Republic of South Sudan Law Guide

SOUTH SUDAN MEDIA LAW GUIDE

Last reviewed – 12 May 2026

Contributors: Rachel Atim Louis Tanda (Senior Associate, Centurion Law Group)

Introduction

South Sudan may be considered as a country partly applying common law system, however there is no express provision of any legislation that expressly supports this proposition.

The Transitional Constitution 2011 and its Amendments are silent on this issue. In practice, however, the current laws have largely borrowed from common law jurisdictions¹. Judges in South Sudan apply the doctrine of precedents selectively: several judges rely on precedents and apply the same, whereas others do not. There is no explicit legislation that requires the judges to do so, but they generally do so as good practice to ensure that a just result is achieved.

Article 5 of the Transitional Constitution as amended lists the sources of legislation as follows: the Constitution, written law, the customs and traditions of the people, the will of the population and any other relevant sources.

This article focuses on criminal and civil proceedings before the courts of judicature in South Sudan.

Criminal proceedings are guided by the Penal Code 2008 which describes various offences and their penalties. The Code of Criminal Procedures Act 2008 outlines the associated procedural rules, including pre-trial procedures.

Defamation

Defamation is a criminal offence in South Sudan, which can form the basis of both criminal or civil proceedings.

The Meaning of Defamation in South Sudan

There is no express statutory definition of the concept of “defamation” in South Sudan beyond the provisions of the Penal Code referred to below. However, the word defamation is driven from the Latin word ‘diffamare’, meaning spreading an evil report about someone. Thus, defamation refers to causing damage to reputation of another. To find such a definition, it is therefore necessary to refer to the definitions adopted in other jurisdictions.

Criminal defamation describes the situation where defamation is an offence under the criminal law of the state. It falls under the scope of the Criminal Procedure Act, and it is governed by the Penal Code Act 2008. In such circumstances, an alleged offence of defamation will normally be charged by state prosecutors and tried in the criminal justice system, with the possibility of a sentence of imprisonment being imposed upon conviction.

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¹ A good example is the Companies Act 2012, which is largely similar to the Companies Act of Kenya and Uganda (these being two neighbouring countries that have a common law system).

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Even systems that retain an offence of criminal defamation usually also have the possibility of litigating defamation through a civil suit. In that context, defamation is construed as a civil wrong or tort. In this situation, whether an individual has been defamed is determined by way of private proceedings brought before the civil courts. If the courts find that the tort defamation is proved, the remedies that can be ordered include monetary compensation or other remedies such as the publication of a correction or apology. Pursuant to section 26 of the Civil Procedures Act 2007, defamation proceedings must be issued before the court within whose jurisdiction the wrong was committed or before the court within whose jurisdiction the defendant resides or conducts business.

The Legal Framework on Defamation in South Sudan

Defamation being primarily a criminal offence in South Sudan, the legal framework is found in the Penal Code Act 2008. The key provisions thereof are as follows:

• Section 289(1) defines the circumstances in which the criminal offence will arise. This covers the publication of words (whether spoken, reproduced by any mechanical means, or written and intended to be read, or published by way of gestures or by visible representations) which make or publish an imputation concerning a person, with intent to harm or with the knowledge or having reason to believe that such imputation will harm the reputation of such person, with a view to defame that person. The exceptions to this regime are set out below.
• Section 289(2) outlines the associated sentence. Whoever, defames another person commits an offence and upon conviction, shall be sentenced to imprisonment for a term not exceeding two years or with a fine or with both.
• Section 289(3) sets out the defences to the offence defined in Section 289(1), which are as follows:

1. 1. to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published; provided that, whether or not it is for the public good is a question of fact;
   2. to express in good faith any opinion whatsoever with respect to the conduct of a public servant in the discharge of his or her public functions or with respect to his or her character, insofar as it relates to conduct undertaken in the context of their public functions;
   3. to express in good faith any opinion whatsoever relating to the conduct or character of any person that relates to a matter of public interest;
   4. to publish a substantially true report of the proceedings of a Court or of the outcome thereof;
   5. to express in good faith any opinion whatsoever with respect to the merits of any case civil or criminal which has been decided by a Court or with respect to the conduct of any person as a party, witness or agent in any such case or with respect to the character of such person as far as it relates to that conduct and no further;
   6. to express in good faith any opinion with respect to the merits of any performance which its author has submitted to the judgment of the public or with respect to the character of the author so far as it relates to such performance and no further;
   7. to refer in good faith to an accusation against any person by any of those who have lawful authority over that person with respect to the subject matter of accusation;
   8. to make in good faith an imputation about the character of another person for the protection of the interests of the person making it or for the protection of the interests of any other person or for the public good;
   9. where a person who has authority over another (either conferred by law or arising out of a lawful contract made with that other person), to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates;
   10. to convey a caution² in good faith to one person against another provided that such caution be intended for the good of the person to whom it is conveyed or of some person in whom that person is interested or for the public good; and
   11. any defence that would be available under the general civil rules in civil proceedings for defamation brought under section 26 of the Civil Procedures Act 2007, arising out of the same publication of the same statement.

