NORDEM THEMATIC PAPER series provides an outlet for NORDEM secondees to discuss current practices within areas of their expertise. The authors convey lessons learned and give recommendations for alternative approaches or policy measures. The aim of this series is to enhance the practices of human rights and democratization related field work. The views and opinions expressed in this series are those of the authors and do not necessarily represent or reflect the views of NORDEM. The series is available for downloading (online). NORDEM THEMATIC PAPER series Strengthening justice capacity in South Sudan BY LEIF TOMAS VIK Justice Advisory Officer, Justice Advisory Section, United Nations Mission in the Republic of South Sudan.
LEIF TOMAS VIK Leif Tomas Vik (b. 1976) holds an LL.M in Public International Law and Criminal Justice and a candidatus juris-degree. He is a member of the NORDEM roster and was deployed to UNMISS as Justice Advisory Officer from 2013 to 2014. Previously, he has been a military officer with UNIFIL, UNPREDEP and KFOR. Vik is a former deputy judge and currently works as attorney-at-law in Oslo, Norway. Executive summary The author was employed as a Government Provided Personnel (GPP) and deployed with the United Nations Mission in the Republic of South Sudan (UNMISS) as Justice Advisory Officer in the Justice Advisory Section (JAS) in Northern Bahr el-ghazal (NBEG) state from February 2013 to February 2014. Against the background of the challenges facing capacity-building in general and rule of law in particular in South Sudan, it will be argued that: In order to effectively achieve the goals set for the justice sector development of South Sudan, co-locating UNMISS staff with the Courts and the Public Prosecution can improve existing capacity-building efforts. Capacity-building alone is not enough; material support and funding to improve the conditions for implementing and developing rule of law are necessary supplements. Furthermore, UNMISS needs to focus its work on redressing the systemic obstacles challenging rule of law. Finally, successful implementation of justice sector reforms is dependent on public understanding and support, which may call for improving literacy training. 2
UNMISS justice sector mandate Since the establishment of the United Nations Mission in the Republic of South Sudan in 2011, the mandate has focused on the need to establish rule of law, strengthen ( ) the justice sector and justice sector development. 1 Strengthening rule of law and the justice sector was assigned to the Justice Advisory Section. The section s key expected accomplishments were two-fold: The civil justice capacities of the government shall be strengthened i.a. by development of regulatory frameworks, increased coordination between relevant institutions and increased numbers and capacities of judges, prosecutors and lawyers. Capacity-building as such is barely mentioned in the relevant United Nations Security Council resolutions. 2 Nonetheless, in the author s experience, it was by far the most predominant approach and prevalent instrument applied to achieve UNMISS JAS, mandate. This brief will offer some perspectives on UNMISS fieldwork on justice sector reform. It will be argued that the aims of the international community for the development of rule of law in South Sudan would be more effectively achieved by a different approach to capacity-building, and by supplementing it with material support. Strengthening the capacity of the Republic of South Sudan to end prolonged and/or arbitrary detention. 1 Cf. United Nations Security Council resolution 1996 (2011), reaffirmed i.a. by resolution 2109 (2013). 2 Cf. United Nations Security Council resolutions 1996 (2011) paragraph 18 and 2109 (2013) paragraph 3 and 29. Following the political and security crisis, that broke out with violence in South Sudan s capital Juba on 15 December 2013, the Security Council, by its resolution 2132 (2013), shifted the focus of the Mission from mainly peacebuilding activities, including capacity building of the justice sector, to mainly protection of civilians. JAS was therefore terminated in December 2014. This brief is based on the author s experiences working within the previous mandate of UNMISS and was finalized before the new mandate came into effect. The arguments on capacity building put forward in this brief, however, remain valid for other UN peace keeping missions. 3
