CRIMINAL JUSTICE RESPONSE TO CORRUPTION IN
SOUTH SUDAN
Akuei Mayuen Deng Dut＊

I. INTRODUCTION
This paper is prepared in response to the requirement of the Japan International Cooperation Agency“JICA” Knowledge Co-Creation Program on the Criminal Justice Response to Corruption. The main theme
for the programme is “Effective Anti-Corruption Enforcement and Public–Private and International Cooperation”. The objective of the programme is to share information and experiences of the participants respective criminal justice systems with the view to understanding and appreciating success stories as well
as challenges encountered. Participants are therefore required to respond to specific questions posed. This
paper is therefore customized to address the questions in the order of their appearance in the pages
mentioned above. The paper will conclude with a brief summary of the measures South Sudan is putting
in place to overcome challenges and make its fight against corruption robust and sustainable.
However, the paper will begin by giving a brief account of the institutional and legal framework within
which corruption is fought in South Sudan. It is believed that this will help the reader in appreciating thestrengths and weaknesses of anti-corruption measures in operation in South Sudan. Effectiveness and efficiency of efforts geared at anti-corruption are to a large extend a product of the institutional arrangementin place and the legal framework that governs their operations.

II. INSTITUTIONAL AND LEGAL FRAMEWORKThe South Sudan Anti-Corruption Commission (SSACC) was established under the Interim Constitution of Southern Sudan1 “ICSS” 2005. Article 147 of ICSS provided for the establishment of an independentand impartial body to be known as “Southern Sudan Anti-Corruption Commission”.
Under ICSS, SSACC’s mandate2 was to:⿟⿟ protect public property;
⿟⿟ investigate cases of corruption in both the public and private sectors;
⿟⿟ combat administrative malpractices and;⿟⿟ to administer assets AND liabilities declarations of senior public service officials pursuant to
Article 121 of ICSS.
Giving effect to this constitutional provision, the president of the then-Government of Southern Sudan“GOSS” on June 2006 issued a presidential decree appointing the commission, 3 comprising of the chairperson, deputy chairperson and three commissioners. As there was no law in place as guidance, the Commission embarked on developing legislation to address issues of corruption offences, sanctions as well as
establish the matters, among others. The idea was to adopt legislation which would be both comprehensive
and effective in addressing the vice of corruption. Four years down the line, and after a protracted wait
and delay, the Commission settled on the Anti-Corruption Commission Act, 2009.

Director General, Investigations and Legal Services, South Sudan Anti-Corruption Commission.

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1 Post-conflict constitution and a product of the Comprehensive Peace Agreement between the then-Government of Sudan

and rebel movement known as Sudan People’s Liberation Movement/Army “SPLM/A”.

2 Article 148 (1) inclusive of ICSS.

3 The Commission is the policy-making body of SSACC. Apart from the Commission, there is Management headed by the

Executive Director.

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Under this Act, no corruption offences were created as envisaged by the draft bill. Only some sectionsof the Penal Code Act, 2008 were carved out and assigned to the jurisdiction of the Commission4 . The
Code of Criminal Procedures Act, 2008 as well as the Code of Evidence Act, 2006 remained unchanged.
Matters of procedure and evidence relating to corruption cases are to be determined on the basis of thesetwo pieces of legislation. This proved to be challenging considering that the means and methods of perpetrating corruption have drastically changed, rendering conventional measures of combating crimes obsolete
and inefficient. The few attempts made under Section 27 of SSACC Act to relax procedures and evidentiary requirements added little or no value at all to the measures available to the Commission in addressing
corruption in its various manifestations. Tasking SSACC with investigations and assigning prosecution of
the same to a different agency compounded the challenges faced by the Commission.
To address some of these challenges the Commission advocated for reforms to the legal frameworkwith the view of achieving effectiveness and efficiency in its methods of work. The review of the constitution after independence came in handy for the Commission. Its efforts culminated in the addition of prosecutorial powers to the existing mandate5
To operationalize the new mandate and address the challenges it had faced under the previous legal
dispensation, SSACC developed a bill6 and pushed it forward for enactment. The Bill is currently with the
Ministry of Justice undergoing review and scrutiny before being transmitted for adoption and enactment.
The Bill is in essence an amalgamation of pieces of legislation. It is divided into parts with each part
dedicated to address a different aspect of the Bill. Issues of establishment, corruption and financial crimes,
whistle-blowers and witness protection, evidence and procedures, prosecution of corruption crimes andadequate investigative powers have been addressed with elaboration. The Bill benefited from wide consultations among different stakeholders inside7 and outside the country8 . It tried to adopt and adapt international best practices in curbing corruption. It is yet to be seen how the Bill will pass the test of enactment.

