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South Sudan: Functioning of the prosecutorial services

Prosecutors play a crucial role in the administration of justice, and respect for the rule of law requires a strong prosecutorial authority in charge of investigating and prosecuting criminal offences. Each prosecutor must be empowered to fulfil his or her professional duties in an impartial and objective manner.

Prosecutors must perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights.[1] They perform an active role in criminal proceedings,[2] and must carry out these functions impartially and objectively, protecting the public interest.[3]

This requires, among other things that Prosecutors:

  • Ensure that victims of crime are provided with information about the proceedings and their rights within them, and consider their views, as appropriate;[4]
  • Do not initiate or continue a prosecution when an independent investigation indicates that the charge is unfounded;[5]
  • Refuse to use evidence gained as a result of unlawful means, including torture or other ill-treatment, except in proceedings against those allegedly responsible for using such unlawful means;[6]
  • Give due attention to the prosecution of crimes committed by public officials, including in particular corruption, abuse of power, violations of human rights and crimes under international law.[7]

States must ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.[8] In particular, the authorities must physically protect prosecutors and their families when their personal safety is threatened as a result of discharging their prosecutorial functions.[9]

The use of prosecutorial discretion, when permitted in a particular jurisdiction, should be exercised independently and be free from political interference.[10] Further, the law or published rules and regulations shall provide guidelines to enhance fairness and consistency of approach in taking decisions in the prosecutorial process.[11] If non-prosecutorial authorities have the right to give general or specific instructions, those should be transparent, consistent with lawful authority, and subject to established guidelines to safeguard the actuality and the perception of prosecutorial independence.[12]


During its missions in the country in 2012, the ICJ delegation heard recurring allegations of political interference with the functions of the prosecutions in the handling of criminal individual cases.

This interference reportedly followed one of following scenarios: a case is frustrated, by making investigations very difficult; or, a powerful interest requires a case be dropped and pressures the DPP accordingly; or in the reverse, the DPP is pressured to undertake a criminal investigation or prosecution where none is warranted.

 

 

Footnotes    (↵ returns to text)

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

    Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.

     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(h);

    Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.

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

    Prosecutors shall… respect, protect and uphold the universal concept of human dignity and human rights.

    and ”Article

    Prosecutors shall perform their duties fairly, consistently and expeditiously.

    .
  2. 2. UN Guidelines on the Role of Prosecutors”Guideline

    Prosecutors shall perform an active role in criminal proceedings, including institution of prosecution and, where authorized by law or consistent with local practice, in the investigation of crime, supervision over the legality of these investigations, supervision of the execution of court decisions and the exercise of other functions as representatives of the public interest.

     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(g);

    Prosecutors shall perform an active role in criminal proceedings, including institution of prosecution and, where authorized by law or consistent with local practice, in the investigation of crime, supervision over the legality of these investigations, supervision of the execution of decisions of judicial bodies and the exercise of other functions as representatives of the public interest.

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

    4.2 Prosecutors shall perform an active role in criminal proceedings as follows:

    a) where authorised by law or practice to participate in the investigation of crime, or to exercise authority over the police or other investigators, they will do so objectively, impartially and professionally;

    b) when supervising the investigation of crime, they should ensure that the investigating services respect legal precepts and fundamental human rights;

    c) when giving advice, they will take care to remain impartial and objective;

    d) in the institution of criminal proceedings, they will proceed only when a case is well-founded upon evidence reasonably believed to be reliable and admissible, and will not continue with a prosecution in the absence of such evidence; throughout the course of the proceedings, the case will be firmly but fairly prosecuted; and not beyond what is indicated by the evidence;

    e) when, under local law and practice, they exercise a supervisory function in relation to the implementation of court decisions or perform other non-prosecutorial functions, they will always act in the public interest.

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

    In the performance of their duties, prosecutors shall:

    (a) Carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination;

    (b) Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;

    (c) Keep matters in their possession confidential, unless the performance of duty or the needs of justice require otherwise;

    (d) Consider the views and concerns of victims when their personal interests are affected and ensure that victims are informed of their rights in accordance with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

    ; 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(i);

    In the performance of their duties, prosecutors shall:

    1. carry out their functions impartially and avoid all political, social, racial, ethnic, religious, cultural, sexual, gender or any other kind of discrimination;
    2. protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;
    3. keep matters in their possession confidential, unless the performance of duty or needs of justice require otherwise;
    4. consider the views and concerns of victims when their personal interests are affected and ensure that victims are informed of their rights in accordance with the provisions below relating to victims.

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

    Prosecutors shall… always serve and protect the public interest;

    , ”Article

    Prosecutors shall perform their duties without fear, favour or prejudice. In particular they shall: … carry out their functions impartially;

    and ”Article
    …have regard to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect;

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

    In the performance of their duties, prosecutors shall:…

    (d) Consider the views and concerns of victims when their personal interests are affected and ensure that victims are informed of their rights in accordance with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

     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(i)(4).

    In the performance of their duties, prosecutors shall:

    4. consider the views and concerns of victims when their personal interests are affected and ensure that victims are informed of their rights in accordance with the provisions below relating to victims.

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

    Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation shows the charge to be unfounded.

     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(j).

    Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay proceedings, when an impartial investigation shows the charge to be unfounded.

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

    When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect’s human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods, or inform the Court accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice.

     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(l).

    When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect’s human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall
    refuse to use such evidence against anyone other than those who used such methods, or inform the judicial body accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice.

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

    Prosecutors shall give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights and other crimes recognized by international law and, where authorized by law or consistent with local practice, the investigation of such offences.

     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(k).

    Prosecutors shall give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights and other crimes recognized by international law and, where authorized by law or consistent with local practice, the investigation of such offences

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

    States shall ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.

     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(a)(2);

    States shall ensure that:

    2. Prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.

     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:

    (a) to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability;

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

    Prosecutors and their families shall be physically protected by the authorities when their personal safety is threatened as a result of the discharge of prosecutorial functions.

     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:

    (b) together with their families, to be physically protected by the authorities when their personal safety is threatened as a result of the proper discharge of their prosecutorial functions;

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

    The use of prosecutorial discretion, when permitted in a particular jurisdiction, should be exercised independently and be free from political interference.

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

    In countries where prosecutors are vested with discretionary functions, the law or published rules or regulations shall provide guidelines to enhance fairness and consistency of approach in taking decisions in the prosecution process, including institution or waiver of prosecution.

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

    If non-prosecutorial authorities have the right to give general or specific instructions to prosecutors, such instructions should be:

    • transparent;
    • consistent with lawful authority;
    • subject to established guidelines to safeguard the actuality and the perception of prosecutorial independence.

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