Articles (Opinion/Analysis)

Of South Sudan UPR vs. Human Rights Situation: Status & Unmet Obligations

By Roger Alfred Yoron Modi, 6th November 2016 

Universal Periodic Review UPR is a process established by the United Nation General Assembly to, inter alia, periodically reviews the human rights records of all 193 UN Member States with the aim of improving it.

The UPR, according to the Institutional-building text of the UN Human Rights Council, as set out in resolution A/HRC/RES/5/1 of June 18th 2007, assess the extent to which States respect their human rights obligations set out in: the Charter of the UN; the Universal Declaration of Human Rights; human rights instruments to which the State is party (human rights treaties ratified by the State concerned); voluntary pledges and commitments made by the State (e.g. national human rights policies and/or programmes implemented); and, applicable international humanitarian law.

The reviews are based on three documents: 1) information provided by the State under ReviewSuR, such information is also known as a “national report”; 2) a compilation of information prepared by the Office of the High Commissioner on Human Rights OHCHR containing reports from treaty bodies, the Special Procedures, and other UN entities; 3) information from other stakeholders including national human rights institutions and non-governmental organizations.

The UPR Working Group which consists of the 47 members of the Human Rights Council conducts the review. Any UN Member State, however, can take part in the discussion/dialogue with the SuR, ask question (s)and/or make recommendation (s). The period between the first and second cycle of UPR for each state is 4.5 years.The results of each review include an “outcome report” consisting of the questions, comments and recommendations made by States to the SuR, as well as the responses to the same by the SuR.

On the 7th November 2016,South Sudan will undergo a second UPR in Geneva;the youngest republic shall present its National Report (herein referred to as NR) before the UPR Working Group, other stakeholders and other UN member states. As the norm, thereafter, there will be an “outcome report” on human rights situation in South Sudan covering the years since its last (first) UPR cycle.

South Sudan First UPR Cycle: A Concise Background 

Prior to South Sudan independence, the united Sudan underwent its first UPR Cycle on 10thMay 2011. South Sudan, then Southern Sudan submitted its own reportfor the UPR covering human rights issues in its semi-autonomous region. “The National Report on the Universal Periodic Review (UPR) was prepared by the Government of Southern Sudan through the Ministry of Legal Affairs and Constitutional Development that was mandated by the Interim Constitution of Southern Sudan, 2005 (ICSS) and Ministry of Legal Affairs and Constitutional Development Organization Act, 2008 to deal with matters related to the Drawing of Documents in which Government of Southern Sudan is a party,  and Human Rights, International Treaties and Conventions respectively,”partly read the submission for the UPR by the government of Southern Sudan.

After the declaration, unanimous acceptance and recognition of the referendum results in February 2011, it became inevitable that Southern Sudan was to become a Sovereign State.  Hence, the UPR Working Group, considering the autonomy granted to Southern Sudan by the Comprehensive Peace Agreement CPA, welcomed the “unique” National Report by Sudan.

“In light of the different institutional systems and legislative institutions in northern and southern Sudan, it was not possible to have one consolidated report. Therefore, a committee representing the Government of Southern Sudan undertook the preparation of the special report on Southern Sudan, while another committee covered the situation in Sudan, so as to enable the Working Group to consider the situation objectively and make recommendations to address priorities on each side. Each side will follow up the implementation of the recommendations addressed to them, respectively, and undertake their implementation,” the (2011) report of the Working Group on the UPR stated.

A glance at achievements, failures and/or Challenges to meeting Last UPR Recommendations and Pledges

South Sudan in its NR submitted in advance to the UN Human Rights Council Working Group for the Second UPR Cycle argues, among others, that the youngest State has made some progress on the implementation of the 2011 UPR recommendations:“by enacting laws for establishment of institutions relevant for promotion and protection of human rights in the country.”

The NR states that South Sudan Transitional Constitution contains provisions “guaranteeing human and fundamental rights, including establishment of South Sudan Human Rights Commission in line with the Paris Principles.” Also the Constitution has taken into account a catalogue for freedom of speech and assembly, multi-ethnic and multi-religious rights, it added.

South Sudan, according to the NR, has enacted one hundred and thirty three (133) pieces of legislation and domesticated eleven (11) regional and international conventions. The NR continued that, the Government has acceded and ratified various regional and international conventions with aim of promoting and protecting human rights of its citizens. The Conventions ratified and acceded to by the Government, it says, are: the Geneva Convention and its Protocols; Convention Governing the Specific Aspects of Refugees Problems in Africa; International Convention on Elimination of All Forms of Discrimination against Women; Convention on the Rights of the Child and its Optional Protocols; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; African Charter on Human and Peoples’ Rights; Convention Concerning Protection of the World Cultural and Natural Heritage; Convention for the Safeguarding of the Intangible Cultural Heritage and Convention on the Protection and Promotion of the Diversity of Cultural Expression. 

