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THE EFFECTIVENESS OF THE AFRICAN COURT ON HUMAN AND
PEOPLE'S RIGHTS IN RESOLVING THE AFRICAN CHALLENGES:
A CASE STUDY OF WAR OUT BREAK IN THE REPUBLIC OF
SOUTH SUDAN AS AT 2013-2014
BY
MARY TOMALU CHARLES
LLB/32688/112/DF
A RESEARCH DISSERTATION SUBMITTED TO THE SCHOOL OF
LAW IN FULFILLMENT OF THE REQUIREMENTS FOR THE
AWARD OF A BACHELORS DEGREE IN LAW OF
KAMPALA INTERNATIONAL
UNIVERSITY
NOVEMBER, 2014
DECLARATION
I, Mary Tomalu Charles declare that this research dissertation presented to the
Faculty of law of Kampala international university is my original work and has
never been submitted to any institution for academic award.
Student's name:
Signature: ~rC<'-ttr-----Rcg. No. LLB/32688/112/DF
Date: fl-Q 1 2. 1 'lo' S
APPROVAL
This is to certify that this research work of Mary Tomalu Charles. Titled, "the
effectiveness of the A:fi·ican court on human people's right's rights in resolving the
African challenges: "A case study of war outbreak in the republic of south Sudan
as at 2013-2014" has been submitted to the faculty of law with my approval as a
university supervisor.
~C2 Signature __ ~-++------'---·- Date: t;)_-{; l ~ l ~ IS Supervisor's Name: OGW AL SAMUEL
ii
DEDICATION
I honestly dedicate this research work to my parents Mr. Charles Gadi and Mrs.
Clementine Edward who sowed the seed of my education, for all the sacrifice,
encouragement and support throughout my life and career. May God richly bless
them.
iii
ACKNOWLEDGEMENT
My gratitude goes first to the almighty God for his love and grace that has seen me
through the rough tides of this demanding academic journey, and to my parents for
their unconditional love and support that they have extended to me.
Special thanks go to Kampala international university and all the members staff
involved in the LLB for giving me the opportunity to participate in this unique and
difficult program, as training, for contributing to building a better world in which
Africans can play a valuable role. I acknowledge with appreciation the
insurmountable guidance from my supervisor Mr. Ogwal Samuel.
I also pass my sincere thanks to my brother mark Charles and my sisters Grace
Poni Charles, Racheal Charles, and Emmanuela Yabu Charles.
My sincere thanks also go to my classmates Victoria A wit Bona, Emmanuela Pita
peter Victoria Garille, Okidi Walter, Palma, Peace, Kakuru, Rachael, Ochana
Ronald, Nakkazi Shumi.
May the almighty God bless all of you abundantly.
iv
ACHPR
AHRLR
AU
AMISS
CFC
CMC
CSSDCA
ECOSSOC
ICCPR
IDPs
JEM
MAP
UNMRWS
UNOMDRC
MOU
NGOs
PRC
LIST OF ABREV A TIONS
Afi·ican Charter on Human and People's' Rights
African Human Rights Law Report
African Union
African Union Mission in South Sudan
Ceasefire Commission
Conflict Management Centre
Conference on Security, Stability, Development and
Cooperation in Africa
Economic, Social and Cultural Council
International Covenant on Civil and Political Rights
Internal Displaced Persons
Justice and Equality Movement
Millennium Action Plan
United Nations Mission for the Referendum in Western Sahara
United Nations Organization Mission in the Democratic
Republic of the Congo
Memorandum of Understanding
Non Governmental Organization
Permanent Representatives Committee
v
LIST OF INSTRUMENTS
African Charter on Human and People's' Rights ('Banjul Charter')
African Charter on the Rights and Welfare of the Child
Protocol to the African Charter on the Rights of Women
African court on human and people's rights Convention Governing the Specific
Aspects of Refugee Problems in Africa
Convention for the Elimination ofMercenarism in Africa
African Union Convention on the Conservation of Nature and Natural Resources
Bamako Convention on the Ban of the Import of Hazardous Wastes into Africa
African Union Convention on Preventing and Combating Corruption
African court on human and people's rights convention on the prevention and
combating of terrorism
African Union Non-Aggression and Common Defence Pact
African Charter on Democracy, Elections and Governance
vi
LIST OF CASES
004/20 11, African Commission on Human and People's' Rights v Libya, order of
15 March
2013.
002/20 13, African Commission on Human and People's' Rights v Libya, order of
provisional measures, 15 March 2013, para 18.
006/2012, African Commission on Human and People's' Rights v Kenya, order of
provisional measures, 15 March 2013.
444/13, Masuku v Swaziland; 445/13, Human Rights Council & Others v Ethiopia;
446113, Williams & Others v Zimbabwe; 451113-452113, Obi & Others v Nigeria;
452/13, Askouri and Nasr v Sudan.
426/12, Uwimana-Nkusi and Mukakibibi v Rwanda; 4 19/12, The indigenous
people's of the lower Omo v Ethiopia; 389/10, Mbiankeu v Cameroon; 392/10,
Muhayeyezu v Rwanda; 408/11, Ushiye v DRC; 370/09, Social and Economic
Rights Action Centre v Nigeria.
413/12, Mendes v Angola.78. 259/02, Groupe de Travail sur les dossiers
judiciaires strategiques v DRC; 320/06, Mamboundou v Gabon.
Para 17 .80. 453/13 Rasolovoahangy v Madagascar; 454/13, Ningo v Cameroon;
455113, Mohamed v Ethiopia; 456/13, Uko v South Africa; 458/13, Ngoge v
Kenya; 459/13, Hurman v Mauritius.
457113, Mwandi v DRC.82. 354/07, Al-Shatir & Others v Egypt; 398/11, ll-IRDA
and Congolese Human Rights Observatory v Congo; 401111, Abdullah v Sudan;
424/12, Mahmoud and Abdel-Rahman v Egypt.
274/03 & 282/03, Interights & Others v DRC; 328/06, Front for the Liberation of
the State of Cabinda v Angola; 3 68/09, Radi & Others v Sudan; 409/12, Tembani
and Freeth v Zimbabwe & 13 Others.
vii
427/12, SERAP v Nigeria; 428112, Isaak v Eritrea; 429/12, The Ngambe1a of
Barotseland & Others v Zambia; 430/12, Shumba & Others v Zimbabwe; 431/12,
Kwayelo v Uganda; 432/12, Ngoge v Kenya; 43 3/12, Bialufu Ngandu Albert v
Democratic Republic of the Congo; 434/12,
Filimao Pedro Tivane v Mozambique; 435/12, Asemie v Lesotho; 436/12, Union
Nationale v Gabon; 43 7/12, Ngoge v Kenya; 43 8112, Peter Odiwuor Ngoge v
Kenya.
lnterights & Others (on behalf of Bosch) v Botswana (2003) AHRLR 55 (ACHPR
2003).
viii
ABSTRACT
The research was focused on the effectiveness of the African court on human and
people's rights in resolving the African challenges: A case study of war outbreak in
the Republic of South Sudan in 2013-2014. The general objective of the study was
to examine the effectiveness of the African court on human and people's rights in
resolving Afi·ican challenges. The study is to examine the legal frame work in
establishing African court on human and people's rights and its mandate. To assess
the human rights violation in south Sudan at the outbreak of war in 2013-2014.
And finally to suggest the possible measures and recommendation to African court
on human and people's rights in south Sudan.
ix
TABLE OF CONTENTS
DECLARATION .................................................................................................... i
APPROVAL .......................................................................................................... ii
DEDICATION ...................................................................................................... iii
ACKNOWLEDGEMENT .................................................................................... iv
LIST OF ABREVA TIONS .................................................................................... v
LIST OF INSTRUMENTS ................................................................................... vi
LIST OF CASES ................................................................................................. vii
ABSTRACT ......................................................................................................... ix
Ti\BLE OF CONTENTS ....................................................................................... x
CHAPTER ONE .................................................................................................. l
INTRODUCTION ................................................................................................ 1
1.0 Introduction ...................................................................................................... 1
1.2 Back ground of the study .................................................................................. I
1.2 STATEMENT OF PROBLEM ...................................................................... 10
1.5. General objective .......................................................................................... 10
I .5.2 Specific objectives of the study ................................................................... 1 I
1 .2 SCOPE OF THE STUDY .............................................................................. 12
1.2.1 Time Scope ................................................................................................. 12
1 .2.2 Geographical scope: .................................................................................... 12
1.3 Significance of the study ................................................................................ 12
X
1.4 METHODOLOGY ......................................................................................... 13
1.5 RESEARCH INSTRUMENTS ...................................................................... 13
1.6 LIMITATIONS OF THE STUDY ................................................................. 14
I. 9 literature review ............................................................................................. 15
1.10 CHAPTERIZATION ................................................................................... I 9
CHAPTER TWO ............................................................................................... 20
THE LEGAL FRAME WORK ESTABLISHING THE AFRICAN COURT
ON HUMAN AND PEOPLE'S IUGHTS AND ITS MANDATE IN SOUTH
SUDAN ............................................................................................................... 20
2.0 Introduction .................................................................................................... 20
2.1 The establishment of the African court on human and people's rights ............ 20
2.1. J International human rights law .................................................................... 21
? I ? I . 11 . . I ?? -· ·- nternatwna 1umamtanan aw .................................................................... __
2.1.4 Domestic law of the constitution of south Sudan ......................................... 27
2.1.5 The African court on human and people's rights frame work ...................... 29
2.1.6 The Jurisdiction of the African Comi of Human Rights .............................. 32
CHAPTER THREE ........................................................................................... 35
THE HUMAN RIGHTS VIOLATION IN SOUTH SUDAN AT THE OUT
BREAK OF ........................................................................................................ 35
THE WAR IN 2013-2014 .................................................................................... 35
3.0 Introduction .................................................................................................... 3 5
xi
3.1 Abuses by Security Forces ............................................................................. 35
3.2 Conflict Related Sexual Violence ................................................................... 36
3.3 Violations against Individuals ........................................................................ 38
3.4 Crimes against humanity ................................................................................ 39
3.6 Violations of freedom of expression and censorship of the press .................... 42
3.6 GENEVA (9 MAY 2014) ............................................................................... 44
3.7 Documents on Human Rights Situation in south Sudan .................................. 46
CHAPTER FOUR INTRODUCTION THE POSSIBLE MEASURES TO
AFRICAN COURT ON I-lUMAN AND PEOPLE'S RIGHTS IN SOUTH
SUDAN SITUATION ........................................................................................ 48
4.0 Introduction .................................................................................................... 48
4.1 Accountability Measures ................................................................................ 48
4.2 Government accountability measures ............................................................. 49
4.3 The appropriate recommendation to African comi on human and people's
rights in south Sudan ............................................................................................ 54
CHAPTER FIVE INTRODUCTION ............................................................... 56
SUMMARY, CONCLUSIONS AND RECOMMENDATIONS OF THE
STUDY ............................................................................................................... 56
FINDINGS .......................................................................................................... 56
5.0 Introduction .................................................................................................... 56
5.1 Summary of findings ...................................................................................... 56
xii
5.3 Recommendations .......................................................................................... 61
REFERENCES .................................................................................................... 64
xiii
1.0 Intt·oduction.
CHAPTER ONE
INTRODUCTION
This chapter covers introduction and it covers the background to the research, the
statement of the problem, objectives and significance of the study, research
questions, the literature review, scope of the study and the methodology used.
1.2 Back ground of the study.
The protection and promotion of human rights has been incorporated in different
international, continental and national legal and policy instruments, In 1981 1, the
African court on human and people's rights Assembly of Heads of State and
Government adopted the African Charter on Human and People's' Rights (here
after, the Banjul Charter) in Nairobi, Kenya. The Banjul Charter entered in to force
in 19862. The Charter is the heart ofthe African human rights protection system. It
comprehensively includes all generations of rights in one document. For the
promotion and protection of human rights in member states to the Banjul Chmier,
the African Commission on Human and People' Rights (the Commission) has been
given the mandate. The Commission ente1iains communications both inter-state
and individual complaints, in addition to reviewing state reports though the
decision of the Commission are not binding.
