BY: SINDANI SEBIT, NAIROBI, JUL/29/2014, SSN;
Bill of Rights in Federal South Sudan: First part
Part 6 of this series focuses on part of the Bill of Rights in a proposed Federal system in South Sudan. This includes right to life, equality and freedom from discrimination, human dignity, right to have a family, language and culture, freedom of movement and residence, right to privacy, protection right and property, freedom and security of the person, slavery, servitude and forced labour, labour relations, right to clean environment, economic, social and consumer rights, right to fair administrative action and freedom of conscience, religion, belief and opinion.
The Bill of Rights is deemed as the fundamental framework for social, economic and cultural policies and thus forms an integral part of federal democratic South Sudan. This is because human rights and fundamental freedoms of the people must not only be recognized but also protected by enshrining these principles into the federal and state constitutions. The aim is to preserve the dignity of individuals and communities in addition to promoting social justice and the realization of the potential of all human beings.
Therefore, these rights and fundamental freedoms belong to each individual and are not granted by the federal or state governments. They do not exclude other rights and fundamental freedoms that may not be in the Bill of Rights but are recognized or conferred by law or traditions. However, some of these rights and fundamental freedoms may be subject to limitations when they are inconsistent with state laws enacted in accordance with the principle of separation of powers between the federal and state powers. The purpose here is to prevent anybody trying to violate state laws by evoking the federal laws to override state laws. Pursuant to this, the states shall always enact laws that strive to protect human rights and fundamental freedoms consistent with the federal laws.
Any bill of Rights enacted by the federal constitution shall apply to all laws and binds all federal organs and all persons. This means every person is entitled to enjoy the rights and fundamental freedoms as enshrined in the bill of rights. As result the courts whether at federal or states levels should apply the provisions in the bill of rights in way that should not infringe the right or fundamental freedoms on individuals or the communities in South Sudan. The courts must interpret laws in ways that most favour the enforcement of a right or fundamental freedoms. The interpretation of the bill of rights shall aim at promoting the values that underlie an open and democratic society based on human dignity, equality, equity and freedom.
In order for the federal and state authorities guarantee these rights and fundamental freedoms in the country, these institutions shall avail resources aimed at prioritizing the rights and fundamental freedoms. This is to ensure widest possible enjoyment of the right or fundamental freedoms by all, including the vulnerable groups in the country. On the other hand, the courts or tribunal or other authority shall be deemed to not interfere with a decision by a federal or State organ concerning the allocation of available resources for protection of the rights and fundamental freedoms, solely on the basis that these resources will not meet the objectives for which they are intended.
Having outlined the principles of the proposed bill of right, it is important to look in details the rights and fundamental freedoms that shall be enshrined in the bill of right of South Sudan federal constitution. These should include the following:
1. Right to life
2. Equality and freedom from discrimination
3. Human dignity
4. Right to have a family
5. Language and culture
6. Freedom of movement and residence
7. Right to privacy
8. Protection right and property
9. Freedom and security of the person
10. Slavery, servitude and forced labour
11. Labour relations
12. Right to clean environment
13. Economic, social and consumer rights
14. Right to fair administrative action
15. Freedom of conscience, religion, belief and opinion
16. Freedom of expression
17. Freedom of the media
18. Right to access to information
19. Freedom of association, assembly, demonstration, picketing and petition
20. Political rights
21. Right to access justice and rights of arrested persons
22. Rights of persons detained, held in custody or imprisoned
23. Right to fair hearing
24. Specific application to rights such as children, persons with disabilities, youth, minorities, marginalized and other members of society.
Right to life
Every person has the right to life and life begins at conception. This means abortion should not be allowed unless under medical consideration or when there is need for emergency treatment or when the life of the mother is in danger. No person shall be deprived of life except sanctioned by federal or state laws following conviction by competent court.
Equality and freedom from discrimination
It must be stated that every person is equal before the law. He/she has the right to equal protection and equal benefit of the law. Equality means having full and equal enjoyment of all rights and fundamental freedoms. Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. Nobody shall be discriminated directly or indirectly on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. On the other hand, no person shall discriminate directly or indirectly against another person on any of the grounds specified or contemplated above.
