Hon. Governor Jadallah’s Order: A State’s Quest for Public Morality or Banalisation of Real Issues?

Hon. Governor Jadallah’s Order: A State’s Quest For Private, Public, Political And Legal Morality Or Banalisation Of The Real Issues?

By Wol Deng Akech, Juba, South Sudan

1. Introduction

Monday, May 20, 2019 (PW) —- For the last few days, the South Sudanese general public and the discussants in the social media platforms in particular has witnessed a sharp debate on matter of socio-legal concern. This debate has been ushered in by the recent Gubernatorial Order (hereinafter referred to as GO) issued by Hon. Augustino Jadallah, Governor of Jubek State. The GO is purported to prohibited nightclubs and imposed restrictions on the hotel entries on conditions that the couple, lovers or paramours of the opposite sexes who wish to afford hotel room have to produce marriage certificate. Perhaps, the intention is to restrict or control pre marital sex, intimacy or physical relationship or outside marriage affairs.

This author has made a great deal of attempt to access the copy of the said GO but to no avail. But the non availability of the GO in the public domain cannot be cited to justify the non issuance of the order. This is partly because the Hon. Governor made it public by words of his own mouths in his media statement upon and after having visited and briefed H. E. President Gen. Salva Kiir Mayerdit in the State House (J1) where he expressly stated that he has issued an order banning the nightclubs and rampant hotel visits and that he visited the President to brief him on the same.

For him, the banning of nightclubs and rampant hotel accommodation would minimize the crime rate in the national capital. The Hon. Governor perceives that nightclubs have introduced immoral activities in the society which are criminal in nature (trafficking in humans for sexual purposes) in which young women as youngest as 14 years are sexually exploited. This happens through what he called “take away” where these young women are drove into nearby hotels by the sexually depraved and financially powerful or influential individuals.

In brief, these are what prompted his decision to issue the GO. Before proceeding to examine the substance of the GO to fit the context of this paper, a preliminary question may be composed as to what is the effect and extent that this GO may ensue?  To strike the answer for this query, it should be noted that constitutionally, Juba is the national capital (see Article 50(4) of the TCSS, 2011) and any action taken by its authorities therein would be implied or inferred to have effect to the extent to which the powers of the national government are permitted. Secondly, the order since made public after the briefing of H.E the President, it is deemed that it has his approval as head of State and Government.

This GO has however been received with mixed reactions by protagonists and antagonists.  Some have so far equate it with the installation of Sharia’a/Islamic Law or President Nimery’s infamous September Laws of 1983 which were subsequently maintained by the successive Sudanese pro-Arab and Islamic regimes. The antagonists have described the GO with Jeremy Bentham’s description of natural law or rights as “nonsense on stilts”. They say the GO is nothing but a curtailment of the fundamental right to privacy enshrined under Article 22 of the TCSS, 2011 and an unjustified State policing power. For the examination of the GO, I have divided the discussion in the following sections into three sections: whose morality, the legality and feasibility of the GO and the way forward. 

2. Whose morality: A duty owed and imposed by whom?

The legal, ethical and political debate on the question of societal, state or political and legal morality has always been an unending discourse among myriad thinkers whether between and among natural, positivist and sociological legal theorists. The positivists distinguish law from morality. They however, think that the central source of law is sovereign (statute), thus, we deem the GO as a law made by sovereign on having exercised its legislative power.

But reading the vast literature on legal scholarships or whatever these legal schools starting from Cicero to Leon Fuller (naturalists), Jeremy Bentham to Hans Kelsen(positivists), and from Von Jhering, Dean Roscoe Pound to Jerome Frank(sociological legal school) theorists think and advocate for law to be, one is left with the impression to comment that one particular thing remain inevitably common in their debates that they are all concerned with the resolution of problems in the society or regulation/control of the individual relations or behaviours by means of law.

It is thus understood that the role of the law is social control. In all the cosmopolitan legal discourses on the relation of law and morality, it is expressly and impliedly conceived that law is different from morality and morality cannot be the origin of the law. But this does not make these diverse discourses to carry absolute truths at all times. For instance many of our constitutional and legislative provisions content social and moral codes of conducts. For example, the Constitution clearly states that marriage shall be between opposite sexes of marriageable age (see Article 15 of TCSS, 2011).

This is equally so where it recognises customary practices as sources of the law (see Article 5 of the TCSS, 2011). Such codes of moral conducts are explicitly provided in the provisions of the Penal Code, 2008 in which prostitution, its solicitation, allowing the place to be ran as brothels are expressly prohibited. However, not all time shall a law mean the same thing to morality or versa-versa. This can be justified by our various customs of which some of them are not recognised by the Constitution or Statutes as they are considered morally wrong. Our legal system excludes the recognition of bad customs as sources of legislation or law.

