Article 155 (6) of the said Constitution states that the police shall respect the will
of the people, the rule of law and order, civilian authority, democracy, human
rights, fundamental freedoms and execute judicial orders. These constitutional
duties, as domestic laws dictate, are vested on the Minister of Interior and the
Inspector General of Police. He is to train, monitor, investigate, discipline and
produce for prosecution violators among the police force.
42. They aver that the Inspector General of Police has the powers to convene a police
court (also, the powers to cause the investigation of police personnel) and the
powers to refer criminal cases, involving police, to court (Section 52 & 54 of the
Police Act, 2009). He also, has the powers to terminate any legal proceedings
against any police personnel, mero motu, and the decision shall be final and
binding (Section 61 of the Police Act).
43. The Complainants tender that they have no option that allows them to approach
the court directly. Victims of human rights violations 'll~;ye,nQi*~pnstitll!ional
right to approach the Court to expedite the investigation or force referral to of
their cases to court. The powers to approach the Court are vested on the
Minister of Interior and the Inspector General of Police; and thE;,units of the
forces enjoy general immunities and limitations on liability (Section 51 of the
Police Act). Any legal proceedingagainst a police or soldier on duty is subject to
approval of their head of commands £8£,c,theirimmunity to be lifted, which
approval rarely happens especially when the case involves many numbers of
soldiers or police or a General of police or of the army, because of vicarious
liability, particularly if the comBla,int is from'
i,vilian. Both in precedent,
procedure and practice, the laws of South Sudan are devoid of the right of writ
of mandamus. As a result, there are appalling human rights cases impossible to
reach the court.
44. In addition to these, the Transitional Constitution of South Sudan does not have
provis~q!1sfor the effective enforcement of the Bills of Rights; the Constitutional
provision in Article 9 (4)~;on the jurisdiction of the Supreme Court to uphold the
Bills of Rights,is shallow and weak in enforcing the Bills of Rights, as it does not
have provisionsfor courts to enforce the Bills of Rights through various writs,
such as mandamus and 'certiorari or any provision allowing individuals to apply
to the courts for these writs to enforce their constitutional rights. Also, there is no
effective constitutional supervisory jurisdiction on the courts to compel the
Executive branc~lto adhere to the constitution including, compelling the Military
Police to respect the rule of law and the police to adhere to the constitution and
the international standards of police and allow quick access to justice for the
victims.
ri» Ordinary Session of the ACHPR