The NR added that other regional and international human rights related conventions ratified by the Government are: the International Covenant on Civil and Political Rights ICCPR and 1stOptional Protocol; International Covenant on Economic, Social and Cultural Rights IESCR and Optional Protocol; International Convention on Elimination of All Forms of Racial Discrimination; Convention and Protocol Relating to the Status of Refugees; African Youth Charter; the African Convention for Protection and Assistance of Internally Displaced Persons in Africa and Convention on the Rights of Persons with Disability.

In a joint submission for this Second UPR cycle, however, Amnesty International stated that South Sudanis a party to only five “core” international human rights treaties.

Also, the UN High Commissioner for Human Rights in August 2016, like many of the rights groups, recommended that South Sudan ratifies main international and regional human rights instruments, including ICCPR, ICESCR and the African Charter on Human and Peoples’ Rights.

“The High Commissioner for Human Rights noted that existing laws needed to be reviewed and harmonized with the human rights clauses of the transitional Constitution and with international human rights standards. She recommended to South Sudan to ensure that national legislation, including the permanent constitution, was fully in line with international human rights standards, and to improve the application of customary law to ensure compliance with international human rights standards,”  partly reads the compilation by the OHCHR for the South Sudan Second UPR Cycle, prepared in accordance with paragraph 15 (b) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21. South Sudan government in its NR admitted that the Judiciary is experiencing challenges with the presence of the customary courts run by traditional leaders in accordance with Local Government Act, 2009.

“The (UN) Secretary-General stated that the Transitional Government of National Unity must boldly spearhead the fundamental reforms outlined in the Agreement on the Resolution of the Conflict in the Republic of South Sudan, including drafting and ratifying a permanent constitution and establishing the requisite institutions for justice and reconciliation. He also urged the inclusion of civil society, women’s groups and other key stakeholders, whose participation was necessary for the peace process to take root,” states the same compilation.

In its submission, Global Partnership for Peace in South Sudan GaPPSS regretted that South Sudan had “failed to implement” any of the recommendations the youngest republic accepted during the last UPR cycle that it complete its transition from a militarized society to a democratic system based on the rule of law under civilian rule.  “South Sudan continued to be highly militarized,” GaPPSS stated.

On the other hand, UNMISS, according to the compilation by the OHCHRfor the UPR indicated that: “a National Security Service bill, which accorded the National Security Service broad powers of arrest, the authority to search and seize private property without a judicial warrant, and expansive communication surveillance powers, with no independent oversight or due process guarantees, might have come into effect. There was no official gazette, and it remained unclear whether the text was in force.”

The UN Human Rights High Commissioner, the same compilation adds: “expressed concern about arrests and detention by security agencies, especially by the National Security Service and the SPLA. Individuals were arrested and detained “on grounds of national security”. Besides going beyond the scope of its legal and constitutional authority, the National Security Service was found to have engaged in other violations involving arbitrary arrest, notably the arrest and detention of individuals without informing them of the reason, and the detention of individuals in non-gazetted places, where their family and lawyers were unable to gain access to them.”

South Sudan, in its NR, states that efforts by the government in transformation of the army into professional force faced various challenges, including eruption of internal conflicts, recruitment standards, trainings and financial resources, composition, inadequate structures and system to manage a modern armed forces. “Like the SPLA, the National Security Service is faced with various challenges, including indiscipline personnel, lack of adequate training on human rights issues, educational qualifications, recruitment procedures, lack of clear direction and mission and financial resources,” continued the NR.

The Review 

As the norm, South Sudan, being the SuR, will present its NR and answers to advance questions submitted by UN member States. The Outcome Report, consisting of the questions, comments and recommendations made by States to South Sudan, as well as the responses by the youngest republic, will be made and is expected to be adopted on 9th November, two days after the review.

According to resolution A/HRC/RES/5/1Human Rights Council, a SuR can accept or note recommendations but cannot reject them. The challenge to implementations of UPR recommendations, which remains to be addressed, is the lack of any formal follow-up mechanism. A Human Rights Council resolution In October 2015 encourages States to establish national follow-up systems and to share best practices. More discussion on the same was scheduled to place during the 26th session of the UPR Working Group in 2016.

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