Courts of Appeal: A dysfunctional Organ of the Judiciary of South Sudan
By Tong Kot Kuocnin, Kampala, Uganda
February 6, 2017 (SSB) — Pursuant to the provisions of Article 122(1) of the Transitional Constitution 2011 (Amended 2015), the judicial power is derived from the people and shall be exercised by courts in accordance with the customs, values, norms and aspirations of the people and in conformity with this constitution and the law. The court of Appeal has powers under Article 122(4) of the said fundamental law to adjudicate on disputes and render judgments in accordance with this constitution and the law.
The structure of the judiciary of South Sudan is provided under Article 123(a)-(e) in which the Supreme Court is the highest court and a custodian of the Transitional Constitution and Constitutions of the states. It is a court of cassation which has final jurisdiction over both civil and criminal matters. It is a court in which the decisions of the Courts of Appeal are appealed against before it. The Court of Appeal is an appellate court where decisions of the high courts are appealed against.
It has jurisdiction over High Courts and County Courts and other Courts or Tribunals deemed necessary and established by law. In adjudicating cases both civil and criminal in nature, the courts shall, subject to the law, inter alia, take cognizance of certain principles including as mentioned under Article 122(5) (a) that justice shall be done to all irrespective of their social, political or economic status, gender, religion or beliefs and more importantly, under 122(5) (b) which stipulates that as a principle and to ensuring and maintaining proper administration of justice, justice shall not be delayed.
This is the important aspect with which the author of this article took his pen to write this article in order to remain my learned Justices of the Courts of Appeal, in case they have forgotten these principles of justice to which the people of South Sudan bestowed upon them the duty to exercise these powers on their behalves. Under article 127(1)(a) of the Transitional Constitution 2011 (Amended 2015), the Chief Justice is responsible for the administration and supervision of all courts.
As the County courts are no exception to this credence, the Courts of Appeal made matters worse when it comes to cases appealed against before it. The courts of appeal seem to be the most dysfunctional organ of the judiciary of south Sudan given it unconstitutional and unsubstantiated delay of appeal cases before it.
It has become a custom of the court of appeal to an extend that, a decision of the case appealed against before the court of appeal can be looked at, presided over, determined and finally dispose off after a nearly two to three if not three to four years of tireless follow-up by the parties concerned.
Without any fear or favor, there are still appeal cases before court of appeal today which were appealed against before independence of this country, and still have not been decided upon leave alone disposing them off. Other decisions of the cases appealed against in 2012 to date have not been decided meanwhile judges are being paid on monthly basis. The courts of Appeal, despite unfavorable working conditions the justices are experiencing, the law tasked them to determine and dispose all the cases appeal against before it.
The justices should bear in mind the legal maxim which says, justice delayed is justice denied. It is incumbent upon our learned justices of the courts of appeal to pull the cart in ensuring that justice is awarded to those who deserve it. Our learned justices must rise up to dispel this culture of redundancy adopted by old boys and usher in the culture of activeness, commitment and dedication to the work in the interest of the people.
With the new judges now promoted to the court of appeal, it is the hope of many who are seeking justice before the courts of law to dispense justice in accordance with the principles laid down by the constitution and constitutional jurisprudence. People’s hope in the judiciary has been renewed and confidence that has been lost is likely to be restored.
This will only happen if and only if the learned justices of the courts of appeal truly stands on their feet and fast track and process, determine and disposes all those cases that have been lying before the court of appeal. There is too much stockpile of cases especially in the courts of appeal.
This backlog of cases will only be eased by speedy fast-tracking of cumulative piles push down the list of the disposed cases. I rest my case.
The writer is a Master of Laws Candidate at the College of Law, University of Juba and he can be reached at: tongbullen@gmail.com
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