III. UNCAC APPLICATION IN SOUTH SUDAN
South Sudan acceded9 to the United Nations Convention Against Corruption “UNCAC” in November,2013. UNCAC entered into force for South Sudan on 22 February 201510 . However, South Sudan is yet tocarry out necessary formalities to ensure compliance with its obligations under this convention. A self-assessment exercise to identify gaps and adopt measures of addressing same is still under consideration. A
multi-disciplinary task force is envisioned to be established soon to carry out a gap analysis exercise andrecommend appropriate legal, institutional and administrative reforms necessary to meet South Sudan’s obligations under UNCAC.

IV. CORRUPTION DETECTION MECHANISMS
In generating corruption reports SSACC adopts a variety of approaches. These include face-to-facereporting 11, statutory reports by public officials 12 , open media sources 13 , official reports 14 , official
databases15 , anonymous reporting, intelligence production, complaint boxes and inter-agency information
sharing.
4 See the definition of Corruption under Section 5 of SSACC Act, 2009.

5 Article 144(1)(b) of the Transitional Constitution of the Republic of South Sudan, 2011 (TCRSS).
6 South Sudan Anti-Corruption Corruption Bill, 2011.

7 Governmental agencies as well as civil society organizations.
8 Some sisterly countries and UNODC.

9 South Sudan Instrument of Accession, dated 27 November, 2013.

10 United Nations Secretary General letter number: C.N.65.2015.TREATIES-XVIII.14 (Depository Notification), dated 26

January 2015

11 There are “Corruption Reporting Guidelines” to guide the prospective corruption reporters on what and how to reportcorruption allegations.
12 The “Duty to Report” Section 34 of SSACC Act, 2009 obligates public officials who have knowledge of corrupt practices
to report the same to the Commission. Failure to report constitutes an offence punishable with imprisonment, fine or both.
13 Including newspapers and social media.
14 Such as audit report and periodic institutional reports produced by public and private agencies.

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A person who reports a proven corrupt practice to the Commission is immune from any prosecution
arising form that report16 . However, if the corruption report turned out to be false, frivolous or groundless,then the person making such a report commits an offence and shall, on conviction, be sentenced to imprisonment, fine or both17.
As per SSACC experience, corruption complaints raised through face-to-face interaction seem to carry
the day in terms of volume. This is made possible in part because of the widespread geographical scope of
SSACC. SSACC is present in each and every capital town of the ten states of South Sudan. Just to give an
example, in 2010 sixty-six corruption allegations were reported to the Commission. Out of this number, 51(77%) cases were reported face-to-face18 .

