Abolition of Death Penalty and Its Implications for the Justice System in South Sudan

ABSTR4CT Death penalty is a recognized punishment for a number of crimes in South Sudan criminal Justice System. European Union under the umbrella ofInternational community, calls for moratorium or abolition ofdeath penalty by the President ofSouth Sudan Salva Kiir Mayardit, without due consideration oflaw makingprocess in South Sudan and views ofSouth Sudanese people. The main objective ofthe study is to determine the implications ofabolition of death penalty in the criminaljustice system in South Sudan. In this dissertation I argue that the facts on ground does not support or permit moratorium or abolition of death penalty. The researcher considered the concepts of capital punishment, histoiy and religious views, discussing the legal dimensions on death penalty and finding 0111 law governing the death penalty in South Sudan and exposition ofissues. It was found out that innocent people are subjected to death penalty on the basis of corruption and it begins frn;ii investigation up to judgment, lack ofafizir trial and lack ofIndependence Judiciary. Most of victims of death penalty are innocent andfrom poorfrmnulies. The coi~flicts of laws are seen under the constitutio,l, Penal code Act and Citstonzary Laws. The majority of the masses in South Sudan still support the retention of death penalty. In most decentralized societies of “Nilotic” mainly Dinkas “Jieng” and others like Nuer the practice is Mosaic Laws (the Law ofMose.s,) ofOld Testament which says ~an eye for an eye and a tooth for tooth’. In any case of abolition it means taking the law back to the hands of communities which may lead to iiUustice, instability and insecurity. Although the practice ofdeath penalty was imported from Common Law, customarily, Nilotics used blood compensation (Apuk,.) which is usually paid by cows; today it is still popular among Nilotics. More education should be encouraged because the well-ii~formed people will hold better quality opinions. Governments must ensure that citizens base their views regarding the death penalty on a rational and properly informed assessment, Governments should lead, not follow or hide behind public opinion. coinmzmnication channels should be improved because it is clear that the quality ofpublic opinion depends to a large extent on the availability and flexibility ofthe agencies ofpublic communication, such as the press (‘newspapers, radio, or television,), and public meetings it is Jhrther recommended that Courts should lake every opportunity to explain the system of judicial review and the independence of/hejudiciary and also interpret laws on death penalty to fInd out who it applies to. There ought to be a concerted effort to persuade the public about the importance ofjudicial independence and impartiality, courts shouldfight corruption and administerjustice impartially. Judges should undergoflirther training so that they can realize their roles in administration ofjustice. Invest in the capacity of courts, and ensure they are properly staffed and have sufficient means to meet the high demandfor cases. This includes also the training and vetting ofjudges and legalpersonnel. Invest in the capacity qfpoiice and administrative servicesforjudiciaiy The NGO andNational Civil Society organizations should support legal aidprogrammes and the government in developing a detailedjustice reform. The government should review national laws to make them in conformity with the international laws and rat~fj~’ international human rights instruments

TABLE OF CONTENTS

DECLARATION

APPROVAL

DEDICATION

ACKNOWLEDGEMENT

TABLE OF CONTENTS

LIST OF STATUTES & INSTRUMENTS viii

TABLE OF CASES ix

LIST OF ACRONYMS AND ABBREVIATION x

ABSTRACT,. ..,,,,, , ,, , xi

CHAPTER ONE , ~ 1

1.0 General Introduction 1

1.1 Background of the Study 2

1.2 Statement of the problem 7

1.3 Research Objectives 8

1.3.1. General objective~ 8

1.3.2 Specific objectives: 8

1.4 Research question 8

1.5 Significance of the Study 8

1.6 Scope 9

1.6.1 Geographical Scope 9

1.6.2 Content Scope 9

1.6.3 Time Scope 9

1.7 Methodology 9

1.8 Theoretical Framework 10

1.8.1 Theory of punishment 10

1.8.1.1 The~ti1it~antheo~ ~ 10

1.8.1.2 Retribution Theory 11

1.9 Literature Review 12

1.10 Organization Layout 15

CHAPTER TWO ,....,....,......,.....,,...,....~,,.., 16

HISTORICAL DEVELOPMENT OF CAPITAL PUNISHMENT 16

2.0 Introduction 16

2.1 Definition of the Term Punishmeni 18

2.2 Historical Overview of Death Penalty 19

2.3 Religious views on Death Penalty 22

CHAPTER THREE 31

INTERNATIONAL LAW PERSPECTIVE OF DEATH PENALTY 31

3.0 Introduction 31

3.1 The Death Penalty under International Laws 31

3.1.1 International Covenant on Civil and Political Rights 1996 (ICCPR) 32

3.1.2 Convention on the Prevention and Punishment of the Crime of Genocide 33

3.2 Institutional Approach to Abolition of death penalty 4

3.2.1 European Union 34

3.2.2 National Human Rights Institutions (NHRIs) 35

3.2.3 South Sudan Human Rights Commission 36

3.2.4 The World Coalition against the Death Penalty 36

3.3 Juvenile offenders 36

3.4 Abolitionism 39

3.5 Conclusion 45

CHAPTER FOUR

THE LAW GOVERNING THE DEATH PENALTY IN SOUTH SUDAN AND

EXPOSITION OF ISSUES .~, 47

4.1 Introduction 4

4.2 Overview of the Legal Framework for the death Penalty in South Sudan 47

4.3 Transitional Constitution 47

4.4 The Penal Code Act 2008 47

4.5 The Code of Criminal Procedure Act, 2008 48

4.6 Other Laws 49

4.6.1 Universal Declaration of Human Rights 1948 (UDHR) 49

4.6.2 International Covenant on Civil and Political Rights (ICCPR), 1989 49

4.7 Case Law 50

4.8 Arguments for and Against Abolition of Death Penalty 51

4.8.1 Retribution 51

4.8.2 Deterrence 51

4.8.3 Rehabilitation 53

4.8.4 Prevention of re-offending 54

4.8.5 Value of human life ss

4.8.6 Execution of the Innocent 56

4.8.7 Death Penalty is Brutal 56

4.8.8 Arguments in South Sudan 59

4.9 Experiences from Other Jurisdiction 60

4.10 Conclusion 61

CHAPTER FIVE 62

FINDINGS, CONCLUSION AND RECOMMENDATION, 62

5.0 Introduction 62

5.1 Findings 62

5.1.1 Inhuman and Degrading 62

5.1.2 Conflict of laws 62

5.1.3 Government Institutions 63

5.2 Conclusions 64

5.2.1 Prevalence of police in carrying out arrests 64

5.2.2 Denial of prisoners their Rights 64

5.2.3 Risks in executing innocent people 65

5.2.4 Judicial independence 65

5.2.5 Role ofPublic opinion 65

5.3 Recommendations 66

5.3.1 Legal Reform 67

5.3.2 Institutional Framework 67

5.3.3 General Reconunendation 68

BIBLIOGRAPHY 70

APPENDIX I: INFORMED CONSENT 74

APPENDIX I: QUESTIONi~lAIRES FACE SHEET