South Sudan Judiciary: An obsolete arm of the Government that needs serious reform
The Impetuses for Transformation and Reform in Leadership and Management of the Judiciary of the Republic of South Sudan
By Tong Kot Kuocnin, Nairobi, Kenya
January 5, 2017 (SSB) — The agreement on the Resolution of the conflict in the Republic of South Sudan mandates a reconstruction of South Sudanese society according to the ideals and values expressed in its preamble and in a host of other related provisions enshrine therein. In this respect the agreement unmistakably conveys its overriding objective to provide a framework to transform South Sudan into a united, democratic and prosperous society founded on human dignity, social justice, human rights and the principles of good governance. Whereas every institution of governance in this country, either in its constitutional design or responsibility, has a duty to oversee these reconstructive reforms, the Judiciary which is the discussing topology of this article occupies a unique place.
This is because the Judiciary is tasked with the important role of interpreting the constitution, finding and giving it meaning where there is contestation, and robustly patrolling its boundaries whenever there are threats. In many respect, therefore, the Judiciary is the ultimate agency that will oversee a successful transitional reforms. For the Judiciary to ably perform this role, it must lift itself out of years of political servitude, low standards of professionalism and interference, wide corruption and delinquent jurisprudence into a position of institutional independence and autonomy that secures public confidence and a jurisprudence of that commands Peer respect.
The use of the term “Reform” in this article suggests administrative, financial, judicial and legal reforms as mandated by the agreement, which through it, south Sudanese wish to fundamentally restructures and re-organize all the institutions of governance. It also conveys an acute sense of urgency by the judiciary that it must heed the call of all South Sudanese to radically change its practices, repugnant norms and structures in order to serve the interests of all in the new democratic order. For the Judiciary, it is clear that reform is necessary to make it the legitimate, effective and independent custodian of justice as mandated by the constitution by subscribing to the principle of separation of powers and the supremacy of the rule of law in accordance with the provisions of the Transitional Constitution of South Sudan, 2011.
The judiciary is required by 126(2)(a) to interpret constitutional provisions in a manner that promotes its purposes, values and principles, advances the rule of law and human right, permits the development of law, and contributes to good governance. Above all, the Judiciary must develop a culture of service that is people-oriented and which respect all South Sudanese irrespective of their status, sex, creed, ethnicity and political affiliation. The Judiciary must appropriately reposition itself to be an engine of societal transformation that responds to the needs of all South Sudanese diverse society.
It is a live that the Judiciary of South Sudan is constitutionally independent but it is a lie that the Judiciary is practically independent because as we speak, it cannot claim neutrality of its decisions and conduct in determining political cases brought before it time and again. These constitutional cases brought to the Supreme Court by other political parties have already been unconstitutionally decided and pronounced which has shown the true teeth of the judiciary headed by Justice Chan Reec Madut. In order to transform itself and be reformed into an effective and independent but accountable branch of government, the judiciary must not only re-organize and restructure its institutional operations, but also wholly embrace the unique responsibilities bestowed upon it by the constitution.
There is need to transform the Judiciary to be an independent but complementary partner with other branches of government and to constructively collaborate with other components of the state to make South Sudan a constitutional democracy founded on the values of rule of law, human dignity, equity, social justice, human rights, transparency and accountability. Transforming courts procedures, processes, organizational culture, and management to re-orient them towards a culture of responsive, friendly and effective service delivery accompanied by an integrated performance management system to ensure accountability, improvement and transparency will be an added asset.
The reforms must also include reordering the judiciary’s administrative and judicial processes to enhance delivery of services, improve the speed of justice and improve access to justice especially for the marginalized and traditionally under-served communities. This will equip the judiciary to develop a robust, indigenous, patriotic and progressive jurisprudence that will give the country direction in dealing with historic perceptions and experiences of marginalization and exclusion and will be aligned to international best practices especially in the area of human rights and enable it to play a constructive role in the consolidation of democracy and contribute to the realization of a united, free, equal and prosperous South Sudan where human rights and freedoms are enjoyed by everyone without discrimination as to sex, ethnicity and political affiliation.
As few disgruntled and immediate beneficiaries of the system felt irritated by my vociferous writings about shortcomings and dysfunctionality of the Judiciary of South Sudan, I deem it crucial not to abandon writing which has invited upon my good self unimaginable threats and intimidation because the great majority of my readership and that of the people who wants reforms and change today not tomorrow are my shield. In this Article, I intend just like the preceding articles to bring to your fore the impetuses that are important if the transformation and reforms in leadership and management of the Judiciary of South Sudan are to triumph.
This is because the important role that the Judiciary plays in advancing and stabilizing modern democracies is a matter of fact since the rule of law is an important determinant of socio-economic development. South Sudan’s judiciary which presumably emerges from decade(s) of ineffective service delivery must steadily remain conscious of its constitutional responsibilities in superintending a new but still fragile social, political and economic transition the country is undergoing since its independence in 2011. South Sudanese voted overwhelmingly for an independent state to establish a free, equal, prosperous and just society where the rule of law reigns.
