Wakilii

Samuel and Others v Republic of South Sudan (Communication 796-22)

African Commission on Human and Peoples' Rights · [2023] ACHPR 18 · 2023 Communication Upheld AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission on Human and Peoples' Rights alleging human rights violations by the Respondent State
Decision
Communication upheld; Respondent State found in violation of multiple articles of the African Charter and ordered to provide remedies including return of property, lifting of travel ban, investigation and prosecution of perpetrators, and human rights training for law enforcement.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission found that the Republic of South Sudan violated Articles 2, 3, 5, 6, 7, 10, 12(1&2), 14, 16(1), 18(1&3), 25, and 26 of the African Charter. The Commission held that the forced eviction of the Complainants from their property by military police, the arbitrary arrest and detention of their lawyer, the seizure of his passport, the travel ban imposed on him, and the State's failure to protect the Complainants from human rights violations by private actors acting with State agents, all constituted violations of the Charter. The Commission found no violation of Articles 4 and 8.

Outcome

Communication upheld; Respondent State found in violation of multiple articles of the African Charter and ordered to provide remedies including return of property, lifting of travel ban, investigation and prosecution of perpetrators, and human rights training for law enforcement.

Facts

Rose Modong Samuel, a South Sudanese citizen, lived on land in Lologo II, Juba, which she acquired in 1990 and registered in her son Isaac Jugar's name. In 2021, Mading Ngor Akec, accompanied by soldiers, evicted neighbours and began construction. He then demanded Modong vacate her land. On 27 October 2021, Modong filed legal proceedings against Mading. On 26 November 2021, armed police and civilians forcefully entered her compound, cut down trees, and destroyed property. On 27 November 2021, heavily armed soldiers demolished her home's wall, displaced her family, and threatened to shoot anyone who returned. Mading immediately began erecting a new wall on the property. Modong's lawyer, John Gerry, was subsequently abducted, tortured, arbitrarily arrested multiple times, and had his passport seized and a travel ban imposed on him. Despite complaints to various authorities, the Respondent State failed to protect the Complainants or prosecute the perpetrators. The Complainants eventually fled to Uganda.

Issues

  1. Whether the Respondent State violated the Complainants' right to non-discrimination and equal protection under Articles 2 and 3 of the African Charter.
  2. Whether the Respondent State violated the Complainants' right to respect for life and integrity of the person under Article 4 of the African Charter.
  3. Whether the Respondent State violated the Complainants' right to dignity and freedom from torture, cruel, inhuman or degrading treatment under Article 5 of the African Charter.
  4. Whether the Respondent State violated the Complainants' right to liberty and security of the person under Article 6 of the African Charter.
  5. Whether the Respondent State violated the Complainants' right to have their cause heard under Article 7 of the African Charter.
  6. Whether the Respondent State violated the Complainants' right to freedom of conscience and freedom of association under Articles 8 and 10 of the African Charter.
  7. Whether the Respondent State violated the Complainants' right to freedom of movement and residence under Article 12(1) and (2) of the African Charter.
  8. Whether the Respondent State violated the Complainants' right to property under Article 14 of the African Charter.
  9. Whether the Respondent State violated the Complainants' right to health, right to family, and protection from discrimination against women under Articles 16(1), 18(1) and (3) of the African Charter.
  10. Whether the Respondent State failed in its duty to promote and ensure respect for the rights and freedoms in the Charter under Article 25.
  11. Whether the Respondent State failed in its duty to guarantee the independence of the courts under Article 26 of the African Charter.

Orders

  • Communication declared admissible.
  • Respondent State found in violation of Articles 2, 3, 5, 6, 7, 10, 12(1&2), 14, 16(1), 18(1&3), 25, and 26 of the African Charter.
  • No violation found of Articles 4 and 8 of the African Charter.
  • Respondent State requested to drop all forged criminal charges against the Complainants' lawyer.
  • Respondent State requested to lift the travel ban on the lawyer and return his passport.
  • Respondent State urged to promptly and independently investigate, prosecute, and punish all State actors responsible for the violations.
  • Respondent State urged to return the property to the Complainants and provide redress for prejudices suffered.
  • Respondent State urged to provide comprehensive training in human rights for all law enforcement officials.
  • Respondent State requested to report to the Commission within 180 days on measures adopted to implement the recommendations.