To complement the protective mandate of the Commission, the system adopted a
protocol. In 19983, the African COU!i on human and people's rights, predecessor or
the Atl·ican court on human and people's rights, adopted the Protocol to the
Charter on Human and People's' Rights on the Establishment of an African Court
1 The protection and promotion or human rights has been incorporated in different international. continental and national kgnl and pol it:) instruments. In 1981 ~-I he Banjul Charter entered in to force in 1986 3 ro COillJ;lcm.::nt the protective mandate of the Commission, the system adopted a protocoL In 1998
1
on Human and People's' Rights' (AfCHPR).4 Since 2004, after the fifteenth
ratification was deposited, the Court has been operational. The Court has
jurisdiction over all cases and disputes submitted to it regarding the interpretation
and application of the African Charter on Human and People's' Rights, the
Protocol to the Charter on the Establishment of the African Court on Human and
People's' Rights, and any other relevant human rights instrument ratified by States
that are party to a case. However, the individual complaints mechanism is not
directly available to individual victims unless the state concerned declares the
competence of the court as pet· Article 34(6) of the Protocol. 5
Human Rights Protection within EAC
The EAC Treaty provides provisions on the protection of human rights and
principles relating to the protection of human rights that states parties should take
cognizance and respect for it. The Treaty establishes good governance, democracy,
rule of law, equality and the recognition, promotion and protection of human rights
in accordance with the provisions of the African Charter as fundamental principles.
The Treaty, further, requires that any other state wishing to become a member must
be seen to adhere to universally acceptable principles of good governance,
democracy, rule of law and observance of human rights and social justice. Article
7(2)6 of the Treaty provides for partner states under taking to abide by the
principles of good governance, including adherence to the principles of democracy.
the rule of law, social Justice and the maintenance of universally accepted
4 J'h.: Protocol to the Charter on Human und Peoples' Rights on the Establishment of an African Court on Human and People::
Rights! !MCI-IPR}. Since 2004
"Article 34 (6) of the Protocol.
".\rtick 7{2)6
2
standards of human rights. These provisions reflect the realization of human rights
in the Community that the EAC undertakes as a main organizational objective.
Court jurisdiction .The comi ruling about President Uhuru Kenyatta and his deputy
William Ruto .The African Court has no jurisdiction to handle crimes against
humanity charges facing President Uhuru Kenyatta and his deputy William Ruto at
The Hague, its president said on Sunday.Lady Justice Sophia Akuffo, however,
said there were plans by the African Union to expand the comi's jurisdiction.7
Judicial Enfot·cement of Human Rights with in EAC.
The East African Comi of Justice (EACJ) is mandated to ensure adherence to law
in the interpretation and application of the Treaty and compliance with the Treaty .
.I udicial protection of human rights in the region is, therefore, the mandate of the
EACJ. It has the jurisdiction to interpret and apply the Treaty. The Court consists
of a First Instance Division and Appellate Division.8 The member states, the EAC
Secretary General, legal and natural persons may make references to the Cotni.' 73
Thus, individuals and NGOs may approach the Court being parties to a dispute.
National courts can ask the EACJ for a preliminary ruling concerning the
application and interpretation of the Community law. The Court is also mandated
to give advisory opinions on the request of the Summit, the Council or partner
slates.
In the case of Afi·ican Commission on Human and People's Rights V Republic ol
Kenya The Aji·ican Court on Human and People's' Rights in Arusha Tanzania will
soon hear the Ogiek Case (Application 006/2012 Afi'ican that has far reaching
1 The court ruling about President Uhuru Kenyatta and his deputy William Ruto .The African Court has no jurisdiction to handk crimes against humanity charges facing President Uhuru Kenyatta and his deputy William Ruto at The Hague, its president ~aid on Sunday. Lady Justice Sophia AkutTo. however. said there were plans by the African Union to expand the court's jurisdiction.
3 Th~: Court consists ora First Instance Division and Appellate Division
3
implications on the relationship between an Indigenous community's land rights
and state interests in Forest conservation. The African Courts decision regarding
the plight of the Ogiek Community of Kenya will impact not only the community
that brought the case but the entire Human Rights Community in Afi'ica.
The situation of the war in south Sudan
The Republic of South Sudan is a country amongst other family of nations that
lastly joined the East African community on 14 July 2011; African Union (African
court on human and people's rights) on 27 July, 2011 and subsequent ratification
and accession to other regional and International Organisations to mention a few.
The most important golden rule as mandatory component of every state law is the
application of human rights in the administration of justice in domestic courts. This
principle, amongst series of international legal instruments is nowadays subject or
debate in many countries with respect to its validity and South Sudan is not an
exception to this international legal obligation. We must abide by it.
In South Sudan, although international law is not expressly provided under the
Transitional Constitution of the Republic of South Sudan, 2011 as one source of
law, yet Article 5 (e)9 of the Constitution says any 'relevant source'. This
expression is construed to have recognized international law as lawful source, read
together with the provisions of A1·ticle 9 (3)10 of the same Constitution which says
''All rights and freedoms enshrined in the international human rights treaties,
covenants and instruments ratified or acceded to by the Republic of South Sudan
shall be an integral part of this Bill'.
9 Article 5{e) of the Constitution says any ·relevant source
10 t\rticle 9 (3) of the same Constitution which says "All rights and freedoms enshrined in the international human rights treaties. r.:o' ('!lants and instruments ratiJied or acceded to by the Republic of South Sudan shall be an integral part ofthis Bill'
4
Again, the recognition and application of international law in South Sudan is
recognized by the provisions of Article 43 (a), (c) and (e) of the transitional
constitution I'espectively.
Apart from constitutional mandate, the other African comi on human and people's
rights which supplement the application of international law in domestic courts in
South Sudan, is section 7 (2) 11 of the Civil Procedure Act, 2007 which states: ln
cases not provided for by any law, the court shall act according to South Sudan
judicial precedents, customs, principle of justice, equity and good conscience'.
To that effect, the word justice, equity and good conscience are not statutory legal
principles but rather impmied by the colonial masters. This is reasons why they
were subjected to comprehensive judicial interpretation by many judges and legal
scholars in the former united Sudan and even today in our nascent justice system in
South Sudan, with compromise to fit in the application of international law in
domestic courts without legal implications.
The second face of recognition of international law in South Sudan is found in one
of' the two legal theories: Monist and dualist legal system. The former says
international and municipal laws are one. In other word, where the state ratified or
acceded to the treaties, covenants, conventions, instruments or additional protocols,
African court on human and people's rights automatically the international law can
be applied by the municipal comis and the citizens of the state can invoke the
international law to be applied in the domestic comis.
l! Section 7 {2) of the Civil Procedure Act. 2007 which states: In cases not provided tOr by any Jaw, the court shall net according
to South Sudan judicial precedents. customs. principle of'justice, equity and good conscience'
5
On December 15, 200911, the Court delivered its first judgment, finding an
application against Senegal inadmissible. The Court's first judgment on the merits
of a case was issued on June 14, 2013, in a case involving Tanzania. 13 It found
Tanzania had violated its citizens' rights to freely participate in government
directly or through representatives regardless of their party affiliation, and
ordered Tanzania to take constitutional, legislative, and all other measures
necessary to remedy these violations. On March 28, 2014, the Court ruled against
Burkina Faso, in a case brought by the family of Norbet Zanga, a newspaper
editor who was murdered in 1998. The court found that Burkina Faso had failed to
properly investigate the murder, and had failed in its obligations to protect
journalists.
Overview of Human Rights and Humanitarian Law Violations
From the very outset of the violence, gross violations of human rights and serious
violations of humanitarian law have occurred on a massive scale As violence
erupted, civilians fled their homes, often to united nations mission in the republic
of south Sudan bases in areas designated as 'protection only of six days civilians'
after the violence (commenced, united nations mission in the republic of south
Sudan was hosting more than 35,000 civilians in its bases. By 23 December, an
estimated 81,000 people had been displaced by the conflict.
The consequences of the conflict for the civilian population have been devastating.
The number of civilian casualties is high, likely in the thousands, although to date
lJ On December 15, 200912. the Court delivered its first judgment, !inding an upplication against Senegal inadmissible. T
11 Tho: Coun·s !lrstjudgement on the merits ora case was issued on June 14, 2013. in a case involving Tanzania
6
no one has been able to establish an exact figure. A dismal pattern of violence and
destruction has emerged as the two pmiies to the conflict gain and lose control of
towns and surrounding areas. As m·med groups moved through towns and villages,
people fled, losing loved ones, and leaving everything behind. Many remained in
hiding for days and weeks, without food or assistance. Those who sought
protection in sites for internally displaced persons (IDPs) often found dismal
conditions. On 12 February, the Under-Secretary General for Humanitarian Affairs
declared a Level 3 Humanitarian System-Wiele Emergency Response for South
Sudan, the highest level of emergency. On 18 March, the South Sudan Human
Rights Commission released on interim report on the crisis, finding that human
rights violations were committed by both parties to the conflict. By 22 April, over
78,000 IDPs were being protected at united nations mission in the republic of south
Sudan bases, out of an estimated over 1,000,000 displaced across South Sudan and
to neighbouring countries. The humanitarian community has warned that, clue to
this massive displacement, South Sudan faces a high risk of famine.
The following section provides an overview of the progress of the conflict and the
accompanying international humanitarian lavv and human rights violations that
occurred in the four most-affected States'·', Central Equatorial, Jonglei, Upper
Nile, and Unity. Much of the information concerns urban areas where intense
fighting has taken place; these are also the areas ·where the human rights division
is most concentrated. As it was in the case of republic of south Ajhca vs deltu
international investments ltd15 , the court held that .26 January 2006 An Afi·ican
14 J he J'ollowing section provides an overview of the progress of the con/1ict and the accompanying international humanitarian
l:n\ and human rights violations that occurred il the four most-affected States 1 ~' South Arrica vs delta international investments ltd26 January 2006 An African court to rule on cases of gross human rights Yio!ations on the continent is ready to start hearing cases, South African Foreign Minister Nkosazana Diamini·Zuma announced on ']'ucsda)
7
court to rule on cases of gross human rights violations on the continent is ready to
start hearing cases, South Afi-ican Foreign Minister Nkosazana Dlamini-Zuma
announced on Tuesday. Briefing the media after the closing session Aji-ican Union
heads of state summit in Khartoum, Sudan on Tuesday, Dlamini-Zuma said that
while the location of the court was still to be finalised, the 1] judges had already
been elected - including Bernard Ngoepe, South Aji-ica 's Judge President of
Transvaal. In addition to hearing cases of gross human rights violations such as
genocide, the court will also have the power to render an opinion, at the request of
a member state, on any legal matter relating to Afi'ican court on human and people
's rights human rights instruments. "The court is ready to fimction," Dlamini
Zuma said. The heads of state have requested member states to submit their
comments on the "draft single legal instrument" by writing to the Afi'ican court on
human and people 's rights Commission, with the closing date for submissions 3]
March. The draji single legal instrument is a document containing
recommendations on the merger of the Aji-ican court of human and people's rights
and the court ofjustice of the organization. The union has also decided that the
merger document should be submitted to a joint meeting of the People's Rights
Commission and legal experts fi'om member states for finalization. The final draji
will be submitted and presented for review at the seventh ordin(//y session of the
E<ecutive Council and Assembly to take place in Bujumbura, Burundi in July' 6
The election of the 11 judges must still be ratified by the Assembly of Heads of
State after the final draft has been approved. Their term of office ranges ji-om two
to six years. Source.
