By Simon Manut Chan
In December 2016, the Vice President of the Republic of South Sudan, Dr. James Wani Igga announced during an official visit to Juba Central Prison that his boss President Salva Kiir was expected to visit the same prison where he was expected to pardon prisoners convicted of various offences to celebrate with their families and friends the dawn of New Year 2017. Unfortunately, the visit has not materialized and up to date no single prisoner has been granted amnesty by the President.
On 10th March 2017, during the National Day of Prayers, President Kiir released only two “political detainees” that were in the custody of the National Security Service, the former Wau State Governor Elias Waya and his Deputy Andrea Dominic. And he promised to “visit the prisons to release more political detainees in a day or two”.
Again, this visit did not take place and no more prisoners were released as promised by the President of the Republic. On 22nd May 2017 while launching the National Dialogue Process and at the same time swearing-in members of the National Dialogue Steering Committee, President Kiir once against declared that, “in the spirit of the National dialogue and as a gesture of good will from your President, I have directed my Prosecutor General to review cases of people who have committed any crime against the state who are popularly known as political prisoners or detainees with the view of releasing them”.
Citizens of this country are waiting with bated breath to see if the President Kiir will follow through his promises and release prisoners across South Sudan as a true gesture of forgiveness, healing and reconciliation in South Sudan or people de-popularizing the President have stood in the way of this good will?
Traditionally, it is a normal practice worldwide in many democracies for presidents, heads of state and governments to issue pardon and amnesty to various categories of criminals or prisoners jailed for committing certain crimes. In recent years, many head of states and government in Africa and beyond have exercised this Constitutional prerogatives and released different categories of prisoners in big numbers. For example, early 2017 Sudan’s President Omar al-Bashir pardoned 25 South Sudanese who had been sentenced to death for charges related to treason, terrorism and crimes against the State. President Uhuru Kenyatta pardoned and released nearly 7000 prisoners across the country and commuted sentences of people on death row to life imprisonment.
The practice of granting amnesty has remained a feature of many democracies around the world since the time of English kings who were vested with the power to grant reprieve, rescind or commute any sentence given the fact that they had absolute power vested in their hands. It continues to be invoked in different circumstances and for a ranges of reasons. South Sudan is not an exception to this well-established traditional practice. President Salva Kiir Mayardit should therefore exercise this Constitutional prerogative for this rather obvious reasons and empty prisons across South Sudan;
CONSTITUTIONAL PREROGATIVE
The Transitional Constitution of South Sudan 2011, amended 2015 gives President Salva Kiir the powers to pardon and give amnesty to all kind of categories of prisoners under Article 101 (H) which states that; “the President has the authority confirm death sentences, grant pardons and remit convictions or penalties according to this Constitution and the law”. This is absolute power of the President and no one can therefore question his decision to pardon or grant amnesty to prisoners regardless of their status; political or otherwise.
As part of marking important events and occasions such as independence day, presidents and heads of state usually issue executive orders or decrees releasing prison inmates to mark such events. In April 2017, Tanzanian President John Pombe Magufuli issued an Executive Order releasing more than 2300 prisoners to “mark the 53rd Anniversary of the Union between Tanganyika and Zanzibar by in line with powers vested on the President through Article 45 (1) (d) of the Constitution of the United Republic of Tanzania”.
South Sudan gained independence on 9th July 2011, and so far very few prisoners if any have benefited from presidential pardons as part of marking such an important occasion. Some of the prisoners who where jailed when South Sudan was part of Sudan are still incarcerated at Juba Central Prison and other prisons across South Sudan. One month from now, South Sudan will be marking the 6th Anniversary of the Independence of the Republic of South Sudan on 9th July 2017, it is time for President Salva Kiir to direct his Minister of Interior, Minister of Justice and the Chief Justice to prepare list of those to be pardoned as part of marking this important event and to be submitted to the president to pardon prisoners.
NATIONAL DIALOGUE PROCESS
As mentioned earlier, President Kiir promised on two different occasions to release what he described as “political detainees” or “political prisoners”. So far only two prisoners have been released; former Governor of Wau, Gen. Elias Waya Nyipuoch and his deputy General Andrea Dominic who has been detained by the National Security Service since 2016. Many prominent members of the National dialogue steering committee during their weekly deliberations have urged the prosecuting authority directed by the President in his speech to implement the President’s directives. Other important personalities including church leaders have stressed this call to the President during the National Day of Prayers to release all not only political prisoners but all other prisoners as a sign of genuine forgiveness, healing and reconciliation. Archbishop Paulino Lukuddu in particular is quoted as saying, “I ask the President to pardon and forgive all political prisoners as well as others arrested for minor offences, other who may have been arrested because of rumours mongering and propaganda”.