However, as the war spillover and the agreement was concluded which calls for reforms in the Judiciary, the reform of the Judiciary must be seen as part of the transformation of South Sudanese society commanded and envisaged in the Agreement for the Resolution of the Conflict in South Sudan. The decline in public confidence, the disdain from other arms of government, and the dissipation of internal confidence within the judiciary, are the enduring legacies of the Judiciary’s own historical injustices which are evidence of an institution that hungers for renewal and a complete restoration of its lost constitutional mission and mandate.
The overweening influences of the executive has created an enfeebled judiciary, an arm of government strikingly reluctant to play its classical role in the defence and upholding of the constitutional principle of separation of powers. This has created an institution plagued by both social and administrative corruption and inefficiency causing a veritable figure of scorn at odds with the public interest. It has become an institution marred by crisis of confidence which was supposed to be enjoyed by both litigants and the public at large. These pathologies, however, saw the institution develop toxic insularity and cold insensitivity and internalized privilege and entitlement rather than service to the nation and its people.
It intoned authoritarianism rather than authority, thereby alienating the very public it was meant to serve and ingratiating itself to the very arms it was supposed to check. Hence, creeping dysfunctionality, unprofessionalism and corruption became the immediate result; as well as institutional ignominy, the resultant effect. We have a duty to restore the Judiciary to its rightful constitutional and political place, and forge a new relationship with the public whose duty it exists to serve. The transformation of the Judiciary therefore, must achieve at least three lost objectives: first, it must reset the relationship between judiciary and other arms of government molded on the principle of separation of powers premised on the principle of robust independence and constructive interdependence, where the judiciary will reposition itself as a strong, effective and equal independent arm of government while engaging other agencies in the administration of justice within acceptable confines of the constitution as the grundnorm.
Second, the Judiciary must reorient its organizational culture to customize it with the exigencies of its social realities and its institutional design and leadership style needed to reflect known models of modern management science. Third, and most important, it must emerge and operate as a service entity which serves the people. It must win back public confidence; express itself with such authority and integrity that the public will always respect its opinions and decisions even when they disagree with those opinions and decisions. The Judiciary must recapture public imagination, not through its outdated aristocratic poise and rituals, but through the rigor of its jurisprudence.
It’s obvious that the Judiciary of South Sudan under its current leadership faces a number of challenges with respect to leadership and management. The key ones include chronic under-capacity in leadership and management offices, lack of mentorship from the senior echelon, excessive centralization, and absence of consultancy, privatization and personalization of leadership spaces from the top leadership, clientelism, poor attitudes and ethics, discrimination and ethnicity and a weak culture of professionalism in the management of the courts.
Each leadership and management office such as the offices of the Chief Justice, Deputy Chief Justice, Presidents of the Courts of Appeal, presidents of the High Court and resident Magistrates are supposed to have efficient professional and executive offices designed to support them to deliver their responsibilities. The Judiciary was supposed to standardize offices in all court stations to eliminate the variations and asymmetries that presently exist. In a nutshell however, the primary responsibility for the successful and sustainable transformation of the Judiciary rests with its leadership, management and staff at all levels and in all capacities.
A clear and robust organizational design, a dynamic leadership and management team; and a competent and motivated staff are conditions necessary for a successfully transformed Judiciary. Rest assured that to have these reforms and transformation take place, the Judiciary needs a new face and not Justice Chan Reec under whose leadership the judiciary lost confidence in the public hence creating an enfeeble judiciary, one that has submitted to the Executive arm of government and relegated its independence, neutrality and impartiality.
The Judiciary must be restructured to have these reforms and complete transformation takes place to meet the demands of the public and continue to enjoy respect and command confidence of the people. Under Justice Chan Reec Madut, the Judiciary of South Sudan is an institution designed to fail, so frail in its structures, so low on confidence enjoys by litigants, so weak in its public support that is expected it to deliver justice timely, and so deficient in its integrity. This is the state of the judiciary of South Sudan under the incumbent Chief Justice.
Is the Judiciary of South Sudan in Crisis or Politicized?
In Africa today, many countries pride themselves on Constitutions that glow with hallowed provisions guaranteeing Bill of Rights, rule of law and justice. Very important and quite prominent amongst these provisions are the provisions that guarantee the independence and impartiality of the judiciary upon which the today’s democratic scenario is founded. In this article I shall shed light on two important words which appeared in the heading of this article –judiciary and its politicization. The later, according to Oxford Dictionary, defines “…politicize …” as to cause to become politically aware, to become interested in or active in politics”. Politicization is however frequently used as a derogatory term to describe a process wherein a political label is ascribed to a person or to an issue for instance to politicize an issue or to indoctrinate or to brainwash a person so as to effect a radical transformation of principles held, his/her character, attitudes and beliefs.
The question that immediately arises is: is the judiciary of South Sudan in crisis or politicize? This question stems from the growing public outcry with regards to the performance of the Chief Justice who has been accused many times of having compromise his position as well as the independence and impartiality of the judiciary and the diminishing public trust and confidence bestowed in it as the only institution to uphold and protect constitutional rights in the country. It is true that our judiciary is facing a lot of hurdles in discharging its duties and the most pernicious of these hurdles is that of undue interference or influence in one form or the other. Undue interference with or influence on the judiciary has been outlawed in most African Constitutions, but that notwithstanding, in our world, there is a growing tendency and propensity on the part of the executive to exert political leverage or control over the judiciary; this exercise can come in diverse ways or forms like threats, denigration, deprivation of necessary resources or marginalization.