V. WHISTLE-BLOWERS AND WITNESS PROTECTION MEASURES
To safeguard and cushion informers and witnesses of corruption practices from reprisals, the SSACC
Act has adopted a provision clothing this category with immunity from actions or proceedings against
them, disciplinary actions included, provided they acted in good faith19. This sounds simple and straightforward. However, in practice it sounds different. In a practical example of this provision SSACC found itself
helpless with little or no guidance. A public servant reported a case to SSACC which the later believed tohave been made in good faith. One way or the other the person against which the report was filed andwho happened to be the direct supervisor of the reporter unveiled the identity of the reporter. He took disciplinary measures against the reporter. SSACC believed that the charges against the reporter wereconcocted just to punish him for having reported to the Commission. With this conviction in mind, SSACC
wrote to the supervisor asking him to reverse the action taken against the reporter, but to no avail. Withno guidance regarding the binding effect of its decisions in such a situation SSACC watched helplessly
while the reporter regrettably suffered under the weight of stiff sanctions imposed upon him in what heand SSACC believed to be retaliation. SSACC needs to seal such loopholes by legislative reform or
adopting policies and innovative measures to counteract such and similar challenges.
Section 47 empowered the Commission to make such rules and regulations as may be necessary forthe effective and efficient implementation of the provisions of the SSACC Act. It is envisaged that this will
enable the Commission to fill in the gaps that are left under this Act. Practical matters such as physicalsecurity of the informers and witnesses as well as relocation and change of identity, if the need be, arepart of the bigger picture contemplated under these arrangements.
However, as is the case with most if not all matters under the SSACC Act, these provisions are yet to
be tested through case law. Lack of vibrancy in challenging the Commission’s acts and omissions coupledwith lack of dedicated corruption adjudication tribunals partly contributes to this state of affairs20 .

VI. INVESTIGATION TECHNIQUES
Investigation of corruption offences in South Sudan follows the normal criminal procedures. The use of
special investigative techniques is constrained by both legal parameters and technical capacity of theagencies involved in the fight against corruption.
In terms of the legal framework SSACC Act gives little guidance on the use of innovative techniquessuch as wiretapping, bugging, undercover operations and computer software. There is no specific mentionof the use of such measures in the SSACC Act. However, Section 27(1) of this Act gave Chairs of an Investigation Committee latitude in deciding the manner of conduct of investigation of corruption allegations.
15 Examples include the assets and liabilities declaration database, official registries such as the registry of land titles andthe companies registry.
16 Section 34 (2) of SSACC Act, 2009.
17 Section 34 (4) of SSACC Act, 2009.
18 Source: South Sudan Anti-Corruption Commission Annual Report 2010.
19 Section 44 (a) of SSACC Act, 2009.
20 Corruption offences are treated like any other criminal offences in terms of criminal procedures. There are no special
provisions. The Code of Criminal Procedures Act, 2008 applies in all cases of corruption investigation, prosecution and adjudication.

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This discretion is subject to fairness and cost effectiveness as shall be directed by rules and regulations
under this Act 21.
In the absence of specific rules for investigation, Section 8 of the Code of Criminal Procedures Act,
2008 “CCPA” mandates the use of its provisions in the conduct of investigations. Under the CCPA, intrusive
measures against privacy and property are strictly regulated. A warrant is required from either the Public
Prosecutions Attorney or a judge in the absence of the Public Prosecutions Attorney. If the prescribed procedures are followed and a chain of custody is observed, the evidence acquired through such techniques is
admissible.
Proactive measures of investigation such as sting operations are vital in disrupting corruption andexposing it. Section 25 of the SSACC Act gives it the power to initiate proactive investigations if it “...has areasonable suspicion that a corruption offense has been or is about to be committed...” Although there is no
specific mention of certain measures, the Commission has always employed sting operations as part of its
available tools to investigate corruption. Unfortunately, the cases in which this tool was used were resolved
administratively. Again it is yet to be known how the courts will react to their use.
Wisdom dictates that “prevention is better than cure”. With this in mind SSACC has always strived tocatch up if not be ahead of corruption perpetrators. Corruption has developed in nature and means of its
commission. ‘Traditional’ ways of combating it are rendered less and less effective with the passage oftime. SSACC is therefore committed to adopting the international best practices that have proven toughon corruption. Sting operations and controlled delivery are among the options on the table.
Technical arrangements pose a great challenge. SSACC is ill equipped to make proper use of themeasures which require high-tech capacity. Relevant equipment and appropriate training are lacking, andthis funnels into poor-quality and delayed investigations. SSACC experience with investigation of corruption offences has shown that there still is a big space ahead to cover before ushering in quality and timely
investigations. The time frame of instigating corruption cases ranges depending on the complexity of thecase and availability of pertinent resources. Some cases have taken less than a month to complete whileothers took more than a year.
To overcome this SSACC had invested in personnel and institutional capacity building in addition tolegislative reforms. Study tours and exposure of its staff to the international best practices is one of thetools SSACC has adopted to inform its actions and legal framework. This training opportunity comes at an
opportune time for SSACC. It is believed that the knowledge acquired from such a high-level gathering ofacademicians and practitioners with a wide range of knowledge and experience would enrich SSACC’s
endeavour to better position itself in the fight against corruption.

