In Memory of Justice John Wuol Makec: The Epitome of a Good Character in the History of the South Sudanese Legal Fraternity

By Wol Deng Akech, Juba, South Sudan

 1. INTRODUCTION 

Friday, February 15, 2019 (PW) — 15^th January 2019 marked the second anniversary since his Lordship Justice John Wuol[i] Makec left us and being one among his enormous academic products/beneficiaries, I deem it necessary to pen down some of his indomitable deeds. It is in this course that I wish to speak of and dedicate this piece to Late Justice John Wuol Makec. Due to insufficient information concerning his long service and time factor at my disposal, I may not be able to describe this celebrated judge of our country in every detail. But to start with, perhaps, Justice A. K. Sikri of the Supreme Court of India’s dictum in the landmark case of Justice K. S. Puttaswamy & others v. Union of India & others also known as Aadhaar case[ii], is more pertinent in describing late Justice John Wuol Makec. A. K. Sikri J writing for the majority of the Court stated:

“It is better to be unique than the best. Because, being the best makes you number one, but being unique makes you the only one”

Indeed, Justice Wuol was a great distinguished unique judge. In this paper, my attempt is not to place late Justice Wuol as number one among his colleagues whether in politics, legal fraternity or academia but to show his only uniqueness among many, a uniqueness which remains hardly and rarely seen nowadays. This makes him a man to be remembered by all forever. Such figurative narration of being the best is not aimed at in any way in this work; but it should be noted that it is merely to avoid sparking unnecessary debate. This piece of writing may also be treated as a memory and an appeal to all public institutions and individuals/persons who in one way or the other have served with, under or benefited from the service delivered by this great legend of our country to think of thanksgiving for him.

2. WHO IS JUSTICE JOHN WUOL MAKEC?

Perhaps it will not be out of articulation nor would it be an exaggeration to say that any intellectual or any attendee in intellectual circles knows something about Justice John Wuol Makec’s life. He was born in Rumbek early 1940. He received his secondary education at the prestigious Rumbek Secondary School in 1964, read law at University of Khartoum’s Faculty of Law and University of London’s School of Oriental and African Studies (SOAS) in 1969 and 1980 respectively. His death with the early demise of legal luminaries such as Prof. Peter Nyot Kok, Prof. Akolda Ma’an Tier, Dr. William Kon Bior among others has utterly added a big vacuum in our legal fraternity and scholarship.

For the starters, he was a soft spoken Statesman with a great sense of non-partisan politics on one hand and on the other, a diligent, independent, impartial judge and above all, a core jurist who believed in nothing but law and justice.   He has inspired many, both at the Bar and Benches as well as our nascent legal education and research. To put it differently, his footmarks will remain difficult to be emulated by many of the contemporaries if not few at a time when partisan politics and political tribalism remained entrenched into our society ranging over justice and professional ethics serving as the measurement of patriotism. For his students or associates, they have had firsthand experience of what the great English judge, Lord Hewart hypothetically described of the character of a judge in the case of R v. Sussex Justices, ex parte McCrath[iii], that “judges, like Caesar’s wife should be above suspicion”. Indeed Justice Wuol in his brief political life, at the bench and at the Law School was free of any suspicion or influence. As a Justice/Chief Justice of the Supreme Court of [South] Sudan, legislator, Minister and Law Professor, it would serve a better purpose to examine each of the assignments and finally provide conclusion with recommendations.

3. AS A LEGISLATOR AND A MINISTER

Perhaps Justice Wuol managed to emerge as unique and successful in different portfolios he served maybe because he started his public service life as civil servant. Having graduated in 1969, he briefly served in the Ministry of Labour till mid 1970. Some of his associates confide that during his university days, despite of the highest peak reached by the student activism, Justice Wuol maintained to be a non-partisan but committed to the national agenda and indeed for the cause of the people of South Sudan. His background as a non-partisan student but yet a patriot, the doctrine of strictissimi juris in civil service law can be said to have great influence in addition to his childhood socialisation.[iv] These circumstances might have prepared him for all of his later assignments which he accomplished without disappointing even those who did not fall into the same line of thinking with him. Justice Wuol became active in politics in 1982 when he was appointed as Minister of Cooperatives and Rural Development in the Regional Government, Juba in 1982-1983. After President Nimery’s infamous division of Southern Sudan, Justice Wuol served as Speaker of People’s Regional Assembly of Bahr el Ghazal, Wau from 1983-1985.