This happens when politicians in their pursuit to acquire and retain executive and legislative power, they are often tempted to exert political leverage over the judiciary. This is because, to an unscrupulous politician, independence of the judiciary is a stumbling block that hinders his quest for power; this independence is something that needs to be whittled down so that it poses no threat or danger in the exercise of executive or administrative powers of government. I admit that our judiciary is still in an embryonic development as far as democracy is concerned and still evolve to dynamic institution capable of discharging its functions independently and impartially. Our judiciary is at a cross road and a crisis is expected to happens if truly the judiciary stands on its feet and exercise its judicial power of review over executive or administrative acts/decisions or when the courts declare as unconstitutional acts of parliament or ultra vires any ministerial regulation.
In many African countries, the role of the Attorney General is very crucial in ensuring that undue political interference or politicization of the judiciary does not occur because both malpractices can occur openly or behind the scenes but once their occurrence become public knowledge, the government must take active steps to condemn them as per the law. If there is in this country, in the trilateral relationship to other organs of the state, it is the judiciary that is weak, timid and secretly politicizes where the executive has naturally gains supremacy and has managed to manipulate the judiciary for political ends with regards to constitutional matters before the judiciary more particularly the constitutional panel within the supreme court.
Politicization of the judiciary can never be justified regardless of the popularity or goodness of motive because the main objective of the party politics is to gain executive and legislative power under the constitution; and to seek to manipulate and draw the judiciary into the murky puddle of politicking which is both unconstitutional and immoral, this is so because the function of the judiciary is not to gain executive or legislative power but to administer justice according to law under the constitution impartially, without fear, favour or prejudice. This is because justice and politics are often not in harmonical consonance or unison. Judges are trained in the law, politicians need no training; it is often dog-eat-dog scenario.
When high profile political cases that come before the judges it leave or put them in no-win quandary. If the decision of the judges favour the ruling government, the judges are castigated as executive-minded and biased but if the decision of favors the opposition like the current case brought before the constitutional panel of the Supreme Court presided over by the Chief Justice by the alliance of opposition political parties, the judges are labeled as anti-government or incompetent. In the next discussion, I shall discuss how politicization of the judiciary can occur, how can politicization of the judiciary can be tackled and the dangers of politicizing the judiciary.
How Politicization of the Judiciary can occur
In the proceeding part of this article, I shed lights on the politicization of the judiciary and its independence as per the provisions of article 124(1), (5), (6) & (7) of the Transitional Constitution of the Republic of South Sudan, 2011. In this subsequent part, I intend to look at how politicization of the judiciary can occur. In many constitutions in Africa and world over, the executive plays an important role in the appointment of judges and especially the Chief Justice. In Lesotho for instance section 120(1) of the constitution stipulates that: The Chief Justice shall be appointed by the King acting in accordance with the advice of the Prime Minister. This is because the Prime Minister being the head of the executive and leader of the ruling political party has the prerogative in advising the King as to who is to be appointed Chief Justice, a crux which smacks off party politics and become a contentious issue in certain way.
In South Sudan, Article 133(1) of the Transitional Constitution gives powers to the president of the Republic to appoint Chief Justice and 133(2) empowers the president to appoint Deputy Chief Justice and Justices of the supreme court, justices of the court of appeal and judges of the High Court having competence, integrity, credibility and impartiality in accordance with the constitution and the law. This is because he (president) has constitutional prerogative as the head of state and a leader of the majority and ruling party, to appoint who should be Chief Justice of the Republic. However, many celebrated and renounced constitutional law lawyers argues that what is crucial is not the manner or modus of appointment that tends or is likely to politicize the office of Chief Justice but what counts in the long run is the integrity, probity, honesty and other virtues of independence and impartiality of the appointee that matters to ensure that position of Chief Justice is not compromised.
It is when the judiciary is embattled or under siege that the pivotal but protective and defensive function of the Chief Justice as the head of the judiciary comes to the fore because individual judge should not be left to his/her own devices against scurrilous attacks for performance of his/her functions. It is generally accepted that the judiciary is by nature apolitical and much of the legitimacy of the court’s decisions rests upon the fiction that it is not apolitical institution but exclusively a legal one. Judges are supposed to be non-political appointees, recruited through a competitive examination and follow special training. Judges as arbiters are not expected to participate in politics because judicial independence implies independence from political influence.
It is in this way that the politicization of the judiciary can rear its ugly head in many devious forms including marginalization of the judiciary by throttling its resource base-rendering it complaint and beggarly and gratuitous labeling of judges as anti-government or as executive-minded, reactionary, and counter-revolutionary or as timid, corrupt or as incompetent. All these virtues qualify as undue interference and as antithetical to the spirit of the constitution whether they emanate from government circles or from opposition or other pressure groups. It is on this basis that the politicization of the judiciary can occur and thus can never be justified regardless of the popularity or goodness of the motive because the main objective of party politics is to gains executive and legislative power under the constitution; and to seek to manipulate and draw the judiciary into the murky puddle of politicking whereas the main function of the judiciary is not to gain either executive or legislative power but to administer justice according to law under the constitution impartially.