Rules and key headnotes

Non-Discrimination and Equal Protection — State Obligation to Protect Citizens from Discriminatory Treatment by State Agents
A State violates Articles 2 and 3 of the African Charter when its agents fail to provide equal protection of the law to citizens, particularly where perpetrators of human rights violations are protected from prosecution while victims are left unprotected and subjected to harassment and intimidation.
Prohibition of Torture and Cruel, Inhuman or Degrading Treatment — Forced Eviction and Destruction of Property
Forced evictions and destruction of housing carried out by non-state actors amount to cruel, inhuman and degrading treatment or punishment under Article 5 of the African Charter if the State fails to protect the victims from such violations of their human rights.
Right to Liberty and Security of Person — Arbitrary Arrest and Detention
Arrest and detention without informing the person of the reason for arrest or proffering any charge of an offence does not meet constitutional requirements and is incompatible with the African Charter and international standards, constituting arbitrary and unlawful detention in violation of Article 6.
Right to Property — State Obligation to Protect Against Forced Eviction and Unlawful Expropriation
A State violates Article 14 of the African Charter when it fails to protect citizens from forced eviction and destruction of their property by private actors acting in collaboration with State agents, particularly where the eviction is not in the public interest and is carried out without due process of law.
Right to Freedom of Movement — Seizure of Passport and Travel Ban
The seizure of a person's passport and imposition of a travel ban without lawful justification or court order constitutes a continuing arbitrary detention and a restriction of freedom of movement in violation of Article 12(2) of the African Charter.
Right to Fair Trial and Independence of the Judiciary — Procedural Flaws and Lack of Access to Justice
Where national laws contain procedural flaws that prevent individuals from accessing courts to enforce their constitutional rights, and where State agents obstruct legal proceedings and prevent cases from being heard, the State violates Articles 7 and 26 of the African Charter.
State Obligation to Promote Human Rights Education — Training of Law Enforcement Officials
A State violates Article 25 of the African Charter when it fails to provide comprehensive human rights education and training to law enforcement officials, particularly where such failure results in systematic human rights violations by security forces.

Legislation cited (32)

  • African Charter on Human and Peoples' Rights Articles 2, 3, 4, 5, 6, 7, 8, 10(1), 12(1) and (2), 14, 16(1), 18(1) and (3), 25, 26
  • Transitional Constitution of the Republic of South Sudan Article 9(4)
  • Transitional Constitution of the Republic of South Sudan Article 14
  • Transitional Constitution of the Republic of South Sudan Article 19(5)
  • Transitional Constitution of the Republic of South Sudan Article 27
  • Transitional Constitution of the Republic of South Sudan Article 28
  • Transitional Constitution of the Republic of South Sudan Article 34(3)
  • Transitional Constitution of the Republic of South Sudan Article 39(1) and (3)
  • Transitional Constitution of the Republic of South Sudan Article 136(1)
  • Transitional Constitution of the Republic of South Sudan Article 151(6)
  • Transitional Constitution of the Republic of South Sudan Article 152(c)
  • Transitional Constitution of the Republic of South Sudan Article 155(6)
  • Transitional Constitution of the Republic of South Sudan Article 306
  • South Sudan Police Act 2009 s.6(2)
  • South Sudan Police Act 2009 s.51
  • South Sudan Police Act 2009 s.52
  • South Sudan Police Act 2009 s.54
  • South Sudan Police Act 2009 s.61
  • South Sudan Land Act 2009 s.41(2), (4) and (5)
  • South Sudan Land Act 2009 s.57
  • South Sudan Land Act 2009 s.85
  • South Sudan Penal Code 2008 s.25
  • South Sudan Advocates Act 2013 s.43(2)
  • South Sudan Passport & Immigration Act 2011 s.12(4)
  • South Sudan Passport & Immigration Act 2011 s.16(a)
  • Constitutive Act of the African Union Article 3(h)
  • International Covenant on Civil and Political Rights Article 9(2)
  • Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment
  • Code of Conduct for Law Enforcement Officials (UN General Assembly resolution 34/169 of 17 December 1979)
  • Declaration on the Protection of All Persons from Being Subjected to Torture (UN General Assembly resolution 3452 (XXX) of 9 December 1975)
  • African Union Convention for the Protection and Assistance of Internally Displaced Persons (Kampala Convention) Article 1(k)
  • African Union Convention for the Protection and Assistance of Internally Displaced Persons (Kampala Convention) Article 3(1a and b)

