Dr. John Garang de Mabior Memorial University for Science and Technology

Jonglei State Bor

Faculty of Law

Criminal Justice in Jonglei State (Bor): examine how the statutory and Bench courts

handle murder cases

Submitted By

Santo Deng Yak Lal

A thesis submitted in partial fulfillment of the requirements for the Bachelor of law

(L.L.B)

Supervisor: Mr. Deng James Nyok

(L.L.M)

PhD Candidate

July 17/2012

Year of the graduation 2012

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Dedication

I do appreciate my late father Yak Lal and my beloved Mother Aker Chol both of

them had encouraged me during my childhood to study the law thought they both

passed away before I could graduate to witness what they were telling me I still very

grateful to them may almighty God rest their souls in peace .

Never forget my dear wife Apadiet Maker who had been patient during my studies

it is her encouragement which led to my success otherwise without her patient I

would had been in mess the thing would had become hard for me.

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Acknowledgement

I hereby acknowledged the efforts and supports given to me during my research and my

studied by the professor, lecturers, relatives, friends and colleagues who had contributed

to my education positively. The following people have really assisted me in the cost of

my studies they deserve appreciated for their tieless supports.

1 James Deng Mach Awan: Lecturer

2. Abraham Mayom Makuch: Friend and the same time colleague

3. Deng Thon Lat Ajang: Uncle

4. David Malual Wuor Kuany: Deputy Dean of Student

5 Professor Camilo Odwo H Oya: Dean Law Faculty

Iam also thank full to some of my colleagues at Dr. John Garang de Mabiore for science

and Technology for their encouragement during my studies, some of whom had assist me

in data collection for my research paper, my sincere thank to all those who had assisted

me.

My thank to vice and deputy vice chancellor of the university for their good

administration of running Dr. J.Must successfully without strike since its establishment,

this shown that the administration of the university is good.

I hereby express my sincere thank to my supervisor for the correction he made during my

research without his advice I would not graduate. In case of any error or blame in the

research paper I accepted the whole blame for any errors which are in this research paper.

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Table of Contentse

Chapter one: Introduction -----------------------------------------------------Page 5 & 6

(a) Statement of Research Problem

(b) Justification of Research Problem

(c) Executive Summary of an introduction

Chapter Two: Literature Review----------------------------------------------Page 7 &16

(a) Definition of Murder

(b) Traditional Way of Handling Murder Case (Customary Law Court)

(c) Murder basic principles

(d) Statutory Criminal Justice System

(e) Law enforcement Agencies in Jonglei State

(f) Retributive justice

Chapter Three: Research Cases---------------------------------------------page 17 & 23

(a) Introduction to research methodology

(b) Criminal case (Murder) No: 15373/2007(c) Customary Law Court Murder Cases

Chapter Four: Data Analysis-----------------------------------------------------Page 24 & 36

(a) Introduction to data analysis

(b) Analyses on Murder Cases

Chapter Five: Conclusion and Recommendation------------------------------page 37 &42

(a) Conclusion

(b) Recommendation

Reference List---------------------------------------------------------------------------Page 43

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Chapter one: Introduction:

1. Statement of the Research Problem; I want to find out how does criminal

justice system in Jonglei State render justice to the citizens particularly in the

murder cases, there is a lot of complains pertaining how High Court Judges passes

their verdict on murder cases. Citizens of Jonglei State sometimes do complain

that, suspect doesn’t receive proportionate punishment which is equal to his or her

doer in the court while he/she deserve proper punishment. The complaint is;

sometimes some are punish while they don’t deserve punishment and other are

punish less while they deserve severe punishment. So due to this I want to find it

by myself whether what citizens are complaining is it really in place or not.

Another thing is concerning Customary Law Court over Murder Cases; citizens of

Jonglei State who are in Rural Areas in different counties of Jonglei State are stilling

using traditional legal system, I want to know how are they doing it and from where are

they empowered to trail murder cases. If someone is killing in the rural area very far

away from town how chief does manages to get the suspect and which kind of

punishment is imposes on the murderer if he/she is found guilty of crime (Murder).

How does statutory Law Court comply with the Customary Law Court on the murder

cases when it come to the verdict of the murder committed in the rural area if the

judgment was passed by the traditional authority (Customary Law Court) does state high

court correct the judgment passed by the customary law court or it leaves it as it is passed

by the traditional authority.

1. Justification of the research problem

The reason why I want to conduct my research on the above mentioned area is; I want to

know whether criminal justice system is in place in Jonglei State and whether judicial

system is practicing justice to all people regardless of whatsoever as it is said that “justice

for all” some time a system may can exist but it may not do it works as it is expected by

the people concern, so criminal justice system is in place in Jonglei State but am not sure

whether it is really doing justice as it is expected by the citizens of the State. There are

also a lot of complains about criminal justice in Jonglei State some people complaint

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about injustice in criminal justice, so for me to prove it beyond reasonable doubt is to

conduct a research on criminal justice system in Jonglei State in both side of the courts,

in customary law court and in Statutory Law Court

2. Executive Summary of the Research introduction

As many people do complain of injustice and incompetency of the criminal justice

system in Jonglei State, what am going to do is to visit all criminal justice system

departments which are situated here at the headquarters of the State to be able to

know what citizens claim is it really existing or it is just allegation.

After visiting to the departments of criminal justice system, the purposes of doing

visitation is to conduct empirical research and collection of murder case, by doing this

it will enable me to get right information from the right people in the right place

instead of hear-say about injustice which people do complain without evidence.

After the collection of data or information from the court and criminal justice system

departments, the really fact about what people say will be revealed if there is really

injustice and incompetency as people complain then it would shows itself from the

cases and in the empirical research which I will conduct. It is very important to prove

what people say through research rather proving it without any evidence, research

give more information about the problem which people complain.

It is very important also to have research about how customary law courts address

murder case with the comparison of how statutory court address murder case, from

there the problem which is facing citizens in criminal justice system can be address

adequately without failure. It is through research where people can really prove that

there is a problem in certain sector. “All progress is born of research because it leads

to inquiry and inquiry lead to discovery and lead to solution of the problem” so I hope

through my research injustice problem in Criminal Justice will be address in Jonglei

State.

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Chapter Two

Literature Review

Before anything, I would like first of all to let the readers know what murder is.

Murder is unlawful killing, with malice aforethought, of another human, and generally

this state of mind distinguishes murder from other forms of unlawful homicide (such as

manslaughter). As the loss of a human being inflicts enormous grief upon the individuals

close to the victim, as well as the fact that the commission of a murder is highly

detrimental to the good order within society, most societies both present and in antiquity

have considered it a most serious crime worthy of the harshest of punishment. In most

countries, a person convicted of murder is typically given a long prison sentence,

possibly a life sentence where permitted, and in some countries, the death penalty may be

imposed for such an act e.g. in South Sudan Both punishments either of them can be

impose on the accused. In most countries, there is no statute of limitations for murder (no

time limit for prosecuting someone for murder) a person who commits murder is called a

murderer. This is universal definition of murder.

After understanding what murder is and brief definition of murder, I want to view how

does statutory court in Jonglei State handle murder cases with the comparison with

Customary Law Court in particularly in section 206 of the penal code Act 2008 law of

South Sudan. In the section of the law mentioned above murder is define as

Whoever causes the death of another person;-

(a) With the intention of causing death; or

(b) Knowing that death would be the probable and not only a likely consequences of

the act or of bodily injury which the act was intended to cause commits the

offence of murder, and upon conviction be sentenced to death or imprisonment

for life, and may also be liable to a fine; provided that, if the nearest relatives of

deceased opt for customary blood compensation, the court may award it in lieu of

death sentence with imprisonment for a term not exceeding ten years

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This is how murder is defined in statutory Law court however there is no define degrees

of murder in customary law court because every murder case in traditional is treated

under culpable homicide there is no death sentence which is pass by the customary law

court.