Thus it is through appointment process of Justices and Judges that the politicization of the judiciary occurred in the sense that the executive tries to bring in those judges that cannot turns their back when it is faced with critical policy issues which needs and involves adjudication and interpretation of the constitution and the law, the case in point being the constitutional petition before the Supreme Court Constitutional Panel on the Constitutionality of the Presidential Decree creating 28 states in South Sudan. It is therefore important to always sensitize the executive and legislative branches about the importance of judicial independence and of impartiality in democratic governance. Indeed many politicians loathe the idea of judicial independence out of sheer ignorance, stereotype or other grudges or misconceptions for instance fear jealousy, impunity and self-righteousness.
The politicians whether in or out of governance must be sensitized that the courts are the bulwark of human rights and even of their executive power; and that no judge should ever be ‘their man’ or ‘woman’ but a peoples judge at all times. Under such circumstances, the judiciary seems to be the last resort for thousands of South Sudanese people whose human rights and freedoms are violated on a regular basis because as a neutral arbiter, it is presume to stand a best position to protect human rights and check power abuses. This is because judges are presumed to be learned, impartial and apolitical; as such they are free to judge without fear or favour.
Hence, the judicial organ is often regarded as the least dangerous branch of government as it neither controls the purse nor the sword but unfortunately the effectiveness, independence and impartiality of the judiciary has been compromised because it is internally reactive than active, incompetent and succumbs to external political pressure. So, for the judiciary to play the role incumbent upon it the environment has to be favorable and judges have to strife to be competent, neutral, impartial and independent. In the next part of this article, I intend to look at how politicization of the judiciary can be tackled and therefore the dangers of politicizing the judiciary.
How Politicization of the Judiciary can be tackled
As we had a look at the politicization of the judiciary and how its politicization occurs, I beg your indulgence to critically look at how politicization of the judiciary can be tackled as this is an important task that needs resolve and commitment. How to tackle politicization of the judiciary however requires a combine effort of all the members of the judiciary who should all be sensitized about their functions as judicial officers. This needs a true ethical foundation which is very important in galvanizing the institution of the judiciary. The judicial oath of office taken by the judges upon entering their judicial offices should be a ringing bell emboldening and fortifying the members of the judiciary in the discharge of their functions as judicial officers.
To tackle the politicization of the judiciary, the Judicial Service Commission which is such an important organ under the constitution must always be vigilant in the appointment process so that only competent, fit and proper persons receive the commission’s recommendation to the president. A full interview on important issues and aspects of judicial life must take place for each and every appointment. No secrecy should be countenance nor should political nepotism or patronage allowed to disadvantage the fit and proper persons who should have been appointed on a meritocratic way. Our Judicial Service Commission is so redundant and remains a bedridden sick mole awaiting its befitting burial.
It is this institution that is supposed to supervise and look in the performances of the judges country-wide but it remained tooth-brush of the Chief Justice. Thus, to tackle politicization of the judiciary, a positive climate of integrity must prevail both in the judiciary and the executive. This is essential if not critical in order to forestall all sinister attempts to corrupt the judiciary politically. This is imperative because the oft vulgar and vitriolic party dynamics and polarity can adversely affects the judiciary’s independence and impartiality because to politicize the judiciary is clearly unconstitutional and such sinister overtures are a clear admission that the government lacks legitimate authority in its governance.
As the former Chief Justice of Lesotho Pius Langa opined; ‘an intimidated judiciary subservient to those who wield power becomes an extension of the executive and cannot be trusted to deliver justice’ judges should act without bias and should not be susceptible to external pressure or influence…judges should not succumb to any kind of pressure, criticism or intimidation from whatsoever source. Hitherto, politicization of the judiciary generates judicial and political corruption which can permeate the entire justice system corrupting the staff and lowering morale and productivity. When corruption sets in, like cancer, it soon becomes systemic and endemic with disastrous results to a budding democracy. Therefore, politicization of an institution that should manifest honesty and impartiality always emanates from moral decadence prevalent in the society and it is decadence that has no respect for constitutionalism, legality and the rule of law.
In hot pursuit for aggrandizement, unscrupulous politicians will unashamedly target judges to win them to their political philosophy and influence; and once under their beck and call then they can twist judges around their little fingers in the manner of a quivering dog at the sight of a raised whip or a mendicant uncontrollably salivating at the sight of a tantalizingly titled bowl of soup. Thus, far be it from every one of us therefore to condone subjugation even to the slightest degree, of high judicial principle founded on sound ethics to barefaced pursuit and acceptance of unorthodox political favors for satisfaction of love and glory and self-aggrandizement on the part of a judicial officer.
Preserve the integrity of the institution, protect and defend it. In the next part of this article, I intend to look at the dangers of a politicized judiciary and therefore the presumed legacy of such an important institution which has vanished given the inertia of the judiciary in protecting the constitutional rights and fundamental freedoms of South Sudanese.