Cases cited (44)

  • Article 19 v Eritrea (Communication 275/2003)
  • Law Society of Zimbabwe et al v Zimbabwe (Communication 321/2006)
  • Kevin Mgwanga Gunme et al v Cameroon (Communication 266/03)
  • Zimbabwe Lawyers for Human Rights & Associated Newspapers v Zimbabwe
  • Free Legal Assistance Group and Others v Zaire
  • Recontre Africaine pour la Defense des Droits de l'Homme v Zambia
  • Interights, Institute for Human Rights and Development in Africa, and Association mauritanienne des droits de l'Homme v Mauritania
  • Cudjoe v Ghana
  • Sir Dawda K. Jawara v Gambia (Communication 147/95-149/96)
  • Human Rights Council and Others v Ethiopia
  • Zegveld & Anor v Eritrea
  • Haregewoin Gabre-Selassie and IHRDA
  • Embga Mekongo Louis v Cameroon (Communication 59/91)
  • Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development (on behalf of Andrew Barclay Meldrum) v Republic of Zimbabwe
  • Kenneth Good v Republic of Botswana (Communication 313/05)
  • S. W. M. Broeks v the Netherlands (Communication No. 172/1984)
  • Egyptian Initiative for Personal Rights and INTERRIGHTS v Egypt (Communication 323/06)
  • Antoine Bissangou v Republic of Congo
  • SERAC case
  • Institute for Human Rights and Development in Africa (on behalf of Esmaila Connateh & 13 others) v Angola
  • Kazeem Aminu v Nigeria (Communication 205/97)
  • Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt (Communication 334/06)
  • Bob Ngozi Njoku v Egypt (Communication 40/90)
  • John Modise v Botswana
  • International Pen, Constitutional Rights Project, Interights (on behalf of Ken Saro-Wiwa) v Nigeria
  • Hijrizi v Yugoslavia
  • Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan
  • Social and Economic Rights Action Center & the Center for Economic and Social Rights v Nigeria (SERAC & CESR v Nigeria)
  • John K. Modise v Botswana (Communication 97/93)
  • Malawi African Association and Others v Mauritania (Communications Nos. 54/91, 61/91, 98/93, 164/97, 196/97 and 210/98)
  • Zimbabwe Human Rights NGO Forum v Zimbabwe (Communication 245/2002)
  • Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v Sudan (Communication 279/03-296/05)
  • Constitutional Rights Project and Civil Liberties Organisation v Nigeria (Communication No. 102/93)
  • The Kenyan Section of the International Commission of Jurists (ICJ) v the Republic of Kenya (Communication No. 385/10)
  • Endorois case
  • Amnesty International, Comite Loosli Bachelard, Lawyers' Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan
  • Lawyers of Human Rights v Swaziland
  • Malawi African Association and Others v Mauritania (Communications Nos. 54/91, 61/91, 98/93, 164/97, 196/97 and 210/98)
  • Sir Dawda K. Jawara v Gambia (Communication 147/95-149/96)
  • Movement burkinabe des droits de l'Homme et des peuples v Burkina Faso (Communication 204/97)
  • Law Offices of Ghazi Suleiman v Sudan (Communication 228/99)
  • Mr Mamboleo M. Itundamilamba v Democratic Republic of Congo
  • The Constitutional Rights Project v Nigeria
  • Tsatsu Tsikata v Republic of Ghana

Full judgment

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Samuel and Others v Republic of South Sudan (Communication 796-22) [2023] ACHPR 18 (9 November 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.