UNIVERSITY OF JUBA

School of Law

Date: July 2024

Lecture Notes

LAW 212: Criminal Procedure Law/2nd year

Prepared by Mr. Matiop Wuoi Kuai

Introduction:

• Procedure is a handmaiden of justice. Thus, criminal procedure is the process through

which substantive penal laws are applied to achieve their general purpose. It is also the
means through which an accused person or those suspected of criminal activities are
brought to trial.
• The criminal procedure of trying suspect or accused person is much wider as it may
commence from the time of arrest, giving of information or filing of a complaint,
interrogation, charge, or through the time of taking of the accused to a court for plea taking,
then trial, judgment, sentence, appeal and revision of the case as deemed appropriate.
• The rules of criminal procedure are used in criminal trials.
• A criminal trial can be divided into three distinct but equally important phases; the pre-trial
phase, the trial phase and the post-conviction/acquittal phase (like appeals or revision).
• Criminal procedure law refers to a frame work of laws and rules that govern the
administration of criminal justice in cases in criminal trials.
• The procedure begins with the initial investigation of the crime and concluded with either
unconditional release of the accused by the virtue of the acquittal or by imposition of a term
of punishment pursuant to conviction for the crime.

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• The Criminal Procedure is the process through which penal laws are applied. That is the
process of the application of penal laws. It is procedural law and not substantive law.
• Criminal procedure is the process through which substantive penal laws are applied to
achieve their general purpose.
• It is the means and mode of bringing to trial those suspected of criminal activities.
• Criminal procedure is a branch of law that lay down various stages and means by which
person who are alleged to have contravened the criminal law are dealt with or processed.
• It defines the procedures and the rules that govern the judicial aspects of prevention,
detection and punishment of crime.1
• Criminal proceedings are instituted in the name of the State as the complainant. Thus, in
any criminal case, the complaint will appear as Republic -vs- Yugusuk, Yugusuk being the
name of the accused person. This means that in law, every crime is against the State2 and,
therefore, the state takes the responsibility to seek redress on behalf of the victim by
punishing the offender.
• There has been an argument among criminologists as to who actually is the complainant in
criminal prosecutions: the State or the victim of the crime? The answer is that the State is
as much a complainant in any one criminal prosecution as the victim of the crime. Being
under the duty to protect the society, the State takes the responsibility to prosecute those
who commit crimes.
• But there is almost always a background complainant in crimes involving private property
and crimes against the person. Such complainants usually appear only as prosecution
witnesses. In most cases they appear as the victims of the crime.
• The State, on the other hand, is usually the complainant and the prosecutor. Since it is the
state which through its legislative arm enacts laws, breach of such laws by any criminal
activity is in direct conflict with the interests of the state. Thus, as the custodian of the legal
and administrative order, the state becomes a complainant when her laws are breached.
• The procedure of trying a suspect is an elaborate one and runs from the time of arrest,
through interrogation and charge, to the time of taking the suspect to court for the plea,
trial, judgment, sentence, appeal and revision of a case if necessary.
• Generally, law is categorized into two branches that is Substantive law and Procedural law.

1
Kiage, Patrick, “Essentials of Criminal Procedure in Kenya,” (LawAfrica, Nairobi) at p.1, para 1-2.
2
See Rufus Riddlesbarger v. Brian John Robson (1959) E.A. 841.

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Differences Between Substantive and Procedural Laws

Substantive laws refer to the written or statutory laws which govern the relationship
between people or between people and the state. For example, the Law of Contract Act
2008, The Penal Code Act, 2008, The Land Act, 2009.
Procedural laws on the other hand entails body of laws establishing the methods or
procedures of enforcing rights or obtaining redress for the invasion of rights provided in
the substantive law. For instance, Criminal Procedure Act, 2008, Civil Procedure Act, 2007.
When there is an ongoing trial, substantive law is a branch of law defines the crime and
punishments to which the accused will be subjected to. It is also the branch of law which
defines rights and responsibilities of an individual. Procedural law on the other hand is the
law which provides a state with the machinery to enforce rights and duties as defined in
substantive law. It is the step-by-step process that the case will go through that is from
Arrest-Investigation-Trial-Conviction-Sentence-Appeal or revision.

Differences Between Criminal Law and Criminal Procedure Law

Criminal Law is substantive in nature while procedural law is remedial/procedural law.

Criminal law declares what acts that are punishable, whereas criminal procedure provides
how the criminal acts are to be punished.
Criminal Law defines crimes and provides for their punishment, while criminal procedure
provides for the methods by which a person accused of a crime is arrested, tried or punished.
Civil procedure is the written set of rules that sets out the process that the court will follow
when hearing cases of civil nature. Criminal procedure on the other hand entails the frame
work of laws that govern the administration of justice in cases involving an individual who
has been accused of a crime.
Criminal cases are instituted by lodging a charge sheet of information before the court of
law as per section 233 of the CCPA 2008, while, civil cases are instituted by presentation
of a Plaint as per section of the Code of Civil Procedure Act, 2007.
Criminal procedure is different from civil procedure because the parties and results are
dramatically different. In criminal matters, action is taken by the state against an individual
or organization for violation of law. In case an accused person has been convicted of crime
he can be put-on probation or ordered to pay fine or confined to serve term in jail. In civil
matters the controversy is between individuals and it is put to one of them to bring an action
against the other. The result is payment of damages by the defendant to the plaintiff.

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 The burden of proof in criminal cases is that beyond reasonable doubt, while, the burden
of proof in civil cases is on balance of probabilities.
A person is said to be prosecuted in criminal cases, while, in civil cases a person is said to
be sued.
Criminal procedure rules are designed to protect rights of the suspect and the accused
person. Civil procedure rules on the other hand are designed to give both parties a set of
equal rules to go by.

Sources of Criminal Procedure

The rules of criminal procedure law are derived from a number of sources as follows:

1. The Transitional Constitution of the Republic of South Sudan 2011 (amended)

Some provisions in the Bill of Rights in Part Two of the Constitution provides a regulatory
framework foundation for conducting criminal investigations and prosecutions. They guide
criminal trial processes and safeguards.
For instance, Article 12 of the Constitution provides for the right of every person to personal
liberty and security of person and hence prohibits arbitrary arrest and detention.
Article 19(5) provides the constitutional framework for the special pleas of autrefois
convict or autrefois acquit, and ‘pardon,’ and captures the presumption of innocence and
the right from self-incrimination in criminal investigations and trials.
In addition, this Article has two important principles: the principle of legality and the
principle of non-retroactivity of crime.
First, a crime is not a crime unless otherwise expressly provided by law. Therefore, a person
cannot be investigated and or prosecuted for actions unless those actions were punishable
as crimes under the laws of South Sudan at the time such actions occurred. This also means
that no penalty or punishment can be imposed on a convicted person which is more severe
in degree or description than the maximum penalty that could have been imposed for that
offence at the time of the commission of the offence.
The mandatory right to counsel in capital offence cases in Art. 19(7) further strengthens the
fair trial rights of the accused.
The second principle, known as the principle of non-retroactivity of crime, means that no
ex-post facto laws or punishments are allowed.
An ex-post facto law is one that is passed by the National Assembly and which comes into
force after a person takes certain actions. For example, imagine that in June 2010, a man

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sells his cow to another man for SP 30,000. Then, in October 2010, the National Assembly
passes a law that says that a cow may not be sold without certification from the Ministry of
Livestock and Fisheries that it is free of diseases. The penalty for selling the cow without
this certification is a fine of SP 10,000.
Under the principle that no ex-post facto laws may be imposed, the man may not be
charged with violating the law passed in October 2010 because his actions were not
criminal in June 2010, which was when he committed those actions. Therefore, a law
cannot be applied retroactively to punish conduct that was not criminal at the time of its
commission.
The same prohibition against ex-post facto laws applies to punishments. For example,
imagine that the law was passed in May 2010, rather than October 2010, so that it was in
force when the man sold the cow in June. Then, in July 2010, a month after the man has
been charged with selling the cow without the proper certification, the National Assembly
passes a new law changing the penalty from SP 10,000 to SP 15, 000. The man cannot be
made to pay the higher fine because the penalty codified in the law at the time, he
committed the offense was only SP 10,000.
The only exceptions to the rule of ex-post facto laws are when a law has been amended to
reduce the punishment for an offense or re-categorize the offense as a lesser offense or
when the law has been amended to no longer consider the actions a crime under the laws
of South Sudan.
Article 18 protects right of the suspects to freedom from torture, cruel and inhuman
treatment during investigation stage in order not to force them to confess a crime they have
or not committed.
Also, Article 19 of the Constitution guarantees the accused person the:
(1) right to a fair trial of the accused including the right to presumption of innocence,
(2) to be promptly informed of the reasons for arrest and charges against him in a language
he understands,
(3) no person shall be convicted for criminal offence unless the offence is defined and the
penalty prescribed by law and to consult his lawyer,
(4) right to a fair and public hearing in accordance with the procedures prescribed by law,
(5) not to be held in detention for a period not exceeding 24 hours or be produced in court
or released on bail, that is the foundation of the right to bail.
(6) to be tried in his presence without undue delay and;

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 (7) no person shall be charged with any act or omission which did not constitute an offence
at the time of its commission…that is the principle of legality.
(8) to be represented by a lawyer of his choice or be assigned free legal aid at State cost if
he is an indigent person.
Article 21 of the Constitution puts restriction on death penalty except when imposed in
accordance with the law. The investigations allow the police to conduct searches and
seizures of items of crimes.
However, Article 22 of the Constitution protects the right to privacy by, inter alia,
prohibiting searches of the person or his home except as otherwise directed by a competent
judicial authority or where delays in obtaining such judicial directives may occasion grave
prejudice and in strict compliance with law that guarantees protection from abuses.
The content of this right raises at least two issues directly related to the pre-trial phase of
a criminal trial process. First, a search of a person or his home may only be conducted under
the power of a warrant issued by a competent judicial authority. Secondly, a warrantless
search may only be conducted if it can be demonstrated that delays in obtaining a warrant
posed a serious danger of prejudicing the object of the search.

(2) Statutes/Acts of National Assembly

In addition to the Constitution, the other MAJOR source of the rules of Criminal Procedure
Law in South Sudan are the Acts of the National Assembly which are another important
source of Criminal Procedure Law in South Sudan.

Code of Criminal Procedure Act, 2008.

➢ The CCPA is the most important criminal procedural law in the country.
➢ The first Act was the New Sudan Criminal Procedure Act, 2003 which is repealed by South
Sudan Code of Criminal Procedure Act 2008.
➢ It is the regulatory framework for criminal trials. It guides criminal trials from pre-trials
phase like arrests, investigations through trials to appeals phase. For instance, section 3 of
the CCPA 2008 provides that, “The purpose of this Act is to establish the rules and
procedures which govern the criminal justice system in South Sudan, in order to foster a
just, peaceful and secure society.”
➢ Moreover, section 4(2) of the CCPA 2008 is the evidence that it is the main source of the
rules regulating criminal trials in South Sudan. It provides, “The provisions of this Act

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 represent the minimum standards that shall be applied to all the criminal proceedings in or
before any Court in South Sudan…”
Other Acts/Statutes enacted by South Sudan Parliament are also sources of criminal
procedural rules in the country. Those Acts provide for procedure of arrest, investigations,
punishment etc. For example, Anti-Money Laundering and Counter Terrorist Financing
Act, 2012 in Chapter IV of the Act provides for procedures of reporting offences of money
laundering.
The Consumer Protection Act, 2011 in Chapter IV provides for legal procedures for
enforcement of consumer rights in South Sudan like who can initiate a complaint on
violation of consumer rights(section 17), how a complainant can file a complaint(section
18, 19), procedures the Council should follow in investigating complaints (section 20, 21).
The Act provides for limitation period of 1 year for initiating complaints in section 27 of
the Act, issuing of summons and admissibility of evidence.
Cyber Crimes and Computer Misuse Provisional Order, 2021 provides procedures for
prosecution of cyber-crimes in South Sudan.
For instance, the Act in section 7 lays out jurisdiction of the Cyber Crimes and Computer
misuse, investigation of cyber-crimes in Chapter III etc.
The South Sudan Ant-Corruption Act 2011 in Chapter V provides for power of
investigation (s.24), procedure for taking evidence (s.27), power to compel attendance of
witness and production of evidence (s.28) etc. S. Sudan National Security Act provides for
procedures for arrest search, investigations and seizures of items of crimes.
The Public Grievances Act 2011 provides for Procedure for Filing Complaints or
registering a grievance with the Chamber(s.24), investigation of offences (s.23), types of
cases that the Chamber has no power to consider(s.25), public hearings(s.20) of the Act.

(3) International Law

✓ International law entails a total of norms accepted by the international community to
regulate relations between States and also between States and their subjects. The
international laws are applicable in South Sudan subject to the provision of Article 9(3) of
the Constitution.
✓ International law is also one of the sources of criminal procedure especially in the areas of
human rights promotion and protection.
✓ There are a number of international convections which have a direct bearing to the
administration of criminal Justice. One of the convections of this nature is the UN
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 Convention on the Right of the Child, 1990. This convention protects the child under the
age of 18 years against capital punishments or life imprisonment and calls for a separate
detention facility from adults. Some countries can sign a bilateral extradition treaty.
✓ The UDHR 1948 provides for safeguards of accused person to equality before the law and
equal protection of the law without discrimination(Art.7), right to life, liberty and security
of person(Art.3), freedom against torture, cruel, inhuman or degrading treatment or
punishment(Art.5), prohibition of arbitrary arrest, detention or exile(Art.9), right to a fair
and public hearing by an impartial and independent tribunal in determination of a criminal
charge against him(Art.10), right to presumption of innocence until his guilt is proved in
accordance with the law, principle of legality(Art.11), protection of the right to privacy of
one’s family, home or correspondence(Art.12).
(4) Precedents
It is another important source of the law of criminal procedure in South Sudan.
These are cases arising from the decisions of Superior Courts of South Sudan, e.g., the
Court of Appeal and Supreme Court. They are either reported cases or unreported.
They form basic precedents of South Sudan laws and are binding on the lower courts.
Reported cases in S. Sudan are found in South Sudan Law Reports 2011/2012 Volume.
Precedents from other jurisdictions like the English and EAC Courts are persuasive source
of criminal procedural rules in South Sudan. For example, the Tanzanian case of Mwango
s/o Manana vs R,3 lay down important criminal procedural rules regarding conducting
identification parade.
As a rule, courts are expected to be bound by their previous decision as guidance for
deciding similar matters at issue.

Purpose of the Law of Criminal Procedure

Criminal procedure laws are the safeguards against the indiscriminate application of
criminal laws and unjust treatment of the criminals.
Criminal procedure laws are there to ensure that “Rule of Law” which is important for the
healthy society is observed. The need of observing the rule of law was well explained by
the words of Justice Katiti in the case of Joseph Masunzu V Republic Criminal Appeal
No. 3 of 1991. According to him he said as follows “…. We can’t peacefully make our
journey through life without the law telling us the right direction to follow, and sometimes

3
1936]3 EACA, pg.29.

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 even the time to follow and when to start our journey and through which route….” Thus,
by adhering to “Rule of Law” which ensure justice that is why in the case of Kamundi V
Republic [1957] EA 540. In this case it was held that the all-purpose and intention of
criminal procedure is to lay down provisions and procedures to see that justice is done.
The purpose of criminal procedure is not merely for exacting revenge or pay back against
the culprit on behalf of society, but to uphold the rule of law. For instance, in the case of
Republic v. Attorney-General and Another ex parte Ng’ney,4 the high Court held that
the function of any judicial system in civilised nations is to uphold the rule of law.
The subjects of the criminal process, the alleged culprits or perpetrators of crime are as
much also members of the same society and they are not bereft of rights. They are entitled
to due process rights.
The criminal procedure law aims to balance the two main competing interest. On the one
hand, there is the interest of the society, through the instrument of the State, to punish crime
and on the other, the need to ensure that the rights and inherent dignity of the offender are
respected.
The three main functions that a criminal justice system should have are accurate
identification of the person responsible, fair adjudication, retribution, deterrence,
rehabilitation and restoration. Unless all three components work hand in hand the whole
system will fall. It is these three components and the above-mentioned functions when done
effectively that make a criminal justice system fit for purpose.

Other essential roles of the Criminal Procedure Law are the following:

To bring the accused within the power of the tribunal.

A preliminary investigation to ensure the crime is one which should be prosecuted.
Notice to the accused of the offence charged upon arrest: the accused has to be told why
he is being arrested.
Notice to give charge sheet with information against him, for him to respond and to
defend himself.
Opportunity to prepare for trial and procure witnesses.
A speedy trial; a trial should be conducted as fast as possible because during the course
of the trial the accused may be kept in prison as they have been refused bail.

4
[2001] KLR 612.

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 Fair trial before an impartial tribunal; accused is given an opportunity to say something
in his defense through counsel of his own choice.
A right to the review of the case by a suitable appellate tribunal. Right to review of the
case by a higher court if the accused is not happy/satisfied with the process.

Players Within South Sudan Criminal Justice System

Every criminal proceeding in a court of law have various persons and institutions playing
specific and defined roles. They include the following:

1. The State and the Accused

The main players or true parties to a criminal trial are the State on the one hand and the
accused on the other, usually expressed as Republic v. X.5
This underscores the public nature of criminal proceedings and the fact that even though
individual citizens are often he wronged parties, it is the State itself that initiates and
conducts criminal proceedings on behalf of the public. Section 23(1)(a) of the CCPA 2008
vests powers of prosecution of criminal cases on the Directorate of Public Prosecutions on
behalf of the GOSS before the criminal courts in South Sudan.
In colonial times and as a reflection of the position of the Monarch as the custodian of
public rights and interests, the Queen(Regina) and Before her the King (Rex) or the Crown
would be the party would be contending with the accused in the court.
In some jurisdictions, the State is represented in criminal proceedings as the country e.g.,
Uganda v. X or the People v. X or the Common Wealth v. X. in South Sudan, it is the
Government of South Sudan v. X.
The centrality of the State and the accused was restated in the case of Republic v. Cap Van
International Ltd and Another,6 where it was held that there are only two parties who are
recognized in law; the Republic (which prosecutes cases) and the accused person.
The complainant in a criminal case has no right of audience before a court and can only
communicate to the Court through the Prosecutor.
In private prosecutions, it is always the Republic because you institute in the name of the
state. The state is treated in all criminal cases as the complainant and it is not necessarily
the victim.

5
Republic v. Cap Van Ltd and Another [2003] 2 KLR 348, Government of South Sudan v. Ajang Amuom Ajak
[SC/CR-APP NO. 22/2011.
6
[2004] (Revision Cause 6 of 2004).

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 In law every crime is committed against the state because a crime is defined as a wrong
against the society or the state. The state is responsible for the society.
The state takes the responsibility to seek redress of the complainant or the victim.
The state protects and defends others.
The real victim is also the complainant particularly in crimes involving private property
and against the person.
In all cases the real victim as a complainant appears as a witness for the prosecution, and
therefore the complainant is not a party to the case.
The parties are the republic and the accused. The complainant has no right to appeal only
the state can appeal because the complainant is a witness.

2. Complainant
The term complainant occupies an important place in South Sudan criminal justice system.
But it is not defined by our CCPA 2008.
The case law defines it to mean a person who lodges a complaint with the police or any
other lawful authority.7
The CCPA 2008 defines ‘complaint’ in section 5 to mean an oral or written allegation
presented by a person, against whom or within the limit of whose responsibility the offence
has been alleged to have been committed, but it does not include a police report.
Even though a complainant is one who is directly, immediately and personally affected by
the criminal acts of the accused and therefore makes a complaint, the State by the virtue of
having an interest in the protection of the rights of all its citizens may itself be a
complainant, with a right not only to complaint, but also to prosecute.
Another reason why the State is a complainant is because it is the State that legislates on
what constitutes a crime. Any breach thereof directly harms the State. Therefore, the State
has the right to complaint and prosecute.
So critical is the role of a complainant that where an accused person appears in a particular
court at an appointed time for the trial but the complainant having knowledge of the
proceedings fails to appear, the court is empowered to acquit the accused person unless it
deems it fit to adjourn the case until some other date. (see s.232 CCPA 2008).
It is an interesting question to consider whether the presence of the Prosecutor as the
representative of the State, the nominal complainant, suffices to save a case from the

7
See the case of Republic v. Pattni [2005] 1 KLR 310.

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 inevitable acquittal due to the personal complainant’s absence. In Republic v. Mwaura
[1979] KLR 209, the High Court of Kenya held that a complainant includes a Public
Prosecutor.8
The complainant may also withdraw his complaint at any time before judgment is passed
if he can satisfy the Court that there are sufficient grounds permitting him to withdraw it.
The accused is then acquitted. The personal complainant cannot withdraw a case without
the agreement of the State/Prosecutor. In Medardo v. Republic,9 the Court held that under
section 204 of the Criminal Procedure Code, if at any time before the final order is passed
in a case a complainant satisfies the court that there are sufficient grounds for permitting
him to withdraw his compliant, the court may permit him to withdraw it and shall thereupon
acquit the accused. If the complainant is a child of tender years, the court should test the
intelligence of the child through a voire dire examination before deciding whether to subject
him to the oath.10
The complainant also holds the key to any efforts at reconciliation that may lead to
settlement of the case facing an accused person. This has to be appropriate case of common
assaults or any other offences of personal or private nature not amounting felony.11
However, in South Sudan, a felony like murder and manslaughter can be settled.
However, the complainant does not have a right to address the court directly.
The complainant in a criminal case can only communicate to the court through the
prosecutor.12
This is usually the case even, where often happens, a complainant engages an advocate to
hold a watching brief to observe the trial on his behalf. Such advocate may be noted on
record and cooperate and communicate with the prosecutor but he may not himself address
the court or examine witnesses.

