Why South Sudan Deputy Chief Justice, Hon. John Gatwech, is Legally Wrong about the East African Court of Justice (EACJ)

By Hon. Juol Nhomngek Daniel, Juba, South Sudan

Wednesday, 20 December 2023 (PW) — On December 16, 2023, the Sudan Post, which is an independent and digital-only newspaper published a story about South Sudan Deputy Chief Justice, Hon. John Gatwech questioning the authority of East African Court of Justice (EACJ) to entertain cases from South Sudan. The Deputy Chief Justice was quoted while he was speaking during the consultation meeting that was held by Judicial Reform Committee at Radisson Blu Hotel in Juba on Thursday, December 14, 2023. The issues that he raised were—

 First, that the EACJ was interfering with the administration of justice in South Sudan. He used the examples of the cases that involved the dismissal of 14 judges by His Excellency President Salva Kiir and the recent case that was filed by opposition MP Juol Nhomngek (me). He bitterly complained of the EACJ entertaining South Sudanese cases without returning them to the Country to first exhaust local remedies or internal avenues.  

Second and connected to the first point, that the EACJ is side-lining national courts of different countries in the “East African Union” as he put it. Because of this, he implicitly accused the EACJ of overstepping its bounds. He proposed that the EACJ should be reformed in such a way that it should also have very senior judges. 

Third, that there is an issue of legitimacy of EACJ handling and deciding cases from South Sudan on the ground that it lacks capacity since it lacks necessary experience and seniority to adequately review decisions made by South Sudan’s own courts. This is because some of the judges that they recommended to be appointed were junior judges as they were picked from the High Court of South Sudan. He concluded on this point that they cannot be allowed to reverse their decisions in the supreme court and after that they would see themselves as seniors and bosses.

Fourth and final, Hon. Deputy Chief Justice faulted and accused the EACJ of not communicating with the Ministry of Justice and Constitutional Affairs of the Republic of South Sudan. He alleged that the EACJ has been failing to notify the Ministry of Justice before making final decisions in cases involving the country that it has so far decided.

After reading through his statement on the Sudans Post Website and identifying the above four points, I decided to take the opportunity to respond to Hon. Deputy Chief Justice of the Republic of South Sudan. The response is basically to explain that with due respect, the Deputy Head of Judiciary of the Republic of South Sudan is legally incorrect in his statement because of the following reasons—.

To begin with, I would like to say that I expected Hon. Deputy Chief Justice to argue authoritatively in order to convince us, the citizens as to why we should not be taking cases to the EACJ. I further expected him to first acknowledge the weaknesses within our judicial system that push litigants to go to the EACJ with cases.  After that he should then have outlined concrete judicial policy, which is in line with the provisions of the Revitalized Agreement concerning judicial reform.

As Hon. Deputy Chief Justice may be knowing, the citizens of any country take their cases to courts only if they are confident in judicial system of their Country. But where they do not have any confidence in judicial system, they will always take the law into their own hands or engage each other to solve their problems outside the court system. It is important that Hon. Deputy Chief Justice should know that the ability of courts to fulfil their mission and perform their functions is based on the public’s trust and confidence in the judiciary not politics nor threat or blame games.

Hon. Deputy Chief Justice should also acknowledge that the judiciary has a greater role to play in order to earn the trust and confidence of the public by faithfully performing its duties, adhering to ethical standards and effectively carrying out internal oversight, review and governance responsibilities. The governance responsibilities include accountability for a failure to observe scrupulous adherence to ethical standards. The surest way of judiciary to lose trust and confidence is failure to live up to established ethical standards and failure to hold judges and judicial personnel accountable for misconduct.  

The standards referred to above are rationale behind which the Bangalore Principles which are intended to establish standards to maintain ethical conduct of judges in all Countries and in South Sudan in particular. They are designed to provide guidance to judges and to offer the judiciary a framework for regulating judicial conduct. The Bangalore Principles establish six core values such as independence, impartiality, integrity, propriety, equality and finally competence and diligence, which all judicial officers must strictly observe in their lives.

Those who have been going to our local courts can agree with me that majority of the South Sudanese judges do not observe and follow the core values as stated in the Bangalore Principles. Hence, it is not uncommon to find the litigants arguing with the judges to the extent of judges openly taking side, which is unethical on the side of the judge. Hon. Deputy Chief Justice need to know that what pushes the people of South Sudan to refer their cases to the EACJ is the lack of confidence in the judicial system as majority of the judges are not independent, impartial, honest, do not handle the case with propriety, do not treat litigants equally and are not competent and diligent.

Unfortunately, instead of acknowledging these glaring weaknesses in the judiciary, Hon. Deputy Chief Justice of the Republic of South Sudan failed to acknowledge the failure of our judicial system in this Country. This shows that the administration of judiciary does not see any problems that originate internally and this shows that they are not ready for reforms in the judicial sector. Hon. Deputy Chief Justice was wrong to blame the EACJ which is innocent.

