46. The Complainants aver that the judiciary is ineffective and not independent,
particularly the Supreme Court which is vested with the jurisdiction in a
constitutional remedy. Also, the Constitutional remedy in Article 306, which a
civil remedy, cannot effectively address a case of a criminal nature which can
only be determined after completion of a criminal investigation by the same
police. Thus, the whole process of determining the final outcome of the case lies
with the police.
47. The Complainants opine that the Commission's Decision in Communication
275/2003- Article 19 v Eritrea, applies to this case. In that Decision, the Commission
settled that "Whenever there is a crime that can be investigated and prosecuted by the State
on its own initiative, the State has the obligation to move the criminal process forward to its
ultimate conclusion. In such cases, one cannot demand that the Complainants, or the victims
or their family members assume the task of exhausting domestic remedies when it is up to the
State to investigate the facts and bring the accused persons to court in accordance with both
domestic and international fair trial standard").
48. The Complainants submit that the actions of the Police against them contradicts
Article 155 (6) of the Transitional Constitution of South Sudan :MfNchamong
others provides that "the police shall ... respect+th~ rule of law and 'order, civilian
authority, democracy, human rights, fundamental freedoms .... "; and Section 6 (2) of
the South Sudan's Police Act which prov-ides that "The Police Service shall be a
regular service with the primary responsibility of .. implementing the law, in full
neutralibj and honestu and adherence to the law, national and international standards".
49. They posit that international standards require police accountability, a proper
complaints system that is easily accessible to the public, that can effectively
investigate allegations, recommend disciplinary sanctions or refer cases for
criminal prosecution, and effective complaint IS procedures with guarantee of
easy court access, effective supervision, accountability, adherence to the rule of
law, and the principle
necessity and legality.
of
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50. The Complainants proffer thatSouth Sudan Police is held, like those of other
nations, to the same standard in compliance with the Code of Conduct for Law
Enforcement Officials adopted by General Assembly resolution 34/169 of 17
December 1979, and the Declaration on the Protection of All Persons from Being
Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment Adopted by General Assembly resolution 3452 (XXX)of 9/12/1975.
The Declaration states that "Wherever there is reasonable ground to believe that
an act of torture as defined in article 1 has been committed, the competent
authorities of the State concerned shall promptly proceed to an impartial
investigation even if there has been no formal complaint".
I Communication
77th
275/2003- Article 19 v Eritrea (ACHPR 2007), para 72
Ordinary Session of the ACHPR
9