R-ARCSS: On Access to Justice, and Judicial Reform in South Sudan (Part 2)
Roger Alfred Yoron Modi, a South Sudanese journalist, is the author of the book Freedom of Expression and Media Laws in South Sudan. He is also the Producer and Host of The Weekly Review: Making Sense of Relevant Topics and News. For more, keep in touch with his website rogeryoronmodi.com
By Roger Alfred Yoron Modi, Nairobi, Kenya
Wednesday, February 16, 2022 (PW) — Despite delays and some actions regarding the the reform of the Judiciary in South Sudan per the R-ARCSS continue to be mentioned, the credibility of those reforms and concerns about the process and improvements are mainly the responsibility of the parties to the agreement, civil society, regional and international partners, communities and bodies involved, as well as the people of South Sudan.
This article looks at Independence of the Judiciary, as the Transitional Constitution states that the Judiciary shall be independent of the executive and the legislature; together with relevant laws, observations, arguments and controversies about the same. Recognizing that while even improving the R-ARCSS is possible, all contributions made here are in good faith and may this article, together with its Part One and relevant ones mentioned here help in the reform process.
Controversies regarding Independence of the Judiciary, Judicial Service Commission and having a “Constitutional Court”.
On this, first, there are arguments by some that a solution to the issue of the Judiciary in South Sudan is by having a “Constitutional Court”. That, has been included in the R-ARCSS, through a shallow provision which says “There shall be established, during the Transitional Period, an independent, impartial and credible Constitutional Court, whose composition, functions and duties shall be regulated by law.” (Article 1.17.7.) Which law, how and to what extent? The R-ARCSS remained vague on that, besides offering no other details. On that, one of the views I expressed is that a Country does not necessarily need a court named “Constitutional Court” to have Constitution respected, justice, rule of law delivered, in an independent, impartial and credible process. The challenges can be looked into through issues of competence, infrastructure, independence and accountability of the Judiciary, in practice and in relations to laws.
Provisions of the Transitional Constitution relevant to this article:
Article 125 provides as follows:
(1) The Judiciary shall be independent of the executive and the legislature.
(2) 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.
(3) The Judiciary shall be self-accounting and its finances shall be subject to public audit.
(4) The Judiciary shall be subject to this Constitution and the law which the Judges shall apply impartially and without political interference, fear or favour.
(5) The executive and legislative organs at all levels of government shall uphold, promote and respect the independence of the Judiciary.
(6) Justices and Judges shall be independent in their judicial work, and shall perform their functions without interference. Their independence shall be guaranteed by this Constitution and the law.
(7) Justices and Judges shall uphold this Constitution and the rule of law and shall administer justice without fear or favour; they shall enjoy such immunities as shall be determined by law.
(8) Justices and Judges shall not be affected by their judicial decisions.
(9) The salaries, allowances, privileges, post-service benefits, tenure and other conditions and terms of service of judicial officers or other persons exercising judicial powers shall be regulated by law.
Article 133:
(1) There shall be established an independent Commission to be known as the National Judicial Service Commission.
(2) The structure, composition, functions, and terms and conditions of service of the members and employees of the Commission shall be determined by law.
Article 134:
(1) 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.
(2) 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.
(3) The appointment of the Chief Justice, Deputy Chief Justice and Justices of the Supreme Court shall be subject to approval by a two-third majority of all members of the National Legislative Assembly.
(4) The National Legislative Assembly shall enact a law to provide for appointments, terms and conditions of service of Justices and Judges.
(5) All Justices and Judges shall, before assuming their duties, take the oath of office as shall be prescribed by law.
Article 135:
(1) Discipline of Justices and Judges shall be exercised by the Chief Justice with the approval of the Judicial Service Commission.
- Justices and Judges may be removed by an order of the President for gross misconduct, incompetence and incapacity and upon the recommendation of the National Judicial Service Commission.
