The Rule of Law: How to Create and Maintain it in Gok State
By Daniel Juol Nhomngek, Kampala, Uganda
Introduction
December 8, 2017 (SSB) — Before going into the discussion over how to create and maintain the rule of law in Gok State, it is imperative to acknowledge the fundamental roles played by different Gok people in being a constant voice of what should be done to achieve peace in Gok State. The first acknowledgment goes to our elder brother Tembany Matur Malek whose desires and actions are always for Gok State and Gok people. In fact, no amount of words that can be expressed to pay him back for his zeal and commitments to seeing Gok State a peaceful, united and prosperous state. In general, he has been a constant reminder of how to achieve peace in Gok State with the unwavering spirit.
In the same line, I would also like to acknowledge and thank our elder sister Helen Philip Ater Dhal and all other Gok people in the USA, Canada, UK, Australia, other parts of Europe, China East African countries and inside South Sudan for their concerns and role tilted towards achieving peace in Gok State. Without over-exaggerating the contributions of the Gok people mentioned above, it is my conclusion that their contributions have made Gok State what it is today. Without their help, the majority of our people would have died during the war, especially from the 2000s to 2005 and from 2013 to date.
Furthermore, their help in educating, providing health care and other logistics to our people is something that cannot be taken for granted. Their efforts in supporting Gok people has to be appreciated, applauded and taken into full consideration. Of course, there is nothing we can do to repay them but we shall be constantly praying for them so that God gives them His abundant blessings. May Gok bless them and make their dream of achieving peace in Gok State possible.
Meaning of law, nature of law, order, rule of law and law and order
Coming to the topic that was introduced by our brother Tembany Matur last week on how to create and maintain law and order in Gok State, and which I was about to be the Guest Speaker but for the internet failure I was not able to participate, this is what I think should be done to achieve law and order in Gok State.
First of all, it is my view that whenever we discuss law and order, it is important to always, to begin with what the law is because without law there is no order. In this regard, the law is broadly defined as a set of shared or at least accepted rules governing social interaction. It is a social institution but the way in which law is organized or manifest in different societies varies. It is on that point MALCOLM N. SHAW in his International Law Text, Fifth Edition Cambridge describes the nature and development of law in these words:
“In the long march of mankind from the cave to the computer, a central role has always been played by the idea of law – the idea that order is necessary and chaos inimical to a just and stable existence. Every society, whether it be large or small, powerful or weak, has created for itself a framework of principles within which to develop. What can be done, what cannot be done, permissible acts, forbidden acts, have all been spelled out within the consciousness of that community. Progress, with its inexplicable leaps and bounds, has always been based upon the group as men and women combine to pursue commonly accepted goals, whether these be hunting animals, growing food or simply making money”.
He further defines law as “…that element which binds the members of the community together in their adherence to recognized values and standards. It is both permissive in allowing individuals to establish their own legal relations with rights and duties, as in the creation of contracts and coercive, as it punishes those who infringe its regulations. Law consists of a series of rules regulating behavior, and reflecting, to some extent, the ideas and preoccupations of the society within which it functions”.
From the above explanation of the law by Malcolm that we can state that it is through the law that the idea of order in the society can be achieved. In fact, the order is necessary to control chaos, which is “inimical to a just and stable existence”. It should, therefore, be pointed out that in order to achieve order in a given society the law must be observed or obeyed by everybody in that society irrespective of their status. This pointed to the fact that order is as a product of the observance of the law as where the law is not observed there is no order in the real sense. Because of that, Black’s Law Dictionary defines order as the mandate, precept; command or direction was authoritatively given through rules or regulations.
This points persistently towards the relationship between law and order that gives rise to the concept of a legal order. In that respect, the highest point of the legal order is the constitution that provides the basis for other laws or legislation. For this reason, general norms are established by legislation that determines legal organizations and procedure.
However, it is important to stress that law and order is not created by the people but it is created by the authority that is ready to obey the law. Otherwise, where the authority thinks that it is above the law, law and order will never be achieved and there will always be rebellion in one way or the other in such a state as corruption will be rampant. Hence, it should be noted that for us to achieve law and order not only in Gok State but in South Sudan as a whole, there must be strong leadership that is willing to obey the dictates of law.
Moreover, where the leader is ready to obey the law and operate in its confine, then, there is rule of law and law and order. In this context, rule of law is a legal principle, of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. It is sometimes called “the supremacy of law”, which provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application by the leaders.
Destruction of law and order in Gok State by the citizens and the cause of the failure by the authority in the state
In relating the above discussion to Gok State and based on the current prevailing situations on the ground, the appropriate conclusion that can be reached is that there is no law and order and the rule of law in Gok State. In reality, the State has become the sanctuary of barbarism, savagery, and witch-hunt. Different tribal groups or properly defined by clans affiliations and who hungry for blood caused by the unfailing the spirit of revenge have turned the state into the ground for human hunting and killings. In other words, there is the reign of terror in Gok State as the power of the government has drastically been diminished by these citizens who hold guns uncontrollably everywhere even within the State Capital (Cueibet) since the government is not above to control them.