Dangers of a Politicized Judiciary
In South Sudan, a troubling trend has developed in the Judiciary of South Sudan over the years and accelerated recently by a new pinnacle under Chief Justice Chan Reec Madut. This troubling trend has advanced a pro-cooperation agenda at the expense not only of the opposition groups but of fundamental democratic institutions. To many South Sudanese, the Judiciary is the last hope for the people of South Sudan to get justice but the price of the institution’s head cooperation with the executive has been very high on South Sudanese. It is not enough to proclaim rights, they must be protected. To declare that we are a ‘state of law’ or democratic does not make us one.
There is a generalized lawlessness in our society and with the weaknesses of the other controlling forces, the courts have to be the last resort for the guarantee of the rule of law; but if the judiciary is politicized and becomes weak, then those guaranteed rights are vulnerable to infringement and hence total violation by the powerful. The judiciary is supposed to be a valuable asset for the protection of human rights and to check power abuse thoroughly. But, extrinsic and intrinsic factors have however made our judiciary become unable to play this role effectively. The danger is that the citizens of this country are left helpless with the impotence of the justice system where many resort to other means of taking law into their hands as a manifestation in a bid to obtain satisfaction.
An effective judiciary is therefore of vital importance as it inspires confidence in the people. It serves as a check by preventing the concentration of power in government and its subsequent abuse. When courts challenge governmental action, they validate government’s status and legitimacy and provide an important element of political stability. However, that’s not being the case with our judiciary. Public opinion’s polls on the streets and on social media reveals that the trust and confidence of the people in the Justice sector (the judiciary) has drop to zero percent when the current Chief Justice took over and more especially when he (Chief Justice) openly and public knelt to his knees and worship his political god-father, the president of the republic when the later issued a presidential decree creating 28 states in the country dismissing longstanding trust and confidence in the Judiciary in the hearts and minds of the people hence relegating the image of the institution to be a subordinate of the government and not an independent institutional organ of the government.
This submission by the Chief Justice has raised public eyebrows and the solicitude of the people with regards to the fundamental role of the judiciary in protecting constitutional rights and democratic consolidation in the youngest nation. This is further manifested by Supreme Court twisting and cleverly deciding on most contentious constitutional cases brought before it either by members of the same organization or the opposition where many commentators have been quick to remark on the weakness, partiality and insubordination of the judiciary which has given in and relinquish all its institutional integrity and independence as an institutional organ of the government. The Chief Justice is in a position to promote a strong understanding of the place of the court in the legal system and of values of justice and impartiality the court proclaims mainly through their judicial work.
This is important with an unpoliticized judiciary because it’s a wider responsibility to ensure that the values that court espouses are understood by all who are involved in the work of the court and reflected by the manner in which people are treated when they have contact with the court. There is a problem if people who come to a court think they have not been dealt with fairly and courteously or in the manner in which one would expect an institution committed to the administration of justice treat them. We live in an age of accountability. What is required of judges is changing. Sentences are widely discussed and criticized and are a topic about which everyone has a view.
What judges say in court is not immune from criticism. Judges have obligation to publish full reasons for their decisions which are often subject to appeal and criticism. A judge must refrain from making comments on matters of political controversy, if they do then they have definitely compromised the impartiality and independence of the judiciary because the society will resort to the same court and seek judicial or legal opinion. For society to maintain its respect for the law, the law must bear relevance to the society to which the court is its custodian. There are many occasions upon which a judge is required to decide what is just, what is fair or what is reasonable. In cases of this kind, a judge necessarily seeks to apply basic values representative of community values. In doing so, he/she cannot merely reflect on transient shifts in public opinion.
The judge must objectively determine what is just, fair or reasonable so that while reflecting the basic values of the community, the judge does not allow him/herself to be influenced merely by his allegiance to the leader of the country through temporary shifts in public opinion or by prejudice, emotion or sentiment. The guiding principle must always be true adherence to the rule of law. The mentality of the judges more especially the Chief Justice must change; they have to be aware of the sacredness and strategic place of their mission. They have to be competent, neutral, impartial, in a nutshell, independent. It is only through these conditions that they can be the last resort and hope to South Sudanese people of all walks of life who are watching them day and night.
Judiciary of South Sudan under Justice Chan Reec Madut: An Institution too deform to be reform
Judiciary in every country has an obligation and a constitutional role to protect human rights of citizens. In every democratic society govern by law; the judiciary plays a pivotal role in dispensing justice to people regardless of their origin, race, colour, ethnicity, religion or political affiliation. The judiciary is such an institution that acts as a watchdog of any democratic society in protecting and enforcing constitutional rights and fundamental freedoms of every citizen of the country without any reference to sex, tribe or ethnicity, religion or political affiliation, national or alien. One is left with no word to express when I compare our judiciary with judiciaries of other countries, even the nearest neighboring countries of Ethiopia, Kenya, Uganda and Sudan where we broke away from, you will definitely cry if you truly love this country and its peoples.
They are truly established institutions meant for nothing but to administer justice to all irrespective of their gender, race, colour, tribe or ethnicity, religion or political affiliation. They truly devoted their times for nothing but to dispense justice speedily, fairly, impartially and independently from any interference from either organs of the government of the state. That’s the true meaning of the judiciary as institution whose role is to administer justice but not to adore or worship some petty political god’s fathers. That’s not the purpose and reason with which a prestigious institution like judiciary could be established and be led by petulant.
