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South Sudan: Accountability of the prosecutorial services

Like all members of the legal profession, prosecutors must carry out their roles with integrity and in accordance with the law and in a manner that is consistent with human rights and established standards of prosecutorial conduct. And like other legal professionals Prosecutors must be accountable for professional misconduct. These are imperatives for upholding the integrity of the office of the Prosecutor as well as the legal system and respect for the rule of law.

Disciplinary offences must be defined in law or lawful regulations and complaints alleging misconduct must be processed expeditiously and fairly in the context of fair procedures before an independent and impartial body. The prosecutor whose professional conduct is in question must be afforded a fair hearing and the decision must be based on established standards of professional conduct, and subject to independent review.[1]


Under currently applicable law, Legal Counsel who violate professional ethics, rules and regulations or behave in a way that is incompatible with the duties of his or her office, or commit an act that degrades the Ministry or legal profession, are subject to investigation and possible discipline.[2] A Board of Discipline is responsible for conducting or overseeing the investigation and recommending appropriate disciplinary action.[3] The Board in each case is constituted of The Minister, Under Secretary of Counsel General who supervises the Legal Counsel under investigation, depending on the grade of the individual subject to the proceedings. Requests for constituting a Board of Discipline are made following an administrative investigation by the Counsel General who supervises the Legal Counsel involved, or in the case of a Counsel General, the Under Secretary. The Minister or Under Secretary, depending on the case, frames the disciplinary charges.[4] If after the preliminary investigation the Board decides to proceed, the individual accused of misconduct is summoned to appear and the Board must hear his or her defence; a lawyer or friend may represent Counsel under investigation. Proceedings are held in camera. Findings of the Board must be reasoned and include a recommendation of a penalty.[5] Possible sanctions range from a reprimand to removal from office.[6] The law does not specify who decides which penalty is implemented.

On their face, these provisions do not comply with international and regional standards on the accountability of prosecutors. Considering its composition, which includes the direct superiors of the Legal Counsel under investigation, the Board of Discipline cannot be considered an “independent and impartial body”. The law also does not provide for independent review. The ICJ does not presently have information on the implementation of these provisions.

 

Footnotes    (↵ returns to text)

  1. 1. UN Guidelines on the Role of Prosecutors, ”Guideline

    21. Disciplinary offences of prosecutors shall be based on law or lawful regulations. Complaints against prosecutors which allege that they acted in a manner clearly out of the range of professional standards shall be processed expeditiously and fairly under appropriate procedures. Prosecutors shall have the right to a fair hearing. The decision shall be subject to independent review.

    22. Disciplinary proceedings against prosecutors shall guarantee an objective evaluation and decision. They shall be determined in accordance with the law, the code of professional conduct and other established standards and ethics and in the light of the present Guidelines.

    Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article F(n)-(o);

    (n) Disciplinary offences of prosecutors shall be based on law or lawful regulations. Complaints against prosecutors, which allege that they acted in a manner that is inconsistent with professional standards, shall be processed expeditiously and fairly under appropriate procedures prescribed by law. Prosecutors shall have the right to a fair hearing including the
    right to be represented by a legal representative of their choice. The decision shall be subject to independent review.

    (o) Disciplinary proceedings against prosecutors shall guarantee an objective evaluation and decision. They shall be determined in accordance with the law, the code of professional conduct and other established standards and ethics.

    International Association of Prosecutors, Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, ”Article

    In order to ensure that prosecutors are able to carry out their professional responsibilities independently and in accordance with these standards, prosecutors should be protected against arbitrary action by governments. In general they should be entitled: … (f) to expeditious and fair hearings, based on law or legal regulations, where disciplinary steps are necessitated by complaints alleging action outside the range of proper professional standards; (g) to objective evaluation and decisions in disciplinary hearings;

  2. 2. Ministry of Legal Affairs and Constitutional Development Organization Act, S. 57(1).

    (1) Any Legal Counsel who violates professional ethics, rules and regulations or behaves in a way that is incompatible with the duties of his or her office, or commits an act which degrades the Ministry or legal profession, shall be subject to investigation and possible discipline.

  3. 3. Ministry of Legal Affairs and Constitutional Development Organization Act, S. 57(2).

    The incident or matter which could subject a Legal Counsel to investigation and possible discipline shall be referred to Ministry of Legal Affairs and a Board of Discipline “Board” formed within the Ministry. The Board shall be responsible for conducting or overseeing investigation into the matter, hearing evidence and recommending appropriate disciplinary action, if any.

  4. 4. Ministry of Legal Affairs and Constitutional Development Organization Act, S. 58.

    (1) The Board shall be constituted by the Minister, Under Secretary or the Counsel General who supervises the work of the Legal Counsel involved.

    (2) Request for constitution of a Board shall be made after an administrative investigation has been conducted by the Counsel General who supervises the Legal Counsel involved, or in the case of a Counsel General, the Under Secretary.

    (3) An investigation may also be conducted by a committee or a Legal Counsel appointed by the Minister or Under Secretary for such purpose; provided that, the Legal Counsel is senior to the Legal Counsel involved.

    (4) Framing of discipline charges shall be the responsibility of the Minister or Under Secretary as the case may be.

  5. 5. Ministry of Legal Affairs and Constitutional Development Organization Act, S. 59.

    (1) If, based on the preliminary investigation, the Board decides to proceed against the Legal Counsel on all or some of the charges, the Legal Counsel shall be summoned to appear before the Board.

    (2) A copy of the charges shall be attached to the summons.

    (3) All the sittings of the Board shall be in camera.

    (4) The Legal Counsel shall appear in person before the Board. He or she may submit a written defence or be represented by a counsel or friend.

    (5) The Board shall hear the defence of the Legal Counsel against whom the proceedings are made.

    (6) If the Legal Counsel, subject to the hearing, fails to appear before the Board, the Board may proceed in his or her absence if it is satisfied that the summon was actually served.

    (7) The findings of the Board shall state reasons and the recommended penalty. It shall be read out in the sitting in camera.

  6. 6. Ministry of Legal Affairs and Constitutional Development Organization Act, S. 61.

    The disciplinary penalties that may be imposed on Legal Counsel are—

    (a) reprimand;

    (b) deprivation from allowances and or promotion; and

    (c) removal from office.

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