In order to guarantee these rights federal and state assemblies shall enact laws and other measures designed to redress any disadvantage suffered by individuals or groups because of past discrimination. This should include affirmative action programs. These measures should adequately provide for any benefits to the needs of the people or communities.
It is crucial that the law recognizes that every person has inherent dignity. He/she has the right to have that dignity respected and protected.
Right to have a family
Every adult has the right to marry a person of the opposite sex based on free consent of the parties. This is because family is a natural and fundamental unit of society. It is the basis of social order, and therefore shall enjoy the recognition and protection of federal and state authorities. Adults that have consented to marriage shall be entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. Laws enacted to recognize marriage shall also recognize marriages concluded under any tradition, or system of religious, personal or family law. This can also include any system of personal and family law provided that such marriages or systems of law are consistent with federal or state constitutions.
Language and culture
Language and culture are fundamental elements in social development and integration because they create the diversity that typifies the unity of a country. Therefore, the bill of rights shall enshrine the fact every person has the right to use his/her language and has the right to participate in the cultural life of the person’s choice. A person belonging to a cultural or linguistic community has the right, with other members of that community to enjoy the person’s culture and use the person’s language. He/she can form, join and maintain cultural and linguistic associations and other organs of civil society. He/she likewise shall not compel another person to perform, observe or undergo any cultural practice or rite.
Freedom of movement and residence
Every person has the right to freedom of movement. Every person has the right to leave and enter, remain in and reside in any state of the Federal Republic of South Sudan. The right to freedom of movement and residence within South Sudan and within any state of South Sudan is important for the citizen to have the freedom of choice provided that this choice is not inconsistent with the laws of the state to which a person would like to move or reside. In such cases the laws of the state regulating free movement and residence take precedence over the federal law. The aim of compliance with state laws is to mitigate the rampant tendencies of land grabbing, trying to impose behaviours that are inconsistent with the norms of the hosting state and ensure that nobody is above the laws of the state that he/she has decided to move to, settle or work in.
Right to privacy
To protect the privacy of the individual, the constitution shall ensure that every person has the right to privacy. This includes the right not to have the person, home or property searched, property or possessions seized, information relating to their family or private affairs unnecessarily required or revealed and privacy of their communications infringed.
Protection of right to property
In Federal Republic of South Sudan, every person shall have the right, either individually or in association with others, to acquire and own property of any description in any part of Republic provided acquisition of such property is based on the laws of the state regulating transaction in such property. The purpose here is to ensure legal acquisition of property, transparency and to avoid any conflict with the federal laws. Nobody shall evoke any laws other than that of the state to fraudulently acquire property.
On the other hand the federal or state parliament shall not enact a law that permits the federal or state government or any person to arbitrarily deprive a person of property of any description or of any interest in, or right over. On the contrary, the state parliament shall enact a law depriving any person, property or interest in, or right in property because:
a) Such property was fraudulently acquired
b) Land or property is public property
c) Land or property requires prompt payment or compensation
d) Land or property has pending court case
The Federal government shall support, promote and protect the intellectual property rights of the people. However this shall not include property found to have been unlawfully acquired.
Freedom and security of a person
Personal security is the responsibility of the government and therefore in federal South Sudan, every person shall have the right to freedom and security. This includes the right not to be deprived of freedom arbitrarily or without just cause, detained without trial, except during a state of emergency. No person shall be subjected to any form of violence from either public or private sources. No person shall also be subjected to torture in any manner, whether physical or psychological or subjected to corporal punishment, treated or punished in a cruel, inhuman or degrading manner.
Slavery, servitude and forced labour and labour relations
In federal South Sudan, nobody person shall be held in slavery or servitude. A person shall not be required to perform forced labour. However, every person shall have the right to fair labour practices. This includes:
a) Fair remuneration
b) Reasonable working conditions
c) Form, join or participate in the activities and programs of a trade union except federal army and federal security organs
d) Go on strike.
On the other hand all employers shall have their rights in accordance to the law. They will have rights to form and join an employers’ organization and to participate in the activities and programs of an employers’ organization. Meanwhile every trade union and every employer’s organization shall have the right to determine its own administration, programs and activities, organize and form and join a federation. The trade union, employers’ organization and employer shall have the right to engage in collective bargaining.