As Montesquieu wrote in 1748 that, “there is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor”. Governance is however a process of decision-making. It is the sum of the many ways in which individuals and institutions manage their common affairs. It is undergirded by fundamental notions of inclusiveness, transparency and accountability, which themselves are ways of realizing the ideals of democracy, justice and fairness.
In 1803, one of the men of vision, Chief Justice Marshal of the United States stated “it is emphatically the province and duty of judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule”. This was supplemented recently by Lord Woolf, the Lord Chief Justice of England and Wales when he underscored the transformation that has taken place regarding the role of the judiciary and the process of judicial decision-making. In a key note address at the thirteenth Commonwealth Law Conference held in Melbourne, Australia in 2003, he explained that “just as the common law has been evolving with increasing rapidity, so has the role of the common law judge.
The judge’s responsibility for delivering justice is no longer largely confined to presiding over a trial and acting as arbiter between the conflicting positions of the claimant and defendant or the prosecutor and the defence. The role of the judiciary, individually and collectively is to be proactive in the delivery of justice. To take on new responsibilities, so as to contribute to the quality of justice. At the forefront of these new responsibilities is achieving to justice for those within the judge’s jurisdiction”. Does the judiciary of south Sudan under the incumbent Chief Justice has these tenets as pillars upon which, as an arbiter of human affairs, the judiciary can extol to dispense justice fairly, impartially and independently?
The judiciary especially the Supreme Court has lost it mission upon which it was established to serve. It has been politicized more than any other judiciary in the region. The behaviour of the Chief Justice and the manner in which he conduct himself and of that of the cases brought before it has rendered and compromised its independence and impartiality as an arbiter and enforcer of human rights and fundamental freedoms in the country. His obdurate conduct of the judicial affairs has obfuscated and completely obliterated the prospects of a judiciary in a democratic society. The judiciary cannot sustain its credibility on its own and wins the confidence and trust of the people if the credibility gap grows steadily wider day and night between the institution and the general public and more notably the people whose rights have been violated.
The judiciary which is the last hope to retrieve back those rights is the one that reneged on peoples’ rights, then hostility will eventually ensued and the private citizens will take law into their own hands. It is a constitutional and legal right of every person aggrieved and sought judicial help to get back his rights through constitutionally devised mechanisms. Everyone has right to litigation, speedy hearing and fair trial in a reasonable time frame. But it is quite unfortunate that our judiciary is too deformed to be reform. Any reforms for the judiciary of South Sudan must begins with ousting of Chief Justice Chan Reec to pave the way for true and complete reforms informed of all tenets and pillars which requires true adherence to constitutional supremacy, recognition that government and the governed are equal before the law, acknowledge itself that government is limited by law and cannot engage in any arbitrary exercise of power and recognition that individuals are endowed with certain inalienable rights that cannot be denied or taken away even by a legitimately constituted government.
Only when the judiciary of South Sudan upholds these principles which cannot happen under the leadership of the incumbent Chief Justice, that it can be cleanse and reformed. The revamp includes ousting of the chief justice to give way for hot blooded justices, energetic, non-partisan, always neutral, impartial and completely independent to administer justice speedily, fairly, impartially and independently from any either the legislature or executive. This is only where the reforms can take place, and the judiciary takes its rightful place by winning back the confidence which has faded away.
For how long will Justice Chan Reec Madut continue to Mess with Constitutional Petitions in the Supreme Court?
What exactly is the role of the Supreme Court when it comes to the protection and enforcement of constitutional and fundamental democratic rights of the citizens? The court is presumed to be a last resort where everyone procured and retrieved his rights if infringed. But if the court itself became a tool use to enhance the curtailment of the said constitutional and fundamental democratic rights, it presumably deviates from its role of protecting and enforcing such rights as vested in it not by anybody including the president but by law. A troubling trend has developed in the Supreme Court of South Sudan which has been accelerated by a new pinnacle under Chief Justice Chan Reec Madut. This troubling trend has advanced an inner agenda at the expense not only of the dissenting and vocal voices calling for reforms and complete change in governance of the country but of fundamental democratic institutions in the likes of the Judiciary.
For how long will Justice Chan Reec Madut continue mess with constitutional petitions in the Supreme Court? The honorable chief justice has absolutely abused his powers by inventing a new trend contrary to the rules and procedures and even standards provided by the law. He has defaced the most prestigious and highly respected institution in the world by degrading it efficacy, respect and love the society has for it. The chief justice reached a deadbeat in which he mess with constitutional cases as he likes contrary to rules of procedure provided for in the Transitional Constitution where it has been clearly stated that when sitting as a constitutional panel, it must be composed of all nine members of the supreme court. But on 26th/Feb/2016, the chief justice sat alone and presided over the constitutional petition of the Alliance of Political Parties challenging the legality and constitutionality and even the procedure in which the 28 states were created in the country.