16 The linul draft will be submitted and presented Cor review at the seventh ordinary session of the Executive
8
Central Equatorial State
The evening of 15 December, heavy gunfire was heard throughout the capital of
Juba, Central Equatorial State. In the early morning of 16 December, there was
fighting in the Sudan people's liberation army barracks at Bilpam and the Sudan
people's liberation army in the New site neighborhood17. The faction of the
Presidential Guard loyal to the Government defeated the defecting troops loyal to
Dr. Machar in the barracks and, as the latter retreated, the former chased them
through civilian neighbourhoods, shooting at them on the way. After fighting in the
barracks, and with Dr. Machar defecting troops of the Sudan people's liberation
army defeated and retreating from Juba, soldiers in Sudan people's liberation army
uniforms swarmed into neighborhoods in Juba. The first neighborhoods affected
were those close to military installations, namely Giada and Bilpam barracks. The
attacks then spread across Juba 18
However, given the movements of the parties to the conflict and the patterns of
violations reported, there is strong reason to believe that grave violations have
occurred across rural areas. These areas and witnesses with relevant information
have often been difficult to access for reasons outlined above. It should also be
noted that not all incidents documented or sites visited by the human rights
division have been included in this report. Finally, as the conflict is on-going, the
human rights division's investigations continue. The justification of the research
was chosen to investigate and discuss the African comi on human and people's
rights, the violation of human rights with in south Sudan.
11 l'ouneiland Assembly to take place in Bqjumbura. Burundi in Julyeurly morning or \6 December. there was lighting in thl..':
Sudan pcop\e'slibcration army barracks at Bilpam and the Sudan people's liberation army armoury in the New site neighborhood
18 1'\11.: !!rst neighbourhoods a!lCcted wen .. ~ those close to military installations, namely Giada and Bilpam barmcks.The attacb t!wn ~prcad across Juba
9
1.2 STATEMENT OF PROBLEM
The 2011 Transitional Constitution of the Republic of South Sudan and other
international human rights treaties. covenants and instruments ratified or acceded
to by the Republic of South Sudan provide for the bill of rights as a covenant
among the people of south Sudan and between them and their government at every
level and a commitment to respect and promote human rights and fundamental
freedoms enshrined in this Constitution: it is the cornerstone of social justice,
equality and democracy.
However the enforcement of these statutory provisions is difficult despite multiple
cease fire attempts and on going negotiation, violence continues to consume much
of south Sudan, insecurity throughout has disrupted agricultural activities and
exacerbated food insecurity, bringing South Sudan to the brink of famine, a
humanitarians crisis and among others.
The study was carried out with the hope that it enlightens and advance the
understanding of the people of South Sudan to end the war and to enjoy and
promote human rights and fundamental freedoms enshrined in this constitution.
The study is as a result of observation of the cmTent situation in the country
particularly the killing of the people.
Therefore the research aimed at finding a better solution to address problems
resulting from this civil war out break and seeks how these can be achieved by the
African court on human and people's rights in resolving the African challenges.
1.5. General objective
The general objective of the study was to examine the effectiveness of the African
court on human and people's rights in resolving African challenges.
10
1.5.2 Specific objectives of the study.
(i) To examine the legal frame work in establishing African court on human and
people's rights and its mandate.
(ii) To assess the human rights violation in south Sudan at the outbreak of the war
in2013.
(iii) To suggest the possible measures to African court on human and people's
rights in south Sudan situation.
(iv) To propose the appropriate recommendation to African court on human and
people's rights in south Sudan.
1.5.3. Research questions
(i) What is the legal frame work in establishing African court on human and
people's rights and its mandate in south Sudan?
(ii) How is the human rights violation in south Sudan at the outbreak of the war in
2013?
(iii) What are the possible measures to African comi on human and people's rights
in south Sudan situation?
(iv) What is the appropriate recommendation to African comi on human and
people's rights in south Sudan?
11
1.2 SCOPE OF THE STUDY
1.2.1 Time Scope
The study was therefore carried out for a period of five months from October to
February 201 5. This time was chosen because it gives ample time for the
researcher to collect information about the study.
1.2.2 Geographical scope:
The study was carried out in South Sudan central region. The place was chosen
because of its accessibility by the researcher and the fact that it holds a pool of
information necessary for this study.
1.3 Significance of the study
The study was significant to the following groups of people:
a. Researchers:
The researcher gained f1.lil knowledge and skills on the matters regarding and
affecting south Sudan. She was also equipped with adequate practical knowledge
in writing research and above all, the completion of this study enabled the
researcher to graduate with a degree in law of Kampala international university.
b. Policy make1·s:
The study was significant to the policy makers at the local and the central
government because the recommendations of the study provided the foundation for
the policy makers to know and understand the possible ways of enforcement and
protection of human rights by EACH PR's rights.
12
The non-Government Organizations bodies working to promote human rights are
also availed with the challenges the African states face as a result of conflict.
First limitations of the study
1.4 METHODOLOGY
The researcher identified, specified and discussed all the possible methods which
were applied in canying out the study. Both qualitative and quantitative techniques
of data collection and analysis were used since one research method could not
yield an authentic report on the topic the effectiveness of the African court on
human and people's rights in resolving the African challenges: A case study of
outbreak war in South Sudan.
The study examined the best means to a broad, precise and richer detail of the
complex environment in which the ethnic conflict occurs. Emphasize was put on
process tracing congruence and with in a case analysis, in an attempt to make the
link between the African comt on human and people's right and to observe the
outcome with a view of uncovering evidence of the African court.
Before data collection, the researcher first reviewed literature which ensured
availability of data and also help the researcher get a better understanding of the
problem. Data was analyzed thematically quotation of some key writers would be
used to give effect and back some key analysis. This would be presented in a
descriptive from in a final report.
1.5 RESEARCH INSTRUMENTS
The research used the following data collection instruments to get the information
required in this study. These instruments included the following:
13
a. Documentary review
Under this data collection method, the researcher carried out her study by carefully
studying written documents or visual information from different books in the
library reviews literature and other secondary sources of information such as the
objectives of the study.
1.6 LIMITATIONS OF THE STUDY
The researcher may only interview a sample of the population in the area to
represent the entire population hence it may lead to basic information.
Lack of enough resources such as finance and computers to record relevant data
might lead to delay and insufficient data collection.
There might be a difficulty in approaching some interviewees and some
respondents may fail to fill the set questionnaires hence limiting the researcher's
scope of information.
The researcher may face difficulty m formulating mechanisms or scales for
measuring the research variables.
It might be hard for the researcher to identifY and access pirates as these pirates are
vcty hard to access and this might jeopardize the research.
14
1.9 LITERATURE REVIEW
This discusses the literature that is related to the war breakout in south Sudan. 1t
will highlight the deficiencies and loopholes in the statute and suggest plausible
reforms which if implemented will alleviate the problem of this war. Several
authors, materials will also be consulted to provide the different ideologies and
theories that have been put forth in the study of this topic of South Sudan's
conflict
The civil war in Sudan began in 1983. During the course of the war, which ended
in 2005, two million people were killed and four million were made homeless. The
war was mostly between the government and the SPLA (Sudanese people's
Liberation Army) who wanted control of southern Sudan. The discovery of oil in
the south caused fmiher problems as the government did not want the south to take
all the wealth from the oiL The Murahaleen- Arab fighter on horse back from the
north of the country also assisted the government, many homes were burnt down
and entire villages destroyed. Women and girls were raped, children especially
boys were kidnapped and put to work either as slaves or child soldiers. The SPLA
could also be accused of similar atrocities. Many orphaned boys formed large
walking groups and walked across the country to apparent safety in Ethiopia. For
some this involved walks of up to several months.
There was little food and water and many children died of thirst, starvation or by
being taken by lions.
Many refugees needed up in refugee camps in Ethiopia where conditions were not
much better at first Eventually, over seas arrived, food, clothes, medical and
education were provided.
15
However the impacts of that civil war on people in Sudan, many Sudanese have
never returned home since the peace treaty in 2005. There are many reasons for
this some refuges know nothing other than the life they had in the camps as they
were young children at the start of the war. For some of them, they no longer speak
the local dialect of the area, they came from as being orphans there were no family
members to keep the language alive. Many people cannot afford to return home as
they have nothing to go back to. Their homes were destroyed and any wealth they
had (mostly in form of cattle) was taken by the Murahaleen raiders. Not speaking
the local dialect will make finding employment difficult. Therefore it follows that
the civil war that took place in 1983 has no different with this current war breakout
between the government and the opposition leader Riek Machar
According to Gabriel Meyer19 a catholic journalist and author who has written and
lectured extensively on the region he stated that "it's critical for people to
understand that south Sudan is fundamentally dependent on the churches."
However he went further and said that south Sudan was formed in 2011 when the
region gain independent from the Republic of Sudan following a 20 years long
civil war. Recently the nascent country has erupted in violence again as force loyal
to south Sudan president Salva Kiir and those allied behind former vice president
Riek Machar have come into a conflict. These divisions which are questions of
power and political differences "Meyer said "go back a very long time to the
longstanding conflict in the region."
"!:very one is traumatized" he continued and you have to deal with that 111
rebuilding society
19 According to Gabriel Meyer a catholic journalist and author who has written and lectured extensively on the
region he stated that "its critical for people to understand that south Sudan is fundamentally dependent on the churches
16
Meyer explained that south Sudan particular has specifically borne the brunt. For
over a generation or more during the civil war and resulting violence for instance;
discriminatmy policies from Khartoum the capital of the Republic Sudan,
prevented schooling for certain groups of persons and as a result most of
Sudanese were not educated.
South
During this time "It was the churches really who were there with the people and in
many cases churches were the source of aid, food and support for the people Meyer
said." the churches have supported "people on the group, on matter what" and are
invested not in immediate short term success but solidarity
20Mayer cautioned outside organizations to consider cultural customers and
approaches when trying to help people in south Sudan, other wise they will
complicate the situation, not help
He finally argued that churches should keep supporting the people of south Sudan
because there is no stronger nation building institution than churches, Meyer
stressed both because of their closeness to the nation is people and resulting respect
from the people.
In another report Kenyan official, including21 president Uhuru Kenyatta Urged
both sides to enter peace talks and has continued to play a key diplomatic role. The
Nairobi government hope that a planned southern oil pipeline will one day
10 He finally argued that churches should keep supporting the people of south Sudan because there is no stronger nation building institution than churches, Meyer stressed both because of their closeness to the nation is people and resulting respect from the people. " President Uhuru Kenyatta Urged both sides to enter peace talks and has continued to play a key diplomatic role. The Nairobi government hope that a planned southern oil pipeline will one day transport Crude from south Sudan to Kenya the country also has discovered its own oil most far from its border with south Sudan.
17
I I '
.,
transport Crude from south Sudan to Kenya the country also has discovered its
own oil most far from its border with south Sudan.
According to Daniel Large22 , a south Sudan analyst at central European University
in Budapest "stated that south Sudan was born as a petro state", without oil , in
terms of paying for the state there will be huge repercussions". However if war
continues south Sudan could join the ranks of other oil rich African nations from
Angola to Chad, Nigeria to Equatorial Guinea- where oil and other natural
resources have triggers conflicts and corruption while millions languish in poverty.
Therefore the paper above in view covers a limited area of how the previous war
breakout in south Sudan begun and its impact on the people comparing to this
current conflict of 2014. It also views on religious perspective, especially to pray
hard in order for the country to gain back peace.
I do agree with Leben Mora He said that "the big powers especially the Chinese
have a huge stake in this," the oil could be a savior but if there is more fighting
over the oil, it could become a curse"
!\ dispute over political power, no oil, triggered clashes in Juba last month. But the
conf1ict quickly turned into a fight over South Sudan's strategic oil rich regions.
The capitals of two of these areas,Benitu and Malakal, have changed hands more
than once. Battles also have been fought in Bor, the capital of a region with
untapped oil reserves that are potentially lucrative.
72 According to Daniel large , a south Sudan analyst at central European University in Budapest "stated that south Sudan was born as a petro state", without oil, in terms of paying for the state there will be huge repercussions".
18
r .I
I
I I I I I
I
13"The opposition hopes that by capturing the oil fields, they'll gain the upper hand
in cease-fire negotiations by halting the government's main source of income" said
Luke Patey a senior researcher at Danish Institute for International Studies and the
author of' the New Kings of Crude" a book about South Sudan and its oil. "Oil is
the prize at the conflict's end." He added
Oil output has dropped more than 20 percent since the conflict began, analyst say,
as rebels have seized vital oil producing regions. China, which have invested
billions in south Sudan's oil infrastructure, has been forced to shut down
operations in some areas and evacuate scores of Chinese workers.
