Treason charges & legal realities of Dec/15/2013 Coup d’état

BY: AJO N.J. KENYI, (Advocate) JUBA, FEB/03/2014, SSN;

On Tuesday January 28th, 2014, the government of the Republic of South Sudan through the minister of Justice, Paulino Wanawilla Unago slapped treason charges against seven of 13 senior politicians implicated in last year’s alleged coup attempt in the country’s capital, Juba, including former vice-president Dr. Gabriel Riek Machar Teny.

Four of the seven suspects are in custody which include Pagan Amum Okiech, former secretary-general of the ruling SPLM party, Oyai Deng Ajak, former minister for national security, Majak D’Agoot, former deputy minister of defence and Ezekiel Lol Gatkuoth, former South Sudanese ambassador to the United States, while three remain at large, Dr. Gabriel Riek Machar Teny, Taban Deng Gai and Alfred Lado Gore.

The report of the investigation that was released makes no mention of Rebecca Nyandeng, the widow of the Late Dr. John Garang De Mabior despite numerous avowals from the State of her involvement in the Coup, a fact I shall revert to later.

Treason charges:

Article 4(1) of the Transitional Constitution of the Republic of South Sudan is to the effect that No person or group of persons shall take or retain control of State power except in accordance with the Constitution and any person or group of persons who attempt(s) to overthrow the constitutional government, or suspend or abrogate the Constitution commits treason, Article 4(2) of the Constitution.

It is important to understand that despite the constitutional mention of treason, it falls short of definition of what constitutes treason and the penal sanctions associated with it.

The charging section of the offence of treason is Section 64 of the Penal Code Act, No. 9 of 2008. Under Section 5 of the Penal Code Act, Treason is defined to mean an act of sedition, disloyalty, betrayal or subversion.

Sedition simply means organized incitement of rebellion or civil disorder against authority or State usually by speech or writing, it could also mean insurrection or rebellion meanwhile subversion means a systematic attempt to overthrow a government by working from within; undermining.

To make a sound understanding of the offence these senior individuals are charged with and the status of the released seven (7), it is only imperative to have an insight of the legal chronicle and comestibles.

It is important to note that under Section 44 of the Code of Criminal Procedure Act, No. 5 of 2008, no person shall be brought to trial on the offence of treason without a previous written sanction of the President or of the person whom he or she authorizes to give such sanction; provided that the President of the Supreme Court of Southern Sudan, by order, constitutes a Special Court for the trial of any person accused under the above-mentioned section of the Penal Code or any other Law.

This is explains why the investigation report is submitted to the President out of which he either sanctions their trial or order their release before trial.

As to whether they should be formally charged of the offence before the President can take the appropriate action or not, is a different matter which I have not addressed in my mind.

There are no established jurisdictive precedents to establish the line notwithstanding the muddle as to whether we are Common law or Civil law associated State.

Section 64(1) of the Penal Code Act is to the effect that, whoever being a citizen of or a resident in Southern Sudan —
(a) does any act, whether inside or outside Southern Sudan, with the intent of overthrowing the Government; or
(b) incites, conspires with or assists any other person to do any act, whether inside or outside Southern Sudan, with the intent of overthrowing the Government, commits the offence of treason, and upon conviction, shall be sentenced to death or to life imprisonment.

Under subsection 2 of section 64, it provides, without limiting the generality of subsection (1), above, the acts that constitute treason include:—

(a) preparing or endeavoring to carry out by force any enterprise which usurps the executive power of the President or the Government in any matter;
(b) in time of war or during a period of public emergency, doing anything which assists any other State to engage in hostile or belligerent action against Southern Sudan; or
(c) instigating any other State or foreign person to invade Southern Sudan.

Given the above narrative, the offence of treason is either committed when a person carries out an act to overthrow a government or also when such person(s) incites or conspires with or assist any other person to do the act whether within or without Republic of South Sudan.