This is a blatant legal blender committed by the chief justice in a broad day light just like he usually does in dismissing various constitutional petitions even when they have cause of action. This is the danger of a politicized judiciary which this author numerously wrote about two months ago. The danger of a politicized judiciary is gradually surfacing now and I wish all South Sudanese could have eyes to see and ear to hear because for an institution deemed to be a last resort many sought to obtain their breached rights became part of the very institution which breached your rights, ooh ooh, we’re finished. It is not enough to proclaim rights, they must be protected. To declare that we are a ‘state of law’ or democratic does not make us one. An effective judiciary is of vital important as it inspires confidence in the people.
It serves as a check by preventing the concentration of power in government and its subsequent abuse. When courts challenge governmental action, they validate government’s status and legitimacy and provide an important element of political stability. The submission by the Chief Justice has raised public eyebrows and the solicitude of the people with regards to the fundamental role of the judiciary in protecting constitutional rights and democratic consolidation in the youngest nation. This is further manifested by Supreme Court twisting and cleverly deciding on most contentious constitutional cases brought before it either by members of the same organization or the opposition where many commentators have been quick to remark on the weakness, partiality and insubordination of the judiciary which has given in and relinquish all its institutional integrity and independence as an institutional organ of the government to the executive.
The Chief Justice is in a position to promote a strong understanding of the place of the court in the legal system and of values of justice and impartiality the court proclaims mainly through its judicial work. This is important with an unpoliticized judiciary because it’s a wider responsibility to ensure that the values that court espouses are understood by all who are involved in the work of the court and reflected by the manner in which people are treated when they come into contact with the court. There is a problem if people who come to a court think they have not been dealt with fairly and courteously or in the manner in which one expect an institution committed to the administration of justice treat them.
A judge like Justice Chan must refrain from making comments on matters of political controversy, if he do then he has definitely compromised the impartiality and independence of the judiciary because the society will resort to the same court and seek judicial or legal opinion on such matters. For society to maintain its respect for the law, the law must bear relevance to the society to which the court is its custodian. There are many occasions upon which a judge is required to decide what is just, what is fair or what is reasonable. But Justice Chan has never been just, fair and reasonable in deciding cases of constitutional nature. In cases of this kind, a judge necessarily seeks to apply basic values representative of community values.
In doing so, he cannot merely reflect on transient shifts in public opinion no matter how happy or sad he is with the matter. The judge must objectively determine what is just, fair or reasonable so that while reflecting the basic values of the community, the judge does not allow himself to be carried away by emotions or influenced merely by his allegiance to the leader of the country through temporary shifts in public opinion or by prejudice, emotion or sentiment. The guiding principle must always be true adherence to the rule of law. The mentality of the judges more especially the Chief Justice must change; he has to be aware of the sacredness and strategic place of his mission.
He has to be competent, neutral, impartial, and in a nutshell, independent. It is only through these conditions that we perceive the judiciary to be the last resort and hope to South Sudanese people of all walks of life who are watching him day and night. For how long will Justice Chan Reec Madut continue to mess with constitutional petitions brought before the court he is sitting as the chair? This is a constitutional right that he must not meddle with.
Be fair, impartial, neutral and independent. Protect and enforce our constitutional and fundamental democratic rights vested in you by the law. You didn’t give them to us nor did the president or any other authority in this country but the law. Protect and enforce them or else vacate the seat and give way to impartial, neutral, non-partisan and independent capable justice to carry out the duties as required by law. The whole country is watching, the world is watching you. Shame on you!
Assessing the Legacy of the Chief justice of the Judiciary of South Sudan as a Chief Administrator and a Chief Judge
The judiciary is one of the three co-equal arms of government. Its chief mission is to resolve disputes in a just manner with a view to protecting the rights and liberties of all thereby facilitating the attainment of the rule of law ideal which is one of the pillars of governance. It performs this function by providing independent, accessible and responsive role for the resolution of disputes. Thus, at the time of societal transformation heralded by the independence of South Sudan from Sudan, the judiciary of South Sudan is now called upon to do more than simply resolving disputes. It must be deliberately repositioned to play the critical role of protecting the constitution as stipulated in the Transitional Constitution of South Sudan, 2011, fostering social and political stability and promoting socio-economic development in the country.
It must do so by implementing and interpreting the constitution in a manner that promotes national values and principles of good governance. The judiciary bears the onerous task and duty of breathing life into the aspirations of South Sudanese people as expressed in the Transitional Constitution. The aspirations of South Sudanese people are explicitly stated in Article 1(5) of the Transitional Constitution – that South Sudan is founded on justice, equality, respect for human dignity and advancement of human rights and fundamental freedoms.
Through this article, South Sudan wished to create a society undergirded by all the national values and principles of good governance articulated in articles 35 and 36 of the Transitional Constitution and have tasked all governmental organs including the judiciary to advance the substance, objects and spirit of the constitution in a manner which coheres with these values and principles. For the judiciary to effectively fulfils its constitutional mission and mandate, respond to the high public expectations and demands for improved judicial functions and performances especially of the Chief Justice who is the chief administrator, and command the respect of the public, its task must be to transform itself.