3. The Directorate of Public Prosecution (DPP)

8
See also the case of William Ruto and others v. Attorney-General, High Court Misc Appl. No. 1192 of 2005
delivered on 15 October 2010
9
[2004] 2 KLR 433.
10
Ibid.
11
see Kurai v. Republic [1991] KLR 77.
12
See Republic v. Cap Van Ltd and Another [2003] (Revision Cause 6 of 04).

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❖ The DPP is created by the Law13 in the Ministry of Justice. The DPP consists of the
Minister, the Under-Secretary of the MOJ and Directors of Specialized Units as well as
Directors of Legal Administration in the State called Public Prosecution Attorneys.
❖ The DPP is headed by the Director of public Prosecutions, who is often referred to as
Prosecutor General.

Powers and Functions of the DPP

(a) The DDP is the prosecutorial authority in South Sudan. There is a Prosecutor-General who
prosecutes criminal cases. The prosecutor in a criminal trial is the person who appears and
pleads or presents the case of the State against the accused person; whether at the trial or
appeal according to the law.
(b) The Prosecutor works under the Directorate of Public Prosecutions (DPP) in the Ministry
of Justice,14 and his role is to protects public and private rights.
(c) The DPP advises the GOSS on matters related to criminal law and criminal procedures.
(d) Conducts pre-trial proceedings on behalf of the State in criminal cases and other laws.
(e) It supervises progress of criminal investigations including directing and executing the
investigation.
(f) Framing of charges.
(g) Prosecution of criminal cases at the National and State levels on behalf of the Government
in criminal courts in South Sudan. That is instituting and undertaking criminal proceedings
against any person before any court other than court martial.
(h) Takes over and continue any criminal proceedings commenced in any court other than
court martial that has been instituted or undertaken by a private individual or authority.
(see the CCPA 2008 s.183
(i) Discontinue at any stage before the judgment is delivered any criminal proceedings
instituted by the DPP or taken over by him or her. (see the CCPA 2008 s.25).
(j) Supervises all the Public Prosecution Attorneys at the National and State levels.

Discretionary powers of the DPP

13
See sections 8 & 16 of The Ministry of Legal Affairs and Constitutional development Organization Act, 2008
and Article 135 of the Transitional Constitution of the Republic of South Sudan 2011 (amended).
14
See sections 8 & 16 of The Ministry of Legal Affairs and Constitutional development Organization Act, 2008
and Article 135 of the Transitional Constitution of the Republic of South Sudan 2011 (amended).

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The DPP has discretionary powers at specific stages of criminal justice process such as:

the decision to whether or not to institute criminal proceedings against an accused person;
the decision whether or not to withdraw charges or stop a prosecution;
the decision whether or not to oppose an application for bail or release any accused person
who is in custody following arrest;
the decision about which crime to charge an accused with and in which court the trial should
proceed;
the decision whether or not to accept a plea of guilty tendered by an accused;
the decision about which evidence to produce during the trial;
the decision about which evidence to produce during the sentencing proceedings in the
event of a conviction; and
the decision whether or not to appeal to a higher court in connection with the question of
law, an inappropriate sentence or improper granting of bail or to seek review of the
proceedings.

The DPP/PPA Decision to Prosecute

The decision to prosecute or discontinue prosecution is the most important decision that a
prosecutor undertakes in criminal justice process.
Indeed, prosecutions that are not well grounded in law and fact or which do not serve the
public interest or justice may unfairly expose the citizens to anxiety, expense and
embarrassment of a trial while the failure to effectively prosecute guilty criminals can
directly impact public safety.
Therefore, a wrong decision tends to undermine the faith and confidence of citizens in the
criminal justice system. In this regard, the prosecutor is required to apply his or her mind
in deciding whether or not to prosecute by using the following two tests or principles:

1. Evidential Test:
This is the most critical test that the prosecutor ought to employ and be satisfied with before
endorsing a case for prosecution.
Public prosecutors determine whether there is sufficient evidence to provide a reasonable
prospect of conviction against each defendant on each charge.
A reasonable prospect of conviction exists if, in relation to an identifiable suspect, there is
credible evidence which the prosecution can present to a court upon which an impartial

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 jury (or other tribunal), properly directed in accordance with the law, could reasonably be
expected to find proved beyond reasonable doubt that that suspect had committed a criminal
offence.
The Prosecutor must read and understand the complaint, the witnesses’ statements
recorded, the documentary evidence and other relevant material evidence to determine
whether or not there is substantive evidence to support and have credible prosecution.
The prosecutor must be satisfied that there is a “realistic prospect of conviction”
considering that the standard of proof in criminal cases – beyond reasonable doubt has been
met.
In testing the evidence available, a prosecutor must keep in his or her mind two principles
of ‘admissibility of evidence’ and the ‘reliability of the witnesses’ proposed to be called to
testify.
If the prosecutor is not satisfied that the evidence available is sufficient to support a
prosecution, and if there is no real likelihood that such evidence as is required will be
available before closing prosecution case, and once internal review with the prosecution
team is conducted, the prosecution ought not to be instituted or already instituted, ought to
be halted or withdrawn forthwith and the suspect discharge without further ado.
If the Evidential Test is not met the case cannot proceed, no matter how serious or sensitive
it may be.

2. The Public Interest Test:

➢ If a case passes the Evidential Test, the prosecutor must decide if a prosecution is required
in the public interest.
➢ This provides that even where a case does satisfy the evidential test above, a prosecution is
not inevitable.
➢ Broadly, the presumption is that the public interest requires prosecution where there has
been a contravention of the criminal law.
➢ The prosecutor must use public interest test, which is complex and demands the
prosecutor’s highest professional judgment and keen awareness of social, political and
economic environment within which any prosecution must be considered conducted or
continued.
➢ However, if the prosecutor forms the opinion on the preponderance, public interest factors
mitigating against instituting or continuing the prosecution, then the same ought not to
commence or proceed forthwith.
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➢ In assessing public interest, the prosecutor must consider these factors namely:
(i) the nature and seriousness of the offence;
(ii) interest of the victim and the wider community;
(iii) circumstances of the offence. In this respect, a Kenyan author James A.
Inciardi15 captures the following factors that the prosecutor should consider
while prosecuting for public interest;
a) not to prosecute the accused person in exchange for information about more a
serious crime;
b) conservation of resources for more serious crimes;
c) to prosecute where the accused person poses a serious threat to the welfare of
the society;
d) the prosecutor may not incline to prosecute when a type of a case at hand is a
minor domestic disturbance, petty thefts and criminal acts by offenders who
suffer from emotional disorders and so on.
The CCPA 2008 section 35 provides that after consideration of the facts of the case, the
PPA may decide to do the following:
(i) Prosecute the criminal case;
(ii) Refuse to initiate criminal proceedings or case, or
(iii) Dismiss the criminal case.

Sub-section (2) of section 35 of the CCPA provides that the decision of the PPA to initiate, or
refuse to initiate criminal proceedings may be appealed to the Senior PPA within his
jurisdiction.

Private Prosecution:

(a) Private prosecution refers to Criminal proceedings instituted and presented by an individual
person.
(b) The law grants powers of private prosecution to a private person called private prosecutor
to undertake prosecution.
(c) This happens when the DPP is not willing to prosecute a prosecutable case.
(d) A private individual other than the Attorney-General or Minister of Justice in our case may
institute criminal proceedings if she or he has reason and probable cause to believe that an
offence has been committed.

15
Criminal Justice, 9th ed.

16
(e) The CCPA 2008 section 23(2) and 183 gives the Minister of Justice powers to grant powers
of private prosecution to a private person or commission to undertake inquiry and
prosecution in furtherance of the cause of justice.
(f) The Minister can intervene any time to take over the private prosecution from a private
individual.
(g) The purpose of private prosecution was well stated by the House of Lords in a 1977 case16
where Lord Wilberforce said that it is the duty of the Attorney-General to take steps to
enforce the law by prosecuting a person who commits an offence. Failure to do that, without
good cause, is a breach of that duty. The individual who wishes to see the law enforced can
prosecute the case.
(h) In the 1872 decision of Eaton v Moller,17 the Supreme Court of the Cape of Good Hope
held that a victim of crime has a right to institute a private prosecution.
(i) However, in South Sudan, a private prosecutor must first obtain permission in writing for
private prosecution from the MOJ (see s.183 CCPA 2008).
(j) However, in other countries like Kenya, a private prosecutor applies to the trial court for
permission to prosecute.
(k) The right to private prosecution has been said to be “a useful constitutional safeguard
against corruption or biased failure or refusal or unwillingness” of the police forces as well
as the DPP to prosecute offenders against the criminal law.
(l) Therefore, the application for private prosecution can be made to court by that individual
complainant and the court would only admit the application after having satisfied that –
(m) A private citizen can apply for powers of private prosecution where:
(i) The State is unwilling to prosecute, or
(ii) the applicant has locus standi (legal standing. see Republic v. Cap Van Ltd18;
(iii) S/he has suffered any injury or damage – private rights are violated; and
(iv) His or her conduct is free from political or vengeful motivation.

Notwithstanding the above, however, the court may reject application if:

❖ the matter is serious criminal case involving public interest (see case of Rumbek
Bishop attempted murder, murder of 3 kids in Rock Cityss); and
❖ the matter has limited private rights (like an accused caught poaching on wildlife).

16
Gouriet v. Union of Post-Office Workers [1977]3 All ER 70.
17
(1871-1872) 2 Roscoe 85
18
[2003] 2 KLR 348)

17
Methods of Controlling Prosecution:

There are two methods of controlling prosecutions namely:

(i) Nolle prosequi and

(ii) Withdrawal.

(i) Nolle prosequi:

In the same manner that the PPA has a general discretionary power with regard to the
institution of criminal prosecutions, he or she can terminate any existing criminal
proceedings or part thereof at any stage before verdict or judgment.
A Nolle Prosequi is a statement that the Republic intends to discontinue the proceedings
and is entered by the Attorney-General.
In the case of crispus njogu-vs-the attorney general19 a nolle prosequi was
defined to mean:

A nolle prosequi is procedural device which has its origins in English Common
Law. Under English Constitutional System the monarch is the constitutional head
of the courts.

The powers to commence and terminate proceedings lies with the monarch. A nolle
prosequi becomes merely a procedural device through which the monarch can exercise her
prerogative powers to end criminal proceedings and because the monarch is the
constitutional head of the courts, a nolle prosequi entered by the Attorney General
personally as the monarch’s minister cannot be challenged in any English courts.
The Attorney-General may enter a nolle prosequi at any stage of the proceedings before
verdict or judgment.
No criminal proceedings are terminable after judgment, which means that the power of the
state to discontinue proceedings by nolle prosequi is only exercisable in the court of first
instance. In a murder case for instance, a nolle prosequi may be entered in the trial in the
High Court.
Once a nolle prosequi is entered, it stays the proceedings in respect of which it was entered
sine die and discharges the accused person(s).

19
High Court of Kenya, Criminal application No. 39 of 2000.

18
 The power to enter a nolle prosequi is given to the Minister of Justice under the CCPA
2008, section 25(1). He can stay the proceedings after completion of investigations and at
any stage of the inquiry and before judgement on reasonable grounds. But the law does not
expressly indicate those reasons.
The Minister is only required to inform the Magistrate or Court conducting the inquiry or
trial of his decision to stay the proceedings but this should be done before judgement.20
In Keynan Wehliye –vs- Republic21 It was held that there is a legally constituted office of
the Director of Public Prosecutions. That the power to institute and undertake criminal
proceedings and discontinue at any stage before judgement is bestowed upon the Attorney-
General
In South Sudan, the DPP as the prosecutorial authority has powers to discontinue or stay
prosecution.22 So, the weapon the prosecutor uses to stay or discontinue criminal
prosecution is known as “nolle prosequi.” By and large, what is nolle prosequi?
Nolle prosequi is a legal term of art and Latin legal phrase meaning: “be unwilling to
pursue” or which literally means “not to prosecute.”
The term nolle prosequi also simply means a formal notice of abandonment by a plaintiff
or prosecutor of all or part of a suit or action.
However, this phrase nolle prosequi is used in many criminal prosecution contexts to
describe the prosecutor’s decision to voluntarily discontinue criminal charges either before
trial or before a verdict is rendered.
Furthermore, nolle prosequi is also defined as a formal entry on the record by which the
Prosecutor General (AG) states in court or declares in writing that he has determined that
the case will not continue.
The prosecutor may enter a nolle prosequi either on the following:
(a) as to some of the counts;
(b) as to some of the accused persons; and
(c) altogether.

The DDP may decide to enter a nolle prosequi due to many reasons such as –

20
Code of Criminal Procedure Act, 2008 section 25(2).
21
8 Criminal Case No. 223 of 2003 (Unreported) at the High Court of Kenya, Nairobi.
22
The Code of Criminal Procedure Act, 2008, s. 25 – Stay of Criminal Prosecutions: (1) The Minister (of Justice)
may after completion of an investigation and at any stage of inquiry and before the finding in any trial, stay the
criminal proceedings against any accused on reasonable grounds. (2) The Minister (of Justice) may inform the
Magistrate who has taken cognizance of the offence or Magistrate or court conducting such inquiry or trial that
he or she intends to stay proceedings.

19
 i. the insufficient or inadmissibility of evidence to support the conviction of the accused, and
this may happen when litigation has already begun. The nolle prosequi removes cases in
which the accused may be guilty but the prosecution is almost certain to lose;
ii. plea negotiation;
iii. necessity of screening out trivial cases; and
iv. to protect public interest – peace and reconciliation or protect national integrity of the State.

▪ A key question is whether the Minister of Justice or DPP should indicate or state the
reasonable grounds for stay of criminal proceedings would be addressed in the following
cases. The case of Government of South Sudan v Oyai Deng Ajak & Others, 23 in which
the entering of nolle prosequi was addressed in writing to the very court or judge of the first
instance trying the case in manner prescribed by law.
▪ However, in other instances, if the prosecutor does not follow the appropriate procedures
of law to enter nolle prosequi, the decision of the public prosecutor may be subjected to
judicial review and administrative action before a competent court.
▪ In the case of Sudan Government v Ayad Riad Toma24 in which the question of nolle
prosequi was addressed thus the High Court held: An order of nolle prosequi not made to
the magistrate concerned in compliance with the form prescribed in the Code of Criminal
Procedure 1923, s.23 (a) [equivalent s.25 of the CCPA, 2008] is void and may be discharged
by magistrate.
▪ Again, in the case of Sudan Government v Zahra Adam Omer and Others25 the nolle
prosequi was improperly entered by the Public Prosecutor thus the High Court held that:
Now, therefore, whereas the Attorney-General’s discretion to stay proceedings under Code
of Criminal Procedure, section 23 (1A), is its original and nature judicial, and whereas it is
a creature of statute and not the common law, and whereas the said statute did not say it is
to be absolute, it should therefore be subject to the supervisory power and control by this
court; and whereas the letter dated June 20, 1962, signed by the Public Prosecutor
Khartoum Circuit purportedly on behalf of the Attorney-General, did not disclose any law,
and whereas the manner in which it was sent contrary to that provided by Code of Criminal
Procedure, section 23 and whereas the AG has acted ultra vires by exercising his discretion
before completion of the investigation, and whereas the said investigation was not complete

23
GOSS v Oyai Deng Ajak & Others, Crim- Case No.4701/2014 (unreported).
24
Sudan Government v Ayad Riad Toma [1977] SLJR 62.
25
Sudan Government v Zahra Adam Omer & Others [1965] SLJR 31.

20
 in fact and in law, whereas the AG is under a duty to exercise this discretion for the interests
of justice, and whereas this fact does not appear from record nor from the broadcast made
by him and whereas the AG is not entitled to substitute his own judgment in weighing
evidence in place of that if the magistrate having jurisdiction to do so, I hereby hold that
the Attorney-General’s letter dated June 20, 1962, is illegal and is without force or effect.

Legal effect of entering nolle prosequi:

In light of the above judicial decision, once the nolle prosequi is entered, the accused gets
discharged in respect of the charge for which the same was entered and it mattered not what
stage the proceedings had reached so long as a verdict has not been rendered.
When an accused is discharged following the entry of nolle prosequi such discharge is no
bar to subsequent proceedings on account of the same facts.
The legal position of South Sudan law is different in the sense that the staying of criminal
prosecution results in the lapse of the criminal case.
This means that no other criminal case based upon the same facts shall be initiated against
the accused.26

(ii) Withdrawal:
➢ Withdrawal from prosecution of trials before the court may be undertaken by a private
individual, which is the private prosecution right, or through nolle prosequi usually
undertaken by a public prosecutor on behalf of the state.
➢ However, withdrawal from prosecution case is often taken with the consent or leave of the
court or on the instructions of the Attorney-General at any stage of the trial, but must be
before judgment is pronounced.

Withdrawal takes two forms:

i. First, before the accused person has been called upon to make his or her defense in a case,
he or she is to be discharged but such discharge, however, is not a bar to any subsequent
proceedings against the accused person on account of the same facts; and
ii. Secondly, withdrawal may be made after the accused person has already made his or her
defence in which case, he or she is to be acquitted.

A number of cases have suffered withdrawal before being brought to court in Kenya.

26
The Code of Criminal Procedure Act 2008 s. 46 (1) (d) and (2).

21
 ✓ In the case of Clifford Derrick Otieno –vs- Lucy Kibaki,27 Clifford a television
cameraman filed a suit against Lucy Kibaki (Kenya’s First Lady) alleging assault and
malicious damage to property at the Nation Media Group’s newsroom.
✓ However, even before the matter was entered into the court’s record, the Director of Public
Prosecutions entered a nolle prosequi under the direction of the Attorney-General.
✓ The Magistrate observed that “he feels that the ‘nolle prosequi’ goes against public
expectations and tramples on the right of the vulnerable and hopeless in the society.
Whichever way the court feels, it could complain about the circumstances of presentation
but cannot ever reject a ‘nolle prosequi’. That is the law and am bound by it.”
✓ Seanoi Parsimei ole Sisina and & Others –vs- Attorney-General,28 Thomas
Cholmondeley was charged with the murder of a Kenya Wildlife service warden at his
Soysambu ranch but before the case could proceed to trial the Attorney-General withdrew
the murder charge citing insufficient evidence to support and sustain the murder charge.

4. The Police
The police as a law enforcement agency is established by the Transitional Constitution
2011(amended) (see Article 155). The function of the police is clearly spelled out in the
Constitution, the Police Service Act, 2009 and Criminal Procedure Act, 2008.
The Police is headed by the IGP appointed by the President after approval by the Council
of Ministers upon recommendation of the Minister (Art. 155 (2)(4) of the Constitution.
The police service is under jurisdiction of the GOSS and that means States of South Sudan
cannot independently have their own police service separate.29 The SSPS is to respect the
will of the people, the rule of law and order, civil administration, democracy as well as
human rights.30
The police mandate under the Transitional Constitution is to prevent, combat, and
investigate crimes, maintain law and order, protect the people and their properties and
uphold and enforce the Constitution and the law.31
Sections 7 (f) and 8 of the Police Service Act, 2009 provide for functions, powers and duties
of the police personnel, for instance – .... Section 7 (f): Carry out investigations or any other

27
Miscellaneous Application No. 5 of 2005 (unreported) at the Chief Magistrate’s Court in Nairobi.
28
Criminal Case No. 345 of 2005 at the High Court of Kenya in Nakuru.
29
Ibid., Article 155(3).
30
Ibid art 155 (6).
31
Ibid art 155 (5)-(7).

22
 criminal procedures pursuant to the provisions of the Code of Criminal Procedure Act 2008
or any other law.
These aforesaid powers and functions are also reiterated in s.30 of the CCPA, 2008 with
emphasis on the duty to investigate and prevent crimes and enhance peace and stability.

Furthermore, there are two units of police such as the Court Police32 and the Crime Police.33
These two units of police within the police division are explained as follows –

(a) The Crime Police Unit – This unit operates under the direction of a Public Prosecution
Attorney.
(b) It conducts any investigation or criminal proceedings; and
(c) presents criminal cases to court under directives of the PPA.
(d) Executes orders issued by the PPA.

(b) The Court Police Unit – It is a unit within the police service and is under the crime
police unit whose role is to:
(i) prepare cases for judicial hearings and sittings,
(ii) control security and order in the courts; and
(iii) execute penalties and orders passed by the courts, among others.
(iv) The crime police unit in other jurisdictions is referred to as the criminal
investigation department (CID).

Functions and powers of the Police Service34

(a) The police perform investigative functions to ensure that the case brought against the
accused is substantial, weighty and supported by evidence. So, it carries out criminal
investigations under the directives and supervision of PPA.
(b) Its role is detection, prevention, investigation and combating crime (see Art. 155(2)(a) of
the Constitution).
(c) Uphold and enforce the Constitution and the law; Maintains law and public order.
(d) Protection of people’s lives and their properties in South Sudan.

32
The Code of Criminal Procedure Act 2008 s.27.
33
Ibid s.28.
34
See sections 30 of the Code of Criminal Procedure Act 2008, 7 & 8 of the Police Service Act 2009 and Article
155 of the Transitional Constitution 2011 of the Republic of South Sudan (Amended).

