The Adverse Impact of Presidential Decree on the Legal System and the Rule of Law in South Sudan

By Bul Deng Yol, Nkumba University, Uganda

Friday, May 22, 2020 (PW) — The Chief Justice David Maraga once opined that “the greatness of a nation lies in its fidelity to its Constitution and strict adherence to the rule of law.” The Constitution is the superior source of law and this informed the reason as to why any other law that contradict its position is inconsistence to the level of inconsistency. Vital and core to the above is the common saying that ‘nobody is above the law’.

Many are times constitutional post holders and protégés abuses their privilege status and ends up acting as if they owe no one a duty in the society. To nip the vicious practice in the bud, first, it’s an essential ingredient that one knows the law. For it’s at that point that you will be able to decipher what you are entitled to and what is expected of those in power in relation to the subjects. The social contract has it that the society surrenders its duties to the ruler in exchange of services. From here, it should settle in minds that we lives in an interdependent ecosystem. 

Since it’s untenable to highlight all the laws in one go, I willaddress my mind to the “Presidential Decree”. In some cases refers to as “Presidential/Executive Order”. The Free Dictionary defines Decree as a formal and authoritative order having the force of law or a legally binding directives by the president oranyone acting in the president’s capacity. Decree serves two major purposes; to impose new policy that the Executive desired to achieve and to prompt parliament into legislating laws where necessary. Mind you, such purposes are meant to be made in good faith.

Decree trace its origin in the Chancery Court, where the chancellor would determine the rights of a party, in line with equity and good conscience. Often time, the decree was final determination in a litigation. This was later in time embraced by the Executive. The first known presidential decree was in 1789, when President George Washington requested heads of executive departments to report back to him on the affairs of the United States.

Under the doctrine of separation of powers, the government is structured into the traditional three branches. The Parliament, Executive, and the Judiciary. Each serves a purpose different from the other and are encourage to remains independent from influence.  Parliament serves the duty of law making but at some point, can delegate some of its mandates to other institutions to ease its work-load and help in fostering smooth running of the government. Judiciary on the other hand interpret and apply laws to specific case laws and Executive deals with the policies and sees into it that laws are enforced to the later.

Article 86 of the Transitional Constitution of South Sudan empowers the president to issue presidential order on an urgent matter, in case the National Legislature is not in session. Thisorder is subjected to the approval of the parliament. If the order is rejected by the parliament, then it loses the force of law. In other words, the power to issue Presidential Order is majorly grounded on subsidiary legislation as depicted under Article 92.However, there are exception to the degree of the Presidential Orders/Decree. The law prohibit the president from making any order on matters of Bill of Rights, decentralized system of government, general elections, annual allocation of resources and financial revenue, penal code, and administrative boundariesof States. These are exclusive preserve of the parliament. 

Having stated the above, history has it that presidential powers are in most cases abuse by the presidents and the Constitution falls a prey of confrontation. One way of effecting abuse is by use of non-law based Orders to police other branches of government. Once in Uganda, President Idi Amin forgo of laws of the land and its organs and resorted to use of decree to run the government. That compromise abhorred and plundered his regime into deep pit as the resultant fate was alteration of the status quo since other branches of government were bludgeoninto silence and receded into oblivion.

Judiciary, being the custodian of the rule of law and a body that spur democracy, needs to be impartial. Caroline Kennedyobserved that “the bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.” The independent of Judiciary has been enshrined in the Constitution under Article 124 and further legislated on in Judiciary Act (2008). But however much it may be brought out by laws, things looks different on the ground. Asthings stands in South Sudan, the Executive has coerced Judiciary to submit to its whim by exploiting the loopholes portrayed by the judiciary’s leadership.