VII. PROSECUTION OF CORRUPTION AND RELATED CASES
Under ICSS and the SSACC Act the Director of Public Prosecutions in the Ministry undertakes theprosecution of corruption cases investigated by SSACC. These two laws are silent regarding the role of
the Commission in the prosecution of cases it investigated. In case of absence of the Prosecution Attorney,
the Police are assigned by Section 183 of the CCPA to conduct prosecution.
Public Prosecutions Attorneys enjoy great latitude in bringing or sustaining prosecutions. Section 217 of
the CCPA empowers the prosecution to withdraw charges when it considers that there are no sufficientgrounds. More so, practice has shown that the Minister of Justice enjoys discretion transcending the availability of sufficient evidence to make prosecution of the accused more likely than not. In some cases, theMinister of Justice has withheld his intervention or indeed carried on with prosecution when he is of theopinion that public interest so dictates. This far-reaching discretion with limited or no check and balance.
More interestingly SSACC invoked public interest to ask the President of the Republic to stop prosecution
against a person accused of corruption.

21 Section 47 gives the Commission the power to make rules and regulations for the efficient and effective implementationof the Act. But so far no rules and regulations have been adopted by the Commission.

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With the new legal dispensation under ICSS, SSACC is entrusted with prosecution of corruption cases.
In the pending enabling act, SSACC tried to address practical issues it faced including matters of discretion in prosecution. Indeed, in preparation SSACC has developed a prosecution policy highlighting its standon the same. The official adoption of the Prosecution Manual which incorporates this policy is just awaiting
the enactment of the Bill.
Production of concrete data has always been a challenge. This is partly because prosecution of corruption cases under the current legal framework rests with the office of the Director of Public Prosecutions(DPP). Experience of the cases so far submitted by SSACC to the office of the DPP suggests that SSACC
has no role to play after submitting the case. This has made it almost impossible to know whether its recommendations for prosecution have been accepted or rejected by the DPP. More so, there are no mechanisms in place to enable SSACC to update its records of cases submitted to the DPP office.
The CCPA provides for immunity for accomplices in cases exclusively triable by the High Court orpunishable by imprisonment for a term which may extend to seven years. Section 199 of the act underreview determines the Public Prosecutions Attorney to be the relevant authority to tender the pardon.
The finding as to whether the accused has complied with the terms of the pardon is an exclusive prerogative of the Court trying the case. In case of affirmative compliance, the accused may be acquitted.
Plea bargaining is not yet an option for prosecutors under the existing criminal justice legal framework.
It will need a serious construction of the legal framework to argue for plea bargaining. However, the goodnews is that plea bargaining is one of the tools the Bill has suggested for prosecution of corruption. It ispremature at this stage to discuss how it will play out in practice as the Bill is still being considered forenactment. With the strong political will demonstrated by the leadership of the country and wide support
for the effective combating of corruption from the general masses and civil society organizations as well as
the development partners, hopes are high that this time around South Sudan may have a strong legal
framework to effectively and efficiently fight corruption.