On the same note, there are many societal practices which are immoral but not necessarily illegal (e.g. eloping a girl with clear intention to marry her as prevalent in many Nilotics customs) and there are also morally celebrated acts but illegal. This forms the point of difficulty of making clear distinction between the law and morality.

However, in the context of this section, one is required to address the question of who owes the duty to morality and to whom, in instances of its contravention, who is supposed to enforce its observance? Of course the question revolves around many aspects of law and society in its depth terms. It specifically seeks to address the society’s fundamental question of law and morality as whole and specifically the relation or role of law to sex life, social change and labour. The GO touches many of these areas.

It attempts to regulate the sexual lives of the people, purported to act as social engineering(at least in a nature that it sought to regulate martial or conjugal relations and the alleged crimes committed as a result of nightclubs) as well as regulating the labour activities (the business aspect of the nightclubs and hotels). As a consequential result of the GO, one may clearly sees that the core purpose of the order is about law and morality which fall under the domain of law and society. Law and society although it is used interchangeably by some legal sociologists, it can be said that it is distinctively different from sociology of law.

In dealing with law and society, it is perceived that law is the authoritative tool invoked or applied for resolving societal problems or as “social engineering” as Dean Pound may suggest. The role of law and society and versa-versa use of the same to regulate behavioural conducts of the people in the society is quite vital in our scenario.

For instance, traditionally among most of the South Sudanese communities and Nilotics in particular, sex is regarded and directed to be performed to meet the martial goals of procreation perhaps unlike it is today where it is taken as a pleasure. To put it differently, sex outside marriage is not only considered as an immoral behaviour but an offence (at least against women) which is contemplated in section 266 of the South Sudan Penal Code 2008.

To put the answer forthwith to the question referred to earlier; one has to do so by finding the nexus between the private, public, political and legal moralities. Figuring the nexus and differences between the different aspects of morality is significant for the determination of the role of each person and institution in maintaining moral goodness of human beings and the society at large. Perhaps, one should not be hesitated to assert that public, political and legal moralities originated from the smallest cell (the private morality). In furtherance of this, it will not sound as a misplaced observation to say that private or individual morality do necessarily emanates from family moral code.

The world’s celebrated philosopher Friedirch Hegel had once argued that family is the smallest community of which its members cannot be distinguished from one another. The sole identities of the individual family members are commonly connected and bound by emotional ties/love. The morally good achievement of each individual family member according to Hegel is celebrate with collective pride by the rest of the individual family members on one hand and feel ashamed or let down on the morally wrong action committed by a member on the other.

Although each individual may have his/her own somewhat means of determining their own individual moral maxims, the family emotional ties always dedicate the end for private morality. Based on this argument a strict observance of private morality often results into the public or community morality. But unlike private morality, public or community morality is not based on or subjected to emotional ties but bound by the reasons of one being a member of community at large or a citizen of the State required to adhere to performance of common and morally good values, respect for community customs, traditions and community heritages.

Once these societal values are respected by the people, it is equally said that the society has a political morality. In political morality, there are many basic and fundamental values such as political freedoms and rights as enshrined under the provisions of the Bill of Rights (Articles 9-34) and Fundamental Objectives and Guiding Principles (Articles 35-44) of the TCSS, 2011 and other relevant laws specifically under Penal Code, 2008. Henceforth, the provision of political freedoms or rights and their proclamation in a specific form and enforcement mechanism gives us the legal morality. The legal morality then envisages the societal values.

Some antagonists who equate the GO with Sharaia are cautiously advised that indeed there is no express right to infringe the morally acceptable values of the community expressly guaranteed by the Constitution or the laws. As lamented above, our society does not take sex for pleasure. Thus, the emergence of “take away” for sex in nightclubs and the turning of hotels into sex rackets are morally unacceptable by our public, political and legal morality. This should not be taken as a personal stance of this author but a position of the law in our country e.g. Sections 247-268 of our Penal Code.

Being a liberal State as engrafted in the legal system of our country does not mean that individual or general public is entitled to contravene the public policy protected by the law (see sections 249, 251-255 and 267 of the Penal Code, 2008). It is noteworthy to be stated at this point that one is not asserting that the State has moral policing power or scruple power to dictate what individuals are supposed to do in their private/sexual life but it has a duty to enforce the law as illustrated above to protect the society from the socially unscrupulous or despicable emerging cultures.

The absolute individual freedom to do whatever she/he pleases with him/herself as propounded by John Stuart Mill cannot get hold in our society for number of social reasons. It (society) cannot be forced to jump into such morally pervert and despair level by a simple will of the few desperados. It must be left to the function of societal evolution.

