violations or not reporting some of those human rights violating is due to the following reasons:—
First, the victims are not sure where to appeal for the redress to get justice done in their favor as they do not know their rights and duties that can enable them to fight for their rights and forced the government to listen to them.
This is common a country like South Sudan where citizens are not aware of their rights and they cannot fight for those rights which is different from the country where citizens are aware of their rights and duties, they can struggle for the redress of their rights in case of violations or forced the government out of the power altogether.
In the case of South Sudan, majority of the citizens are ignorant of their rights and this makes them believe that the government is at all the times right and above everything including the law, and because of that anything government does even in clear violations of the law and their rights is seen as normal.
Hence, the worst thing in the country like South Sudan where majority of the citizens lack proper understanding of their duties and rights, they become parts of the oppression as the government capitalizes on their ignorance and uses them as the tools of destruction against those who resist the fragrant violations of the law as well as the abuse of human rights in the country.
Moreover, in the country like South Sudan where citizens are ignorant of their rights and duties, they do not understand the meaning of the legitimate use of the authority. In UNDERSTANDING DEMOCRACY: A HIP POCKET GUIDE by JOHN J. PATRICK (Published in association with JusticeLearning.org a Project of the Annenberg Foundation Trust at Sunnylands),
Authority is stated to be legitimately used where there is justification for exercising the power over the people within the government’s jurisdiction. Thus, JOHN J. PATRICK is of the view that the people are willing to accept the power of rulers to command them, if they perceive that the power has been acquired and used rightfully or legitimately.
In explaining the impact of the legitimate use of the authority, JOHN J. PATRICK points out that when rulers have authority to use power through the government; the consequence is political order and stability among the people. However JOHN J. PATRICK explains the consequences of the illegitimate use of the authority by pointing out that where rulers use power without authority, they may be resisted by the ruled, leading either to oppression by rulers over the ruled or to disorder and instability.
In my opinion, whether the citizens resist the actions of the authority that may either lead to oppression by rulers over the ruled or to disorder and instability depends on the stage of the development of the people. In the countries where citizens know their duties and rights as it was the case in Egypt, Libya, Tunisia in 2011, Zimbabwe in 2018, South Africa and other countries, citizens are able to resist the illegitimate used of authority.
Nevertheless, in the countries where citizens do not know their duties and rights as seen in the case of South Sudan, Democratic Republic of Congo, Central African Republic, Somalia and other countries in the same category, disorders and instabilities ensue where there is illegitimate use of the authority. This takes me to my next point.
Second and related to the first point, another reason the violations of human rights goes unreported is due to the weak judiciary and quasi-judicial bodies like South Sudan Human Rights Commission. This weakens the rule of law, democracy and effective protection of human rights.
In the countries where rule of law is strong, the body that always acts as balance and checks on the administrative abuse of power is the court assisted by some of the bodies like human rights commission and inspectorate of Government or an ombudsman in some countries as the case in Albania; Andorra Argentina, Nambia etc. In the context of South Sudan, these bodies are not properly functioning.
Consequently, citizens are not able to get redress against the violations of their rights as they are not able to challenge the illegitimate use of the authority by the government authorities.
Third, the deliberate refusal by the state to implement the decision of the courts or implement the decision of Courts selectively at all level has rendered the judiciary and quasi-judicial bodies such as Human Rights Commission and other tribunal ineffective. This is even made worse by the fact the judges working in courts and other employees working in Human Rights Commission and the Inspectorate of the Government do not oppose the unlawful exercise of the executive power upon acting beyond their powers as provided for under the law.
Fourth, the citizens do not report human rights violations due to the fear of reprisal by the violators of human rights.
Fourth and finally, the lack of proper understanding of the body mandated to carry out investigations in case of the violations of human rights has contributed to the persistent abuses and violations of human rights by the government and some of its agencies in South Sudan. The lack of clear understanding of the avenues where citizens may report human rights violations has made citizens losing faith in the ability of the Courts and human rights commission to protect their human rights. This, by implication has made the citizens to see the President and other government officials as above everything in the country, which is not true according to the Constitution and other existing laws in South Sudan.
The fact that citizens should understand is that constitutionally, it is the South Sudan Human Rights Commission, which is responsible for the investigations and reporting of the violations of Human rights. Under Article 9 (4) of the Constitution of South Sudan as amended, it is provided that the Bill of Rights shall be upheld by the Supreme Court and other competent courts and monitored by the Human Rights Commission.
But despite the presence of this Constitutional provision and others that clear mandate South Sudan Human Rights Commission, the issue concerning as the jurisdiction to investigate and report human rights violations is not yet settled as seen in the recent allegations of rape put forward by MSF Holland.
In the recent report concerning the rape of women in Bentiu, the question of who has the mandate to investigate and report the violations of human rights in South Sudan has become prominent. The question has come into light following the report by medical charity Médecins Sans Frontières (MSF) that its staff in the town of Bentiu had treated 125 women and girls who were raped. This report was made on 30 November 2018.
Following the report by MSF, the President constituted Investigative Committee headed by Awut Deng Acuil to go and investigate the allegations. On December 20, 2018, the Awut Committee produced the report and presented it to the President of South Sudan. The report concluded that the allegations of rape as made by MSF were unfounded as there is no evidence to back it ( read; No evidence to back claims of Bentiu rapes: investigation team 21/12/2018 at https://radiotamazuj.org/…/no-evidence-to-back-claims-of-bentiu-rapes-investigation-t…).
