R-ARCSS: On Access to Justice, and Judicial Reform in South Sudan (Part 3)
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 23, 2022 (PW) — This article seeks to provide answers and understanding on access to justice, judicial reform matters in South Sudan that are related to topics of Federalism, decentralization of powers to lower levels of government, including judicial powers and their structures, topics that generate mixed views and controversies regarding the crises of the Country, and in relation to human rights.
This is also cognizant, in recognition, and as shall be seen here-below, of the following:
That Article 47 of the Transitional Constitution of the Republic of South Sudan, 2011, provides that South Sudan shall have a decentralized system of government with the following levels:
(a) the National level which shall exercise authority in respect of the people and the states;
(b) the state level of government, which shall exercise authority within a state, and render public services through the level closest to the people; and
(c) local government level within the state, which shall be the closest level to the people.
Article 165 (1) of the Transitional Constitution provides that pursuant to Article 47 (c) and the state constitutions, the states shall enact laws for the establishment of a system of local government based on urban and rural councils for which they shall provide structures, composition, finance and functions.
Also as of now, the mandate of the current government, the Revitalised Transitional Government of National Unity (RTGoNU), established per the R-ARCSS and the Transitional Constitution, include that the RTGoNU shall devolve more powers and resources to the State and Local Government levels. (Article 1.2.15. of the R-ARCSS).
While Part Two of this article has explained the context of the “Permanent” Constitution-making process in South Sudan and the reader can check that for better understanding, Article 1.2.5. of the R-ARCSS provides that the RTGoNU shall oversee and ensure that the “Permanent” Constitution making process is successfully carried out and completed before the end of the Transitional Period. That’s despite the delays in the implementation of the R-ARCSS. Article 6.4. says the “permanent” constitution shall be completed not later than twenty-four (24) months following the establishment of the Transitional Period and shall be in place to guide the elections toward the end of the Transition.
On the Parameters of the “Permanent” Constitution, among others, Article 6.1. provides that the “Permanent” Constitution-making Process shall be based on the principles of:
6.2.1. Supremacy of the People of South Sudan;
6.2.2. Initiate a Federal and democratic system of government that reflects the character of South Sudan in its various institutions taken together, guarantees good governance, constitutionalism, rule of law, human rights, gender equity and affirmative action;
6.2.3. Guaranteeing peace and stability, national unity and territorial integrity of the Republic of South Sudan;
6.2.4. Promoting people’s participation in the governance of the country through democratic, free and fair elections and the devolution of powers and resources to the states and counties;
6.2.5. Respecting ethnic and regional diversity and communal rights, including the right of communities to preserve their history, develop their language, promote their culture and expression of their identities;
6.2.6. Ensuring the provision of the basic needs of the people through the establishment of a framework for fair and equitable economic growth and access to national resources and services;
6.2.8. Committing the people of South Sudan to peaceful resolution of national issues through dialogue, tolerance, accommodation and respect of others opinions.
Also, the R-ARCSS says the duties and responsibilities of the Council of Ministers of the RToGNU include to “Supervise and co-ordinate the functioning of Government departments and administration, and ensure that State organs have sufficient financial and other resources and operational capacity to carry out their functions.” (Article 1.10.8.5.)
On Wealth Sharing and Revenue Allocation, the R-ARCSS (in Articles 4.11: 4.11.4; 4.11.6; and 4.11.5) provides that:
-In line with the agreement on the devolution of more powers and resources to the States and Counties, wealth sharing and revenue allocation shall be worked out by the RTGoNU within three (3) months of the commencement of the Transitional Period.
-The proportion of the natural resource wealth of South Sudan shared with the States and counties shall be increased and that the final terms of the increment and formulae to be applied shall be determined in the permanent constitution.
-The RTGoNU shall not withhold an allocation due to a State or Local Government in South Sudan. Any level of Government may initiate proceedings in the courts of law should any other organ or level withhold its duly authorized funds.
Structure of the Judiciary, Current and Past Lessons, including on Local Government:
The topics of Federalism, demands for decentralization of power and resources to lower levels of government in South Sudan remains contentious, mixed with controversies, and politicized, sometimes with a lot of dishonesty. For purposes of this article, I am sharing here-blow excerpts from an article I wrote on the topic in 2018, the link to the article is there and the reader can check for further reading and understanding, together with relevant articles on my website rogeryoronmodi.com
The excepts:
“When the armed conflict erupted in South Sudan, the Peace and Security Council of the African Union AU, at its 411th meeting held at the level of Heads of State and Government, in Banjul, The Gambia, on 30 December 2013 responded by mandating the establishment of the Commission of Inquiry on South Sudan also known as the AUCISS.
The Terms of Reference ToR detailed in the Concept Note Relating to the Establishment of the AUCISS per the AUPSC Communiqué related to the subject of this article were to, inter alia:
· Establish the immediate and remote causes of the conflict
· Compile information on institutions and process or lack thereof that may have aided or aggravated the conflict resulting in violations of human rights and other abuses
· […] examine ways on how to move the country forward in terms of unity, cooperation and sustainable development.
· Make recommendations based on the investigation on: appropriate mechanisms to prevent a recurrence of the conflict, mechanisms to promote national healing and cohesiveness, particularly focusing on the need for all South Sudanese communities to live together in peace; and modalities for nation building, specifically focused on building of a functional political order, democratic institutions and post-conflict reconstruction, etc.
“On the system of government, the AUCISS “found that the Transitional Constitution creates three levels of government — national, state and local government — and that both national and state government enjoy a sphere of exclusive executive and legislative powers, while judicial power is national. The Commission concluded that the devolved system of government in South Sudan has both unitary and federal elements, and that it is essentially a ‘hybrid system’, in part because states lack competence in judicial power and that national executive possesses limited control over states. This is expressed in the fact that the President is empowered to remove elected governors, and to dissolve state legislative assemblies.”