This raises the issue as to whether the released seven detainees who were said to fall in group “B” as categorized by the Minister of Justice did not commit the offence of treason.

However it is worth noting that the Minister of Justice under Section 25 of the Code of Criminal procedure Act no. 5 of 2008 is empowered to stay proceedings on any reasonable grounds after investigation but before trial.

The reasonable ground can be lack of evidence in the legal sense if politics is divorced of the current attaining circumstances.

If they, the released detainees as the Minister of Justice stated did plan to “mobilize the public to bring down the democratically elected government”, then they too committed the offence of treason as provided under Section 64(1) (b) of the Penal Code Act by way of inciting, conspiring with or assisting those still in detention and at large in carrying out the overt act of a coup d’état.

However this can only take root when the offence of treason is confirmed to have been committed by the principals beyond reasonable doubt.

Therefore, in the interim the release of the seven (7) detainees and the continued detention of the four others can only be perceived as part of the political gimmicks being played by the parties of the day than the reality of the coup d’état.

It is important to note that the proof of an offence of treason is not a leisurely stroll in a garden park.

The burden of proof lies with the State as provided under section 109 of the Code of Evidence Act No.2 of 2006 as it is the party alleging the fact of the thwarted attempted coup d’état.

Just like the old saying goes; he who alleges must prove. As held in Bhatt v R [1957] EA 332, “A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence” suffice to put an accused on defence.

On the matter of utterances made on by the accused persons before the December 15th, 2013, for instance during the press conference in SPLM House on the December 6th, 2013, in a case of treason the utterances of an accused at a meeting are key to the overt act.

The crime lies in the words. Mere presence is of no evidential value to the act of attendance.

As was held in the old East African case of Githea v R [1956] 23 EACA 440, “Treason lay in what was said at the meeting and not the meeting themselves.”

Incidences of Constitutional Transgressions

The Bail issue:
Article 19(4) of the Transitional Constitution of the Republic of South Sudan provides that, a person arrested by the police as part of an investigation, may be held in detention, for a period not exceeding 24 hours and if not released on bond to be produced in court.

The court has authority to either remand the accused in prison or to release him or her on bail. The authority to release an individual on bail is purely a court’s jurisdictional matter if the individual desires bail and if not remanded in prison.

A person can be released on bail if he personally executes a bond to appear, with or without securities or sureties or by another person executing a bail, to bring the arrested person, with or without securities and/or by paying a deposit coupled with bond, or bail.

Upon the fulfilment of the requirement of the bail, an arrested person shall be released from custody, Section 124 of the Code of Criminal Procedure Act, 2008 however under Section 127 (1) of the same Act; a person accused of an offence punishable with death shall not be released on bail.

The offence of treason carries the Maximum penalty of death or life imprisonment as per section 64(1) of the Penal Code Act.

Therefore, to talk of bail for the released seven accused person was unfounded in law of the land.

However, there are exceptional circumstances under which a person charged with an offence that carries a penalty of more than ten years imprisonment to be released on bail as provided under Section 127(2) of the Penalty Code Act.

But important to emphasize that, no bail for a person charged with an offence that carries the maximum penalty of the death sentence as per Section 127(1) of the Penal Code Act, 2008.

Notwithstanding the above assertion, the continuous detention of the remaining four without charge or being remanded to a prison for more than 24 hours is a violation of constitution.

Madam Rebecca Nyandeng issue:

It is on record that the State maintains that the widow of the late Dr. John Garang was part of the coup plot. However the President asserts that she is not being arrested for reasons known to him and every day, the government assures the world of the desire to uphold the Constitution in respect of the detainees.

Article 14 of the Transitional Constitution of the Republic of South Sudan, provides for equality before the law and it is to the effect that; all persons are equal before the law and are entitled to the equal protection of the law without discrimination as to race, ethnic origin, colour, sex, language, religious creed, political opinion, birth, locality or social status.

