195.
Article 6 provides that "Every individual shall have the right to liberty and to the security
of his person. No one may be deprived of his freedom except for reasons and conditions
previously laid down by law. In particular, no one may be arbitrarily arrested or detained".
196.
The Complainants submit that the arrests and detention of the lawyer by military
police officers were arbitrary, random and contrary to the rule of law, as they had
no constitutional powers to do so to any civilian, and had not informed him of the
reason for the arrests. More so, the letter waiving the lawyer's immunity which they
relied on for the arrests, was unlawfully gotten because the procedures taken were
in violation of the independence of the bar association and the rights of a practicing
advocate who is an ex officio member of the court. They further allege that the
seizure of the lawyer's Passport constitutes a continuing arbitrary detention and
that these actions violate Article 6 of the Charter.
197.
The Commission recalls its established position that" States must ensure that no one
shall be subject to arbitrary arrest or detention, and that arrest, detention or imprisonment
shall only be carried out strictly in accordfm.~e with 'the, provisions ..of the law and by
competent officials or persons authorized for that purpose, pursuant to a warrant, on
reasonable suspicion or for probable cause"66 It also bears in mind the internationally
accepted principle of legality which provides that" deprivation of liberty must in all
cases be carried out in accordance with the law 67, and therefore notes that any detention
or arrest that is not consistent with due process of the law established by a State or
international human rights norm would be considered to be arbitrary or illegal.
l/
198.
The Commission will therefore proceed to examine the allegations of the
Complainants in light of the above, to determine the legality of the arrests meted on
the Complainant's lawyer as this is critical to proving whether the actions of the
Respondent State were lawful or not, and whether the alleged violations of the right
to liberty and security of the person arT substantiated.
199.
The Constitution of the Republic of South Sudan= states that every person has the
right to liberty and security of person and that no person shall be subjected to arrest,
detention, deprivation or restriction of his or her liberty except for specified reasons
and in accordance with procedures prescribed by law.
200.
The Commission has defined the right to liberty as freedom from restraint and
ability to do as one pleases, in accordance with established law, and the right to the
security of the person as an expansion of rights based on prohibitions of torture and
cruel and unusual punishment including inter alia, national and individual
securitys". In a case where threats of arrest were made to an individual who was
planning to and so subsequently did not travel to give a lecture, it has held that the
allegations of arrests, detentions and threats constitute a violation of Article 6.70