Prolonged and arbitrary arrest and detention: an access to justice dilemma for South Sudan

South Sudan gained independence on 9 June 2011 after a prolonged period of oppression and conflict which was fuelled by a combination of factors including race, religion, the denial of human rights and dignity for the people of the south. Independence from Sudan ushered in a hope that the conflict-affected population could have a homeland of their own to live in peace and dignity. However, since independence, the achievement of good governance and the protection of human rights have been considerable challenges for South Sudan. The outbreak of civil war barely two years into independence further heightened the woes of the country creating a protracted humanitarian situation, rolling back development gains and weakening the functionality of governance institutions including those relevant to justice and law enforcement. Within this context of conflict, poverty and bad governance, an emerging concern is the prevalence of prolonged and arbitrary arrest and detention (PAD) in the criminal justice sector of South Sudan. While recognising that PAD occurs due to a combination of factors in any context, the thesis identifies three cardinal factors which have rendered PAD an inevitable component of the criminal justice sector in South Sudan. These include 1) the substantial geographic size and coverage of the country; 2) the limited financial and logistical resources available to justice and law enforcement institutions and; 3) limited human rights awareness and culture in South Sudan. The thesis investigates the historical, socio-economic and political context of South Sudan and demonstrates how the intervening factors passively or actively contribute towards PAD in post-independent South Sudan. The thesis also investigates the definition and peculiarities of the various acts and omissions that constitute PAD and analyses how it contravenes national and international law and human rights principles and standards. The thesis also highlights the social, economic and cultural impact of PAD and determines that these cumulative factors render PAD an inevitable component of the criminal justice system in South Sudan. The thesis relies on pre-existing theoretical and basic research for information and data relevant to the study. These materials include publications such as academic materials and human rights monitoring reports principally from three sources: Amnesty International, Human Rights Watch, and the United Nations Mission in South Sudan. The thesis also makes significant references to legislation, case laws, reports and statistical data from relevant institutions in South Sudan and other jurisdictions. Finally, international human rights treaties and conventions (some of which South Sudan has acceded to) are also reviewed in explaining and determining the legality and applicability of human rights law, concepts and practices locally. The thesis finds that the negative and harmful consequences of PAD occur at the individual, family, and national levels. Among others, the thesis identifies the right to access justice, including the rights to due process and liberty and security of persons as the main human rights violated by PAD. The thesis further notes that PAD significantly undermines the confidence and trust of the population in the justice and law enforcement institutions in South Sudan. Finally, the thesis also finds that unless the Government of South Sudan takes deliberate action to address the three cardinal factors, preventing and responding to PAD will be a difficult proposition. The thesis makes several recommendations for preventing and responding to PAD in South Sudan. Recommendations include capacity building at the sectoral and institutional levels, including the development of sectoral strategic planning; effective coordination of justice and law enforcement institutions; promoting human rights awareness, making legal aid available and accessible to all; effective data and harnessing information, communication technology (ICT) for justice and law enforcement and promoting the full engagement and participation of the demand side in addressing PAD in South Sudan