3. The legality and feasibility of the GO

Having discussed the substantial context of what the GO entails and seeks to address in the society, I intend in this section to address the legality and feasibility of the GO. For once, I regard the just law and its success/feasibility as anything that work best for the or when it works/worked for the society’s benefit. This should not be taken to make one sounds utilitarian though I do not diverge much with the utilitarian theorists’ views. The question of legality of the GO can be squarely upheld under the Penal Code, 2008 in the sections mentioned early and other relevant laws.

Perhaps, to test the feasibility of the GO, one cannot escape the fundamental question as to why is it that such socially despicable, depraved and debauched activities are easily embraced by the young people. If we are to borrow from J. S. Mill’s utilitarian theory or doctrine of pleasure and pain on how some people end up doing something worthless for pleasure, we will not fail to understand why nightclubs and hotel sex rackets are so much attractive to the young women and men who are alleged to have been involved in these petty activities.

Mill on  the question of or argument on comparison  as why  that sometimes people postpone their higher or desirable pleasure for immorally corrupt ones or for pain, Mill argues that they (men) lose their high aspirations as they lose their intellectual tastes, because they have not time or opportunity for indulging them, and they addict themselves to inferior pleasures, not because they deliberately prefer them, but because they are either the ones to which they have access or the only ones which they are any longer capable of enjoying.

In line of this argument, the nightclubs and hotel sex rackets seem to be lucrative desirable, and pleasurable among the attendees because majority of them have social failure to make good taste for their own and societal pleasure where they end up enjoying pain (perhaps in long run terms). Most of the people who resort to nightclubs business are either faced with social failures and unemployment. But the question is should the State or law stays neutral in instances of social failures in the society? Legally, the State or government is mandated to protect individual person (s) and the society at large by applying the legal frameworks to control the tendency towards morally corrupted acts.

However, the GO has fallen short to tackle the question of rampant growing prostitution in the residential quarters. Today, in Juba and perhaps all the major towns in the country, there are people/citizens who lease their plots to foreigners to run them as brothels. What has the Government done so far in dealing with this socially challenging matter? Probably nothing! The feasibility of the GO and its objectives are thus challenged by this unfettered practice of prostitution which is illegally allowed by the State to operate. Another vital issue which makes the GO as a banal attempt in tackling the socio-legal concern is the lack of specific legislation to regulate the hotel business and operation.

There are no criteria set for a business entity or corporate body to meet as prerequisite conditions in fulfilling the hotel business. Every building including 8 rooms buildings are hotels in South Sudan. What do you expected from such unregulated business? Although more subordinate legislations have been framed in this regard, no effective or sufficiently substantial contents which address the issue in question in those frameworks as well as lack of effective application. Up and till date, there is no assessment on who are running the hotels business and management in the country.

Are the employees in the hotels business sector foreign nationals or nationals? Are they aware of the societal values of the people of South Sudan? If the majority of the employees are foreign nationals as the observation seems to suggest, it concomitantly means unemployment of the South Sudanese nationals who left without alternative have to resort to sex rackets business to survive. What have the government done so far in this regard?

4. The way forward?

Although the State seems to have been empowered with paraphernalia legal instruments to regulate such acts, the fact is that the Government at various levels have not exercised their mandate as expected. The State has illegally permitted the prostitution, perhaps on the ground that it does not top the priority in its policies. Another reason for such policy failures is the lack of coordination at different institutions concerned at different levels. For instance, the Ministry of Labour, Public Service and Human Resource Development (MoLPS&HRD) in 2014 had prohibited the employment of foreign nationals with exception of expert posts whose qualifications are not met by South Sudanese.

This order was diluted by the institutions which were supposed to implement it. The Ministries of Foreign Affairs and International Cooperation, the Interior and all the economic security sectors deemed to execute the order did not cooperate with the MoLPS&HRD. Thus, it is suggested that for the success of this GO, coordination between the concerned government institutions is paramount.

In event that the growing prostitution is not quelled, it is likely that the alleged nightclub crimes rate and the hotel sex rackets (take away) would be somewhat morally reasonable than the prostitution. Otherwise, the common view held by the public that the plots leased to these foreign nationals who then turned the plots into brothels are owned by the senior State officials could be the ground for sanctioning this illegal business by the State/Government, thus, the GO is could be correctly termed as banalisationof the real issues.

The author received his LLB from the University of Juba, LLM from University of Lucknow. He is a practicing lawyer, Juba South Sudan.  He can be reached via his email: Wol Deng <woldengakech@gmail.com>

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