23
(e) Preserve lost, found, seized, and confiscated property, and dealing with such property
according to the law.
(f) Combat illegal trafficking in drugs and narcotics.
(g) Combat smuggling and illegal trading in firearms.
(h) pursue and arrest offenders.
(i) conduct surveillance and interrogation.
(j) Conduct search and seizures.
(k) Receive information and complaints with respect to offences.
(l) Execute judicial judgements and orders or decisions passed by the PPA, Magistrate, Court
or other competent authority.
(m) Perform technical criminal research.
(n) Presents criminal cases to the Magistrates or Courts under the directives of the PPA.
(o) Closure of public roads.
(p) Take bonds and securities.
(q) Execute summons and warrant of arrest and search in accordance with the provisions of
this Act.

(iii) Prison Service

✓ The prison service like police service is playing pivotal role in criminal proceedings mainly
during the period of investigation in which suspects under pre-trial proceedings are put in
the prison by either order of PPA or court pending the completion of investigation and
subsequent conviction thereafter.

Functions and Powers of the Prisons Service

The roles of the Prison Service found in various laws on South Sudan.35

(a) It is a correctional authority in the criminal justice system.

(b) During the period of investigation, suspects under pre-trial proceedings are put in the prison
by either order of PPA or court pending the completion of investigation and subsequent
conviction thereafter.
(c) There are custodial aspects to prosecution being exercised by the prison service before
ultimate sentencing.

See The TCSS 2011 (as amended) art 156 (2) & (6), the CCPA 2008, ss. 26, 29, 32-33 and the Prison Service
35

Act, 2011 s. 7.

24
 (d) Execution of death and imprisonment sentences and any other penalty.
(e) Executing detention orders entrusted to it by the Court.
(f) Perform other task assigned to it by law.

Power of Officer in Charge of a Police Station when Police Public Prosecution Attorney
and Judge absent (s.31 CCPA 2008):

(a) The Officer in charge of a police station exercises the powers of supervision of
investigation when the PPA, Magistrate or Court is absent.
(b) It may also exercise the power of initiation of criminal proceedings, dismiss the same,
frame the charge and power of detention subject to restrictions by law on the powers
given to the PPA, Magistrate and the Court.

(iv) Witnesses:
• Simply put, a witness is a person who, as a result of having been present, observed, experienced or
dealt with an event or thing, is able to give an account of it in a court of law.
• Since the criminal trial is adjudicative in nature and aimed at establishing the truth or otherwise of
allegations made against an accused person, witnesses play a central role.
• It is their testimony as to facts in dispute as well as their production of documentary or physical
evidence or opinion in the case of experts that aids the court in arriving at a just decision.

(v) Judge/Magistrate and the Court:

(a) The Courts are the adjudicative authority in the criminal justice system.
(b) The fundamental duty of a court is to manage criminal prosecutions with purpose to
determine the guilt or innocence of an accused person charged with a crime.
(c) the adjudicative authority of courts in relation to the criminal prosecutions derives its
jurisdiction or powers from several laws in South Sudan.36
(d) He is the presiding officer of the Court and represents the authority and integrity of the
judicial adjudicative process.
(e) His role is passive as an impartial umpire in an adversarial legal system.
(f) His duty is to apply procedural law as well as the rules of evidence to ensure that the
criminal process is not used oppressively.

36
The TCSS 2011 (as amended) arts 126 (f)-(i), 130 and 131, the Code of Criminal Procedure 2008, s. 9-16, the
Judiciary Act 2008, ss. 9, 10 (4), 15 (1), 18 (1) and (3) and the Penal Code, 2008.

25
(g) His interventions should be kept to a minimum less he be accused of descending into an
arena of conflict where his vision may be blurred. It is arguable where a strictly passive
role on the part of the court can lead to attainment of substantial justice where the contest
is between the all-powerful State mechanism and the often illiterate or unschooled or
unrepresented criminal accused person a fair contest.

(vi) Anti-Corruption Commission

• The Anti-Corruption Commission is established under article 143 of the Transitional
Constitution with roles to investigate cases of corruption involving public property (see
Chapter V of the S. Sudan Anti-Corruption Act, 2009).
• However, further prosecutorial functions and duties of the Anti-Corruption Commission
are provided in the relevant Act.37

(vii) Military Justice (Military Courts)

Military justice is not part of the civilian criminal justice system.
The military criminal justice system of South Sudan, the courts, other institutions and the
legal services under the system are regulated by the Sudan People’s Liberation Army Act,
2009.
The Military Justice system is established by law under section 34(1) SPLA Act, 2009.
Section 35 of the same Act lays down the structure and composition of Court Martial.
There shall be two levels of military courts, a District Court Martial and a General Court
Martial.

(viii) South Sudan Bar Association

➢ As with any legal process that entails a dispute of facts and efforts to ascertain liability,
prosecution of criminal cases is no different from civil proceedings.
➢ The prosecution is without doubt represented by PPA, and by inference, accused persons
should be afforded legal counsel. This is often by way of counsel or lawyer.38

37
The Anti-Corruption Commission Act, 2009 s.9 (1) (b) and (c).
38
The Code of Criminal Procedure, 2008 s. 182 – Pleaders: provides thus: Any advocate authorized generally to
practice before the criminal courts of South Sudan, appear and act as pleaders in any criminal proceedings; and
any Magistrate or Court as regards any particular proceedings before it, authorize any other person to act as
pleader; provided that, a professional Advocate not authorized generally to practice in the criminal courts of South
Sudan shall not appear in any criminal proceedings without the sanction of the President of the Supreme Court.
See section 184 of the CCPA 2008 on the right of to be defended by a lawyer. See Art.19 TCSS 2011 (amended).

26
➢ So, the role of Advocates in criminal justice system is important and the Bar Association
(Advocacy) becomes central institution in the justice system particularly oversight function
and provision of legal practice, legal aid or pro bono services in criminal matters, and so
forth.
➢ Example, the TCSS 2011 Article 136(2) provides that advocates shall promote, protect and
advance the human rights and fundamental freedoms of citizens.
➢ Art. 136(2) of the same Constitution provides that advocates shall serve to prevent injustice,
defend the legal rights and interests of their clients, seek conciliation between adversaries
and may render legal aid for the needy according to the law.

Cardinal principles to be observed in the application of the Code of Criminal Procedure

Act 2008:

these principles are very important for promotion of the right to a fair trial and fairness.
they are found under section 6 of the CCPA 2008 and Art.122(5)(a-e) of the TCSS 2011.
every accused person shall have the right of a fair and speedy trial, and justice shall not be
delayed;
every accused person is presumed innocent until his or her guilt is proved beyond
reasonable doubt;
that no accused person shall be forced to incriminate himself or herself;
no punishment shall be inflicted upon any person exceeding that prescribed by the law in
force at the time such an offence was committed;
no person shall be subjected to cruel or inhuman treatment or punishment;
justice shall be done to all, irrespective of such person’s social or economic status, gender,
religion or belief;
adequate compensation shall be awarded to victims of offences;
due regard shall, as far as possible, be had to lenity in the procedure of inquiry and
summons, and the exercise of the powers of arrest shall not be resorted to except when
necessary;
voluntary reconciliatory agreements between parties shall be recognized and enforced; and
substantive justice shall be administered without undue regard to technicalities.

Criminal Courts and Jurisdiction of Criminal Courts in South Sudan

In the administration of criminal law, the function of the court is to defend the society from
the acts of the criminal.

27
 The courts also uphold the fundamental rights of the accused person. The courts are alive
to the inalienable rights of the accused person.
Criminal procedure is intended to assist the court in the trial of suspects (to balance these
competing interests).
The criminal procedure helps the court determine the guilt or innocence of the accused.

Jurisdiction

✓ In criminal matters, it is essential for a legal counsel: whether an advocate or prosecution

attorney to have knowledge of jurisdiction of courts.
✓ Indeed, the question of jurisdiction lies at the root of judicial functions. Courts are creatures
of statute and can only exercise such powers as conferred by statute.
✓ They may not exercise powers which the law does not, expressly or impliedly, vest in them.
✓ Jurisdiction is fundamental; it is prescribes the boundaries of the authority of a court.
✓ If a court tries a case over which it has no jurisdiction the sentence passed and handed to
the accused after such trial cannot stand. For instance, it would be illegal for a County court
to try and convict an accused person charged with murder.
✓ Simply defined, the jurisdiction of a court refers to the extent to which or the limits within
which, courts or magistrates or judges may act in the course of handling a particular type
of a case or pass a particular sentence.
✓ The limits within which a court may exercise its powers may be geographical or pecuniary
or may be prescribed according to the subject matter; that is by categorization of offences
which should be tried or inquired into by a certain court or the sentence which such court
may impose.
South Sudan has a court structure which operates at different levels.
These courts are a creature of the Constitution and Statutes.
The court at each level has power to deal with certain cases which is described as
jurisdiction.
Jurisdiction is simply the “court’s power to decide a case or issue a decree.” Black’s Law
Dictionary 927 (9th ed. 2009).
Courts can only exercise such powers as are expressly given to them by law.
Any purported arrogation of powers to itself that a court does not possess is an unlawful
usurpation of power that is of no legal effect and amounts to a nullity.
It matters not how high in hierarchy a court lies or how willing the parties before it may be
to submit to such jurisdiction, it is null and void.

28
 In the case of Sir Ali Bin Salim v. Shariff Mohammed Shatry,39 it was held that,

If a Court has no jurisdiction over the subject matter of the litigation, its judgements and orders,
however, precisely certain and technically correct, are mere nullities and not only voidable;
they are void and have no effect as estoppel, and may not only be set aside at any time by any
Court in which they are rendered, but be declared void by any Court in which they may be
presented. It is well established by the law that jurisdiction cannot be formed by consent of the
parties and any waiver on their part cannot make up for the lack or defect of the jurisdiction.

Jurisdiction, can be limited to a prescribed area or subject matter.

CATEGORIES OF JURISDICTION

Original Jurisdiction

✓ Original jurisdiction means the power of a court to hear or try a case as a matter of first
instance. This requires that a particular type of case should only be commenced and tried
in the lowest court in the ladder before moving to the next court in that hierarchy.
✓ A court with original jurisdiction may hear the case; make various findings and orders, pass
judgment and sentence against the accused within the limits provided for in the law. For
instance, High Courts of South Sudan have original jurisdiction to try offences punishable
with death or life imprisonment such as offences in Chapter V; Offences against South
Sudan like treason, Subverting Constitutional Government (see Schedule I to the CCPA
2008 and the case of FDs), and offences related to death in Chapter XVI such as murder.
✓ The SC of South Sudan has original jurisdiction to try criminal cases against the President,
Vice President of the Republic and the Speaker.40
✓ This power is not given to any other courts.
✓ The case may go up to Appellate or Supreme Court as an appeal after it is originally tried
by the High Court.
✓ The High Court has unlimited Original Jurisdiction. This means it can try any offences from
the petties to the gravest offence. This applies also in civil cases (see section 20(1) CPA
2007).

Territorial Jurisdiction

39
[1938] KLR 10, cited in the case of Republic v. Chiarman, Lands Dispute Tribunal Kirinyaga District and
Another ex parte Peter Maru Kariuki [2005] Eklr (Misc Civil Appli 129 of 2004).
40
The Code of criminal Procedure Act 2008 s.10 (d) have criminal jurisdiction over the President, VP, and the
Speaker of National Legislative Assembly.

29
• Territorial jurisdiction means the geographical area within which a court may exercise its
judicial powers.
• A County Court has jurisdiction within the County in which it is situated(see section 18(1-
2) Judiciary Act, 2008), and a High Court Judge has jurisdiction within the State in which
it is situated and the crime is committed (see section 14(3) Judiciary Act, 2008).
• On the other hand, the Court of Appeal has jurisdiction within the territorial limits of a
region (see section 13(1) Judiciary Act, 2008).
• For this reason, a charge must always state in the particulars as to where the alleged offence
was committed which is a question of territorial jurisdiction and that will enable the court
to know whether to try or not to inquire into the case.
• However, if the court discovers, on reading the charge or in the course of the trial that, the
offence was committed outside its territorial jurisdiction, it must immediately make an
order transferring the case to the court within whose jurisdiction the offence was
committed.
• The case of Sharma v. R41 , sufficiently illustrates the point as to the importance of
territorial jurisdiction.
• In that case territorial jurisdiction was in issue.
• The Court of appeal for Eastern Africa pointed out that proof of place of commission of
offence is essential to the prosecution’s case and that although it is not always capable of
exact proof, evidence should be led on which the necessary inference can be drawn.
• In short, Territorial principle of jurisdiction – is an exercise of jurisdiction based on the
location of the occurrence of an offence inside a state’s own territory.
• The offence may be subjective that is initiated within the state; objective in which the
offence is completed in the state; and resultant effect doctrine that is the offence has effect
inside the state territory. In the case of Elidadi Emanuel v. R,42 the appellant was convicted
of armed robbery and sentenced to 30 years imprisonment by a Tanzanian Court.
• His appeal to the High Court at Moshi was unsuccessful, hence this 2nd appeal.
• The appellant challenged the jurisdiction of Tanzanian Courts over an incident that occurred
outside its borders; that is in Kenya. Legal issue: whether the courts in Tanzania have
jurisdiction to try cases over incidents that occurred outside its borders.

41
20 EACA 310.
42
Court of Appeal of Tanzania in Dar es Salaam, Criminal Appeal No. 244 of 2007 (Unreported).

30
• Held: the issue was actually considered and determined at the trial. In response to that, the
trial court said as follows:
• “Perhaps the first issue should be whether it has been proper and competent for this court
to try this case in view of the fact that the robbery was perpetuated in Kenya.
• Sections 6(b) and 7 of the Penal Code gives this Court competence to try this case.”
• As correctly held by the trial Court, the courts in Tanzania have competence to try this case.
• Section (b) gives jurisdiction to Tanzanian courts to try any offence committed by
Tanzanian citizens outside Tanzania. Section 7 of the above also gives jurisdiction to
Tanzanian courts to try acts partly committed within Tanzania and partly outside the
jurisdiction of Tanzania. (See also the Lotus Case).43
• The State of South Sudan Courts can exercise jurisdiction based on any of the three factors
above. See section 6 of the Penal Code Act 2008 on Acts committed within the territory of
the Republic of South Sudan and section 7 of the same Law for acts committed outside its
territory. (See also sections 64,65 and 66 of the Penal Code Act, 2008).
• ‘Nationality Principle’ which is an exercise of jurisdiction based on the nationality of an
accused. (See the Nottebohm case).44 National of South Sudan who commits an offence
outside the country can be tried by South Sudan Courts. (See section 64, 65, 66 of the Penal
Code Act 2008)
• Passive personality principle of jurisdiction – a state exercises jurisdiction based on the
presumption that the alleged victims are its nationals.45
• The passive personality principle bases criminal jurisdiction on the status of the victim of
crime as a national of the state exercising jurisdiction.
• Until recently, it had been used mostly by civil law states and was frequently objected to
by common law states when used against their nationals.
• Today, largely due to treaty practice, most common law states use passive personality
jurisdiction in cases of terrorism or where their nationals are attacked because of their
nationality. Many still do not accept it as an acceptable basis of jurisdiction for other crimes.
• Universality principle of jurisdiction: a state exercises jurisdiction based on the
assumption that the crime is against the whole world or international community. (See

43
France v Turkey (1927) PCIJ.
44
Lichtenstein v Guatemala (1955).
45
US v Yunis [1991].

31
 Eichmann case46 for further insight. Such crimes include genocide, crime against humanity,
ethnic cleansing, rape, systematic murder etc.

Subject Matter Jurisdiction

Jurisdiction by subject matter, also termed jurisdiction by categorization of offences is

expressly conferred by legislation stating which offences are triable by which court.
The criminal jurisdiction of South Sudan courts relates to trial of offences under the Penal
Code and other laws with penal sanctions within the context of the subject matter and more
importantly penalties a court can impose in terms of imprisonment or monetary fines.
Jurisdiction of court is further affected depending on the manner in which the trial is
conducted such as summary trials.
Section 8 and the First Schedule to the CCPA 2008 for example, sets out what offences are
triable by each Court, arrest with or without warrant, sentence, summary or non-summary
trial.
For instance, In Tanzania, the First Schedule to the Criminal Procedure Act, for instance,
sets out what offences are triable by subordinate courts and which are triable by the High
Court. Similarly, the First Schedule to the Magistrates‟ Courts Act, Cap. 11 set out which
offences may be tried by primary courts in addition to other subordinate courts.
The case of R v. Mrisho s/o Seffu47, sufficiently illustrates the issue of subject matter
jurisdiction. In that case the accused was tried and convicted by a district court of the
offence of incest by male contrary to section 158 (1) of the Penal Code.
The High Court in revision declared the trial a nullity as the offence is triable only by the
High Court.
Consequently, the conviction was quashed, the sentence set aside, and the case was remitted
to the subordinate court for committal proceedings at the option of the Republic.

Pecuniary Jurisdiction

✓ Pecuniary jurisdiction, which usually applies to civil cases, means limitation of the powers
of a court by the value of the subject matter in issue. For instance, under section 21(2) of
the Code of Civil Procedure Act 2007, a County Court of the 2nd Grade Judge has original
jurisdiction to try suits of value not exceeding SSP 1,000. See sections 13, 14, 15 and 290
of the CCPA 2008.

46
[1961] ILR.
47
[1968] HCD 140.

32
Sentencing Jurisdiction

✓ Sections 8-15 of the CCPA 2008 prescribes what sentences each criminal court may
lawfully pass in a criminal trial.
✓ Courts should pass lawful sentences that are authorized by law.
✓ Similarly, a court cannot impose a fine of more than that authorized by law according to its
jurisdiction.
✓ Therefore, the sentencing powers of a subordinate court are unlimited. As such, a
subordinate court may not impose on a convicted person any sentence of imprisonment,
fine or corporal punishment as it pleases.

Appellate Jurisdiction

Appellate jurisdiction means the power of a court to hear or try matters on appeal from
another court inferior to it. For instance, section 12(i) of the CCPA 2008 gives the High
Court the power to hear appeals from the County Court. See also section 15(4) of the
Judiciary Act, 2008 giving the HC appellate jurisdiction.
Section 11(c) of the CCPA 2008 gives the Court of Appeal powers to receive and determine
appeals from the High Courts.
See also section 13(1) of the Judiciary Act 2008 that provides that Appeals shall lie to the
Courts of Appeal against decisions of the High Courts within their Jurisdictions.
The CCPA 200 section 10(f) gives the SC of S. Sudan appellate jurisdiction to receive
appeals from decisions and judgements of the Courts of Appeal.
The Judiciary Act, 2008 section 11 (b) establishes a criminal panel within the SC to
determine appeals and confirmation in criminal matters.
Those are appeals from the CA. it confirms death sentences passed by the CA.
see the case of Sudan Government v Ali Omer Shereef & Others48 on appellate jurisdiction.

Extended Jurisdiction

✓ It is also referred to as delegated jurisdiction. When a subordinate court has been given
power to try offences not ordinarily tried by the subordinate courts, it is said to exercise
extended or delegated powers or jurisdiction. The extended jurisdiction or power is given
at the discretionary power of the President of the Supreme Court to particular magistrate or
judge, as he or she may deem necessary.

48
[1989] 17 SC SLJR

33
✓ When a subordinate court is given power to try offences not ordinarily tried by subordinate
courts, it is said to exercise extended jurisdiction.
✓ Indeed, it ought to be borne in mind that extended jurisdiction is not for the courts but for
the Magistrates. Sections 17,18,19 and 31 of the CCPA 2008 provides for temporary
delegation of judicial powers to any other person.
✓ The Judiciary Act, 2008 section 19 gives the President of the SC the power to grant
temporary judicial powers to any judge or person for a specified period and may renew
such powers from time to time.
✓ In Tanzania, in terms of section 173 of the Criminal Procedure Act, the Minister responsible
for legal affairs may, after consultation with the Chief Justice and the Attorney General, by
order published in the Gazette invest any resident magistrate with power to try any category
of offences, or specified cases which, would ordinarily be tried by the High Court,
specifying the area within which he may exercise such extended powers.
✓ Similarly, by virtue of section 45 of the Magistrates‟ Courts Act of Tanzania, a magistrate
may be vested by the Minister with appellate jurisdiction ordinarily exercisable by the High
Court.
✓ A magistrate exercising extended jurisdiction has the power to impose any sentence which
could lawfully be imposed by the High Court. Therefore, for the purposes of any appeal
from or revision of his decision in the exercise of extended jurisdiction, such resident
magistrate is deemed to be a judge of the High Court, and the court presided over by him
while exercising extended jurisdiction shall be deemed to be the High Court.

Revisional Jurisdiction

• Revision jurisdiction is the power vested in a superior court to examine the records of an
inferior court in order to satisfy itself as to the correctness, legality or propriety of any
decisions or orders made by such (inferior) court.
• Thus, in Tanzania in terms of section 22 of the Criminal Procedure Act, a district court may
call for and examine the records of proceedings in primary courts and revise them.
• Similarly, a Resident Magistrate-in Charge may call for and inspect the record of any
proceedings in a district court and the High Court has revision jurisdiction over matters
originating in primary courts, as persons aggrieved by a decision of a district court in the
exercise of its revision powers over primary courts may appeal to the High Court.
• Similarly, section 372 of the Criminal Procedure Act empowers the High Court to call for
records of a subordinate (magistrate’s) court for the purpose of examining such record and

34
 satisfying itself as to the correctness, legality or propriety of any finding, sentence or order
recorded or passed by that court.
• In South Sudan, the CCPA 2008 section 265 gives the SC, HC, CA and the County Courts
review and revisional powers to review certain criminal proceedings on its own motion.
For example, the section provides that these courts may on their own motion, call for and
examine the records of any criminal proceedings before any Court as a mean of ensuring
the correctness, legality, or propriety of any findings recorded or passed or as to the
regularity of the proceedings of a Court.
• Sections 11 (1), 13 (1), 15 (4) 18 (1) of the Judiciary Act, 2008 provide for revisionary
jurisdiction of each court in the Republic of South Sudan.
• In the case of Sudan Government v Ali Omer Shereef & Others49 the Court held that thus:
“... (1) In so far as the Province Court became appellate authority in accordance with the
Criminal Procedure Act (amendment1406A) it has therefore, the power of revision of
orders and judgment of inferior courts.”
• Lastly, the CCPA 2008 section 10(c) gives the SC powers of review and cassation in respect
of any criminal matters arising out of the laws of South Sudan.