In actual sense, the majority of the cattle-keeping youth have thrown the law into abeyance and put the government under their control as shown by the facts that government does nothing but to plead with them when their desire to revenge gas engulfed their spirit. However to be fair, what brought weakness in failure to control these uncouth youth is the Central Government in Juba that prohibited the State authorities from adopting the approach applicable to the nature of the Gok people.
Due to the interference from the Central Government in Juba that directed the Gok State Government on how to govern citizens in disregard to what people on the ground wanted, the present terrible mess as already described above ensued. The question to be answered now is how to create order out of the chaos that will lead to the creation of law and order that will finally be followed by the discussion on how to maintain the same after it has been created.
Root causes of the conflict, law, and order, challenges in its creation, its maintenance and the rule of law in the context of Gok State
For the law and order and the rule of law to be created and then maintained in Gok State, there is a need for us to understand the root causes of the conflict and challenges faced by the authorities in maintaining law and order. The analysis should, therefore, be based on the facts on the ground and the nature of the people who perpetuate the conflict there. For that reason, it is therefore important to avoid judging the conflict based on the standards we already know.
The fact is that the situation in Gok State is very complex and daunting task to carry out. Hence, in order to properly understand and to achieve proper analysis of the situations in Gok State and to finally find an appropriate solution, it is important to get the facts as they without attaching our emotions. It should be observed that the conflict in Gok States has its roots in historical relations between communities, which is characterised by injustices caused by the communities against each other without effective courts of law that provides strong justice system to address the needs of the people for justice and also lack of effective authority that establishes strong system. The same is further perpetuated by the following factors:
First of all there are weak or poor state-citizen relations; secondly, the failure of the state to involve citizens in issues of security as state has a tendency of viewing security as the role of state authorities exclusively; thirdly, there is lack of understanding of citizens on how they are governed since they are blocked out from interacting with the authorities. For instance, the way governor and other government officials ring-fence themselves with security guards criminalize innocent citizens and this creates a gap between the authority and citizens, which is the cause of insecurity itself.
Fourthly, there is lack of institutional resources and capacity which makes it hard for the State government to implement its authorities in relation to the protection of the citizens; fifthly, there are challenges in fostering genuine accountability and political incentives for security and justice reform in the state as the government officials are not willing to obey the law; sixthly, failure by the authorities to engage the public that leads to the lack of active citizenship and public engagement on issues related to security and justice that leaves the tensions within and between communities unaddressed that eventually leads to conflict.
Seventh, lack of effective models for providing security, including poor rule of law and access to justice at the local level as the roles of courts is not properly defined at the state levels as well aggravated by the poor delivery of justice by the available traditional courts that are always purchased by those who have cows and resources, hence, rampant purchase of justice.
Eighth, there is lack of decent opportunities for income generation and better livelihoods among cattle-keeping youth that lead them to remain idle hence make use of that idleness through revenge killings and other subterfuge activities intended to destroy each other. Ninth, the issue of gender inequality and its potential to feed into gender-based violence and gender-related conflict dynamics caused by it. For instance, the fact that women are seen as the source of income and that can be forced into marriage without their consent has been sourced in conflicts in Gok State among different communities.
Tenth and finally, the need to reintegrate former combatants into communities, the need to decentralize, or extend the reach of, security and justice provision whilst maintaining values and accountability and the need to anticipate tensions and security challenges and work on them preventatively and constructively is not carried out properly that always prove to be potential cause of conflict or provide incentive to conflict.
How to overcome the above challenges, end insecurities, create law and order and the rule of law in Gok State
The above discussion leads to the next core issue that deals with how to overcome the challenges mentioned above, create law and order, rule of law in Gok State and to permanently disable the spirit that leads the youth to revenge and kill each other.
The first thing to be done is for the authority to think critically about how to end the present dangerous conflict in Gok State. This must involve two-pronged approach: the first approach is for the State Governor to talk to the president of the Republic of South Sudan to send the battalion of the army to Gok State immediately. After such an army has been sent, the Governor should declare the State of emergency with the sanction from the President of South Sudan that authorizes him to shoot to kill any person that disobeys law and order within that period. The period of State of Emergence should be two or so months as the conditions on the ground may allow.
While the State of Emergency is still in place, the disarmament program should be launched in which every person capable of owning a gun should be given a period to hand over their weapons to the authorities. The period should be within one month and after that, it will be illegal to find someone carrying a gun without a license from lawful authority and such a person caught with the illegal army should face the heavy penalty. At the same time, all persons that have been engaged in killings since 2015 to date should be arrested to face justice and all cases that were badly tried should be retried. This implies in order to carry out the issues of disarmament and provision of justice, legal institutions responsible for the enforcement and maintenance of law such as police, courts and the state legislature should be strengthened.
