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Human Rights our Collective Responsibility Human and Peoples' Rights Communication 796/22 Rose Modong Samuel and Three Others v The ReRublic of South S'udan' Adopted by thf! African Commission on Human and Peoples' Rights Durirsg tile 7;t1' Ordinary Besaw1I, hlR:ldphysically from 20th October to 9th November, 2023 The African Commission on Human and Peoples' Rights 31 Bijilo Annex Layout, Kombo North District, West Coast Region Phone: (220) 2304361 Fax: (220) 441 0504 Email: au-banjul@africa-union.orq httoszachor.au.nwo 0 a

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Communication 796/22 - Rose Modong Samuel and Three Others (Represented by John Gerry & Co. Legal Practitioners) v. South Sudan

ACHPR Decision

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Type of Document

Decision

Keywords

Arbitrary Arrest and Detention
Cruel and Degrading Treatment
Equality
Equality Before the Law
Forced Eviction
Freedom from Discrimination
Freedom of Association
Freedom of Movement
Functioning and Independence of the Judiciary
Land Rights
Police Brutality and Offences
Right to Fair Trial
Right to Health
Right to Life
Right to Property

Case Head Notes: In 2021, a man named Mading told the first Complainant that he needed her land, and that she should vacate it; the Complainant refused. Subsequently, Mading sent armed police officers to the first Complainant's compound and, after forcefully entering, they cut down all the trees in the compound. The following day, a bulldozer demolished the concrete wall of the house, displacing the family. The officers told the Complainants that they would kill anyone who returned. On multiple occasions the Complanants attempted to report Mading to the authorities but, each time, at some stage of the proceedings, the case would be blocked. The Commission found a violation of Articles 2 and 3 because the Complainants did not receive equal protection, due to the status of the other party (Mading). The Commission found a violation of Article 5, noting that the Commission has previously adopted the stance that forced evictions and destruction of housing, carried out by non-state actors, amounts to cruel, inhuman and degrading treatment, if the state fails to protect the victims. The Commission found violations of Articles 14, 16, and 18 because they note that the Commission has previously stated that the right to health is an implied right that is expressly derived from the right to property and family. Accordingly, the intrusion of the Respondent State's military police in the Complainants' compound, and the destruction of property, which caused the plaintiffs to be homeless, violated all three articles. The Commission found a violation of Article 6 because the arrest and detention of the Complainants' lawyer, without informing him of the reason for arrest, or proffering any charge of an offence, is incompatible with the African Charter. The Commission found a violation of Article 10 because they stated that the waiver of the lawyer's immunity, leading to his arrest, affected his freedom to perform all of his professional functions without improper interference. The Commission found a violation of Article 12 because the forceful eviction of the Complainants, which forced them to live in hiding, violated 12(1), and because the seizure of the Complainants' lawyer's passport violated 12(2). The Commission found violations of Articles 7 and 26 stating that where procedural flaws exist, such as, the reality that legal proceedings against soldiers and other individuals may be subject to the approval of military superiors, violations of Articles 7 and 26 will result. Specifically, the possibility that military officials can prevent legal proceedings is indicative of a judiciary that is not independent, and, in the present case, it prevented the Complainants from having their case heard by an impartial tribunal. The Commission found a violation of Articles 1 and 25, stating that the violations stemmed from the inaction of the state regarding educating their security officials on human rights. The Commission found no violation of Article 8 because they stated that Article 8 does not relate to the practice of an occupation or profession. The Commission found no violation of Article 4 stating that the fact that the Complainants' unlawful eviction had the potential to cause a violation of the right to life, does not mean that the right was actually violated. The Commission requested the Respondent State to drop all charges against the Complainants' lawyer, and to return his passport to him and urged the state to promptly and independently investigate, prosecute and punish all state actors responsible for violations. They also urged the Respondent State to ensure that the Complainants' property is returned to them and to provide them redress, urged the Respondent State to provide comprehensive human rights training to all law enforcement officials and requested the state to report to the Commission on implementation.

Country

South Sudan

Outcome: Decided on Merits

Year Decided: Nov 9, 2023

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 10: Right to Freedom of Association
ACHPR 10.1: Freedom of association
ACHPR 12: Right to Freedom of Movement
ACHPR 12:2: Right to leave any country including his own, and to return to his country
ACHPR 12.1: Right to freedom of movement and residence within borders of State of legal residence
ACHPR 14: Right to Property
ACHPR 16: Right to Health
ACHPR 16.1: Right to Enjoy the Best Attainable State of Physical and Mental Health
ACHPR 18: Protection of the Family and Vulnerable Groups
ACHPR 18.1: Protection of the family
ACHPR 18.3: Protection of Rights of Women and Children
ACHPR 2: Freedom from Discrimination
ACHPR 25: Duty to promote and ensure respect of the rights and freedoms contained in the Charter
ACHPR 26 : Duty to Guarantee Independence of Courts
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 4: Right to Life and Integrity
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest
ACHPR 8: Right to Freedom of Conscience

Rights Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 10: Right to Freedom of Association
ACHPR 12: Right to Freedom of Movement
ACHPR 12:2: Right to leave any country including his own, and to return to his country
ACHPR 12.1: Right to freedom of movement and residence within borders of State of legal residence
ACHPR 14: Right to Property
ACHPR 16: Right to Health
ACHPR 16.1: Right to Enjoy the Best Attainable State of Physical and Mental Health
ACHPR 18: Protection of the Family and Vulnerable Groups
ACHPR 18.1: Protection of the family
ACHPR 18.3: Protection of Rights of Women and Children
ACHPR 2: Freedom from Discrimination
ACHPR 25: Duty to promote and ensure respect of the rights and freedoms contained in the Charter
ACHPR 26 : Duty to Guarantee Independence of Courts
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest

Rights Not Violated (ACHPR Provisions)

ACHPR 4: Right to Life and Integrity
ACHPR 8: Right to Freedom of Conscience

Duration of Procedure

May 11, 2022 ~ Nov 9, 2023

Country Geolocation

Latitude: 6.876991899999999

Longitude: 31.3069788

Country Geolocation (linked ACHPR Decision): South Sudan

Primary Documents

Rose Modong Samuel and Three Others v South Sudan.pdf
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