As I repeatedly argued, and to the best of my knowledge, there is no National Judicial Service Commission in South Sudan. Also, no legislation for establishment and operations of National Judicial Service Commission has been enacted. What is there is the Judicial Service Council, established under the Judicial Service Council Act 2008. Though Section 6(2) of the Judicial Service Council says the Council shall be independent and impartial, and shall exercise its powers and perform its functions “without fear, favour or prejudice in the interest of and maintenance of an effective and efficient Judiciary” and adherence to “a high standard of professional ethics,” and some have interpreted that the Council is the National Judicial Service Commission envisioned in the Transitional Constitution, available facts do not support that.
Meanwhile, the R-ARCSS claims that there is a Judicial Service Commission, in Article 1.19.1.9. read together with 1.19.1, the R-ARCSSS says that during the Transitional Period, the “Judicial Service Commission (JSC)” shall be restructured and reconstituted at the national level, and that the Executive shall supervise and facilitate the reforms and re-constitutions “paying particular attention to the mandate and appointments, to ensure their independence and accountability.”
The government of South Sudan (RTGoNU) also claims the same, and in the National Report submitted by South Sudan at this month’s Third Cycle of South Sudan’s Universal Periodic Review, the government said “…The reforms to be recommended by the Judicial Reforms Committee, include restructuring of the Judiciary to be undertaken by the reconstituted Judicial Service Commission during the Transitional Period. The Judicial Reform is to also include, but not limited to, the review of the Judiciary Act, 2008, Judicial Service Commission Act, 2008 and capacity building of the judicial personnel and development of the judiciary infrastructure.”
The effects of these controversies regarding having an Independent National Judicial Service Commission per the provisions of the Transitional Constitution have been in many ways clear on affecting the Independence of the Judiciary.
While Article 125 (2) of the Transitional Constitution which provides 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” need to be reformed to include the legislature in the process, and transparency, challenges in delivery of justice related to budget of the Judiciary have been expressed severally. In an interview I had in 2020 with Malek Mathiang, the former Justice of South Sudan’s Court of Appeal who President Kiir had removed through a Presidential Decree, Mathiang emphasized the need for wide reforms of the Judiciary to be able to deliver justice.
“For the Judiciary to be functional, Judges should be protected. Judges should be delivered services. As I’m talking to you, the judges don’t have transport means, no cars. The Judges have no security services and sometimes some of them effect sentences, sentencing accused person to death. The judges would be fearing when they are not protected. Not that alone, the salaries of the judges are not at all enough. Such a judge at such a situation, how will you expect him or her to be administering justice….This Judiciary of South Sudan needs a long, a wide transformation,” he said.
The Appointment of Chief Justice and Controversies on Independence of the Judiciary, including the Role of lawyers (Advocates) in South Sudan:
Article 134 (1) says “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.” This leaves out the National Judicial Service Commission from the process of the appointment of the Chief Justice, unlike that of 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, provided for in Article 134(2). Also note that Article 127 (1) (a) says The Chief Justice, among others, shall be the head of the Judiciary and the President of the Supreme Court.
More controversies on the Independence of the Judiciary come in from the Judicial Service Council Act, 2008, which in section 7, says, the functions of the Council shall be to—
(a) approve the general policy of the Judiciary;
(b) approve the annual budget of the Judiciary;
(c) recommend to the President of the Government of Southern
Sudan, appointments of—
(i) President of the Supreme Court;
(ii) Deputy President of the Supreme Court;
(iii) Justices of the Supreme Court;
(iv) Presidents of the Courts of Appeal; and
(v) Justices of the Courts of Appeal.
Meanwhile on the Composition of the Council, Section 9 of the Judicial Service Council Act, 2008 says the Council shall be comprised of the Chairperson and eight (9) members, as follows—
(a) the President of the Supreme Court, Chairperson;
(b) the Minister of Legal Affairs and Constitutional
Development, member;
(c) the Deputy President of the Supreme Court, member.
(d) the Minister of Finance and Economic Planning, member;
(e) the Chairperson of the Legislation Legal Affairs Committee of Southern Sudan Legislative Assembly, member;
(f) the Dean of Faculty of Law, University of Juba, member;
(g) the President of the Southern Sudan Bar Association,member;
(h) two Justices of the Supreme Court according to the order of their seniority, members; and
(i) the Secretary General of the Council exofficio member, as Secretary.
Article 137 of the Transitional Constitution provides that:
(1) Advocacy is an independent private legal profession and it shall be regulated by law.