“It added:
“With respect to the third tier of government, it was established that functionally, local government are linked to states, which have the constitutional mandate to create and finance local government units. States receive a share of 15% of national revenue while the national government retains 85%.
“The Commission (AUCISS) also established that there is disconnect between the legal framework on decentralization and practice, and that several aspects of decentralization have not been implemented or are dysfunctional. Practice distorts the delicate balance of power between national and state government in the sense that national government intervenes in the functioning of state governments in ways that appear to lack constitutional sanction. Equally, the relationship between states and local government is problematic: states exercise de facto control over local government and provisions on election of certain local government officials have not been respected. Local government, which is a key center of service delivery, faces serious financial, human and physical resource constraints, resulting in lack of capacity to deliver services.”
“The AUCISS recommended that in view of existing gaps between the constitutional text and its implementation, political actors should commit to give full effect to TCRSS, 2011 (during the transitional period) until a new one is adopted.
It further recommended that “consideration should be given to repealing provisions that empower the President to remove elected governors, to dismiss or suspend legislatures and to summon or prorogue the National Assembly. These changes can be effected through minimal reforms pending the outcome of the constitutional review process.”
On the question of Federalism in contemporary South Sudan, the AUCISS found that “demands for federalism in sections of society is essentially about service delivery, guarantees for autonomy to decide on local priorities, and management of diversity (in the context of fear of domination).”
Those who oppose federalism, according to the AUCISS, argued that, if adopted, federalism could divide South Sudanese. The Commission noted that the majority of those in this category who expressed themselves prefer that the decentralized system established by the TCRSS, 2011 be retained in a future constitutional dispensation.
“They emphasize that focus should be on working the current system with a view to fostering development and delivering services to the people: Things should remain as they are. Because you need more time to educate people to know for instance different languages … so you need resources … the communities can [then] choose which one is better when you train them,” partly read the final report of the AUCISS, presumably quoting a source as well.
“What emerged from the views gathered by the Commission, as well as commentary on the subject is that the issue has been politicized, and that the debate appears to be coloured by historical narratives of exclusion and inclusion. Equally, there is misunderstanding in a significant portion of the population as to what federalism entails. Some, including those who advocated for change, appeared unaware that the current system in South Sudan includes elements of federalism,” the AUCISS report added.
“There are those who believe that federalism means separate existence or segregation, which evokes painful historical antecedents for some. One respondent told the Commission that in the federal arrangement he envisions, ‘we want to be left to live alone, us in our area and the xx in theirs’ referring to two ethnic communities. Some of those advocating for ‘segregation’ told the Commission that inter-ethnic relations were irreparably damaged by atrocities committed during the conflict, and that it would be difficult to co-exist side by side. For the Commission, these sentiments underscore the need for genuine reconciliation at the communal level, irrespective of the system of government adopted.”
The AUCISS report observed that “it is however notable that despite this divide among ordinary South Sudanese, there is emerging political consensus among the negotiating parties in the IGAD-led mediation process that a new constitutional dispensation to be established should be based on principles of federalism taking into account the context and the views of ordinary South Sudanese.
“Finally, the author agrees with the view of AUCISS that “whether a system is denominated ‘federalism’ or ‘decentralization’ or ‘devolution’, it is the ‘content’ of the system (in relation to adequate devolution of resources, decision-making power and guarantees against undue interference in devolved units by the center) as well as commitment to the implementation of the constitutional text that matters.”
Structure of the Judiciary: The Transitional Constitution and the Judiciary Act
Relevant here the Transitional Constitution in Schedule (A) provides that the exclusive legislative and executive powers of the National Government shall be as follows:
-The adoption or amendment of the National Constitution;
-National Defence, National Security and Protection of the National Borders;
-The Judiciary;
-National Police;
-Establishment and Maintenance of National Prisons, Wildlife and the Fire Brigade
Services.
In PART SEVEN, on THE JUDICIARY, Article 123 provides the following:
(1) Judicial power is derived from the people and shall be exercised by the courts in accordance with the customs, values, norms and aspirations of the people and in conformity with this Constitution and the law.
(2) Judicial power shall be vested in an independent institution to be known as the Judiciary.
(3) The Judiciary shall be responsible for the maintenance of professional standards and training of judicial personnel.
(4) The Judiciary shall have power to adjudicate on disputes and render judgments in accordance with this Constitution and the law.
(5) In adjudicating cases of both civil and criminal nature, the courts shall, subject to the law, apply, inter alia, the following principles:
(a) justice shall be done to all irrespective of their social¸ political or economic status, gender, religion or beliefs;
(b) justice shall not be delayed;
(c) adequate compensation shall be awarded to victims of wrongs;
(d) voluntary reconciliation agreements between parties shall be recognized and enforced; and
(e) substantive justice shall be administered without undue regard to technicalities.
(6) There shall be a substantial representation of women in the Judiciary having regard to competence, integrity, credibility and impartiality.
(7) All organs and institutions, at all levels of government, shall obey and execute the judgments and orders of the courts.
(8) The Chief Justice, as the head of the Judiciary, shall be responsible for the administration of the Judiciary.
(9) The overall administration of the Judiciary, its composition and functions shall be prescribed by law in accordance with the provisions of this Constitution.
On the Structure of the Judiciary, the Transitional Constitution provides that the Judiciary shall be structured as follows:
(a) the Supreme Court;
(b) Courts of Appeal;
(c) High Courts;
(d) County Courts; and
(e) other courts or tribunals as deemed necessary to be established in accordance with the provisions of this Constitution and the law.
