Is Independence of the Judiciary of South Sudan a Reality or Myth?

By Tong Kot Kuocnin, Nairobi, Kenya

Monday, May 21, 2018 (PW) —The increasing reliance by South Sudan polity on the court to decide major political disputes and issues of public interest has brought the independence of the Judiciary into sharp focus and criticism.

Informed opinions on the Judiciary in South Sudan varies between those who believe that the “Judiciary is dead” or that it is “on trial” and the more compassionate view that it is a “beast of burden” or a “sacrificial lamb” waiting to be roasted by the executive.

These remarks are derive from observations of the alleged or actual behaviors of the judges and their independence, impartiality and integrity. While the above metaphors may be subject to various interpretations, they do raise consideration, curiosity and interest as to why our Judiciary should attract such comments and perhaps to what extent the concepts are justified.

This writer has incessantly, on numerous instances, written extensively on the independence and impartiality of the judiciary, its judicialization, institutional reforms needed and whether the judiciary has been politicized or is it in crisis.

This article thus, examines whether the independence of the Judiciary in South Sudan is a reality or myth and concludes that the high sounding constitutional provision relating to judicial independence has no bite and what could have been constitutional guarantees of judicial independence is no more than a slogan in South Sudan thence calling for reforms.

The central trust and objective of this article is again, to look at the independence of the Judiciary in South Sudan whether it is a reality or a myth. Of the three arms of government, the Judiciary is the branch of government that enables our decisions to be translated into law, the justice of which must be apparent.

The Judiciary has the duty of directing the society to the attainment of justice. Institutionally therefore, the Judicial process is in a sense the heart of any political system even in the must organized societies, the role of the leader in settling disputes was perhaps, the most important and most frequently performed. That the nation’s Judiciary is currently passing through a difficult and traumatic phase in its annals is quite obvious and certainly not in doubt.

It is a phase which is evidently marked by deep loss of faith in the judicial process and the courts. Claims of ethnic lopsidedness in the composition of the Judiciary, serious allegation of corruption, ineptitude, laziness, incompetence against judicial officers (predominantly ill-trained Arabic judicial officers), charges of abuse of office even against the Supreme Court chief-judge in the discharge of its judicial functions and stemming out from want of judicial independence are bound.

The above charges have prevented the South Sudanese Judiciary over the years from acting as a check and balance on the excesses of other arms of government within its constitutional boundaries.

This article hitherto posits that the lack of independence and impartiality of the Judiciary in South Sudan has paved the way to the myriads of problems bedeviling the Judiciary ranging from lack of courage and temptation to corruption in deciding political cases especially the determination of election petition, petition challenging the creation of twenty-eight (28) now thirty-two (32) States, appointment and dismissal of judges and justices, security of tenure and remuneration, institutional autonomy, judicial accountability, adequacy of resources for the courts, media and societal pressure and scope of judicial power and justifiability greatly affects the independence of the Judiciary.

Having made this brief introductory remark, it is now apt to look at some conceptual clarifications.

Meaning of Independence, Judiciary and Judicial Independence

“Independence” has been defined by Black’s Law Dictionary as the state or quality of being independent especially a country’s freedom to manage all its affairs, whether external or internal, without control by other countries.

However, the word “Judiciary” has been defined as the system of court of justice in a country. The department of Government charged or concerned with the administration of justice, the judges, taken collectively, as, the liberties of the people are secured by a wise and independent Judiciary.

The term in its current use, is used in describing the method of selecting judges in a state or country; as an adjective, of appertaining to the administration of justice or the court”. Judiciary has equally been defined as: “The judges of a state collectively”. Therefore, Judiciary is a collection of all judges be it first instance of trial judges or appellate judges. From these definitions, the Judiciary can be summarized up to mean that branch of government in a democratic system of government of the people, by the people and for the people”.

For “Judicial Independence”, there appears not to be a précised definition of what judicial independence means. However, in its simple terminology, judicial independence can be defined as the ability of a judge to decide a matter free from pressures or inducements.

The Judiciary as an institution, judicial independence means the ability of the Judiciary to be independent by being separate from government and other concentrations of power. The principal role of an independent Judiciary is to uphold the rule of law and to ensure the supremacy of the law.

Judicial Power and Responsibility Allocated to the Judiciary by the Transitional Constitution of the Republic of South Sudan, 2011 and its Role to the Society.

The vesting of judicial powers in the courts established by the 2011 Constitution imposes onerous responsibilities on judicial officers whose primary function is to administer justice according to law and the constitution.

