A/HRC/40/CRP.1
during their interrogations that their phone calls and communications had routinely been
tapped prior to their arrests.
During some interrogations, a member of the NSS Legal Department is present. The
National Security Service Act provides that the functions of the NSS’s Legal Department
include acting as an ombudsman and ensuring that cases being handled by the service are
expedited and promptly referred to court; attending to complaints within and without the
service and advising on the best practices regarding the constitution and human rights; and
checking excesses of power, receiving and forwarding complaints of employees within the
service to the Complaints Board.410 However, the presence of NSS lawyers during
interrogations does not appear to have ensured that human rights and the Constitution were
respected or to have checked excesses of power. On the contrary, there are cases in which it
appears that members of the NSS Legal Department may themselves have been complicit in
violations of fundamental freedoms.
Furthermore, many detainees reported never even being questioned or investigated at
all during their detention, indicating that there was no effort to follow due process to even
ascertain if those detained might have committed an offence. One witness told the
Commission:
I didn’t find out the reasons for my detention until […] months after I had been
arrested. There were even times when I wished for an interrogation so that I could at
least understand why I had been detained.411
Many witnesses with whom the Commission spoke were unable to answer why they
had been arrested and detained, even with the benefit of hindsight. The fact that they had not
been told why they were arrested so that they could defend themselves weighed heavily on
their minds and came up repeatedly during interviews. One witness to whom the Commission
spoke mused:
I am still trying to figure out how the NSS can detain people for prolonged periods
without taking them to a court of law… I thought that within their laws, the NSS could
only detain a person for 24 hours or something like that before he or she had to be
taken to court… There were even some inmates who had been detained since 2014
without being charged. Then, the NSS simply released them in the market to go out
into the world without knowing why they had been kept there in the first place. 412
4.
Detention Facilities and their Conditions
Witnesses described detention conditions which varied between NSS and SPLA
Military Intelligence detention facilities. However, on the basis of their descriptions, hardly
any of these facilities meet the United Nations’ Standard Minimum Rules for the Treatment
of Prisoners (Nelson Mandela Rules) which provide that “General living conditions
addressed in these rules, including those related to light, ventilation, temperature, sanitation,
nutrition, drinking water, access to open air and physical exercise, personal hygiene, health
care and adequate personal space, shall apply to all prisoners without exception.” 413 The
facilities also failed to meet the standards set out in regional guidance such as Guidelines on
the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa.414 In this regard,
the Commission notes that the Code of Criminal Procedure Act (2008) provides that 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.”415
The Commission has mapped the detention locations discussed below at Figure 3 at
the end of this section.
410
National Security Services Act (2014), section 18(2).
Witness 964, ERN 102148-102171, para. 52.
412 Witness 852, ERN 102054-102080, para. 68.
413 United Nations’ Standard Minimum Rules for the Treatment of Prisoners (2015), Rule 42.
414 African Commission on Human and People’s Rights, Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial
Detention in Africa (2014).
415 Code of Criminal Procedure Act (2008), section 93(5).
411
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