The reported denial of timely and confidential access between the suspended First Vice President, Dr. Riek Machar Teny, his co-accused, and their legal representatives raises serious concerns about the rule of law. If legal counsel has been prevented from consulting privately with their clients despite judicial directions, such conduct is incompatible with the constitutional guarantees of a fair trial and undermines public confidence in the administration of justice.
The right of every accused person to communicate freely, confidentially, and without unreasonable interference with counsel of their own choosing is not a privilege granted at the discretion of security agencies. It is a constitutional guarantee and a universally recognised component of due process. The executive branch and its security organs remain subject to judicial authority and must comply promptly with lawful court orders governing access to accused persons.
Article 19 of the Transitional Constitution of the Republic of South Sudan, 2011 guarantees the right to a fair hearing and the right of every accused person to be defended by a lawyer of his or her own choosing. The Code of Criminal Procedure Act, 2008 likewise protects the right of legal representatives to consult their clients in preparing a defence. These domestic guarantees are reinforced by Article 7(1)(c) of the African Charter on Human and Peoples’ Rights, Article 14(3)(b) of the International Covenant on Civil and Political Rights (ICCPR), the African Commission’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, the United Nations Basic Principles on the Role of Lawyers (1990), and Principle 18 of the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
International and regional jurisprudence consistently recognises that effective legal representation requires prompt, regular, confidential, and unhindered communication between lawyers and their clients. In Constitutional Rights Project v. Nigeria, Communication No. 60/91 (African Commission on Human and Peoples’ Rights, 1995), the Commission held that denying detainees access to legal counsel violated Article 7 of the African Charter. In Monim Elgak, Osman Hummeida and Amir Suliman v. Sudan, Communication No. 379/09 (ACHPR, 2014), the Commission reaffirmed that unrestricted and confidential communication between lawyers and detainees is an essential safeguard against abuse. Similarly, in Öcalan v. Turkey (Application No. 46221/99, European Court of Human Rights, Grand Chamber, 2005), the Court emphasised that unjustified restrictions on access to legal counsel fundamentally impair the right to a fair trial.
The United Nations Human Rights Committee reached the same conclusion in Conteris v. Uruguay, Communication No. 139/1983 (1985), holding that Article 14(3)(b) of the ICCPR requires states to provide adequate facilities for confidential communication with defence counsel. Where a court has directed that counsel be granted access, compliance is not optional. Judicial orders bind all public authorities, including security agencies. Any unjustified interference with lawful legal consultations risks delaying proceedings, undermining judicial independence, and compromising the fairness and credibility of the criminal process.
If restrictions on access to legal counsel are ultimately established before a competent court, the legal consequences may include findings that fair trial guarantees were violated, the exclusion of evidence obtained in breach of constitutional safeguards where applicable, appellate review of any resulting conviction, and potential findings of state responsibility under applicable domestic, regional, or international human rights law. Courts assess such consequences based on the facts and the applicable law in each individual case.
The administration of justice must remain independent of executive interference. Respect for judicial authority, constitutional guarantees, and the rights of all accused persons is indispensable to maintaining public confidence in the justice system. Regardless of the identity of the accused or the nature of the charges, the Constitution and the rule of law require criminal proceedings to be conducted fairly, impartially, and in strict compliance with national, regional, and international legal standards. Justice cannot be achieved by weakening due process; it is achieved by faithfully observing it.
The writer,Juol Nhomngek Daniel, is a South Sudanese constitutional lawyer, academic, and political figure. He studied law at Makerere University in Kampala, Uganda. He is an independent legal researcher and constitutional expert and serves as a lecturer and Deputy Dean of the College of Law at Starford International University in Juba. He is also a member of the Sudan People’s Liberation Movement-in-Opposition (SPLM-IO).
The views expressed in ‘opinion’ articles published by Radio Tamazuj are solely those of the writer. The veracity of any claims made is the responsibility of the author, not Radio Tamazuj.
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