Although the government of South Sudan has done a right thing to investigate the alleged recent rape cases in Bentiu, its reports should not be taken to be conclusive and credible for a reason that the government may not be able to investigate itself to the expected standard governing investigations of human rights violations.
Therefore, the investigation was supposed to have been mainly carried out by the South Sudan Human Rights Commission even though the government may carry out its own investigation to confirm or dispute what the Human Commission might have reported.
What is not clear however is whether the Human Rights Commission of South Sudan has taken an initiative to investigate or it is in the process to do so? If the Human Commission of South Sudan has not taken any initiative at it owns to investigate or has failed to investigate such a matter then it has abrogated its duties under the Constitution of South Sudan which raises the question as to who has the mandate to investigate the violations of human rights in South Sudan.
Whereas, the Presidency and executive and other government agencies have the Constitutional duty to protect human rights, their reports are not considered credible unless they are corroborated by the independent human rights investigations and reports. As already pointed in this discussion, one of the bodies whose report can be accepted as credible regionally and internationally is the South Sudan Human Rights Commission which has the main mandate to investigate and report the violations and abuse of human rights in South Sudan.
The mandate of the South Sudan Human Rights Commission is provided for under the Transitional Constitution of the Republic of South Sudan, 2011(TCRSS) (as amended). This Constitution provides for the Bill of Human Rights and protection of those rights enshrined it. For instance, Article 9 (1) the TCRSS, 2011 provides for the Bill of Rights, which it defines as a covenant among the people of South Sudan and between them and their government at every level and a commitment to respect and promote human rights and fundamental freedoms enshrined in this Constitution; it is the cornerstone of social justice, equality and democracy.
In addition, Article 9(2) of TCRSS, 2011 provides that the rights and freedoms of individuals and groups enshrined in the Bill shall be respected, upheld and promoted by all organs and agencies of Government and by all persons. Though this article to some extent gives the government some mandate to protect and investigate the violations of human rights, the main body with full mandate to investigate human rights violations in South Sudan is the South Sudan Human Rights Commission as provided for under the Constitution of South Sudan in Article 10.
Article 10 of the TCRSS 2011 provides: Subject to Article 189 herein, no derogation from the rights and freedoms enshrined in this Bill shall be made. The Bill of Rights shall be upheld, protected and applied by the Supreme Court and other competent courts; the Human Rights Commission shall monitor its application in accordance with this Constitution and the law. As seen in the provision of law in Article 10, except in the Article 189 of the TCRSS which provides for the circumstances under which some of the human rights may be suspended, it is the duty of the Human Rights Commission of South Sudan to monitor the applications of the Bill of Rights in accordance with the TCRSS, 2011and other laws of South Sudan.
Thus, Articles 9-34 of the TCRSS, 2011 provides for all the human rights all South Sudanese are supposed to enjoy irrespective of their tribal, status, racial and religious backgrounds and which the South Sudan Human Rights Commission has to protect. The authority of the Human Rights Commission of South Sudan to protect human rights is provided for under Article 10 of the TCRSS, 2011 read together with Articles 145 which establishes the South Sudan Human Rights Commission and article 145, which provides for the functions of the Human Rights Commission of South Sudan.
Under the Constitutional provisions above, the South Sudan Human Rights Commission has the duty to inter alia to: (a) monitor the application and enforcement of the rights and freedoms enshrined in the Constitution; (b) investigate, on its own initiative, or on a complaint made by any person or group of persons, against any violation of human rights and fundamental freedoms; (c) visit police jails, prisons and related facilities with a view to assessing and inspecting conditions of the inmates and make recommendations to the relevant authority.
The Commission shall also (i) monitor compliance of all levels of government with international and regional human rights treaties and conventions ratified by the Republic of South Sudan; (j) express opinion or present advice to government organs on any issue related to human rights and fundamental freedoms; and (k) perform such other function as may be prescribed by law (2) The Human Rights Commission shall publish periodical reports on its findings and submit annual reports to the National Legislative Assembly on the state of human rights and fundamental freedoms.
In summary and based on the foregoing discussion, the question as to who has the mandate to investigate the violations and abuse of human rights and then report it in South Sudan is the South Sudan Human Rights Commission. This implies that though the presidency has the duty to uphold, respect and promote human rights as provided for under the Bill of Rights in the Constitution of South Sudan of which this includes investigation and reporting such violations, the body mandated to do so is the South Sudan Human Rights Commission.
It therefore implies that the investigation and report on human rights violations in South Sudan carried out by the Executive as seen in the case of Bentiu rape allegations that was presented on 20 December 2018 should not be taken to be credible report unless there is a report from Human Rights Commission of South Sudan Corroborating it.
The report of the Government should not be relied on exclusively as proof of rape not having taken place at all in Bentiu as the current situation which the government is very defensive in protecting its image internationally the government of South Sudan will never make a report against its own image. This is confirmed by the use nationalistic language used by Lam Tungwar Kueigwong on social media who seriously rubbished the rape allegations by MSF.
In short as can be understood from the whole discussion in this work, the report of the Awut Committee investigating the rape allegations in Bentiu without other independent source corroborating its validity is invalid and should not be relied on to prove the fact that no rape has ever taken place at all in Bentiu.
NB, the author is Human Rights Lawyer and the Executive Director of Joth Mayardit Community Centre for Peace and Justice, the Deputy Coordinator of South Sudan Civil Society Organizations in Uganda; he can be reached through: email@example.com;+256781023707