Relevant here, the functions that the National Legislative Assembly shall exercise, The Transitional Constitution in Article 57 (j) provides that includes enact legislation to regulate the conditions and terms of service of the Judiciary and its oversight mechanisms.
Meanwhile, Article 128(5) of the Transitional Constitution provides that The Supreme Court shall regulate its functions and procedures in accordance with the law.
Article 130(1) provides that The establishment, composition, competencies and procedures of the Courts of Appeal shall be determined by law.
Article 131(1) provides that The establishment, composition, competence, jurisdiction and procedures of High Courts shall be determined by law.
Article 132(1) provides that The establishment, composition, competences and procedures of County and other courts at lower levels shall be determined by law.
Note that relevant law enacted so far and I am citing its relevant provisions here is the Judiciary Act, 2008. Also, note that as pointed out in Part Two if this Article, 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.” Also note relevant reform needed I recommended in that article.
So, on Judicial Power and Independence, Section 6 of the Judiciary Act, 2008 provides that:
(1) Judicial power in Southern Sudan is vested in an independent organ to be known as “The Judiciary of Southern Sudan” hereinafter referred to as the “Judiciary”.
(2) The Judiciary shall be independent of the Southern Sudan Executive and the Legislature. The President of the Supreme Court, as the head of the Judiciary, shall be answerable to the President of GoSS for the proper functioning and administration of the Judiciary.
On The Supreme Court, Section 10 of the Judiciary Act, 2008 provides that:
(1) The Supreme Court shall consist of the President of the Supreme Court, a Deputy President and five (5) other Justices.
(2) The President of the Supreme Court shall regulate the functioning and procedures of the Supreme Court and its panels according to the law.
(3) The seat of the Supreme Court shall be in Juba, but in the performance of its duties, it may sit at any other place within Southern Sudan, as the President of the Supreme Court deems appropriate and necessary.
(4) The powers and Jurisdiction of the Supreme Court shall be as provided for by Article 130 of the Interim Constitution of Southern Sudan supplemented by the Code of Criminal and Civil Procedure Acts or any other law.
On Panels of the Supreme Court, Section 11 of the Judiciary Act provides that:
(1) There shall be established within the Supreme Court, the following Panels—
(a) a Constitutional Panel to determine Constitutional matters, the Constitutionality of laws, interpretation of laws and conflict of Jurisdiction;
(b) a Criminal Panel to determine appeals and confirmations in criminal matters; and
(c) a Civil Panel to determine appeals in civil, commercial and other matters.
- The Constitutional Panel shall be constituted by all Justices of the Supreme Court and presided over by the President of the Supreme Court. In the event a Justice is unable to sit on this Panel, the President of the Supreme Court shall confer powers upon the most senior Justice of the Court of Appeal for that purpose.
- The Criminal and Civil Panels shall consist of three (3) Justices each, and shall be presided over by the President of the Supreme Court, the Deputy President or any other Senior Justice, whom the President of the Supreme Court may authorize.
(4) Judgements shall be passed by majority decision of the Justices, and the order shall be issued and signed by the Presiding Justice of the Panel
On Establishment and Constitution of Courts of Appeal, Section 12 of the Judiciary Act, 2008 provides that:
(1) The Courts of Appeal shall be established by warrants of establishment issued by the President of the Supreme Court. The seats of such courts shall be specified in the warrant of establishment of each court.
On Establishment of the High Courts, Section 14 of the Judiciary Act, 2008 provides that:
(1) There shall be established, by warrants issued by the President of the Supreme Court, one High Court in each of the ten States of Southern Sudan.
(2) The High Court, which is the highest Court in the State, shall consist of the President of the High Court and two other Judges.
(3) The Seat of the High Court shall be in the capital of the State, the President of the High Court may, when necessary, convene the Court at any other place within its jurisdiction.
Section 16 of the Judiciary Act, 2008 provides that The President of the Supreme Court shall by warrants establish County and Payam Courts.
On Grading of the County and Payam Court Judges Section 17 of the Judiciary Act, 2008 provides that County and Payam Court Judges shall consist of the followings—
(a) First Grade;
(b) Second Grade; and
(c) Third Grade.
On Jurisdiction of the County and Payam Courts, Section 18 of the Judiciary Act, 2008 provides that:
(1) The County Court of the First Grade Judge shall have original and appellate jurisdiction as specified by the Codes of Civil Procedure and Criminal Procedure as may be in effect from time to time, and in any other law.
(2) The County Court of second Grade Judge shall have original Jurisdiction as specified by the Codes of Civil and Criminal Procedure as may be in effect from time to time and in any other law.
(3) The Payam Court shall have original Jurisdiction as specified by the Codes of Civil and Criminal Procedure as may be in force from time to time and in any other law.
(4 ) The seat of the County Court shall be in the County Headquarters or in any other place within its Jurisdiction.
- The seat of the Payam Court shall be in the Payam Headquarters or any other place within its Jurisdiction.
- The seat of the Payam Court shall be in the Payam Headquarters or any other place within its Jurisdiction.
And Section 19 of the Judiciary Act, 2008 provides that the President of the Supreme Court shall have the power to grant temporary judicial powers to any Judge or person for a specified period and may renew such powers from time to time.
Competences of Lower Levels of Government: the State, and Local Government
Article 162 of the Transitional Constitution provides as follows:
(1) There shall be legislative and executive organs at each state level; they shall function in accordance with this Constitution and the relevant state constitution.
