A newsletter by the South Sudan Law Society (SSLS)
Trauma, Healing and the Pursuit of Durable Peace in South Sudan.................................... 2
By Belkys Lopez
Man-made Barriers to Justice in South Sudan............................................................................... 4
By Wani Mattias
The Plight of IDPs in South Sudan........................................................................................................ 7
By Priscilla Nyagoah
Duties and Responsibilities of a Bar Association.......................................................................... 9
By John Clement Kuc
About the SSLS........................................................................................................................................... 11
It is my pleasure to share with you a revival of the SSLS’s newsletter, Peace and Justice. During the 22-year north-south civil war in Sudan, the SSLS published a periodic newsletter entitled Peace and Justice to bring attention to the very serious concerns of human rights and rule of law in the war-torn country. Now, some 20 years later, South Sudan again finds itself embroiled in a brutal conflict. We have decided to revive this newsletter to provide a forum for opinion shapers to contribute ideas on how to promote sustainable peace with justice in South Sudan. After all, peace without justice is little more than a temporary respite from war.
The four articles in this edition provide a glimpse into the pain and suffering that conflict has caused to the people of South Sudan and the challenges that the Government of South Sudan faces in establishing a functional justice system. Belkys Lopez’s piece on the legacy of unaddressed trauma highlights the role of post-traumatic stress disorder (PTSD) and mental health issues in aggravating conflict. My article examining barriers to justice shares some observations from my years of service as a lawyer and activist in South Sudan. Priscilla Nyagoah provides insights from research that she conducted with internally displaced persons (IDPs) in Juba. John Clement Kuc, the chairperson of the SSLS and former court of appeals judge for Greater Upper Nile region, offers an overview of key duties and responsibilities to guide the fledgling South Sudan Bar Association in its efforts to provide oversight and regulation for the legal profession.
I hope that the readers of this newsletter are able to draw useful lessons from the experiences and insights of our contributors. We at the SSLS will do our best to continue to provide you with such information and analysis as we struggle to bring durable peace to our young nation.
Wani Mattias Jumi
South Sudan Law Society (SSLS)
Trauma, Healing and the Pursuit of Durable Peace in South Sudan
After the signing of the Comprehensive Peace Agreement in 2005, attempts to support post-conflict reconstruction efforts in South Sudan largely ignored the influence of trauma on social cohesion and security. Attempts to create a national identity struggled to overcome serious hurdles associated with inter-communal distrust and anger. Moving forward, efforts at conflict transformation will need to account for trauma as an obstacle to security, justice, reconciliation and the overall wellbeing of the people.
The fighting that erupted in Juba on December 15, 2013 may have been triggered by a political dispute among the nation’s top leaders, but the violence it sparked in the wider population cannot be solely explained by the political differences of the elite. The trauma with which the people of South Sudan grapple on a daily basis is rooted in many decades of civil war. At present, the priority in South Sudan is the cessation of hostilities and securing a political settlement, but for peace to be sustained in the long-term, the warring parties will need to commit to a process of reconciliation and healing.
Reconciliation is a long and arduous undertaking. According to a 2004 study (Pham et al.) on trauma in Rwanda, essential elements for reconciliation include a sense of a shared future and interdependence in the affected society, a belief in nonviolent measures for resolution of conflict, and a promotion of justice and a rule of law. A study by Ervin Staub et al. (2005) describes reconciliation as a mutual acceptance of formerly hostile groups with a degree of forgiveness. Reconciliation and forgiveness are concepts with varied interpretations but on a fundamental level involve letting go of a desire for revenge. The transition from war to reconciliation demands that leaders and the public step away from anger so that they may come to a nuanced understanding of the conflict. This means that at some point opposing parties begin to view the conflict from a perspective other than their own. For the affected population, trauma symptoms are an obstacle to the cognitive shift that needs to occur in reconciliation.
A natural consequence of exposure to violence is symptoms associated with post-traumatic stress disorder (PTSD). These symptoms include intrusive memories, avoidance of people or discussion of traumatic events, negative moods, anger and aggressive behavior. Symptoms vary in the degree of severity. Some individuals may only exhibit a few of these symptoms without the full range experienced in PTSD. The expression of these symptoms among individuals in unstable environments is a normal occurrence and the appearance of symptomatic behavior should not be stigmatized.
