JUBA – As legal proceedings commenced on Monday against eight SPLM/A-IO officials including Dr. Riek Machar, Mading Gum highlights three key aspects of the first court appearance and the legal hurdles facing what appears to be a lengthy trial.
Machar and several other co-accused were indicted early this month on serious charges of murder, treason, and crimes against humanity, following the conclusion of an investigation on the fighting in Nasir County.
The SPLM-IO leader and Petroleum Minister Puot Kang Chol were then suspended from office by President Kiir on September 11, to allow the legal proceedings against them.
Here are the key points observed by Mading Gum, the Managing Partner at Mading and Co. Associates, following the first hearing.
1. Plea-taking
The first thing the court does in non-summary trials in South Sudan is to confirm court jurisdiction, not ask the accused to enter plea, because plea-taking occurs when the court frames charges and reads them out to the accused after the closing of the prosecution case (Read Section 224 of the Code of Criminal Procedure Act, 2008 and South Sudan Trial Manual, 2010, p.25-27).
Normally, after the court hears “the prosecution opening speech”, the accused or their lead advocate challenges the court’s jurisdiction or merely replies to the prosecution (Read Section 224(2)(c) of the Code of Criminal Procedure Act, 2008). So, there’s no procedural glitch today.
2. Judiciary on trial
Dr. Riek and others are not the only ones on trial. The Judiciary is also on trial at two levels. First, if the “special court” affirms its jurisdiction, the fatal challenge it will encounter is not so much the Hybrid Court but its composition.
If the court is sitting as a High Court, why is it composed of Supreme Court Justices and not High Court judges? If it is sitting as a Criminal Panel of the Supreme Court, then this is illegal under Section 11 (1) (c) of the Judiciary Act, 2008, because the Criminal Panel is restricted to determining “appeals and confirmations in criminal matters.” Take note.
Second, if this special court is constituted vide the provisions of Article 103 of the Constitution, the court runs into other deadly blocks. Article 103 of the Constitution is on the immunity and impeachment of the President and how they can be tried in case of high treason, gross violation of the Constitution, and others.
While Art. 103(2) requires that the President be charged before the Supreme Court after a 2/3 vote by the national assembly, what is illustrative is that Art. 103(3) enjoins the President of the Supreme Court to “constitute a tribunal comprising three Justices of the Supreme Court” to look into the allegations and report to the Constitutional Panel of the Supreme Court that has the jurisdiction to convict a president.
If this tribunal is established under these provisions, there are three problems. One, Article 103 only applies to the President, and if it also applies to Vice President (s), then the tribunal’s jurisdiction is moot.
And if the tribunal composed of Justices of the Supreme Court rules that it has jurisdiction, the powers of the tribunal are merely investigatory. Third, the tribunal must sit as a Supreme Court, not a High Court. It is evident from the foregoing that the Judiciary is creating history. The history it will create will depend on how it addresses these issues.
3. Vice President vs First Vice President
How the tribunal interprets “Vice President” will also be conclusive on the question of jurisdiction of the tribunal. Article 126(2)(g) of the Constitution confers criminal jurisdiction on the Supreme Court over the Vice President, speakers, and Justices of the Supreme Court.
If the court adopts “purposive interpretation of the constitution”, that is, looking beyond the literal meaning of the word “vice president” and focusing on purpose and intent, and adapting to the situation under the R-ARCSS, 2018, it is more likely the tribunal will conclude that “Vice President” also includes the “First Vice President” and that it is only the Supreme Court, not High Court, that has criminal jurisdiction over the First Vice President.