Traditional Way of Handling Murder Case (Customary Law Court)

When it comes to the murder case, it is a jurisdiction of the paramount chief to trial

murder case; the paramount chief previously acts as high court judge. In Customary Law

court or traditional legal system there is no capital punishment or death sentence which is

pass by the paramount chief though the accused is guilty of an offence of murder, what

the Judge normally do is to order the family and the close relatives of the accused to give

50 cows to the family of the deceased and the family of the deceased are warn not to take

revenge against the family of the accused. In traditional way of settling murder case the

accused is keep in the prison at the premises of the paramount chief this is for the security

of the accused not to be kill by the close relatives of the deceased

If the family of the accused and close relatives managed to collect 50 cows as soon as

possible, the cows are given to the family of the deceased before the court in front of

everybody, after the family of the deceased have received the cows then reconciliation is

made before the court by the elders and chiefs of both side before the paramount chief as

a signal for peace. A cow is slaughter and the vile is brought out from the dead cow and it

is dilute with water for both close relatives from the deceased and accused to drink, this is

done to show that the inner feeling of bitterness from deceased family is share with

family of accused and nobody who like what had happened therefore, the bitterness

feeling is for both either side this is called “gun e keth”. After all these no revenge which

is expected to be done against either by the brother of the deceased or close relative, if it

happened then it is regarded to be different killing for different reason not because of the

revenge because customary blood compensation is done and reconciliation is already

made.

This traditional way of handling murder cases is still in use in Jonglei State rural areas,

the people from the rural areas handle their murder cases and they send the copy of the

verdict to the State high court, if it is successfully settled the state high court has nothing

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to add but to pass it as it is because the people of that community have come to an

agreement of solving their problem. The example is a case of Kur Jikeny Malual who

killed a person in Akobo County in 2010; the case was brought to the state high court

after it had been settled in Akobo by Paramount chief. there was nothing amended in the

verdict passed by the chief and Judge of the high court was convinced by the judgment of

the chief though the accused was supposed to be charged of murder in section 206 but

because both parties came to agreement the case was mitigated to be culpable homicide

under section 210 Penal Code Act 2008 Law of South Sudan.

It is not every killing of human being which is term murder but there are certain

elements legally for the killing to be murder it have to qualify the below principles

Murder has a basic principle

Firstly, murder can be proven in four ways:

killing with the intent to kill

killing with the intent of inflicting grievous bodily harm

reckless murder

Killing while committing a crime of violence (felony murder).

In the Republic of South Sudan the statutory definition of murder is in section

206 penal code Act 2008.This section of the law is which Jonglei State High

Court refer to when convicting accused of murder (murderer) but previously

before the independent from the North Sudan it was section 251 of the penal

code law of the republic of the Sudan, the rest of the accused persons who were

convicted for murder before an independent they were convicted by section 251

of the law of Sudan these were the cases of murder before independent.

Using the definition found in section 206(1) Penal Code Act 2008 Law of South

Sudan starting off point, murder is defined as: 

“Whoever causes the death of another person;-

(a) With the intention of causing death; or

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(b) Knowing that death would be the probable and not only a likely consequences of

the act or of bodily injury which the act was intended to cause commits the

offence of murder, and upon conviction be sentenced to death or imprisonment

for life, and may also be liable to a fine; provided that, if the nearest relatives of

deceased opt for customary blood compensation, the court may award it in lieu of

death sentence with imprisonment for a term not exceeding ten years

The basic principle of murder involves two overarching components: the act or

omission causing death (actus Reus), as well as intention and recklessness

(mens rea). 

The intention to kill

In order for a person to be found guilty of murder, a person must have committed

the act which causes death, along with having the intention and the foresight that

their conduct might kill another person. Essentially, the intention to kill must

demonstrate that the person has knowledge that death may probably be the

consequence of the act.

The intention of inflicting grievous bodily harm

Similar to the other elements, an intention of inflicting grievous bodily harm is

enough for the offence of murder to be proven. However, a judge may also

decide whether or not a person intended, or foresaw, that death would be the

result from the acts. 

As it is defined above murder is unlawful killing when it is prove beyond

reasonable that, a person have committed an offence of murder not amounting to

culpable homicide. The punishment is (death sentence unless the close relatives

of the deceased opt for the customary blood compensation) this is very clear in

section 206 Penal Code Act 2008 law of South Sudan.

Murder has got its degrees which are consider in the court below are the degrees

of murder

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1. First-degree murder is the most serious form of murder. In most states, it is

categorized as "deliberate" - that is, the defendant made a clear-headed decision to

kill the victim; "premeditated" - the defendant actually thought about the killing

before it occurred (the period for this can be very brief); and "with malice"- doing

a harmful act without just cause or legal excuse.

2. Second-degree murder is killing another with malice - doing a harmful act without

just cause or legal excuse - but without premeditation or deliberation. In other

words, this means intentionally killing someone without planning to do so in

advance.

3. Manslaughter, this is unintentionally killing which mean an accused was not

having an intention to kill however he kill a person by mistake.

Statutory Criminal Justice System

Once a law enforcement agency has established that a crime has been committed, a

suspect must be identified and apprehended for the case to proceed through the system

sometime if the suspect is apprehended at the scene of the crime at other time however ,

identification of a suspect requires an extensive investigation to prove beyond reasonable

doubt that either he/she is the one who is suspected to have committed homicide or to

approve that he/she is not the very person wanted. But often if no person is identified or

apprehended by the police in some instance a suspect is arrested and later the police

determine that no crime was committed the suspect who has been arrested is release.

After arrest law enforcement agencies present information about the case and about the

accused to the prosecutor, who will decide if formal charges will be filed with the court.

According to the code of criminal procedure law of south Sudan Act 2008 police is

empower to investigate any crime under the directives of the Public Attorney or in the

absence of the public prosecution attorney under the directives of the magistrate or the

court . In section 37 (1) stated that, investigation as to any offence shall ordinarily be

conducted by the police service under the directives of the public prosecution attorney, or

in the absence of the public prosecution attorney, under the directives of the magistrate or

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court, and trial as to any offence shall be ordinarily be conducted by the magistrate or

court within the local limits of jurisdiction in which

(a) The offence was wholly or in part committed

(b) Some act forming part of the offence was committed

(c) Some consequences of the offence has ensued

(d) An offence was committed by reference to which the offence is defined

(e) Person against whom, or property in respect of which the offence was committed

is found having been transported there by the offender or by some other persons

knowledgeable about the offence; or

(f) The existence of the complainant , or the accused , or any property, with respect

to which the offence has been committed and the competent public prosecution

attorney deems it necessary and appropriate that investigation should not be

returned to the limits of local jurisdiction wherein the offence has taken place”

A suspect charged with a crime must be taken before a judge without unnecessary delay,

at the initial appearance the judge informs the accused of the charges and decides whether

there is probable cause to detain the accused person. If the offense is not serious the

determination of guilt and an assessment of a penalty may occur at the stage. According

to the code of criminal procedure Act 2008 law of South Sudan section 6 (a) it spell out

that “every accused person shall have the right of a fair and speedy trial and justice shall

not be delayed”.

A pretrial release decision may also be made at the initial appearance the court may

decide that the suspect poses a threat to society and place him or her in jail until the trial

the court may decide to release suspect with the understanding that he or she will return

for the trial or release the suspect on bail meaning he or she must provide the court with

monetary payment (bail) Which will be returned when the suspect appears for the trial in

Jonglei state criminal justice system the initial appearance is follow by a preliminary

hearing the main function of this hearing is to discover if there is probable cause to

believe that the accused committed a known crime within the jurisdiction of Jonglei state

justice system. If the judge fined that the probable cause or the accused waives his or her

right to the preliminary hearing the court is schedule for another session. Judge hearing

evidence against the accused presented by the prosecutor and decide if there is sufficient

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evidence to cause accused to convict. If the judge find that there is suspect evidence to

convict the accused the judge pass the judgment against the accused and the accused is

send to the state prison convicted for some good years it defend on the decree of crime

committed

Law enforcement Agencies in Jonglei State

The law enforcement agencies of the State is made up the below units as prescribed by

law of South Sudan.