Sudan eams hundreds of millions of dollars in fees annually by allowing
landlocked south Sudan's oil to flow through pipelines to northern refineries and
ports, according to analyst. With Sudan already suffering economically from US
sanctions and loss of oil revenue since the creation of South Sudan further drops in
oils out put could prove devastating.
·'3 The opposition hopes that by capturing the oil fields, they'll gain the upper hand in cease-fire negotiations by
halting the government's main source of income" said Luke Patey a senior researcher at Danish Institute for International Studies and the author of" the New Kings of Crude" a book about South Sudan and its oil. "Oil is the prize at the conflict's end." He added Oil output has dropped more than 20 percent since the conflict began, analyst say, as rebels have seized vital oil -producing regions. China, which have invested billions in south Sudan's oil infrastructure, has been forced to shut down operations in some areas and evacuate scores of Chinese workers.
19
CHAPTER TWO
THE LEGAL FRAME WORK IN ESTABLISHING THE AFRICAN
COURT ON HUMAN AND PEOPLE'S RIGHTS AND ITS MANDATE IN
SOUTH SUDAN.
2.0 Int1·oduction.
This chapter discusses the legal frame work in establishing the African court on
human and people's rights and its mandate in south Sudan.
2.1 The establishment of the African court ou human and people's rights.
The African Court on Human and People's Rights (the Court) is a continental court
established by Member States of the African Union to ensure the protection of
human and people's' rights in Africa24• The Court was established by vi1iue of
Article 125 of the Pmtocol to the African Charter on Human and People's Rights
on the Establishment of an African Court on Human and People's' Rights (the
Protocol). In fact, the African Charter on Human and People's Rights, which is the
l~1ct the main African human rights instrument that sets out the rights and duties
relating to human and people's' rights in Africa, provides a framework within
which the African Court on Human and People's' Rights was created.
The mandate of the Comi 1s to complement and reinforce the functions of the
African
Commission on Human and People's' Rights (the African Commission-often
referred to as the
"'1 African Court on Human and Peoples' Rights (the Court) is a continental court established by Member States oft he A!i·ican
Union to ensure the protection of human and peoples' rights in Africa '~Article 120 or the Protocol to the African Charter on Human and Peoples· Rights on the Establishment of an Afi·ican Court on
\-Iuman and Peoples· Rights (the Protocol).
20
Banjul Commission)26, which is a quasi-judicial body charged with monitoring the
implementation of the Chatier.
The Protocol establishing the African Court on Human and People's' Rights was
adopted on 9 June 199827 in Burkina Faso and came into force on 25 January 2004
after it was ratified by more than 15 countries.
2.1.1 Intemational human rights law28
States are responsible under international human rights law to guarantee the
protection and preservation of human rights and fundamental freedoms at all times,
in war and peace alike. South Sudan has not yet ratified any core international or
regional human rights treaty. However, South Sudan is bound by provisions of
international human rights law which have attained customary status 111
international law and include many if not all of the rights set out in the Universal
Declaration of Human Rights
The most basic human rights obligations, in particular those emanating ±!·om
peremptory international law (ius cogens) bind both the State and armed opposition
groups in times of peace and during armed conflict. In particular, international
human rights law requires States, armed groups and others to respect the
prohibitions of extra judicial killing, maiming, tmiure, cruel inhuman or degrading
treatment or punishment, enforced disappearance, rape, other conflict related
sexual violence, sexual and other forms of slavery, the recruitment and use of
26 Banjul Commission 27 J'ht.'!. Protot.:ol establishing the African Court on Human and Peoples' Rights was adopted on 9 June 1998. :s International human rights law South Sudan is bound by provisions of international human rights law which ha\'c allaincd customary status in international law and include many i r not all of the rights set out in the Universal Declaration or Human Rights
21
children in hostilities, arbitrary detention as well as of any violations that amount
to war crimes, crimes against humanity, or genocide.
2.1.2 International humanital"ian law
South Sudan is in a state of non-international armed conflict.29 International
humanitarian law governs the conduct of the pmiies to the conflict. South Sudan is
a State Pmiy to the four Geneva Conventions of 1949 and the two Additional
Protocols of 1977.30 Both Government and opposition forces participating in the
conflict are, therefore, bound by Article 331 Common to the Geneva Conventions.
This Article encapsulates the most fundamental principles of respect for human
dignity, including prohibitions on violence to life and prison. To the extent that
opposition forces, under responsible command, exercise control over territory so as
to enable them to carry out sustained and conce1ied military operations, the
Government and opposition are also bound by Additional Protocol II to the Geneva
Conventions32• In addition, the Goverm11ent and opposition forces are bound by
customary international humanitarian law. International humanitarian law
establishes binding rules on how conflicts, including non-international armed
conflicts, are conducted and how the various actors must be treated. The most
fundamental principles include that civilians must be protected at all times. Parties
to the conflict are required at all times to distinguish, themselves between civilians
and armed elements. 33 The parties must only attack military personnel and targets:
civilians and civilian objects must not be the target of attacks.
-"J International humanitarian law .South Sudan is in a state of non-international armed conflict 30 South Sudan is a State Party to the fOur Geneva Conventions of 1949 and the two Additional Protocols of I 977. 11 Artide 326 Common to the Geneva Conventions. This Article encapsulates the most fundamental principles of respect for
human dignity. including prohibitions on violence to life and person. 32
Protocol II to the Geneva Conventions
:n Panics to the contlict are required at all times to distinguish between civilians and armed elements.
22
The parties are required to meet minimum standards of treatment for civilians and
any armed elements no longer able to patiicipate in the fighting, generally be
African comi on human and people's rights they have surrendered, are detained, or
are wounded. Fmiher, those sent to provide assistance to civilians without directly
taking part in hostilities, including humanitarian workers and organizations and
United Nations peacekeepers, also receive protection under international
humanitarian law.
Second, military operations and attacks must not be indiscriminate so as to strike
military objectives and civilians or civilian objects without distinction.34 They must
not employ a method or means of combat which cannot be directed at a specific
military objective; or employ a method or means of combat the effects of which
cannot be limited as required by international humanitarian law. In planning and
conducting military operations, constant care must be taken to spare the civilian
population, civilians, and civilian objects. All feasible pre Afi·ican court on human
and people's rights must be taken to avoid, and in any event to minimize,
incidental loss of civilian life, injury to civilians and damage to civilian objects.
International humanitarian law continues to bind each party to the conflict, r regardless of whether any other party is failing to comply. , Each patiy to the
conflict, including armed opposition groups, must also ensure respect for
international humanitarian law, in particular by its armed forces and other persons
or groups acting on its instructions, or under its effective direction or control. It is
likely that many of the non-state armed groups involved in the current conflict in
3'1 Second. military operations and attacks must not be indiscriminate so as to strike military objectives and civilians or ciYilian
objects without distinction 35 international humanitarian law continues to bind each party to the conflict, regardless of whether any other party is railing to compl)
23
South Sudan have reached a ce1iain threshold of organization and effective control
of territory to be bound by relevant rules of international humanitarian law on non
international armed conflict.
2.1.3 International Criminal Law36
The Rome Statute of the International Criminal Court (often referred to as the
International Criminal Comi Statute or the Rome Statute) is the treaty that
established the International Criminal Comi (ICC). It was adopted at a diplomatic
conference in Rome on 17 July I 998 and it entered into force on 1 July 2002. As
of I May 2013, 122 states will be pmiy to the statute. Among other things, the
statute establishes the court's functions, jurisdiction and structure.
The Rome Statute established four core international cnmes: genocide, cnmes
against humanity, war crimes, and the crime of aggression. Those crimes "shall not
be subject to any statute of limitations. Under the Rome Statute, the ICC can only
investigate and prosecute the four core international crimes in situations where
states are "unable" or "unwilling" to do so themselves. The court has jurisdiction
over crimes only if they are committed in the territory of a state party or if they are
committed by a national of a state party; an exception to this rule is that the ICC
may also have jurisdiction over crimes if its jurisdiction is authorized by the United
Nations Security Council.
The Rome Statute established four core international crimes: genocide, cnmes
against humanity, war crimes and the crime of aggression. However throughout the
negotiations, other crimes were considered for inclusion, including ecocide.
Following years of negotiation, aimed at establishing a permanent international
;G lntl..!rnational Criminal L::m
24
tribunal to prosecute individuals accused of genocide and other serious
international crimes, such as crimes against humanity, war crimes and crimes of
aggression, the United Nations General Assembly convened a five-week
diplomatic conference in Rome in June 1998 to finalize and adopt a convention on
the establishment of an international criminal court. On 17 July 1998, the Rome
Statute was adopted by a vote of 120 to 7, with 21 countries abstaining."! Because
the way each delegation voted was officially unrecorded, there is some dispute
over the identity of the seven countries that voted against the treaty. It is certain
that the People's Republic of China, Israel, and the United States were three of the
seven because they have publicly confirmed their negative votes; India, Indonesia,
Iraq, Libya, Qatar, Russia, Saudi Arabia, Sudan, and Yemen have been identified
by various observers and commentators as possible sources for the other four
negative votes, with Iraq, Libya, Qatar, and Yemen being the four most commonly
identified
On ll April 2002, ten countries ratified the statute at the same time at a special
ceremony held at the United Nations headquarters in New York City, bringing the
total number of signatories to sixty, which was the minimum number required to
bring the statute into force, as defined in Article 126. The treaty entered into force
on I July 2002; the ICC can only prosecute crimes committed on or after that date.
The statute was modified in 2010 after the Review Conference in Kampala,
Uganda, but the amendments to the statute that were adopted at that time are not
effective yet.
The Rome Statute is the result of multiple attempts for the creation of a
supranational and international tribunal. At the end of 19'11 century, the
international community took the first steps towards the institution of permanent
25
courts with supranational jurisdiction. With the Hague International Peace
Conferences, representatives of the most powerful nations made an attempt to
harmonize laws of war and to limit the use of technologically advanced weapons.
After World War I and even more after the heinous crimes committed during
World War II, it became a priority to prosecute individuals responsible for crimes
so serious that needed to be called "against humanity". In order to re-affirm basic
principles of democratic civilization, the alleged criminals were not executed in
public squares or sent to torture camps, but instead treated as criminals: with a
regular trial, the right to defense and the presumption of innocence.
The Nuremberg trials marked a crucial moment in legal history, and alter that,
some treaties that led to the drafting of the Rome Statute were signed
Gross human rights violations and serious violations of international humanitarian
law may also constitute international crimes, notably war crimes and crimes
against humanity.
International law reqmres holding personally accountable perpetrators of
international crimes, including military commanders and civilian officials who
order the commission of such crimes. A military commander can be held
responsible for crimes committed by forces under his effective command and
control or for failing to exercise control properly over such forces where: ( l ) The
commander knew or, owing to the circumstances at the time, should have known
that the forces were committing or about to commit such crimes; and (2) The
commander failed to take all necessary and reasonable measures within his/her
power to prevent or repress their commission or to submit the matter to the
26
competent African court on human and people's rights for investigation and
prosecution.
On the same basis, a civilian supenor who knew or consciously disregarded
information which clearly indicated that subordinates within his/her effective
responsibility and control were committing cnmes will mcur criminal
responsibility if the civilian superior fails to take all necessary and reasonable
measures within his/her power to prevent or repress their commission or to submit
the matter to the competent African court on human and people's rights for
investigation and prosecution.
The human rights division also recalls the established principle of international law
that perpetrators of international crimes are not relieved of criminal responsibility
on the basis that they have acted on superior orders, be African court on human
and people's rights orders to commit crimes of such gravity are manifestly
unlawful.
2.1.4 Domestic law of the constitution of south Sudan37
The obligation of the Government to respect, uphold, and promote human rights is
primarily enshrined in the Bill of Rights of the Transitional Constitution of
Republic of South Sudan (Constitution). The Bill of Rights protects several
fundamental human rights, including the right to life and human dignity; the right
to liberty and security of the person, including the right to be free from arbitrary
arrest and detention; the right to a fair trial; and the right to equal protection of the
law.
37 Domestic law of the constitution of south Sudan
27
2.1.5 The African court on human and people's rights frame wm·k
Seat of the Court
The Court has its seat in Arusha, in the United Republic of Tanzania.
