Is it rule of law or rule by law in South Sudan’s politics?
By Molana Arop Malook Lual, Juba, South Sudan
May 3, 2017 (SSB) — Witnessing the events that unfolded around the ongoing power struggle in South Sudan, a seasoned professional colleague called me for a chat. She asked me what I thought about the situation and what, if anything, the legal fraternity should do about it.
As I gave her my two cents worth on what we should do, she stopped me to ask why I was concentrating on the symptoms and not thinking about the “bigger picture”. My colleague opined that by getting caught in the miniature of the latest episode of, frankly, lawlessness, however shocking a display it might have been, we would be doing the general public a disservice because it is now clear that there is a systemic problem.
So what is the problem, I hear you ask? The problem is that much as we live in hope, or, some would say, denial, we still do not have the Rule of Law where all persons and authorities are bound by and are equal under the law.
Rather, we have Rule by Law, where the rule of a few, who have positioned themselves above the law, is meted out upon the many by use of the law. Article 2 of the Constitution provides that the Constitution is the supreme law of the land, with binding authority over all persons and authorities. That is the position to which we aspire, but the reality on the ground is very different.
For a long time now, the Executive has undermined the authority of the Constitution by flouting provisions thereof that do not suit its convenience. Suspects are regularly detained incommunicado and beyond 24 hours contrary to the express provisions of the Constitution. Court orders are regularly flouted by being subjected to the “interpretation” of the Police and/or the pliant Public Prosecutions Attorney.
The freedoms of speech, assembly and association are exercised at the pleasure of the Police. The two High Court sieges were also glaring examples of executive lawlessness, which I will not mention.
These are some of the more sharply felt contraventions of the Constitution. But there are several other quiet but equally grave ones. Even as I write this, we do not have a well established Judiciary as required by the Constitution. For a long time, the constitutionally mandated of Magistrates Court were not fully constituted.
This was also the case for the important and constitutionally mandated office of the Directorate of Public Prosecutions. Acts of Parliament are regularly not assented to within the 30 days time limit set by the Constitution. The Executive also regularly spends or even borrows without seeking and obtaining the necessary prior Parliamentary approval.
So increasingly it is clear that the Constitution and the laws of South Sudan enacted under it are now largely observed only when it suits the Executive. The danger that this situation poses cannot be overstated but yet it can be simply stated, as political scientist Jim O’Connell did in his seminal essay, “The Inevitability of Instability”.
Talking about the importance of constitutionalism, which he termed “the value of reverence for law and respect for the rules of the game”, O’Connell said, “The rules of the game are those willed limitations on the use of power without which politicians take total advantage of their own legal and coercive position to defeat and oppress their opponents.
To abandon the rules of the game is to invite opponents to do the same thing.”
If the opponents of those who presently wield power abandon the rules of the game then the country is in for a big problem. Now, the danger with power is that its coercive capacity tends to lull those who have it into a false sense of security. They think that they can rule by force alone and forget that the value of the consensus that develops around a culture and practice that makes all people and authorities equal under the law.
In South Sudan, that consensus is already failing and the country is increasingly run on a coercive basis. If you doubt me just look at how prominent the Police is in the daily headlines today.
Antonio Gramsci, the Italian political theorist said that, “If the ruling class has lost its consensus, i.e. is no longer ‘leading’ but only ‘dominant’, exercising coercive force alone, this means precisely that the great masses have become detached from their traditional ideologies, and no longer believe what they used to believe previously, etc.
The crisis consists precisely in the fact that the old is dying and the new cannot be born; and in this interregnum a great variety of morbid symptoms appear.”
My colleague was right, the endless focus on each symptom as it appears is distracting us from the bigger writing on the wall.
The writer is a City Lawyer based in Juba and can be reach on: E-mail: aroplualdit@gmail.com
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