In Non Killing Psychology, psychologist Rachel Macnair (2012) observes that PTSD symptoms such as detachment from others, emotional numbness and angry flare-ups can predispose a sufferer to reasoning that validates violence against rivals. Perpetrators may adopt moral justifications where victims are dehumanized and blamed for the crimes committed against them. Within this dynamic a criminal act is transformed into a noble deed. The diminished ability to think critically is another trauma symptom, which restricts a person’s capacity to challenge ill-gotten notions of the enemy and can result in oversimplified views that ignore the complex aspects of conflict and one’s own culpability. Weakened higher-order thinking skills and dissociation play a part in groupthink and war hysteria, Macnair suggests.
The mental distortions individuals suffer from trauma or PTSD can influence their interpretations of truth and justice. Even under healthy circumstances, the truth is often perceived in a way that demonstrates bias for one’s community, ethnic or political group. Add trauma and the notion of truth is further complicated.
In South Sudan, as in other conflict zones, the discussion regarding combatants often centers on the need for accountability, without taking into account the likelihood that perpetrators in most instances were once victimized themselves. Since the nation is heavily militarized, understanding the conditions of combatants and the stress of war on fighters is critical. There needs to be more of a recognition of the fact that killing does not come naturally as it challenges the inherent nature of human beings (Grossman, 2012). Combatants may suffer from PTSD when they are unable to reconcile the contradictions of their nature and moral beliefs with the act of killing. Nevertheless trauma in soldiers manifests in many ways including as an addiction to combat. A fighter who experiences an adrenaline rush during a killing may continue to seek the high. Unfortunately healing from combat trauma is a more difficult process as fighters are often reluctant or not allowed to share their experiences.
An untold number of people have already died in the current conflict and large segments of the population remain displaced living in squalid conditions. Armed groups have conscripted thousands of children and there is a high prevalence of rape and sexual violence. The rate of PTSD most likely reflects the grim realities facing the nation. Trauma among large percentages of the population is destabilizing and needs to be addressed urgently. Now is the time to raise awareness and invest in interventions that build resilience and help heal sufferers as a central component of conflict transformation and reconciliation efforts.
* Belkys López is an independent researcher and consultant focused on peacebuilding and governance. In 2013, she co-authored a report on the impact of trauma and PTSD on conflict-affected populations in Abyei, entitled, Stabilizing Abyei: Trauma and the Economic Challenges to Peace.
Rachel M. MacNair, ‘Psychology of Nonkilling’, in Daniel J. Christie and Joám Evans Pim (eds.), Non-Killing Psychology, Center for Global Nonkilling (2012), available at http://www.nonkilling.org/pdf/nkpsy.pdf.
Man-made Barriers to Justice in South Sudan
Wani Mathias Jumi*
The law is a fundamental tool for all human beings to access justice. An individual who is aggrieved has the right of recourse through the courts of law to redress complaints against an individual, government or an organization. Unfortunately, legal and institutional bureaucracy has been the worst kind of hindrance to accessing justice in South Sudan. In my opinion, access to justice must go beyond the courtroom. It must extend and rest with the final handing down of a sound and well-reasoned judgment such that all parties recognize that a competent court has spoken.
One will not understand the burden and pain criminal suspects undergo throughout the criminal justice process unless one identifies with the suspects or becomes a suspect himself. The role of a public prosecutor is not to secure a conviction of an accused person at all costs. Rather, the prosecution must ensure that the rights of the accused and the rights of the victim and the victim’s relatives are balanced, until the court pronounces its verdict as provided by the facts, evidence and the law. The prosecution does this by ensuring that arrests and interrogations are conducted in accordance with legal procedures. The state attorneys must ensure that the police investigators are supervised closely during investigations, and that they are directed to look for particular evidence if gaps exist in the investigation process. Guidance from state attorneys ensures the integrity and relevance of the evidence that the attorney must use to form an opinion whether to sanction the file, to go to court for the prosecution of the accused, or to refuse to institute criminal proceedings.
Barriers to Justice in the Courts
In South Sudan, oftentimes the whole investigation process is compromised through corruption and insubordination. Even in the court, it is manifested through loss of files caused by clerks and police. In a serious case of alleged burglary from a forex bureau, for which my clients were denied bail, I had to threaten the court police officer who handled the criminal file with criminal proceedings for deliberately hiding important evidence raised during my cross-examination of a prosecution witness. The police officer’s luck ran out when she discovered that she was dealing with a no-nonsense advocate who minds nothing other than justice for his clients. This action prompted the court to be uneasy, because I was ready to press charges against the policewoman and to bring the whole thing up in the media. I was not surprised in the next session when the missing pages were found. Thank God my clients were later acquitted. I can’t imagine what would have happened if they were not represented by an advocate.