1. The Police Unit

2. Prison service

Within the police there is crime unit police called “Criminal Investigation Department

CID” this unit is responsible for the investigation of crime and to detect the criminal

which is likely to commit crime either in the town or in the villages? CID department do

carryout the investigation under the directive from public prosecution attorney. in the

police there is another unit which is court police, the functions and duties of both CID

and the court police are to maintain law and orders in the court and in the State these are

units are empowered by the law of South Sudan Code of Criminal Procedure Act 2008

section 27 sub-section (a), (b and c) which spelled out the functions and powers of

crime police

The crime police are to carry out the following duties section 27 CCP LAW OF South

Sudan Act 2008

(a) To conduct any investigation or criminal proceedings according to the directives of

the public prosecution attorney;

(b) Present criminal cases to criminal court in accordance with the directives of public

prosecution attorney;

(c) To execute orders as may be passed by the public prosecution attorney

Also in section 30 of the code of criminal procedure Act 2008 law of South Sudan the

general duties of the police service is to;

(a) Prevent combat and investigate crime

(b) Maintain law and order

(c) Protect the people of South Sudan and their properties

(d) Uphold and enforce the Transition Constitution of South Sudan

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These are the functions of the police unit in criminal justice system in Jonglei State the

all system is the same across the republic of South Sudan because it is only powers which

are decentralizes but the function in the law remain the same. Jonglei State has got no

different criminal justice system however there are slight different when it come to the

execution of crime like adultery got different punishment in different state of South

Sudan though it remain criminalized in the penal code Act 2008 law of South Sudan

some communities are not practicing section 266 of the law because it is not a crime in

the their State but in Jonglei State is a serious crime. In the police Act 2003 law of South

Sudan police’s duty is to:

The Police shall be deployed for the prevention and detection of crime and prosecution of

offenders on behalf of the Attorney General and shall report back to the same on all steps

taken in that regard. The Police shall also be responsible for apprehension of offenders,

maintenance of public order and public security, safety of persons and property,

fulfillment of any obligations under law and regulations it shall also be responsible for

the custody of any unclaimed properties. (Section 10 Police 2003 Law of South Sudan)

The police Act 2003 section 10 together with section 27 of the Code of Criminal

Procedure shown that police has very crucial role in criminal justice system in Jonglei

State as it is empowered by these laws and the together laws which i did not quoted

Justice very often has to do not only with the treatment that people receive but with the

procedure that followed in order to arrive at the outcome; we can see this by think about

criminal justice. It matters of course, that guilty person is punished in propionate to the

crime and innocent person go free. That is what justice outcome requires but it is also

important that proper procedures are followed in arriving at a verdict.

Retributive justice

Is a theory of justice that considers punishment if proportionate to be the best response to

crime When an offender breaks the law, s/he thereby forfeits or suspends her/his right to

something of equal value, and justice requires that this forfeit be enacted. This is

sometimes taken to mean that justice involves seeking vengeance on behalf of the

aggrieved party, or society as a whole.

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In ethics and law "Let the punishment fit the crime" is the principle that the severity of

penalty for a misdeed or wrongdoing should be reasonable and proportionate to the

severity of the infraction. The concept is common to most cultures throughout the world.

Its presence in the ancient Jewish culture is shown by its inclusion in the Law of Moses

specifically in Deuteronomy 19:17-21, and Exodus 21:23-21:27, which includes the

punishments of "life for life, eye for eye tooth for tooth, hand for hand, foot for foot."

That phrasing in turn resembles the older Code of Hammurabi. Many other documents

reflect this value in the world's cultures. However, the judgment of whether a punishment

is appropriately severe can vary greatly between cultures and individuals.

Proportionality requires that the level of punishment be scaled relative to the severity of

the offending behaviors. However, this does not mean that the punishment has to be

equivalent to the crime. A retributive system must punish severe crime more harshly than

minor crime, but retributive differ about how harsh or soft the system should be overall.

Traditionally, philosophers of punishment have contrasted retributive with utilitarianism

for utilitarian; punishment is forward-looking, justified by a purported ability to achieve

future social benefits, such as crime reduction. For retribution punishment is backward-

looking, justified by the crime that has been committed and carried out to atone for the

damage already done

Depending on the retributive the crime's level of severity might be determined by the

amount of harm, unfair advantage or moral imbalance the crime caused.

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Chapter Three: Research Methodology

Introduction

As I mentioned in the introduction of the dissertation that, I would visit criminal justice

departments and the court of Jonglei State at the State headquarters to collect information

about how murder case is address here in the court of law, I really went to all departments

of criminal justice system, I went to the high court of Jonglei State to collect murder

cases and I went to the departments of criminal justice to collect information about how

do they treat suspect and which procedure do they follow to bring the accused before the

court of law

Below were the murder cases between the government and the suspects, in the first case the suspect was convicted of first degree murder which resulted into his death sentence , the verdict was passed on 20th 12 2011 in Jonglei State by the State High Court Judge . The details of the case are below

Criminal case (Murder) No: 15373/2007

It was reported by the complainant Manyok Garang that the accused Deng Mathiang killed the deceased Abuoi Garang Kur with gunshot caused him death that was on 25/12/2007.The silent summary facts of the case as follows:On date 25/12/2007 at around 6:00 o’clock in the evening, the accused and pw3 Manyok Buot went out to the forest for hunting and according to them somebody called Majak Nyok informed them that somebody has gone to the forest there caring a gun, and then they reached the forest the cows began to run toward them and pw3 saw somebody in the forest and asked the accused to sit down and the accused sat down and he removed his T-shirt and moved towards the deceased, the pw3 asked the accused to called at the deceased first but the accused did not listen to that but instead he opened a fire at the deceased after the accused went across the behind of the deceased and shot him with a lot of bullets which caused his death immediately and the accused ran to Bor town and handed over himself to the police.The two accused persons were arrested and the case was opened by the complainant, the investigation was conducted, the accused persons were charged under section 251 the penal code 2003, the case papers were forwarded to the court for trial of the two accused under section 251 penal code 2003 since there is prema facie case against the accused.

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During the first trial the 2nd accused was discharged and the accused Deng Mathiang was convicted under section 251 penal code 2003 and was sentenced to death.The convict appealed to the court of appeal and the court of appeal ordered for retrial of the case again.On date 15/11/2011 the accused was brought before the court for trial under section 251 the penal code 2003 on the ground that on date 25/12/2007 at Wunchuei cattle camp the accused shot the deceased with gunshot caused him death.The accused was charged with murder which was defined:Whoever causes death by doing an act?

(a) with the intention of causing death or such bodily injury as is likely to cause death or

(b) With knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

According to the definition the ingredient of the offence committed shall be discussed under the following headings.

Did the accused Deng Mathiang shot the deceased with gunshot?

There is sufficient evidence which shows that, the accused shot the deceased with gunshot.Pw2 the police who conducted the investigation testified that was the one who conducted the investigation and he visited the scene of the offence and he examined the deceased’s body and he found that the deceased was shot with unknown bullets all over the deceased body.Pw3 made evidence that when they went to the bush with the accused, while they were walking he saw the deceased in a far place he ordered the accused to sit down to see the person who was in the forest, the deceased, at the time pw3 tell the accused to ask the deceased first to be identified, the accused immediately removed his T-shirt and opened the gun and when to the deceased’s behind and shot him with gunshot.Also the accused admits that when he and pw3 decided to go to the bush for hunting, there in the bush they saw the deceased in military uniform, the accused sat down and removed his shirt and opened the gun and went across the deceased back, immediately the deceased turned back to him while the accused’s gun was already cocked, the accused shot the deceased with unknown bullet all over his body.These are the evidence which shows that the accused shot the deceased with gunshot.

Was the act of the accused was the one which caused the deceased death?

From the evidence provided, the accused reported himself to the police that he killed the deceased with gunshot, on the following date

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the police went to the scene of the offence to collect the deceased’s body.When the police investigator who conducted the investigation has examined the deceased’s body he found that the deceased was shot with a lot of bullets all over his body and the deceased died immediately.Pw3 made also enough evidence that when the accused shot the deceased, the deceased died immediately.Also the accused admits that when he shot the deceased with gunshot with unknown number of bullets, the deceased immediately died.Also there are medical evidences which show the act of the accused was the one which was caused the deceased death and that was indicated in the post mortem.-Post mortem-After the examination of the deceased-

1- There is a gunshot in the muscle arm.2- There is a fracture in the right arm bone caused by gunshot.3- There is a gunshot in the muscle joint.4- There is an opened wound in the different parts of the

deceased’s body caused by gunshot.5- There is a gunshot in the left side of the chest.6- There is an inner wound caused by gunshot.