Therefore, if Madam Rebecca is not being arrested because of her status as widow of Late Leader; this is a serious Constitutional breach that surges the principle of equality before the law.

In a conclusive remark, this article is to give a brief legal insight to the public on the current unfolding matters.

Ajo Noel Julious Kenyi; The Author is an Advocate of the Republic of South Sudan based in Juba. He is also a holder of an award of Academic Excellence from the Attorney General of the Republic of Uganda.
Can be reached on noeldinah@yahoo.com.

28 Comments

  1. Andrew Jenge says:

    This article made my day today! Kangaroo/Dinka court, selective justice and typical Dinka cover up that they are beholding the constitution of the country(if there is Any)! President and Minister of Injustice in the RoSS, this government of “rotten to the core” idiots was not democratically elected, period! So you do not have any right to claim that you are representing the constituencies in this nation, if you want legitimacy call an election now and see the result.

    Ajo, my brother where have been all these time!? You and anyone of your calibre who are keeping quiet of all the injustice happening is doing deservice to this nation of ours. Please wake up people and let march to freedom together as one people! More grease to the elbow – Aluta Continua!

  2. Beek says:

    People in Malakal are dying of Hunger,they have money,but they can’t find foods.Plundering,is that good news for Riek Machar!

  3. Bentiu today says:

    thank dear,
    for your wonderful analysis,
    you deserve the position of Justice ministry because to me it look like any empty position,
    the president is judge himself ,the chief justice of the suppren court.
    he did what he think will benefit him person and the dinka people, it is not about justice in south Sudan otherwise thing would have been different the wholes world knew that there were no coup in south sudan, becacuse he failure to give the evident such as video, camera, a written coups coordination with the army personal, must be presented to the world, but our president give non of such a evident s and ask the world leaders to condemn it as a coup.
    i don”t know where our president growth up? he does not know anything about the universal law.

    Mankien Town.

  4. Tyson says:

    Kenyi
    For Kiir to lie about the coup is itself a crime and defeats the notion of the legal system.
    Mr. Unango has no options but rather than to release the arrested SPLM cadres though he is naïve to slap Kiir of violating the constitution.
    I don’t know if people like Unango took the real Oath if defending justice. As Minister of Justice, he should know that Kiir is raping the constitution.

  5. Defender says:

    Kenyi,
    Exquisite! This is really the gist of the matter with the current quagmire in South Sudan. Selective Justice is no justice at all. Just for argument’s sake, let us say that these SPLM political leaders actually committed the crimes that are being forced into their necks: did they receive what is duly accorded to the accused in terms of innocent until proven otherwise? No! The government keeps talking about the constitution and the law but has failed in all counts to protect the law that they are using to lynch people who call out facts by their names. True travesty of justice. These detainees have been in custody for over 45 days, not 24 hrs., without any appearance before a competent court, to charge them with crimes that the system alleges that they have committed. Where is logic and where is justice. It beats any sense of humanity that those who proclaim to protect the constitution have shown. Everyday that these detainee continue to languish in jail for frivolous charges, is a continuation in their misery and violation of the human and political rights as political leaders.

  6. WauSon says:

    Well observed and analyzed. Coz a constitution of one people can’t be “Black & White” for and against different categories of people be it ethnic, religious, social or whatever you may call them.