Mandate
The African Court on Human and People's' Rights was established to complement
and reinforce the functions of the African Commission on Human and People's'
Rights'11 (the African Commission-often referred to as the Banjul Commission),
which is a quasi-judicial body charged with monitoring the implementation of the
Charter.
The current situation reganling the ratification of the Protocol
Since the adoption of the Protocol in 1 99842, only twenty six (26) of the fifty-four
(54) Member States of the African Union have ratified it. The States are Algeria;
Burkina Faso; Burundi; Cote d'lvoire; Comoros; Congo, Gabon; The Gambia;
Ghana; Kenya; Libya; Lesotho; Malawi; Mali; African court on human and
people's rights; African court on human and people's rights; Mozambique;
Nigeria; Niger; Uganda; Rwanda; Senegal; South Africa; Tanzania; Togo; and
· 1\misia.
Composition ofthe Court
The Court is composed of eleven (11) Judges, nationals of Member States of the
African Union. The Judges are elected by the Assembly of Heads of State and
Ciovernment of the African Union for a period of six (6) years, and may be re-
'11
l he Arrican Court on Human and Peoples· Rights was established to complement and reinforce the runctions at' the Ali'ican Commbsion on Human and Peoples· Rights. '1? Since the adoption or the Protocol in \998
29
elected only once. The Judges are elected after nomination by their respective
States, in their individual capacities from among African jurists of proven integrity
and of recognized practical, judicial or academic competence and experience in the
field of human and people's' rights.
The Judges elect a President and a Vice-President from among themselves who
serve a two years term. They can be re-elected only once. The President of the
Court resides and works on a fctll time basis at the seat of the Court, while the other
ten ( l 0) judges work on a part-time basis. When performing his or her duties, the
President is assisted by a registry which performs managerial and administrative
functions of the Court.
The Judges
The current membership of the Court is as follows: ,Hon.Judge Sophia A B.
Akuffo - President (Ghana) l-Ion. Judge Fatsah Ouguergouz - Vice-President
(Algeria),Hon. Judge Gerard Niyungeko (Burundi), l-Ion. Judge Bernard M.
Ngoepe (South Africa), l-Ion. Judge El Hadji Guisse (Senegal) l-Ion. Judge Joseph
N. Mulenga (Uganda) (deceased), l-Ion. Judge African court on human and
people's rightsgustino S.L. Ramadhani, (Tanzania) l-Ion. Judge Duncan Tambala
(Malawi),Hon. Judge Elsie N. Thompson (Nigeria) and l-Ion. Judge Sylvain Ore
(C6te d'lvoire), l-Ion. Judge Ben Kioko (Kenya)
The Re<Jist1·ar "'
In their functions, Judges are assisted by a Registrar and other members of the
registry (the Court's staff). The current Registrar is Dr Robe1i Eno (Cameroon). He
was recruited as Deputy
30
Registrar of the Court in July 2010. He was then appointed as the Acting Registrar
in January 2011. In January 2012, Dr. Robert Eno was confirmed as Registrar.
Achievements of the Court.
The Court officially stmied its operations in Addis Ababa, Ethiopia in November
2006, but in African court on human and people's rights 200743 it moved to its seat
in Arusha, the United Republic of Tanzania, where the Government of the
Republic has provided it with temporary premises pending the construction of a
permanent structure.
Between 2006 and 2008, the Comi dealt principally with operational and
administrative issues, including the development of the structure of the Court's
Registry, preparation of its budget and drafting of its Interim Rules of Procedure.
111 ~OOX. during the Court's Ninth Ordinary Session, Judges or the Cuun
prm isionally adopted the Interim Rules of Court pending consultation with the
Ali·ican Commission on Human and People's' Rights in order to harmonize thcit·
rules to achieve the purpose of the provisions of the Protocol establishing the
Court. This harmonization process was completed in April2010 and in June 2010,
the Court adopted the final Rules of Comi.'14
The Court delivered its first judgment in 2009 following an application dated 11
African court on human and people's rights august 2008 by Mr. Michelot
Y ogogombaye against the Republic of Senegal. The Applicant wanted the Court to
'13 l'hc Court of!icially started its operations in Addis Ababa. Ethiopia in November 2006. but in African court on human and
people's rights 2007.
~~ llarmonization proc~ss was completed in April 2010 and in June 2010, the Court adopted the final Rules or Court.
31
suspend proceedings instituted by Senegal against Mr. 1-lissen Habre, J'ornwr
President of the Republic of Chad, who is in asylum in Senegal.
Pursuant to Article 34 (6)45 of the Protocol and Rule 33 (f) of the Rules of
Court, the Comi found that the application was not admissible as the Court had no
jurisdiction to hear it since Senegal had not made the declaration recognizing the
jurisdiction of the Court to receive applications submitted directly by individuals or
Non-Governmental Organizations.
As at May 2012, the Court had received 22 applications. It has already finalized 10
cases.
Currently it has a certain number of pending cases on its table to examme
including one Request for advisory opinion.
2.1.6 The Jurisdiction of the African Court of Human Rights
The Af!-ican Court of Human Rights is primarily established to enhance the
efficiency, and to complement and reinforce the functions of the African
Commission. AI-ticle 2 of the p1·otocol States that 'the Court shall complement the
protective mandate of the Aji-ican Commission conferred upon it by the Afi-ican
Charter~6 '. Therefore, the question will be whether the African Court will be able
to overcome the problems experienced by the Commission in its protective
mandate. Thus, its jurisdictional provisions are the heart of the protocol as they
~~Pursuant to Article 34 (6)0 of the Protocol and Rule 33(1) of the Rules of Court.
46 Article 2 of the protocol states that 'the Court shall complement the protective mandate of the African Commission conferred
upon it by the African Charter
32
determine who will have access to the Court, under what conditions and what types
of violations will be redressed.
Contentious Jurisdiction of the Court
Under Article 3 of the Protocol47, the Comi has jurisdiction to deal with all cases
and disputes submitted to it regarding the interpretation and application of the
Charter, the Protocol and any other relevant human rights instrument ratified by the
concerned States.
Advisory Judsdiction of the Court
Under Article 4 of the P1·otocol48, the Comi may, at the request of a Member State
of the African Union, any of the organs of the African Union, or any African
organization recognized by the African Union, provide an opinion on any legal
matter relating to the Charter or any other relevant human rights instruments,
provided that the subject matter of the opinion is not related to a matter being
examined by the Commission.
Extension of Jurisdiction of the Court to Deal with Criminal Matters
In February 2009, the Assembly of Heads of State and Goverm11ent of the African
Union requested the African court on human and people's rights commission, in
consultation with the African Commission on Human and People's' Rights and the
'17 llndcr Article 3 of the Protocol42. the Court has jurisdiction to deal with all cases and disputes submitted to it regarding tho...·
interpretation and application of the Charter, the Protocol and any other relevant human rights instrument r<Itilicd by the
concerned States
'w linLkr Article ·I of the Protocol,<13 the Court may, at the request or a Member State oCthe All·ican Union. any ol'thc organs ol·
thL' Ali"ican Union. or any African organization recognized by the African Union, provide an opinion on any legal matter rdating
to the Charter or any other rclc\'ant human rights instruments, provided that the subject matter of the opinion is not related to a
nwt!l:r being examined by the Commission
33
African Court on Human and People's' Rights, to assess the implications of
extending the jurisdiction of the Comi to try international crimes, such as
genocide, crimes against humanity and war crimes and to submit a rep01i thereon
to the Assembly in 2010.
To implement this decision of the Assembly, the Afi·ican Union Commission
engaged a consultant to undertake a study on the implications of extending the
jurisdiction of the African Court of Justice and Human Rights (yet to become
operational), including considering whether unconstitutional change or
prolongation of government, could be considered a new crime. The Draft protocol
with an extended mandate of the Court is currently under consideration by African
court on human and people's rights policy Organization49
49 Adminissibility Criteria for cases brought before the court
34
CHAPTER THREE
THE HUMAN RIGHTS VIOLATION IN SOUTH SUDAN AT THE OUT
BREAK OF THE WAR IN 2013-2014
3.0 Intmduction.
These chapter discuses the human rights violation in south Sudan at the out breaks
of the war in 2013.
3.1 Abuses by Security Forces
Soldiers detained, beat, and attacked civilians and civilian property m vanous
locations across the country during 201350.
Citing worsening criminality including armed robbery and inter-clan attacks, the
president in January replaced the elected governor of Lakes state with military
strongman Matur Chuot Dhuol. Dhuol sidestepped the courts, police, and the
prisons service ordered the army to arrest and detain suspects. Soldiers rounded up
dozens of men in February and March 2013, often detaining others from the same
village if they could not find the suspects. and held them in military facilities in
extremely harsh conditions for weeks or months and subjected many to severe
beatings.
In Eastern Equatorial, soldiers reportedly killed six civilians when soldiers attacked
Orema village on April15. 2013 51, apparently in revenge for the killing of security
forces by armed civilians during an earlier cattle raiding incident.
'~ukli..:rs ,.Jctain..:d. beat. and alt<ldcd ci\ ilians and ci\i!ian prop..::rt) in \arious locations across th(! countr) durin~ 2U 13
' l11 I <hl~TII I .qualoria!. ~~lldio.:r:-. n.:portcdl) kilkd ~i:-.. ci\ ilians \\hen soldier:-. altad.t:d ()n:?llla \ i!!agt: on -'\pril 15. 2U 13
35
Soldiers continue to occupy schools, and 26 schools were occupied at some point
in 2013, mostly in Jonglei and Eastern Equatorial states52. On African court on
human and people's rights august 14, the army announced a zero tolerance policy
of child recruitment or the occupation of schools.
In the case of Afi"icanus brighton gabula vs attorney general The plaintff was
arrested on the 24th day of ;!fi"ican court on human and people 's rightst 198853
and charged with the offence of treason. He was tried, convicted and sentenced to
death in 1993 by the High Court. The Supreme Court confirmed the conviction and
sentence in May 1995.
3.2 Conflict Related Sexual Violence
The conflict has exacerbated the vulnerability of women and children 111 South
Sudan to sexual violence, notably in the most affected States of Central Equatorial,
Jonglei, Upper Nile, and Unity. Within the human rights division; a team of
Women Protection Advisers led the monitoring of indicators and investigation of
reported incidents of conflict-related sexual violence. This team used the United
Nations office of the high commissioner for human rights guidelines for
monitoring and investigating gender-based violence, as well as the World Health
Organization Guidelines on Researching and Documenting Sexual Violence in
Emergencies and the Inter-agency Standing Committees Guidelines on response to
Gender-Based Violence in Humanitarian Settings.
~~ Soldiers ~ontinue to occupy schools. and 26 schools were occupied at some point in 20 13, mostly in Jonglci and Eastern
l~quatorial states
"'In the case of Afl·icans brighton gabula vs attorney general The plaintiff was arrested on the 24th day of African court on human and people's rights 198848 and charged with the offence of treason
36
Sexual violence is well-known to be under-reported during peacetime; during
conflict, obstacles to repmiing are even greater. Since 15 December, United
Nations mission in the republic of south Sudan and humanitarian actors have
documented the breakdown of healthcare services in conflict-affected States.
Hospitals and primary care clinics were attacked in Jonglei, Unity and Upper Nile
States, while security forces exerted a strong presence in health care centers that
remained operational, such as Juba Teaching Hospital. The ability of survivors of
sexual violence to receive services in this environment was severely diminished.
Consequently, most incidents of sexual violence could not be repmied to health
actors, or documented or verified through medical repmis. The alleged perpetration
of sexual violence by security forces undermined the credibility of these
institutions to receive reports of sexual violence. The closure of Government
offices and the diversion of police to security operations further prevented
reporting to security, judicial and social welfare actors. Social stigma also
prevented reporting. Even when incidents were reported, investigations often could
not proceed in order to protect the survivor. While some incidents have been
verified, many remain under investigation. Investigation of sexual violence in
conflict can take time in order to overcome challenges to reporting and to ensure
protection of victim/survivors. The incidence of sexual violence in Central
Equatorial State increased in the days following 15 December. At least 27
incidents were documented, of which 22 incidents were attributed to Government
security forces and mainly to the SPLA. These include 14 incidents of rape and 54 gang-rape, one attempted.