Challenges facing UNMISS work in South Sudan Following the liberation from its Anglo- Egyptian colonizers in 1956, the legal system of today s South Sudan was dictated by the Sudanese government in Khartoum i.e. a Shari a law system. Hence, the prominent stakeholders in the legal system of South Sudan are much influenced by their education, experiences and perceptions emanating from Sudan. Preparing South Sudan for a possible independence, the requisite framework for a new statutory legal system was adopted between 2005 to 2011. A criminal law system best described as a common law-based hybrid, with a largely adversarial procedure, was established through the Transitional Constitution of the Republic of South Sudan (2011) and the Code of Criminal Procedure Act (2008). Parallel to this new statutory law system, a system based on customary law exists, in which local tribal chiefs operate as judges applying laws based on cultural norms developed in different structures throughout the country. Numerous challenges are related to this co-existence, particularly with the Traditional Courts exceeding their jurisdiction by adjudicating serious criminal cases and decisions by the chiefs not being appealed to the statutory County Courts. This brief will, however, focus on challenges in the new statutory legal system and capacity-building efforts related to them. The current state of affairs is that rule of law is faced with significant challenges in South Sudan. Illegal detentions are frequent, inhumane treatment is regular in police and prison facilities, and vulnerable groups; women, children and mentally disabled, are still striving for equality before the law. A complex mixture of tradition, culture and an inclination towards reconciliation in fear of conflict escalation outweighs individual rights and maintains a system in which the suspect often is presumed guilty until the complainant and his family can accept otherwise. Judges, prosecutors, police and prison authorities still condone practices that violate the new statutory laws such as tribal chiefs allowing serious rape cases to be settled by the rapist buying his victim as his future wife. Fundamental preconditions for successful implementation and functioning of the new legal system are lacking. Some of these are systemic: Legal aid is insufficient The appeals system is not well functioning The case law registries are inadequate The laws contain numerous contradictions Other logistical and resource deficiencies directly affect the ability of South Sudanese justice sector actors to implement the competence acquired through UNMISS JAS capacity-building. At the time of writing: Both the courts and the public prosecution are severely understaffed and underpaid. In NBEG, only two out of five counties in the state have County Court judges. One county is also lacking public prosecution. The main prison in NBEG state was constructed for 150 people, but currently houses around 500 inmates. In NBEG, the office of the State Legal Administration/ Public Prosecution has only one vehicle, which is not suitable for field trips, especially not in the rainy season. Finally, there is the challenge of an illiterate public s ability to understand the new legal system and the lack of competent lawyers providing advice and representation. These are clear indications that effectively supporting the implementation of rule of law in South Sudan, in keeping with the UNMISS JAS mandate, not only requires improved capacitybuilding efforts. It also requires efforts beyond capacity-building. 4
The current approach to rule of law and justice sector development in South Sudan In general, capacity-building can be described as a process of understanding the needs and potential of relevant local stakeholders and the obstacles they are facing, aimed at improving their overall ability to address policy-related problems. Fundamental elements are helping individuals acquire knowledge and skills, institutions to form organizational structures and sound policies, and the local society to develop a responsive and accountable public administration. Such capacity is expected to enable the recipient whether at national, state or organizational level to effectively meet its goals in a sustainable way. There are several weaknesses in the current approach to justice sector capacity-building conducted by UNMISS JAS: The main priority for the capacity-building conducted by UNMISS JAS is transmission of competence from its staff to the local stakeholders. Activities to that aim are primarily focused on regular (daily/weekly) meetings for monitoring and mentoring, occasional academic lectures and presentations, in addition to some workshops every year. These interactions with the national counterparts are too sporadic, and thus not suitable for building mutual insight and understanding of common goals, potential and challenges. They are also time-consuming and partly done at the expense of the local counterparts ability to perform their regular duties. Furthermore, it is difficult to conceive how strengthening the rule of law in South Sudan can be achieved without adequate numbers of judges and prosecutors throughout the counties, supplied with the requisite offices, materials and logistics. Nonetheless, UNMISS JAS hardly provides any material required to remedy these inadequacies, nor does the mission appear to advocate for such funds from potential donors or from South Sudanese government at national and/or state level. The consequence is that even to the extent that the capacity-building actually results in increased competence, the local stakeholders are still unable to implement change. In this regard, competence alone simply does not suffice. Fundamental systemic deficiencies are also not given the proper priority by UNMISS JAS today: Legal aid remains available only in theory, due to lack of funds and qualified lawyers. Even serious criminal cases, such as murder, are normally conducted without