  7. Joana Adams says:

    Thank you Julious Kenyi for this opportune legal insight into the muddled political and legal terrain in South Sudan. The government has been lying to the country and to the world that things are going wrong in the country because the country has no experts and it is starting from the scratch. This professional explanation has thrown their lies into the dustbin. We have professionals in all walks of life but they have been marginalised by the dinkocratic regime.
    According to the experts, “crime of treason lies in the words” not mere presence of the Dec 6th press conference by the group. The burden of proof which lies with the state as the accusing agent and must also be beyond reasonable doubt! The government is totally cornered. Wouldn’t it have been better if Salva Kiir and his cohorts contained the party politics within the party instead of rushing to the media with allegations of coup detat which they knew didnt exist.
    It seems no one has ever explained to Kiir that the SPLM party is not the same thing as the state. Therefore, desiring to replace him from party chairmanship is not the same thing as unseating him from the presidency of the republic although the former could eventually lead to the latter, which is a legitimate democratic process. In the meeting of Dec 6th there was no attempt to overthrow the government, even the SPLM Liberation Council meeting which the suspects were accused of boycotting was a party and not government meeting.
    Be ware SPLM members, in the future if any of you dares to aspire for chairmanship against a sitting president you could be charged with treason! If people must loose their lives or freedom they can’t do that on basis of unfounded allegations. The victims, the country as well as the international community must be satisfied that indeed treason was committed by each and everyone of The accused. Otherwise this is nothing but state terrorism designed to retain power by force which according to the constitution quoted above, is equally a treacherous violation of the constitution. Actually if anyone is to be charged with treason for systematic violation of the constitution, it must be non other than Mayardit himself.
    Secondly, the above insight has thrown light on one of the most sticking points of the legal system in the South: lack of equality before the law. Although Art 14 quoated above, clearly says “all persons are equal before the law”, here is the a president who considers himself above the law, giving arbitrary political considerations to one of the accused- mixing the legal and the political. This is a non starter for the new country. But what is important now is that the lies are catching up with him and his gangs. The earlier everyone does their bit the sooner we will rid ourselves off this monstrous regime. It’s time for regime change.
    Joana Adams

  8. Mohd Adam says:

    Kenyi,
    Nyandeng and her son, Mabior Machar Teny, should have been included in the list of the coup plotters and jailed accordingly, but the president was advised by Alier and Lagu to leave this woman and their adapted son, Maboir Machar out. The church leaders were also echoing the same thing, that for the sake of Dr. Garang, let her be left out, that is why. It is not the fault of the president, but those two elders plus our church leaders, who truly in their disbelief think, Garang widow should be a respectful woman, not Nyandeng type. But, What is disturbing is that, despite the terms of the cease fire, Nyandeng still goes on with her newly found love in Riek Machar, talking nonsense. I blame those freelance journalists, who entertain interviewing her in their studios.

    FROM EDITOR: HI, MOHD ADAM, THAT’S WHAT WE CALL FREEDOM OF SPEECH, SOMETHING THAT YOU REGRETTABLY AND BADLY LACKS IN SOUTH SUDAN DUE TO THE OPPRESSIVE REGIME IN JUBA.
    NONETHELESS, PLEASE ALWAYS FEEL FREE TO EXPRESS YOUR RIGHT OF FREE SPEECH HERE. BUT SERIOUSLY, SINCE WHEN DID MR. MABIOR BECOME A STEPSON OF MACHAR, I AM JUST WONDERING???

    • J.Chin Jacob says:

      Hey editor!
      There is freedom of speech/express in South Sudan and this is why we are always barking here day and night.
      South Sudan did not BLOCK OR CLOSE SOUTHSUDANNATION WEBSITE and it is because of freedom of expression.
      I am sick of your consecutive denial on this website.

      FROM EDITOR: EASY…JACOB, I DIDN’T SAY THERE ISN’T FREEDOM IN SOUTH SUDAN. THE STRUGGLE CONTINUES…..

      • Diktor Agarab says:

        Dear editor,
        Don’t buy what the luak boy, J.Chin Jacob is selling. South Sudan doesn’t have the capability of blocking any website in the world. They surely read this site and are angry but they lack the brains to block it. Hahahah! I guess their ignorance is our saving grace. J.Chin Jacob is a herd animal; he only follows his leader because of he expects to reap the benefits of dinkocracy.