(2) Each state shall have exclusive executive and legislative competences as set forth in Schedule B of this Constitution.
(3) Each state shall have concurrent and residual executive and legislative competences as set forth in Schedules C and D, read together with Schedule E herein.
(4) Each state government shall exercise such other powers as shall promote the welfare of the people of that state and to protect their human rights and fundamental freedoms as are provided for in this Constitution.
(5) Each state shall organize, promote and empower the local government institutions in accordance with the provisions of this Constitution and its constitution and the law.
(6) Elections to the local government institutions shall be organized and conducted by the National Elections Commission in accordance with the provisions of this Constitution and the law.
(7) In fulfillment of the principle of affirmative action, women shall be allocated at least twenty-five per cent of the seats and positions in each legislative and each executive organ of each state, without prejudice to their right to compete for the remaining seats and positions in such organs.
State Legislative Assembly
The exclusive executive and legislative powers of a state relevant to this Article, Schedule (B) of the Transitional Constitutions, provides, shall be as follows:
1. Adoption or amendment of the state constitution subject to conformity with the National
Constitution;
2. State Police, Prisons, Wildlife, Fire Brigade services;
3. Local Government;
5. Social Welfare including state pensions;
6. The state Civil Service;
7. State Land and state Natural Resources;
8. Cultural matters within the state;
9. Regulation of religious matters;
11. The management, lease and utilization of lands belonging to the state;
12. The establishment, maintenance and management of state prisons and reformatories;
13. Establishment, regulation, and provision of health care, including hospitals and other health facilities;
14. Regulation of businesses, trade licenses, working conditions, hours, and holidays within the state;
15. Local works and undertakings;
16. Registration of marriage, divorce, inheritance, birth, death, adoption and affiliations;
17. Enforcement of national and state laws;
18. The development, conservation and management of state natural resources and state forestry resources;
26. Charities and endowment;
28. Town and rural planning;
29. State cultural and heritage sites, libraries, museums and other historical sites;
30. Traditional authority and customary law;
31. State finances;
35. State taxes;
36. State public utilities;
42. Customary law courts.
On Traditional Authority, Article 166 of the Transitional Constitution provides that:
(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.
And on Role of Traditional Authority, Article 167 of the Transitional Constitution provides that:
- Legislation of the states shall provide for the role of Traditional Authority as an institution at local government level on matters affecting local communities.
- Legislation at the National and state levels shall provide for the establishment, composition, functions and duties of councils for Traditional Authority leaders.
On Local Government, Article 165 (1) of the Transitional Constitution provides that:
(1) Pursuant to Article 47 (c) (mentioned at the opening of this article above) of this Constitution and the state constitutions, the states shall enact laws for the establishment of a system of local government based on urban and rural councils for which they shall provide structures, composition, finance and functions
(2) Without prejudice to the provisions of sub-Article (1) above and for the purposes of the initial establishment of a local government system, and in order to set common standards and criteria for the organization of local government, the National Government shall enact the necessary legislation.
(3) The President shall establish a Local Government Board under his or her office to review the local government system and recommend the necessary policy guidelines and action in accordance with the decentralization policy enshrined in this Constitution.
(4) Without prejudice to the existing forms of the local government structures, local government councils shall be established by law taking into account but not limited to the following criteria:
- size of territory;
(b) population;
(c) economic viability;
(d) common interest of the communities; and
(e) administrative convenience and effectiveness.
(5) Local government tiers shall consist of County, Payam and Boma in the rural areas, and of city, municipal and town councils in the urban areas.
(6) The objects of local government shall be to:
(a) promote self-governance and enhance the participation of people and communities in maintaining law and order and promoting democratic, transparent and accountable local government;
(b) establish the local government institutions as close as possible to the people;
(c) encourage the involvement of communities and community based organisations in the matters of local government, and promote dialogue among them on matters of local interest;
(d) promote and facilitate civic education;
(e) promote social and economic development;
(f) promote self-reliance amongst the people through mobilisation of local resources to ensure the provision of health and educational services to communities in a sustainable manner;
(g) promote peace, reconciliation and peaceful coexistence among the various communities;
(h) ensure gender mainstreaming in local government;
(i) acknowledge and incorporate the role of Traditional Authority and
customary law in the local government system;
(j) involve communities in decisions relating to the exploitation of natural
resources in their areas and promote a safe and healthy environment; and
(k) promote and support the training of local cadres.
(7) Local governments shall have powers to levy, charge, collect and appropriate fees and taxes in accordance with the law.
(8) The National Government may pay grants-in-aid to states in support of their budgetary deficits and that of local government councils.
On Cattle Keepers and Farmers Relations: President’s Decrees, and States Competencies on the Same
For years now relations between cattle keepers and farmers have been difficult, a source of insecurity, clashes, displacement. While decrees President Salva Kiir has issued related to the topic can be traced to since 2015; calls for implementation of those decrees continue, sometimes referred to as Order for “return of cattle keepers in Central and Western Equatoria states to their home areas” or Order for “withdrawal of pastoralists together with their cattle from the Eqautoria region,”and leave for their states, several controversies continue to exist.
“The order announced through the state-owned South Sudan Broadcasting Corporation (SSBC) on Monday evening directed the chief of defense forces of the army to ensure all pastoralists and cattle camps from Jonglei, Eastern Lakes and Terekeka states withdraw and return back to their respective states,” a Radio Tamazuj 2017 article partly reads.
While it is also not clear what powers the President cited in the Order (s) (Decree), as well as the Constitutionality of that, the following are important to note:
-Indeed the process in South Sudan needs a holistic approach, including those provided for in the R-ARCSS.
-The impact of history of wars still continue to be there.