The cause of the death is bleeding and fracture of the bones and the bullet ceased not to come out from the deceased body.

Whether the accused had the intention to cause the deceased death.

When the accused went to the forest with pw3 were informed that there is a person who went there in the forest and when the accused saw the deceased in military uniform the accused sat down and opened his gun ready for firing, the accused was advised to ask the deceased first but he refused to listen and immediately he shot the deceased with unknown number of bullets caused him death on sport.The conduct of the accused when he saw the deceased, the accused became wild and his mind was concentrated to the target the deceased even when the accused shot the deceased the accused used excessive force against the deceased when he shot the deceased with a lot of bullets, the accused must be fully aware that his act will likely caused the deceased death and not probable.Considering the weapon which was used in the commission of the offence and the nature of the wounds inflicted on the deceased by the accused, the part of the body which was affected by the act of the accused.In the commission of the offence the accused used AKM rifle which was manufactured for the killing purposes as a dangerous weapon.The accused inflicted serious wounds on the deceased body.

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Also apart from the head, the accused shot the deceased all over around his body like the chest, stomach, the back, legs and arm, all these parts of the body are very sensitive parts if got affected by the act of the accused can cause the deceased death.The accused was argued that when he killed the deceased he did not intent to kill him but he suspected the deceased to be an enemy from Murle tribe who is allowed to be killed.The common practice in Bor Town during court proceedings, the accused persons used to raise killing of Murle or Mundari as defense because this two tribes are categorized as enemies of the people of Bor, but that one is against principle of law.The accused contended that he killed the deceased as Murle man, but the accused must know that his motive is to kill human being.Regardless the human being from Murle or Mundari and he satisfied his motive when he killed.This one is not acceptable and cannot be raised as a defense before court of law.The weapon used, the nature of the wounds inflicted on the deceased, the part of the body which got affected by the act of the accused, the accused had full intention to cause the deceased death.And that was held in:sudan governmentvsidris hamad el nil fadl el mula andAnother

sudan journal report1961 PAGE 128/129

M.a abu rannat c.j January 24 962 the facts set out in the summary of salient facts are supported by sufficient evidence. Accused no: 1 admits that he struck the deceased with a heavy stick on the head and thereby caused his death, the weapon used and the nature of the wounds indicated that the accused no: 1 must have intended to cause deceased’s death. There is also evidence that accused no:1 killed the deceased in revenge for the death of his brother by el bella el mahi and gubart alla khamis who are the nephews of the deceased.There are no mitigating circumstances which reduce the offence of murder to culpable homicide not mounting to murder and i therefore confirm the finding of murder and death sentence passed against accused no:1 idris hamad el nil fahd el mula

The court has found that the accused Deng Mathiang Deng was guilty under section 251 penal code 2003.The accused raised that when he killed the deceased he did not intended to kill the deceased as his defense, this will take me to discuss the exceptions in the section 249 penal code 2003 to find out

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whether the accused will benefit from one of them to reduce the offence of murder to culpable homicide not amounting to murder.Section 249 (1) 1- Culpable homicide is not murder if the offender whilst deprived of power of self control by grave and sudden provocation causes the death of any person by mistake or accident.The question of provocation raised either by word said, or by act done or by both- and the provocation must be grave and sudden.When the accused shot the deceased with gunshot the deceased have done nothing to the accused because the accused saw the deceased from far place like 150 meters and immediately shot the deceased caused him death immediately, therefore the accused will not benefit from this mitigating.2- culpable homicide is not murder if the offender in the exercise in good faith of right of private defense of person or property exceeds the power given to him by law and causes the death of person against whom he is exercising such right of defense without premeditation and without any intention of doing more harm than is necessary for the purpose of such defense.The accused will not benefit from this exception because was not defending himself or property or any other person because the accused shot the deceased from a far place although the accused was arguing that the deceased turned to him and wanted to shot him this are fouls allegation.3- culpable homicide is not murder if the offender being a public servant acting for the advancement of justice or being a person aiding a public servant so acting exceeds the power given to him by law and caused death by doing an act which he in good faith believe to be lawful and necessary for the due discharge of his duty as such public servant in due discharge of such duty and without ill will towards the person whose death is caused.The accused is not a public servant or a person who aiding or assisting a public servant in the advancement of justice and exceeds the power given to him by law and caused the deceased death, so he will not benefit from the exception.4- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.There is no any fight between the accused and the deceased which was resulted to the death of the deceased, therefore, the accused will not benefit from the exception.5- Culpable homicide is not murder if the offender at the time of committing the act was under the influence of mental abnormality due to mental retardation or any injury or a disease of mind to an extent that substantially affects his ability to direct or control his act.

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The accused will not benefit from the exception because at the time committing the offence the accused was not under the influence of any disease of mind which affected his ability to control his act.6- Culpable homicide is not murder when the person whose death is caused being above the age of eighteen years suffers death or takes the risk of death with his own consent.The accused was not mandated by the deceased to cause him death on his own consent, therefore the accused will not benefit from the exception.After the court have discussed all the exceptions in section 249 the penal code 2003, the court found that the accused did not benefit form one of them which can reduce the offence of murder to culpable homicide not amounting to murder. Hence the accused will be sentenced under section 251 penal code 2003 and the accused will be sentenced to death.Sentence:

1- convict Deng Mathiang DengSentenced to death by hanging from the neck until his death

Made under my hand on date 20/12/2011.

________________________Makur Machok Manyuon

Judge of high court Jonglei stateBor

Customary Law Court Murder Cases

In Jonglei State there are many tribes which have their different traditional practices they

have different courts systems in their various communities and ways of handling their

murder cases. In every tribe there is a paramount chief (head chiefs).

The below was the murder case which was settled in traditional way of how the

paramount chief handle the murder case, it would have been in section 206 of the penal

code Act 2008 Law of South Sudan however, because it was handle in tradition way it

fall under section 210 of the law which is culpable homicide but it would have been a

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murder case if it was referred to a statutory Jonglei State high court. According to

tradition justice system no death penalty which is pass by the judge (paramount chief) but

only customary blood compensation regardless of an intention of the accused, no define

degrees of murder that is the reason why no death penalty is pass everything is under

culpable homicide which mean the accused is to pay compensation and fine after

payment no imprisonment is imposed on the accused unless he refused to pay a fine and

customary blood compensation but if he paid he goes free to the community as someone

who did not commit any crime.

The Case (Murder Case)

On date 2/12/2011, the accused Kur Jikeny Malual was brought before the court for trial under section 206 the penal code 2008, on the ground that on 26/11/2010 in Akobo Town the accused shot the deceased with gunshot caused him death.The accused was charged with murder which was defined. 206 murders:-Whoever causes the death of another person:-

(a) with the intention of causing death or(b) knowing that death would be the probable of and not only

a likely consequence of the act or any bodily injury which the act was intended to cause commits the offence of murder and upon conviction be sentenced to death or imprisonment for life, and may also be liable to a fine, provided that if the nearest relatives of the deceased opt for award it in lieu of death sentenced with imprisonment for a term not exceeding ten years.

According to the said definition, the ingredients of the offence committed to be discussed under the following headings:

Did the accused shot the deceased with gunshot?The complainant made his evidence that the accused killed his brother the deceased with gunshot and the relatives of the accused paid 120 cows as blood compensation.Also the accused admits that he shot the deceased with gunshot by mistake and he added that he had the intention to shot another person from another section during the fight but I missed that person and shot the deceased by mistake.

Was the act of the accused was the one which caused the deceased death?

Without looking into any other evidence the accused admits that he shot the deceased with gunshot caused him death.

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Also the complainant added that the accused killed his brother with gunshot.There is no medical evidence to show that cause of the death of the deceased because when the deceased died immediately was buried as a common practice in the rural areas when the deceased died used to be buried without medical examination.

Whether the accused had the intention to cause the deceased death.