It is not possible to treat comprehensively the account of Justice Wuol as Minister and Speaker which the purpose of this paper does not in any way try to claim or cover. However, one most relevant account deserves mentioning and our attention at this point. As Speaker, he made great efforts by drafting and enacting the Bahr el Ghazal Customary Law Act, 1984.[v] This Act serves as the first codification and recognition of the indigenous/ancestral laws of our people by the then Sudanese State as part of the enacted law in the Sudan. The Act operated and continued to be referred to as the basis and reference for any future legislation on the customary laws in the country as a whole. Many researchers[vi] in the field of customary law praise him for having organised and convened a conference at Wanhalel in 1984 which attempted to codify the Dinka, Nuer and Shilluk Customary Laws before the end of his tenure as Speaker. The resolutions of this conference worked as written references of customary laws of the three nationalities and used as guides by the County court judges and researchers. This short and brief account shows his enigmatic wisdom of non-partisan politics which he embarked on since his university studentship days which he categorically based on the recognition of our indigenous laws as paramount and distinct in achieving the unity in all aspects.

4. JUSTICE JOHN WUOL MAKEC SITTING ON THE BENCH

Justice Wuol joined Sudan’s lower judiciary in Sept 1970. After the downfall of President Nimeiry’s regime, in 1986, he was elevated as judge of the Court of Appeal, a capacity in which he served until promoted as Justice of Supreme Court of the Sudan in 1995 and Constitutional Court in 2005-2007. Shortly thereafter, H.E President Salva Kiir appointed him as President of Supreme Court of Southern Sudan in 2007 where he served and continued as the first Chief Justice of Supreme Court of the independent South Sudan till his retirement in July 2011.[vii] As pointed out early, Justice Wuol was a core example of an independent, impartial judge who had dedicated his life and loved his work with a genuine affection to his colleagues and members of the Bar.

As it is a known fact by that time in Southern Sudan, military commanders and officers regarded themselves as parallel Governors beside civil authorities in the region just like some few SPLA Generals and officers still practice today by disregarding the Court orders. In his own account[viii], while serving as Regional judge at Wau together with Justice Martin Majier when Sayed/ Isaiah Kulang Mabor was the Commissioner of Bahr el Ghazal, a matter involving a senior military officer was brought before him.[ix] The case was of matrimonial dispute where a Sudan Defence Force officer had cohabited with a Southern Sudanese lady who was later converted to Islam with or without good faith. No proper marriage was conducted as requires by the personal law of the woman. After having begotten three children, the officer divorced her by “triple talaq” which was endorsed by Kadi of Muslim Personal Laws/Court by awarding the custody of children to the officer. The relatives of the woman approached the Regional Court. In his judgement, he set aside the order of the Kadi on grounds inter alia, that the marriage was not lawfully performed in the first place, no bride-wealth was paid nor promise made by the man to the family of the woman and whether having converted or embraced one religion halt the operation of one’s personal/ancestral law. The decision was enforced despite the protest and hostility of the Kadi, military commander and the officer on Justice Wuol of having interfered with the Islamic law/Court decision.

One may ask as to what featured him to be especially unique in his approach. His non-partisan approach has earned him a niche in the legal fraternity with vast knowledge of legal systems. To appraise his judicial interpretation techniques particularly during his tenure in the higher judiciary, one particular aspect which caught the understanding of the Bench and the Bar including the academia is his legal craftsmanship and how he used to write his consensus and persuasive judgements (yet with full authority of law) whether for himself or on behalf of the Court. Reading his judgements, it is rare to find a dissenting opinion or in other words, his judgements were rarely appealed or reviewed. Of course his approach to reading of law with his vast knowledge of cultures has placed him in a unique place in the legal hall.