defense counsel present in court. UNMISS JAS does not have available, or advocate significantly for, funds for legal aid and representation. The appeals system is not accessible to the public, as they are not aware of their rights or how to make use of them. Furthermore, the few appeals that are submitted often suffer from severely protracted processing. The importance of the appeals system, particularly the Courts of Appeal and the Supreme Court, should not be underestimated. Not only is it instrumental for the protection of individual legal rights, it is also crucial to the development of the material law, especially in a mainly common law system such as the South Sudanese. Nevertheless, appeal system reforms are not on the agenda of UNMISS JAS today. Case law registries of judgments are not established. This deprives the parties of protection of individual rights established by precedents from the higher courts. It also prevents a uniform application of such rights and leaves the courts at all levels more or less autonomous. UNMISS JAS only conducts sporadic workshops on case law management. In addition, the court administration needs basic materials like paper, pens, folders, storage facilities and literate staff. It is simply not possible to establish adequate case law registries without basics material equipment. 5
Law revision is of critical importance. The current legislation is inadequate and with numerous contradictions. For instance, basic provisions in the Constitution and the Code of Criminal Procedure Act are in conflict. Fundamental issues are not clearly regulated, such as conditions for pre-trial detention and when the accused person is entitled to be presented with criminal charges or brought before a court. Finally, UNMISS targets mainly public officials and the vast majority of the South Sudanese population is left without an understanding of the new legal system and of their individual rights. The justice authorities seem hesitant to implement justice sector reforms without the public s understanding and acceptance. Recommendations: Improving and supplementing the capacity-building efforts Several actors in NBEG e.g. UNPOL, UNDP and USAID/ PROGRESS practice co-location, deploying their staff in offices shared by their local counterparts on a daily basis or on designated days weekly. Co-location should be applied by UNMISS JAS in order to improve the capacity-building efforts. The advantages of co-location are that it facilitates on the spot mentoring and closer relationships of trust and confidence. The local counterparts can get a better understanding of UNMISS JAS mandate and the competence of its staff and the latter can better appreciate the working situation and challenges of the local partners. Such mutual understanding and respect may build an interest in justice sector development, and give this work a much needed momentum with the local community. In order to establish rule of law, capacity-building alone will not do. The local stakeholders ability to implement reforms in the justice sector needs to be strengthened by providing material support and funding on an enlarged scale. The number of judges and public prosecutors must be significantly increased. In addition the infrastructure and logistics must be strengthened by adequate facilities, equipment and means of transport. Even if UNMISS JAS is co-located and the requisite material support is provided, South Sudanese justice authorities will still be in need of capacity-building support from UNMISS JAS in order to redress systemic obstacles. The justice authorities need training and support in i.a. providing legal aid, establishing case law registries, expeditious law review and administering appeals systems. Close mentoring during the implementation is recommended. Furthermore, the population is also in need of knowledge about their legal rights and understanding of the new statutory legal system in general. Literacy training should be a pivotal part of facilitating the requisite civic education. Justice sector reforms require public support, and winning the hearts and minds of the public over to the new legal system without distribution of written materials will be extremely challenging. 6
Conclusions UNMISS JAS is working to strengthen rule of law in South Sudan by developing and strengthening the justice sector. In doing so, capacity-building, i.e. developing the competence of the national actors, has been the favored means. However, the capacity-building efforts have to be improved, as does the ability of the South Sudanese government to implement necessary justice sector reforms, by: co-locating UNMISS JAS with local stakeholders; providing substantial material support and/or funding, for staffing, infrastructure and logistics, and to rectify systemic obstacles to a functioning legal system and rule of law; placing the emphasis of UNMISS JAS capacitybuilding on legal aid, case law registries, law review, the appeals system, and public support through understanding; and conducting literacy training with the adult population to facilitate awareness raising through distribution of written information. 7
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