The nature of the office and functions of judicial officer’s call for a high sense of duty, responsibility, commitment, discipline, great intellect, integrity, probity and transparency. However, equally so important is the place of Judiciary in the scheme of things that the constitution forbids the legislature from enacting any law that: “Oust or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law”

The Judiciary being the third arm of government has the onerous function of interpreting the laws. Its functions may be expressed in the Latin words jus-dicere non jus dare which is to declare the law and not make one. It is for the judge to declare the existing law and not make one (Judicis est jus dicere non dare).

Thus, in the execution of its mandate of interpretation of law and administering justice, it must therefore be said that, the Judiciary is not tied to the apron strings of any political party, pressure group, religious, racial or ethnic group, sex, geo-political entity, etc and this explain why the symbol of justice is depicted as a blindfolded person (Lady) holding two even scales, meaning that the Judiciary is to dispense justice to all manner of people without fear or favour, affection or ill-will.

The questions I ask is, has the Judiciary of South Sudan upholds this noble task? Has the judiciary rose up to its constitutional mandate and adhere to its independence, impartiality and non-partisan role to South Sudanese society? It is unfortunate that I haven’t got, and neither did any south Sudanese gotten any answer to the above questions.

As we all struggle to get appropriate answers to the above questions, I certainly deeply got consoled by Lord Atkins, who in no mincing words put the above position clear when in the case of LIVESIDGE VS ANDERSON said: “…It has been one of the pillars of freedom, one of the principle of liberty… that the judges are no respecter of persons and stand between the subject and any attempted encroachment on his liberty…alert to see that any coercive action is justified in law”.

On the same vein, this succinctly remains my honorable judges and justices of our great judiciary that, so fortified is the pronouncement made by them (judges and justices) that their decisions and or pronouncements remains valid until set aside by a more superior court of record duly constituted by law.

Thus above however does not mean that the judges are not fallible. Judges are human beings with mortal frailties but with specialized skills to dispense justice in accordance with the dictates of justice by virtue of their training and professional calling.

The judges may therefore err but the revision of its decision can only be done by an orderly process of an appeal and not by disregarding the decision of the courts with impunity. Thence in the determination of cases, cases are to be determined not on the basis of technicalities but on the basis of substantial justice especially in election petition cases.

Thence, numerous petitions before the Constitutional Panel in the Supreme Court of South Sudan are a serious setback and a sham to the noble task bestowed upon the judiciary to dispense justice with impartiality and total independence from any other arm of the government as provided for under Article 122(5)(a) of the Transitional Constitution of the Republic of South Sudan which stipulate that: “justice shall be done to all irrespective of their social¸ political or economic status, gender, religion or beliefs”.

Elements of Judicial Independence

The concept of judicial independence has many elements which can broadly fall under the headings of:

• Appointment and Removal of judicial officers and judicial staff
• Security of tenure and remuneration of judges and supporting staff
• Budgetary provisions (process)
• Individual and institutional freedom from unwarranted interference with the judicial process by the executive arm of government and politicians.

The road is now clear to expatiate on these basic elements and draw examples as to their applicability in contemporary South Sudan’s judicial system.

Appointment and Removal of Judicial Officers and Judicial Staff

To have a vibrant Judiciary, care must be taken from the onset in the selection or appointment process. Care must be taken that only highly trained, competent, ethical and intelligent men and women are recruited. They must be creative because their creative role in the society is important in carrying out their responsibilities to ensure a balanced society. More so as their decision becomes prudent which will help the society in the development of the law as the society grows.

Underscoring the importance of appointing competent judicial officers to the bench, Charles Evans Hughes states and I quote verbatim: “A poor judge is perhaps, the most wasteful indulgence of the community. You can refuse to patronize a merchant who does not carry good stock, but you have no recourse if you are haled before a judge whose mental or moral goods are inferior.

An honest, high minded, able and fearless judge is the most valuable servant of democracy, for he illuminate justice as he/she reinterprets and applies the law, as he makes clear the benefits and the short comings of the standards of individual and community rights among a free people”. Emphasis added.

In capturing the harm that a corrupt judge will inflict in the society however, UWAIS JSC prudently said: “A corrupt judge is more harmful to the society than a man who runs amok with a dagger in a crowded street. The latter can be restrained physically. But a corrupt judge deliberately destroys the moral foundation of society and causes incalculable distress to individuals through abusing his office while still being referred to as honorable”.

Putting it more succinctly, Oputa JSC of the Nigerian Supreme Court said: “… No one should go to the bench to amass wealth, for money corrupts and pollutes not only the channels of justice but also the very stream itself. It is a calamity to have a corrupt judge. The passing away of a great advocate does not pose such public danger as the appearance of a corrupt judge on the bench, for in the latter instance, the public interest is bound to suffer and elegant justice is mocked, debased, depreciated and auctioned. When justice is bought and sold, there is no more hope for society. What our society need is an honest, trusted and trustworthy Judiciary”.