Summary Jurisdiction

• The CCPA section 5 of the CCPA 2008 of South Sudan defines ‘summary trial’ to mean a
trial which decides some of the criminal cases without adherence to the formalities of
pleadings or other types of Court procedures.
• Criminal trials before subordinate courts involving offences which fall within the ambit of
jurisdiction of subordinate courts are normally disposed of by way of summary trial.
• This happens because the subordinate court is vested with the power to try such offences
and impose the appropriate sentence.
• Criminal offences triable by subordinate courts are also technically known as summary
offences.
• As such they may be said to be disposed of in by way of summary trial, and the subordinate
court involved in disposing of the cases may rightly be said to exercise summary
jurisdiction.
• Therefore, the terms summary trial and summary jurisdiction is with regards to trials done
without recording the detailed evidence (see sections 220-222 of the CCPA 2008).

49
[1989] 17 SC SLJR.

35
• The First Schedule to the Criminal Procedure Act contains a list of some of the offences
which subordinate courts may dispose of by way of summary trial. Where offences not
triable by a subordinate court are involved, it has to hold committal proceedings.50
• The terms summary trial and summary jurisdiction have, by some authorities on Criminal
Procedure, been associated with (and sometimes restricted to) the provisions of section
213(1) of the CPA of Tanzania which lay down the procedure that may be followed by
subordinate courts in the case of minor offences detailed in sub-section two of that section,
which may be tried without recording the evidence.

Supervisory Jurisdiction

• The law grants the High Courts general powers of supervision over the lower courts under
its jurisdiction in the State. For instance, the section 15(3) of the Judiciary Act, 2008
provides that;

the President of a High Court shall have the power of administrative supervision over
the Courts within his or her Jurisdiction, he or she shall be answerable to the Governor
of the State for the performance and administration of the State Judiciary.

• The Court of Appeals also have supervisory jurisdiction over the lower courts under its
jurisdiction. For example, the Judiciary Act, 2008 section 16(4) provides that the
President of the Court of Appeal shall have the power of administrative supervision
over the Courts within his or her Jurisdiction.

The law gives the criminal courts of South Sudan the power to:

(i) adjudicate all criminal cases;

(ii) Impose appropriate sentences and other penalties; and to
(iii) Award compensation to victims of crimes.

There are six levels of criminal courts in South Sudan:

Criminal Jurisdiction of South Sudan Courts

• Criminal jurisdiction of South Sudan Courts is not expressly provided in the supreme law
of the land.

50
Section 244 of the Criminal Procedure Act of Tanzania explains the circumstances under which committal
proceedings are to held.

36
• However, all courts in South Sudan have jurisdiction or competence to try all cases whether
civil or criminal. Article 124 of the TCSS51 stipulates only hierarchy and structure.
• Notwithstanding the above, the Code of Criminal Procedure Act as well as the Judiciary
Act52 provide for six levels of courts in South Sudan with jurisdiction over certain criminal
cases as in the following hierarchy –
(a) The Supreme Court;
(b) The Courts of Appeal;
(c) The High Courts;
(d) County Courts of Magistrates of the First Class;
(e) County Courts of Magistrate of the Second Class; and
(f) Payam Courts.
• Therefore, the jurisdiction and competence or judicial powers are given according to the
abovementioned hierarchy of the courts.
• Section 7 of the Code of Criminal Procedure Act equally stipulates that the criminal courts
of South Sudan shall have the power to try all criminal cases, impose sentence and other
penalties and to award compensation to victims of offences.

(a) The Supreme Court

✓ As mentioned earlier, the Supreme Court is established under article 124 of the TCSS,
which is the apex Court in South Sudan and is composed of Chief Justice, Deputy Chief
Justice and not less than other nine Justices.53
✓ The competences of the Supreme Court are provided for in article 128 of the same
Constitution.54

51
The TCSS (2011), as amended, provides for (a) the Supreme Court; (b) Courts of Appeal; (c) the High Courts;
(d) the County Courts; and other courts or tribunal as deemed necessary...
52
The Code of Criminal Procedure Act 2008 s.9 and Judiciary Act 2008 s.7
53
The TCSS 2011 (as amended) art 126.
54
5 Ibid art. 128 (1) ... shall be the custodian of this Constitution and the constitutions of the States in South
Sudan; (2) (a) interpret constitutional provisions at the instance of the President, GOSS, any State govt., or any of
the two Houses of the National Legislature; (b) be the court of final judicial instance...; (c) have original
jurisdiction to decide on disputes that arise under this Constitution and the States Constitution...; (d) adjudicate
on the constitutionality of laws ... to extent of the inconsistency; (e) be a court of review and cassation ... ; (f) have
criminal jurisdiction over the President in accordance with Article 103 (2) herein; (g) have criminal jurisdiction
over the VP, the Speakers of the NLA and the Council of States and the Justices of the Supreme Court; (h) review
death sentences ...; (i) receive appeals against decisions and judgments of the Courts of Appeal; (j) have original
and final jurisdiction to resolve disputes between the States and between the National Govt. and a State in respect
of areas of exclusive, concurrent or residual competences ...

37
✓ However, the Code of Criminal Procedure Act55 has specifically provided for powers and
competence of the Supreme Court in the area of criminal law as follows –
✓ to serve as the court of final judicial adjudication in respect of any litigation or prosecution
under South Sudan and State laws including statutory law except that any decision arising
under national laws shall be subject to review and decision by the Supreme Court;
✓ have original jurisdiction to adjudicate disputes that arise under the TCSS 2011 as amended
and the constitutions of States of South Sudan at the instance of individuals, juridical
entities or government;
✓ be a court of review and cassation in respect of any criminal, civil and or administrative
matters arising out or under the laws of South Sudan;
✓ have criminal jurisdiction over the President, VP, and the Speaker of National Legislative
Assembly;
✓ review and confirm death and life imprisonment sentences imposed by South Sudan courts
in respect of offences committed under the laws of South Sudan;
✓ receive appeals from decisions and judgments of the Courts of Appeal;
✓ adjudicate on the constitutionality of laws and set aside or strike down laws or provisions
of laws to the extent of inconsistency; and
✓ have such other competences...
✓ The Supreme Court equally is the only authority with final and conclusive competence. To
substantiate this position, Sudan Government v Amir Bashir Adam56 in which the
Supreme Court held that: ... The Supreme Court is the only authority, which has final and
conclusive competence to interpret the law in a way that is binding on courts of all levels
without exception…

(b) The Court of Appeal

The Courts of Appeal are also established under article 130 of the TCSS and decisions of
the Courts of Appeal shall be appealed against before the Supreme Court.57
However, under the Code of Criminal Procedure Act, 2008,58 the Courts of Appeal ... shall
have powers and competences in the area of criminal law:
❖ all the powers granted to a High Court;

55
The Code of Criminal Procedure Act 2008 s.10.
56
[1977].
57
The TCSS 2011 (as amended) art 130 (2).
58
The Code of Criminal Procedure Act 2008 s.11.

38
 ❖ power to receive appeals against judgments of the High Courts; and
❖ hearing of appeals from attachment of property.
❖ Such other competences as may be determined by this Act or any other law.

(c) The High Court

✓ The High Court is established under Art. 124 and 131 of the TCSS 2011.
✓ The Code of Criminal Procedure Act 2008 particularly in section 12 provides for powers
and competences of the High Court in the area of criminal law as follows:
serve as the exclusive trier of any offence punishable with death or life imprisonment;
pass any penalty, sanction or sentence authorized by law;
direct the release of an individual on probation;
require the execution of bonds for keeping peace or good behavior subject to the
provision of section 140 of Code of Criminal Procedure Act 2008;
make orders providing for police supervision;
release person imprisoned for failing to give security;
reduce security;
cancel bonds for keeping peace;
review appeals;
review of certain criminal proceedings on its own motion.

(d) County Court

The County Courts and other courts are established under articles (124) (d) and 132 of the
TCSS where its composition, competences and procedures are laid down. The decisions of the
County Courts are appealed against before the High Courts. However, sections 13 and 14 of
the Code of Criminal Procedure stipulate two tiers of County Courts with varying powers as
thus:

(i) County Court of a Magistrate of the First Class

✓ It is established under section 13 of the CCPA 2008.
✓ A County Court of a Magistrate of the First Class shall have the following powers and
competences in the area of criminal law:
➢ power to require the execution of bonds for keeping the peace or good behaviour,
subject to the provisions of section 140 of this Act;
➢ make orders providing for police supervision;

39
 ➢ in the case of an offender who, in the opinion of the Magistrate, is under eighteen
years of age, resolve or try the case in accordance with the procedures applicable to
the juveniles; and
➢ have such other competences as may be determined by this Act or any other law

Limitations on the Court’s Authority—

when trying an offence non-summarily, the Court of a Magistrate of the First Class may pass
the following penalties, sanctions or sentences:

❖ imprisonment for a term not exceeding seven years;

❖ fine not exceeding SDG5000;
❖ detention; and
❖ compensation, care and reform measures.

When trying an offence summarily, such Court may pass the following penalties, sanctions or
sentences:

✓ imprisonment for a term not exceeding one year;

✓ fine not exceeding SDG100;
✓ compensation, care and reform measures.

(iii) County Court of a Magistrate of the Second Class.

A County Court of a Magistrate of the Second Class shall have the following powers and
competences in the area of criminal law:

power to require the execution of bonds for keeping the peace or good behaviour,
subject to the provisions of section 140 of this Act;
make orders providing for police supervision;
in the case of an offender who is in the opinion of the Magistrate is under eighteen
years of age, resolve or try the case in accordance with the procedures applicable to
the juveniles; and
have such other competences as may be determined by this Act or any other law.

Limitations on the Court’s Authority:

when trying an offence non-summarily, the County Court of a Magistrate of the Second Class
may pass the following penalties, sanctions or sentences:

40
 • imprisonment for a term not exceeding three years;
• fine not exceeding SDG2500;
• detention; or
• compensation, care and reform measures

When trying an offence summarily, it may pass the following penalties, sanctions and
sentences:

❖ imprisonment for a term not exceeding six months;

❖ fine not exceeding SDG150; and
❖ compensation, care and reform measures.
(e) Payam Courts

A Payam Court shall only try cases summarily and may pass the following sentences:

❖ imprisonment for a term not exceeding one year; and

❖ fine not exceeding SDG300.
(f) Special Courts:
✓ The President (CJ) of the Supreme Court and High Court Judge have jurisdiction and
competence to constitute Special Courts to try specific cases such as juvenile offender,
tribal or sectional conflicts and disputes involving capital punishment or those not
involving capital punishment, and trial of any person accused under Chapters V and VI of
the CCPA, 2008.
✓ However, section 16 of the Code of Criminal Procedure Act, 2008 provides thus:
the President of the Supreme Court may constitute a Special Court for the trial of
juvenile offenders ... and prescribed the procedure to be followed;
the President of the Supreme Court may constitute a Special Court to be presided
over by a High Court Judge, or any other Senior Judge to be assisted by two
assessors for the trial of tribal or sectional conflicts and disputes involving capital
punishment;
a High Court Judge may commence a Special Court presided over by a County
Court Magistrate of the First Class assisted by four assessors for the trial of tribal
or sectional conflict and dispute not involving capital offences; and
the President of the Supreme Court may, by order, constitute a Special Court for the
trial of any person accused under Chapters V and VI of the Penal Code, 2008.

41
INITIATION OF CRIMINAL PROCEEDINGS

Introduction

• The prosecution of crime is a process commencing with reporting of crime, arrest and often
detention of an accused, investigation of the accused or suspect by the police or sometimes
magistrate/judge, framing charges and present to court with jurisdiction.
• The presentation of the criminal charges before the court affords opportunity to tender in
evidence including examination of witnesses to enable the court to determine the guilt of
the accused and where such guilt is so established, convicted and passed an appropriate
sentence under the penal law.
• Now considering the above foregoing discussions, the question would be (a) how and by
whom is the accused person brought before the court for trial and (b) how and by whom is
the evidence concerning the alleged crime and criminal collected and presented before the
court?
• Usually, victims of a crime or person feeling offended or aggrieved by criminal act and that
is often the person with locus standi (legal standing) would be the most likely to set the
criminal law in motion.
• Justice and reason suggest that such person should not only be allowed but also be given
all the facilities to move the machinery of law against the alleged culprit.
• Therefore, it is imperative and in the general interest of society and law that the offenders
are detected and punished accordingly. The legal system should always encourage the
citizens to invoke legal process towards this end.

The Nature of initiation of Criminal proceedings

The initiation of criminal cases is the beginning of setting criminal law in motion. It is always
done free of charge unlike initiation of civil suits which involve costs. In principle, anybody
who initiates criminal case is not charged with any money because crimes are committed
against the State and often the State is duty bound through prosecutorial authority to prosecute
any criminal. Thus, there are three ways with which criminal prosecuting may be initiated:

(i) by police officer bringing a person arrested with or without warrant when crime
committed is a cognizable offence before a PPA or a magistrate upon a charge.
(ii) by a PPA or magistrate when he or she takes cognizance of an offence; and

42
(iii) by any citizen other than a Public Prosecutor, Magistrate or Police officer who has a
reason and a probable cause to believe that an offence has been committed may also
initiate criminal proceedings – private prosecution right – who may inform the police
when the crime is about to be committed. S/he can do so by making a complaint to the
police or PPA or magistrate wither in writing or orally made it on oath. If the complaint
is made orally, the police or PPA or magistrate must reduce the same into writing and
have it signed by the complainant – first information report – to be prepared by the
police in the register of information and submit it to PPA.

Initiation of Criminal Cases in South Sudan

The procedure for the initiation of criminal cases in South Sudan is provided for in sections 34
and 35 of the CCPA, 2008.

Section 34 of the CCPA, 2008 – manner of initiation provides thus:

A criminal case shall be initiated, upon taking cognizance by the police under
the directives of the Public Prosecution Attorney, Magistrate or Court, as the
case may be, upon such information or complaint as may be presented to
them.

Presentation of Information and Complaint

(a) according to s.35 of the same law, information shall be presented by any person entrusted
with preserving security and order, or any person as to offences to which a public right
relates; and
(b) a complaint shall be presented by the person, against whom, or within whose responsibility
an offence has been committed, or by whoever deputizes for him or her.
(c) Where the person against whom the offence has been committed is a juvenile, invalid, idiot
or lunatic, any person competent as his or her guardian may present the complaint on his
or her behalf.

The initiation of a criminal case is followed by a decision whether to prosecute, and if so, the
investigation and presentation of the case before a court.59

59
The Code of Criminal Procedure Act 2008 ss. 36.

43
Differences of some key words such as information or complaint.60

It is also important to differentiate between information and complaint by a complainant. The

differences are provided for in section 5 (1) of the CCPA, 2008 as follows:

“Complaint” means an oral or written allegation presented by a person against whom or within
the limits of whose responsibility the offence has been alleged to be committed, but it does not
include a police report;

“Information” means an allegation of an offence made by any person entrusted with

preserving security and order, or any person as to offences to which a public right relates; and

“Take cognizance” means when a person takes notice of an event or matter in his or her official
capacity.

In the case of Sudan Government v Mansour El Agab & Others61 when anybody makes a
complaint whether orally or written, he or she has to be examined on oath by the police or
public prosecution attorney or magistrate as the case may be. Hence, the process of initiation
of criminal case and initial pre-trial procedures can be summarised as below:

(i) Decision of PPA to prosecute, if so made and charge framed, thus that decision of
the PPA is appealable to a senior PPA.62
(j) Investigation by the police and submission of the case for trial by magistrate or
court within local limit of jurisdiction.63

It is to be noted that in respect of certain offences or crimes, there are restrictions of the
initiation of criminal prosecutions in South Sudan.64

Restriction of the initiation of Criminal Prosecution in South Sudan65

The Criminal procedure of South Sudan places restrictions on initiation of some cases. These
restrictions include:

60
Ibid ss. 34 and 35
61
[1968] SLJR 31.
62
See note No.57 above ss. 24 (1) and 36 (2) and (3)
63
Ibid ss.37-39
64
Ibid ss.43 -51.
65
Ibid ss. 43-51

44
Offences for Which official Sanction is Required

The word ‘sanction’ is interpreted in s. 5 CCPA 2008 to mean the authority that must be
obtained before commencing certain types of criminal cases in South Sudan. These include:

1. Cases Involving Civil Servants for example;

(i) offences related to the administration of Justice in Chapter X of the Penal Code Act,
2008 for example, perjury, giving or fabricating false evidence, issuing or signing
false certificate, false translation etc.
(ii) Also included are offences in sections 357, 361 and 363 on using a forged document
as evidence in judicial proceedings.
▪ No PPA should charge a person of such an offence unless with the permission or
complaint of the court that handled the case (see section 43(c) (CCPA 2008).
▪ The law requires that no PPA should take cognizance of an offence punishable under
the Penal Code involving civil servants except with sanction or on the complaint of
a public servant concerned.

2. Trial of Offences Against the Government of South Sudan:

• The law requires sanction or authority or permission from the President of the
Republic for trial of the offences against the Government under section 7 or the
provision of Chapters V of the Penal Code or under any law e.g., Treason(s.64 PCA
2008), concealing treason(s.65, subverting Constitutional Government(s.66 PCA
2008) etc.
• The CJ/President of the SC can set up a special Court for trial of a person accused
under the offences above.
• The law also put restrictions on initiation of criminal proceedings in offences
relating to the Defence and other Organized Forces in Chapter V of the PCA 2008
like unlawfully wearing military uniforms and conducting military drills.

3. The Law Prohibits Prosecution of Criminal Cases that are Compounded

• section 5 of the CCPA 2008 defines ‘Compound’ to mean to agree not to prosecute
an offence in return for a consideration.

45
• An offence is compounded by the person affected by the offence or the person responsible
for the subject of offence. For instance, a person hurt by the offence, owner or custodian of
the property damaged, husband of a woman who committed adultery with another man or
his nearest relative, a person subject of criminal intimidation, or a person defamed are the
persons who can compound the offence committed against them.
• If an abetment or attempt to commit that crime is an offence under the law, the abetment or
attempt is also similarly compounded.
• According to this law, it is non-cognizable offences that are compounded.
• However, the practice has it that non-cognizable offences like murder are compoundable in
South Sudan and this may be attributed to the principle in section 6(i) of the CCPA 2008
on our Courts preferring and encouraging voluntary reconciliatory agreement between the
parties.
• When the person who would compound an offence is incompetent for being a juvenile, an
idiot or a lunatic, any competent person as his guardian may compound an offence. (see the
case of Medardo v. Republic.66
• Compoundable offences and the persons who can compound them are provided for in
Schedule III to the CCPA 2008.
• Offences mentioned in Chapter I of Schedule I to the Code may be compounded without
the leave of any authority at any time before the accused person is convicted by a County
Court Magistrate or committed for trial before a High Court.
• However, the offences listed in Chapter II of Schedule I may be compounded before a
County Court Magistrate who has convicted the accused person or committed for trial, only
with the consent of a Magistrate who has jurisdiction to try the accused person or to commit
him for trial.67
• After a commitment for trial, an offence should not be compounded except:
(i) with the leave of the committing Magistrate if the trial has not commenced; or
(ii) with the leave of the Court trying the case if the trial has commenced and has not
been concluded;
(iii)after a trial, whether before a magistrate or a Court, an offence should not be
compounded except with the leave of the Court to whom an appeal would lie or

66
[2004] 2 KLR 433.
67
See section 45 (7) of the Code of Criminal Procedure Act, 2008.

46
 which has the power to call for the proceedings under section 265 of the CCPA
2008.68
• Compounding of an offence is like an acquittal of the person who committed that crime
(see s.45 CCPA 2008). That means the victim/complainant is barred from initiating any
criminal proceedings against the offender after compounding the offence.
• Section 46 clearly provides that a criminal case shall lapse and shall not be subject to
criminal prosecution upon the same facts when it has been resolved by compounding of the
offence.

4. Lapse of Criminal Case upon Some Legal Grounds

✓ The South Sudanese law under the CCPA 2008 in s. 46 provides that a criminal case shall
lapse and the complainant cannot prosecute the offender for the following legal grounds:
(1) Death of the accused person;
(2) Compounding of the criminal case;
(3) Accused is convicted or acquitted by a final judgement of the trial Court;
(4) Decision of the PPA refusing to frame the charge; or
(5) Dismissal of the criminal case against the accused;
(6) Decision by the Minister of Justice entering nolle prosequi/staying the case.
✓ Where the criminal case lapses, for any one of the reasons mentioned above, no other
criminal case based upon the same facts shall be initiated, except in case of non-framing of
charges, or dismissal of the criminal case.69
✓ In the case of Government of South Sudan vs. El Sadig Sakin El Hilu (SC/Conf. No.
4/2011), pp75-77, the accused Sudanese national was convicted of murder by Juba HC for
causing death of a Congolese national in Jan 2006 in Juba. But he paid a dia of SP 30,000.
But before a sentence term of imprisonment could be imposed on him, he fell sick and died
a natural death in Nov 2007 in Juba Teaching Hospital. The SC held that the proceedings
pending before the Court are terminated and the file is finally closed due to the death of the
convict and any possible period of imprisonment has lapsed by reason of his death.

