Archive for the ‘law’ Category


By Wol Deng Akech, Lucknow, India

Salva Kiir

President Kiir paying his last respect during the public viewing of the body of the late Gen. James Ajonga Mawut, chief of general staff of the SPLA

Thursday, 04 October 2018 (PW) — On Tuesday, 2nd 2018, H.E President Salva Kiir issued a presidential decree which changed the name of the nation’s national army from Sudan people’s Liberation Army to South Sudan People Defence Forces. It is not known what triggered for this prompt change. The change of the name seems to have come into the power of President as Commander-in-Chief of the SPLA. Many critics have been commenting on the name SPLA and appealed for the change of the name of the army to meet what they think may be the conformity of the army to its national duty. As it appears from the decree itself, the decree came as a result of the SPLA 6th Command Council Conference held on 3rd August 2017.

With such circumstantial developments, one has to look at it and find out as to where does such power fall under or originated from within the Constitutional scheme(i.e powers of the president and Commander-in-Chief under Articles 10, 151-154 and the Schedules provided in the constitution) and the statutory framework provisions under the SPLA Act(Amended), 2009.   In both frameworks, nowhere it is mentioned specifically whether the naming of the armed forces shall be exclusive power of the national executive/the president.

It is therefore pertinent to be said that such powers are incidental in the exercise of the constitutional powers expressly and impliedly provided under the constitution. Thus, the question is whose power is it? The answer to this question is the purpose of this article. Another question which poses itself as a result of the name effected is whether the name changing guarantees a “reform or transformation” of the army or promising? (more…)


By Wol Deng Akech, Lucknow, India

1. Introduction

Tuesday, September 11, 2018 (PW) — At the outset, one should make it clear in this introductory part that this article attempts to cover the legal profession majorly with regard to the Bar Association or Private practicing lawyers other than Public Attorneys and Legal Advisors as provided under Article 135 of the Constitution and the Organization of the Ministry of Justice Act, 2008.

However, minor focus will be made to include judiciary since it is the grantor and protector of the Bill of Rights enumerated in Part II of the Transitional Constitution of the Republic of South Sudan, 2011. It will therefore delve only on the private legal profession as enshrined under Article 136 of the TCSS, 2011 and regulated by the Advocate Act, 2013.

It is in this way that the term lawyer should be understood to carries the same definition as provided under section 5 of the Advocate Act, 2013. It is also one’s wish to underline at this point that this attempt should not in any way be deciphered to means denial of the role and contribution made and achieved by this noble profession of our country in other areas that are not specifically mentioned in this work.

Generally, the article discusses the agreement in brief on main important parts and the role that the legal profession may play. As to the title suggests, the Agreement was negotiated by groups by ability and power of guns and threat they post with other civil/social forces excluded. Sometimes, such social forces are called upon to pen their signatures on the readymade documents. (more…)


By Tong Kot Kuocnin, Nairobi, Kenya

Salva-kiir-constitution

 

Friday, August 03, 2018 (PW) — As this author once wrote about the transitional periods in south Sudanese politics, a series that is still in its third publication stage, there’s yet another transitional period which emerged as the TNLA amended the Transitional Constitution of the Republic on a Bill introduced to the August House by the Hon. Minister of Justice and Constitutional Affairs of the TGoNU to extend lifespan and mandate of the Office of the President, the Office of the FVP, the duration and term of the TNLA, States Governors and States Legislative Assemblies from 12th August 2018 to 12th August 2021.

 The Bill sought to amend Articles 66(2), 100(2), 103(A), 164(5) and 165(1) of the Transitional Constitution of the Republic of South Sudan, 2011 (as amended) 2018 to provide for the extension of the term of office of the above organs of the state.

The Bill is cited as the “Transitional Constitution, 2011 (as Amended) Bill, 2018, which of course, shall come into force upon the assent of the president of the republic.