Equally, Dr. Akinola Aguda of the Supreme Court of Nigeria seemed to be thinking along these lines when he said: “It is beyond dispute that to sustain a democracy in the modern world, an independent, impartial and upright Judiciary is a necessity”.

However, two methods of appointments can be discerned from the Constitution of the Republic of South Sudan, 2011 as per the provisions of Article 133 namely:

• The President of the Republic shall appoint the Chief Justice having regard to competence, integrity, credibility and impartiality in accordance with this Constitution and the law.
• The President shall, upon the recommendation of the Judicial Service Commission, appoint the Deputy Chief Justice and Justices of the Supreme Court, Justices of the Courts of Appeal and the Judges of the High Courts and County Courts having regard to competence, integrity, credibility and impartiality in accordance with this Constitution and the law.

The real maker of the appointment appear to be the President than Judicial Council as per the provisions of Section 7(c) of the Judicial Service Council Act, 2008.  This seems like a discretion is vested on the President in relation to the above as provided under article 133(1). While he cannot appoint a person who has not been recommended by the Council, he is seemed not bound to appoint a person on whom a favorable recommendation has been made by the council.

Where the President turns down a person recommended by the Council, a non-recommended person cannot and must not be appointed if the true spirit of the Judicial Service Council Act, 2008 is strictly adhered to. The Council must/should be requested by the President to recommend to him other person(s) if he is not pleased with the person so recommended by the Council.

This is where the politicking comes in. Appointments with Judicial Service Council of various judges and justices often made shouldn’t be based on political affiliation and political accounts aren’t supposed to be taken into consideration on the case of recommendation. If this is the case, then the tenets of recruiting highly trained, competent, integrity, ethical and intelligent men and women will seriously be compromised, hence putting independence and impartiality of the judiciary at risk.

The appointment of chief justice by president without being recommended by the Judicial Service Council/Commission relegates the chief justice to be controlled by the executive and thus used by the executive (President) to veto important decisions of the Chief Judge especially where the decisions does not go down well with the interest of the government.

Equally, any appointment that is based on undue emphasis on geopolitical or ethnic considerations could in the process utterly result to the recruitment of incompetent people who are appointed based on these considerations.

Removal of judicial officers under our present dispensation is done by the President upon a request made by the Chief Justice without any recommendation from the Judicial Service Council calling for such removal on the ground of misconduct or inability to discharge the functions of the office (in the case of the Chief Justice) or (in the case of other judicial officers). It is clear from the above that appointment and removal of judges in South Sudan have been mainly in the hands of politicians (not civilians) or military as the case may be.

A lot of judges have faced and some are still facing harassment at the hands of politicians when they make hard decisions not favouring them.  The nation has witnessed a spate of harassment of some judicial officers by politicians who are senior government official protecting their interests.

This for instance, has sometime in 2015, a frantic attempt was made to remove the then Deputy Chief Justice, Hon. Justice Ruben Madol Arol whose his service was unconstitutionally terminated because the current Chief Justice whispered into the ears of the President that Justice Madol was critical of his order which was alleged to have been done outside constitutional parameters.

Justice Madol became a victim of his constitutional mandate to discharge his duties of dispensing justice irrespective of political, religions, sex, and social affiliation. This happens at about the same time the current Chief Justice was having a rough time with the opposition parties who were opposed not to the creation of the states but unconstitutional methods devised to create them as the litigants lost confidence in him.

Security of Tenure and Remuneration of Judges and Supporting Staff

According to the Judiciary Act, 2008, the promotion of all Justices and Judges shall be based on competence and seniority. They are appointed, promoted and subjected to disciplinary control before Board of Discipline as per the provisions of Section 49 of the Judiciary Act, 2008.

Remuneration of all justices and judges of various courts has caused very stiff confrontation and puts the president of the Supreme Court at loggerhead with his colleagues as the Chief Justice was blatantly opposed to the demands of judges and justices to have conducive working environment over the years.

The major problem has nothing to do with judges of the lower courts only, even the justices at the apex court have also joined their colleagues from the courts of appeal, the high courts and the county courts. However, the result was the dismissal of the judges and justices who, on behalf of all judges and justice, demanded that their working conditions be improved.

Judges and justices are suffering and have suffered for so long. They are not covered. They take home peanuts. Their salaries, allowances, environment and social facilities both in their places of work and family matters are pathetic. This paves way for manifest delay of disposing cases at a shorter period of time, hence causing backload of cases and ineptitude and generally lack of seriousness to work.

