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.
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  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  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 firstname.lastname@example.org.