President Kiir’s contemptuous action on the judiciary amounts to miscarriage of justice
By Daniel Juol Nhomngek, Kampala, Uganda
July 18, 2017 (SSB) — I have been refraining myself from writing strongly against the presidency of South Sudan for a while since the campaign for peace has taken much of my time. However, I am now forced to strongly comment on the action of the president of dismissing justices and judges of South Sudan. The dismissal of judges and justices has revealed the fact that the President in J1 has learned nothing and forgotten nothing about the conflict in South Sudan. The president appears not to know what he is doing.
In fact, his action shows that he is an anti-peace and it is therefore meaningless to campaign for peace while someone in the heart of the government is out therefore to completely destroy basic structures capable of maintaining peace in the country.
What the president ought to have done is to carry out the reforms that are badly needed in order to restore the confidence the citizens in the system, which is the only way of bringing lasting peace in South Sudan. This involves the reformation of judiciary so that it becomes a strong avenue of addressing the violation of the rights of citizens.
The president must know that one of the strong pillars of maintaining peace in South Sudan is judiciary and it must be strengthened instead of mutilating it as he has done recently. For these reasons, I would like to say that I wished the president of South Sudan knew how important the judiciary is to the stability of any country, and if he knew, he would have not interfered with the independence of the judiciary.
The undisputed fact is that a country where judiciary is respected, the judiciary is independent and strong. Where the judiciary is strong and independent (which are some of the elements of rule of law), the rights of the citizens are protected by enabling citizens to effectively have access to justice, which enables them to have strong and effective protection of their rights.
Effective protection of rights of the citizens makes citizens love their government and the country, which is one of the elements of strong government. In addition, citizens can join the army to defend the country with all their hearts but not behaving, like mercenaries as witnessed in the SPLA forces in South Sudan today.
In such a case, the army and the government become strong because injustices that cause internal weaknesses in the country due to the loss of confidence in the system by citizens are minimized to a greater extent. Hence, a country with fewer injustices against and instead more protection of citizens is loved by the citizens, which is the foundation of strong country.
Strengthens of the countries such as the USA, UK, Canada and Australia are rooted in the fact they value and protect the rights of their citizens equally. Thus, a country established on strong citizenry has strong foundation unlike countries that are founded on autocracy or dictatorship or on one person’s rule as we are trying to adopt in South Sudan.
Founding the country on citizenry means promoting human rights, rule of law and democracy. Therefore, the democratic system founded on welfare of citizens makes citizens to develop the love for and protect the country. This proves the fact that citizens love and protect the country not because of force but because the country protects all the recognized rights of the citizens irrespective of their background or relation with the ruler.
In a country where the rule is as described in the above paragraph, citizens feel the present of law and where their rights are violated they are able to run to the law for protection hence keeping law and order. This means that what keeps the law and order is not government or police but they belief the citizens have in the law that it will protect their rights when they are violated.
In such a country, citizens develop high sense of belonging and because of that they are ready to protect it which makes the country remains strong since the country is answerable to them which are done through observing the rule of law. Therefore, where the rule of law exists, the law dictates that no one including the president is above the law.
The rule of law is the legal principle which provides that no one is above law. For this reason, it ensures that no decisions of individual government officials should bind anybody unless founded in law, which is not the case in South Sudan. In South Sudan president is everything which makes him to repugnantly abuse the powers that he has. The abuse of powers by the president shows that he is wrongly swimming in the full of illegality caused by his rejection the rule of law.
Whether the President likes it or not, the peace we are currently searching for will never prevail in South Sudan unless he obeys and works in accordance with the law. It therefore implies that in the exercise of his powers, the president is supposed to be governed by the rule of law and also carries out the reforms in light of the future rule of law in the country.
Thus, the rule of law which is the authority of law within society, particularly as a constraint upon behaviour, including behaviour of government officials, should be the guide to his action.
It is this fundamental aspect of the rule of law of binding on all persons irrespective of their positions that makes it part of the government and its history. Hence, the rule of law can be traced back to 16th century Britain, which was later explained more in the following century by the Scottish theologian Samuel Rutherford who used the phrase in his argument against the divine right of kings.
The arguments of Samuel Rutherford referred to in the above paragraph were later built on by John Locke who went further to state clearly that rule of law deals with the freedom of the people and limitation to the said freedom. In that respect John Locke observes—
“Freedom is constrained by laws in both the state of nature and political society. Freedom of nature is to be under no other restraint but the law of nature. Freedom of people under government is to be under no restraint apart from standing rules to live by that are common to everyone in the society and made by the lawmaking power established in it.
Persons have a right or liberty to (1) follow their own will in all things that the law has not prohibited and (2) not be subject to the inconstant, uncertain, unknown, and arbitrary wills of others (see; Locke, John. Two Treatises on Government: A Translation into Modern English. ISR/Google Books, 2013, p. 117)”.
The arguments put forward by John Locke in explaining the relationship between the rule of law and freedom above were further expounded upon in the 19th century by British jurist A. V. Dicey. Professor A.V. Dicey in his book entitled the Introduction to the Study of the Law of the Constitution (1885) discussed the two pillars of law, which are: the rule of law and parliamentary sovereignty.