Besides, what I have discovered is that Hon. Deputy Chief Justice did not take time to read the provisions of the Treaty in general. Had he done so, he would have discovered that the Treaty gives the Court Jurisdiction to admit cases and the Court should not be blamed for doing its duty.  However, the Treaty allows the Partner States and their members to make official complaints in written form to seek for the advisory opinion from the Court where they believe that there are legal issues that affect them.

Article 36 (1) of the Treaty for the Establishment of the East African Community (As amended on 14^th December, 2006 and 20th August, 2007) makes it possible for the EACJ to accept the request for the advisory opinion and deliver the same regarding any question of law arising from the Treaty which affects the East African Community and the Partner State (s). A request for an advisory opinion must contain an exact statement of the question upon which an opinion is required and shall be accompanied by all relevant documents likely to be of assistance to the Court (Article 36 (2) of the Treaty).

However, Hon, Deputy Chief Justice did not consider Article 36 of the Treaty and instead raised the concerns directly to the media yet all points are points of law. For instance, lack of legitimacy of the EACJ to handle cases from South Sudan due to improper composition, lack of capacity and necessary experiences and the issue of seniority of its Judges, the question on the exhaustion of local remedies and failure to notify the Ministry of justice and proceed with the hearing of the cases without hearing notice are all questions of law as they touch articles 8 (4), (5), 10, 11, 12 read together with Articles 23, 24, 25(1), 26, 27, 30  and 33 of the Treaty.

Though Hon. Chief Justice would have sought for the advisory opinion from the EACJ under Article 36 of the Treaty, the result would have been negative because Article 8 (4) and (5) of the Treaty read together with the Instruments of Ratification Instruments would not allow court to make findings in favour of South Sudan. By issuing ratification of the Treaty in 2016 under Article 8 (4) and (5) of the Treaty without reservation, South Sudan unconditionally accepted that the Community organs, institutions and laws shall take precedence over its similar national organs, institutions and laws on matters pertaining to the implementation of the Treaty.

When it comes to the judges appointed to serve in the EACJ, they become senior by virtue of their positions in accordance with Article 8 (4) and (5) and 24 of the Treaty.  Using the criteria under Article 24 (1), Hon. Deputy Chief Justice recommended those judges to be appointed by the Submit under Article 10, 11 and 12 of the Treaty. While recommending them, he must have observed and used the criteria under Article 24 (1) of the Treaty and because of that those judges from South Sudan were appointed to serve in the EACJ.

The recommendations that were given to them by the judiciary of South Sudan must have contained the phrase—with proven integrity, impartiality and independence and they have fulfilled the conditions required in South Sudan for them to hold high judicial office, or they are jurist of recognised competence in South Sudan. I therefore failed to understand why Hon. Deputy Chief Justice who was one of the senior judges and second to the head of the Administration of judiciary and who also recommended those judges to the EACJ is still complaining and referring to them as juniors.

When the Deputy Chief Justice referred Judges in the EACJ as juniors because those recommended to go there are from High Court, it was because he did not pay attention to the phrase —High Judicial Office…which he just literally interpreted as the High Court. However, the phrase …High Judicial Office… as used in Article 24 (1) of the Treaty does not mean the judge of the High Court only but it means the Judge of High Court and Justices of Court of Appeal and Supreme Court.

The above definition was taken from the Law Insider, which defines the phrase  high judicial office to mean the office of the Chief Justice, a Justice of the Court of Appeal, a Judge of the Appellate Division, a Judge of the High Court, a Judicial Commissioner, a Senior Judge or an International Judge and a person holding high judicial office (read more in Law Insider and visit at: https://www.lawinsider.com).

Hon. Deputy Chief Justice should have read Article 24 (1) of the Treaty and should have recommended and promoted Justices of the Court of Appeal and Supreme Court because the EACJ is above the Supreme Court of South Sudan and Supreme Courts of other Partner States according to Article 8 (4) and (5) of the Treaty. By implication, the Judiciary of South Sudan and its judges are subordinates to the EACJ and its Judges. It is the same the reason South Sudan Courts’ decisions are reviewed by the EACJ.

Having made it clear to Hon. Deputy Chief Justice, I would like to respond to his other proposal for the amendment of the Treaty in order to accommodate most senior judges. Based on the interpretation of High Judicial Office under Article 24 (1) above, I can advise Hon. Deputy Chief that there is no need for amendment of the Treaty as South Sudan has an option to withdraw the junior judges it recommended by mistake, under Article 26 of the Treaty and instead recommend Justices from Court of Appeal and above. But it can also wait for the expiry of the tenure of the current judges and remove them in accordance with Article 25 of the Treaty and then after that recommend the most senior judges in accordance with Article 24 (1) of the Treaty.   