The accused shot the deceased with gunshot caused him death.The weapon used and the nature of the wounds indicated that the accused must have intended to cause the deceased’s death.There is no mitigating of the circumstances to reduce the offence of murder to culpable homicide not amounting to murder. Therefore the court found the accused Kur Jikeny was guilty under section 206 the penal code 2008.The court will not waste its time to discuss the mitigating of the circumstance in section 210 the penal code 2008, because the two parties reached to settlement and the relatives of the accused paid 120 cows as blood compensation to the deceased’s relatives according to the prevailing custom in the area, therefore the court will pass its order according to the settlement and the accused will be sentenced under section 210 the penal code 2008.Sentence:

1- Convict Kur Jikeny Malual1- to pay the amount of 3000 SSP as court fine in default of

payment is to serve two years imprisonment as from 2/12/2011

2- Convict Kur Jikeny and his relatives are to pay 120 cows to the relatives of the deceased Yec Ruon Tot as his blood compensation and to be collected in accordance to civil procedure.

Made under my hand on date 2/12/2011.

_______________________Makur Machok Manyuon

Judge of high court Jonglei stateBor

Chapter Four: Data Analysis.

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Introduction

Data Analysis (Discussion) over murder cases collected in Jonglei State High Court.

I would like to put my own analyses on the murder cases judgments which were passed

by the state high court judges, on some cases I may concur with them but on other cases

I will not because of the way they passed their judgments does not address the case in

legal sense.

Analyses on Murder Cases

Pertaining the case of Deng Mithiang Deng I concurred with the judge on the judgment

he passed by sentencing the accused to be hang, according to the law in section 206

Penal Code Act 2008 Law of South Sudan. Deng Mathiang Deng deserves death penalty

because he had fully committed first degree murder. My support for the judgment bases

on the following legal grounds

(a) Deng Mathiang Deng was advice to ask the deceased before he could fire at him

but he refused to ask. He was supposed to ask the deceased before he could shot

him to know whether he is an enemy or not, and that is the reason why soldier ask

the stranger at night by “stopping and ask who are you” if he is an enemy then he

would be the ones to start shooting first, from there no blame though he is killed

because he was asked to stop and declared himself to be known. But Deng

Mathiang failed to ask the deceased. He (Deng Mathiang Deng) was fully aware

that deceased is in the forest.

(b) He was fully informed that there is somebody who went in the forest for hunting

ahead of him.

(c) He failed to rise an alarm such that a deceased could be aware of him

(d) He used excessive force by firing at deceased with uncountable number of bullets

(e) He knows very well that forest his not is home alone it is a place for everyone

therefore, there might be someone in the forest for hunting as he was told before

he could come for hunting, and why did he shot at person randomly without

asking.

(f) He was having an intention to kill human being as he said that he “thought

deceased was a murle or Mandari” Murle and Mandari are human being why

should he intend to kill them when they did not attack him

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(g) Deceased did not fired at him even his gun was not cocked

The accused was having an intention to kill human being, this is a real first degree

murder case, and for better understanding here is an example of the

First Degree murder

in most states, first-degree murder is defined as an unlawful killing that is both willful and premeditated, meaning that it was committed after planning or "lying in wait" for the victim.

First Degree Murder: An intentional killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated action.

So the accused (Deng Mathaing Deng) had committed first degree murder

because he was aware of a person in the forest. He was aiming at killing murle or

Mandari, he shot the decease knowing that he is a human being therefore; his

action was deliberate and premeditated action to kill human being.

The verdict passed by the judge is accurate judgment he should face the justice

under section 206 of the Penal Code Act 2008 Law of South Sudan. So by

sentenced him to be hang is a justice therefore justice had been done in this case.

Analysis on the judgment passed by Jonglei State High Court Judge on Kur Jikeny

Malual murder Case Committed in Akobo County

My analysis on the verdict of the Kur Jikeny Malual case is contrary to what both Judges

passed, statutory judge and Customary Law Court Judge, in the case I regarded that the

justice had not been done because of the below reasons.

1. It is not a jurisdiction of the customary law court to trial murder case. according to Local government Act 2009 section 98 (2) A Customary Law Court shall not have the competence to adjudicate on Criminal cases except those criminal cases with a customary interface referred to it by a competent Statutory Court. So in this case, the case was not transfer by the high court to customary law court

(a) High Court Judge would have cancelled the judgment passed by the customary law court simply because it is not a jurisdiction of the

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customary law court to trial murder case. Jurisdiction of the court is a legal ground for defense and it shows the competency of the Judge whether he/she really a legal minded person, how come for a high court Judge not knowing the powers confer to his court.

(b) Murder case is a jurisdiction of the high court to trial but not customary law court, so the decision of the traditional court is null and void

2. Accused was supposed to be imprisoned for a term not exceeding 20 years or

death sentence because the case was suppose to be murder case but if it was

mitigated to pay customary blood compensation then he was supposed to have

been imprisoned for a term not exceeding ten year as it is say by the law in

section 206 penal code Act 2008 Whoever causes the death of another person;-

(a) With the intention of causing death; or

(b) Knowing that death would be the probable and not only a likely consequences of

the act or of bodily injury which the act was intended to cause commits the

offence of murder, and upon conviction be sentenced to death or imprisonment

for life, and may also be liable to a fine; provided that, if the nearest relatives of

deceased opt for customary blood compensation, the court may award it in

lieu of death sentence with imprisonment for a term not exceeding ten years

3. Kur Jikeyn Malual was intended to kill a person from other side therefore the

case is murder if the close relative opt for the customary blood compensation he

should have been imprisoned for a term not exceeding ten years ,because this is

what the law say to be done for the justice to the deceased the high court Judge

failed to considered this part of the law

4. Cows paid to the family of the deceased which was 120 cows are more than what

the law says, according to traditional customs of both Nuer and Dinka. Customary

blood compensation should be 50 cows not less than and not exceeding. This was

another failure from Bench Court Judge and Statutory high court Judge, the high

court judge was the very person who was supposed to correct this error because it

is a jurisdiction of the high court to trial murder case

The reason why criminal are punish is to deter future crime but if the Judges don’t

correct the error and leave it as it is then many more crimes will be committed

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the above judgment is out of the law is neither traditional judgment nor statutory

judgment so the justice had not been done by both judges.

So to come into conclusion of this analysis, I really confirmed what citizens of

Jonglei state complaint for, by saying that those who have committed felonies

crimes sometimes do receive less punishment instead of severe punishment which

is equivalent to their crime they have committed, this is what happened with this

case of Kur Jikeny Malual who received culpable homicide punishment instead of

being charged of murder case. There is no mitigation factors in the of Kur Jikeny

Malual which could mitigate it from first degree murder to be culpable homicide

Personal Analysis on the appeal lodged by the Advocate or Defense Lawyer of Magok

Yiel Chol against the verdict passed by the Judge Makur Machok Manyuon

I personally do agreed with the defense lawyer of Magok Yiel Chol on mitigating the

case from murder to be culpable homicide base on the following reasons

(a) The family of the deceased were aiming at cleansing Magok family the evidence

is that they killed Magok Yiel Chol ‘s two brother in different place which meant

they were hunting for Magok to Kill him

(b) Law enforcement agent in Ayod County provoked the situation by saying that

they are “unable to apprehended the suspect” who killed Magok Yiel brothers

how could law enforcement say that they are unable to captured the suspect

what is their duties

(c) The deceased and his brothers were hunting for Magok Yiel Chol that was the

reason why they went to Fangak County searching for Magok to kill him

(d) Magok Yiel was trauma by the killing of his second brother because the way he

was kill (Magok’s Brother) was in-human, his privates parts were cut off e.g.

penis and testis were cut and put into his mouth, so such a killing provoked and

trauma Magok mind in a sense that he couldn’t control himself

(e) The two suspect from the decease family who first killed magok ‘s two brothers

were not even arrested

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(f) The police Director in Ayod were the one who facilitated the killing of Magok’s

brother therefore, Magok felt angry about the act committed in present of the

law enforcement agent but police did nothing to suspect (Killers) so he

concluded that it was something agreed by the police and the family of the

deceased.

(g) That was the reasons he killed after the killing of his two brothers. How can a

person killed and escaped in the present of the police without any trial

In conclusion pertaining the above appeal I agreed that the case should have

been mitigated to culpable homicide instead of murder which led to the death

sentence of Magok, the accused(Magok Yiel) was acting brutally due to the

failure of the government of the state and the criminal Justice system to

apprehend the suspect therefore, if there is nobody to apprehend the suspect

then he could take the law into his hand to avenge his brothers who were killed

and to protect himself from being kill again by the same people who killed his

brothers. If the suspect was arrested Magok would had not killed him the prison

but because the law enforcement agent failure to do their job that resulted to

the accused to kill the deceased. (Magok Yiel killed the first accused that killed

his two brothers)

To conclude this chapter, my analyses over these murders cases which are in chapter

three is that, the criminal Justice system in Jonglei State is not really render justice to the

citizens and the justification.