Subsequently, these two pillars were later interpreted by different authors and courts of law to come up with general principles seen in any of the constitutions in modern time and in practice today. The principles I have just mentioned are currently summarized into ten, which include —
“(1) The separation of powers between the legislature, the executive and the judiciary; (2) that the law is made by representatives of the people in an open and transparent way; (3) that the law and its administration is subject to open and free criticism by the people, who may assemble without fear; (4) That the law is applied equally and fairly, so that no one is above the law; (5) that the law is capable of being known to everyone, so that everyone can comply; (6) that no one is subject to any action by any government agency other than in accordance with the law and the model litigant rules, no one is subject to any torture; (7)that the judicial system must be independent, impartial, open and transparent and provides a fair and prompt trial; (8) that all people are presumed to be innocent until proven otherwise and are entitled to remain silent and are not required to incriminate themselves; (9)that no one can be prosecuted, civilly or criminally, for any offence not known to the law when committed; and (10)that no one is subject adversely to a retrospective change of the law”.
The above principles constitute what is known today as the rule of law or constitutionalism. The rule of law therefore in summary implies that in a country like South Sudan where there is a Constitution the rule of law exists, and in that case, nobody including the president can carry out any action except within the clear confine of the law. In the same way, in the country where there is no written Constitution like Britain, there are conventions which enshrine the rule of law and must be strictly adhered to the authority in its actions.
As can be understood above, the rule of law implies that the authority (and in our case), the president of South Sudan can only do things legally if he is authorized by or acting within the law. This further means the President is not above the law and because of that he is subject to the ordinary laws of the land: the constitution. Sadly enough, despite the existence of the Constitution in South Sudan, the President has been acting like absolute monarchs of 18th and 19th Centuries of European and Africa who were the law.
Thus enjoying unlimited powers, the president is now able to dismiss and appoint all government agents as he wishes in disregard to the Constitution and the rights of the citizens. This shows that the situation prevailing in South Sudan today is the perfect example showing that the president is above the law and not subject to the law. Contrary, to me the president is guilty of treason as provided for under our constitution because he has completely overthrown the constitution and other laws of South Sudan.
Therefore, the action of dismissing judges is treasonous act. It has not only contravened the provisions of the Constitution of the Republic of South Sudan as referred to by the South Sudan Human Rights Society for Advocacy (SSHURSA) in their condemnation that was published on 12 July 2017 by Nyamilepedia nor does it only mean that justice is under fire as it was discussed by Tong Kot Kuocnin, LLB (Juba), LLM (Nairobi) in his article published on Southsudannation.com on July 15, 2017 following the dismissal of judges. But it also amounts to rape of the temple of justice, which is judiciary, as well as massacring the rule of law in South Sudan.
As a matter of fact, the action of the president renders South Sudan a lawless country without a court of law. It also portrays the frightening fact that there is no need for courts in South Sudan. It further represents the situation where injustices suspended and dismissed justices. In this regard, President and Chief Justice represent injustices while innocent justices and judges represent justices.
It is hard to find the proper words to describe the President and Chief Justice of South Sudan but they can only be described as conspirators who are out there to destroy judiciary for unbridled personal interest. The action of the president therefore reveals the fact that the autocracy rules South Sudan while it also reveals that Chief Justice has sold the judiciary of South Sudan for personal favours. He is just there presiding over the slow death of our judicial system.
In fact, the other reality that needs to be mentioned is that judiciary of South Sudan has now become a subordinate branch of the executive, which confirms the speculation many South Sudanese citizens have been making in South Sudan in respect to judiciary.
Therefore, before I conclude this article, I must strongly stress that if the President is hoping that he will bring peace through adopting dictatorial approach to the demands of justice by the citizens, then, he is mistaken. Peace is not a product of force but a production of concession through protracted negotiations. I must, therefore, tell the President of South Sudan in the face that he is supinely relying on phantom hope that by adopting autocratic address the discontent of citizens is a naked mistake.
The president must know that people accept to go into peace or any solutions not because of force but because the process is fair and that the peace or solution being offered will address the past causes of the conflict we are trying to settle at present. Hence, the only way the permanent peace can be achieved in or problems can be minimized in South Sudan is to strengthen the Court, which will further help to enforce the respect of the rule of law by granting strong protection to the citizens and their rights. Strengthening the court means ensuring the independence of judiciary.
If the president refuses to reform the judiciary and continues to threaten the remaining judges and justices then I am of the opinion that all justices except the Chief Justice should resign enmass.
In conclusion, the importance of the rule of law must be emphasized with the use of the words of one of the Secretary-Generals of the United Nations who once defined the rule of law as: a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.
Rule of law requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. The action of the president of dismissing judges is therefore illegal as it violates the supremacy of the Constitution of South Sudan.
The author is human right lawyer and a member of Network of Public interest lawyers in Uganda and can be reached through: +256783579256; or juoldaniel@yahoo.com
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