-While some of the controversies being spread about the cattle camps is about Freedom of Movement and Residence, the Article 27(1) of the Transitional provides that “Every citizen shall have the right to freedom of movement and the liberty to choose his or her residence except for reasons of public health and safety as shall be regulated by law.” This is not the same as Freedom to establish cattle camps everywhere.
Moreover, Article 162(4) of the Transitional Constitution provides that each state government shall exercise such other powers as shall promote the welfare of the people of that state and to protect their human rights and fundamental freedoms as are provided for in this Constitution.
And Article 162(5) provides that each state shall organize, promote and empower the local government institutions in accordance with the provisions of this Constitution and its constitution and the law.
It is therefore right that solutions can be inform of using the exclusive executive and legislative competences, provided for in the Transitional Constitution, to enact laws to govern those relations that have been difficult: this can include procedures for establishing a cattle camp, purposes, timelines, grazing, and so on. All these are possible while respecting the right to Freedom of Assembly and Association.
For on Freedom of Assembly and Association, the Transitional Constitution in Article 25 is clear that:
(1) The right to peaceful assembly is recognized and guaranteed; every person shall have the right to freedom of association with others, including the right to form or join political parties, associations and trade or professional unions for the protection of his or her interests.
(2) Formation and registration of political parties, associations and trade unions shall be regulated by law as is necessary in a democratic society.
(3) No association shall function as a political party at the National or state level unless it has:
(a) its membership open to any South Sudanese irrespective of religion, gender, ethnic origin or place of birth;
(b) a programme that does not contradict the provisions of this Constitution;
(c) a democratically elected leadership and institutions; and
(d) disclosed and transparent sources of funding.
-So, holistic approach is needed, including on completing South Sudan’s Transition, the processes in the R-ARCSS, Transitional Justice: Reconciliation, Healing, the Hybrid Court, and all relevant provisions, together with legitimate improvements.
Decentralization of the Judiciary: Lessons from the Past, the Transitional Constitution and Relevant Laws
During the period in which the present-day South Sudan was governed as a Semi-Autonomous region per the provisions of the 2005 Sudan Comprehensive Peace Agreement, The Interim National Constitution of the Republic of The Sudan, 2005, and the Interim Constitution of Southern Sudan, 2005 (ICSS); there was Judiciary at State levels. Article 171 of the ICSS provided the following:
(1) Judicial power in the states shall vest in the State Judiciary; the constitution of each State shall provide for the establishment of a state Judiciary consisting of the following hierarchy of courts:
(a) High courts;
(b) County courts; and
(c) Any other courts and tribunals as shall be determined by law.
(2) State courts shall have civil and criminal jurisdiction in respect of state, Southern Sudan and national laws, save that a right of appeal shall lie as provided for herein; however, the Southern Sudan Legislative Assembly shall determine the civil and criminal procedures in respect of litigation or prosecution under Southern Sudan laws in accordance with this Constitution.
(3) Each state shall determine the jurisdiction of its customary law courts.
(4) The constitution and legislation of each state shall provide for:
(a) the appointment, removal and other terms and conditions of service of judges and lay magistrates; and
(b) guarantees for the independence and impartiality of the State Judiciary, immunity of judges and magistrates, and measures to ensure that they are not subject to political or other interference.
(5) The structures and powers of the courts of the states of Southern Sudan shall be subject to the provisions of this Constitution and constitution of the state concerned.
(6) There shall be a substantial representation of women in the State Judiciary having regard to competence, integrity, credibility and impartiality.
The ICSS in Article 132 provided that:
(1) The High Court shall be the highest court at the level of a state in Southern Sudan and its establishment, competence, jurisdiction and procedures shall be determined by law.
(2) The most senior judge of the High Court who shall be its president, shall be answerable to the Governor of the state for the performance and administration of the State Judiciary.
(3) Decisions of the High Courts shall be appealed against before the Courts of Appeal.
And Article 133 of the ICSS provided that the establishment, competences and procedures of County Courts and other courts at lower levels in the states of Southern Sudan shall be determined by law.
The States did not move further in implementing and enacting laws that were envisioned per that period.
Also, in April 2011, without providing a a more detailed explanation, the Technical Committee formed to Review the Interim Constitution of Southern Sudan, 2005 (ICSS) to, among others, suggest the deletion and insertion of certain provisions to transform the ICSS “from a regional or sub-national Constitution to a constitution for an independent state” made a recommendation that all courts in the states, except the local customary courts, shall be under the supervision of the National Judiciary, “based on the understanding that the decentralization of the Judiciary was problematic during the Interim Period.” Without providing a a more detailed explanation as to how “problematic” the “decentralization of the Judiciary” was and what could be solutions inline with the ICSS, apart from necessarily centralizing the Judiciary
The Explanatory Report partly reads :
“The Scope of Work requires the Technical Committee to make recommendations to the President on possible amendments to support efforts to provide for effective governance post-independence. Specifically, the scope of Work provides that the Technical Committee shall:
“evaluate and identify provisions in the ICSS that may need immediate modification or amendment to ensure effective governance, and present recommendations for such modifications to the President of the Government of Southern Sudan for considerations.” (See Presidential Decree 002/2011, Scope of Work, 3.1.4.
Pursuant to this part of its Scope of Work, the Technical Committee provides the recommendation that all courts in the states, except the local customary courts, shall be under the supervision of the National Judiciary. except for the local courts. This recommendation is made based on the understanding that the decentralization of the Judiciary was problematic during the Interim Period. The Technical Committee therefore suggests the removal of Article 171 of the Interim Constitution, “State Judiciary,” in its entirety.