(2) Advocates shall observe professional ethics, and promote, protect and advance the human rights and fundamental freedoms of citizens.
(3) Advocates shall serve to prevent injustice, defend the legal rights and interests of their clients, seek conciliation between adversaries and may render legal aid for the needy according to the law. Meanwhile, the law enacted so far, The Advocates Act, 2013, that among others, provides for establishment of the Bar Association, has been observed severally as shallow, unable to regulate the profession, through a credible, predictable manner, and is even not being followed as over the years members of the Bar Association has been engaged on factionalism over elections to the Bar Association, and seeking court orders in search for legitimacy. Concerns have also been expressed on the need to reform the The Advocates Act, 2013, including to adhere to international and regional instruments, The UN Basic Principles on the Role of Lawyers, the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.
When South Sudan was gaining Independence in 2011, the Transitional Constitution it promulgated, which is still the Transitional Constitution now, though with amendments including the incorporation of the R-ARCSS, in Article 198 provides that “all current Laws of Southern Sudan shall remain in force and all current institutions shall continue to perform their functions and duties, unless new actions are taken in accordance with the provisions of this Constitution.”
Clearly, the presentation of these laws, and of others will here-below, show how the Independence of the Judiciary is compromised.
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The Basic Principles on the Role of Lawyers, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba 27 August to 7 September 1990, among others, in its preamble made references to the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and while the principles there are many and need to be looked into in the search for reforms in South Sudan, for the purposes of this article, here are is an excerpt from the the Principles:
“Duties and responsibilities
12. Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.
13. The duties of lawyers towards their clients shall include:
(a) Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients;
(b) Assisting clients in every appropriate way, and taking legal action to protect their interests;
(c) Assisting clients before courts, tribunals or administrative authorities, where appropriate.
14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.
15. Lawyers shall always loyally respect the interests of their clients.
Guarantees for the functioning of lawyers
16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
17. Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.
18. Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.
19. No court or administrative authority before whom the right to counsel is recognized shall refuse to recognize the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles.
20. Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.
21. It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time.
22. Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.
Freedom of expression and association
23. Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.
Professional associations of lawyers
24. Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.
- Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics.”
In the search for reforms, here-below also is a relevant excerpt from the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, adopted by The African Commission on Human and Peoples’ Rights, among others, “Recalling its mandate under Article 45(c) of the African Charter on Human and Peoples’ Rights (the Charter) “to formulate and lay down principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African states may base their legislation;” “Solemnly proclaims these Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa and urges that every effort is made so that they become generally known to everyone in Africa; are promoted and protected by civil society organisations, judges, lawyers, prosecutors, academics and their professional associations; are incorporated into their domestic legislation by State parties to the Charter and respected by them;” among others:
“G. INDEPENDENCE OF LAWYERS:
(a) States, professional associations of lawyers and educational institutions shall ensure that lawyers have appropriate education and training and be made aware of the ideals and ethical duties of the lawyer and of human rights and fundamental freedoms recognized by national and international law.
(b) States shall ensure that lawyers:
1. are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference;
2. are able to travel and to consult with their clients freely both within their own country and abroad;
3. shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
(a) States shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.
(b) It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time.
(c) Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a judicial body or other legal or administrative authority.
(d) Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.
(e) Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.
(f) Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.
(g) Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.
(h) Lawyers shall always loyally respect the interests of their clients.
(i) Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and the protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.
(j) Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional association shall be elected by its members and shall exercise its functions without external interference.
(k) Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom and recognized international standards and norms.
(l) Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.
(m) Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or even before a judicial body, and shall be subject to an independent judicial review.
(n) All disciplinary proceedings shall be determined in accordance with the code of professional conduct, other recognized standards and ethics of the legal profession and international standards.”