Right to clean environment
Protection of the environment is essential for the present and future generation and therefore in a federal South Sudan, every person shall have the right to a clean and healthy environment by ensuring that the environment shall be protected for the benefit of present and future generations through legislative and other measures such as:
a) Sustainable exploitation, utilization, management and conservation of the environment and natural resources
b) Work to achieve and maintain minimum tree cover
c) Protect intellectual property
d) Protect genetic resources and biodiversity
e) Prevent activities that endanger the environment
f) Utilize the environment and natural resources for benefit of all
g) Ensure that every one has the obligations relating to the environment
Economic, social and consumer rights
The economic and social status of the people usually underscores the prosperity and posterity of a nation. Therefore to ensure that the people of South Sudan enjoy the high economic and social status, federal South Sudan shall ensure that the every person shall have the following rights:
a) Highest attainable standard of health, which includes the right to health care services
b) Accessible and adequate housing, and to reasonable standards of sanitation
c) Free from hunger, and to have adequate food of acceptable quality
d) Clean and safe water in adequate quantities
e) Social security
Failure to guarantee these basic rights has characterized the current regime in Juba. This is because of rampant corruption; poor planning, failed leadership and inability to prioritize the peoples’ needs. In addition every person shall not be denied emergency medical treatment.
The right of the consumers shall also be recognized and protected. These include the right to:
a) Goods and services of reasonable quality
b) Information necessary for them to gain full benefit from goods and services
c) Protection of their health, safety, and economic interests
d) Compensation for loss or injury arising from defects in goods or services.
Right to fair administrative actions
Any administrative actions taken by authority, employer or any person responsible to others may have adverse effect on the person and so every person has a right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. If a right or fundamental freedoms of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. Laws shall be enacted to provide for the review of administrative action by a court or if appropriate, an independent and impartial tribunal so as to promote efficient administration.
Freedom of conscience, religion, belief and opinion
The above mentioned freedoms are considered cardinal if South Sudan is to leap away from the current state of dictatorship to achieve equality and tolerance. Many countries have plunged into chaos because of intolerance to different opinions, beliefs and religion and currently the same seeds are being planted in South Sudan. In order to nip this mushrooming cancer in the bud, in federal South Sudan every person shall have the right to:
a) Freedom of conscience, religion, thought, belief and opinion.
b) Manifest individually or in community with others, in public or in private, any religion or belief
c) Freedom of conscience, religion, belief and opinion through worship, practice, teaching or observance, including observance of a day of worship.
No person shall be denied access to any institution, employment or facility, or the enjoyment of any right because of the person’s belief or religion. In addition no person shall be compelled to act or engage in any act that is contrary to the person’s belief or religion.
Freedom of expression
Under federal South Sudan, freedom of expression shall be guaranteed to all except in situations that are now allowed by federal law. Therefore every person shall enjoy the freedom to seek, receive or impart information or ideas, freedom of artistic creativity; academic freedom and freedom of scientific research. However, an article shall be inserted in the federal constitution that shall make the following a federal offense:
• Incitement of violence
• Ethnic incitement
• Vilification and incitement to cause harm
• Propaganda for war
• Advocacy for hatred
It is stipulated that when exercising the right to freedom of expression, every person shall respect the rights and reputation of others. This is important for peaceful coexistence and harmony in the country.
In conclusion, the aim of the bill of rights and fundamental freedoms is to accord South Sudanese self steam, confidence and guarantee that the federal authorities are there to serve them but not to oppress, suppress, subjugate and exploit them. It is further to provide the necessary atmosphere d for them to enjoy their rights and fundamental freedoms, live in harmony with one another and participate freely in building the country. The rest of the bill of right will be described in part 7 of these series. These will include freedom media, right to access information, freedom of association, assembly, demonstration, picketing and petition, political rights, right to access justice, rights of arrested and detained persons, right of persons held in custody, right fair hearing and specific application to rights such as children, persons with disabilities, youth, minorities, marginalized and other members of the society. The role of the South Sudan human right Commission will also be dealt with in the next article