,,_1 rho.: incick:nce of sexual violence in Central Equatorial State increased in the days following 15 December. At least 27 incidents
\\e-re documented. or which 22 incidents were attributed to Government security forces and mainly to the SPLA. These inc!udt:
I<! incidents of rape and gang~rape. one attempted.
37
3.3 Violations against Individuals.
Within the first four weeks of the crisis, almost 500,000 persons were displaced
within South Sudan and around 74,300 people had crossed into neighboring
countries. Many of the displaced fled into Protection of Civilians sites in united
nations mission in the republic of south Sudan bases, namely, Tomping and UN
House in Juba, Central Equatorial state; Bor, Jonglei State; Malakal and Melut,
Upper Nile State; Bentiu and Pariang, Unity State; and Rumbek, Lakes State. By
22 April, an estimated 78, 477 IDPs were being protected in United Nations
mission in the republic of south Sudan sites. This is the first instance of any United
Nations mission providing protection to civilians facing imminent threat of
physical violence on this scale or for this length of time. In addition to physical
protection United Nations mission in the republic of south Sudan has also worked,
in coordination with humanitarian partners, to ensure that humanitarian and other
protection assistance has reached these IDPs.
In Jonglei State, for instance, the human rights division has received multiple
reports that lOPs who left the United Nations mission in the republic of south
Sudan Bor Protection of Civilians site were attacked and, in some cases, killed.
Such allegations increased when the Government re-captured Bor town, from 24 to
30 December, and spiked again in March. Community leaders produced a list of 33
individuals who were staying in the Protection of Civilians site and were allegedly
killed in the vicinity of the site during this period. Multiple similar incidents were
reported in Juba. For instance, a Nuer man reported that, on 20 January, when he
left a Protection of Civilians site to check on his home which had reportedly been
looted, he was African court on human and people's rights by a group of Sudan
people's liberation army soldiers in uniform, speaking in the Dinka language, who
38
told him that he should not have tried to go back to his house. The soldiers
subsequently as African comi on human and people's rights Led him. In Unity
State, a report was received that, on 30 and 31 January55, multiple Nuer individuals
were arbitrarily detained by Government forces outside the United Nations mission
in the republic of south Sudan Protection of Civilians site in Rubkona.
3.4 Crimes against humanity
Crimes against humanity entail gross human rights violations of a scale and level
or organization that shock the conscience of humanity. Crimes against humanity
have a high legal threshold56. Two elements must coincide. First, individuals must
commit inhumane acts with the requisite criminal intent. Second, these inhumane
acts must form part of a widespread or systematic attack directed against a civilian
population. The Rome Statute also requires that the attack must be directed against
a civilian population and be pursuant to, or in fmiherance of, a state or
organizational policy.57
Mass killing in Gudele
One incident that has been well documented by the Human rights divisions
illustrates the nature and the scope ofthe violence in Juba. It involves the killing of
at least 300 Nuer men in the Gudele neighborhood on 16 December.
s;, The soldiers subsequently as AJi"ican court on human and people's rights Led him. In Unity State, n repo1t was recciwd that. on 30 and 31 Januarv 56 Crimes agninst hu~nanity entail gross human rights violations of a scale and level of organization that shock the conscience o[' humanity. Crimes against humanity have a high legal threshold "'
7 The Rome Statute also requires that the attack must be directed against a civilian population and be pursuant to, or in Curthcrance oL a state or org<mizational policy
39
According to numerous accounts received by Human rights divisions, including
those of survivors of the incident, beginning on the morning of 16 December, until
the afternoon, Nuer men from Gudele were rounded up by various members of
security forces. One victim was at home with several relatives who had fled to
Gudele, believing it was safe from the fighting in Newsite and Mia Saba. Around
mid-day, police came to the home and took everyone from the house. One person
who tried to resist was shot.
In many reported instances, members of the security forces seemed to know which
houses were occupied by Nuer families following discussion with Dinka
neighbors; in some instances, the Dinka members of the security forces were
neighbors of the Nuers they targeted. South Sudan National Police Service,
although some victim testimonies also implicate the national security service, the
Wildlife Service, and the Fire Brigade. Many of the perpetrators were recognizable
to witnesses as members of the Dinka ethnicity.
Attack on the residence of Riek Machar
On 17 December, the Juba residence of Dr. Riek Machar in the Hai Amarat
neighborhood was reportedly attacked. The former Vice-President depmied Juba in
the early hours of 16 December. Several members of his security detail, at least 3 5,
including the Sudan people's liberation army Tiger Division and National security
service personnel, remained at the residence.
Civilians, including women and children, were also at the residence and according
to one witness, could have been as many as 60, while others provided lower
numbers. Some civilians were brought there by soldiers on 16 December, although
40
it is unclear whether it was for protection or under coercion. One interviewee
indicated that Nuer civilians who arrived in the compound were running from the
shooting and targeting ofNuer in other areas in the city, thinking that the residence
of Dr. Riek Machar would be a safe place to stay.
Fighting in Bor South County
On 19 December, opposition forces established a headquarters and claimed control
of Bor town. At this time, the rule of law and any semblance of public order
dissipated, with Bor town descending into chaos.
Various officials of the civilian Government in Bor, including the Bor County
Commissioner and the Bor Mayor, were reportedly attacked. At approximately
17:00, the Deputy Governor and others called United Nations Mission in the
Republic of South Sudan to report that Government officials were under attack and
to request evacuation by United Nations Mission in the Republic of South Sudan
By approximately 19:00, Government officials, including the Caretaker Governor,
the Deputy Governor, and State Ministers, arrived at the United Nations Mission in
the Republic of South Sudan camp in a large convoy without United Nations
Mission in the Republic of South Sudan escort. Reportedly the convoy was
attacked while en route by unknown perpetrators. The Human rights divisions has
not been able to confirm details of the alleged attack on Govenm1ent officials that
led them to seek protection at United Nations Mission in the Republic of South
Sudan.
41
Displacement from Bor
The Human rights divisions interviewed more than 150 individuals who fled their
homes in Bor town after opposition forces took control, including Dinka, Nuer,
Anyuak, Murle, Shilluk, and foreigners, among others. The sum of these
interviews paints a picture of arbitrary killings and other threats to physical
integrity, as well as looting, as civilians were fleeing Bor town.
3.6 Violations of freedom of expression and censorship of the press
In the months pnor to the outbreak of conflict, the climate for freedom of
expression in South Sudan had progressively worsened. With the outbreak of
violence on 15 December58, a sharp deterioration was evident. In mid-January, the
human rights division was informed of dozens of incidents involving the illegal
arrest, detention, intimidation, harassment, and expulsion of national and foreign
journalists, as well as the surveillance and censorship of media houses. Dozens of
human rights defenders and local human rights
Organizations also repmted that they were being threatened and that their property
had been looted. One was forced to shut down its operations and leave the country.
The Juba Monitor's distribution was temporarily copies of the suspect newspaper
were confiscated by national security service persmmel several times. On 16
.fanuar/9, for example, copies were repmtedly confiscated after the publication of
an mticle referring to the 2015 elections. On 24 March, copies were reportedly
''5 In the months prior to the outbreak of conllict the climate fOr freedom of expression in South Sudan had progressive!~
\\Orscncd. With the outbreak or violence on 15 December
~·" rhe J ubn Monitor's distribution was temporarily copies of the suspect newspaper were confiscated by national security service
personnel several times. On \6 .Ianum;
42
confiscated at the Juba airport after arriving from Khmioum where they had been
printed, rep01iedly be African comi on human and people's rights the newspaper
was believed to contain statements critical of the Government. A staff member was
ordered to follow national security service personnel to their offices, where the
papers were held for about three hours before being released after review. The next
day, the human rights division was informed that the national security service had
told media houses that newspapers would be closed if they published miicles that
were condemnatory of the Government or written by four identified opinion
writers who are considered to be critical.
By mid-February, sources repo1ied that only two radio stations 111 Juba were
broadcasting their usual programming due to surveillance and intimidation by
national security service personnel. On 3 March, the Arabic-language newspaper
Al-Maghar Asiysia was rep01iedly suspended by the Ministry of Information
indefinitely on the grounds that it had published false information60, failed to
comply with Government policy, and covered stories on the rebels. Legal efforts to
revoke the suspension have apparently not been successful to date. On 11 March,
numerous media outlets reported that the Minister of Infonnation had warned
journalists in a telephone conversation not to broadcast or publish interviews with
armed opposition Leaders in South Sudanese media. He added that this constituted
although he did not cite a specific legal provision to substantiate the asse1iion. The
measure seems to have been applied retroactively. On 13 March, an international
correspondent was questioned and briefly detained by national security service for
an interview he had conducted with Dr. Machar on 9 February. He was released
60 Nt::ws JXlp~r a!-nwghar aslysia was reportedly suspended by the ministry or information indelinitely on the grounds that it had
published false inCormation
43
after a few hours following pressure from the embassy of the country of his
nationality.
In the case of Botswana government ruling respects the human rights of the Lgbt
commtmity the court ruled today that the Botswana govermnent cannot deny
registration to the Lgbt organization lesbian, gay and bisexual Botswana
(Legabibo )." this decision is a major step forward in the struggle for equality and
human rights in Botswana . we apple to African court on human and people's
rights the Botswana court for recognizing that denying Legabibo the permission to
operate would strip the group's members of their basic rights of freedom or
expression and assembly," said human rights first's Shawn Gaylord. "we urge the
united states and the international community to support the work of African
human rights defenders and civil society organizations, and to press the Botswana
government to take the additional step of repealing its discriminatory laws."
3.6 GENEVA (9 MAY 2014)61
UN High Commissioner for Human Rights Navi Pillay said that a detailed new UN
report describing gross violations of human rights in South Sudan62 "on a massive
scale," including possible war crimes and crimes against humanity, "underscores
the extreme urgency of bringing the conflict to an end." Pillay, who warned of the
gravity of the situation after visiting South Sudan two weeks ago in the company
of the Secretary-General's Special Adviser on the Prevention of Genocide, said
"the united nations mission in the republic of south Sudan* report's detailed
&l Ucneva (9 mav 20 14) 6
J un high com1;1issioncr !Or human rights navi pillar said Friday that a detailed new un report describing gross violations ol'
human rights in south Sudan
44
accounts of ethnic-based mass killings and revenge attacks, including direct and
deliberate murder of civilians, and a litany of other serious violations such as
summary executions, rape and other forms of sexual violence are further proof of
how extraordinarily dangerous the situation in South Sudan has become over the
past five months."
"This report, based on interviews with more than 900 victims, witnesses and
others, illustrates just how quickly a political stmggle within the ruling party was
allowed or even encouraged to metamorphose into an ethnic-based conflict of the
most lethal sort," Pillay said. "In the process, it revealed many of the structural
weaknesses and leadership flaws that have been undermining democracy and rule
or law in the world's youngest State. As former President of the International
Criminal Tribunal for Rwanda, I recognize in this account many of the precursors
of genocide: hate media including calls to rape women of a pmticular ethnic group;
attacks on civilians in hospitals, churches and mosques; even attacks on people
sheltering in UN compounds all on the basis of the victims' ethnicity."
"Similarly, it is not credible that Dr. Machar does not know which of his
commanders instigated and led the mass killing of several hundred civilians in the
mosque, hospital, market and other locations in Bentiu on 15 April. And
unfortunately these are only two of the many examples of the killing of civilians
and other grave violations described in this report."
45
3.7 Documents on Human Rights Situation in south Sudan
The Council has before it the report of the Special Rappotieur on the situation of
human rights in the Sudan, Sima Samar 63(A!HRC/9/13 and Add.l), which covers
the period from January to July 2008 and reflects the findings of the Special
Rapporteur's two visits to Sudan during that time. The repo1i begins with an
overview of the general situation, including the international legal framework, the
national framework, institutions and reforms. The report then briefly highlights the
most significant events that have occurred during the review period, region by
regwn.
The report finds that, despite some steps by the Government of Sudan principally
in the area of law reform, the human rights situation on the ground remains grim,
with many interlocutors even repmiing an overall deterioration in the country.