        FROM EDITOR: ABOUT TWO WEEKS AGO, WHILE WATCHING SSTV, THE GROUP WAS CONDEMNING SOUTHSUDANNATION.COM AS THE WORST SITE BY TALKING NEGATIVELY ABOUT THE LEADERSHIP AND SPLM. THE PANELIST WAS NONE OTHER MR. DENGIT, THE ONE ARRESTED AND BEATEN BY KIIR’S SECURITY BECAUSE OF THE ARTICLE ‘BENY’S DAUGHTER’ WEDDING TO A FOREIGNER. HOW UNGRATEFUL, ESPECIALLY AFTER SOUTHSUDANNATION.COM WAS AMONG THE FIRST TO CONDEMN HIS ILLEGAL ARREST BY KIIR’S SECURITY.
        THE STRUGGLE HOWEVER CONTINUES…..WE WILL KEEP PUBLISHING ALL YOUR VIEWS WHATSOEVER…

        • Diktor Agarab says:

          Thanks, Mr. Editor, for rendering a valuable service to South Sudanese. We hope that one of these days when democracy and good governance reigns one more in South Sudan southsudannation.com will be recognized for leading the fight for HOPE and CHANGE against the tyrannical dinkocracy of Kiir.

      • J. Chin
        If there is freedom of speech in South Sudan, where is Isaiah Ibraham, the journalist? Why did they kill him?

        Avoid this strategy of the hatman, lying to the public.

    • Nyesi Ta says:

      Do you think the two elders – Abel Alier, Joseph, and the church leaders stand above the law of the land? Whatever opinions or advise they have as per Mama Nyandeng is their freely expressed opinions and must not surpass the law. As for Kenyi, he an advocate who wants to explain to public that those splm idiots are operating out side the law.

    • Jimmy says:

      Maboir become a step son of Dr. Riak Machar right after Nyandeng lose her ministerial position which she was not capable of its duties. In Riak’s list of rebellion Nyandeng is listed to be the vice president and her son ministry of cabinet affairs. That was the very big offer that had change the whole values of Dr John Garang’s family lives.
      Ridiculous isn’t it?

  9. Domuk says:

    Well written insights of legal connotations,and it is great article for those of Telar,the lawless legal adviser.

  10. Rumbek says:

    This simply strips the government in South Sudan naked. Without such perfect legal analysis, one can easily know that the whole story is a fabrication! There has never been coherence in what the government says. Their actions and behaviour simply tells any one who cares to objectively understand that something is being covered up.
    Anyway, nice article

  11. Pan says:

    As much as I hate selective justice and picking and choosing which thief or lunatic to punish when, I hate even more the argument that if everyone is not tried, charged and/or punished equally and at the same time then no one should be charged, tried and/or punished. This is the kind of logic that has kept the country hostage for 8+ years and has allowed criminals to ascend to positions of power.

    South Sudan is a madhouse and to clean it up, you gotta start somewhere. I personally take the approach of not carrying the cross for any of the current or former members of government. They are not representative of the country and I’ll save my sweat and tears for applications of justice for the common people.

  12. Mike says:

    This is a very good article which l suggest the minister of justice and the legal advisor should put their eyes on. Perhaps the author should stand up for south sudan, it is only constitutionalism and rule of law which builts a nation

  13. Chief Abiko! says:

    Ajo Noel Julious Kenyi

    Treason means-sellingout his or her people to their enemies in the village or in the government in the country.The charge brought by the Minister of Justice Mr.Peter Walawilla Ugano,did not have a solid ground to charge the alleged accusers those of Riak Machar,Alfred Lado Gore,and Taban Deng Gai. Instead he should charge President Salva Kirr a perpertrator of a bortive attempt coup for his false accusation on his alleged false allegation.

    The accusers those of Riak Machar,Alfred Lado Gore,and Taban Deng Gai,they did not bring enemies in the country.Their charge should be drop.Their problem was with the chairman in the party with Salva Kirr.It has nothing to do with a treason problem in the country! They are a victim of Juba government in the country under the leadership of President Salva Kirr.Enemy of DEMOCRACY!!!! He must go!!!!!!