Similarly, the Technical Committee suggests that Public Attorneys and Legal Advisors be answerable to the Ministry of Justice (the suggested name for the current Ministry of Legal Affairs and Constitutional Development) in order to provide for greater accountability, uniformity, coherence and consistency with existing legal system. The Technical Committee suggests an amendment to original Article 138 of the Interim Constitution to provide, “The Public Attorneys and Legal Advisors shall be under the National Ministry of Justice.” (See suggested Article 136 in the draft amended Constitution.)”
And indeed the Transitional Constitution promulgated in 2011 was largely based on the work of the Technical Committee.
Relevant Article of the Transitional Constitution here is on The Public Attorneys and Legal Advisors, and it is Article 136 which provides that:
(1) The Public Attorneys and Legal Advisors shall be under the National Ministry of
Justice.
(2) The Minister of Justice shall be the chief Legal Advisor and the prosecuting authority at all levels of government, and shall perform such other functions of legal nature as may be prescribed by law.
(3) Public Attorneys and Legal Advisors shall advise all levels of government, represent them in public prosecution, litigation, adjudication, and conduct pre-trial proceedings. They shall recommend law reform, strive to protect public and private rights, advise on legal issues and shall render legal aid.
(4) Without prejudice to the generality of sub-Article (3) above, the courts shall have power to supervise pre-trial proceedings in the interest of justice.
(5) Public Attorneys and Legal Advisors at all levels of government shall perform their duties diligently according to this Constitution and the law.
(6) Without prejudice to the generality of sub-Article (2) above, the Minister of Justice shall be responsible for:
(a) drawing up, perusing and recommending approval or otherwise, of such agreements, contracts, treaties, international conventions and instruments to which the Government is a party or in respect of which the Government has an interest.
(b) representing the government in court or any other legal proceedings to which any level of government is a party;
(c) drafting legislation, including subsidiary legislation, for the government and;
(d) performing such other functions as may be assigned to him or her by the President or the law.
(7) All executive institutions and organs of government at all levels shall comply with legal advice duly given by the Minister of Justice.
(8) The functions, immunities, emoluments, and terms and conditions of service of the Public Attorneys and Legal Advisors shall be prescribed by law.
The Southern Sudan Police Service Act, 2009, in Section 8 (1) on Duties of Police Service, says “police personnel shall have” the powers that include: carry out criminal investigations under the directives of Public Prosecution Attorney.
Meanwhile, THE POLICE GENERAL REGULATIONS, 2003, which repealed The New Sudan Police General Regulations 1994, and is the one seems to be practically in application in South Sudan, in Section 4, says the Police Forces shall be organized into the following units:-
a) The Police General Headquarters (GHQ).
b) Directorate of Administration.
c) Directorate of Railways and river transport.
d) Directorate of Passports, Immigration and Nationality.
e) Directorate of Auxiliary Force.
f) Directorate of Traffic.
g) Directorate of Public Security.
h) Criminal Investigation Department (CID).
i) Directorate of Police College.
j) Directorate of Public Relations.
k) Directorate of Regional Police Force.
l) Directorate of Customs and Excise Police
Lessons to Inform Reform including on laws providing for The Public Attorneys and Legal Advisors, and the Criminal Investigation Department:
Reform related to Access to Justice, Judicial Reform in South Sudan, can be, including on laws providing for The Public Attorneys and Legal Advisors, and the Criminal Investigation Department (CID), through the Guidelines on the Role of Prosecutors 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, which contains the following relevant excerpts:
“…In the performance of their duties, prosecutors shall:
( a ) Carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination;
“Qualifications, selection and training
1. Persons selected as prosecutors shall be individuals of integrity and ability, with appropriate training and qualifications.
2. States shall ensure that:
( a ) Selection criteria for prosecutors embody safeguards against appointments based on partiality or prejudice, excluding any discrimination against a person on the grounds of race, colour, sex, language, religion, political or other opinion, national, social or ethnic origin, property, birth, economic or other status, except that it shall not be considered discriminatory to require a candidate for prosecutorial office to be a national of the country concerned;
( b ) Prosecutors have appropriate education and training and should be made aware of the ideals and ethical duties of their office, of the constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognized by national and international law.”
Paragraphs of the Preamble of the UN Guidelines on the Role of Prosecutors relevant to this Article reads:
“Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia , their determination to establish conditions under which justice can be maintained, and proclaim as one of their purposes the achievement of international cooperation in promoting and encouraging respect for human rights and fundamental freedoms without distinction as to race, sex, language or religion,
Whereas the Universal Declaration of Human Rights enshrines the principles of equality before the law, the presumption of innocence and the right to a fair and public hearing by an independent and impartial tribunal,
Whereas frequently there still exists a gap between the vision underlying those principles and the actual situation,
Whereas the organization and administration of justice in every country should be inspired by those
principles, and efforts undertaken to translate them fully into reality,
Whereas prosecutors play a crucial role in the administration of justice, and rules concerning the performance of their important responsibilities should promote their respect for and compliance with the above-mentioned principles, thus contributing to fair and equitable criminal justice and the effective protection of citizens against crime,
Whereas it is essential to ensure that prosecutors possess the professional qualifications required for the accomplishment of their functions, through improved methods of recruitment and legal and professional training, and through the provision of all necessary means for the proper performance of their role in combating criminality, particularly in its new forms and dimensions…”
Relevant here is that on the publication South Sudan: Prosecutors, the International Commission of Jurists citing the UN Guidelines on the Role of Prosecutors, summarized as follows:
“Prosecutors play a crucial role in the administration of justice, which they must fulfil fairly, consistently and expeditiously in accordance with the law. International standards underscore that they must respect and protect human dignity and uphold human rights.