Perhaps the readers of the Sudan Law and indeed the students of the Courts in the Sudans began their hero-worship of Justice Wuol in one of his early judgements in the Court of Appeal in a matrimonial case of Gadet Tuach v. Regina Ruot[x], where he persuaded the Sudan courts and legal scholars to drop the use of the phrase “primitive and pagan communities or laws” in the Sudan whenever they referred to customs and laws of the Sudanese communities who are neither Muslims nor Christians. The use of such phrase is evidently seen in the writings of legal scholars such as Prof. C. D. Oliveier Farran[xi], Prof. J. N. D Anderson[xii] of the University of Khartoum and in many Sudanese precedents. In the instant case, His Lordship reaffirmed and took further his early dictum and a remark made by one of his law teachers, Prof. Natale Olwak Akolawin in his seminal article[xiii] where he (Prof. Akolawin) argued that a “church marriage takes place after a valid marriage has been contracted in accordance with the customary law”. Justice Wuol took it further that:

“In fact, marriages of Southern Christians are celebrated in the churches only for the purpose of obtaining God’s blessing but not for the purpose that the Canon Law or English law shall govern the marriage and its legal aspects which are intact governed by the indigenous custom”.

To this, the mere fact that a South Sudanese has adapted a new faith does not amount to halting of his or her personal law. It will be impossible or out of context of this paper to examine all the landmark judgements rendered by Justice Wuol but it is pertinent and necessary to say that Justice Wuol might have been a good observer of Justice O. W. Holmes of the Supreme Court of the U.S where the later argued that the treatment of law should be done by “simply going to the bottom of the subject”. This interpretation technique is seen in Justice Wuol’s judgements in the cases of Fatma Ali Al Zubeir v. Heirs of Ali Zubeir[xiv] and Akuet Atem v. William Wani[xv]. The former is an administrative law case where the applicant instituted a partition petition seeking her share in an unregistered common owed land which was dismissed by the Administrative Court. Justice Wuol’s interpretation of s. 134 of Civil Procedure Act, 1983 in this case remain imperative for he had creatively and distinctively made a breakthrough when he found that clause (b) contradicts clause (a) of s. 134. In the later case, it is a matrimonial dispute where the wife was seeking a divorce order. In both cases, Justice Wuol seemingly adapted Justice Holmes’ position in interpreting the subject matter or purpose of the law. In Akuet Atem’s case, he explained his scholar departure from Western definition of marriage i.e. as provided in the English case of Hyde v. Hyde[xvi] where he explained that marriage in African law is not a mere union between the two spouses as laid down in Hyde’s case but means a relationship:

• Between the husband and the wife;
• Between the husband and the family of the wife;
• Between the wife and the family of the husband;
• Between the family of the husband and wife, and
• To some extent between communities.

If anyone wants to understand his judicial interpretation techniques and persuasive judgement fully, reading some of his landmark judgements including the ones he rendered while sitting as Chief Justice will make the proper understanding for most of his judgements have charm and exquisiteness that make a delightful reading for both practitioners and the general public.

5. AS A LEGAL SCHOLAR AND ACADEMIC

Upon his retirement as Chief Justice of the Supreme Court of South Sudan in 2011, he joined teaching and research at School of Law, University of Juba(hereinafter referred to as School of Law) where he lectured law and supervised research students. He also made comments on several pieces of legislation extensively. He did this voluntarily as his sacrifice to nurture the legal education and research till the Vice Chancellor appointed him as senior fellow and subsequently awarded him with the honorary professorship in 2014.

To make use of Isaiah Berlin’s famous classification of writers and thinkers, I may say that Justice Wuol is a hedgehog not a fox. Prof. Berlin[xvii] cited the 7^th century BC Greek Poet Archilochus where he stated “the fox knows many things, but the hedgehog knows one big thing”. He further interpreted this classification to means that “….the fox, for all his cunnings, is defeated by the hedgehog’s one defence”. For him, hedgehog writers:

“relate everything to a single central vision, one system less or more coherent or articulate in terms of which they understand, think and feel-a single universal, organising principle on terms of which alone all that they are and say has significance” than “those (foxes) who pursue many ends, often unrelated and even contradictory with scattered thoughts”[xviii]

I place Justice Wuol under hedgehog classification as Prof. Berlin noted because he understood the law from the social and cultural stand point of view and proceed to enunciated various dimensions of law. This is evidently identifiable in his argument responding to those who treat customary law as an inferior and backward legal system in his works “Legal Aid and Its Problems in the Sudan[xix]”, “Traditional and Statutory Laws in the Context of Human Rights in Post Conflict/Transitional Societies”[xx] amongst others, in which he critically advanced a debate as to whether the constitution makes customary law (people’s customs) or people’s customary practices make what constitute(part of) the constitution. According to him:

“recognition of customary law by constitution and statutory law is superfluous and that both constitution and the customary law derive their authority or legitimacy from one source i.e. the people”

Many of his students including this author, colleagues at School of Law, judiciary and Bar held him with a great respect and affection for his lucid and easy to be understood writings. Justice Wuol writing as legal scholar, always presented his works lucidly and cogently by selecting words which can be comprehended by all. With all such simplicity in his writings, his works remain technical without turgidity. He wrote so but yet with complex understanding of law with the intention to asses, appreciates the societal nature and purpose of the law to achieve and ensure social welfare. To my understanding, Justice Wuol would affirm retributive or restorative justice than deterrence justice unless otherwise the situation demands so. A reference to illustrate his above exposition of law can be made to point out how he approaches many of these issues. His often criticism of the English coined principle of “justice, equity and good conscience” and others such as definition of marriage earlier stated can be the relevant references to this point. He entirely agreed with Prof. N. O. Akolawin on justice, equity and good conscience where the latter opined that this English law principle is:

“vague and nebulous whose determination is always limited by philosophy of life of an individual which he required as the result of the outcome of inherited instincts, traditional beliefs and acquired convictions”[xxi]

Justice Wuol sometimes goes further to depart from many foreign and colonial judicial precedents and ruled them as per incuriam decisions.

Indeed, his easy way of presentation of themes have positively influenced, sharpened and continue to guide the legal approaches and thinking of many persons including the author, for that, one owes him a considerable debt for being a true mentor. The scholarly writings of Justice Wuol cannot be surveyed within the premise of this paper. However, it is to be observed that he wrote infallibly. He wrote in caution with a stance not to provoke a negative debate on what Prof. Upendra Baxi[xxii] called “colonial predatory legality”.

Up to this point, a reader who has never interacted on legal issues with him may pose a question as to what was his position. As always the case in the science of jurisprudence, it is not easy to make a point on someone’s exposition on law straightforward unless and until we make a thorough examination on his or her approach. For Justice Wuol, this author does not claim any thorough examination on his philosophy of law but the following can be provided as answer to the question. As per his legal training and craftsmanship, he was a common law jurispertus. I recalled one of his famous justifications on how common law may be maintained besides developing customary law in South Sudan where he stated:

“The English common law, the model that South Sudan is developing was originally a customary law and became the custom of all the tribes in England and all the tribes became a nation, such a development is ideal for South Sudan because it is moving towards nationhood”[xxiii]

This justification reflects his early argument in his “The Development of African Common Law”.[xxiv] Justice Wuol in his essay “Law and Justice in the Sudan”[xxv] appeared to be in line with Dean Roscoe Pound. In this essay, he argued that:

“absolute or strict adherence to the application of the law always or in all circumstances, according to the “letter”, or its literal or mechanical application in satisfaction of the “form” as it appears, would equate the judges with the other ordinary law enforcement agencies, e.g. police who are not empowered to interpret the law”

Similarly, Dean Pound contended that judges should be given a degree of discretion in individual cases and should move away from mechanical application of the law by using “equitable application standards”. Generally, most of his works remain widely cited in judicial authorities in the Sudans. His Article, entitled “The Judicial Review of Administrative Decisions in the Sudan”[xxvi] has crafted a long serving reference and an answer to the question as to whether the objections against administrative decisions are within the contemplation of section 33(4) of Civil Procedure Act, 1983 of the Sudan which is equivalent or corresponding to section 33(2) of Civil Procedure Act, 2007 of South Sudan where he opined that “the objections against administrative decisions are not suits and are not therefore within the contemplation of section 33(4) of the Act”. This opinion remains followed by the Courts in the Sudans as it was the decision made by the Supreme Court in the case of Administrative Council of West Nile Cooperation Union v. Registrar General of Cooperative Associations.[xxvii] As to legal education, Justice Wuol had been instrumental in the curriculum set up of the School of Law when it was first established in Khartoum and during the curriculum revision after the relocation of the School of Law to Juba in a conference which was held in Juba on Legal Education in South Sudan between 6^th -8^th Aug 2012 where he presented an important paper. His contribution in college of Law’s curriculum, in my opinion had significance in maintaining the teaching of common law pattern in the School of Law while it was in Khartoum where the Islamic and Civil legal systems of education are inextricably interwoven. On 15^th January 2017 Justice Wuol passed away while serving as Professor of Law at the School of Law. Although he is missed, we should celebrate his achievements to keep him among us. The floor now is for contemporaries to precisely revisit the scholarly works of Justice Wuol for research and academic debate purpose.