Why do high court Judges trial cases of the same degree differently what influent them in

their decision making, justification are Kur Jikeny Malual case which was supposed to be

murder but due to unknown factors it was mitigated unlawfully to be culpable homicide

and not even culpable homicide but to undefined legal mitigation factor, if it was

mitigated to be culpable homicide he would have sentenced to 10 years imprison with

lieu of customary blood compensation but instead of that he was set free after the

payment of customary blood compensation, so is there justice? Are Judges of the high

court really implementing what law says? Absolutely no because if they are then Kur

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Jikeny Malual would have face justice which would had been imprisonment for a tern not

exceeding ten years if it was mitigated from first degree murder to be culpable homicide.

Another case is a case of Magok yiel Chol who was sentenced to death penalty this man was the one who deserve not to be sentenced to death penalty because there are mitigating factors which could mitigated his sentenced to be culpable homicide however due to incompetency of the Judges and not only judges but the whole criminal justice system he was sentenced to death penalty. I would like to include the factual facts of his case for the better understanding.

This was the facts of the case and cause of his action together with the appeal made by his defense lawyer Mayen Maker, however either of them was not considered by the high court Judge

Facts of the case and Cause of Action: In 2008 at Night in Ayod County, there was a traditional dance organized between

Chiengkich and Chiengkuoth communities respectively. Unfortunately, on the same

night of dance, the fighting erupted between young men of the said two communities

which led to the instant death of three young men from Chiengkich and one from

Chiengkuoth respectively. This was followed by reconciliatory meeting of the chiefs

from the two communities who resolved to cease hostilities and live side by side in a

harmonious co-existence. But the chiefs’ resolution to end the conflict did not hold water

since the accused brother, Reath Yiek Chol, was killed in Wechdeang area by: Makoi

Nyayaka from Chiengkich following the Chiefs’ resolution. Nevertheless, another

accused’s brother, Geng Yiek Chol, got called into police service by Pajoak, a police

officer from Chiengkich community, in November 2010. Although he insisted on not

going to an area occupied by Chiengkuoth for fear of being killed, Geng got convinced

by the Pajoak who offered to send his names to Jonglei Police Department after direct

scrutiny of his police services. On arrival at Chiengkuoth area, the accused brother got

mysteriously killed by Chiengkich community members since the said two communities

live in the same Boma of Wechdeang in Pagel Payam under the same head chief by

names of Jur Riek Koak. Geng had his arms amputated; his private parts cut off and put

into his mouth and finally killed mysteriously. This mysterious killing of the accused’s

said brother after the chiefs’ resolution was a grave and sudden provocation to

Chiengkuoth community and especially to the accused. This was followed by reporting

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of Geng’s death to the Commissioner of Police, Galoak Leat, and to the county

Commissioner who sent eleven (11) policemen, including the Commissioner of Police

himself, to Chiengkich community. The accused’s brother’s death was reported to the

police authority by police officer, Pajoak Biel who was an eye witness in the death of the

accused’s brother in an area called Pulieth. It is important to note that the accused’s

brother was killed using pajoak’s gun. The said policemen were told, after reaching the

said destination that the culprit(s escaped to Fangak County. The said policemen

followed the culprits to Fangak. After they found them in Fangak, the policemen alleged

that the culprits refused to go back to Ayod because ‘they do not belong to Ayod’. To this

effect, the said policemen returned to Ayod claiming that they could not bring the culprits

to Ayod because they refused to be brought to Ayod because it was not their

jurisdictional area! On hearing police failure to bring the culprits to book, the accused

came from Juba and asked the police Commissioner in Ayod regarding their progress

with respect to the killing of his brother. But the police Commissioner informed the

accused they had failed to bring the culprits to book because they refused to be brought to

Ayod on allegation that Ayod was not their jurisdictional area. This was a mitigating

factor in the accused plot to avenge the death of his two brothers. The act alone was a

grave and sudden from the psychological view point and so the opinion that the accused

is guilty of murder would be flawless considering the fact that the accused did not intend,

in the first instance, to avenge the death of his two brothers.

High Court decision:

The High Court Judge sentenced the accused to death by hanging from his neck until his

death in accordance with section 206 of South Sudan Penal Code Act, 2008.

Legal issues:

It is imperative to point out that the High Court, in passing a judgment against the

accused, did not consider the psychological trauma caused to the accused following the

killing of his two brothers by the said community. Accordingly, the blame would, to a

greater extent, lie upon the police as a law enforcement agent. Its failure to bring the said

culprits to book is a grave and sudden provocation to the accused considering the fact that

he lost his two brothers to the same community. Above all, the killing of his last brother

would have made it sudden given his mysterious killing as explained herein above. In this

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respect, the High Court Judge, Hon. Makur did not follow the required legal procedures

circumvent in the case. The justification of the said procedures is as seen hereunder:

1. It was reasonable to bring the killers of the last brother (Geng) to book given the

duty police has towards the said communities plus the general public. It may

have been a persuasive move to say that the accused refused to be brought back

to Ayod. What is reasonable and/or appropriate would be to say that the culprits

have been arrested and would be held accountable in Fangak because of

jurisdictional clause between the said counties. It is dreadful to imagine how

police can/has been a failure in this case in which the accused is unreasonably

sentenced to death by hanging! It is probable that the accused would not have

made the death of the two persons possible if the police acted with swift resolve

to hold culprits accountable for their acts in the death of the said brothers. From

the legal viewpoint, this act would be treated under culpable homicide not

amounting to death-see section 210 of Penal Code Act, 2008.

2. The death of the first brother may have not been a mitigating factor since he was

lost in the first fight. But considering the mysterious killing of the last brother as

explained herein above, this act would have been a grave and sudden

psychological provocation to the accused. The High Court judge failed to

consider the psychological trauma that this death caused to the accused. The

court ought to have reasonably considered the degree and the nature of the

death caused to the accused brother (Geng) under the lax enforcement of law by

the said police authority. This fact is a material reason which would have led to

the accuser’s commission of the act in avenging the death of his said last

brother. In the eye of law, the accused should be tried under section 210 of the

South Sudan Penal Code Act, 2008.

3. The High court Hon. Judge failed to summon the accused witnesses before

passing the judgment. It was probable that the appearance of the witnesses

would help the Court decide appropriate sentence against the accused given the

complexity of his act. It would be unreasonable to have born in mind intentional

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killing without exhausting all legal procedures; otherwise the court would have

been misled in its opinion. To convict someone for murder requires an

exhaustion of all doubts which would need to be proved beyond a reasonable

doubt plus all necessary mitigating factors. In the present case, there are

loopholes within the decision of the High Court which would need a legal

scrutiny by a way of review and/or revision by the Appellate Court. Yes, it is

admissible that the accused caused the death of the two persons as stated in the

judgment. But his commission of this act was mitigated by material factors as

explained herein. It would have been probable to summon the Police

Commissioner plus the Investigator to exhaust all claims by the accused

regarding police failure to hold the culprits accountable for the mysterious killing

of the last brother-Geng. The High Court Judge failed to order for their

appearance! Therefore, this decision should be reduced to culpable homicide

not amounting to death.

4. In Government of Sudan vs. Ayuen Dek Madut (Ac-CP-83-1974), the accused

was charged with murder under Sudan Penal Code, 251 and sentenced to death

by hanging. Accordingly, the accused witnessed the mysterious death of his

father and had this psychological trauma of his father’s death carried on for

years until he avenged the death of his father by killing the killer of his father.

The Major Court found the accused guilty under the Sudan Penal Code, 251 and

sentenced him to death by hanging. On review, the Supreme Court as a

confirming authority altered the judgment and sentenced the accused to 8 years

imprisonment on account that the accused was psychologically traumatized by

the death of his father in the hand of the deceased.

