Is the State of Emergency Decree an attempt to rescind the National Dialogue?

By: Wol D. Akech, Lawyer, JUL/27/2017. SSN;

As issues of public debate cannot be approach without aligning them to legal instruments or public policy frameworks, I decided to make an attempt in answering the question above by examining National, Regional and International frameworks and lastly personal opinion approach by discussing the chances of viability of National Dialogue alongside the State of emergency(SoE).

On July 17, 2017, President Salva Kiir issued another shocking evening presidential decree like the Justices and Judges Dismissal decree. This time, President of the Republic issued a decree in accordance with Article 189(1) of the Transitional Constitution of the Republic of South Sudan 2011 (amended 2015) three (3)-months state of emergency in Gogrial, some part of Tonj, Wau and Aweil East States.

This decree came at background of intensifying inter-communal fights among the three communities of Gogrial State namely; Apuk Vs Aguok, Apuk Vs. Kuac Ayok and Apuk Vs. (Abiem Mayer in Tonj State). These communal fights left number of dozens of people killed and no one detained for the agitation of such violence.

It is not clear as well whether the National and State governments have any clear policies to settle the matter than the SoE, if any, why number of precious souls of children, women and elderly people were and are still abandon to perished and hundreds of homes burnt?

The declaration of the state of emergency in according to the Constitution is expected to be tabled before the National Legislature for approval or rejection within fifteen (15) days from the date of issuance as per the wordings of Article 189(2) which says “”the declaration of a state of emergency shall be submitted to the National Legislature within fifteen days of the issuance of the declaration. When the National Legislature is not in session, an emergency session shall be convened””.

Since the declaration of state of emergency, the Government has made no further steps to follow the provisions of this Article mentioned above; instead it has issued a directive appointing Major General Akech Tong Aleu, the Governor of Tonj State as the Chairperson of the SoE Committee in the four (4) States.

This decree met criticism because of the fear of hindrance of the National Dialogue process which is likely to infringe fundamental objectives of the dialogue by derogating basic human rights and background/true nature of inclusion of Aweil East State though there is no armed conflict or any element of SoE in this state.

Though the decree has not stated any reason for the inclusion of some of these States, senior government officials on their personal comments sought to hysterically justify the announced state of emergency by contending that the decree is necessary in response to the threat posed by inter-communal fights in Gogrial State, to stop anti-peace groups in close collaboration with local elements in the other two States(Wau & Aweil East States) or crossing to the neighbouring States in process of apprehension of the communal fights culprits or pre-empt anti-peace movements or from getting link with foreign elements in the borders of the other two States.

The same hysteria senior government officials said President Kiir wants to end the ongoing crises which have resulted into lost of lives.

What amounts to an “EMERGENCY” is not defined in our constitution, thus, it may give a misleading or vague interpretations if guidance is not sought. For this reason, it is not easy to have an agreed or conclusive definition but does not mean impossibilities of getting reasonable definition. The definition given by Dr. Subhash C. Kashyap, an eminent constitutional jurist can be applicable here.

Dr. Kashyap defines “emergency” as “a difficult situation arising suddenly and demanding immediate action by the public authorities under power specially granted by the Constitution or otherwise to meet such exigencies” (Our Constitution, 5th ed, 2011, National Book Trust).

The state of emergency as generally known undermines number of basic human rights which in any civilized and democratic society are deemed to be sacrosanct matters, e.g. freedom of expression, association and peaceful assembly, and more importantly beyond (undermines) what international law guarantee.

The National Human Rights Commission, Human Rights Watch and UN Agencies have recently reported and documented serious human rights violations in South Sudan whether by the Government, armed rebellions, communal factions or state sponsored actors in the whole country including some of these peaceful areas, thus the mind blogging question is, which rights will be spare/non-derogable under the state of emergency if the state authorities could committed such violations without the state of emergency?

Before I proceed into the main object of this work, one would like to state it early that the purpose of this article is to inquire whether this decree undermines the rights if so, will it not means that it will affect the ongoing National Dialogue under our National wise men?

If the answers to these two proceeding questions are in affirmative, then will it not mean that it is another mechanism that President Kiir has invented to rescind or sully the National Dialogue process? Or what could be the true notion of Aweil East State under the SoE?

