South Sudanese authorities have arbitrarily detained two government critics since mid-2021 on dubious charges, Human Rights Watch said today.
The government should free the two critics, Abraham Chol Akech and Kuel Aguer Kuel, and put an end to arbitrary arrests and detentions. Lawyers for both men filed court petitions in February 2022 because they have been detained for months without being taken before a judge, as required by law. Given the authorities' failure to ensure fair and prompt trials or respect fundamental rights, they should also drop the dubious criminal charges against the two men.
"These extrajudicial detentions not only violate the fundamental rights of South Sudan's citizens but compromise the integrity of the entire criminal justice system," said Nyagoah Tut Pur, South Sudan researcher at Human Rights Watch. "Instead of throwing critics in jail, the authorities should enhance civic space and advance the rule of law including respect for due process rights."
Akech was arrested in July for proclaiming that the South Sudanese government would be overthrown that month. Kuel was arrested in August for co-founding an alleged "anti-government movement." Neither has been presented before court to be formally charged or to have their detention reviewed pending trial. Their detentions are typical of a longstanding pattern of unlawful detentions and expose persistent weaknesses in the criminal justice system, Human Rights Watch said.
Akech, a self-proclaimed prophet and leader of Kush International Ministries, a religious group headquartered in Juba, issued a prediction on June 25 that President Salva Kiir and First Vice President Dr. Riek Machar would be removed from power by July 9. The public prosecutor issued an arrest warrant on July 8, and armed police arrested Akech that night for offenses including subverting a constitutional government, insulting or inciting contempt of religious creed, and causing disaffection among police forces or defense forces.
Akech was held at the Northern Division police station in Juba town for a week without seeing a judge, then was transferred to Juba Central Prison. He has been held there ever since, without seeing a judge or being given any information about when he will be brought to trial, his lawyers said. In November, South Sudanese media quoted the police spokesperson, General Justin Daniel, saying that Akech could not be presented in court because he was unwell and was refusing a mental health evaluation.
Akech was previously arrested in April 2020 for violating government regulations to curb the spread of Covid-19 and charged with five offenses including public nuisance and criminal intimidation. His lawyer was quoted in the media as saying Akech had been tortured and humiliated by the police. A Juba court sentenced him to one month in prison and a fine.
Makuol Maketh, Akech's relative, told Human Rights Watch that the family is disappointed with the way authorities are handling the case: "A man of God cannot be treated like this when there is no case before court. I want him to be released. I have spoken to radio, newspaper and to some government officials. No one is answering our pleas. As a family and as a church we are sad and confused about this."
On August 2, the National Security Service arrested (NSS) Kuel, a former caretaker governor of Northern Bahr el Ghazal state, for co-founding and signing several declarations by the People's Coalition for Civil Action (PCCA). The coalition, an umbrella group of reform activists, called for peaceful countrywide protests on August 30 to force the government to step down over "failed leadership." The authorities have arrested and harassed other real or perceived members of the coalition, including by freezing their banks accounts, causing some of them to flee into exile.
Kuel is facing five charges of offenses against the state: subverting constitutional government; insurgency, banditry, sabotage, or terrorism; causing disaffection among police force or defense forces; publishing or communicating false statements prejudicial to Southern Sudan; and undermining the authority of or insulting the president. After a month-and-a-half in detention at the NSS headquarters, known as the Blue House, Kuel was transferred to Juba Central Prison. He also has yet to see a judge or be given the prospect of an imminent trial. One of Kuel's lawyers said that his health is deteriorating and he is in urgent need of quality medical care outside the country.
Lawyers representing the two men raised concerns that the men are being held without trial due to political interference by the Ministry of Justice and Constitutional Affairs. They said that the prosecuting authorities have been very slow to carry out investigations and believe they are abusing their discretionary power about whether to take cases forward.
The Directorate of Public Prosecutions within the Justice Ministry oversees all criminal matters including investigations, prosecutions, making decisions on whether to prosecute, and advising other government institutions on crime-related issues. The law requires the prosecutors to decide whether to begin or dismiss criminal proceedings "as soon as possible."
Kuel's lawyers filed a petition in early February with the Court of Appeals challenging his continued detention and seeking an order for the prosecution office to arraign him in court. Under Section 64(4) of the Criminal Procedure Code of 2008, when a prisoner is detained pending investigation, a high court judge must give weekly approval for any continued detention, and the Court of Appeals' approval must be sought for any detentions that exceed three months.
In a decision seen by Human Rights Watch, the Court of Appeals instructed the prosecution to present the case in court, but it has not. "We are unsure whether the prosecution wants to take this to court at all," one of Kuel's lawyers said. "Is the executive afraid of the court?"
Similar irregularities have persisted in Akech's case. In November, the Justice Ministry undersecretary issued a directive authorizing Akech's appearance before a court to be charged. But the prosecution appealed the directive and was granted two weeks to gather additional evidence to support the charges. This period has elapsed without any action by the prosecution, one of Akech's lawyers said. On February 14, Akech's lawyers filed a petition to the Court of Appeals asking it to review his detention and to have him presented in court.
Under international law, those facing criminal charges should be brought "promptly before a judge" so that the legality of their detention can be established. Human Rights Watch considers that "promptly" under international law means no longer than 48 hours from the start of their detention, and notes that South Sudan's Transitional Constitution (2011) prohibits police from holding suspects for more than 24 hours without taking them to court.
When presented before a judge, detainees should be released pending any potential trial or, if placed in pretrial detention, brought to trial within a reasonable time. International law provides that pretrial detention should be "an exception and as short as possible." Despite this, South Sudanese authorities routinely detain suspects for long periods, including during investigations and subsequent trials. As part of efforts to end these abuses, judicial authorities should visit prisons and police detention centers to monitor detention periods, Human Rights Watch said.
Authorities have previously brought trumped-up charges relating to crimes against the state and other charges against outspoken critics to stifle dissent. Trials that followed were usually plagued by due process concerns and fair trial violations, and the authorities have ignored detainees' reports of human rights violations in custody.
"Given the nature of the charges, and the violations of their rights, the South Sudanese authorities should immediately release the two men and drop the charges against them," Pur said, "The authorities have shown that they cannot guarantee them speedy or fair trials and so should at a minimum restore their liberty and respect their rights to freedom of opinion and expression."