On Access to Justice and Customary Laws: Controversies and Understanding:
In part one of this article I mentioned that in this month’s Third Cycle of South Sudan’s Universal Periodic Review UPR at the United Nations Human Rights Council, at Geneva, included in the the Compilation of UN Information, Report of the Office of the United Nations High Commissioner for Human Rights is that Customary courts were not mandated to hear serious criminal cases and were ill-suited to providing justice to women and victims of sexual violence given gender biases and the lack of procedural safeguards. That is true. There continues to be a lot of controversies and contradictions about application of Customary laws in South Sudan, as well as delivery of justice. In these controversies, citations have also been made on legislation such as the Penal Code Act, 2008 and Code of Civil Procedure Act, 2007. A South Sudanese lawyer in an article in 2019 expressed the need to enact rules of procedure for criminal, civil and evidence laws in South Sudan, arguing, among others, that “Codes enacted without the rules of procedure (guidance) on application of these same codes, make the law a burden to the suspects. In fact, law may become an element of terror to create fear for the law than obeying the law. Law must be applied as it is enacted and excuses intended to cause misapplication are against the natural justice.” The article is available on this link for further reading in this search for reforms.
Some of the continues controversies regarding Access to Justice and Customary Laws relate to the rights of the child and women in South Sudan. However, the issues are more of the process to do with application of justice, the processes, rather than the laws. Some of the arguments as can be seen here-below, are a mixture of distortions, sometimes citing laws that are subordinate in inconsistent with the Transitional Constitution (the Supreme Law) and sometimes by people who take unfair advantage of the women and children using the inadequacies in the process for delivery of justice.
Some relevant Articles of the Transitional Constitution here-below:
Article 5: The sources of legislation in South Sudan shall be:
(a) this Constitution;
(b) customs and traditions of the people;
(c) the will of the people; and
(d) any other relevant source.
Article 166 :
(1) The institution, status and role of Traditional Authority, according to customary law, are recognised under this Constitution.
(2) Traditional Authority shall function in accordance with this Constitution, the state constitutions and the law.
(3) The courts shall apply customary law subject to this Constitution and the law
On Rights of Women, Article 16:
(1) Women shall be accorded full and equal dignity of the person with men.
(2) Women shall have the right to equal pay for equal work and other related benefits with men.
(3) Women shall have the right to participate equally with men in public life.
(4) All levels of government shall:
(a) promote women participation in public life and their representation in the
legislative and executive organs by at least twenty-five per cent as an affirmative action to redress imbalances created by history, customs, and
traditions;
(b) enact laws to combat harmful customs and traditions which undermine the
dignity and status of women; and
(c) provide maternity and child care and medical care for pregnant and lactating women.
(5) Women shall have the right to own property and share in the estates of their deceased husbands together with any surviving legal heir of the deceased.
On Rights of the Child, Article17:
(1) Every child has the right:
(a) to life, survival and development;
(b) to a name and nationality;
(c) to know and be cared for by his or her parents or legal guardian;
(d) not to be subjected to exploitative practices or abuse, nor to be required to
serve in the army nor permitted to perform work which may be hazardous
or harmful to his or her education, health or well-being;
(e) to be free from any form of discrimination;
(f) to be free from corporal punishment and cruel and inhuman treatment by
any person including parents, school administrations and other
institutions;
(g) not to be subjected to negative and harmful cultural practices which affect
his or her health, welfare or dignity; and
(h) to be protected from abduction and trafficking.
(2) In all actions concerning children undertaken by public and private welfare
institutions, courts of law, administrative authorities or legislative bodies, the
paramount consideration shall be the best interest of the child.
(3) All levels of government shall accord special protection to orphans and other vulnerable children; child adoption shall be regulated by law.
(4) For the purposes of this Constitution, a child is any person under the age of eighteen years.
On Freedom from Torture, Article 18:
No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
On Powers of the President in a State of Emergency, Article188:
During a state of emergency, the President may, by law or orders, take any measures that shall not derogate from the provisions of this Constitution except as provided herein:
(a) to suspend part of the Bill of Rights. However, there shall be no infringement on the right to life, prohibition against slavery, prohibition against torture, the right of non-discrimination on the basis of race, sex, religious creed, the right to litigation or the right to fair trial.
On Sanctity of Rights and Freedoms, Article 10:
Subject to Article 189 herein, no derogation from the rights and freedoms enshrined in this Bill shall be made. The Bill of Rights shall be upheld, protected and applied by the Supreme Court and other competent courts; the Human Rights Commission shall monitor its application in accordance with this Constitution and the law.