It is true that the whimsical approaches being adapted by President since the start of the National Dialogue, suggest one common question in the minds of many South Sudanese whether the President means what he had said before the Parliament in December 2016?

In most cases, when there is war or natural disaster, the Government needs to restrict some of these fundamental rights as enshrined in International and National Laws. It is however true that in exercise of SoE order, people may be denied of their enshrined rights and thus suffer as well even if they(section of people) would have not suffer the effect of the cause which led to SoE declaration.

Thus, this paragraph leads us to a question whether all the states covered by SoE qualify or meet the conditions or circumstances in which the President is empowered to declare SoE under Article 189(1)?

In South Sudan unlike other countries where declartion of SoE is discussed by the Council of Ministers, President is unilaterally empowered to declare a state of emergency under Article 189(1) which states that “”the President, may upon the occurrence of an imminent danger, whether it is war, invasion, blockade, natural disaster or epidemics, as may threaten the country, or any part thereof or the safety or economy of the same, declare a state of emergency in the country, or in any part thereof, in accordance with this Constitution and the law””.

The literal and broadly meaning of this provision is that there must be an imminent danger to occur or external invasion or internal disturbances, blockade, widely spread of natural disaster or epidemic disease(s), a breakdown of law and order which endangers the Constitutional order and such dangers cannot be controlled by the regular law enforcement agencies(police).

Each of the four states under SoE, border Gogrial States generally but Aweil East State do not border the immediate waring communities in Gogrial State. Aweil East State borders Gogrial in the areas of Awan Counties of Gogrial State. It means that there is no direct boundaries between Aweil East and the warring communities nor is there events of SoE as describe under Article 189(1) while Wau State borders Gogrial in the areas of Kuach Ayok Counties, a community which is not in dispute or conflict or call a fight with Wau State currently .

So, one may ask a further provoking question as to what is notion behind inclusion of such State(s) under SoE?

This question will be answered in the conclusion or be left to the reader to digest but let us with the help of TCRSS, 2011, African Charter on Human and Peoples’ Rights, 1981 and International legal instruments(ICCPR,1966) examine as to what are the impacts of SoE in such scenarios.

Article 189(3) of TCRSS, 2011 states “”When the National Legislature approves the declaration of a state of emergency, all laws, orders or measures issued or taken by the President pursuant to the state of emergency shall continue to remain in force””.

It is apparently clear in view of this sub-article that some of the fundamental rights or Laws that give such rights or institution can be suspended by president.

In other words, this provision read together with provisions of Article 190 of TRCSS, 2011 empower the President to perform legislative power as well as his extra-ordinary executive power to suspended or abrogated institutions such as National Dialogue, the Agreement of Conflict Resolution in the Republic of South Sudan(ACRSS, 2015) or its Revitalization process, as we approach 2018, population census which is a prerequisite to elections may be suspended, thus, no elections that may be held in 2018 as scheduled and subsequently, the government can extend its lifetime as it did previously.

This is clearer in Article 190(b, c, d) where President is given dissolution or powers or power to suspend institutions.
The President of Republic has power under Article 190 and reads:
“During a state of emergency, the President may, by law or orders, take any measures that shall not derogate from the provisions of this Constitution except as provided herein:
(a) to suspend part of the Bill of Rights; however, there shall be no infringement on the right to life, prohibition against slavery, prohibition against torture, the right of non-discrimination on the basis of race, sex, religious creed, the right to litigation or the right to fair trial;
(b) to dissolve or suspend any institution of the National Executive;
(c) to dissolve or suspend any of the state organs or suspend such powers conferred upon the states under this Constitution; and
(d) To take any such measures as deemed necessary to the state of emergency, which shall have the force of law”.

Reading these provisions of Article 190 with experiences of the other States such as Turkey in 2016, Ethiopia in 2016, India in 1975-77 and others, state of emergency orders or laws declared by the Governments often introduced special powers of arrest and detention. Such declared orders or laws always have subsequent enactments of criminal laws that limit the right to fair trial, due process, freedom of expression, association and assembly.

During the upheavals in the SoE, Governments turns to torture and all other forms of ill treatment in pursuit of confessions, and sometime use the help of private persons (State sponsor actors) where abduction and extrajudicial killings are possibly endorsed. The right to have remedies like writ of habeas corpus may be suspended; as a result, victims of arbitrary arrest and detention are left without legal protection with devastating infringements.