Hon. Deputy Chief Justice also complained against the EACJ of receiving cases from South Sudan without returning litigants to the country to first exhaust local remedies before admitting them. To him, this has led to the EACJ interfering with or side-lining the Courts of South Sudan and courts of other Partner States. In response to this complaint, I would like to remind Hon. Deputy Chief Justice of the jurisdiction of the EACJ under Article 27 (1) of the Treaty. Article 27 (1) provides for the exclusive jurisdiction of the EACJ in matters related to the interpretation and application of the Treaty.

Based on its jurisdiction under Article 27 (1) and grounds of the application stated under Article 30 (1) of the Treaty, a person whether legal (such as companies or entities with legal personality) or a natural person who is resident in a Partner State may refer the matter to the EACJ to determine the legality of the Act, regulation, directive, decision or action of the Partner State. Hon. Deputy Chief Justice of the Republic of South Sudan therefore did not take into consideration that the jurisdiction of the EACJ is only concerned with the interpretation and application of the Treaty that do not require an individual to first exhaust local remedies.

The only requirement a person who wants to refer the matter to the EACJ is two months-period from the day the grounds mentioned in Article 30 (1) complained of arise, or in the absence thereof, of the day in which it came to the knowledge of the complainant (Article 30 (2) of the Treaty). Grounds referred to under Article 30 (1) such as the Act, regulation, directive, decision or action of the Partner State are always challenged concerning to their legality in respect to the values, principles and operational principles of the East African Community.

By ratifying the Treaty without the reservation, South Sudan unconditionally accepted to adhere to universally acceptable principles of the EAC of good governance, democracy, the rule of law, observance of human rights and social justice as provided for under Article 3 (3) (b) and (c) of the Treaty. The same principles and values are also referred to under Articles 6 (d), 7 (2) and 8 (2) of the Treaty in details.  Hence, South Sudan is compelled to observe and apply the principles of good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and people’s rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.

Hon. Deputy Chief Justice faulted the court on overturning the order of the President sacking14 judges but he should know that the EACJ found that the order to have been issued in breach of values and principles of the EAC as provided for under Articles 3 (3) (b) and (c), 6 (d), 7 (2) and 8 (2) of the Treaty. The EACJ found the action and decision of the President to be irrational and inconsistent with the provisions of the Treaty because he sacked 14 judges without observing the existing legal procedures, which was the violation of the rule of law and fundamental human rights standards. It is on the same ground Hon. Juol Nhomngek Daniel (me) has filed a reference to the EACJ because of his illegal suspension.  

The allegation that the EACJ side-lines or it interferes with the jurisdiction of local courts or the EACJ oversteps its bounds is unfounded. This is because the jurisdiction of the EACJ is a specialized one. It deals with interpretation and application of the Treaty. The only thing that the Judiciary of South Sudan can do is to request for the establishment of the Sub-registry of the EACJ in Juba, South Sudan. This will enable the references to be filed in Juba and the EACJ will sometime hold some of its sessions in Juba in South Sudan as well.  

On the issue connected to the lack of communication with South Sudan’s Ministry of Justice, this is a matter of fact and law that the EACJ has a duty to prove after raising credible allegations on its failure to notify the ministry before hearing and making final decisions in cases involving the country. However, as my experience has shown, it is the Ministry of Justice that refused to serve their responses as it happened in my case. I was not served until I told my lawyer to make official request for the response of the Respondent from the EACJ.

I believed that If that happened, it means that the EACJ must have been notifying the Ministry of Justice of the Republic of South Sudan in all cases that it already handled but the Ministry might have failed to send representative during hearing and to receive the judgement of the Court. Moreover, the decision of Court can be delivered in the absence of the Parties as references are always supported by affidavit that can be relied on as evidence by the Judges at EACJ without the presence of the Parties, if their presence cannot be possible (see; Rules 52(5) 54(2) and 95(1)) of the East African Court of Justice Rules of Procedure 2019 on Affidavit).

Finally, what the public needs to know is that all the cases that are filed, are always filed in the EACJ after the Minister is served with the notice of intention to sue but the litigants always receive discouraging response to that pushes them to the Regional Court (EACJ). For instance, before I filed the reference to the EACJ, I wrote to the Minister of Justice requesting for the permission to sue the Speaker as the law requires. However, I took two months before I got response and the response was that I was denied the right to sue so I decided to lodge the reference in East African Court of Justice.

The author, Hon. Juol Nhomngek Daniel, is a member of the National Parliament (TNLA) representing Chueibet County in Lakes State on the ticket of the SPLM-IO. He is lawyer specializing in the Constitution law and human rights. He can be reached through: nhomngekjuol@gmail.com.

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