The Laxity of Judiciary in South Sudan
By Samuel Reech Mayen, Kampala, Uganda
June 17, 2015 (SSB) — It is not only lack of laws, which is a problem, but existing laws can also be ignored. In the laws of South Sudan specifically the Criminal Procedure Act, the hierarchy of the criminal courts is clearly stipulated. From the uppermost to the lowest, these courts are; Supreme Court, Courts of Appeal, High Courts, First Class County Magistrate courts, Second Class County Magistrate Courts and lastly, the Payam Courts.
Each of these courts has clear jurisdictions provided by the Act. The high court has unlimited Jurisdiction but the other courts below it are restricted base on the possible penalty that a crime carries. This means County courts and payam courts have limited jurisdictions. The appeals Court and the Supreme court mostly hear appellate cases.
Below the Payam Court is a Traditional Authority Bench Court whose roles are not provided by the Act. These Bench Courts which are run by the Chiefs who do not have legal trainings are impliedly understood to hear minor disputes among the parties. These chiefs’ courts played great role in the administration of justice in South Sudan societies for time immemorial. They used to try both civil and criminal matters, as there were no established statutory courts. It must be stressed that the chiefs lacked substantial procedures in managing the affairs of the courts.
During the South Sudan interim period, most laws were enacted. These laws give much power to the statutory courts leaving the customary court with lesser powers. This is on the basis of lack of legal expertise of the chiefs who are the judges of the customary courts. It was argued that chiefs’ courts cannot handle serious crime as they only apply customary laws that are not codified.
Shockingly, these traditional courts are still involved in hearing some of the most serious crimes that should only be handled by the High court which are found at the states headquarters. With this unconstitutional practice, it is hard to ascertain whether the justice of the victims of crime is adequately met.
If the County court cannot try murder cases, why should the Chiefs’ courts try such cases? The manner of handling criminal cases is complex and requires legal experts for both the victim and the defendant. This involves argument before the courts in the most sophisticated legal terms. This constitutionally required phenomenon is not realized when the chiefs are the judges as they do not appreciate the purpose of the lawyers argument on behalf of their clients.
Secondly, Criminal cases are supposed to be prosecuted by the Public attorneys. Crime is legally defined as an offence against the State. On this basis, the prosecutor shoulders the responsibility to prove the accused guilty beyond reasonable doubt. However, before this bunch of traditional authority, it is the relative of the deceased that shoulders the burden to prove the accused guilty. This legal obligation is hardly understood by both the court and the relative of the deceased who become the prosecutor.
Thirdly, the traditional authority focuses much on compensation rather than punishment making criminal cases more of civil issues. With this notion, the justice is not efficiently served. To make the matter worst, the cows or the money for blood compensation is contributed by the clan of the accused. The accused goes back to the community with a punishment less proportional to the crime committed.
Since the South Sudanese laws provide for death penalty on the most serious cases including murder, relatives of the deceased always petition the court to pass death penalty against the accused. On the other hand, the court does not have jurisdiction to pass death penalty but forces parties to accept blood compensation. This compensation rarely satisfies the relative of the deceased who may opt to retaliate.
With the laxity of the High court to try cases that can’t be tried by the lower courts and the unnecessary competition by the customary courts to exploit this slackness, justice is compromised. The Traditional Authority is not legally bound to take over cases from the high court.
To address these unconstitutional practices, it is important that the Judiciary and the Department of Public Prosecution review the reasons that lead the traditional authorities to encroach into the duties of the legal experts. The Directorate of Public Prosecution needs to have a prosecutor in every county to advice the police and submit the cases to the relevant courts. The government needs to clearly define the roles of the chiefs so that they don’t do what does not fall under their duties.
Finally, the judiciary needs to have a legally required number of judges to meet the principle of speedy trial in all the counties. Some cases are taken to the traditional authority as a last resort because the judges are not in some counties to try cases and advice the other partners in the criminal Justice system. This can be stopped by the present of judges in their location of duty. It is important to motivate these judges by providing them with basic needs such as good accommodation to ensure their comfort in the remote areas.
The author lives in Kampala and can be reached at: mayenreech@gmail.com
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