• Section 290 outlines four factors to be taken into account by a court in deciding whether a person has caused harm to another person’s reputation that is sufficiently serious to constitute the offence of criminal defamation, in addition to any others that are relevant to a particular case:

1. 1. the extent to which the accused has persisted with the allegations made in the statement;
   2. the extravagance and seriousness of any allegations made in the statement;
   3. the nature and extent of publication of the statement; and
   4. whether and to what extent the interests of the State or any community have been detrimentally affected by the publication.

• Sections 291 and 292 also criminalise the conduct of third parties involved, respectively, in the publication and sale of defamatory materials. Section 291 refers to the individual knowing or having good reason to believe that the materials were defamatory. Section 292 refers only to knowledge that the material was defamatory. In both cases, such conduct is subject to imprisonment for a term not exceeding two years and/or a fine.

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² In this context, “caution” must be understood as a careful judgment or warning.

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Privacy and Data Protection

Regarding the right to privacy, South Sudan has ratified the International Convention on Civil and Political Rights (ICCPR) whose Article 17 protects the right to privacy, as well as the African Charter on Human and Peoples Rights, which protects for the right to respect one’s dignity including the right to privacy under Article 5. Article 22 of South Sudan’s Transitional Constitution 2011 expressly protects the right to privacy.

South Sudan currently has no freestanding data protection legislation, and it is not a signatory to the African Union Convention on Cyber Security and Personal Data Protection. However, Article 32 of the Transitional Constitution establishes a right of access to information unless it would compromise the privacy of another individual.

These rights are curtailed by another piece of legislation intended to address cybercrimes. The Cybercrimes and Computer Misuse Order (“the Order”) extends the jurisdiction to prosecute cybercrimes to cover offences committed in or outside the country against citizens and the South Sudan state. It seeks to protect children against child pornography (section 23 and 24), and provides for prevention of trafficking in persons (section 30) and drugs (section 31). It establishes judicial oversight especially over the use of forensic tools to collect evidence, with section 10 of the order requiring authorisation by a competent court prior to collecting such evidence.

However, the Order is largely regressive of citizens’ rights including freedom of expression, access to information, and the right to privacy:

• It includes overly broad definitions including of “computer misuse,” “indecent content,” “pornography,” and “publication” which are so ambiguous and wide in scope that they could be used by the state to target government opponents, dissidents and critics. The definitions largely limit the use of electronic gadgets and curtail the exercise of freedom of expression and access to information.
• Section 6 of the Order is, on the face of it, trying to reach a commendable objective of imposing an obligation on service providers to store information relating to communications, including personal data and traffic data of subscribers, for 180 days (a period far shorter compared to other countries). In practice, however, the personal data of individuals is still potentially at risk. This section requires service providers and their agents to put in place technical capabilities to enable law enforcement agencies to monitor compliance with the Order. With no specific data protection law in South Sudan and without making a commitment to the leading regional instrument, the African Union Convention on Cyber Security and Personal Data Protection, this is a real threat to the privacy of the citizens of South Sudan.
• The section on offences and penalties is also problematic.
  • Insofar as penalties are concerned, there is a lack of specificity regarding the fines which can be imposed.
  • Insofar as offences are concerned, some of the offences established in the Order potentially curtail freedom of expression and the right to information. For instance, the offence of spamming under section 21 of the Order could be interpreted to include all communications through online platforms including social media platforms like Facebook and WhatsApp. Under this provision, virtually all individuals who forward messages on social media stand the risk of prosecution. This has a chilling effect on freedom of expression and the right to information. The offence of offensive communication under section 25 of the Order has a potential similar effect. A similar provision in Ugandan legislation (section 25 of the Computer Misuse Act 2011) has been widely misused to persecute and silence political critics and dissidents. Section 25 of the South Sudan Cybercrimes Order could be used in a similar manner to target government critics and dissidents, including in the media.

The Collaboration on International ICT Policy for East and Southern Africa (CIPESA) monitors digital rights in Sudan. In its analysis of the Order, CIPESA calls for specific actions to be implemented to ensure that the rules effectively prevent of cybercrime without harming online rights and freedoms. These include requests for:

• Deletion of problematic definitions or provisions from the Order.
• Enactment of a specific data protection law to guarantee the protection of data of individuals.
• Urgent drafting of rules and regulations to prescribe the procedures for implementing the Order.
• Ratification of the African Union Convention on Cyber Security and Personal Data Protection.
• Ensuring that service providers should not be compelled to disclose their subscribers’ information to law enforcement agencies except on the basis of a court order.
• Amendment of the Order to emphasise the oversight role of courts during the processes of access, inspection, seizure, collection and preservation of data or tracking of data under section 9.