VIII. TRIAL PROCEDURES IN CORRUPTION CASESSouth Sudan is largely a common law jurisdiction; its trial system is adversarial. It is not quite clear
though how this dispensation affects speedy trials. However, many other factors have a negative bearing
on the time it takes to determine a case before the criminal courts in South Sudan. Chief among these are:the huge case load, limited number of judges and limited training, especially training on adjudication ofcorruption case. As a remedy SSACC in its Strategic Plan has provided for training of judges22 as part ofcapacity building for the staff, institutions and agencies engaged in combating corruption.
CCPA dictates a certain threshold of evidence to prevail in criminal cases. Section 6(b) of this Act stipulates that “every accused person is presumed innocent until his or her guilt is proved beyond any reasonable doubt”. This has made it extremely difficult to obtain convictions in corruption cases as methods ofperpetrating corruption have outmatched the traditional investigative techniques. The new measures introduced by the Bill are partly meant to increase the rate of conviction through relaxing the evidentiary
threshold, especially in non-conviction-based asset recovery and an explained asset forfeiture.
Trial procedures for criminal cases including corruption adjudication are arranged in a way to identify
issues and ascertain evidence in support of the charges being preferred against the suspect. It is imperative to charge suspects before arraignment in courts of law. This is only possible through weighing
evidence and ensure prospects of conviction before venturing into trial. All these procedures are done at
the investigations stage under the guidance of the Public Prosecutions Attorney.
The importance of witnesses in successful anti-corruption cases cannot be underestimated. With this inmind the relevant legal framework in the country has attempted to create an environment conducive for
willful and effective engagement for persons who have witnessed or taken part in corruption. Blanket
immunity is found in Section 44 of the SSACC Act, which shields informers and witnesses from legal
actions or proceedings. On a practical note, anonymous reporting is acceptable and encouraged. However,
22 South Sudan Anti-Corruption Strategic Plan: Key Objective 2(7)(h).

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the potential of these measures is underutilized. Lack of elaborate guidance as well as non-availability ofmaterial resources to support these measures, stands as an obstacle in the face of their potential.

IX. GOOD PRACTICES
It is a widely held conviction that corruption leaves no stone unturned in its quest to control each andevery possible resource of the community. In a baseline corruption survey conducted by SSACC in 2010 it
was never a surprise for the findings to reveal that corruption is prevalent and that no sector of theeconomy or section of the community is immune from its scourge. More so, the anti-corruption model
adopted by South Sudan is a multi-agency model under which different aspects of the fight against corruption are assigned to different agencies. In South Sudan, no one agency controls the fight against corruption.
However, SSACC plays a central role in streamlining efforts and synergizing plans and actions geared
towards it. To discharge this role SSACC has made it a Strategic target to forge partnership working withall the stakeholders and role players domestically and beyond our boarders23 . At the top of these stakeholders is the private sector. SSACC acknowledges that the private sector can act as passive or active
agents of corruption, or they can they can ensure healthy competition based on ethical criteria making
them a determining factor in the pursuit of effective anti-corruption policies. With this in mind SSACC has
actively engaged the private sector in an awareness creation programme as well as building their capacity
to tackle corruption in their back yards. Moreover, SSACC has in the Bill introduced debarment and theliability of legal persons for acts of corruption. These measures are meant to instill integrity in thebusiness community and enlisting it in the combat of corruption.
To compliment these measures SSACC is set to rejuvenate its engagement with the civil society. Fortunately, more and more entities are showing interest in the fight against corruption. Monitoring public
transactions and naming and shaming is one of such area. It is no longer a business as usual for businesses
to indulge in corruption, especially in public contracts. A new and keen eye is watching over.
As proceeds of corruption often find their way outside the country, South Sudan has been active injoining hands with its global partners in ridding corruption of its benefits and ensuring perpetrators of corruption have no safe haven to hide. On this note SSACC has been proactive in pursuing all avenues of cooperation at the international level. It extended and received assistance using different tools of cooperation.
Chief among these is agency-to-agency cooperation, diplomatic channels and using regional and international networks24 . Recently, and through informal cooperation, South Sudan was able to freeze and later onthrough diplomatic channels retrieve about $8 million.
Despite these success stories, SSACC is still far from utilizing the potential offered by the otheravenues of cooperation. Bilateral and multilateral conventions and domestic mutual legal assistance legislation are but some of the instruments that SSACC needs to consider exploring.