Now that the President has again reiterated his intention to release prisoners while swearing-in members of the National Dialogue Steering Committee, it is important that the president follow through his promise and ensure that he release prisoners irrespective of their status; political or otherwise. The National Dialogue that President Kiir launched is a very important milestone that will ensure peace, unity, harmony and stability in South Sudan.
By releasing prisoners as he has promised, President Kiir will be underscoring his commitment to make National Dialogue a success and bring everlasting peace, harmony, unity and stability to South Sudan. Reduce overcrowding in Prisons Juba Central Prison as the main prison in South Sudan and other prison facilities across South Sudan do not have enough spaces to accommodate the increasing number of prisoners. Many prisons in South Sudan are hosting a large number of prisoners twice or three times their normal capacity. This has led to congestion and hence squalid conditions in these prisons.
With the current economic crisis in the South Sudan, the government is struggling to provide adequate basic needs such as balanced diet, uniforms and medical services. Poor funding from the Government of South Sudan has also exacerbated the situation. Over 50 people have died in Juba Central Prison alone because of illnesses related to malnutrition and lack of hygienic conditions in the prison between 2016 and 2017 as a results of malnutrition and diseases.
As I write this article, the Director of Juba Central Prison, Brig. Gen. Michael Malou has been quoted by several media houses as saying that there is an outbreak of unknown disease that has affected nearly half of the prisoners, mostly prisoners on remand. Many of inmates at Juba Central Prison are petty offenders and juvenile who should be released. As part of effort to decongest prisons and other correctional facilities, Zimbabwean President Robert Mugabe released over 2000 prisoners in 2016. Former Kenyan President Mwai Kibaki released over 7000 prisoners in 2012 so as to decongest prisons facilities and improve their conditions.
President Salva Kiir should follow suit and released prisoners to ease the congestion and improve provision of basic human needs such as adequate food and medical attention so as to enhance good living conditions within prison facilities.
As alluded above, many prisons facilities across South are in such a sorry state. They are too overcrowded and conditions therein are so squalid for human accommodation. Although prisoners are people who are serving time as punishment for crimes committed against the society, they are also human beings worthy of humane treatment. In this regard, we are calling upon our President to consider releasing various categories of prisoners such as first time offenders, people who have served half of their sentences as well as old age prisoners who are above 60 to 70 years of age.
In addition, President Kiir should consider releasing prisoners who falls under special cases. These include prisoners with mental and physical disabilities as well as female convicts who were imprisoned while pregnant, lactating or with children and as a result are forced to bring up their children in prison. Commuted death row convicts to life imprisonment and if one has served 10 years of his 20 years of life imprisonment, should thereafter qualify for presidential pardon.
LEGACY
Many world leaders in all democracies are always mindful of their legacies. Their legacies are always based on the actions they took while in office to safeguard the interest of their countries and their people. These actions also includes acts of forgiveness and kindness extended to vulnerable members of the society. President Salva Kiir as the first president of the independent Republic of South Sudan had already made history and his legacy will continue to be shaped by such actions of forgiveness and kindness.
President Kiir is known for his humility, generosity, kindness and willingness to forgive others. As part of cementing your legacy, people of South Sudan expect you to extend these actions of kindness to the less-privileged members of the society who include prisoners and let your name be registered in the history books of South Sudan as the President who made good use of power to grant pardon and clemency for the benefit of the less-privileged members of the society. Mr. President, you are the Father of Nation which include free members of the society and those members of society incarcerated behind bars for crimes they may have committed against the society.
In conclusion, however, the origin of modern practice of power to pardon traces its origin in the British System where it was a Royal Prerogative of the King to forgive. In the medieval time, pardon was extensively used as method to reduce overcrowding in prisons during war or political upheaval or revolt. In many modern democratic countries, the power to grant pardon or clemency is vested in the head of Executive, in this case the President of the Republic.
Apart from using pardon as means of reducing overcrowding in prisons, pardon has been traditionally to save person(s) due to miscarriage of justice or in cases of doubtful convictions. It is always better to grant liberty to a guilty offender rather sentencing an innocent person. As such the power of pardon is to correct possible judicial errors as there is no human system of judicial administration that can be free from imperfections.
The mere hope that one may be pardoned itself serves as incentive for the convict to behave himself or herself in the prison facility and thus helps considerably in solving issues of prison discipline. Research has shown that pardoned offenders always try to avoid committing crimes they were accused of and thus contributing to greater harmony and peace within societies.
With the current economic crisis in the country couple with the outbreak of unknown diseases and squalid conditions in prison facilities across South Sudan, the urgency to release prisoners is far greater now than at any other time in the history of our young nation. I personally believe that these individuals will be your good ambassadors in the National Dialogue Process as they will preach your goodwill to the nation. Read more here
Simon Manut Chan is a legal researcher, practitioner and human rights activist based in Juba. He can be reached at: smanut.chan@gmail.com, 0954112244
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