Being a lawyer involved in serious criminal and human rights cases and a frequent visitor to the police cells, I would have better days in court if my client were quickly produced for hearings. The pre-trial experience of every suspect is enough to write a book about serious human rights abuses in the hands of the police and a lack of supervision by prosecution attorneys. Police investigators have in most cases usurped the powers of the public prosecution attorneys by presenting themselves as people who know the law, the ones in control of investigations, and above all, the ones holding the guns.
It was a nasty experience when I was denied access to speak to my client, who the police and the prosecutors believed to have killed the deceased. “You cannot see him even if he is a white man,” they said. “Go and bring an authorization letter from the prosecution attorney for you to enter the police cell to speak to your client,” the young policeman happily brandishing his gun at the gate echoed. I followed his instructions with a lot of pain thinking about where the country is headed, but consoled myself with a verse from the biblical text, where Jesus said, “Forgive them Father, for they don’t know what they are doing.”
I couldn’t refer to the law that I have the right to go to the police cell and speak to my client because he was a policeman who will have to struggle for 100 years to understand the simple human rights provisions in the law. My heart and tears went to the poor taxpayers for the money paid to members of parliament to pass these laws that are not only understood but also not respected by those who are supposed to implement them. I began to ask so many questions: Why are my friends in the Directorate of Legislation in the Ministry of Justice drafting laws and the members of parliament passing them when these laws are not being respected? Why recruit uneducated personnel to implement written laws when they cannot read them? Maybe we don’t need laws at this moment? I was inevitably reduced to a monologue answering my own questions.
I went to meet with an attorney at the station and fortunately, there was one whom I had supervised seven years ago in a capacity-building training. My temperature went down to normal 37 degrees believing that she would either accompany me to the cell to speak to my client or give instructions to the policeman at the gate to allow me to access my client. To my shock and disbelief, she told me point blank that my client was guilty of murder and didn’t deserve a visit. I began to ask myself several questions trying to understand whether I read my law wrongly, since this lady was educated from Khartoum. Did she understand the provisions of the Criminal Procedure Act of 2009, which I trained her on back in 2008? Does she know that my client has the right to speak to his lawyer under the Constitution and the Criminal Procedure Act, which is her Bible? My temperature rose beyond imagination.
I composed myself and brushed her aside and instead spoke to her other colleague who understood my explanation of the poor health of the client to whom I wanted to speak. He wrote for me a letter addressed to the policeman manning the gate, instructing him to allow me speak to my client for about an hour. I took the letter to the uneducated policeman who looked at it. He of course couldn’t understand the contents and straight away told me, “Who is a public prosecution attorney, a civilian, to direct me in my work?” I left the station immediately.
Legacies of Injustice
It is unfair, painful and unacceptable for a citizen who has faced several political, social, cultural, economic and psychological barriers at every stage of the justice chain to be broken down at the temples of hope. When the courts issue bad judgments on matters of fundamental human rights to litigants who do not have legal representation and know nothing about their rights, often the parties walk away believing that the judgment was correct.
I watched in disbelief as a judge ordered a pregnant woman who conceived in adultery to go to her former husband whom she left a year ago because of being subjected to domestic violence. Even when the woman refused before the court to stay as wife to her estranged husband, and despite the fact that the man who was accused of committing the adultery was the biological father of the child in the womb and agreed to pay the bride price and take the woman as his wife, the judge instead used both the written law and the customary law of the parties to sentence both the woman and her lover to three years in jail, made the male convict pay seven cows to the complainant, forced the woman to go back to the complainant after serving her jail term, and allowed the complainant to take custody of the child to be born.
The worst and most painful barriers to access to justice in South Sudan lie in the institutions and the people who run them. There are many people who have been convicted and are serving sentences for offences they have not committed even if others would argue that there was access to justice because one was tried before a court and convicted. Access to justice goes beyond reaching the court but must end with a sound and fair judgment for one to be said to have accessed justice. It is time for lawyers to be resolute and fix some of these abuses by police and the courts by working together and challenging the arbitrariness of our justice sector institutions.
* Wani Jumi Mattias is the Secretary-General of the South Sudan Law Society (SSLS).