Prosecutors perform an active role in criminal proceedings, including the institution of prosecution and, where authorized by law or consistent with local practice, in the investigation of crime, supervision over the legality of such investigations, supervision of the execution of court decisions and the exercise of other functions as representatives of the public interest. These functions shall be carried out separately from judicial functions.
Every prosecutor must fulfil his or her professional duties in an independent, impartial and objective manner, without discrimination of any kind, and as essential agents of the criminal justice system, maintain the honour and duty of their profession.
Prosecutors may not initiate of continue prosecution if an impartial investigation shows the charge to be unfounded. Further, they must give due attention to the prosecution of crimes committed by public officials, in particular corruption, abuse of power, grave violations of human rights and other crimes recognized by international law. If prosecutors come into possession of evidence that they know or believe on reasonable grounds was obtained through recourse to unlawful methods that constitute a grave violation of the suspect’s human rights, they must refuse to use such evidence against anyone other than those who used such methods or inform the Court accordingly and take all necessary steps to ensure that those responsible are brought to justice.”
On Local Government, Traditional Authority, Customary Laws and Human Rights
While there is the Local Government Act, 2009, despite challenges observed and mentioned regarding its implementation in relation to decentralization, devolution of powers to lower levels of government, concerns regarding respect for human rights continue to be expressed, this also includes the report I cited in Part One of this Article, 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, is that the Commission on Human Rights in South Sudan and the United Nations country team reported that inadequate infrastructure, resources and capacity diminished State abilities to provide civilians with access to justice, and 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.
As can be seen per the Provisions of the Transitional Constitution (which is Supreme), it is provided, and that is in Article 166, that:
(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.
Some of the concerns are as to what extent can Customary Laws be applied, how to codify customary laws, and whether once codified, does a customary law ceases to be customary law and becomes “Statutory Law”? And how does adherence to the Transitional Constitution (the Supreme Law) and human rights apply? Other observations also have it that in the past, when making codification , those regarded as experts, the chiefs and elders, out across their interests, taking unfair advantages of women and youth.
These concerns are expressed sometimes due to misunderstanding, despite the limitations on Traditional Authority and Customary law set in the Transitional Constitution.
This is including the fact that Article 9(3) of the Transitional Constitution provides that 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 of Rights” (The Bill of Rights are specified in Part Two of the Constitution: from Article 9 to 34). And Article 9(4) says “This Bill of Rights shall be upheld by the Supreme Court and other competent courts and monitored by the Human Rights Commission.” Some of my articles relevant to this include: this, this, this.
Meanwhile, it is worth recalling that in Part One of this article, I mentioned that AI reported that South Sudan’s national human rights commission was mandated to monitor the rights and freedoms in the Bill of Rights and investigate complaints of human rights violations, but the President had not appointed a Chairperson, so the commission was not fully established.
Here are provisions of the Transitional Constitution on Establishment of the Human Rights Commission, and its Functions
Article 145:
(1) There shall be established an independent commission to be known as the Human Rights Commission.
(2) The Chairperson, Deputy Chairperson and Members of the Commission shall be appointed by the President with the approval of the National Legislative Assembly by a simple majority of all members present and voting.
(3) The Chairperson, Deputy Chairperson, and members of the Commission shall be persons of proven integrity, competence, non-partisan and impartial.
(4) The Commission shall have power to issue summons or other orders requiring representatives of relevant institutions and other bodies at all levels of government or persons or organizations to appear before it or produce any document or record relevant to any investigation by the Commission.
(5) The Commission may request a government representative or any person or organization to take part in its deliberations if and when necessary.
Article 146:
(1) The functions of the Commission shall be to:
(a) monitor the application and enforcement of the rights and freedoms enshrined in this Constitution;
(b) investigate, on its own initiative, or on a complaint made by any person or group of persons, against any violation of human rights and fundamental freedoms;
(c) visit police jails, prisons and related facilities with a view to assessing and inspecting conditions of the inmates and make recommendations to the relevant authority;
(d) establish a continuing programme of research, education and information to enhance respect for human rights and fundamental freedoms;
(e) recommend to the National Legislative Assembly effective measures to promote human rights and fundamental freedoms;
(f) create and sustain within society awareness of the provisions of this Constitution as the fundamental law of the people of South Sudan;
(g) educate and encourage the public to defend their human rights and fundamental freedoms against all forms of abuse and violation;
(h) formulate, implement and oversee programmes intended to inculcate in the citizens awareness of their civic responsibilities and understanding of their rights and obligations as citizens;
(i) monitor compliance of all levels of government with international and regional human rights treaties and conventions ratified by the Republic of South Sudan;
(j) express opinion or present advice to government organs on any issue related to human rights and fundamental freedoms; and
(k) perform such other function as may be prescribed by law.
(2) The Human Rights Commission shall publish periodical reports on its findings and submit annual reports to the National Legislative Assembly on the state of human rights and fundamental freedoms.
(3) The law shall specify composition, procedures and terms and conditions of service of the members of the Commission
Also, As far as the R-ARCSS is concerned, Article 1.19. provides that during the Transitional Period, the Human Rights Commission and other existing Commissions and Institutions shall be restructured and reconstituted at the national level, as provided for in the R-ARCSS and that the Executive shall supervise and facilitate the reforms and reconstitutions of the Commissions and Institutions “paying particular attention to the mandate and appointments, to ensure their independence and accountability.”
Meanwhile, what more need to be done is legislating or reforming (if there’s one) legislation governing operations of the Human Rights Commission, to harmonize it with the provisions of the Transitional Constitution including the one cited here-above that 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 the Bill of Rights.