Under the African Charter on Human and Peoples’ Rights, 1981 there is no derogation of any rights under the charter rights allowed during a time of emergency. This rise a legal question as to whether the member states should abide to the provisions of the Charter or regard it as a persuasive instrument which can be disregarded in presence of derogating provisions in the National Constitutions or law ?, The answer can be found in the following interpretation and case law.

In interpreting the African Commission on Human and Peoples’ Rights, it means that the Charter “does not allow member states to derogate any Charter’s rights during the state of emergency. In more liberal model interpretation that may not be accepted by conservative theorists, even in situations of civil war cannot be grounds for derogation of some of the Charter rights by State members.

In Commission Nationale des Droits de l’Homme et des Libertés v Chad (2000) AHRLR 66 (ACHPR 1995) a Communication/case filed before Commission on 11th May 1992 against Chad, the Commission stated that the “Chadian Government had failed to provide security and stability in the country, thereby allowing serious or massive violations of human rights.

The national armed forces were “participants in the civil war” and there had been several instances in which the Government had “failed to intervene to prevent the assassination and killing of specific individuals. Even where it could not be proved that violations were committed by government agents, the government had a responsibility to secure the safety and the liberty of its citizens, and to conduct investigations into murders The civil war could not therefore be used as a legal shield for failure to fulfil the legal obligations under the African Charter, and Chad was held to have violated articles 4, 5, 6, 7 and 9””.

In the provisions of International Covenant on Civil and Political Rights (ICCPR), 1966, Article 4(1) provides that: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”

Here it is permissible that some rights may be derogated under a state of emergency but must be only in exigencies of the situation and other basic rights cannot be derogated under any circumstances. The United Nations Human Rights Committee in its General Comment No. 29 on states of emergency (U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), para. 5) commented that “governments need to provide careful justification not only for their decision to proclaim a state of emergency but also for any specific measures based on such a proclamation.

The notion in which presidential decree on SoE included Aweil East States shows a vague and overbroad interpretation of Article 189(1) by the Government and thus, restrictions permitted under the ICCPR 1966 Article 4(1) are likely to be derogated when they do not meet the conditions for derogation.

Therefore, one is of the opinion that SoE has preceded or misinterpreted permitted circumstances. For any suspension of some rights in States like Aweil East will not be justifiable under TCRSS, 2011, ACHPR, 1986 and ICCPR, 1966 since there is no clear elements of Article 189(1) of TCSS, 2011 In SoE in case it is submitted and approved by National Legislature, South Sudan as a member state and a party to ACHPR, 1981 should remains obligated to respect all articles of the African Charter, which has no derogation provisions.

Arbitrarily detention on excuses of exercising derogated rights under SoE or any violations of human rights should be redress according as if SoE has not been declared.

In my view, if any of the conditions contented in Article 189(1) is not fulfilled, it means that derogation in States like Aweil East or Wau are beyond the powers of the SoE order or exceeded the prescribed conditions.

The territorial extent of SoE is very clear within the provision of Article 189(1) where power confers upon the President to declare SoE either the whole Republic of South Sudan or any part thereof. For instance, if the intre-communal fights in Gogrial State is proved or considered by the President to be beyond the control of law enforcement agencies and it has reached a stage it can be referred to as an imminent danger, he can only declare SoE in Gogrial State only but not extend to other peaceful areas or States merely on grounds of controlling the movements of the so called anti-peace groups.

The movement of the so called anti-peace group can be controlled within and in the borders of a state that falls under SoE or where an imminent danger occurs unless it has become reasonable that the bordering areas or States have the same imminent danger. Henceforth, one sees that the SoE Order is highly made on erroneous grounds.

Wol Deng Akech holds a Bachelor of Laws (LL.B) from University of Juba,
Advocate and Legal consultant, currently pursues Master of Laws (LL.M),
University of Lucknow, India. Co-founder, Screen of Rights, a National
Non-governmental Human Rights Organization, Secretary General, Board
of Trustees, Integrated Development Organization(IDO)
Lives in Lucknow, India, Email: woldeng24261@gmail.com, woldenga@yahoo.com
Tel: +917376270849, +211912507858.
23rd July, 2017

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