The Plight of IDPs in South Sudan
“I came here on 16 December. I lived in Thuuk Jebel… The home I was living in is destroyed. They took all my property. The chairs are gone, the tables...everything. I am living here alone. My children were in Nasir and have now gone to Ethiopia. I have nothing here... I only live on what UN gives me…”
- Gatkuoth, Resident of UN PoC site in Juba
Like many others who have been displaced by the mid-December 2013 conflict, Gatkuoth** has been sheltering in a UN protection of civilian (PoC) site for close to a year now. In addition to those in UN PoC sites, there are also hundreds of thousands of internally displaced persons (IDPs) who are being hosted by local communities and many more that are inaccessible and invisible in the bush. UN OCHA (2014) estimates that 1.7 million people have been displaced by the conflict, including close to 500,000 that have fled to neighboring countries for refuge. Camps all over the country are congested and the conditions are bleak, depressing and undignified.
According to the Analytical Report of the Secretary-General on Internally Displaced Persons (1992), IDPs are, “persons who have been forced to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border.”
The current conflict has contributed to a sharp rise in the number of IDPs, but this is not the first time that South Sudan has been confronted with this issue. The period between 2011 and 2013 also saw a surge in IDPs, owing to tribal conflicts, rebellions, counter-insurgencies, natural disasters, evictions from development projects and returnees from Sudan and other neighboring countries who did not have places to stay. As noted by the Special Rapporteur on the human rights of IDPs, it is difficult to identify who an IDP is in South Sudan (2013). Some conditions of displacement have been recurrent resulting in long-term and protracted displacement. There is therefore need for a profiling exercise and an assessment of IDPs on a needs-rights basis.
Repatriation Packages: A Necessary Tool for Reconstruction
Returning IDPs to their homes can be a long and complicated process that relies heavily on interim arrangements. These arrangements should however be durable and effective and should form part of the transitional agenda. IDPs should not be pressured or induced to return to their homes. They should be allowed to return home voluntarily when they perceive that the factors causing their displacement have diminished. Security arrangements will be critical to the success of the repatriation process. Already there are allegations that persons who returned to their homes have been killed or suffered other forms of violence. Incidents such as these do not inspire confidence.
In addition, returnees have to be provided with a return package that meets their basic needs and helps them to reconstruct their livelihoods. This package has to be determined through a proper assessment of what is sufficient by consulting IDPs and relevant experts. Following the 2007-08 post-election violence in Kenya, for example, returnees were offered about $300, which proved grossly insufficient. In South Sudan, past government policy towards returnees required them to be repatriated to their home areas where they were to be given land. This was impractical and unfair, especially in areas where major towns are the epicenters of trade and economy. The current conflict has collapsed the state fabric, caused massive looting and destruction of property, and has pitted ethnic groups against each other. Any repatriation efforts have to take this into consideration.
Priority needs to be given to women, children, the wounded, elderly and the sick. Special consideration and care has to be afforded to survivors of conflict related sexual violence. This process has to be administered transparently, equally and without discrimination. The provision of a repatriation package should not bar persons from accessing courts for compensation and other forms of redress. Though the primary responsibility to protect and assist IDPs lies with the state, where possible, a bottom-up approach in which local communities are involved would provide more effective intervention. This detaches humanitarian intervention from the politics and state bureaucracy and also generates trust from IDPs communities.
Insecurity, Trauma and Fear: Obstacles to a Durable Solution for IDPs
Within the IDP populace, dwells the majority of victims and witnesses of gross human rights abuse. Nyanbol**, a returnee from Khartoum, was living in Jebel when the conflict broke out. She witnessed the death of her two brothers and son in law and is currently living in a UN base:
“They made them lie face down and shot them right in front of my eyes… It is South Sudanese themselves who were killing each other. When you see the faces of the young men here you see trauma and fear. Why should they not fear when they are being hunted for nothing?”
Adau**, another IDP living in Juba echoed this sentiment:
“Even I am traumatized and stressed because of this crisis. I feel I am not in a safe place. This war has traumatized me, traumatized the children, women and the elderly ones. For me, it looks like all South Sudanese are traumatized, because when you see people in this situation, they are ready to fight.”
Victims of today often are perpetrators of tomorrow. Ensuring justice and accountability is thus a basic element to preventing further conflict and ending impunity enjoyed by perpetrators. In order to address the IDP problem, the warring parties must admit the harms that they have caused to innocent citizens and commit themselves to protecting and supporting people in their efforts to return home. The state has to gather sufficient resources to ensure reparations of IDPs and victims of this current conflict. It is not about who benefits on an individual level, but how this would contribute to ensuring society heals collectively and is able to move forward. To this aim, both individual and collective reparations are essential.