The authority upon which the government relied on is initiated in accordance with the powers vested in the president or the FVP under article 106 A (4)(c)(i) of the Transitional Constitution, 2011 (as amended) as well as powers vested in the National Legislature under Article 55(3)(a) read together with article 199. (more…)


By Eng. Deng Diar Diing, Mombasa, Kenya

Bullen Panchol Awal Alier

Monday, July 2, 2018 (PW) — “Justice suffers when men refuse to stand firm for what is right. If we don’t fight lawlessness, it prevails. If we don’t establish the truth in our nations, truth becomes foreign in the country. God says there is no man when there is nobody who stands for the truth.” Sunday Adelaja.

When I heard that Justice Bullen Panchol Awal Alier finally threw in his towel as a judge of Supreme Court of South Sudan on Friday 29th of June 2018, I then knew the last nail on the coffin of meritocracy, objectivity and the spirit of rule of law has been driven home by the beneficiaries of anarchy in beloved Country.

Bullen Panchol has been among the few judges who have refused the use of Supreme Court as a tool of settling political scores, something that has kept the 64 tribes together regardless of daily mayhem our country witnesses. This is something that has stood between him and being the President of Supreme Court(Chief Justice), a worthwhile course indeed!!!

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By Tong Kot Kuocnin, Nairobi, Kenya

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Monday, June 25, 2018 (PW) — As the conflict in South Sudan continues unabated, the international community in collaboration with regional blocs led by the IGAD, took central stage in bringing together the warring parties to a negotiated political settlement of the conflict.

However, given the inability of the parties to the conflict to strike a sustainable and implementable peace to alleviate and lessen the suffering of the vulnerable people, mostly children, women and elderly people, the international community has embark on the use of threats of arms embargo, individual and economic sanctions as well as freezing the accounts and assets of the parties involved in the conflict.

The US has been leading this crusade of sanctioning individuals from both parties to the conflict who have been seen as obstacles to peace as a punishment mechanism to deter frighten them as well as a hammer to forcefully persuade those peace destroyers.

The central theme of this article is to analyze the legality, implications and effects of sanctions under the UN Charter taking South Sudan as a case study.      (more…)


By Tong Kot Kuocnin, Nairobi, Kenya

Chief Justice Chan ReecMadut

Monday, May 21, 2018 (PW) —The increasing reliance by South Sudan polity on the court to decide major political disputes and issues of public interest has brought the independence of the Judiciary into sharp focus and criticism.

Informed opinions on the Judiciary in South Sudan varies between those who believe that the “Judiciary is dead” or that it is “on trial” and the more compassionate view that it is a “beast of burden” or a “sacrificial lamb” waiting to be roasted by the executive.

These remarks are derive from observations of the alleged or actual behaviors of the judges and their independence, impartiality and integrity. While the above metaphors may be subject to various interpretations, they do raise consideration, curiosity and interest as to why our Judiciary should attract such comments and perhaps to what extent the concepts are justified.

This writer has incessantly, on numerous instances, written extensively on the independence and impartiality of the judiciary, its judicialization, institutional reforms needed and whether the judiciary has been politicized or is it in crisis. (more…)


By Dut Kuot Akok, Juba, South Sudan

Why mocking the president, they shud be arrested

July 29, 2017 (SSB) — In South Sudan, whenever they see such a question, the first thing that comes to theirs mind and makes conclusion of you without going deeply to read first what the question is all about is to either label you as Rebel, traitor or economically traumatized indigent who is out of his mind owing to current economic crisis the country is going through.

Such hysterical perceptions and egocentric attitudes are what brought us to this irretrievable man made debacle since we fear realities and bits of advice that could have correct our mistakes but we intentionally reject them because they hurt and point out our failures and ignorance.

Thus, they wrongly perceived as such, however, we should not bury our heads in the sand that we will be called Rebel (s) or traitor (s) but we should continue pointing out the truth and finger point the wrongdoers concurrently. Less importantly, they should be allowed to vomit their venom to the best of theirs appetite by calling whatever names they like but the truth remains clear as a bell.

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By Wol Deng Akech, Juba, South Sudan

SPLM reunification4

SPLM Reunification: President Museveni meets President Kiir and G-10 leaders in Kampala

July 26, 2017 (SSB) —- As issues of public debate cannot be approach without aligning them to legal instruments or public policy frameworks, I decided to make an attempt in answering the question above by examining National, Regional and International frameworks and lastly personal opinion approach by discussing the chances of viability of National Dialogue alongside the State of emergency (SoE).