On Nature of the Bill of Rights, Article 9:
(1) The Bill of Rights is a covenant among the people of South Sudan and between them and their government at every level and a commitment to respect and promote human rights and fundamental freedoms enshrined in this Constitution; it is the cornerstone of social justice, equality and democracy.
(2) The rights and freedoms of individuals and groups enshrined in this Bill shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.
(3) All rights and freedoms enshrined in international human rights treaties,
covenants and instruments ratified or acceded to by the Republic of South Sudan shall be an integral part of this Bill.
(4) This Bill of Rights shall be upheld by the Supreme Court and other competent courts and monitored by the Human Rights Commission.
Some relevant articles I authored are this, this, this, this, this and this, all available online through those links.
On Right to Life and Death Penalty
Relevant to this, the Advance Questions to South Sudan that are relevant to this article, questions asked by various Countries as part this month’s Third Cycle of South Sudan’s Universal Periodic Review UPR at the United Nations Human Rights Council, Geneva, include the following:
“What steps has South Sudan taken towards the full and legal abolition of the death penalty?”
“As a strong proponent of the abolition of the death penalty, Belgium would like to ask if the government is envisaging to establish a moratorium on executions as a first step to formally abolish the death penalty? Which measures is the government taken taking to ensure respect for article 37 of the Convention on the Rights of the Child prohibiting capital punishment for juvenile offenders?”
As of now, the Outcome of the Review and related details have not been published on the Human Rights Council website, or is about to be published.
On their part, included in the Compilation of UN Information, Report of the Office of the United Nations High Commissioner for Human Rights, is that “UNMISS noted that imposition of the death penalty remained a concern, including inadequate safeguards to protect due process and fair trial rights.52 It expressed concern about extrajudicial executions related to cases without a fair trial. On 8 March 2019, the High Commissioner for Human Rights wrote to President Kiir, expressing concern about the increased number of executions and urging him to implement a moratorium on the death penalty.”
Also, included in the in the Summary of Stakeholders’ submissions on South Sudan, Report of the Office of the United Nations High Commissioner for Human Right, is that “AI stated that extra-judicial killings continued during the period under review. AI observed that the 2008 Penal Code provided for the death penalty for several crimes including murder. BCU noted that the 2011 Transitional Constitution provided for the death penalty, and although Article 21 restricted application to “extremely serious offences”, it failed to define “extremely serious”. AI reported that, between January 2017 and July 2021, South Sudan carried out at least 25 judicial executions, including at least 4 individuals who were children at the time of the crime, and at least 45 people were sentenced to death. GICJ estimated that 140 persons were on death row. AI and GICJ recommended that the Government establish an official moratorium on executions with a view to abolishing the death penalty. AI recommended ensuring full compliance with international law and standards on the use of the death penalty, including the prohibition on its use against persons below 18 years of age at the time of the crime. BCU recommended developing a comprehensive action plan to work towards a moratorium, with a view to abolition, and amending the 2011 Transitional Constitution to prohibit the death penalty. GICJ recommended commuting the sentences of all prisoners on death row to imprisonment terms.
JS2 noted the absence of official information on the death penalty.56 Although the Bill of Rights lays out that persons under the age of 18 or over 70 may not be executed, there were unspecified criteria to determine age if there were no records available. The lack of formal judicial infrastructure throughout South Sudan had also led to many criminal cases being brought before customary courts, although customary courts were supposed to be
subordinate to the formal, statutory courts. JS2 recommended that the Government: publish data on the country’s use of the death penalty, including the number of individuals sentenced to death and/or executed, their ages, and the role, if any, that customary courts played; ensure that all people are afforded the rights guaranteed to them under the Constitution; issue guidelines to determine whether a defendant is under 18 or over 70 when there are no officially recognized birth records; and ensure that all individuals sentenced to death are afforded the right to have their sentences reviewed on appeal.”
Relevant Articles of The Transitional Constitution:
On Life and Human Dignity, Article 11:
Every person has the inherent right to life, dignity and the integrity of his or her person which shall be protected by law; no one shall be arbitrarily deprived of his or her life.
On Personal Liberty, Article 12:
Every person has the right to liberty and security of person; no person shall be subjected to arrest, detention, deprivation or restriction of his or her liberty except for specified reasons and in accordance with procedures prescribed by law.