Conclusions:
In an article in January titled Links between South Sudan’s General Elections and Transitional Justice I argued that “while the R-ARCSS itself is not perfect and improvements on it are possible, including through the ongoing processes with its non-signatories and without necessarily extending the term of the transitional government or extending it unreasonably, concurrent activities should go on, harmonizing the processes.”
In an article earlier the same month tiled Ideas to enhance review of United States Policy toward South Sudan, I also wrote that “…other major issues that need to be looked into include studying factors leading to group formation, cycle of violence and transitional government, studying genuine grievance versus mere political rhetoric. What are the grievances that have not been able to be addressed whenever there are peace talks? Could the government or some of its members or the opposition be having influence in creating new groups by intentionally leaving certain grievances unaddressed during talks? For what reasons? Simply to have multiple indirect allies for purposes of strengthening their status or power for future elections or other objectives? What about other (external) actors who have influence on South Sudanese groups, and in the process, all got their hands dirty, making them committed to working against realities or to evade justice by, among others, sabotaging possible all-inclusive peace with the hope of having their group win against all others?”
Also, as I said in Part 2 of this article, 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.
Contributions made here are in good faith and may this article, together with its Part One and Two and relevant ones mentioned, help in the reform process, also as the Transitional Constitution provides that that 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 the Bill of Rights.
And as indicated above, the article sought to provide answers and understanding on access to justice, judicial reform matters in South Sudan that are related to topics of Federalism, decentralization of powers to lower levels of government, including judicial powers and their structures, topics that generate mixed views and controversies regarding the crises of the Country, and in relation to human rights.
While many understand what the R-RACSS together with the processes going on are about; and references to my articles on my website rogeryoronmodi.com can be helpful in further understanding, the following paragraphs of R-ARCSS Preamble are also relevant:
“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;
Deeply regretting the scale of untold human suffering that had befallen our country and people as a result of disregarding this commitment;
Determined to compensate our people by recommitting ourselves to peace and constitutionalism and not to repeat mistakes of the past;
Recognizing the prime significance of preserving the sovereignty and territorial integrity of our country;
Cognizant that a federal system of government is a popular demand of the people of the Republic of South Sudan and the need for the RTGoNU to reflect this demand by way of devolution of more powers and resources to lower levels of government.”
Details in this article are clear on the Decentralized System of Government, Executive and Legislative competencies of States, as well as challenges on the same and avenues for reform, and decentralization (devolution) of more powers and resources.
About the removal of State Judiciary that happened as narrated here-above, some of the concerns expressed, some recently, are that having State Judiciary could lead to intentional unjust rulings against people from other States, that a State Judiciary shall not be able to apply law impartially and without political interference, fear or favour. Such issues can be addressed through States Constitution and National Constitution, providing for, among others, guarantees on Independence of the Judiciary in the State, Composition, Operations, Security of Tenure of Judges, and so on. Moreover, there are always higher Courts for appeals, all the way up-to the Supreme Court at the National level. Other related reforms are about Criminal Investigations Department CID, and Prosecutors and their role in the administration of justice, as narrated above.
In conclusion, it is also true that “whether a system is denominated ‘federalism’ or ‘decentralization’ or ‘devolution’, it is the ‘content’ of the system (in relation to adequate devolution of resources, decision-making power and guarantees against undue interference in devolved units by the center) as well as commitment to the implementation of the constitutional text that matters.”
In addition to the available media laws despite challenges in their implementation and concerns about some provisions, the Transitional Constitution, in Article 24 on Freedom of Expression and Media, provides that:
(1) Every citizen shall have the right to the freedom of expression, reception and dissemination of information, publication, and access to the press without
prejudice to public order, safety or morals as prescribed by law.
(2) All levels of government shall guarantee the freedom of the press and other media as shall be regulated by law in a democratic society.
(3) All media shall abide by professional ethics.
Some quotes relevant here that I would like to cite are:
“The media, in South Sudan, like it is globally can offer a platform for various voices that seek to promote tolerance, dialogue, cohesion and compromise. This will ensure an all-inclusive national healing and dialogue and also shape the development agenda of the country,” said Amb Gen. Augostino Njoroge, the deputy chair of the ARCSS Joint Monitoring and Evaluation Commission in 2017,while calling for the protection of fundamental principles of press freedom and an end of the crackdown on journalists in South Sudan.
“A silenced journalist mutes the voices of the people and curbs their right to know. The result is a society where fearful citizens resort to self-censorship and where it is not possible to make informed decisions,” the UN Plan of Action on the Safety of Journalists and the Issue of Impunity.
“Everyone has a responsibility to learn and use critical literacy skills online and offline. Critical literacy is about questioning information, authority and power, but it is simply not sufficient in the digital age. Amplified by digital dissemination, dis- and misinformation undermine social inclusion, democratic participation and cooperation. Fake news are symptomatic of information disorder, a challenge that we can only address together – cooperatively.
After all, what is the point of having excellent, constructive, fact-based, accurate and ethical journalism if it can be bypassed by dis- and misinformation on social media – often unintentionally amplified by unaware media consumers,” writes TheNiles.org, providing “top-10 tips to fight fake news and promote critical literacy online and offline.”
In all these efforts for reform, including the process of the “Permanent” Constitution-making, the fact that ability of the Press to timely and independently report, verify facts and provide accurate, balanced reporting seriously compromised, while leaders, aspiring leaders and other interests groups focusing on creating and using media to advertise themselves at the expense of truth and verifiable facts, a lot of needs to be done about Press Freedom, to get to solutions.
Additional Notes:
*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.”
*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.
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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