On July 17, 2017, President Salva Kiir issued another shocking evening presidential decree like the Justices and Judges Dismissal decree. This time, President of the Republic issued a decree in accordance with Article 189(1) of the Transitional Constitution of the Republic of South Sudan 2011 (amended 2015) three (3)-months state of emergency in Gogrial, some part of Tonj, Wau and the Aweil East States.

This decree came at the background of intensifying inter-communal fights among the three communities of Gogrial State namely; Apuk Vs Aguok, Apuk Vs. Kuac Ayok and Apuk Vs. (Abiem Mayer in Tonj State). These communal fights left a number of dozens of people killed and no one detained for the agitation of such violence.

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By Wol Deng Akech, Lucknow, India

IGAD plus President Kiir, 25 July 2017

IGAD plus President Kiir, 25 July 2017

July 25, 2017 (SSB) — For the last two months, the question regarding the Judiciary independence became a matter of a public debate and interest due to the circumstance of Judiciary strikes demanding the improvement of conditions of work within the Judiciary and relieve of Chief Justice Hon. Justice Chan Reec Madut by the President or to tender his resignation to the President. The same matter reached its high climax when the 13 Justices and Judges were dismissed by President Salva Kiir through an evening Presidential decree (Decree No: 100/2017) which is out cried by the nation and the region as well.

As a member of this learned fraternity, one feels it as necessary to make some attempts in pursuit of a better judicial system in our country.  The purpose of this piece of writing is to test the independence of Judiciary in the Republic of South Sudan in regards to selection, recommendation, appointment dismissal of Justices and Judges.  It will also discuss the basis and legality of the dismissal order, the lack of which will mean powers of the executive without limits is tyrannical in practice or judiciary/Justice with the decision without force/power or independence is powerless.

Thus, we must have an executive which runs its daily activities within the ambit of Constitution and the law and Judiciary which has to administer, presides cases, makes its decisions with force for the establishment of functionary justice delivery institution.  The legal nature of the decree will be discussed at a later stage in this paper and eventually leads to a conclusion with some recommendations, but the first one would like to examine the conditions in which a judiciary is referred, to be independent.

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By Wol Deng Atak, Nairobi, Kenya

Molana Wol Deng Atak

Molana Wol Deng Atak

July 15, 2017 (SSB) —- I applaud the courage of Justices and Judges threatened by Kiir’s Administration with punitive measures for calling for justice. Their collective resolve to stay the strike despite the threats against them is remarkable; and this sends a crystal clear message to Kiir’s Administration in Juba that it is not enough to suppress genuine demand by decrees.

The calls for justice, improved working conditions, and resignation of Chief Justice need every one of us to support. We ought to give it up to the Justices and Judges in support of their clarion stance. Leaving it to them to battle it alone would not only defeat the common good of every citizen, but would also make it impossible to bring desired solution for common good of every citizen in the near future.

The reality on working conditions at the Judiciary dawns on me when I visited high court to only learn that the court’s proceedings had been adjourned because of lack of papers for Judges to record the details of the court proceedings. There was ‘no money to buy the papers’.

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Justice under Fire: The Dismissal of 13 Justices and Judges from the Judiciary of South Sudan

By Tong Kot Kuocnin, Nairobi, Kenya

Press Statement from judges

 

July 14, 2017 (SSB) — One is not surprised at all to hear and see the dismissal of the honorable justices and judges from the judiciary of South Sudan by the president. As the justices and judges went on an open strike two months ago protesting against the leadership of the honorable Chief Justice and requesting the head of state to remove him from office for his failure to manage the judiciary effectively, and efficiently, the men and women of honor faced the wrath of the misdeeds of the president and his in-law, justice Chan Reec Madut.

It has not unknown to al South Sudanese what the intentions of both men is regarding this great institution in our. It is not a new thing either to be surprised that innocent justices and judges can be dismissed from the Judiciary especially those who are opposed to the chief justice’s corrupt and dictatorial tendencies. The first victim, a man of honor was justice Ruben Madol Arol, the former deputy chief justice who unlawfully removed from office simply because he asked the chief justice to excused himself from the bench since the litigants were no longer enjoying any trust and confidence in him in presiding over the case brought before the constitutional panel in the Supreme Court challenging the order of the president which created the 28 states at the time.