Budgetary Independence

The constitution made it clear under Article 124(2) that “The budget of the Judiciary, after its approval by the National Judicial Service Commission and assent of the President, shall be charged on the consolidated fund and it shall have the financial independence in the management thereof. The same article 124(3) provides further that the Judiciary shall be self-accounting and its finances shall be subject to public audit.

However, the involvement of the Government of South Sudan in the budget process of the Judiciary of south Sudan is an indication of the extent of the lack of judicial independence in South Sudan.

This goes without any saying that unchecked domination of one branch over the other can produce dysfunctional budgetary allocation process. As clearly shown in the past, constitutional provisions have been recklessly ignored by the Government particularly with regards to capital expenditure of judiciary although the constitution clearly provides:

“The budget of the Judiciary, after its approval by the National Judicial Service Commission and assent of the President, shall be charged on the consolidated fund and it shall have the financial independence in the management thereof. The Judiciary shall be self-accounting and its finances shall be subject to public audit”.

This provision rather than being complied with by the Government is often breached especially where the head of the Judiciary is a good boy of the Government. This dysfunctional budgetary allocation has given rise to disastrous situation for the Judiciary.

Absence of funds led to non-availability of physical structures or grossly inadequate structures like Court halls, chambers, Registries and offices for supporting staff which in turn had affected the flow of cases and other essential services thus leading the system not been able to face the demand and deliver the requisite justice demanded.

Sometimes salaries and allowance of supporting staff can be too low and in arrears for months thereby creating an atmosphere of frustration and discontentment, which normally breeds indiscipline, corruption and eventually breakdown of the system.

Individual and institutional freedom from unwarranted interference with the judicial process by the executive arm of government and politicians.

The history of the Judiciary around the world demonstrates that the greatest danger of interference comes from other government institutions or political parties. An independent Judiciary must not only be independent in unwarranted interference with the judicial process by the executive arm of government and politicians but it must appear to be independent. This brings into operation the popular adage “Justice must not only be done, but also must seen to be done”.

To remain just, the courts must not be influenced by any outside sources or appear to be capable of such influence. To aid such a perception, they must have no real or apparent contact with a political party. If such contact exists, they would appear to be bias in favour of the policies of that party or if the party controls the state, to be biased in favour of the state, succumbing to pressures from the executive arms to inappropriate interference with judicial independence.

Access to judges outside official channels has been one of the greatest problems that further threaten the independence of the Judiciaries in Africa. However, this has been case in South Sudan where Governors of states have direct access to judges within the state even as it relates to matters in court.

The unresolved saga between the current Chief Justice of South Sudan and the petition lodged by the political party’s Alliance is a living example. Thence the unbridled access to judges and justices amount to self-erosion by the Judiciary of the principle of independence of the Judiciary. What is more, judges, drivers, stewards, gardeners, salesmen, orderlies, registrars and other staff reveal information as to who visits their boss to the outside world.

Intimidation and lawlessness by members of the executive especially Governors abound Governors show contempt to court order when it does not please them and even the legislators.

One wonders the justification where a governor had the impudence to summon a Judge to come and answer question in connection with his work in a Court of law, or a situation when a state police commissioner refuses to comply with a High Court order to dispense justice. It’s an abhorring situation.

Conclusion

The Judiciary is the mighty fortress against tyrannous and oppressive laws. The importance of the Judiciary cannot therefore be over emphasized. It is not an overstatement to assert that an independent Judiciary is the greatest asset of a free people. The Judiciary by the nature of its functions and role is the citizen last line of defence in a free society that is the line separating constitutionalism from totalitarianism.

I however need to appreciate that the position of the Judiciary in a democratic setting is a delicate one. More often than not, the Judiciary of South Sudan has been the sacrificial lambs on the altar of societal imperfection and contradictions as the executive power grows stronger day by day.

When politicians rig election, it is the Judiciary that is called upon to decide who actually won the election. This has been the case in the Neighbouring Kenya where the judiciary has done fairly well.

Again, when politicians loot the nation’s treasury in their unconscionable quest to become millionaires and billionaires, it is the judges that are called upon to hold the tribunals to inquire into their activities or to try them and hold to account those who have misused their authority to enrich themselves at the behest of the commons.

Thus, the question which still remain unanswered is whether or not the independence of the judiciary of South Sudan is a “Reality or a Myth”?

The author holds Bachelor of Laws (LLB) Degree from the University of Juba and a Master of Laws (LLM) specializing in Law, Governance and Democracy from the University of Nairobi. He an advocate before all courts and his areas of research interest are: constitutional law and human rights, access to justice and transitional justice, rule of law and good governance. You can reach him via his email: Bullen Tong <tongbullen@gmail.com>

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