68
Ibid., section 45(7).
69
See section 46(2) of the Code of Criminal Procedure Act, 2008.

47
5. Criminal Cases which their Period of Limitation has Lapsed
• There are criminal cases that the law does not allow to be initiated when their “period of
limitation” has lapsed. (See section 47(1) of the CCPA 2008).
• Period of limitation is the timeline within which a case should be initiated by an
aggrieved party failure to adhere to it can result in losing the right to prosecute it.
• However, there are cases which have unlimited/uninterrupted period of limitation under
the South Sudanese law.
• For example, the following offences have uninterrupted period of limitation in our law:
(a) ten years, in any offence, the commission of which is punishable with death, or
imprisonment for ten years, or more;
(b) five years, in any offence, the commission of which is punishable with
imprisonment for more than one year; and
(c) two years, in any other offence.
✓ The running of the periods of limitation is interrupted, when and if the criminal case is
initiated within the period of limitation.

6. No Prosecution of a Person Previously Convicted or Acquitted

• The law, not only in South Sudan but also in other jurisdictions restricts initiation of a
criminal case against a person whom a court of competent jurisdiction has already tried and
convicted or acquitted of an offence when that conviction or acquittal still remains in force
and has not been set aside by a higher Court.
• Section 48(1) of the CCPA 2008 provides that such person should not be tried against for
the same offence based on the same facts. For example, John who is tried and acquitted of
theft cannot be tried again for the same offence of theft or related offence like criminal
breach of trust.
• However, if Wani is tried and convicted of murder. But was not tried of robbery which he
also committed in the same transaction; he can be tried for robbery.
• The accused can plead during investigation, inquiry or trial as a defence his previous
conviction or acquittal which can act as a bar to the second prosecution. He has to prove it
by tendering in a copy of the court decision. The accused should be discharged upon proof
of his previous conviction or acquittal (see section 49 of the CCPA 2008).

48
7. Prosecution for Defamation and Offences Against Marriage
The law prohibits the PPA, Magistrate or Court from taking cognizance of an offences relating
to unlawful marriages and defamation under sections 264, 265 and 289 of the PCA 2008 except
upon a complaint made by a person aggrieved by such offence.

8. Prosecution for Adultery, Enticing a Married Woman

✓ The law70 also prohibits the PPA, Magistrate or Court from prosecution of offences of
adultery, incest and taking or enticing away a someone’s wife without a complaint from the
spouse or nearest relative. (see sections 64,65,66, 67 and 268 of the PCA 2008).

9. Persons with immunity

✓ The law restricts initiation of criminal proceedings against a person clothed with immunity.
✓ A person who has immunity cannot be arrested, searched or have anything seized without
first lifting his immunity in writing and no criminal proceedings can be initiated again him.
The persons with immunity are judges, advocates, legal counsels, President, Ministers and
MPs. See the laws in the footnotes below.71

See section 51 of the Code of Criminal procedure Act, 2008.

70

The Judiciary Act 2008 s. 59, MOLACD Act 2008 s.64, the Prison Service Act 2011 s.30 (1), the Police Service
71

Act 2009 s.51 (2) and the Advocate Act 20013 s.34.

49
Charges and Information

Introduction

The Criminal Procedure Code provides a number of ways in which a complaint may be made.
It is by virtue of such a complaint that proceedings will be instituted.

Section 34 and 35 of the CCPA 2008 lays down the manner in which a criminal case should be
initiated in South Sudan. This includes initiation of a criminal case by taking cognizance of an
offence by a police officer, presentation of information by a person entrusted with preserving
security and order and presentation of a complaint by a person against whom a crime is
committed or within whose responsibility an offence has been committed.

a complaint may be made orally or in writing, but, if made orally, should be reduced into writing
by the Police officer, and be signed by both the complainant and the Police officer.

The form of the complaint so made is regulated by rules of procedure as discussed below.

Charge and Information

• A charge is also referred to as information.

• A charge in criminal law means an accusation.
• It refers to the statement of the offence or offences which a person is accused of and the
particulars thereof.
• A charge is a formal written accusation of an offence drawn by a Magistrate or by a police
officer and signed as required by law for the purpose of use in preliminary proceedings or
in a proper trial.
• It lies against all persons who actually commit, or who procure or assist in the commission
of any crime or who knowingly harbour a felon.
• A charge is drawn among other reasons as a means of making known to the accused person
the offence with which he is charged.
• This is to enable him to fully prepare his defence.72
• The charge states concisely the offence which the accused is alleged to have committed.
• It is the process by which the accused and the Magistrate or judge is informed of a suspected
offence.73 The Constitution also gives significance to the charge.

72
See PLO Lumumba, “A Handbook on Criminal Procedure in Kenya,” (Business Trends Limited, Nairobi, 1998)
pp. 177.
73
See Douglas B, “Criminal Procedure in Uganda and Kenya (Law in Africa) (No.13).

50
• It is required that no person should be charged and convicted of an offence unless that
offence is defined and the penalty thereof prescribed by a written law.74
• This makes it mandatory that the charge be based on some known offence (known to law)
otherwise it cannot stand.
• The Code of CCPA 2008, section 5 defines a ‘charge’ to mean the formal accusation of any
offence as framed therein as a preliminary step in prosecution, and includes any head of
charge when the charge contains more than one head.
• A charge sheet on the other hand is a document completed by a police officer listing the
particular charges brought against the accused.
• It is a document that an investigator fills at a preliminary stage. A charge is necessary in
every proceeding and a trial without it is bad in law.
• No case may proceed without a charge. For e.g., in the Ugandan case of Martindo Judagi
& others v. West Nile District Administration,75 Udo Udoma CJ held that the failure to
frame a charge in the subordinate Court was a fundamental and fatal mistake. The court
declared the trial a nullity and ordered a retrial.
• The law prescribes the manner in which the charge is to be framed.
• The charge is a succinct description of the offence and the particulars and it should not
contain any evidence. However, the particulars must be clear enough to enable the accused
person to know what offence he is charged with.
• In order to record the charge and fill the charge sheet, the Magistrate shall ascertain the
satisfactions of all the elements and conditions required by law.
• According to the CCPA 2008 section 223(2), the charge must indicate all the legal
conditions or elements of an offence.

Contents of a Charge Sheet

✓ The charge is a succinct description of the offence and the particulars and it should not
contain any evidence.
✓ However, the particulars must be clear enough to enable the accused person to know what
offence he is charged with.
✓ This notion and centrality of clarity was noted in the case of Nahashon Marenya. –vs- R.76

74
See Article 19(5) of the Transitional Constitution of the Republic of South Sudan 2011(amended).
75
[1963] E.A. 406.
76
Cr. App. No. 786 of 1982.

51
✓ The appellant had been charged with failing to comply with a curfew restriction order
contrary to section 9 (1) of the Public Order Act.
✓ The particulars of the offence did not mention this matter making the charge equivocal.
Todd -J- allowed this appeal and said inter-alia that:
"Charges and particulars should be clearly framed so that the accused persons know what
they are charged with, and proper references should also be made otherwise confusion may
arise? and if confusion arises, it cannot be said that failure of justice may not have been
occasioned."
Under the CCPA 2008 section 223(3), the contents of a charge sheet are:

Every Charge Should:

• State the offence with which the accused is charged;

• Name of the offence given to it by law;
• if the law which creates the offence gives it any specific name, the offence may be described
in the charge by that name only.
• if the law which creates the offence, does not give it any specific name, so much of the
definition of the offence must be stated as to give the accused notice of the offence with
which he or she is charged;
• the law and section of the law against which the offence is said to have been committed
shall be mentioned in the charge;
• the charge should state the particulars as to the place, time and the person who committed
the offence.77 See the case of GOSS v. Alfred Aguek Wol(SC/Conf. No. 17/2012, p.122).
• The charge must also state the manner in which the offence was committed.78
• It is sufficient if a charge contains a statement of the offence or offences with which the
accused is charged together with the particulars giving the accused person reliable
information as to the nature of the offence he is charged with. In Amisi Magala And Anor
V Uganda [1971] ULR, it was held that the true test of whether a charge is frivolous or
vexations under section 173 of the Criminal Procedure Code would appear to be whether
the charge was brought bona fide or mala fide, or whether it was abusive of the process of
the court.

77
see section 234 of the CCPA 2008.
78
Ibid., section 235.

52
Basic Rules Governing Framing of Charges in Criminal Prosecutions

• The fundamental rule in framing a charge is that an accused should be charged with an
offence known to law and this has its foundation in the Constitution.
• The offence charged should be disclosed and stated in a concise, clear and unambiguous
manner, in ordinary language so that the accused may be able to understand it and plead
thereto from a point of knowledge.
• It will equally enable the accused person to prepare for his or her defence to the charge.
• The accused should be able to tell from the charge the precise nature of the charges against
him or her so as to be in position to put forward his defence and to direct his evidence to
meet them.
• A Kenyan Court reiterated this legal principle in the case of Singilai and other v
Republic.79
• There are rules or principles that should be followed in framing the charges
• The rules governing the framing of a charge are set out in section 235 of the CCPA 2008.

The main rules are precisely as follows:

(a) Statement of Offence:

✓ A count of a charge or information must commence with a statement describing the offence
called the ‘statement of offence.
✓ The statement of offence should offer a brief description of the offence in ordinary language
and you must avoid use of technical terms.
✓ If the offence is created by a statutory law, it must contain a reference to the section of the
law creating the offence.80
✓ The correct procedure is to specify in the statement of the offence, not the section that
defines the offence, but the one that defines the punishment.81
✓ The court must ensure that the accused person fully understands the charge being read to
him.
✓ The charge must fully be explained to the accused especially when it is a serious offence.

79
7 [2004] 2 KLR 480.
80
See the case of Alwi v. Republic [1990] KLR 191 and section 233 of the CCPA 2008.
81
See Douglas B, “Criminal Procedure in Uganda and Kenya (Law in Africa( No.13, (1964), Cosma v.
Republic [1955] 22 EACA 450.

53
✓ One way of ascertaining this is by ensuring that the charges are read out by the Magistrate
himself. In Republic v. George Samuel Sowe,82 the court said;

“It would be preferable that the offence with which the accused is charged should be read out
by the Magistrate in all cases, such a course should certainly be adopted in cases where a heavy
sentence may be imposed.”

✓ As a measure to aid or increase clarity and banish confusion, the court suggested properly
in Mwangi and Another v. Republic,83 that it is desirable where different offences are
committed to draft the charges in relation to those offences under separate and distinct
paragraphs or counts so that the accused person knows precisely what he is to defend
himself against.

(b) Particulars of the Offence:

• Every charge, or information should contain such particulars as may be necessary for giving
reasonable information as to the nature of the offence charged.84
• The particulars of the offence should contain the essential ingredients of the offence.
• The essential ingredients of the alleged offence such as the date, place, time and
circumstances in which it was committed must be stated.
• In the case of Tembere v. Republic,85 the accused was charged with the offence of handling
stolen property.
• The particulars of the offence merely stated that he handled.
• The charge did not state the nature of the handling whether by receiving, retaining, etc and
more importantly, it did not state the possession or receipt was dishonest.
• The High Court held that the charge did not disclose the offence of handling stolen property
and the facts stated did not contain all the elements of the offence. As a result, the accused
did not validly plead guilty to the charge of handling.
• In the case of Wilson v. Republic, it was held that the day to be stated in a charge of
homicide should be the day in which the wrongful act was committed and not the date on
which death occurred.

82
14 KLR 172.
83
[1988] KLR 803.
84
See section 233(1) CCPA 2008.
85
(1990) KLR 353.

54
• In the case of Republic v. Loibori,86 the charge gave no particulars as to the place of the
offence except to state that it occurred in the Northern Province of Tanganyika.
• It was held that a reference to a vast territorial area can hardly be said to indicate to an
accused person, with reasonable clearness, the place at which it is alleged he committed the
offence.
• Where there are two or more Accused tried jointly charged, the Courts must frame the
charges against each with sufficient particulars as to the part played by each accused.87
• It has been stated further that the particulars should be framed simply and in the ordinary
language without recourse to the use of technical words and phrases.
• Sometimes, an error may occur in the particulars. If such an error has not occasioned
injustice to the accused, then a conviction therefrom cannot be quashed on appeal.
• Thus, in Mwaura -vs- R88 it was held that a simple error in the particulars of the charge is
not sufficient to occasion a failure of justice.
• In this case, the appellant accompanied by another tendered a forged currency note of Shs.
100/= at the entrance of a night club in Nairobi, the price of entrance being Shs. 10/= per
head. The forged note was accepted and change given.
• The appellant later gave another forged note inside the club for cigarettes and received
change. The appellant's companion later tendered another forged note for another packet of
cigarettes to the receptionist who, on going to get change discovered the forgery.
• The appellant was arrested as he left the club but his companion escaped.
• The club handed over to the police five forged notes in its possession.
• The appellant was convicted under section 367(e) of the Penal Code of Kenya and
sentenced to five years' imprisonment. The charge read:

"Having possession of paper for forging contrary to section 367 (e) of the Penal Code [in that
the appellant] on 25th day of December 1966, at Nairobi, jointly with others ... without lawful
authority or excuse knowingly had in his possession five papers upon which were words,
figures, letters, marks, lines as were intended to resemble and pass as a special paper such as
is prescribed and used for making bank notes.”

• These particulars were a mixture of section 367(e) and (a) of the Penal Code.

86
[1949]16 E.A.C.A. 86.
87
See Republic v. Atanas s/o Mwamere [1960] KLR 17.
88
(1967) EA345.

55
• On appeal, Rudd and Trevelyn JA ruled that although the charge was defective, the defect
was not of such an irregularity or error as had occasioned a failure of justice under section
382 of the Criminal Procedure Code.

(c) Forms
✓ The Third Schedule to the CCPA 2008, Form 43(Charges, p.239) contains forms setting out
the manner in which various offences and their counts should be charged.
✓ The framing of charges should be in accordance with those forms.
✓ The use of the forms in the Third Schedule is expressed in obligatory terms and any
variation from the wording of these forms may in certain circumstances be fatal.
✓ For example, the correct names of all accused persons should be given in full and not
merely as for example, “X and 6 Others.” This was the holding in Republic v. Yonasani
Elgalo and others.89 See also the case of GOSS v. Alfred Aguek Wol (Sc/Conf. No.
17/2012, p.122, Vol.2012). The SC of SSD held that ascertainment of the accused’s name
and identity are essential at trial proceedings under the CCPA 2008. The Court quashed the
conviction and death sentence and ordered retrial before a different judge of Warrap Sate.

(d) Counts
✓ When more than one offence is charged in a charge sheet or information, a description of
each offence so charged must be set out in a separate paragraph of the charge or
information. Each of these paragraphs is called a count.

Joinder of Counts and Persons

▪ Joinder refers to the action of charging some offences together in one charge sheet.
▪ It refers to the charging together of a number of offences be they felonies or misdemeanours
in the same charge sheet or information.
▪ Joinder is done if the offences charged are founded on the same facts or form, or are part
of a series of the same or similar character.
▪ The CCPA 2008 section 247 specifies which persons and offences may be tried jointly for
example;
✓ persons accused of the same offence committed by them in the same transaction;

89
9 EACA 65.

56
✓ persons accused of an offence and persons accused of abetment or of an attempt to commit
the same offence;
✓ persons accused of more than one offence of the same or similar character committed by
them jointly;
✓ persons accused of different offences committed in the course of the same transaction;
✓ persons charged with offences relating to theft or fraudulent acquisition of property
between whom possession or retention of the said property has been transferred e.g., theft,
criminal breach of trust or misappropriation.
▪ Joinder of counts is both convenient and expedient in that it saves and avoids multiplicity
of trials for the same facts.
▪ It is very good for the accused because it saves him costs, but it also affords him the
opportunity of serving concurrent sentences in the event of conviction.
▪ The rule is that where an accused person is alleged to have committed more than one
offence, he may be charged in the same proceedings with all the offences.90
▪ Where offences are not found on the same facts or do not form part of a series of the same
or similar character are charged in the same charge sheet, the same will be ruled improper
as it amounts to misjoinder.91
▪ The rule is that offences related to each other committed by one person or different persons
in similar transaction or incidents should be tried together in one trial.
▪ In Republic v. Ndungi and others,92 some herdsmen were convicted of contravening the
Disease of Animals Ordinance prohibiting the movement of cattle in a proclaimed area.
▪ It was held that to try five persons together for different offences committed at different
times and places is an irregularity vitiating the trial.
▪ In Republic v. Hassan wa Saleh and Another,93 it was held that two persons accused of
raping two different women separately albeit at the same time and place could not be tried
at the same trial, the transaction being not the same.94
▪ In Malebe v. Republic,95 the appellants faced separate counts of stealing by servant in one
charge sheet. The particulars stated that the offences were committed on separate dates.

90
See Douglas B, “Criminal Procedure in Uganda and Kenya (Law in Africa( No.13, (1964), p.34.
91
See the case of Mwero v. Republic [1990] KLR 267.
92
[1906-08] EALR 85.
93
[1906- 1908] 2 EALR 85.
94
See also the case of Republic v. Kristofa Male and another [1934] 1 EACA.
95
[1982] KLR. 320.

57
▪ The items alleged to have been stolen were different. They were not charged as having had
a common intention.
▪ They appealed against their convictions and sentences.
▪ It was held by the High Court that a join charge against several accused persons alleged to
have committed separate offences on different dates amounts to a misjoinder and such a
charge is defective.
▪ There should have been a separate charge for each person and separate count for each
alleged offence committed on a different date.

Duplicity of a Charge

✓ Any count that charges within it more than one specific offence is said to be bad for
duplicity. It is also said to be duplex.96
✓ Duplicity is a fundamental mistake and not normally curable.
✓ The reason for this is that when a charge is duplex and an accused person goes through a
trial, the fairness of the process is fundamentally compromised as it is not clear to him what
the exact charges that confront him are.
✓ As a result, he may not be able to prepare a proper defence and this is clearly prejudicial
and may amount to a failure of justice.
✓ In the case of Omboga v. Republic,97 the accused person faced a single count of house
breaking, theft and handling stolen property.
✓ On appeal, the High Court, was of the view that the charge was an incurable illegality.
✓ The Court in Republic v. Sowedi Kauta,98 held that a charge alleging the murder of two
persons in one count was bad in law. There should have been two separate counts.

(e) Defective charges

What is the effect of lack of particulars and wrong ingredients?

• The general rule is that no objections are allowed in case of any defect in form as far charges
are concerned unless the error or defect has occasioned injustice to the accused person.
• For example, section 236 of the CCPA 2008 provides that no error in stating the offence or
particulars required to be stated in the charge or omission of the same shall be regarded as

96
See the case of Kasyoka v. Republic [2004] KLR 406.
97
[1974] EA 73.
98
[1933] 13 KLR. 105.

58
 materials unless the accused was misled by such error or it occasioned injustice against the
accused.
• The question of 'no particulars' was considered in Wandera Reuben Kubanisi- vs- R.99
• The appellant was charged under section 389 of the Penal Code, the particulars stating that
the appellant attempted to commit a felony contrary to section 389 of the Penal Code.
• The exact charge was styled thus;
• "Attempted to commit an offence c/section 389 Penal Code."
• Particulars: "Wandera Reuben Kubanisi on 29th January 1965 at 8 p.m at Bungoma
Railway Station in Bungorna District of Western Province attempted to commit a felony
cont. to section 389 Penal Code." In their ruling Rudd and Harris JJ stated inter-alia;
• "This charge is bad for uncertainty because it does not state the felony that was alleged to
have been attempted. We would add that contractions such as 'cont’, Penal Code'; and
'section' should, not be used in framing the particulars of a charge."100 The appeal was thus
allowed.
• Another issue which has received judicial consideration is whether a charge is defective if
it contains a wrong ingredient of the offence or omits an essential ingredient thereof.
• The case in point is Yozefu and another-vs-R.101 The relevant statute that had been
contravened was Game (Preservation and Control) Act15 whose section102 stated;
• "It shall be an offence for any person to possess any live animal or any trophy, flesh or any
other part of any animal which has been killed, captured or appropriated or obtained in
contravention of this Act unless such animal or thing has been disposed of under the
provisions of this Act by order of the Minister."
• The two were charged and the particulars were that the accused on a certain date and at a
certain place, were found in possession of game trophies without a valid licence from the
Chief Game Warden, to wit seventeen drums made out of Zebra skins and forty-seven
pieces of Zebra skin. The accused pleaded guilty, were fined and fines paid. On appeal,
which was allowed, it was held that the charge was defective in that it did not allege an
essential ingredient of the offence i.e., that the skins came from animals killed etc in
contravention of the Act. As per Spry JA;

99
(1965 ) EA572.
100
(1965)EA572.
101
(1969)EA236.
102
Chapter 266 of the Laws of Uganda.