!-Iuman rights violations and breaches of humanitarian law continue to be
committed by all pmiies. In numerous incidents including land and air attacks by
Govemment forces on civilians in Darfur; the 10 May Justice and Equality
Movement attack on Omdurman64 several serious incidents in Darfur, including the
1 2 May Central Reserve Police attack on Tawilla; the fighting in Abyei in May
between the Sudan Armed Forces and the Sudan People's Liberation Army all
entailed reports of serious violations being committed by all the pmiies to the
conflict.
It is essential that impmiial, transparent and comprehensive inquiries be held to
investigate allegations, identifY perpetrators and hold them accountable. The
63 The Council has before it the report of the Special Rapporteur on the situation of human rights in the Sudan, Sima Samar
'"1 The 10 ivlay Justice and Equality Movement attack on Omdurman59 several serious incidents in Darfur,
46
Special Reporter reiterates her request that the Government of National Unity and
the Government of Southern Sudan make the repotis of investigative committee's
public in order to combat impunity and promote the rule of law. A final section
includes recommendations addressed to all actors.
An addendum contains the report prepared by the Special Rep01ier on the situation
of human rights in the Sudan on the status of implementation of the
recommendations compiled by the Group of Expe1is mandated by the Human
Rights Council in resolution 4/8 to the Government of the Sudan for the
implementation of Human Rights Council resolution 4/8 pursuant to Human Rights
Council resolution 6/34, which concludes that certain recommendations have been
implemented; first steps towards implementation of certain other recommendations
have been taken; and still other recommendations remain, for the present time,
without implementation. Human Rights Council resolution 6/34, which concludes
that certain recommendations have been implemented; first steps towards
implementation of certain other recommendations have been taken; and still other
recommendations remain, for the present time, without implementation65
65 60 Human Rights Council resolution 6/34, which concludes that certain recommendations have been implemented; first
steps towards implementation of certain other recommendations have been taken; and still other recommendations remain, for the present time, without implementation
47
CHAPTER FOUR INTRO DUCTION
THE POSSIBLE MEASURES TO AFRICAN COURT ON HUMAN AND
PEOPLE'S RIGHTS IN SOUTH SUDAN SITUATION
4.0 Introduction.
This chapter discussed the possible measures to African court on human and
people's rights in south Sudan situation
4.1 Accountability Measures
Accountability is a condition necessaty to redressing gross human rights violations
and reestablishing the necessary foundation for a society to move forward. For that
reason, international human rights law imposes an affirmative obligation on States
to provide effective accountability measures to redress deliberate, systematic, or
widespread human rights violations66. This obligation is now considered
established in customary international law and is, therefore, binding on South
Sudan.
The minimum requirements for accountability are: 1) the obligation to investigate
allegations of human rights violations and to prosecute and punish those found to
be responsible. Competent, timely, effective, independent, and impartial
investigations are required under international law and are critical to reducing
impunity; 2) the corresponding right of victims and of society at large to the truth
about the circumstances of the human rights violations, including the identity of
perpetrators and instigators. Accountability processes must therefore be transparent
66 lnt~rnation<li human rights law imposes an affirmative obligation on States to provide effective accountability measures to
n::drcss deliberate. systematic. or widespread human rights violations
48
and the outcome should be published in order to fulfill this requirement; and 3) the
right of victims of human rights violations to access effective remedies, including
reparation. 67Reparation goes beyond monetary compensation. If soldiers and other
state security officials are involved, there is also generally believed to be an
obligation to immediately suspend those under investigation from their duties and
to permanently remove those found to have participated in serious violations from
the security forces or, in the case of armed groups, bar them from entering such
forces. Accountability may also include institutional reforms and memorialization.
Full accountability is typically considered as an official and social repudiation of
what happened.
In line with its obligations under international humanitarian law, the law of state
responsibility, and the responsibility to protect, the international community must
support domestic accountability effmis or complement them with other measures
in situations where the state concerned is not willing or able to fulfill its
international obligation in this regard.
4.2 Government accountability
Shortly after the beginning of the conflict in South Sudan, the Government
publicly acknowledged that there were violations, including extra judicial killings
in Juba, and announced that it was establishing several committees to investigate.
On 2 January, it was announced that the Sudan people's liberation army was
creating two investigation committees: one to inquire into the killing of innocent
civilians and the other to examine the African comi on human and people's rights
of the divisions and fighting within the Presidential Guard that sparked the conflict.
("The right or victims or human rights violations to access effective remedies. including reparation.
49
Subsequentll8, United Nations mission m the republic of south Sudan was
informed that the Sudan people's liberation army chief of General Staff had in
January established a five member investigation committee, under the leadership of
a Brigadier General, to examine and repo1i on abuses committed by state security
personnel in Juba since 15 December.
On 11 January, the Minister of Foreign Affairs announced that the Government
had formed an eight-person Human Rights Abuses Investigation Committee led by
Justice John Wol Mackec69, a former Chief Justice of the Supreme Comi of South
Sudan, with the mandate to investigate human rights abuses allegedly committed in
South Sudan from 15 December through the period of the conflict in Juba, Jonglei,
Unity, and Upper Nile States. To united nations mission in the republic of south
Sudan' knowledge, no other documents have been released about this committee,
and united nations mission in the republic of south Sudan has not been able to
gather any information about the membership of the Committee, the scope of its
mandate, or how it intends to execute its mandate, etc. A month and a half later, on
24 February, in reaction to the issuance of the United Nations mission in the
republic of south Sudan Interim
Report on Human Rights, the Minister of Foreign Affairs announced that a
Government investigation committee was expected to present its findings to the
68 January. it wns announced that the Sudan people's liberation army was creating two investigation committees: one to inquire
into the killing or innocent civilians and the other to examine the African court on human and people's rightists or the divisions
and fighting within the Presidential Guard that sparked the conOict. Subsequently
69 On II January. the Minister of Foreign Aflbirs announced that the Government had lbrmed an eight-person Humnn Rights Abuses lll\estigation Committee led by h1stice John \Vol Mackec
so
President within 45 days. The report in question has not yet been publicly released
and there is no fmiher official information on when it will be issued.
On 27 January, local media reported that the Inspector-General of the south Sudan
national police service had established a five-member committee to investigate
killings of civilians in Juba70. According to a senior south Sudan national police
service official whom united nations mission in the republic of south Sudan met in
connection with this report, this committee is investigating the role of the police in
the events in December and was mandated to examine all allegations against the
police and repmi to the Inspector-General. The south Sudan national police service
committee was apparently initially given 30 days to complete its work but this was
extended for a further 30 days, which has now expired. United Nations mission in
the republic of south Sudan was informed that the Committee has completed its
work and was finalizing its report.
In February, the Ministry of Justice informed United Nations mtsston 111 the
republic of south Sudan that it had commenced an ex-officio investigation into
atrocities committed in Juba, including human rights violations committed against
lDPs in United Nations mission in the republic of south Sudan Protection of
Civilians sites. There is no further information about this investigation.
Additionally, at the end of February, the Government reported the arrest or
approximately I 00 individuals in connection with the targeted killings that
occurred in Juba in the early days of the conflict. Little information has been
provided about the identities of the detainees, the nature of the investigations, or
the charges that are being brought against them. At the same time, however, media
70 On 27 January. local media n::ported that the lnspector~General of the south sudan national police service had established a liHo:-member committee to investigate killings or civilians in Juba
51
reports conveyed information reportedly from the Government that many detainees
held in relation to the crisis escaped on March during the intra-Sudan people's
liberation army clashes over salary payments. United Nations mission in the
republic of south Sudan was unable to obtain clarification on this issue. Finally,
United Nations mission in the republic of south Sudan has learned of a few cases
of violations committed during the crisis that are being adjudicated through the
criminal and military justice systems.
At the regional level, the Peace and Security Council of the African Union called
for the creation of a commission of inquiry to "the investigate t during the armed
conflict in South Sudan and make recommendations on the best ways and means to
ensure accountability, reconciliation and healing among December. On 7 March,
the African Union announced the formation of a five-member commission of
inquiry headed by former Nigerian President Olusegun Obasanjo.71 As described
above, there is limited public information about the various investigation tracks
and if there are any linkages among them. Moreover, there is a great deal of
confusion about the status of those who may have been apprehended or are under
investigation in connection with human rights violations. It is therefore difficult to
assess the seriousness and effectiveness of accountability measures announced by
the Government.
In an effort to seek information, the human rights division met with in Sudan
people's liberation army committee on 22 February and was informed that the
committee is a fact finding investigation team drawn from different segments of
'1
< )n 7 March. the Al'ricnn Union announced the formation of a five-member commission of inquiry headed by former Nigerian
President Oluscgun Obasanjo
52
the security forces, notably the, Sudan people's liberation army national security
service, South Sudan National Police Service military intelligence, and military
justice, and is tasked to investigate allegations of abuses perpetrated by persom1el
of all the security forces. It does not have the power to prosecute. No information
was provided concerning the types of incidents or the number and identity of the
persons under investigation. Apparently the committee finalized a report in mid
february after interviewing 50 witnesses and presented its report the Sudan
people's liberation army Chief of General Staff. The report has neither been
provided to United Nations mission in the republic of south Sudan nor made
public.
On 26 February, the human rights division wrote to the Sudan people's liberation
army chief of General Staff requesting position on specific incidents alleged in the
United Nations mission in the republic of south Sudan interim Rep01i on human
rights. No response has been received as of the time of writing. Subsequently, in
April, United Nations mission in the republic of south Sudan met with a Sudan
people's liberation army official who confirmed that the Sudan people's liberation
army had established two committees: one to investigate the root African court on
human and people's rightists of the conflict and the other to investigate human
rights violations. Both committees had finalized and submitted their repotis to the
Chief of General Staff. The Sudan people's liberation army official declined to
elaborate on the findings of either rep01i and said he would consult with military
leadership whether to share the rep01i. United Nations mission in the republic of
south Sudan had not received any feedback at the time ofthis rep01i.
The Sudan people's liberation army official also advised that the chief of general
staff had issued an order convening a general court martial, presumably to try those
implicated in the report of the investigations committee. united nations mission in
53
the republic of south Sudan has received a copy of a convening order, dated 23
January 2014, from the office of the chief of general staff forming a "general sic]
of court panel of seven marshal ( 1) officers for the trial[ of all Sudan people's
liberation army soldiers and officers who are currently under detention and who
may be arrested." the coven order refers to "the rampant lootings in and juba and
other the fare as of south by Sudan people's liberation army so, following the
incident of the 15 111 and 16111 December 2013 in Juba". It does not mention other
violations Such as killings.
United Nations mission 111 the Republic of south Sudan would therefore
recommend that the national process be complemented by international assistance
through a special or hybrid court. 72Consideration may also be given to
international assistance to pursue serious and independent investigations. Such
participation would also help to ensure that all parties to the conflict are held
accountable. By working side by side with South Sudanese institutions and experts,
the confidence and the capacity of national institutions would be enhanced and real
accountability could be achieved.
4.3 The appi"Opriate 1·ecommendation to Afdcan court on human and people's
rights in south Sudan.
Understanding the relationship between human rights. African court on human and
people's rights are advised to build human rights regimes. In this regard, the organs
and institutions of the Communities will be dedicated to the promotion and
protection of human rights. Thus, the protection of human rights at the African
,, · South Sudan war.
54
court on human and people's rights strengthens and assists the national human
rights system as well as the continental human rights system.
The East African Court of Justice Jurisdiction on human rights is subject to a
respective protocol, which has not yet been adopted73. On 7 March, the African
un'ion announced the formation of a five-member commission of inquiry headed
by former Nigerian President Olusegun Obasanjo ence, the promise in Article
27(2)74 of EAC Treaty should be realized. This is crucial to the upholding,
enforcement and realization of human rights within the community and the
effective integration of the Community.
