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102. They further submit that pressing the thumb of the lawyer severely with a plier with an intend to intimidate the lawyer and force him to refrain from legal practice and legal representation and the silence and refusals of the Respondent State to hold the known perpetrators accountable violates Article 11 of the Constitution of South Sudan (the right to dignity and integrity of persons), and Article 18 (freedom from torture) and constitute a violation of Article 5 of the Charter which prohibits torture, cruel and inhuman treatment of human beings. Alleged violation of the right to personal liberty (Article 6) 103. The Complainants submit that the arrest of the lawyer on 21/12/2021, in which he was tortured, was carried out by the soldiers from the military police that was given to Mading, possibly through his instructions. Also, the arrest on 12/1/2022 was carried by the over 12 military police. Both arrests were 'arbitrary and were made randomly, without adherence to the rule of law. The military police, in line with their duties, do not have the constitutional powers to come into contact with a civilian. They are only lawfully mandated to exercise policing powers over the military personnel, to instill discipline in the army. Lawyers are not soldiers, nor are the Complainants. Thus, their actions are unlawful and criminal. 104. They also state that the detention by the police thr~ugh the letter of waiver of the immunity was unlawful because the procedures t~R:eri:, 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. So also, was the arrest at the airport because the lawyer was not informed of the reason for the arrest during the time of the arrest and the lawyer was not made aware Of any charges. After spending several hours under detention in the airport, the lawyer was allowed to leave the airport, but he was called on phone and asked to report back to the airport because a new criminal case was opened against him, which is the second criminal case that is being opened before a commission of any offence "and his passport was seized. They aver that these arrests and the unreasonable 'force used to effect the arrest are arbitrary, extreme and unlawful, and that the seizure of the passport constitutes a continuing arbitrary detention and violate Article 6 of the Charter. Alleged violation of the right to have one's cause heard (Article 7) 105. The Complainants submit that the Respondent State denied them the right to be heard, contrary to the Constitution of the Republic of South Sudan.'? They contend that their struggles to legally push for the criminal case number 6105/2021, with the charges 245, 315 & 329, which was opened since 29 November 2021 by the complainants against Mading Ngor, including getting an order from the Senior Public Prosecutor to have their cause heard by a competent court were all stifled and repressed by the Respondent State and its agents, including the police and the

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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
English
ML TOC
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African Human Rights CLA 2.0

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

Primary Documents

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