59
• "It is fundamental that every charge should allege all the essential constituents of an
offence. In the present case, where an offence against section 14 was alleged, we think that
the allegation that the pieces of skin came from an animal killed in contravention of the Act
was an essential ingredient, and that its omission makes the charge defective.”103
• The argument that "the offence is complete once a person is in possession of a trophy" was
rejected by the court. The court opined that since the Act creates a number of offences, it is
essential for the charge to make it clear which is alleged; and continued to say that the true
interpretation of the wording of section 14 is that the section only makes it an offence to be
in possession of the skin of an animal if that animal was killed, captured, appropriated or
obtained in Uganda. This shows how important it is to understand the offence before one
can draw up the charge.

Power of the Court to Frame, Alter or Add to Charge

▪ Where at any stage of a trial before the close of the case for the prosecution, it appears to
the Court that the charge is defective either in form or substance, the Court may make an
order for alteration of the charge either by way of amendment of the charge or by
substitution of or addition of a new charge.

The CCPA 2008 in section 237 gives powers to the court to frame a charge, alter or amend it:

✓ Where a person is committed to trial without a charge, the court can frame a charge
against the accused.
✓ A court may frame count of charge or amend a defective or erroneous charge.
✓ The court can separate charges or joint charges.
✓ Where a charge is so altered, the Court must call upon the accused person to plead to
the altered charge.104
✓ The accused has a right to demand that any or all the witnesses who had already
testified be recalled and give their evidence afresh or be further cross examined by him
or his advocate, and the Prosecution has the right to re-examine such witnesses on
matters arising out of further cross examination.
✓ Section 240 of the CCPA allows the Court to recall witnesses when a charge is revised
or amended.

Ibid at 238 para F.

103

See section 237(3) of the Code of Criminal Procedure Act, 2008. See also the case of William Sebugenyi v.
104

Republic (1959) E.A. 411.

60
 ✓ In Mohamed Bashir v. Republic,105 the appellant was charged with attempted murder,
disobedience of lawful orders, threatening injury to a public servant and obstructing a
Police Inspector in the course of his duty.
✓ All the charges were defective in that they contained no particulars of the offences
charged. The Magistrate started the hearing but at some point, changed the murder
charge to that of assault.
✓ The fourth charge was withdrawn.
✓ The accused was convicted of the three remaining charges but had not been asked to
plead to the charge of assault.
✓ The High Court declared the charge a nullity.

Official Sanctioning

This has been discussed fully in the part of initiation and restrictions in initiating some
criminal cases.

Pre-Trial Proceedings Including Police Investigations, Summons, Arrests, Searches

▪ The pre-trial proceedings are procedures or steps taken for collection of pieces of evidence
and facts of a case before the case is considered for a trial.
▪ In other jurisdictions such as Sudan, these proceedings are by the police under the control
and directives of the magistrate or court.
▪ Equally, in South Sudan jurisdiction, the pre-trial proceedings are conducted under the
direction and supervision of the PPA, the Magistrate as well as the court.106
▪ In investigating a crime, police working with the prosecutorial authority and court may
carry out actions in efforts to gather evidence in terms of physical evidence, witness
testimony, among others, and this may often require the compelling of attendance, carrying
out arrest as well as searches.
▪ The criminal procedural law defines the parameters in which summons, arrests, searches
and seizures maybe carried out.

105
[1950] 24 KLR. 88.
106
The TCSS 2011 (as amended) art 135 (3) and the Code of Criminal Procedure 2008 s.52.

61
▪ However, apart from the criminal procedural law, these investigative actions are required
to be undertaken in a similar manner that conforms with and to ensure respect of the rights
of accused person or other affected persons.
1. Police investigations of Criminal cases
❖ In an accusatorial system, the prosecution must prove the case against an accused person
beyond reasonable doubt.
❖ In order to prove its case, the prosecution must adduce sufficient evidence in support of the
charge against the accused person.
❖ The evidence adduced by the prosecution is ordinarily gathered by the police criminal
investigation department.
❖ The accused person has no legal duty of proving himself innocent, therefore, the police
must investigate the cases carefully and professionally.
❖ Crime investigation is a process of gathering evidence in a professional manner for the
purpose of supporting or disproving a criminal charge or allegation. In every criminal trial
two important issues must always be resolved;
(i) that a crime punishable under the law was committed;
(ii) that the person who committed the crime is the accused.

Without the accused being placed at the scene of the crime, the prosecution will fail. In order
to place the accused person at the scene of the crime, investigations must be carried out in order
to collect evidence that supports the charge and confirms the involvement of the accused person
at the time and place alleged in the charge.

(a) Authority to conduct Criminal investigations

The law gives the powers of criminal investigation to the Police which it conducts under the
supervision and directive of the PPA or Magistrate.

However, the PPA or Magistrate may exercise the powers of investigation, or complete the
investigation himself.

(b) Preparation of First Information Report

The CCPA 2008 section 5 defines the First Information Report” to mean the initial written
document, prepared by the police, in response to the receipt of information or a complaint
pertaining to an offence.

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When an information is given to an officer in charge of a Police Station of facts supporting the
commission of an offence within his jurisdiction, the officer should take the following steps:107

i. reduce the report into writing;

ii. Read the information to the informant or complainant;
iii. Make the informant or complainant sign or seal the FIR;
iv. Register details of the report in a book called Register of Information.
v. Refer the report to the PPA and in his absence, to Magistrate or the Court.
vi. The officer in charge should submit the FIR to the PPA through his senior officer.

(c) Case Diary to be Kept by the Police

Case diary is a document that records all the steps taken and information obtained during the
course of the investigations. Section 55 of the CCPA 2008 says a police officer conducting the
investigation should record the following information in chronological order:

▪ any information related to the investigation of the case.

▪ any action taken or investigation made and the facts obtained by him.
▪ Any report he received from other police officer acting under his instructions.
▪ Statements of the witnesses recorded.

(d) Admissibility of the Case Diary

The general rule of law is that a case diary is not admissible as evidence to form the basis of
conviction of an accused person. Section 56(1) CCPA 2008 provides that a case diary shall not
be amissible as evidence against any accused person in any magisterial inquiry or trial expect
in the following circumstances:

▪ A magistrate or Court may in a magisterial inquiry or trial refer to the case diary to aid
him in conducting the inquiry or trial.
▪ The PPA, or Magistrate may in a magisterial inquiry or trial use any relevant part of the
case diary for the purpose of examining any witness whose statement at the magisterial
inquiry or trial is at variance with his statement in the case diary with a view to test his
credibility.

107
See the Code of Criminal Procedure Act, 2008 section 53.

63
 ▪ Any relevant part of the case diary may be used by the office in charge of a police station
or investigating officer who mad the investigation to refresh his memory.
▪ The accused or his or her agent shall not be entitled to call for or inspect such case diary
or any part thereof.

Process of investigation

✓ The officer in charge visits the scene of the crime to investigate the case and report back.
✓ If the accused is not in custody, to take steps for his discovery and arrest, provided that, if
the offence is one which a warrant is required for arrest, no arrest of a suspected person
shall be made without a warrant.108

(i) Methods of Investigating Certain Crimes

✓ Different crimes call for different skills in their investigation.
✓ However, there are general principles which are normally followed in the investigation of
crimes.
✓ Generally, there are four main methods used by crime investigators in the process of
collecting evidence.
(j) Interviewing Witnesses
An investigator will normally identify the witnesses who might have witnessed the crime
taking place and then request them to assist the state and make statements to support what
they witnessed.
Every person living in South Sudan has a civic duty to ensure that when crimes are
committed in their presence, they assist the police in investigations.
A police investigator will interview witnesses who may know something about the case and
record their statements.
When a suspect is interrogated, his statement will be recorded under a charge and caution
by the investigating officer.
Victims of a crime and witnesses should be interviewed as quickly as possible to avoid any
adverse parties interfering with them and avoid undesirable twists in the evidence.
In recording the statements of the victims and witnesses, the investigator should ensure the
following;
(i) Name, occupation and address of the maker of the statement;

108
See section 58 of the Code of Criminal Procedure Act, 2008.

64
 (ii) Date and place where the statement is made;
(iii) Statement should disclose time, place, date and when the crime was committed;
(iv) The statement should as much as possible disclose the ingredients of the crime
charged;
(v) It should identify the offender, if known;
(vi) It should identify possible witnesses.

(k) Management of a Scene of a Crime

✓ Whenever a serious crime is committed all police, officers are trained to ensure that the
first police officer at the scene of crime will ensure that the scene is cordoned off
immediately pending the arrival of the most senior investigating officer.
✓ A scene of crime is a place where a crime has been committed but ceases to be a scene once
the investigating officer is satisfied that adequate evidence at the scene has been collected
and taken into safe custody.
✓ A scene can extend to a wide area depending on the possibility of reasonable presence of
evidence. Whenever, a senior investigating officer arrives at the scene he or she will
automatically take over the management of the scene. He may inter alia do the following;
• Determine whether the cordon is sufficient;
• Extend or narrow down the cordon after determining the direction of entry or exit from
the scene by the subject;
• Determine which witnesses to make statements;
• The scene will be carefully searched in order to establish any pieces of evidence that
may be used as clues such as weapons, personal property, documents and any other
material of evidential value; Then the investigating officer must draw a sketch plan of
the scene;
• The investigating officer may where necessarily call for other technical/support
personnel, such as photographers, finger print experts etc.
• Upon completion of the inspection and searching the scene of the crime, the
investigating officer must enter his findings in a crime record called the Criminal Report
Book (CRB) starting with the first information of the crime report.
• Information of a serious crime having been committed is communicated to the CID and
police headquarters respectively within 24 hours of the incident;

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 • If there are any finger print marks or any other exhibits left at the scene of the crime
then the IO must submit them for analysis by the relevant experts;
• In the case of an injured victim of crime, the Investigation Officer (IO) will issue F8 so
that the police surgeon can give his opinion on the nature of injuries sustained.

Medical Examination for Cases Involving Death or Serious Bodily Injuries

The law requires a medical doctor to examine the dead body or injured person to establish the
cause of death or nature of the injuries sustained. For example, section 59 of the CCPA 2008
provides that;

“In cases involving death or serious injuries of any person, the officer-in-charge of a police
station shall arrange, if possible, for a medical officer to examine the body or the person injured,
and if the officer or the policeman deputized by him or her so directs, the body or the person
injured shall be brought into the nearest hospital for such further examination as he or she or
the medical officer considers necessary and notwithstanding anything in the Public Health Law,
the burial shall not take place except in case of necessity until leave has been obtained from a
Public Prosecution Attorney, the Magistrate or the Court.”

Search

▪ An important tool in the prevention, investigation and detection of crime and the collection
and gathering of evidence to be presented in a court of law in proof of the commission of
an offence is the search. A search is an attempt to find something. It is the careful
examination to find hidden items of crime.109 It is indisputably a useful aid to the criminal
justice process.
▪ Search and seizure is a legal procedure whereby a police officer or other authorities and
their agents, who suspect that a crime has been committed, conducts a search on the person
of a suspect or his property or the place where the crime is believed to have been committed
with a view to seize and confiscate any relevant evidence to the crime.

109
See Macmillan English Dictionary, international Students’ Edition- 2006.

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▪ From a purely legal perspective, a search can be seen as any interference by the police or
any other law enforcement official with an individual’s reasonable expectation of privacy.
▪ On the other hand, seizure consists of the taking into the possession of the police officer of
the thing being searched for from a person without his consent.
▪ Upon a reasonable apprehension that material evidence connected with the commission of
an offence for which an arrest warrant has already been issued, any police officer may
search the dwelling or place of business, correspondence or communication of the person
so arrested or for whom the warrant of arrest has been issued and might seize anything
which might reasonably be used as evidence in any criminal proceedings.
▪ Although the acts of search and seizure amounts to an interference with the constitutionally
protected fundamental rights to privacy as enshrined in South Sudan Constitution.
▪ It is nevertheless in the public interest that all allegations of commission of crime be
properly and fairly investigated and prosecuted.
▪ It is therefore not in the public interest that persons reasonably suspected of committing
crimes escape investigation and prosecution for such crimes in the guise of the observance
of their fundamental right to privacy.
▪ There are two types of searches recognized in law:
(a) Search with a Warrant; and
(b) Search without a Warrant.

(a) Search with a Warrant:

▪ A search warrant is an authority to search a place for evidence of a crime which is suspected
or believed to have been committed or to make an arrest of a suspected criminal.
▪ A search warrant is a written permit issued by a PPA, Magistrate or the Court allowing a
search upon proof on oath that a thing on, with or in respect of which an offence has been
committed or which may be necessary for the investigation of an offence needs to be seized
and taken before a PPA or Magistrate or Court to deal with it according to law.110
▪ It authorizes a police officer or a person named within it to search a place, building, ship,
aircraft, vehicle, box, or receptacle for the purposes of conducting an investigation or
obtaining evidence.
▪ This is a Court order directed to a police officer authorizing him to enter a private property
or any other place and conduct an examination therein in search of evidence of the

110
Kiage, Patrick, “Essentials of Criminal Procedure in Kenya,” (LawAfrica, Nairobi) at p.23, para 3.

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 commission of a crime, for the proceeds of crime or property that the police suspect may
be used to commit a crime. The evidence obtained from the search may be used for
presentation in criminal prosecutions.
▪ A search warrant authorises the person to whom it is addressed to enter by force, if
necessary, the place or premises described therein for that thing and if the thing be found
to seize it and take it before a court having jurisdiction to be dealt with according to the
law.111
▪ The CCPA 2008 provides that the Public Prosecution Attorney and in his or her absence, a
Magistrate or Court may issue a search warrant authorizing the person to whom it is
addressed to search or inspect generally or in the place or places mentioned in the warrant
for any document or thing specified or for any purpose described in the warrant and to seize
any such document or thing and to dispose of it in accordance with the terms of the warrant.

Contents of a Search Warrant:

✓ Offence with which the person, place or thing being searched is related.
✓ Name or description of the person, place or thing being searched.
✓ The persons(s) to execute the search warrant.
✓ Any order directed to the executor of the warrant to seize the products of the search and
procedure them in the court or police station issuing the warrant.

Rules for Conducting Search in South Sudan

• Search should be made in presence of two witnesses to be summoned by the Officer named
in the search warrant.112
• Occupant of the place or person acting on his behalf to attend the search.113
• The occupants attending the search must be given the list of items seized during the search
and signed by the witnesses.
• A person found in a place which is being search is reasonably suspected of concealing an
article for which search is made, such person may be search provided if the person is a
woman, she shall be searched by a female Police officer.
• A list of all items found seized on that person shall be prepared and witnessed and a copy
be delivered to him or his witness.

111
See section 104 of the Code of Criminal Procedure Act, 2008.
112
See section 107 of the Code of Criminal Procedure Act, 2008.
113
Ibid., section 108.

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• A person executing a search warrant outside the local limits of the jurisdiction of the PPA,
Magistrate or Court issuing it should, before executing the search warrant, apply to the
PPA, Magistrate, or the Court within the local limits whose jurisdiction search is to be
conducted and shall act under his/her directive.
• A search warrant remains in force until it is executed or until it is cancelled by the court or
PPA which issued it.
• A search warrant may be directed to one or more police officers of the area within which
the PPA or Court has jurisdiction. A warrant directed to a police officer may also be
executed by another police officer whose name is endorsed upon the warrant by the officer
to whom it is directed or endorsed.
• The warrant may be executed at any place in South Sudan at any time between sunrise and
sun set on any day, including Sundays or any time the PPA or Court authorizes.
• The occupant of a building or place must allow the executor of the warrant free ingress and
egress and allow him to search the place or the building.
• The police officer must proceduce the search warrant that validates his entry into the
building being search.
• The police officer may break open any outer or inner door or window of a building where
ingress cannot be obtained according to section 8
• The conduct of searches is a serious intrusion upon the privacy and property of a citizen.
The English Judge, Lord Denning, in the case of Chic Fashions (West Wales) Ltd. V.
Jones,114 said that every man’s house is his castle, meaning that a constable (policeman) is
never in principle allowed to enter and search a man’s house.
• However, there are some exceptions to this rule. “No man’s house is to be used as a hiding
place for thieves or receptacle for stolen goods. If there is reasonable ground for believing
that there are stolen goods in the house, information can be laid before a Magistrate on oath
and the Magistrate can then issue a warrant authorizing a constable to enter the house and
seize the goods.”
• Where a police officer enters a house with a search warrant, he may not only seize goods
in respect of the warrant, but also any other goods which he believe on reasonable grounds
to be material evidence on a charge of stealing or receiving against the person in possession
of them or anyone associated with them.115

114
[1968] 2 QB 299.
115
See the case of Pringle v. Bremner and Stirling [1867] 5 Machph. 55.

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• In Crazieer v. Sundey,116 it was held that a Constable could properly seize other goods not
mentioned in the warrant if they afforded useful evidence to substantiate the charge for
which the warrant was issued.

Searches on a Person

• A person may be searched upon reasonable suspicion of concealing about his person an
article for which search should be made.
• If that person is a woman, the search must be made by another woman with strict regard to
decency. Searches like pat down, insertion of finger and other objects to retrieve drugs is
likely to be demeaning and humiliating.
• For such a search to be legal, there must be a reasonable or a probable cause.
• If a person’s house is his castle, then his body must be his temple, or shrine, not lightly to
be desecrated.
• Section 95(1) of the CCPA 2008 authorizes search upon the person of a person arrested by
the arresting or receiving officer before placing him in police custody.
• A list of items on his body should be catalogued and registered.
• The evidence Act 2006 contains some provisions in aid of investigations. For instance,
section 181 of South Sudan Code of Evidence Act 2006 provides that where it is proved on
oath to a juldge or magistrate that in fact, or according to the reasonable suspicion, the
inspection of any banker’s book is necessary or desirable for the purpose of nay
investigation into the commission of an offence, the judge or magistrate may, by warrant
authorize a police officer or another person named therein to investigate the account of any
specified person in any banker’s book as may be required for scrutiny by the officer or
person named in the warrant. The officer may take copies of any relevant entry or matter
in such banker’s book. However, a banker is not bound to disclose the status of a customer’s
account except on reasonable and proper grounds such as where the disclosure is by
compulsion by law or there is a duty to disclose or where interest of the bank requires the
disclosure or the disclosure is made by the express or implied consent of the customer. See
the HC ruling in the case of Erastus Kibiti.117

Medical Examination of a Suspect

116
108 E.R 49
117
Erastus Kibiti Stephen v. Euor Bank Ltd and Another [2003] eKLR Miscellaneous Criminal Application No.
9 of 2002).

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Section 62 of the CCPA 2008 says that a person arrested for suspicion of committing an offence
can be required to submit to a medical examination by a registered medical practitioner or a
medical assistant. This can be done by a police officer acting under the directives of the PPA.
This is done in the interest of justice to stablish whether the person arrested is guilty of the
offence. The person required to undergo a medical examination is entitled to nominate a doctor
to be present during the medical examination.118

Taking of Fingerprints, Eye Prints and Photographs

▪ The fingerprints, eye prints and or photograph of any accused person may be taken during
his or her trial, or while he or she is being interrogated or investigated if it were in the
interest of such trial, interrogation or investigation that such fingerprints eye prints and
photograph be taken.119
▪ Such fingerprints, eye prints and photograph may be kept for a period of six months at the
end of which they shall be destroyed, unless the person concerned has been convicted of
an offence.

Search for a Stolen Property

▪ If information is received that a place is used for deposit or sale of stolen property, or a
property in respect an offence has been committee is deposit or kept in that place, the PPA,
Magistrate or Court may authorize a police officer, Chief or retainer to search the place and
search any property fitting the description in the search warrant.
▪ The person authorized to conduct the search can also arrest any person found in the place
found to have or be a party to any offence committed or intended to be committed in
connection with such property.120

Professional Privilege

▪ A search, even with a warrant, may not be directed towards materials which cannot be
legally seized. Examples of privileged documents or communications include:
▪ Correspondence between an accused person and his spouse, lawyers and doctors. This rule
also applies to documents which are in the possession of the person himself and not a
suspect or a third party.

118
See the Code of Criminal Procedure Act 2008 section 62(3)
119
See section 63 of the Code of Criminal Procedure Act, 2008.
120
See The Code of Criminal Procedure Act, 2008 section 106.

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▪ The reason is that such persons have a right to refuse to produce the documents because
they are privileged. See Code of Evidence Act 2006, section 131- communication during
marriage, section 135- advocate and client privilege, and section 138- privilege of physician
and patient.
▪ This right of privileged communication is lost if the person is suspected to have participated
in a criminal act.
▪ This means that a lawyer’s file can be searched and examined if he is a party to the criminal
acts. Consent is another waiver to this rule.
▪ Where anything from the search has been seized and brought before a Court, it may be
detained until the conclusion of the case or the investigation.
▪ It may be further detained for the purpose of the appeal or trial.

List of requirements for seizing of articles by the police

Lord Denning in the case of Ghani v. Jones,121 suggested a list of requirements or criteria to
justify the taking of an article by the police and retaining thereof under a search warrant:

1. Reasonable ground to believe that a serious offence has been committed, or is about
to be committed.
2. Reasonable ground to believe that the article taken is the fruit of crime, instrument
by which a crime was committed or material evidence to prove the commission of a
crime.
3. Reasonable ground to believe that the person in possession of it is involved in the
crime or at any rate his refusal to hand it over is unreasonable.

Evidence obtained by a search warrant is more readily admitted by courts than that obtained
without a warrant. In the case of Pascal Nkala Tubula v. Republic,122 the Court quashed a
conviction where the appellant’s house had been searched; but it had not been shown whether
the search was with a warrant or not. Moreover, there was no other person in the house being
searched except the police officers conducting the search. The Court held that the way the
search was conducted rendered it of no evidential value regardless of whatever was alleged to
have been found.123

Can a Search Warrant be Used More than Once?