On Freedom from Slavery, Servitude and Forced Labour, Article 13:
(1) Slavery and slave trade in all form are prohibited. No person shall be held in slavery or servitude.
(2) No person shall be required to perform forced or compulsory labour except as a penalty upon conviction by a competent court of law.
On Life and Human Dignity Article 11:
Every person has the inherent right to life, dignity and the integrity of his or her person which shall be protected by law; no one shall be arbitrarily deprived of his or her life.
On Personal Liberty, Article 12:
Every person has the right to liberty and security of person; no person shall be subjected to arrest, detention, deprivation or restriction of his or her liberty except for specified reasons and in accordance with procedures prescribed by law.
On Freedom from Slavery, Servitude and Forced Labour, Article 13:
(1) Slavery and slave trade in all form are prohibited. No person shall be held in slavery or servitude.
(2) No person shall be required to perform forced or compulsory labour except as a penalty upon conviction by a competent court of law.
On Restriction on Death Penalty, Article 21:
(1) No death penalty shall be imposed, save as punishment for extremely serious offences in accordance with the law.
(2) No death penalty shall be imposed on a person under the age of eighteen or a person who has attained the age of seventy.
(3) No death penalty shall be executed upon a pregnant or lactating woman, save after two years of lactation.
Controversies on the term National and perception of Justice
As references continue to be made on the term Nation or National with various understanding and perceptions, including among South Sudanese on building or building one Nation, South Sudan, and as such perception goes into controversies about that Nation being to the exclusion of other South Sudanese tribes or Nationalities, here are relevant provisions of the Transitional Constitution:
Article 6:
(1) All indigenous languages of South Sudan are national languages and shall be respected, developed and promoted.
(2) English shall be the official working language in the Republic of South Sudan, as well as the language of instruction at all levels of education.
(3) The State shall promote the development of a sign language for the benefit of people with special needs.
Article 45:
(1) Every person born to a South Sudanese mother or father shall have an inalienable right to enjoy South Sudanese citizenship and nationality.
(2) Citizenship is the basis of equal rights and duties for all South Sudanese.
(3) Every citizen shall enjoy all the rights guaranteed by this Constitution.
(4) The law shall regulate citizenship and naturalization; no naturalized citizen shall be deprived of his or her acquired citizenship except in accordance with the law.
(5) A South Sudanese national may acquire the nationality of another country as shall be prescribed by law.
(6) A non-South Sudanese may acquire the nationality of South Sudan by
naturalization as shall be prescribed by law.
Conclusions:
As the work and search for reforms including in the Judiciary continues, clearly it has been a long time without elections, and this even presents concerns regarding legitimacy of the government, including the President and the Legislature, as throughout the years their term in office get extended through amendments of the Constitution and through peace agreements, rather that elections.
Some of the concerns related to reform needed in the Judiciary are about right of access to information, transparency, timely and reliably making information available for the public, to allow for their participation as well of other stakeholders.
It is good that the R-ARCSS says that there shall be reforms of the judiciary that shall include but not be limited to the review of the Judiciary Act during the Transition. This means other legitimate reform can be done.
And as the claims continue that there is a Judicial Service Commission Act, 2008 and also Article 1.19.1.9. read together with 1.19.1, the R-ARCSSS says that during the Transitional Period, the “Judicial Service Commission (JSC)” shall be restructured and reconstituted at the national level, and that the Executive shall supervise and facilitate the reforms and re-constitutions “paying particular attention to the mandate and appointments, to ensure their independence and accountability,” if those claims are true, then let that Judicial Service Commission Act, 2008 be made available, public and accessible, as a matter of public right of access to information, so that it is also looked into in relation to its provisions and the Independence of the Judiciary.
In addition to the need for several reforms shown in this article, ensuring the Independence of the Judiciary, would need explicit provisions and guarantees in the Constitution, including on the appointment and security of tenure (removal) of Chief Justice, 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. A lot of controversies happen when it is simply left vague and for a legislation to be enacted.