6. CONCLUSION AND RECOMMENDATIONS

As it appeared above, Justice Wuol has a history that can be written in a voluminous work regarding his public service. Hence, it will not be a misplaced remark to say that he is the epitome of a good character in the history of our legal fraternity who has sharpened the present, future and dreams of our legal system. Because of him and his liked minds, the present has proven and the future will prove wrong those who were tempted to think that the study or the place of customary law in our legal system would be a thing of the past. Throughout his judgements and writings, Justice Wuol had always appealed to the legislature for restatement of customary law as it is the case in the United Republic of Tanzania and other African States which has eminently contributed to the national unity and consciousness. Such restatement or codification will make it known to the judges and lawyers or other stakeholders who due to insufficient understanding of customary law charge it for being inferior, backward and to some extent termed as an anti-human rights practice. The lack of adequate knowledge has also led to its abuse by the so called conservative members of the society. Justice Wuol while serving as Chief Justice can be said to have revolutionised judiciary whether by intensive legal, capacity and language training provided to the judges and judicial officers or by having issued several judicial circulars to ensured expedient and effective justice. During his tenure, he issued three significance judicial circulars in 2007 and 2011. Judicial Circular No. 01/2007[xxviii] determines the applicable laws in areas where there was no enacted Acts in [South] Sudan and to reconciled Court decisions which were made before 10^th July 2005 under or within the SPLM or the Sudan Government controlled terrorises. Judicial Circular No. 01/2011[xxix] was to effectuated expedient institution and execution of suits and decrees against the Government while Judicial Circular No. 02/2011[xxx] relates to the criminal justice dealing with minimum and maximum period under which the accused or arrested person may remain under detention for purpose of investigation.

At this juncture, it is imperative to put forth some recommendations which involve many institutions in the implementation process. The following can be made as recommendations and that the School of law, Judiciary, Ministry of Justice or Bar Association may do one or more in memoriam of Justice John Wuol Makec:

• Establish Prof. John Wuol Makec Centre for Indigenous Law Studies under the school of Law. This is one of the emerging areas of legal scholarship particularly in Southern and Western Africa. The centre for a better start and strong foundation, should engage eminent jurists and personalities such as Prof. Francis M. Deng to assist and guide with their succinct knowledge of law and African Indigenous legal systems or;
• Name the School of Law as Prof. John Wuol Makec School of Law. This is simply to honoured his diligent service at this institution which he performed at his elderly age till his last breath or serve as roll model to the students or;
• Create professorship Chair to be awarded to a distinguished lecturer or visiting scholar at the School of Law. This is good to encourage quality research and teaching or;
• Name School of Law Library as Prof. John Wuol Makec Law Library. Justice Wuol was a good reader and researcher to whom if the library bears his name, it will give good reason to every library visitors to visit seriously and diligently or;
• To create a Centre or an Institute under the auspices of the School of Law and name it as Prof. John Wuol Makec Centre for Legal Practice and Development to be offering postgraduate diplomas in legal practices and research or as a qualifying qualification(Bar Exam) for judges, prosecutors, Advocates, legislative drafters or;
• Create Prof. John Wuol Makec Gold Medal to be awarded to student(s) who have scored distinctive grad(s), community service(legal aid) and commendable respect to the lecturers/professors, administrative staff and his/her colleagues or;
• Establish Prof. John Wuol Makec annual lectures series to be held every year on his death anniversary at the School of Law. These lectures should be delivered by eminent jurists, academics and practitioners or;
• In collaboration with judiciary, department of training and research, Bar Council and School of Law, establish Prof. John Wuol Makec Essay/Moot Court competition for young advocates and law students to be judged by eminent judge/justice, Advocate and academic or;
• Judiciary in accordance with the scope and purpose of the department of training and research establish Justice John Wuol Makec Juridical Research and Training Institute or;
• Ministry of Justice in accordance with the provisions of South Sudan Legal Training Institute Act, 2012 and without prejudice thereof, name the Institute as Justice John Wuol Makec Legal Training Institute.

