November 9, 2014 (SSNA) -- We, the undersigned South Sudanese civil society organizations, are writing to express our deep concern with the National Security Services (NSS) Bill, 2014 that has reportedly been passed by the National Legislative Assembly and is now awaiting the President’s signature. The NSS Bill in its current form is a threat to the very national security that it purports to protect. In our opinion, the Bill and the manner in which it is being developed violates the Transitional Constitution of the Republic of South Sudan on both substantive and procedural grounds. In order to bring the legislation into conformity with the Transitional Constitution and to ensure that the public is given sufficient opportunity to provide input on the draft legislation, we recommend that the Government of the Republic of South Sudan:
Reframe the Mandate to Focus on Intelligence Gathering
The constitutional mandate of the National Security Service is stipulated in article 159(3) of the Transitional Constitution of the Republic of South Sudan. It states:
“The National Security Service shall be professional and its mandate shall focus on information gathering, analysis and advice to the relevant authorities.”
The Transitional Constitution envisages a National Security Service that is restricted to an intelligence gathering function only and does not have the police powers of arrest, detain, subpoena, search and seizure, and use of force. The NSS Bill, however, contradicts this constitutional mandate by granting the Service broad policing powers. According to article 12 of the NSS Bill, the National Security Service shall exercise the following powers:
(b) Request any information, statement, document or material from any suspect and potential witness for perusal, keep or take necessary or appropriate measures in respect of such information, statement, document or thing;
(c) Summon, investigate and take particulars and depositions from any suspect and potential witness;
(d) Monitor, investigate and conduct search of suspect and places;
(e) Seize property connected with an offence in accordance with the law;
(f) Arrest and detain suspects in accordance with the provision of this Bill;
(i) Undertake necessary search and investigation for disclosure of any situation, fact, activity or factors which may endanger the national security and safety of the nation in accordance with provisions of this Bill;
(o) Monitor frequencies, wireless systems, publications, broadcasting stations and postal services in respect to security interest so as to prevent misuse by users.
The mandate as conceived in the NSS Bill is thus inconsistent with the Transitional Constitution and should be reframed to focus on intelligence gathering only.
Ensure Due Process and Fair Trial Rights are protected
The broad mandate stipulated in article 12 of the NSS Bill is made all the more troubling by the lack of safeguards against abuse of power by National Security personnel. In its current form, the NSS Bill does not protect detainees’ due process and fair trial rights, including the right to counsel and the right to be tried within a reasonable period of time. There are no protections against cruel and inhuman treatment or torture. Nor does the legislation stipulate permissible places of detention. The lack of attention paid to the rights of citizens is shocking, given the many examples that we have in South Sudan of people being arbitrarily detained, harassed and subjected to torture and mistreatment at the hands of people purporting to represent the National Security Service.
Correct Procedural Irregularities
Particularly concerning are the allegations that the NSS Bill was passed at its third reading without a quorum in attendance. Article 71(4) of the Transitional Constitution states that “[t]he quorum for ordinary sittings of the National Legislative Assembly shall be more than half of the members.” According to media reports, only 84 lawmakers were present for the vote. Media outlets also reported that the draft legislation was distributed to members of parliament (MPs) immediately prior to the vote, not leaving a sufficient time period for review. Indeed, a significant number of MPs are said to have left the hall in protest to the legislation. In order to correct these mistakes and allow additional time for deliberation, the National Legislative Assembly should restart the law-making process and ensure that sufficient time and notice is provided for robust public debate.
The NSS Bill in its current form does not provide the foundation that is needed for a targeted and effective National Security Service. If this bill is signed into law, South Sudan will be one step closer to recreating the oppressive security apparatus that the South Sudanese people are all too familiar with from our time spent under the Sudanese state. Given the importance of national security to our young nation, it is important that we enact carefully considered legislation that provides a foundation for a strong and effective national security apparatus. Creating a National Security Service that enjoys the full support of the people of South Sudan requires far more public input than was allowed for the current draft legislation. We therefore request that the President withhold assent because the Bill violates the Transitional Constitution on both procedural and substantive grounds, and return it to parliament. The legislative process should be started anew to allow for the public hearings and consultations that are necessary to create a piece of legislation that will stand the test of time.