Those citizens who have killings since 2015 to date should be arrested and brought to court for punishment. This means that the issues of criminal courts or legal services should be emphasized and the death penalty should be put in place and strictly observed. This implies that the issues of blood compensation should be reconsidered and should only be awarded in cases of accidents or being carried out along death penalty.
Based on the above recommendations, it implies that in Gok State the Court system should be established with the highest Court (Supreme Court of Gok State) whose decision shall be final. The judges to sit in that court should be those qualified to sit in Supreme Court of South Sudan though the quorum should be reduced to be less than that in Juba in order to make it efficient as well as affordable by the State. It follows that once the strong Court system is established, there is a need for the state to build large, good and maximum prison in the outskirt of Gok State, preferably, that side of Roordit where there is fertile soil with the intention of establishing the Government garden where those prisoners serving prison terms should work to produce food for the government and the State in general.
In addition, there should also be the separate prison for those sentenced to death which provides for the place of execution where those who are supposed to be executed after being sentenced to death by the competent court and after their appeal to the highest Court in the State has been rejected. For those who are serving prison terms for a given period apart from working in the gardens of government, they should be trained in various areas such as carpentry, volleyball, running, meditation and other productive activities that will enable them to live productive lives as reformed citizens after having successfully served their sentence.
The question that many may ask is how will it be possible without resources? The answer is that it is possible. What is needed is plans, organization, transparency and accountability and political will. Thus, if the State government reforms in accordance with these principles the donors can easily fund such a project. For instance, if the government of the State comes up with this plan entitled Law and Security reform in Gok State with clear enforcement mechanisms and sanctioned by the South Sudan Government with support from local people the UNMISS or other NGOs in South Sudan can fund it unreservedly.
Reconciliation, dialogue, community security approach and lasting peace in Gok State
After the security has been stabilized and peace restored which must be done within three months or so, the next step is to go into the issues of reconciliation and dialogue among Gok people in order to achieve lasting peace. The State dialogue committee should be appointed among Gok State Citizens or other South Sudanese citizens who are respected.
The dialogue should follow the lines of the conflict among Gok State Communities or clans so that every community that has a conflict with the other community should be brought together to dialogue and agree on other they should stay and relate with each other in future and how such agreement can be enforced with clear sanctions. The same thing should be done through Gok State among and between various feuding communities. The results of their dialogue and agreements as envisaged above should be combined and analyzed to provide for the basis of criminal law in Gok State.
The approach explained above is what is meant by community security (see; SAFERWORLD’s Community Security Handbook). Hence, community security is a people-centered approach to addressing insecurity that integrates human security, development and state building paradigms. It works by bringing together a wide range of state and civil society actors from the security demand and supply sides to identify root causes of insecurity collectively and develop coordinated responses to them.
The approach builds the capacity and willingness of communities, local authorities and security providers to address their own sources of insecurity. It creates an enabling environment for wider reforms and more people focused policies at the sub-national and national levels. By bringing together a wide range of actors, Community Security creates working partnerships between communities and service providers in the pursuit of mutually beneficial security improvements.
Because they are community-defined, these improvements might encompass anything from the development of viable livelihoods to better policing, improved infrastructure, or more cooperative relationships. The shape and outcomes of a Community Security process thus depend on the needs and resources available in each context, and the overall safety and security situation experienced within communities.
Conclusion
In conclusion, it should be observed that peacebuilding and state-building are reinforcing processes that support the building of effective, legitimate, accountable and responsive states. These overlapping but distinct processes are essential elements for guiding State efforts in addressing state fragility and promoting peace and stability in situations of conflict and fragility as it is seen in Gok State.
Key peacebuilding objectives in any State should include: preventing communities from lapsing or relapsing into violent conflict; establishing structures and incentives for peaceful mitigation of conflicts; incentivizing elite and cattle-keeping youth commitment to peace processes, while laying the groundwork for those processes to be made more inclusive over time; establishing a framework for political, security and economic transition; jump-starting recovery; demonstrating peace dividends by meeting the urgent needs of the population.
Furthermore, in order to maintain law and order and peace in Gok State, there must be effective leadership. The effective leader is someone who is full of drive, energy, and ambition; is tenacious and pro-active in pursuing his goals; he wants to lead but does not crave power for the sake of dominating others but for the sake of achieving an overarching goal; he or she is honest and have integrity.
Effective has a high degree of self-confidence, which enables him or her not only to undertake grave responsibilities and generate confidence in others but to cope with many potentially stressful situations with equanimity. He or she is often creative, strategically flexible and charismatic
It is therefore important to conclude that if all I have explained above are done and the leadership with the above attributes is found for Gok State to Govern Gok State then the lasting peace can be achieved in Gok State which is the same as in South Sudan in general.
NB//: the author is a lawyer by profession and he can be reached through juoldaniel2003@gmail.com
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