121
[1907] 1 QB 693.
122
[1998] eKLR (High Court Criminal Appeal No. 82 of 1992).
123
See also Kanai Karanja v. Republic [2002] eKLR (Criminal Appeal Application No. 24 of 2001).

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In the case of Butler v. Board of Trade,124 Goff J. expressed himself succinctly:

There is no express limitation of time a warrant remains in force; and the only restriction upon
the power of search is that it must be executed between sun rise and sun set- during the day
time. Parliament did not intend such warrant to subject the owner to an unlimited number of
searches throughout an unlimited period of time. It was construed that a warrant only authorizes
a single entry, search and seizure. After the entry, search and seizure, the search is excluded
and spent and a second warrant must be obtained to authorize a second entry.

Can a police officer incur civil liability for executing a search warrant?

✓ The answer is no. where the defence to any suit instituted against an officer is that the act
complained of was done in obedience to a warrant purporting to be issued by a court, the
Court shall, upon production of the warrant, accept that warrant as prima facie evidence of
the due making thereof and upon proof that the act complained of was done in obedience
to that warrant, enter judgement in favour of such officer.

Searches without a Warrant

▪ A police officer or other person authorized in writing by the PPA, Court or Magistrate may
stop, search and detain any aircraft, vessel or vehicle in or upon which there is reason to
suspect that anything stolen or unlawfully obtained, may be found; or where there is no
reason to suspect that it has been used or employed in the commission, or to facilitate the
commission of an offence.
▪ Any stop, search and detention thereof should be conducted by an authorized person;
contrary to which an accuse may be acquitted.
▪ This was the Court’s ruling in the case of Atibu Juma v. Republic.125 A police officer may
search any person of whom a warrant of arrest has been issued, or who may be reasonably
suspected of having in his possession or conveying in any manner anything stolen or
unlawfully obtained.
▪ Where a person in authority over certain goods or a place top be searched gives consent to
a search, a police officer may search such place without a warrant.

124
[1971] Ch 680.
125
[1983] EKLR. (Criminal Appeal No. 898 of 1992).

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▪ The delay principle applies in matters where the search requires a warrant but any delay
would defeat the purpose of the warrant since evidence would have been destroyed or
relocated elsewhere.
▪ Such would also be the case where the goods to be searched would pose threat to the public.
In these circumstances, it is reasonable and permissible to conduct a search without a
warrant.
▪ An officer may stop, search and detain any vehicle or vessel which he has reasonable cause
to suspect is being employed in the commission of, or to facilitate the commission of an
offence absent a warrant, and he may also stop and search any person who may be
reasonably suspected of having in his possession or conveying in any manner anything
stolen or unlawfully obtained.
▪ A search incidental to an arrest may be conducted without a prior warrant whenever a
person is arrested with or without a warrant by the police officer making the arrest, or the
police officer to whom a person arrested by someone else is handed over. He may then
place in safe custody all articles other than necessary wearing apparel, found upon such
person.

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 Summons
During criminal investigations, an investigator is allowed by law to ask a person to appear
before him to answer some questions to produce a document. Summons is used by the
police acting under the instructions of the PPA or Court to compel attendance of the person
asked to appear.
This pre-trial procedure is provided for in section 65 of the CCPA 2008-Power to compel
attendance. For example, section 65(a) says that the PPA, or in his absence, the Magistrate
or Court, may summon any person to appear, in order to present him/herself, or to produce
any document, or other thing, whenever it is necessary, for the purpose of investigation,
trial or execution of any order issued by the PPA, the Magistrate or the Court.
Subsection (2) says that a person summoned should be bound to attend and truthfully
answer the questions the questions put to him except questions that will incriminate him in
criminal charge/penalty.
The law says the person summoned to give evidence in an investigation cannot be asked to
take an oath or to sign his statement if it is reduced into writing.126

Form of a Summons
The law prescribes the lay out of the summons and its contents. For example, the CCPA
2008 section 66(1) provides that every summons the PPA, Magistrate or the Court issues
shall be in the following form:
✓ In writing;
✓ In duplicate; and
✓ Signed or sealed by the PPA, Magistrate or Court.

Who has the power to serve the summons on the person summoned?

The law says that as summons should be served by the following persons:

✓ a policeman or policewoman;
✓ a retainer;
✓ a Chief;
✓ the officer of the Court issuing it;

126
See the Code of Criminal Procedure Act, 2008 section 65(3).

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 ✓ any other public servant under any law in force may be authorized to serve the
summons.

Service of summons and its signature

✓ The law says that the police should all efforts to serve the summons personally on the
person named in the summons.
✓ The person served with a summons should sign or seal on the back of the other duplicate
as evidence of receipt of the summons. (see section 67 of the CCPA 2008).

Service of summons on a legal entity

The law in section says that a service of summons on a legal entity or business may be served
on the Secretary, Local Manager or other Principal Office of the Company at any of its offices
in South Sudan. (See section 68 of the CCPA 2008).

Service when the person summoned cannot be found

In law, when a person named in the summons cannot be found after searching for him, the
summons may be served by leaving one of the duplicates for him with an adult member of his
family, who shall if so, required by the serving officer sign a receipt on the back of the other
duplicate, or by affixing a duplicate of the summons to some conspicuous part of the house or
homestead in which the person summoned ordinarily resides.

Inability of the person served to sign or seal the summons

Where the person on or with whom a summons is served or left, is unable to sign his or her
name or affix his or her seal, the summons shall be served or left in the presence of a witness.127

Service of summons outside the Local Limits of Jurisdiction

How is a summons served in a different jurisdiction?

A summons required to be served outside the local limits of the jurisdiction of the Public
Prosecution Attorney, Magistrate or Court issuing it, shall ordinarily be sent in duplicate to a
Magistrate or Public Prosecution Attorney, within whose jurisdiction the person summoned
resides or is to be served therein.

127
Code of Criminal Procedure Act, 2008 section 70.

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Arrests

Introduction

Persons who have committed or are suspected of having committed offences may seek to elude
the criminal process by which they may be adjudged and punished accordingly. A lawful
mechanism has to exist by which such persons may be apprehended, restrained and brought
before court to be dealt with in accordance with the law. That mechanism is arrest. An arrest is
a restrain upon a person’s liberty and may take the form of physical confinement.

An arrest is a deprivation of personal liberty for purposes of compelling the person arrested to
appear before an authority either as a suspect or as a witness. It usually involves the
confinement of the arrested person in custody pending his appearance in court. For an arrest to
be lawful, it must be done in accordance with a warrant issued by court or some other authority.

Article 12 of the TCSS 2011 provides that no person should be subjected to arrest, detention,
deprivation or restriction of his liberty unless for specified reasons and in accordance with
procedures laid prescribed by law. Art. 19(2) of the TCSS says that a person arrested should be
informed of the reasons for his arrest.

However, our Constitution do not specify lawful reasons a person can be arrested. But the
CCPA 2008 reasons/grounds a person can be arrested. For instance, section 75 (Power of arrest)
provides that a PPA, magistrate or the Court has the power to arrest or issue a warrant for the
arrest of any person:

✓ who commits, in his or her presence, an act which constitutes an offence;

✓ against whom a case for the commission of an offence has been instituted and a valid
request has been filed by the Public Prosecution Attorney;
✓ who contravenes any summons, bail or bond executed by him or her, under the
provisions of this Act; or
✓ the order for whose release has been revoked.
✓ section 76 of the Act, provides reasons that a policeman or Chief may arrest any person
as directed by the PPA, Magistrate or Court.

In Raimond Ochieng Vs Uganda [1968] ULR 14, it was held that as entrenched in the
Constitution, no person shall be deprived of his right to personal liberty, unless authorized by
law and therefore there is no right to take a witness into custody pending an investigation into
a crime.

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In Njuguna s/o Kimani v R. (1954), 21 E.A.C.A. 316 Court held that it is highly improper for
the police to keep a suspect in unlawful custody and prolong the questioning of him by
refraining from formally charging him.

The Constitution of the Republic of Uganda, Art.23(1) lays down lawful reasons which a
person may be arrested:

in execution of the sentence or order of a court, in respect of a criminal offence;

in execution of the order of a court made to secure the fulfilment of any obligation imposed
on that person by law;

for the purpose of bringing that person before a court in execution of the order of a court
or upon reasonable suspicion that that person has committed or is about to commit a
criminal offence under the laws of Uganda;
for the purpose of preventing the spread of an infectious or contagious disease;
in the case of children, for the purpose of the education or welfare of that person;
in the case of a person who is suspected to be, of unsound mind or addicted to drugs or
alcohol, for the purpose of the care or treatment of that person or the protection of the
community;
for the purpose of preventing the unlawful entry of that person into Uganda, or for the
purpose of effecting the expulsion, extradition or other lawful removal of that person from
Uganda.

Methodology of Arrest

In making an arrest, the policeman or any person effecting the arrest may touch or confine the
body of the person being arrested, unless the person being arrested voluntarily submits to
custody by word or action. Where a person forcibly resists the endeavour to arrest him or
attempts to evade the arrest, the person effecting the arrest may use all reasonable means
necessary to effect the arrest. The force applied to effect the arrest or to encounter any attempt
to resist apprehension must be reasonable.

Pursuant to a warrant, the person effecting an arrest may enter any place where the person to
be arrested is hiding or is reasonably suspected to have entered and concealed himself and
demand that the occupiers of that house allow him free ingress and reasonable facilities for the
search. (see section 89(1) CCPA 2008).

78
Where ingress is not possible, a police officer can immediately break open any outer or inner
door or window of as house to effect entry as long he has a warrant. Even without a warrant,
he may still so break to pre-empt the escape of the person that would be afforded by delay in
obtaining a warrant. (see section 89(3) CCPA 2008)

Two Types of Arrests

Arrests may be of two types:

(a) arrests without a warrant;

(b) arrest with a warrant.

(a) Arrests Without a Warrant

Every arrest by a police officer should be done with a warrant of arrest issued by court or any
other competent authority. A warrant is a written authorisation or order authorising someone
named therein to do an act. The warrant of arrest must specify the person to be arrested. Thus,
a warrant of arrest may be issued by court directing the law enforcement officer to arrest and
bring the person to court.

Section 76 of the CCAP 2008 sets out the circumstances under which a police officer or Chief
may arrest a person without an arrest warrant. These are:

• Any person for whose he has a warrant of arrest or as directed by the PPA, Court or
magistrate;
• Any person who has been involved in an offence for which pursuant to this Act, or
under any other law, the police may arrest without warrant. That means a person who
commits or suspected to have committed a cognizable offence, namely offences for
which no warrant is needed in order to an arrest to be effected. In Republic v.
Hussein,128 murder was held to be cognizable offence. Hence, a police officer could
arrest without a warrant.
• Any person against whom a reasonable complaint has been made, a credible
information has been received, or reasonable suspicion exists of his or her having been
so concerned;

128
[1990] KLR 497.

79
• the order for whose discharge from prison has been cancelled by the Court of Appeal,
the High Court or the County Court Magistrate under section 151 of this Act, or any
person the suspension or remission of whose sentence has been cancelled by the
President under section 288 of this Act;
• any person reasonably suspected to be designing to commit an offence for which the
police may arrest without a warrant, if it appears to him or her that the commission of
the offence cannot be otherwise prevented;
• a person who is required to appear by a proclamation published under section 97 of this
Act;
• a person who is found taking precautions to conceal his or her presence in suspicious
circumstances or who being found in suspicious circumstances, cannot give a
satisfactory account of himself or herself;
• a person in whose possession property is found which may reasonably be suspected to
be stolen property, or who may reasonably be suspected of having committed an offence
with reference to such property;
• any person who obstructs a policeman or policewoman while in the execution of his or
her official duty;
• any person who has escaped or attempted to escape from lawful custody;
• who is reasonably suspected of being a deserter from the Sudan People’s Liberation
Army, the Joint Integrated Units, Sudan Armed Forces or any other organized force;
• a person who in his or her presence, has committed or has been accused of committing
any offence, for which the police may not according to the third column of Schedule I
to this Act, arrest without a warrant if, on his or her demand such person refuses to give
his or her name and address or gives a name or address, which he or she believes to be
a false one; and
• who has been placed under police supervision, and whom he or she reasonably suspects
to have committed, or to be committing a breach of any of the restrictions mentioned
in section 155 of this Act, which are applicable to him.

It is clear that a police officer is entitled to effect an arrest without a warrant so long as he
has a reasonable ground for entertaining the suspicion. Subsequent event may show that
the officer was in error at the time, but the arrest will not be rendered unlawful. Lord

80
 Diplock in the case of Dillon v. O’ Brien and Davis,129 said, “In the case of an arrest,
reasonable grounds for belief in guilt at the time of arrest are sufficient justification, though
subsequent information or events may show these grounds to be deceptive.”

An officer in charge of a police station may also arrest or cause to be arrested without a
warrant any suspicious self-concealers; being persons found within the limits of the station
in circumstances suggestive that they are taking precautions to conceal their presence with
a view to committing a cognizable offence.

A person who has committed or is suspected to have committed a non-cognizable offence

may still be arrested without a warrant if he is asked to give details of his name, place of
residence, or gives a name or residence which the officer reasonably believes to be false.
Such a person may be arrested until such information is ascertained whereupon he shall be
released without condition to appear before a Magistrate.

The police officer who arrests without a warrant must, without any unnecessary delay, and
subject to the provisions of bail in the Criminal Procedure Code, take or send the person
arrested before a magistrate having jurisdiction in the case or before an officer in charge of
a police station according to section 83, CCPA 2008. This should be done within 24 hours
after the arrest.

Formal Validity of Warrants in South Sudan

The formal validity of a warrant of arrest is satisfied when the warrant meets the following
requirements under the CCPA 2008 s.78. Every warrant of arrest issued by a PPA,
Magistrate or Court must:

✓ be in writing;
✓ bear signature or seal of the PPA, Magistrate or the Court;
✓ bear name of the person or persons to whom it is directed.
✓ bear a precis(summary) of the offence with which the person is charged.
✓ Bear the name or description of the person(subject) to be apprehended.
✓ Order the person(s) to whom it is directed to apprehend the subject to bring him
before the Court issuing the warrant or before a court having jurisdiction in the case
to answer to the charge mentioned therein and to be dealt with in accordance with
the law.

129
[1887] 16 Coc CC 245.

81
 ✓ The validity of warrant remains in force until it is executed, lifted or cancelled by
the order of the PPA, Magistrate or Court that issued it.

If the Court that issues the warrant by endorsement on the warrant, the subject may be released
if he executes a bond with sufficient sureties for his attendance before at a specified time.
However, this does not apply to the offences of murder, treason or rape- that is non bailable
offences.

The endorsement must state:

❖ The number of sureties;

❖ The amount in which they and the subject are to be bonded;
❖ The time at which the subject is to appear before Court.

The officer whom the warrant is directed must forward the bond to the Court when security is
taken. A warrant of arrest is usually directed to a particular police officer or group of officers
or Chief as provided in the CCPA 2008 section 80.

Notification of the warrant of arrest to the person to be arrested

The person executing a warrant of arrest, shall notify the person to be arrested of the substance
thereof, and shall show the warrant to him or her.130

Execution of the Warrant of Arrest

Where and when can a warrant of arrest be executed?

A warrant of arrest may be executed at any place and at any time in Southern Sudan or outside
of Southern Sudan as provided by this Act.

Execution of warrant of arrest outside the local limits of jurisdiction

Where a warrant of arrest is to be executed outside the local limits of jurisdiction of the PPA,
Magistrate or Court issuing it, it should be forwarded for endorsement by the PPA, Magistrate
or the Court within the local limits of whose jurisdiction it is to be executed. That PPA,
Magistrate or the Court should endorse his/her/its name on the warrant.131 The officer takes it
to the magistrate in whose jurisdiction it is to be executed. The magistrate endorses his name
on the warrant which then constitutes sufficient authority for the police officer to execute it

130
See section 82 of the Code of Criminal Procedure Act 2008.
131
Ibid., section 87.

82
within those local limits and the local police should assist him. Once a person is arrested outside
the local limits of the Court that issued the warrant, he should take him before the Magistrate
in that local jurisdiction where he was arrested. The Magistrate having jurisdiction over the
locality of arrest shall then satisfy himself that the person is the subject of the warrant and shall
direct him to be taken to the court that issued the warrant unless he gives security.

Resisting arrest

If a person liable to arrest who resists on endeavor to arrest him or her or attempts to evade the
arrest, the person authorised to arrest him or her may use all reasonable means necessary to
effect the arrest; provided that, this section shall not give the right to cause the death of a person
who is not accused of an offence punishable with death or with imprisonment for a term which
may exceed ten years according to section 87 of the CCPA 2008.

Arrest by a Private Person

A private person can arrest one who commits a cognizable offence or one he reasonably
suspects to have committed a felony. (see s.77 CCPA 2008). This is called a private person
arrest.

A private person may arrest any person:

❖ for whose arrest he or she has a warrant or whom he/she is directed to arrest by a Public
Prosecution Attorney, Magistrate or Court;
❖ who has escaped from his or her lawful custody;
❖ who is required to appear by a proclamation published under section 97 of this Act; or
❖ who committed in his or her presence an offence for which the police can arrest without a
warrant.
❖ another instance is where damage to property has been committed and the owner of the
property or his servants or any other person, he authorized may arrest the offender. The
private person should immediately take the arrested person to a police officer or to a police
station to be re-arrested. The police offer may release the person arrested where he deems
that no offence has been committed.

procedure after arrest by a private person:

There are steps that should be taken after a private person exercise the private powers of arrest.

83
• Any person making an arrest without a warrant shall without unnecessary delay, take the
person arrested to the nearest police station or hand him or her over to a policeman or
policewoman.
• If the arrested person appears to be one whom a policeman is authorised to arrest, the
policeman shall re-arrest him or her, otherwise the arrested person shall be immediately
released from custody.
• A policeman or policewoman making an arrest without warrant or re-arrest above, shall
without unnecessary delay, take or send the person so arrested, before a Public Prosecution
Attorney, the Magistrate or the Court competent under Chapter XIV of the CCAP 2008 to
take cognizance of the case or before the officer-in-charge of a police station.

Arrest with a Warrant

An arrest warrant is a written order issued by a PPA, Magistrate or Court for the
apprehension of a person who fails to appear in Court at an appointed time and in relation
to an offence committed by him or for witnesses who fail to appear in Court to give
evidence. In law, when a summons has been issued, directed at a person whom an
accusation has been laid, the Court may, before or after the time of hearing, issue a warrant
of arrest against the person summoned. If the accused person does not appear at the time
and place in the summons, and his personal attendance has not been dispensed with, the
Court may issue a warrant to apprehend him and cause him to be brought before it.
The Court may also issue a warrant for the arrest of a person who fails to appear when
required even for the mention of his case as it happened in the case of Abdi Hakim Alsafa
v. Republic,132
Also, warrant of arrests are issued by Court for accused who have jumped bail or have
absconded. They are directed to a police officer or any other person who will effect the
arrest. The police officer must satisfy the PPA or Magistrate that a person has, or is
suspected of having committed an offence. Issuing of a warrant involves an exercise of
discretion. So, a warrant of arrest should not be issued unless the offence in question is
indictable or is punishable with imprisonment. Furthermore, the person named in the
warrant would not voluntarily appear in attendance as required, hence the necessity of the
warrant.

132
[2007] eKLR (Miscellaneous Criminal Application No. 301 of 2007).

84
Treatment of an Arrested Person

The law guarantees some human rights to an arrested person and these rights are derived from
South Sudan Constitution of 2011 as amended Art. 19 and the CCPA section 93.

▪ An arrested person has the right to prompt information in the American Miranda or
Judge’s Rules sense in a language he understands of:
(i) the reason for his arrest;
(ii) the right to remain silent;
▪ An arrested person shall not be subjected to any treatment against human dignity nor shall
he or she be physically or morally abused.
▪ An arrested person shall always be entitled to contact his or her advocate.
▪ An arrested person shall be placed under the custody of the Police, and he or she shall
not be transferred, or placed in any other place except upon the order or directives of the
Public Prosecution Attorney, Magistrate or the Court as the case may be.
▪ An arrested person shall have the right to inform his or her family, or the body to which
he or she belongs, and contact the same. Where the arrested person is a juvenile, or
suffering from a mental infirmity, or any disease, in such a way that he or she may not be
able to contact his or her family, or the body to which he or she belongs, the police, Public
Prosecution Attorney, Magistrate or the Court shall, on its own initiative notify the family
or the appropriate body.
▪ An arrested person shall have the right to obtain a reasonable amount of food stuff,
clothing and cultural materials, at his or her own cost, subject to the conditions relating to
security and public order.
▪ An arrested person shall abide by the rules of public morals, sound conduct, as well as
any regulations pertaining to his or her custody.
▪ An arrested person shall not be subject to more restraint than is necessary to prevent his
or her escape.133
▪ Non compulsion to self-incrimination.
▪ To be released on bail or bond.

133
See the Code of Criminal Procedure Act, 2008 section 94.

85
Report and Register of Arrest

✓ Section 96 of the CCPA 2008 provides that the officer in charge of a station shall
immediately report to the PPA, Magisrate or Court all cases of arrests made without
warrants in the local limits of the Station.
✓ The law requires a register of all arrest to be kept in a prescribed form at every police
station.