X. EVALUATION AND RECOMMENDATIONS
By way of summary, it is fair to conclude that the criminal justice system in South Sudan still has along distance to cover before achieving effectiveness in combating corruption. In the context of the current
legal and institutional arrangements, corruption is hard to detect and punish. The mandate to combat corruption is scattered among a number of agencies with limited investigative and prosecutorial powers andis poorly equipped to effectively address corruption. Most importantly mechanisms to coordinate andstreamline actions are either ineffective or, to put it mildly, not made use of. Each agency seems to beworking in isolation from the others. This is true for SSACC, the Ministry of Justice, the Police as well as
the Financial Intelligence Unit (FIU) and the rest of the agencies with the mandate to combat corruption
in one way or the other. This fact has mutilated anti-corruption interventions.
To add salt to the injury, proper mechanisms in terms of legal and policy frameworks to cultivate andsustain public–private partnership on the one hand and between domestic and international partners on
the other hand are still in their infancy stage. Corruption is continuously evolving and mutating, attacking
23 South Sudan Strategy, 2010: Strategic Goal no 5, page 38.

24 SSACC is an active member of IAACA EAAACA and its offspring, ARIN EA, just to mention a few examples.

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every individual person, country or section of the community. Going after it alone without support andaction form others makes it difficult if not impossible to bring under control. Sadly enough this seems to be
how corruption is being tackled in South Sudan.
To overcome some of these challenges an overhaul of the criminal justice system in respect of the way
it tackles corruption is strongly called for. Measures to consider include:⿟⿟ Corruption methods are diverse and ever changing. It is therefore imperative to be innovative inthe measures of addressing it. Fortunately, enough international good practices are there as
guidance. In the context of South Sudan corruption is treated ordinarily. This has to change. It istime to acknowledge that corruption is a special crime with huge, devastating effect on different
aspects of life. Legislative measures must be put in place to deal with all its manifestations, forms
and effects. Corruption should not pay. Rather it should inflict harm on those who perpetrate it.
With this in mind South Sudan should consider expanding the criminalization of corruption. New
offences should be created to seal much if not all possible loopholes in the current legislation.
Examples include criminalizing illicit enrichment.
⿟⿟ Make corruption easy to detect, investigate and prosecute. Measures that should be considered
include relaxing the evidentiary threshold, giving the law enforcement agencies relevant powers
to collect evidence and preserve the value of criminal assets. The current SSACC falls short ofenabling the Commission to arrest suspects, seize evidence and present or make ex-party application with the view of preventing the suspect from dissipating assets if he or she catches wind orin one way or the other is alerted on investigations.
⿟⿟ Invest in capacity building for staff and institutions involved in combating corruption.
⿟⿟ Corruption touches everyone. Absolutely it affects all, individuals and sections of sections of thecommunity. It is far reaching in devastation. International borders are no barrier to corruption.
Joint and collective efforts internally and regionally are therefore vital if controlling corruption issomething to go by. The current legal and policy framework in South Sudan fall short of robustly
tackling corruption. National mutual legal assistance legislation, acceding to relevant regional andinternational instruments, and joining more anti-corruption networks domestically, regionally andinternationally.
List of References: ＊25
1. Declaration of Assets, Income and Liabilities, South Sudan Anti-Corruption Commission.
2. Reporting Corruption: Operational Guidelines, published by SSACC, 2010.
3. South Sudan Anti-Corruption Action Plan, 2010–2014, South Sudan Anti-Corruption Commission, 2010.
4. South Sudan Anti-Corruption Commission Act, 2009, Laws of South Sudan.
5. South Sudan Anti-Corruption Strategy 2010–2014, South Sudan Anti-Corruption Commission, 2010.
6. The Code of Criminal Procedures Act, 2006, Laws of South Sudan.
7. The Code of Evidence Act, 2006, Laws of South Sudan.
8. The Interim Constitution of Southern Sudan, 2005.
9. The Transitional Constitution of the Republic of South Sudan, 2011.
10. The Penal Code Act, 2008, Laws of South Sudan.
25 Laws mentioned herein are accessible at the South Sudan Ministry of Justice website.

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