5. In Government of Sudan vs. Suleiman Mahmoud Hassab El Rasoul (AC-Cp-139-

1969), the Major Court found the accused guilty under section 251 of Sudan

Penal Code and sentenced to death on a charge of causing the death of Amna

Ahmed Babiker. The salient facts of this case are as follows: accused was in

charge of the cultivation of the village’s Sheikh, which was in a neighborhood of

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the cultivation of deceased. Accused found some water melons were severed

and removed from the cultivation; he suspected that they were stolen by the

deceased. Accused divulged his suspicion to the deceased’s aunt, and the latter

brought it to the knowledge of the deceased. On the next day, accused and

deceased met, deceased inquired about what accused said to her aunt, and

when he confirmed what he said, deceased insulted him by saying that he was

“firga” and “hawan.” These words mean “a man of bad reputation” and “a man

of no merits.” Respectively. Then she slapped him on his cheek with her hand,

and further pushed him against a sarif, until the sarif fell down, and accused fell

down on it. He stood up, drew his knife that was on his arm, and stabbed

deceased on the right side of her chest above her bosom which penetrated

through and injured the lung and the heart, and lastly caused her instantaneous

death.

There is no doubt about the knowledge of the accused that death would be the

probable consequence of that hard stab that he dealt on deceased. The opinion

of the confirming authority differed, they thought that the insults were not grave

and that the slap on the face was a slight thing and that both of them did not

amount to grave provocation. The second major Court followed this opinion. In

such cases, the reasonable sentence is between 14 and 10 years’ imprisonment,

it may be aggravated in this case because the victim was a woman. Twelve years

may be fair. Above all, the confirming authority altered the finding to be under

the Sudan Penal Code, S. 253 and sentenced the accused to imprisonment for

twelve years as from the date of his arrest.

Seen from this case, it is important to understand that the circumstances which

led to the death of the two said persons for whom the accused is convicted, as

stated in the judgment, were too compelling given the manner in which the

police held the case involving the death of accused’s brother(s). It is a legal

requirement that the police should act within its confines in enforcing law and

order. Its failure to hold accountable the perpetrators of law is non-excusable in

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the eye of law. The accused benefits from the fact that the police did not use

appropriate powers in holding the perpetrators of law accountable. In this sense,

the appellate court should use its powers to review and/or revise the decision of

the High Court Judge. To this effect, the accused’s act should be treated under

culpable homicide not amounting to death.

Given the similarity of events in the above two cases and the foregoing case in which

the accused, Magok Yiek Chol has been sentenced to death by hanging, it is probable

that the High Court Judge did not take reasonable decision in passing this judgment. We

think that other material mitigating factors ought to have been given reasonable weight

by the Court. Accordingly, the High Court Judge should have born in mind the following:

1. That the presence of police commissioner was a necessity but not just a

requirement since they failed to hold the perpetrators of law accountable;

and since altogether they failed to curb the compelling situation which led to

the death of the said persons including the accused’s brother(s);

2. The High Court Judge should given due weight to the appearance of the

accused’s witnesses which would induce the taking of appropriate and/or

reasonable decision;

3. The High Court Judge should have born in mind the legal requirement that

criminal offences require proof beyond a reasonable doubt plus exhaustion

of doubts in terms of mitigating factors which are circumvent in the case;

4. The High Court Judge did not consider the fact that the death of the said two

persons as stated in the judgment was adduced by the mysterious killing of

the accused’s brother (Geng) coupled with the police failure to bring the

culprits to book; and

5. The high court Judge failed to follow the legal procedures required under

South Sudan penal Code Act , 2008, S. 61.

Our Request:

35

Having exhausted all necessary doubts in light of the High Court Judge decision and after

legal scrutiny of the said decision, we, on behalf of the accused- Magok Yiek Chol,

request the Honorable Appellate Court to:

1. Review and/or revise the decision of the High Court Judge;

2. Cancel the decision of the High Court Judge in light of the reasons stated herein

above;

3. Frame issues and send them back for retrial by the High Court;

4. Direct the High Court Judge to order the appearance of all witnesses including

the police officer who had gone to search for culprits who had escaped to Fangak

County and the Police Investigator; and

5. Decide any other sufficient grounds which would serve the interest of justice.

In view of the above request, it is important to pinpoint that the accused is a victim of

circumstances which he did not intend to befall his person. As justice demands, it would

be immaterial to not state the grounds upon which the accused benefits from law given

the mitigating factors which were too compelling. In contrast, there is great proximity

between the death of the accused brother and the said two persons. This is in a part

and/or whole accounted on the police as law enforcement agents who failed to hold the

killers for the accused’s brother accountable for their acts which should have been

treated in accordance with South Sudan penal Code Act, 2008, S. 206. Given this

situation it was probable that the accused would be compelled by the said mitigating

factors which led to the death of the said brother coupled with the previous killing of his

first brother in the fight. Accordingly, it should be born in mind that the loss of two

brothers was a grave and sudden provocation to the accused given the manner it was

handled by the police! In this sense, we request the Honorable Appellate Court to allow

justice take its cause; we equally pray that the accused be treated in accordance with

appropriate law which would never be murder in any legal sense given the nature of

things imprudent in the case. To this effect, he should be treated under South Sudan

Penal Code Act, 2008 Section 210- culpable homicide not amounting to death and be

36

given a reasonable sentence considering the materiality of the mitigating factors as so

explained herein above

It is our sincerest hope and anticipation that this request for review and/or revision be

done in accordance with the justifiable laws.

Yours in Justice

M.M Maker

Advocates and Legal Consultants before all Courts

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Chapter Five: Conclusion and Recommendation

Conclusion

Statutory and Customary Law Court (Traditional Courts) of Jonglei State

The above courts systems are both working in Jonglei state, statutory is in the urban areas, it comprises of High Court, County Court of the First grade and County Court of the second grade whereas Customary Law courts are situated in the rural areas Traditional courts are headed by the paramount chiefs, this is according to the Transition constitution of the Republic of South Sudan which permitted the establishment of other courts in article (123 sub-article e) some communities in the state are still using traditional courts system in the part of the state according statutory law of the land bench /customary law courts all over the country are not empowered to trial murder case or felonies cases at least misdemeanor because it has no jurisdiction to trial felony case however due to circumstance customary law courts trial murder cases in the rural areas of Jonglei State.

The way justice is being practice here in Jonglei state shown that there is no justice which is being practice, if you look critically at the murder cases of Mr. Deng Mathiang Deng and Kur Jikeny Malual they have no different they are the same first degree killing but because justice is not consistency in Jonglei State created a different between them Kur Jikeny Malual was supposed to be sentenced to death like Deng Mathiang Deng is case is murder case despite of the judgment passed by the paramount chief in Akobo county court. Customary law court has no jurisdiction over murder case or felony crime a High Court judge would have put aside the judgment of the county customary law court because jurisdiction is matter.

According to the law no compromise, people should not be compromise without justification Kur Jikeny Malual would have been sentence to death like Deng Mathiang Deng why do the judge fear to correct mistake done by the paramount chief, law is about correction if wrong thing are commit by lay man it should be corrected by legal minded person Iam really condemning the judgment passed over Kur Jikeny Malual case he deserve death sentence according to law of this nation. the reason why I insist he would had deserve severe punishment is that, he was aiming at killing human being from the other side that was his intention if he missed and killed different person still he could be held responsible for that and should be punish as law required despite the agreement reached by both parties . He would have been sentenced for 20 years imprisonment.

The reasons why criminals are punish is to prevent future crime which can be committed by different persons and to rehabilitate, if nation want to be a peaceful nation then criminals ought to be punish in proportionate to their crimes they have committed without compromise unless there are mitigating factors in the murder case. But mitigating the case from murder to culpable homicide without justification is injustice and it encourage criminal to commit crime in the community. Criminal justice system should do justice to all people regardless of whatsoever because “justice is for all”

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Recommendation of what to be done to rescue the situation

1. Prisons serve of Jonglei State

The challenge to the prison serve is the issue of escaping, sometimes murderers escape

themselves in the prison in April 2012 three murderers escaped from Jonglei State Prison

they were sentenced to death penalty. A question can be asked about how prisoners

escape in the state prison while it is fenced and at the gate there are prisons watchmen

Exit is one way so how do prisoners escape themselves? The definite answer is; the

prisons staffs are not serious doing their work if they are serious prisoners could

not/cannot escape away from the state prison, this is a signal shown to the public that

prison serve staffs are not well train on how they discharge their duties Another thing is

that, they (Prison security staff) do cooperate with the prisoners that why they allow them

to escape

The solutions to this problem are;

(a) Prison serve staffs need to be train to know their duties, the reason is that those

who are employed in the prison most of them are not well educated so they don’t

know what they are doing.