One avenue to reform the Judiciary in South Sudan and guarantee its Independence can be through the “Permanent” Constitution-making process process. To give a background to that, “Permanent Constitution” has been a popular term in South Sudan’s politics and public issues for years now, it first appeared in The Transitional Constitution Cpromulgated at Independence in 2011 and has since reappeared in peace agreements signed to end the violent conflict in the Country. The context remains that the Country is being governed under a Transitional Constitution that was made within a short period, without wide, all-inclusive participation and there is a need to heal that, notwithstanding the amendments done so far.
Though with delays, and without transparency expected of it, the “Permanent” Constitution-making has started, with a process to enact a legislation to govern that process. An earlier discussion I held in 2021 on my program The Weekly Review available on YouTube is still relevant to understanding the issues.
I continue to deliberately cite the Transitional Constitution of the Republic of South Sudan, 2011 without referring to any amendment so as to be clear, just for that purpose and reasons that even the amendments done are not on those parts I cited here, the lines between the Transitional Constitution and the Amendment Act 2020, that incorporated the R-ARCSS into the Transitional Constitution are clear. Amendment 5, Article 3 of the Constitution Amendment Act 2020 modifying sub article (5) of Article 3 of the Transitional Constitution provides that “The Agreement (R-ARCSS) shall take precedence over the Constitution, any national legislation or previous agreement, and in the event that the provisions of the Constitution or a national legislation conflict with the terms of the Agreement, the Agreement shall prevail.” So, the Transitional Constitution can be read together with the R-ARCSS, also as references (articles cited) in the various appointments during formation of the Revitalised Transitional Government of National Unity (RTGoNU) quoting both were clear. A relevant article I authored recently gives understanding about that.
While Article 6(2) of the Transitional Constitution provides that English shall be the official working language in the Republic of South Sudan, as well as the language of instruction at all levels of education, concerns and controversies have been expressed regarding challenges in access to and the administration of justice, resulting from mixed use of English and Arabic by some institutions, the police, and in the Judiciary, given that there are South Sudanese who obtained their education in Arabic or English. And that the Code of Civil Procedure Act 2008 allows for use of Arabic Language. Concerns and controversies have also been expressed about application of Sharia Law in South Sudan and that the Code of Civil Procedure Act 2008 provides that:
“Where a suit or other proceeding in a Civil Court raises a question regarding succession, inheritance, legacies, gifts, marriage, divorce, or family relations, the rule for decision of such question shall be:
(a) any custom applicable to the parties concerned; provided that, it is not contrary to justice, equity or good conscience and has not been by this, or any other enactment, altered or abolished or has not been declared void by the decision of a competent Court; or,
(b) the Sharia Law in cases where the parties are Muslims except so far as it has been modified by such custom as is above referred to.”
On Language, when the Sudan was one during the CPA, the National Interim Constitution of the Republic of the Sudan, 2005, in Article 8(1)provided that:
(1) All indigenous languages of the Sudan are national languages
and shall be respected, developed and promoted.
(2) Arabic is a widely spoken national language in the Sudan.
(3) Arabic, as a major language at the national level and English shall be the official working languages of the national government and the languages of instruction for higher education.
(4) In addition to Arabic and English, the legislature of any subnational level of government may adopt any other national language as an additional official working language at its level.
(5) There shall be no discrimination against the use of either Arabic or English at any level of government or stage of education.
While the Interim Constitution of Southern Sudan Constitution, 2005, in Article 6 provided the following:
(1) All indigenous languages of Southern Sudan are national languages and
shall be respected, developed and promoted.
(2) English and Arabic shall be the official working languages at the level of
the governments of Southern Sudan and the States as well as languages of
instruction for higher education.
(3) There shall be no discrimination against the use of either English or Arabic at any level of government or stage of education.
(4) English, as a major language in Southern Sudan, and Arabic, shall be the official working languages of the governments of Southern Sudan, and the states and the languages of instruction for higher education.
- In addition to English and Arabic, the legislature of any sub- level of government in Southern Sudan may adopt any other national language as an additional official working language or medium of instruction in schools at its level.