  14. Pan says:

    Let the kangaroos be tried in the kangaroo court they built. What’s good enough for the people is good enough for the kangaroos.

  15. J.Chin Jacob says:

    It was John Luk Jok and his colleagues in the legal system who ‘re being describes as puppet and stooges of President Salva Kiir yesterday and today the title is reversed to Molana Paulino Wanawilla the current Minister of justice.
    South Sudan will not be far from Somalia who have publicly declared that they won’t listen or respect any human hand made laws or constitution unless from Allaha (God), so we should made it publicly to the world and the religious leaders to pray for South Sudan such that God may send an Angel from Heaven to take charge of our legal system.
    South Sudan has become a playing ground in the hands of those who claims to say that I know all and know it better than you, him or her!
    God teach us the best way we could love one another and appreciate and congratulates a chance that is filled by your brother/sister and wait for other chances, otherwise Obama is not a PHD holder nor do he earn any other title like Professor but he made it to Preside over millions of PHDs and Professors in USA.
    Where do we (South Sudanese) really came from with this unique culture where you can only believe in yourself and understimated the other side?
    You people need to look further and evaluates on what you chose to be the right path of bringing your opponents down from leadership because the same people will come and plan the same approach or resorted to a coup like our former cabinets and generals who have been in the system for good eight (8) years without production or good service delivery to our needy citizens and when they ‘re relieved from people’s Institutions then the same people who used to call for their release from Public offices have shamefully decided to sided with them again and shamelessly calling them as democrat, what a country???

  16. @ Dr. Peter(editor) , I have totally believe that discrimination has reached the high level to be controlled but why the PhD holders stil are being the ones encouraging it. Look the discrimination against my articles also had disclosed to me who you are despite your excellence academic. Is that one not tribalism? How come you publish an articles of other writers and refuses others? Check other websites you will find that my articles are published there. Thanks.

  17. Kong Puok Tong- - Finland says:

    To Kenyi
    When you eventually imagined, Salva Kiir himself had violated the constitution once he removed elected governors. Kiir failed totally in SPLM .PB to engage even single member, he lost control. That why he orderred his militias of killing any Nuer including Dr Riek Machar and his allies.Who wiil trust him again to continues as president? Thanks

  18. Amiri Orieu says:

    Well argued my Honor. “In the the Tribunal of Foxes, the Chickens are the Criminals,”
    Amiri

  19. J.Chin Jacob says:

    Agareb (the refugee or jungle boy),
    When are you going to obtain South Sudan Identity?
    If South Sudan is not able to block it then they are capable of hiring Diktor Agareb or any expert to block it for them but what you don’t understand here is that South Sudan Government is benefiting from this website indirectly, because it serves as an opposition party and thus they are using it as a mirror where they can identifies their challenges and the way forward as suggested by other faithful nationalists.
    Therefore, South Sudan can just take what is good for them and leave the other nonsense & claptraps.
    Ya Jenna Gaaba,
    the editor is there to address our concerns inclusively, he has a sense of understanding base on his/her profession but not on tribal line as you resorted to.
    Regards,
    Luak boy

  20. Arabbmoi says:

    Mr. Kenyi,

    You hit the nails on KIIR SALVATORE HEAD,but he may not understand this nice article about the law equal to every citizen IN SS. I WOULD LIKE TO ADVICE JENGERS TO TRANSLATE TO HIM IN THEIR JENGER PLAIN LANGUAGE.

    KEEP IT ON MR.

    AM

  21. Abiel says:

    The probelm from south Sudanese people they always used to denial the truth especially when any issue happened to other people par away from them.what was happened insid Juba last year has been denial from whole south Sudanese people but Nuer make it worth when they started to attacked an innocent people in a greater Upper Nile States then Dr Reik Machar with his friends are not only to be charges by the treason they will be charges by the committed genocide the innocent people that his forces committed in Baliet county ,Malakal ,Bor ,Bantiu ,and Panreng county.

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