The author, Wol Deng Akech, has LLB (University of Juba), and LLM finalist (University of Lucknow). He is an Advocate, Juba- South Sudan, and was a student of Justice John Wuol Makec at School of Law, University of Juba, and the Late was also the author’s LLB research supervisor. He is reachable at: woldenga@yahoo.com or woldengakech@gmail.com

ENDNOTES

[i] He preferred “Wuol” which is an English spelling of “Wol”.

[ii] Writ Petition No. 494/2012 decided on 26^th Sept 2018.

[iii] (1924) 1 KB 256.

[iv] A principle which was strictly adhered to and enforced in those days than today where every civil servant is a politician by default and work with great laxity to law.

[v] He managed to accomplish the work he had previously started when he was a Regional Judge in Wau by bringing together all the nationalities in Bahr el Ghazal in a conference at Wanhalel, Tonj 1975.

[vi] E.g. Justice Aleu Akechak et al , A Study of Customary Law in Contemporary Southern Sudan, 2004 and David Pimentel, “Rule of Law Reform Without cultural Imperialism? Reinforcing Customary Justice Through Collateral Review in Southern Sudan”, Hague Journal on the Rule of Law, Vol. 2, issue 01,(2010) 1-28.

[vii] Legally, he was supposed to retired in his 72^nd birthday in 2013.

[viii] Justice Wuol narrated in a lecture on Comparative Family Law.

[ix] For one reason or the other, Justice Wuol just cited the facts and judgement without citing the names of the parties.

[x] Petition No. CA/CA/1275/1987 (unreported) (see further his “Cases and Principles of Customary Law in Sudan, 2007, St. Joseph Printing Press, Khartoum at 35).

[xi] “Marriage and Divorce in the Law of the Sudan” (1963) S.L.J.R.

[xii] “The Modernisation of Islamic Law in the Sudan: The Historical Background” (1960) S.L.J.R.292,302 .

[xiii] “Personal Law in the Sudan-Trends and Developments”, Journal of African Law vol. 7 No. 2, 1973 at 188.

[xiv] Petition No. SC/CS/130/2003.

[xv] Petition No. SC/CS/154/1997.

[xvi] (1866) L.R. I P. & D. 130, 133.

[xvii] Isaiah Berlin, The Hedgehog and The Fox, Henry Hardy (editor) second edition 2013, Princeton University Press at 1.

[xviii] Ibid at 2.

[xix] Justice John Wuol Makec in, Access to Justice in Africa and Beyond, published by Penal Reform International & The Bluhm Legal Clinic of the Northwestern University School of Law, Chicago, Illinois, 2007 at 129-138.

[xx] In, Towards a People centred Human Rights State in South Sudan: A Collection of Papers Presented at the Symposium on Human Rights in South Sudan May 24-26 2016 at 59-69 organised by the School of Law, University of Juba in collaboration with IDLO.

[xxi] Natale Olwake Akolawin, “The Courts and the Reception of English Law in the Sudan: A Case Study of Application of “Justice, Equity and Good Conscience” Under Sudan Civil Justice Ordinance” (1968) S.L.J.R. 230-260.

[xxii] Upendra Baxi, “The Colonial Inheritance” in Perre Legrand & Roderick Munday (editors), Comparative Legal Studies: Traditions and Transitions, Cambridge University Press 2003 at 46-75.

[xxiii] He said this in several occasions but the author recalls and takes the remarks he made in one of his customary law lectures.

[xxiv] John Wuol Makec, “The Development of African Common Law” 1987 in Organization of African Unity, Kwesi Krafona(editor), at 93.

[xxv] (1996) S.L.J.R.

[xxvi] (1990) S.L.J.R .3.

[xxvii] (1998) S.L.J.R. 232.

[xxviii] Dated 12^th July 2007.

[xxix] Issued on 25^th January 2011.

[xxx] Dated 4^th Aug 2011.

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