Upon taking office in 2011, the performances of the incumbent Chief Justice have been marred by rising resignation of justices and judges of various stages of the courts of appeal, high courts and county courts, lack of trust and respect, complete break-down of effective administration of justice, incessant lack of ream papers in the courts, long and overdue disposal of cases especially cases appealed before the courts of appeal. We have a judiciary as an institution so frail in its structures though it has a very huge budget, it is an institution so low on its confidence, so deficient in integrity, and so weak in its public support. We have a judiciary that is designed to fail but not a judiciary designed to deliver justice.
The institutional structure of the judiciary of South Sudan is designed in a way such that it operates as a judicial monarch supported by nobody but the executive branch of the government. Power and authority are highly centralized. Accountability mechanisms are so weak and reporting requirements are absent and remains unmet dream. That is the state of the Judiciary of South Sudan under Chief Justice Chan Reec Madut. It is his common property in which he has God given prerogatives to decide what to do and what not to do with it as an institution and the people who sought retrieval of their rights. Thus, without even any elaboration to make to my readership, these words clearly and succinctly capture the need for the total reform and complete transformation of the Judiciary of our beloved nation.
This is the old order in which our judiciary operates before independence. The judiciary must undergo some serious reforms in order to overthrow old obsolete order and usher in the new order brought in by the independence and peace agreement recently signed by the warring parties in Addis Ababa, Ethiopia. Indeed, the reforms and transformation of this important institution is a constitutional imperative and it is also a popular demand fueled by genuine and deep public demands and expectations. With many cases since 2011 still undecided up to now and with many cases being mishandle by the judges based on political affiliations, the public has spoken loudly and clearly in demanding that the judiciary improves its performance, enhances the quality of justice it provides and improves its service delivery culture and move away from a culture of a politicized judiciary to an impartial, neutral, non-partisan and independent judiciary.
The reforms and transformation of the Judiciary of South Sudan should transcend its dealings with other branches of government and the public. It is crucial that the reform agenda addresses internal matters of governance, administrative systems and processes. The staff of the judiciary for instance, desire to be part of a dynamic and functional organization with an appealing organizational culture, suitable organizational structures and an enabling and conducive environment where productivity and creativity are valued, rewarded and respected. The staff of the judiciary wishes to be treated with respect and aspire to be part of an institution that is effective, upholds integrity and commands public respect than being part of an obsolete and dysfunctional judiciary with outdated processes and principles not any longer found in any modern democratic society.
The reform of the judiciary is therefore manifold. For the judiciary to respond to these imperatives and ensure that the reform and transformation agenda is authentic, the judiciary should develop a judicial transformation framework informed by internal and external reporting and a wide range of consultations with all relevant stakeholders. This author hoped that this framework will enable the judiciary of South Sudan to adopt a holistic approach that is built on sector-wide collaboration, strategic and technical partnerships and benchmarked on emerging national, regional and global practices.
This framework as an approach, should articulates in a bold strokes, the blue-print of the judiciary’s reform and transformation agenda, the policies which animate this reform and transformation agenda and the broad strategies which will deliver the ultimate goal of the transformation inclusive of expeditious delivery of justice in a fair, impartial and equitable manner irrespective of statuses or political affiliations. The lack of this clear-cut policy of the judiciary has had the institution not been perceived as the faultless hand-maiden of justice and guardian of human rights that it ought to be. Since the inception of the Judiciary of Southern Sudan, the public has generally been skeptical of the judiciary.
The true judiciary and not a proxy like Chan Reec’s judiciary is that which must do justice to all irrespective of status, it must not delay justice instead it must provide justice expeditiously, it must promote alternative forms of dispute resolution, it must administer justice without undue regard to procedural technicalities and it must protect and promote the purpose and principles of the constitution. This is not the state of the judiciary of South Sudan under Justice Chan Reec Madut as a Chief Justice and a chief administrator. However, the judiciary of South Sudan under the incumbent chief justice deviated from these noble pillars. It faces a number of created challenges by the chief justice himself with respect to leadership and management.
The key one includes chronic under-capacity of judges in leadership and management offices, lack of mentorship, excessive centralization, absence of consultations, privatization and personalization of leadership spaces, clientelism, poor attitudes, approaches and ethics, discrimination and ethnicity and a weak culture of professionalism in the management of courts. Other created challenges in the judiciary are weak professional cadres at the administrative level, weak financial and human resources policies and operations, absence of a performance management system, poor internal and external communication capacity, and lack of professional support services to judicial staffs.
People are the most critical resource of any institution and one of the key challenges in human resource in the judiciary is the imbalance and inadequacy in the ratio of judicial officers marred by recruitment of incapable, weak and incompetent judicial officers of only the people who have their fathers, mothers, uncles, in-laws etc in the government at the disadvantage of capable, competent, highly educated young lawyers who have nobody in the government to clear and pave their way for recruitment into the judiciary.
This is a fact no matter how much and how many times the chief justice denied this, that’s the state of our judiciary. What legacy can such an institution earned from the public? And what legacy would Justice Chan Reec leaves behind as a chief justice of the judiciary of South Sudan and as its chief administrator whose records are marred by high rise of mistrust, bias recruitment of incompetent, weak, and incapable judicial officers, weak and poor dispensation of justice.
The writer is a Master of Laws (LLM) candidate at the School of Law, University of Nairobi. He can be reached via: tongbullen@gmail.com
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