Proclamation to appear

When a person against whom a warrant of arrest is issued against him, but there is evidence to
show that he is absconding or concealing himself so that the warrant cannot be executed against
him, the Senior PPA or High Court Judge shall publish a written proclamation in the media
under section 97, CCPA 2008 requiring him or her to appear at a specified place and time, not
less than thirty days from the date of publication of the proclamation. It may be publicly affixed
in a conspicuous place in the village in which such person ordinarily resides. it shall be affixed
to a conspicuous part of the house or homestead in which such person ordinarily resides or to
a conspicuous place in such a town or village. a copy of the proclamation shall be affixed to a
conspicuous part of the Senior Public Prosecution Attorney’s office or the High Court. A
statement in writing by a Senior Public Prosecution Attorney or High Court Judge to the effect
that the proclamation was duly published on a specified day, shall be conclusive evidence that
the requirements of this section have been complied with, and that the proclamation was
published on such a day.

Can a Warrant of Arrest be used more than once?

The CCPA 2008 is silent on this issue and there is no South Sudan decision on the point. The
English position from ancient times is as expressed in Dickenson v. Brown,134 where the Court
of King’s Bench doubted the legality of a second arrest of the plaintiff upon a warrant which
had already been used to effect an arrest on an earlier occasion. It would amount to an abuse
of the instrumentality of an arrest were to be executed repeatedly for such an employment of it
would turn into an instrument of oppression.

Release of a person accuse of a minor offence

134
[1974] I Esp. 218.

86
A person may be released after his arrest if he is arrested for a minor offence after executing a
personal bond by a PPA, in his absence, by the Magistrate or Court may release him from
custody on bail. An arrested person is entitled to a release on his or her own personal bond only
if that release will not compromise public safety and there is reasonable assurance that the
arrested person will appear as required.135

Bail

Definition

Bail is the release from custody pending a criminal trial of an accused on the promise that
money will be paid if he absconds.136 Bail is an agreement or recognizance between the accused
and his sureties if any on one hand and the court on the other that the accused will pay a certain
sum of money fixed by the court should he fail to appear to attend his trial on a certain date. It
is a constitutional right under Article 19(4) of the TCSS 2011(amended). The Court has
authority to release an accused person on bail.

All decisions on whether to grant bail therefore involves delicate questions of balancing
interests. A person is presumed innocent of a criminal charge he is proven guilty of it.137 To
refuse bail to an accused person might involve depriving him of his liberty who is subsequently
found not guilty, or even if convicted, is given a non-custodial sentence. On the other hand, to
allow liberty to an accused person pending trial might be to allow him to abscond, to interfere
with witnesses, to tamper with the evidence, to commit more crimes, or engage in other conduct
prejudicial to the cause of justice. The PPA or the Court must find a right balance in such matter
by operating a presumption in favour of bail; a presumption that can be overturned if one or
more of a number of indices of suspicion exist in respect of a particular accused person. Even
where bail is granted, it may be subject to certain conditions to promote public safety and the
interest of justice. These are discussed herein below:

1. The object of bail

The object of bail is to ensure that the accused person will attend his trial, without him being
detained in prison on remand. It is undesirable to detain a person in prison if it is not necessary.
The system of granting bail is an alternative138 born of fairness and pragmatism.

135
See section 123 of the Code of Criminal Procedure Act, 2008.
136
Gar S and Cavendish D K, “The English Legal System,” 6 th ed., (2003) pp.445-450.
137
See the case of Wainaina v. Republic [1990] KLR 332 and Article 19(1) TCSS 2011 (amended).
138
Gar S and Cavendish D K, “The English Legal System,” 6th ed., (2003) pp.445-450.

87
2. How Bail is Executed in Law

A person arrested may be released on bail in the following ways:139

✓ By the person arrested personally executing a bond to appear, with or without

surety/sureties.
✓ By another person executing a bail to bring to Court the arrested person with or without
sureties.
✓ By paying a deposit coupled with bond or bail.
✓ Upon the fulfilment of the requirement of the bail, an arrested person shall be released from
custody.

3. Bailable and Non-Bailable Offences

The question of bail is often very emotive one especially where the persons seeking or
obtaining it are facing charges about which the community feels very strongly. Where a person
is charged with violent and destabilizing offences, he becomes the subject of great social
revulsion or even violence and public opinions is against his being allowed to walk and mingle
freely among the good and the innocent.

(a) Bailable Offences

• First, the CCPA 2008 section 124 says that a person accused or arrested for an offence
punishable only with fine only shall be released on bail after executing a bond without
sureties.
• Secondly, a person accused of an offence punishable with for a term not exceeding ten years
is arrested or detained without a warrant by police or the Court may be released on bail
unless there are fears that;
• the proper investigation of the offence would be prejudiced or a serious risk of the accused
escaping from justice be occasioned; provided that, such Public Prosecution Attorney,
Magistrate or Court, if he or she or it deems it appropriate may instead of taking bail from
such person, discharge the accused person, upon the execution of a bond without sureties
for his or her appearance.

139
See section 124 of the Code of Criminal Procedure Act 2008.

88
(b) Non-Bailable offences

The law denies granting of bail to accused person in serious offences referred to as cognizable
offences. For instance, the law denies bail to persons accused of the following offences:

❖ Murder;
❖ Treason;
❖ rape
❖ Robbery with violence; and attempted robbery with violence.

The CCPA 2008 clearly provides that A person accused of an offence punishable with death
shall not be released on bail.140 The law also denies bail to a person accused of an offence
punishable with imprisonment for a term exceeding ten years.

In the case of Margaret Magiri Ngui v. Republic,141 the applicant was charged, inter alia, with
robbery- a capital offence. She applied for bail in the High Court and she was refused. She
thereafter applied to the HC as a Constitutional Court for the reading of section 123 of the
Criminal Procedure Code which conflicted with the Constitution as to the provisions of bail.
Whereas Article 72(2) of the Constitution, as it then stood, allowed bail generally to person
charged with any offence, section 123 of the CPC denied bail for capital offences.

The Court considered this application on merit having found that it had power to grant or refuse
bail. It held that bail, as a general rule, should not be granted where the offences carry a
mandatory death penalty because the temptation to abscond in such cases is very high. It was
noted that this was the practice in England in cases of murder. The Court refused to release the
applicant on bail.

Circumstances in Which Bail may be Given in Non-Bailable Offences

A person accused of a non bailable offence may be released on bail in the following
circumstances142:

that by reason of the granting of bail the proper investigation of the offence would not be
prejudiced nor a serious risk of the accused escaping from justice be occasioned

140
See section 127 of the Code of Criminal Procedure Act, 2008.
141
See Douglas B, “Criminal Procedure in Uganda and Kenya (Law in Africa) (No.13) p.57
142
Ibid., section 127(2)(a).

89
 that there are no reasonable grounds for believing that the accused committed the offence,
but that there are sufficient grounds for further investigation.

Factors to put into consideration when setting or denying bail:

In setting, reducing or denying bail, the PPA, Magistrate or the Court shall take into
consideration the following factors:143

✓ protection of the public;

✓ the seriousness of the offence charged;
✓ the previous criminal record of the accused; and
✓ the probability of his or her appearing at inquiry or trial of the case;
✓ The public safety shall be the primary consideration.

In considering the seriousness of the offence charged, the PPA, Magistrate or Court shall
include consideration of the:144

✓ alleged injury to the victim;

✓ alleged threats to the victim or a witness to the offence charged;
✓ the use of a firearm or any other deadly weapon, in the commission of the offence
charged.

The Court denied bail to suspects who had been in custody for 3 years in the Kenyan case of
Joseph Wambua Mutunga and 3 others v. Republic.145 In their application for bail, the
accused stated that there were no compelling reasons to warrant their continued stay in custody
pending trial. The Court noted that accused persons are not automatically entitled to be released
on bond or bail. The right to be released on bond or bail is not automatic except if the offence
with which an accused person is charged is punishable only by a fine or by imprisonment for
no more than six months.

The judge analogized ‘compelling reasons’ with ‘interest of justice’ and made reference to the
decision of the SC of Appeal of Malawi in Fadweck Mvahe v. the Republic,146 which held
that;

143
See section 128 of the Code of Criminal Procedure Act 2008.
144
Ibid., section 128(2).
145
High Court Criminal Case No. 23 of 2008 (Unreported )
146
SC 20A/2006.

90
In considering the issue of the interest of justice the paramount issues the court will consider
include the likelihood of the accused attending his trial, the risk that if he is released on bail
the accused person may interfere with the prosecution witnesses or tamper with evidence, the
likelihood of his committing another offence or other offences and also the risk to the accused
person, if granted bail returns to his village where the deceased’s relation s may harm him. In
considering these issues the court may take into account, among other things, such factors as
gravity of the offence, the punishment likely to be imposed and indeed that the accused is a
sickly person.

Classification of Bail:

Bail may be classified into three types:

1. Bail pending trial

2. Bail pending appeal
3. Anticipatory Bail
1. Bail pending trial

Bail pending trial may be granted:

(a) By the police at the police station

(b) By a Magistrate in Court

(a) Bail from the Police Station

The Transitional Constitution of S. Sudan Article 19(4) grants bail as a fundamental right. It
provides that, “A person arrested by the police as part of an investigation, may be held in
detention, for a period not exceeding 24 hours and if not released on bond to be produced in
court. The court has authority to either remand the accused in prison or to release him or her
on bail.” Also, section 123, 124 and 125 of the CCPA 2008 provides that a person arrested for
a minor offence may be released by the PPA, Magistrate or Court on his own personal bond or
bail. The CCPA also grants bail to a suspect arrested for an offence punishable with fine only.

The CCPA 2008 section 127 grants bail to a person arrested for a capital offence if it is
determined that if there are no reasonable grounds for believing that the accused has committed
the offence, but there are sufficient grounds for further investigation. In the Kenyan case of

91
Hussein v. Republic,147 the Court said that the officer in charge of a Police Station is required
to enquired into the case before he exercises his discretion to release the person on bail. He
may release the accused I find his opinion there is insufficient evidence to proceed with the
charge.

Bail decisions by the Court

Th Court can grant bail to an accused person at any stage of the trial. It can be given at any
time during the proceedings. Under the English law, where the prosecution objects to the
accused being granted bail, the Court will invite both the prosecution and the defence to make
submissions on the matter. The magistrate, after hearing the prosecution’s objection and any
counter objections, will then make his decision. Moreover, when a Court adjourns a case for a
week or a month, it has to decide whether the accused person should be released on bail or
remand in custody. The High Court may, whether or not a person has been committed for trial,
direct that the person be admitted to bail with or without sureties. It may also reduce the bail
directed by a subordinate Court or police officer.148

Legal Principles that a Court should Consider when granting Bail:

In the case of George Kamau Ng’ang’a v. Republic,149 Chesoni J., laid down the principles
that a court should consider when granting bail as follows:

(a) That in view of the presumption of innocence, bail should generally be granted unless
the prosecution shows substantial reasons that:
i. The accused will fail to turn up for trial or surrender to custody.
ii. The accused will obstruct the cause of justice.
iii. The accused will commit similar offences.
(b) The primary consideration is whether the accused is likely to enter into trial.150 So, the
Court should consider the following:
i. The nature of the offence.
ii. The severity of the punishment.
iii. The strength of the prosecution’s case.
iv. Antecedent character of the accused.

147
[1990] KLR 425
148
See sections 123-128 of the Code of Criminal Procedure Act, 2008.
149
High Court Miscellaneous Application No. 61 of 1981
150
Muite v. Republic [1991] KLR 579.

92
 v. Likelihood of interfering with witnesses.
(c) Each accused person’s application must be considered on its own:
i. Facts.
ii. Circumstances.
iii. Merits.
(d) The granting of bail to one accused and denial of the co-accused of bail is not
discriminatory under the Constitution.

The Court stated:

Even without the Constitutional provisions, generally in principle and because of the
presumption that a person charged with a criminal offence is innocent until his guilt is
proved, an accused person who has not been tried should be granted bail, unless it is shown
by the prosecution that there are substantial grounds for believing that he will abscond.

In this case, it had been argued that the release of the co-accused on bail leaving the
applicant was discriminatory and could not be justified in law. The Court rejected that
contention, holding, in our view correctly, that a case may have two or more accused
persons yet the Court may rightly grant bail to some and refuse bail in respect of the others,
without being in breach of any constitutional provisions. This must be so considering that
the propensity to abscond is to be determined by his individual circumstances and being
charged with the same offence as others does not equalize those circumstances.

Factors to be Considered Before a Bail is Granted

There are various factors151 which must be considered before bail is granted. In Opinder
Singh Naul v. Republic,152 the Court stated that:

…the correct test whether bail should be granted or refused is whether it is possible that
the accused person will appear in Court to take his trial.153

The test should be applied by reference to several considerations:

❖ the nature of the charge;

❖ severity of the punishment; and

151
Kivutha Kibwana, (Ed.), “Law and the Administration of Justice in Kenya,” (International Commission of
Jurists General printers Ltd, 1992)
152
Misc Cr. Application No. 178 of 1981.
153
See Watoro v. Republic [1991] KLR 1981.

93
 ❖ evidence in support of the charge.

And in the Nigerian case of Alhaji Mujahid Dukulo Asari v. Federal republic of Nigeria,154
which was cited by Ibrahim J in Republic v. John Kahindi Karisa and Another,155 the trial
Court stated:

…When it comes to the issue of whether to grant or refuse bail pending trial of an accused
person by the trial court, the law has set out some criteria which the trial court shall consider…

i. the nature of the charges;

ii. strength of the evidence which supports the charge;
iii. the gravity of the punishment in the event conviction
iv. previous criminal record of the accused, if any
v. the probability that the accused may not surrender himself for trial
vi. the likelihood of the accused interfering with the witnesses or may suppress any
evidence that may incriminate them
vii. the likelihood of further charges being brought against the accused
viii. the probability of guilt.
ix. detention for the protection of the accused
x. the necessity to procure medical or social report pending final disposal of the case.

The Court went further to state that:

The main function of bail is to ensure the presence of the accused during trial…accordingly,
this criterion is regarded as not only the omnibus one but also the most important. As a matter
of law and fact, it is the mother of all the criteria enumerated above.

Grounds/factors that a Court will consider when determining the question of pre-trial bail are:

1. Likelihood of Appearance at the Trial:

This is the mother factor because if the accused is not able to attend and his trial, bail will
subvert the administration of justice. In the case of Republic v. Selwyn and 5 others,156 the
Court said the test to govern the discretion of the Court in deciding whether to grant or refuse
bail is the probability of the accused appearing to stand trial. In applying test, the Court will be

154
SC of Nigeria 20A/2006 Reported also in Republic v. Mgunya and Another.
155
HC Criminal Case No. 23 of 2010.
156
[1952] KLR 16. See also Republic v. Joseph Wambua Mutunga and others Criminal Case No. 23 of 2008.

94
guided by the nature of the crime, severity of the punishment imposed and the possibility of a
conviction.

In determining whether the accused will turn up hi status and social connection must be
considered. If he is a non-resident and he faces a serious charge, there is the chance that he will
be tempted to flee. It is necessary for the court to order that the accused produce sureties before
the application for bail is granted.

2. Likelihood of Interreference with Investigations

This is especially so where the investigations may be incomplete by the time the accused is
presented in Court and particularly necessitated by the complex nature of some cases. It may
not be entirely just to release an accused at a stage where there is a high likelihood of hi
interfering with the investigations including by concealment, destruction or tampering with th
evidence.

3. Likelihood of Interfering with Witnesses

The court would deny bail to an accused person who is n a position to interfere with witnesses
whether by violence, which may even take the extreme form of elimination, or threats and
intimidation, or even bribery and other forms of negative influence so that the witnesses either
do not turn up or do not testify, or alter their testimony at his behest. In the Mgunya case above,
the Court stated that the relationship, if any, between the accused person and the potential
witnesses is a prime factor to consider before bail is awarded. If the accused person who was
either related to the witness or a person who stood in a position of influence visa-vis the
potential witnesses, there could raise a legitimate anxiety about the impact he might have on
the witness, if he was released pending trial.

4. The Nature of Offence the Accused is Charged With

The more serious the charge, the more likely the accused will abscond and not attend the trial
and the more likely it is therefore, that he will be denied bail. In Watovu v. Republic,157 the
Court held that the seriousness of the offence has a clear bearing which the Court ought to bear
in mind. In Mugunya case above, the Court said that the accused persons may be more inclined
to abscond if the charge against them was serious and if the sentence was heavy. To determine
how serious the offence is, the Court look at the sentence provided at the end of the rope- the

157
[1991] KLR 281.

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sentence that is likely to be meted out to the accused in the event of conviction. In John Karisa
Case above, the court said that “Murder is a serious offence and attracts death penalty. Self-
preservation is a natural reaction or response of any human being. Whatever the court, the fear
an anxiety exerting on an accused’s mind during the trial in a murder case cannot be ignored.
The possibility of thinking of flight by an accused person facing capital offence is real and
cannot be wished away.”

5. Likelihood of Commission of More Offences

It is normally difficult to tell whether the accused is likely to commit other offences because at
this stage, the Court is not entitled to know the accused previous criminal record. But where a
person is on bail is charged with another similar offence alleged to have been committed when
on bail, the Court may be entitled to refuse to grant bail. In Khamis Mazrui and others v.
Republic,158 the Court stated:

“It must be borne in mind that the fundamental rights of liberty are subject to respect and
freedoms of others and for public interest. Public interest cannot be considered in isolation
from public peace, tranquillity and security. Public interest also includes maintenance of law
and order without which the rule of law, which is the fountain- head of the Constitution of any
country, would not subsist or sustain.”.159

6. Safety or Security of the Accused

The accused person should not be granted bail if the Court is satisfied that he should be kept in
custody for his own protection. Any accused person is likely to be remanded in custody for his
own protection where he poses a danger to himself or is charged with an offence that excites
considerable public revulsion such as child/sexual abuse or paedophilia. It may also be in the
best interest of a suspect to be denied bail and kept in safe and protective custody if he is a
child or a young person without a family.

7. The Accused is Serving is Custodial Sentence

Clearly, an accused person who is already serving a custodial sentence for another offence
cannot be expected to be granted bail in connection with new matters and should not expect
success on a bail application in such circumstances. The Court should however, ascertain the
earliest date of release to ensure the accused is not remanded in custody later than that date.

158
High Court Criminal Application No. 81 of 1985
159
See section 72(1) of the repealed Constitution of the Republic of Kenya.

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Once the prior custodial sentence is served, there is no bar to the making of the application for
bail in the current case.

8. Breach of Bail Terms

Where, having been previously released on bail in connection with the same offence, an
accused person absconds or otherwise breaches or violates the terms and conditions upon which
the bail has been granted, he would not be eligible for bail.

9. Relative Strength of Prosecution Case

If the trial court starts and it is of the opinion that the prosecution case is not very promising,
the court may grant bail but this is a discretion of the court.

10. Paucity of Information

The accused may not be granted bail where the court is satisfied that it had not been practicable
to obtain sufficient information to enable it to make a decision in relation to bail.160 There may
be instances where the police have charged a suspect but still have insufficient details as to his
identity and address. In these circumstances, a Court is entitled to refuse bail until such time as
the information is available.

11. Deposit in lieu of Recognizance

The Court may require a person to execute a bond or deposit money or some property as a
condition for his release. When such a person executes a bond, he essentially promises the court
that he will appear in court when required. He may in addition to or instead of executing the
bond, to deposit a sum of money fixed or determined by the court or to deposit property. When
money is deposited by the accused person or by some other person on his behalf under these
circumstances, it is referred to as a cash bail. The court has a power to issue a warrant directing
that a person released on bail be brought before it, and may order that such person finds
sufficient sureties. Where he fails to do so, the person may be committed to prison.

2. Bail Pending Appeal

Unlike pre-trial bail which is grounded on the constitutional presumption of innocence in

favour of the accused person, bail pending appeal does not exist as of right. It is issued in
exceptional circumstances. The principles governing bail pending appeal are different from

160
Republic v. John Kahindi Karisa and Others supra.

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those governing bail pending trial. In application for bail pending trial, the presumption of
innocence casts the burden on the prosecution to show why the accused should not be granted
bail. In an application for bail pending appeal, the presumption of innocence is no longer
operative. The courts have held that the presumption at that stage is that the accused was
properly convicted and the burden is on him to show why he should get bail pending appeal.161
Moreover, an application for bail pending appeal can only be made in respect of an offence
which was originally bailable.162 The HC or subordinate Court that convicted a person may
grant bail or stay execution of a sentence or order pending appeal on such terms of surety.

The CCPA 2008 section 266-power of confirming authority to pass interim order; provides
that the SC, HC, CA or County Court Magistrate may by order in writing order that a person
in confinement be released on bail or on his own bond or order that an acquitted person be
rearrested pending appeal or confirmation.

The main consideration for bail pending an appeal is that an applicant must show
overwhelming chances of the appeal succeeding. If that be so, there will be no justification for
depriving the applicant his freedom.

3. Anticipatory Bail

This type of bail is also referred to as “bail pending arrest.” Anticipatory bail is an order to
admit a person to bail, issued before the person is arrested. It is bail in anticipation of arrest.
Any person who suspects that he is about to be arrested on false or trumped-up charges, due to
personal or political enmity or vendetta with someone, or who fears that a false case is likely
to be built up against him, may move to Court for grant of bail in the event of his arrest, and
the Court may, if it thinks that in the event of such arrest, he shall be released on bail. In essence,
the applicant invites the Court to arrest him and release him on bail and thereby pre-empt an
apprehended oppressive apprehension in the hands of the police.

161
Daniel Dominic Karanja v. Republic [1986] KLR 612. Judiciary of Kenya, Bench Book, International
Commission of Jurists General Printers Ltd, Kenya.
162
Ibid.

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