(b) The staffs and guard of the prison serve need to be aware about their duties and

the reason why criminal are keep in the prison such that they could understand the

meaning why criminal are jails

Prison serve is to execute the penalties when the judgment is being passed by the court of

law it main function is; correctional, reformative and rehabilitative. The convict is taken

to the state prison purposely for the above reason so that one day one time such a person

may change his/her way of behaving and become a good citizen of the State.

In the State prison there are 236 inmates who have committed different crimes, their

number is not constant because more are release and more are brought in so the number

of the prisoners in the State Prison keep on changing sometime increase and some

sometimes decrease. Those who had committed murder some don’t even serve their term

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in the prison due to the incompetency of the prison staff so to avoid this it need intensive

training for the staffs to enable them to do their work.

2. Police Serve of Jonglei State

Police of Jonglei state most of them are not literate majority don’t know how to write

their names on the paper even those who are deployed in criminal investigation

department (CID) majority don’t know how to read and write. This is another problem

how can a person be an investigator while he/she doesn’t know how to read and write.

The problem people are being employed in the government to receive money but not to

do the work and render service to the citizens, most of the polices men/women value

money then what they can do to the society, so in short the police in Jonglei state most of

them don’t know their duties they are not well informed about their work, police need to

be well equipped to do the required duties.

Police in Jonglei state don’t see themselves as law enforcement agent but they see

themselves as lawyers, the police of Jonglei state do arrest citizens without any directive

from the public prosecution attorney, example is I

On date 6th September 2012 I was arrested by the courts police under the directive of

certain court police, the reason was that, I asked him about my case then he did not

answered me for the first time for the second time I asked him again then he told me that

you young man don’t disturb me Iam not working with you I told him yes you are not

work for me but for the public what I wanted to know is that my case is before which

judge, he replied to me by telling me that “ you are stupid” why did I tell you and you

don't want to understand. I replied to him sir am not a stupid but I wanted to know

something about my case, he repeated the word by saying “your mind of stupidity don’t

bring here he went on and caught me by the collar of my shirt I told him that you don’t

know what you are doing why are you caching me like this are you a police really why do

you wanted to fight me yet you are the one who abused me I went telling him please

mind your duty. He boiled up and slapped me I ran backward he started calling police to

arrested me when police came they started by slapping me I told them please I did not

commit any offence here in the court fence so they told me “why do you disturbed police

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by asking him and you fight him go to jail” I told them person couldn’t be just arrested

for nothing without any warrant of an arrest from there the police started pushing me and

beating , then I told them if it is a matter of jail I will go alone leave me don’t push me

like a criminal I did not commit any crime. They did not listen to me they threw me in

the jail by force I spent four hours in the jail when my brother came who is their

colleague he went to them and asked them the reason why Iam jailed they told him that

your brother is nasty he did not respect people he like to asks many questions to the

police so because of you he would be out. Just like that I was released after I was released

I when to public prosecution attorney and opened the case against the one who ordered

police to arrested from there the case was transferred to the investigation police to follow

the procedure in the police I was told that you just go home you would be called from the

case dyed off no progress.

So the reason why I have narrated all these is to prove that, our police are not trained they

don’t know their duties they see themselves as judge, they arrest people without summon

neither an arrest warrant nor directive from the public prosecution attorney. In my legal

point of view there is no justice in Jonglei State law enforcement agencies don’t know

their duties, which is to be blame is the government who fail to employed qualifies

people and who fail to train law enforcement agencies to know their duties. If law

enforcement agents break the law, who will enforce the law the answer is nobody but

people will be in lawless state where people will commit crimes and nobody who will

protect people and their properties.

The solution to this can be

(a) Criminal Investigation Department should comprise only with those who; are well

educated, train how to investigate crime and those who have no personal interests

when doing work

The primary duties of the police are

(a) To protect the citizens of the state

(b) Protect the property of the citizen

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These are the main duties of the police staffs but if they are not doing these then they are

not qualified to be called police.

3. Prosecution attorney of Jonglei State

Another problem in Jonglei State is with prosecution attorney department which they

called legal administration the department is not doing its work of prosecuting criminals

as it supposed to be the work. public prosecution attorneys are supposed to prosecute

criminal especially murderer but unfortunately they don’t, what they do whenever there is

murder case they direct police to investigate which is good but after the investigation they

don’t appear in the court to prosecute the murderer they leave it for the police and judge

our public prosecution don’t stand before the judge to give charges against the murderer

they talk to the judge as friends they don’t argues on legal thing. The reason is that they

are full of politics they fear to say the true, they thought that they can be dismissing in

their duties if they do their work. So the solution to that is to

(a) trained them

(b) Dismiss those who are not qualifies in the public prosecution department

(c) Dismiss those who are interest in politics though they are qualified

(d) Bring judiciary branch to Jonglei state instead of legal administration

(e) Bring public prosecutors from different state instead of sons and daughters of

Jonglei state who take side

(f) Separate judiciary from politics

These are the thing that I see will promote justice in Jonglei state if they are done

4. Judges of Jonglei State

The judge of Jongeli State have problem also, their problem is that, they delay justice a

case may take one year before the judge so this is another problem as it is said “justice

delay is justice denied” I have experienced this problem I was having a civil case with a

person I lodged my petition on April 2012 defendant was summoned five time instead of

three time after these five summoned the verdict was pass in his absence (default verdict)

giving me my home and thing at home again for the execution to take my home was

another problem it took me four months a defendant was also summoned ten times

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instead of three, so if you look at the way case are being follows here in Jonglei many

people left their cases in the court because of delay, judges delays cases sometime clerks

lost files (case’s file). The reason is not that Jonglei’s judge don’t know how to judge but

they are being politicizes though they don’t tell but they fear of politicians, the solution to

that is

(a) Dismiss judge who are not doing their duties

(b) Trained them to know their role

(c) Change them after every three months

(d) Tell them to be independent in decision making

5. Court’s Police

Another problem is that, a judge can pass a verdict but for the court police to take action

for execution is another problem, court police are not trained not only training but they

are not qualifies they are there on nepotism line those who are there in the court as

court‘s police are not there because they are qualified to be there but where transferred by

their relatives who are senior staff in the government. The court police of Jonglei state

majority are not qualifies to be in the court they are just there to receive money not to

deliver service as it is required by the law.

Justification is that when they arrest me they did not asked me, they beats me, they

abused me calling me a stupid and they hate to be question but in worldwide somebody

with a little legal knowledge cannot fight or hate a question though it is a silly question

he/she can replied it by word but not by fighting or abusing client in the court without

directive from the judge

In conclusion of recommendation I recommended that, whole legal system at the State

level should be review, Judges of the high court, Police and Prison service should be

qualify people who will know what to do and avoid employment bases on corruption line

unqualified policeman or policewoman should be send home. Unqualified Judge and

Prosecutor should not be employed by the government of South Sudan in the Ministry of

legal Affairs. By doing this justice will be in place and the whole society will dwell in

peace. Because where there is justice there is peace and where there is peace there is

development. So to develop our state we need justice for society to be in peace

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References

1 Court’s cases of South Sudan

2 Code of criminal Procedure Act 2008 Law of South Sudan

3 Penal Code Act 2008 law of South Sudan

4 Local Government Act 2009 Law of South Sudan

5 Transition Constitution of the Republic of South Sudan Article 122

6. Criminal Justice in Action fifth edition (LARRY H. GAINES ROGER LEROY

MILLER)

7. Internet Wikipedia

8. Lecture Notice (Dr. John Garang de Mabior University for Science and

Technology Faculty of Law)

9. Police Act 2008 Law of South Sudan

10. Penal Code Act 2003 Law of Southern Sudan

11. Prison Service Act 2009 Law of South Sudan

12. Law of Evidence Act 2008 law of South Sudan

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