‘Guilty Until Proven Innocent’: Pretrial Detention in South Sudan

Category: Commentary
Published on Sunday, 22 September 2013 13:21
Written by Victor Lowilla, The New Sudan Vision (NSV), newsudanvision.com
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(Juba, South Sudan) - The presumption of innocence is among the most sacrosanct principles of criminal law. That a defendant is ‘innocent until proven guilty’ essentially means that the burden of proof always weighs on the shoulder of the prosecuting authority and not on the suspect or accused. A major threat to the presumption of innocence in South Sudan, and indeed Africa as a continent, is unlawfully extended pretrial detention.

 

According to the International Centre for Prison Studies (ICPS), the prison population in Africa totals 857,994 inmates; of these, 36.3 percent are in pretrial detention. This figure does not include detainees held in secret detention facilities or those in police detention without charges. In 2011, pretrial detainees made up about 45 percent of the prison population in South Sudan.

 

Pretrial detainees by definition have not been convicted of any crime. Nonetheless, they can be made to wait in prison for extended periods of time—often years—for police to conclude investigations, for judges to schedule hearings, for witnesses to show up in court, and ultimately, for the resolution of their trial. The problem is compounded by a systemic failure to offer bail. Although both the Code of Criminal Procedure and the Transitional Constitution allow for the release of detainees on bail pending their trial, prosecutors and judges almost never offer it in practice.

 

Pretrial detention beyond the statutorily prescribed period violates both South Sudanese and international law. If these detainees had access to legal counsel, they could challenge their detentions on any number of grounds. The vast majority of detainees, however, cannot afford to hire a lawyer. There are very few qualified lawyers in South Sudan and fewer still that are willing to engage in pro-bono activities. Even if detainees have the resources to hire lawyers, there are only a handful of lawyers that practice beyond the boundaries of the capital city, Juba.

The state has also reneged on its obligation to provide legal counsel to criminal defendants who cannot afford to hire a lawyer. The provision of legal aid, as it is known, is virtually non-existent. As a result, despite legislative and constitutional safeguards regarding the presumption of innocence and the provision of legal aid, South Sudanese across the country continue to languish behind bars unjustifiably for extended periods of time, and prisons are forced to squander precious resources as they struggle to cope with extreme overcrowding.

 

The South Sudan Law Society (SSLS), a civil society organization dedicated to improving access to justice in South Sudan, is among the organizations working to alleviate our nation’s problem of unlawfully extended pretrial detention. The SSLS has established nine legal aid clinics in six of the ten states that offer free legal services—including legal counseling and advice, mediation, negotiation and courtroom representation—to clients who cannot afford a lawyer. The SSLS is also working to develop a pro-bono case referral system to their members so as to provide additional legal aid services to the public. In doing so, SSLS has slightly increased access to justice in South Sudan. In order to fully address our nation’s problem of pretrial detention, other justice sector actors, including the courts, police, prisons and public prosecutors, must play a proactive role to process cases in a more timely manner and to ensure that people are not treated as ‘guilty until proven innocent’.

 

*Victor Lowilla is a director of legal aid department at the South Sudan Law Society. Email:This email address is being protected from spambots. You need JavaScript enabled to view it.