military police. They allege that this constitutes a prima facie violation of Article 7
(1) of the African Charter.
106. They further submit that the Respondent State also violated Section 25 of the
South Sudan Penal Code, 2008 (on prohibition of initiation of criminal case based on
acts done by person bound or justified by law) by allowing the perpetrators to open
a fabricated case, based on unfounded allegations and state that the Constitution
also provides that "no person shall be charged with any act or omission which did
not constitute an offence at the time of its commission" (Article 19 (5) of the
Constitution). They submit that the demolition of the house, the seizure of the
passport and the travel restriction are arbitrary condemnation and punishment not
authorized by law and not declared by the judiciary in a fair trial and therefore
violates Article 7 (2) of the Charter.
107. They support their claims by referencing the Commission's Principles &
Guidelines on a Fair Trial & Legal Assistance in Africa, which states that: "States
must ensure, through adoption of national legislation, that in regard to human
rights violations, which are matters of. .public concern, any :individual, group of
individuals or nongovernmental organization is entitled to bring "an issue before
judicial bodies for determination". "They aver that the torture, the abuse, the
arbitrary arrests, the seizure of the 'passport, the restriction of the freedom of
movement and the prevention of the cases from progressing to court for trial are a
substantial denial of:
1- The right to be presumed innocent until proved guilty by a competent court;
2- The right to defense, including the right to be defended by counsel of their
choice and;
. .,
.
3- The right to be tried within a reasonable time by an impartial court or tribunal.
.\.l~; co,
•
Alleged violation of the right to freedom of Conscience and the right to freedom of
association (Articles 8 and 10)
108. The Complainants aver that the Respondent State violates Article 136 (1) of the
Constitution of South Sudan which states that" advocacy is an independent private
legal profession", and thatitviolates the rights of Advocate John Gerry as a member
of an independ;~nt Bar Assotiation by denying him due process of the law, because
when the letter was sent by the Director of Public Prosecution on 4/11/2021 to the
Bar Association concerning criminal proceedings against Advocate John Kiri under
Section 48/223 of the Penal Code, the letter for the waiver of the immunity was
granted under dilress, and unlawfully used against Advocate John Gerry, instead of
the person of Advocate John Kiri.
77th Ordinary Session of the ACHPR
19