A point in reference to the above is when the president, in March 2016, unconstitutionally dismissed the Deputy Chief Justice summarily through presidential Order. This dismissal ensued when the president decreed twenty eight States, contrary to the ten States. Prior to court petition by opposition party members, this Presidential Order was openly supported by the Chief Justice who was then asked by the opposition members to recuse himself after petitioning to challenge the constitutionality of the Order. The Chief Justice refused to leave the Bench and rather decided to go against the spirit of impartiality as captured under Section 48 of the Judiciary Act. Moreover, the Presidential Order was way beyond the parameters of Article 86 of the Constitution. The president closed his eyes to the fact that thelaw does not permits him to determine administrative boundaries of the States. Worse enough, the legal system succumbed to the Order and this signaled to judicial officers that they are at the mercy of the president and that constitutionalism is an illusional adventure. From then on, the line seemed to have been cut andany attempt to deviate from president’s policy line in defense of the rule of law is an equation to loss of job, hence the reason why judicial officers ducked, and the immense infiltration by the Executive is unquestionable.

Another striking incident of the negative impact of decree on the legal system is when nine judges, in June 2017, were dismissed through a Presidential Order for having gone on strike to voice the state if their living condition. It is a constitutional right to picket and moreover, any dismissal should be upon recommendation of the Board of Discipline after investigation. Something that never happened. What the then is the meaning of security of tenure? Executive is spitting venomously.

Aside from abuse of power, South Sudan’s case appears not to be lack of laws, but rather lack of political will power to have in place institutions that can fight for legal system. This is clearly seen under Section 22 of the Code of Criminal Procedures Act (2008), which establishes the Directorate of Public Prosecution (DPP). The DPP’s office is vital in supervising investigations, public attorneys and takes prosecutions to criminal courts. But the laws in place have insubordinate it deliberately or out of sheer naivety and instituted it under the Ministry of Justice and Constitutional Affairs. To further entrench the dependency of DPP’s office deeper, the appointment and removal of the DPP’s director is made by the president, through an Order, with the recommendation of the minister concern and the Under-Secretary. This is a direct explanation of why there is no seriouscorruption case that has ever see the wrath of law. 

Going forward, it is inescapable constitutional reality that lawssupersede Presidential Order and Orders should not be conceive as a tool of controlling other branches of government. On the account of the above incidences, it is a public secret that Judiciary has been disarmed and projected to look like an annexure of the Executive. This being the case, Judiciary should deeply soul search and ask itself hard question for it to salvagethe nation from the oppressing agendas of the Executive.

In my opinion, an empowered Bar Association that can initiate public interest litigation should be green-lighted. The vicious wrangles in the Association is an indirect Achilles’ heel to the entire legal fraternity. Besides, Judiciary should be seen to be self-accounting. That basis is the Launchpad and the reason as to why majority of democracies develop and ensures the president is arm twisted in his appointment of judges by conditioning his appointments to the approval of the commission.

In a situation as that of South Sudan, the Judicial Service Commission is in disarray and the structures built have no thick skin to absorb the pressure from the Executive. Its appears like Judicial officers are appointed by the President and falselyinculcated into them that president can relieve them by way of Order, minus the input of the Commission. The incompetency portrayed by the leadership would have been a thing of the past had the Commission based its approval of judges on merit.

Coming to DPP’s office, the best the law makers would have done was to institute it as an independent institution and empower it to investigate, with unlimited discretional prosecutorial powers to all criminal cases. As things stands, the DPP’s Director has been impede by design to assume that the office has no power to curtail the seemly unending looting of public resources and violation of human rights.  

On the same footing, those assigned with the drafting of the permanent Constitution of South Sudan should check president’s powers, else, I am afraid the present characteristics of untouchable leader will rolls on and democratic space will keeps on shrinking.   

Judiciary! Fear not the Presidency, for the supreme lawencapsulates you to be independent, self-accounting and the custodian of it. The insurance policy and blessing of the Constitution is that “this Constitution derives its authority from the will of the people and shall be the supreme law of the land. It shall have a binding force on all persons, institutions, organs and agencies of government throughout the country”.

The author, Bul Deng Yol, is a 3rd year Law student at Nkumba University, Uganda and can be reached via his email: buldit75@gmial.com

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