In conclusion, civil society has a great role to play in ensuring that the IDP agenda is not neglected at the negotiating table in Addis and in the transitional period. These actors bridge the gap in the situation where there is lack of trust towards the warring parties. It is also important to include IDPs populations and key humanitarian partners in formulating a state IDP policy and law to help address this issue.
* Priscilla Nyagoah is South Sudanese lawyer and activist.
** Name changed to protect identity.
Analytical Report of the Secretary-General on Internally Displaced Persons, U.N. Doc. E/CN.4/1992/23 (14 Feb. 1992).
Report of the Special Rapporteur on the human rights of internally displaced persons, Chaloka Beyani, on his mission to South Sudan on 6-15 November 2013, U.N. Doc. A-HRC-26-33-Add3_en.
Duties and Responsibilities of a Bar Association
John Clement Kuc*
This article provides some observations on the rights and duties of bar associations with respect to their clients and the government. The article also examines the reciprocal rights and duties that governments owe to bar associations.
What is a Bar Association?
A bar association is a voluntary association of lawyers charged with ensuring high levels of professionalism and ethical conduct in the legal profession. Bar associations oversee the administration of the bar exam and the licensing and regulation of advocates.
What is a lawyer?
A lawyer is somebody who studied the law and graduated with a law degree, such as an L.L.B or its equivalent, and underwent a training and accreditation by an officially mandated institution, such as a bar association. Such a person can be licensed to practice law before the courts as an advocate and also be appointed as a judge or prosecutor. Lawyers can also play a role in public life, for example, by becoming a minister, member of parliament or a president.
Mission and Vision
The mission of bar associations is to improve the professional standards of its members and to promote respect for human rights, the rule of law and access to justice.The vision of bar associations is to excel as a professional body in development of the legal profession and the promotion of justice.
The objectives of a bar association are to:
· To maintain and improve the standards of conduct and learning of the legal profession.
· To represent, protect and assist its members with regard to conditions of practice.
· To protect and assist the public at large in matters affecting their life with regard to the law.
· To strengthen collaboration with the government, the judiciary and the legislature on matters affecting legislation, human rights, the rule of law, good governance and the administration of justice.
· To promote networking, collaboration with local and international stakeholders and legal fraternities by building linkages and exchanging of expertize in the legal profession. Such networking could involve institutions such as the International Bar Association, the East African Law Society, the Uganda Law Society, and the Law Society of Kenya.
Duties and Responsibilities of Lawyers
Lawyers have duties and responsibilities toward other lawyers, their clients and the government. For example, lawyers are required to at all times maintain the honest and dignity of their profession as essential agents of the administration of justice. The duties of lawyers towards their client include: advising clients as to their legal rights and obligations and the working of the legal system; assisting clients and taking legal action to protect their interests; and assisting clients before courts, tribunals or administrative authorities. The duties of lawyers toward the government include: the payment of the taxes and fees to the government, and to give honest, credible and legally sound advice when required.
Duties and Responsibilities of the Government Towards Lawyers
For its part, the government also has duties and responsibilities toward lawyers. For example, the government should ensure that lawyers:
· Are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.
· Are able to travel and to consult with their clients freely both within the country and abroad.
· Shall not suffer, or be threatened with prosecution or administrative or economic sanctions for any action taken in accordance with recognized professional duties, standards and tasks.
· Where a lawyer’s security is under threat as a result of discharging his or her duties, he or she shall be protected by the authorities.
· Lawyers shall not be identified with their clients or their clients’ causes as result of discharging their functions. For example, if a lawyer is defending somebody accused of murder, he or she shall not be seen a murderer too.
· Government shall recognize and respect all communications and consultations between the lawyers and their clients.
* John Clement Kuc is chairperson of the South Sudan Law Society (SSLS). He has held this position since July 2013.
We would like to extend our appreciation to the authors who donated their time and energy to writing articles for this newsletter. Thanks also to the legal professionals—past, present and future—who make the SSLS the institution that it is today. This newsletter was made possible through technical assistance provided by Pact and financial support provided by the International Bureau for Narcotics and Law Enforcement (INL) at the U.S. Department of State. The views expressed herein belong solely to the authors and do not necessarily reflect the institutional positions of the South Sudan Law Society (SSLS), Pact or their donors.
About the SSLS
The South Sudan Law Society (SSLS) is a civil society organization based in Juba. Its mission is to strive for justice in society and respect for human rights and the rule of law in South Sudan. The SSLS manages projects in a number of areas, including legal aid, community paralegal training, human rights awareness-raising and capacity-building for legal professionals, traditional authorities and government institutions.