In practice, the provision of Article 6(2) of the Transitional Constitution that English shall be the official working language in the Republic of South Sudan, as well as the language of instruction at all levels of education continues to be largely respected, despite challenges that access to and the administration of justice, resulting from mixed use of English and Arabic by some institutions, the police, and in the Judiciary, given that there are South Sudanese who obtained their education in Arabic or English. Some also continue to express concerns that both English and Arabic be made official working languages of the government, through the “Permanent” Constitution-making process, and that through that, and other reform on making translations of official communications obligatory in both languages in government institutions, among others, the language challenges related to access to and delivery of justice could be resolved. Could that be right? Or transitioning to English as the (only) official working language in the Republic of South Sudan, is sufficient, at least for now and few years to come? In between, still translations can be done in courts, though that would need guarantees on the credibility and reliability of such translations.
On matters of Religion, the Transitional Constitution, in Article 8, provides that:
(1) Religion and State shall be separate.
(2) All religions shall be treated equally and religion or religious beliefs shall not be used for divisive purposes.
And in the Bill of Right, in Article 23, on Religious Rights, The Transitional Constitutions provides that:
The following religious rights are guaranteed by this Constitution:
(a) the right to worship or assemble in connection with any religion or belief and to establish and maintain places for these purposes;
(b) the right to establish and maintain appropriate faith-based, charitable or
humanitarian institutions;
(c) the right to acquire, possess and own movable and/or immovable property
and make, acquire and use the necessary articles and materials related to
the rites or customs of religion or belief;
(d) the right to write, issue and disseminate religious publications;
(e) the right to teach religion or beliefs in places suitable for these purposes;
(f) the right to solicit and receive voluntary financial and other contributions
from individuals, private and public institutions;
(g) the right to train, appoint, elect or designate by succession appropriate
religious leaders called for by the requirements and standards of any
religion or belief;
(h) the right to observe days of rest, celebrate holidays and ceremonies in
accordance with the precepts of religious beliefs; and
(i) the right to communicate with individuals and communities in matters of
religion and beliefs at national and international levels.
There are arguments about some South Sudanese lawyers having learned Sharia Law (Islamic Sharia) and the impact of that in access to and the delivery of Justice. On this, reform of the Advocates Act, 2013, and other reform per The Basic Principles on the Role of Lawyers, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003 need to be pursued continuously.
On their part, in the National Report in this month’s Third Cycle of South Sudan’s Universal Periodic Review UPR at the United Nations Human Rights Council, the Government of South Sudan (RTGoNU) said that it is is seeking, among other, from the international community and partners “Capacity building on human rights for military, police, national security, prison personnel, prosecutors and judicial officers.” Whether it is about seeking funds, support for reform and the implementation of the R-ARCSS, the issues have to go together with reform on transparency and accountable use of public resources since without that there can be no progress.
Meanwhile, about the National Security, the security service’s broad powers of arrest, search and seize private property without a judicial warrant, and its expansive surveillance powers with no independent oversight or due process need to be reformed to withdrawn.
Finally, let me reiterate that despite delays and actions regarding the reform of the Judiciary in South Sudan per the R-ARCSS continue to be mentioned, the credibility of those reforms and concerns about the process and improvements are mainly the responsibility of the parties to the agreement, civil society, regional and international partners, communities and bodies involved, as well as the people of South Sudan, and that even improving the R-ARCSS is possible. What is unfair and not right is confusing people and going round and round over same issues.
While improving the R-ARCSS is also possible, it is worth recalling they in the R-ARCSS agreed that they are “Mindful of our commitment under the Transitional Constitution of the Republic of South Sudan, 2011, (TCRSS) as amended, to lay the foundation for a united, peaceful and prosperous society based on justice, equality, respect for human rights and the rule of law.” (Paragraph One, Preamble of the R-ARCSS.)
The intention of this article is to look at Independence of the Judiciary, as the Transitional Constitution states that the Judiciary shall be independent of the executive and the legislature; together with relevant laws, observations, arguments and controversies about the same. All contributions made here are in good faith and may this article, together with its Part One and relevant ones mentioned here help in the reform process.
Roger Alfred Yoron Modi, a South Sudanese journalist, is the author of the book Freedom of Expression and Media Laws in South Sudan. Roger is also the Producer and Host of The Weekly Review: Making Sense of News and Relevant Topics. For more, keep in touch with this his website rogeryoronmodi.com
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