73 The East Arrican Court or Justice Jurisdiction on human rights is su~ject to a respective protocoL which has not yet been
adopted 74 Article 27(2)69 of EAC Treaty should be realized
55
CHAPTER FIVE INTRODUCTION
SUMMARY, CONCLUSIONS AND RECOMMENDATIONS OF THE
STUDY FINDINGS
5.0 Introduction
This chapter discuses the summary, conclusions and recommendations of the study
findings
5.1 Summary of findings
The African court on human and people's rights has been provided with the
relevant architecture In order to perform its obligations. As demonstrated in
previous chapters, the maintenance of national and international peace and security
is one of the most important obligations of the African court on human and
people's rights. Kindiki has criticized the failure of the African court on human
and people's rights act to assign precise human rights functions to the nine organs
that it established. Kindiki's view suggests that, although they are clearly protected
as a human right, peace and security are rarely dealt with as such. In fact, there is a
peace and security aspect in the tasks given by the African court on human and
people's rights act to some of its organs.75 In this regard, the assembly is in charge
of directing the executive council in the 'management of conflicts, war and other
emergency situation and the restoration of peace'. 76 This task involves de jure the
executive council in conflict management. The latter is also in charge of
humanitarian action.77 The other organs to which the African court on human and
'~ Art ide 5.1 of the African court on human and people's rights act has created nine permanent organs. however. it assign:;
de lined functions only to lOur or them. which are the assembly. the executive council, the permanent representative commitlcc
and the specialized technical committees. 16 Aniclc 9.\(g) African court on human and people's rights act. 11 Article 13.1 (e) Ali·ican court on human and people's rights act.
56
people's rights Act has given clear tasks have mainly functions that consist of
supporting the Assembly and the Executive Council by performing administrative
activities. 78
As the African Commission has already done, the upcoming African Court could
play a more effective role by addressing peace and security as a human right in a
proper legal manner, particularly by making clear remedies in case of violation.
African court on human and people's rights played a critical political and security
role in South Sudan where the LJNSC would not act decisively. In deploying
AMISS and leading the political negotiations, the African court on human and
people's rights signed its willingness to promote its peace and security agenda.
AMISS helped improve the security situation, albeit with a limited presence and a
weak mandate.79 In 2004, the African comi on human and people's rights obtained
a Mandate to monitor the ceasefire and protect civilians in South Sudan this
mandate was derived from the N'djamena Humanitarian Ceasefire Agreement.~0
This agreement allowed the African court on human and people's rights to dispatch
ceasefire monitors and subsequently a force to provide protection for those
monitors and any civilian in the immediate vicinity of its operations. 81 The African
court on human and people's right's presence in South Sudan to a limited extent
played a vital role in protecting civilians.
18 The Specialized and Technical Committees are empowered with the missions of preparing projects, following up decisions and
other administrative missions. The Permanent Representatives Committee has to prepare the meetings or the Executive Council
and to work on its instructions. 19 105 (n62 above) at 50.
so A. De Weal. 'Darfur and the Failure of' the Responsibility to Protect', (2007) The Royal Institute of International AtTnirs Vol
81 Kag\'<lllja (n 102 abo\ e).
57
5.2 Conclusion
The realization of human rights is prerequisite for the pursuit of effectiveness of
the African court on human and people's rights in different regions of the
continent, and ultimately to establish the African Common Market. This is due to
the fact that there is an organic relationship between human rights and regional
economic integration. Thus, it is not possible to build sustainable economic
integration without guaranteeing human rights. Considering the importance of
human rights for the realization of an effectiveness of the Afi-ican court on human
people's rights incorporated human rights provisions in their Constitutive Treaties
and subsidiary legal instruments. In this regard, the Treaties of EAC, constitute
provisions on human rights and provisions relating to human rights. Further, there
is an increasing pattern of adopting conventions and protocols on human rights and
makes reference to continental and international human rights instruments. Such
provisions form part of the fundamental principles of the respective Communities,
where each partner state must act in accordance with the principles. However,
human rights are not accorded an equally significant place in all the regional
arrangements.
Having established the legal fi·amework for the realization of human rights, the
organs and institutions of African comi on human and people's rights involve in
the promotion and protection of human rights. Among the recognized African
court on human and people's rights, IGAD and CEN-SAD do not have Courts of
justice even in their Constitutive Treaties82. The Courts of Justice of African court
on human and people's rights are not in operation though they are main organs of
the respective Communities. The Court of Justice of African comi on human and
82 Of courts ofjustice of AFCHPR.
58
people's rights does not yet hear cases on human rights even though it has potential
legal basis to hear such cases. The EAC Court of Justice is denied to hear cases of
human rights unless a respective protocol that African court on human and
people's rights authorizes to do so is adopted. The Courts of the rest of
Communities are entertaining cases concerning violations of human rights. This is
especially important in the judicial sector where the practices of the African court
on human and people's rights Comi of Justice and the SADC Tribunal83are greater
in relation to the protection of rights. Both of these Regional Courts exercise
competence over human rights matters .
.Judicial protection of rights through the Regional Comis is best alternative due to
ease access to individuals. On the one hand, Regional Courts allow direct
individual access before the Courts, and on the other hand, the physical or
geographical access of the Comis to litigants since both the Comi of African court
on human and people's rights and the Tribunal of SADC hear cases in the
territories of member states wherever the Court/Tribunal considers it necessary.
Further, unlike the African Court of Human Rights, Regional CoU!iS serve on a
full- time basis. The optional nature of individual access before the African Court
makes the Regional Courts more attractive.
The African court on human and people's rights differs from the Tribunal or
SADC fi·om their nature of normative basis and structural framework. The African
court on human and people's rights granted express human rights mandate to
exercise competence over human rights cases committed with in the territories of
member states. Furthermore, the admissibility requirement is silent on the African
court on human and people's rights of all available local remedies. With respect to
33 African court on human and peoples rights Court or Justice and the SADC Tribunal
59
the human rights competence of the SADC Tribunal, it does not have an express
mandate to determine cases of violations of human rights. However, the combined
readings of articles 14 and 15 of the protoco184, with Article 4(c) of the Treat/5
,
grant the Tribunal to exercise human rights jurisdiction. What makes the Tribunal
differ from the African court on human and people's rights Court of Justice is that
the former, like many other international judicial and quasi-judicial organs, it
requires the African court on human and people's rights of all available national
remedies.
The competence over human rights matters of the Regional Comis creates
overlapping jurisdiction with the continental human rights institutions particularly
the Afl·ican Court of Human Rights. Fmiher, the proliferation of judicial
institutions has also negative impact on the legal integration of the continent. The
Regional Courts and the continental Court interpret the African Chmier, which is
potential risk due to the possibility of divergent interpretations of the same
normative source. These problems can be solved with the adoption of cooperative
arrangements between the Regional Courts and the African Court of Human
Rights.
g.] ;\nicks 14 and 15 or the protocol Bs Article .I( c) of the Trent)
60
5.3 RECOMMENDATIONS
To the Government of Sudan
Submit and present its overdue State Repotis to the African Commission,
providing enough information on the situation of the rights of Women in the
country;
Ensure that the application of Sharia Law is in conformity with international
regulations relative to Women's Rights in Sudan; Ensure that Sharia law is not
imposed on non-Muslim Women; To ensure that the laws, notably the Code de Ia
Famille (Family Law), is in conformity with the international regulations relative
to Women's Rights;
Ensure that the right to the freedom of worship is respected in Sudan; Establish a
partnership with NGOs working in field of Women's Rights for the exchange of
views, given the diversity and divergences of opinion noted by the mission while
discussing with Government African comi on human and people's rights
authorities and NGOs; Take action with a view to abolishing the death penalty,
given that it has not been enforced in the country for a long time; Eliminate the
discriminatory practice compelling Women to present African court on human and
people's rights authorization from their husbands before travelling abroad;
Ensure the equal and indiscriminate access of men and Women to employment;
Create a specific program for the dissemination of the fundamental rights of
Women in Sudan; In collaboration with Women's Associations, elaborate policies
aimed at eliminating all forms of discriminatory practices and raising awareness
61
among Women and combating all harmful habits, practices and traditional beliefs;
Integrate in the existing Action Plan for the promotion of Women's Affairs, a
holistic perspective which will take into account the pmiicipation of civil society
organizations, in particular Women's Organizations; Put in place mechanisms for
collaboration with civil society including Women's Organizations, in policies and
strategies relative to the development of Women's Affairs; Establish a system for
the monitoring and evaluation of this Action Plan with the assistance ofNGOs and
other civil society organizations; Introduce a system for the coordination of the
activities of Governmental institutions in the area of promotion and protection of
women's Rights in Sudan.
To put in place a Working Group composed of Government Institutions including
the Ministry of Health, the Ministry of Education and NGOs working in the field
of Women's Rights with a view to elaborating and implementing a general policy
on gender; Ensure greater access to education for the populations living in the
South and free education for all children including girls; s) Institute corrective and
positive measures in the field of girls' education at both the primary and secondary
levels; Compile statistics on violence against Women; Draw up a national program
for the prevention and control of HIV/AIDS; Develop, together with Women's
Associations, policies aimed at raising awareness among Women and fighting
against all traditionally harmful habits, practices and beliefs; Continue and speed
up the process of ratification of relevant human rights instruments, including the
African Charter on the Rights and Welfare of the Child, the Protocol on the
Establishment of the African Court on Human and People's' Rights, the CEDA W,
etc;
Allocate adequate resources for the Prisons, especially the Women's Prison of
Khartoum in order to improve the conditions of detention in the country; Develop
62
more legal assistance for prisoners, especially for Women pnsoners; Reflect
seriously on and to find a solution to the problem posed by the maintenance in
custody of the prisoners who have served their sentence but do not have money to
pay their fine. This may be done by amending the laws;
To Non Governmental Organizations:
Work closely with the Government of Sudan in order to ensure the promotion and
the protection of Women's Rights in the country. NGOs should also actively
participate by networking, in the promotion and the protection of the rights of
Women at regional and continental levels; Maintain close contact with the African
Commission on Human and People's' Rights, particularly with the Special
Rapporteure on the Rights of Women in Africa so as to inform them about the new
developments occurring in the area of the rights of Women in Sudan; Pay more
attention to the situation of Women in detention so as to provide them, to the
extent possible, with legal and other assistance in order to lessen the burden or
their detention; Use the Communication (Complaint) procedure available at the
African Commission in order to seek redress for human rights violations, should
the need arise; Lobby the Government for the ratification of all pending human
rights instruments, in particular the CEDA W and the Protocol on the Rights or
Women when it is adopted by the Heads of State and Government of the African
Union.
63
REFERENCES
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006/2012. African Commission on Human and People's' Rights v Kenya. order of
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446/13. Williams & Others v Zimbabwe: 45 1/13-452/13. Obi & Others v Nigeria:
452 13. Askouri and Nasr v Sudan.
426112. Uwimana-Nkusi and Mukakibibi v Randa: 419112. The indigenous
people's of the Ioer Omo v Ethiopia: 3 89/10. Mbiankeu v Camercon: 392/10.
Muhayeyezu Randa:
408/1 1, Ushiye v DRC: 370/09. Social and Economic Rights Action Centre v
Nigeria.
Para 17.80. 453/13 Rasolovoahangy v Madagascar: 454/13. Ningo v Cameroon:
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Mohamed v Ethiopia: 456/13. Uko v South Africa: 458113. Ngoge v Kenya:
459113. Hurman v Mauritius.
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Judgment in the case ofRSS vs. Emmanuel Dabid Nawa: Case No:
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INTERNATIONAL INSTRUMENTS
African Chmier on Human and People's' Rights ("Banjul Convention")
African Charter on the Rights and Welfare of the Child
Protocol to the African Charter on the Rights of Women
African court on human and people's rights Convention Governing the Specific
Aspects of Refugee Problems in Africa
Convention for the Elimination of Mercenarism in Africa
African Union Convention on the Conservation of Nature and Natural Resources
Bamako Convention on the Ban of the Import of Hazardous Wastes into Africa
African Union Convention on Preventing and Combating Corruption
African comi on human and people's rights Convention on the Prevention and
Combating of Terrorism
African Union Non-Aggression and Common Defence Pact
67
African Chmier on Democracy, Elections and Governance
CASE LAW
In the Matter of African Commission on Human and People's Rights v Great
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Libyan Arab Jamahiriya, App No.00412011
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