By Gama Hassan Oscas
In the heart of South Sudan’s legal system, a disconcerting trend has emerged, where the power vested in civil courts is systematically usurped by law enforcement agencies and public prosecutors. Contrary to the provisions laid out in the Civil Procedure Act of 2008, civil matters, especially contractual disputes, are being diverted away from the rightful jurisdiction of civil courts. This alarming deviation has far-reaching implications, marking not only a departure from legal norms but also exposing the pervasive corruption that has gripped South Sudan’s judicial landscape.
Recent developments paint a bleak picture, with an increasing number of civil cases falling under the purview of sectors, individuals from the Criminal Investigation, and some public prosecutors. The weapon of choice in this assault on justice is the arbitrary issuance of arrest warrants, transforming contractual disagreements into criminal offenses. Contract defaulters find themselves detained at sectors or police stations, with some cases even ending up in remand. This distortion of legal proceedings is particularly egregious when considering that civil matters, by definition, fall within the domain of civil courts.
Individuals from non-governmental organizations and businesses operating in South Sudan are bearing the brunt of this alarming trend. They are frequently subjected to arrest and coercion, forced to settle disputes or make payments not in the confines of civil courts but at the behest of sectors or police stations. What is even more troubling is the reclassification of contract terminations and defaults as criminal acts, such as cheating or criminal breach of trust, with no legal basis to support such categorization. This not only undermines the rule of law but serves as a testament to the depths of corruption that South Sudan has plunged into.
A disturbing revelation comes to light in the form of a specific incident that unfolded in Juba on a fateful Thursday of November 16th, 2023. Four former employees, terminated from their positions, sought to dispute their case through the appropriate channels, initially approaching the labor office. Advised by the labor office to pursue their case in civil court if dissatisfied, they instead went to sectors and police stations where they encountered a series of rejections in various police posts and sectors around Juba due to the civil nature of their case. Undeterred, they managed to institute a criminal case against their employer for cheating, at a police post notorious for treating civil matters as criminal endeavors to extort money.
This case, already resolved by the labor office with only the remaining payment of benefits outstanding, was needlessly escalated to criminal charges of cheating at the notorious police post. Shockingly, an employee not involved in the dispute or not authorized to represent the employer was arrested, detained overnight, and released on bail the following evening. This incident epitomizes the distortion of justice and highlights a glaring lack of understanding or willful disregard for the distinction between criminal and civil jurisdiction. It raises a poignant question: Are those framing criminal charges on civil matters driven by ignorance or a sinister desire to profit from arrests and subsequent bail payments?
Compounding this issue is the absence of checks and balances, with those engaged in these questionable practices operating with impunity. The Anti-Corruption Commission appears either non-existent or ineffective, offering no recourse for reporting corrupt attorneys and investigators. This glaring institutional gap further exacerbates the erosion of judicial integrity, leaving innocent individuals vulnerable to arrest and detention over seemingly straightforward contractual matters.
The urgent need for education within law enforcement agencies becomes evident. Bridging the gap in understanding the fundamental differences between criminal and civil matters is paramount to rectifying the current miscarriage of justice. Without a concerted effort to address this issue, the continued suffering of innocent individuals facing arrest and detention over contractual disputes will persist unabated.
In conclusion, the hijacking of civil matters by law enforcement and public prosecutors in South Sudan represents a gross violation of legal norms and a stark indicator of the deep-seated corruption plaguing the judicial system. The incident in Juba serves as a poignant example of the dire consequences when civil cases are treated as criminal, leading to unwarranted arrests, detentions, and the perversion of justice. Urgent action is needed to restore faith in the legal system, with a focus on educating law enforcement and holding those engaged in corrupt practices accountable. The very foundation of justice in South Sudan hangs in the balance, requiring swift and decisive measures to rectify this alarming state of affairs.
The author of this opinion is an advocate and can be reached by email at: oscarsgama@gmail.com