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By Simon Manut Chan, Juba, South Sudan

opinion matters

June 19, 2017 (SSB) — On 20th April 2017, the legal fraternity led by the Justices and Judges Committee of the Judiciary of South Sudan held a dramatic press conference where they issued a press release outlining their grievances to the Government and the public at large.

  1. One of their chief demand topping the list was a called for the immediate resignation of the Chief Justice Chan Reech Madut which will be the subject of this piece of article.
  2. The Justices and Judges Committee joins several other individuals and institutions that have been calling for the Chief Justice to step down as part of the reforms of the judiciary over the years.
  3. Finally Justice Khalid Mohammed Abdalla, Chairperson of the Justices and Judges Committee says “the rationale behind our demands is in order to deliver good services to our people, address the backlog of cases and to strengthen the independence of the Judiciary of the Republic of South Sudan”.
  4. With the above conclusion, Justices and Judges Committee and all the staff of the Judiciary all want to work under a new judiciary that would be well regarded by society and that all South Sudanese should be accountable and equal before the law.

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By Tong Kot Kuocnin, Nairobi, Kenya

Ruweng Governor

The newly appointed Governor of Ruweng state Hon. Them Machar Kuol

June 19, 2017 (SSB) — In most of my preceding articles on the state of the Judiciary of South Sudan, on how best this great institution can function effectively, efficiently and independently from the other arms of the government, I have had a number of cocktail ideas inadvertently swarming in my mind on how best I can contribute as a law abiding citizen of this country on the quest for an equal, just and prosperous society guided by the principles of natural justice, equality and liberty.

I have had in a number of times shared my thoughts and ideas on how the judiciary of South Sudan should indeed be made to meet its standard and its rightful place as an institution charged with sole responsibility to deliver and administer justice to the populace. I have had all the time sleepless nights and days as I felt like not contributing in the quest for justice and judicial reforms much needed by our great institution as well as the people of South Sudan.

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By Tong Kot Kuocnin, Nairobi, Kenya

Governor Rin Tueny Mabor

Governor Rin Tueny Mabor of Eastern Lakes state

June 7, 2017 (SSB) — First and foremost, as a legitimate citizen and a son of Eastern Lakes State, allow me to register and adds my voice to the unfolding political wrangling which has been dominating the social media for the past couple of days of the allegations that the Hon. Governor of Eastern Lakes State has been quoted on Radio Tamazuj to have said that he has the power to dissolve the Transitional Legislative Assembly of Eastern Lakes State, a statement which prompted the two or three honorable MPs to go viral on both the social media and radio interviews.

The said allegation has been voiced out in the social media and Miraya FM radio interviews by the said honourable MPs of Eastern Lakes State Transitional legislative Assembly with regards to the status of the cabinet of Eastern Lakes State. This is a serious matter which must not be ignored. However, before I indulgent you into the burning issues for discussion in this article, I wish to briefly explain the legal and English terms thrown around and alleged to have been uttered by the honorable MPs as they appeared in the heading of this article.

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By Molana Arop Malook Lual, Juba, South Sudan

RSS coat of ARMS

South Sudan’s coat of arms, in which the eagle symbolizes vision, strength, resilience and majesty, and the shield and spear the people’s resolve to protect the sovereignty of their republic and work hard to feed it.

May 5, 2017 (SSB) — The Declaration adopted on 24 September 2012 by the United Nations General Assembly in which South Sudan is a member at the High-level Meeting on the Rule of Law at the National and International Levels reaffirmed that “human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations”. Indeed, government responsiveness to the interests and needs of the greatest number of citizens is strictly associated with the capacity of democratic institutions and processes to bolster the dimensions of rights, equality and accountability.

If considered not solely an instrument of the government but as a rule to which the entire society, including the government, is bound, the rule of law is fundamental in advancing democracy. Strengthening the rule of law has to be approached not only by focusing on the application of norms and procedures. One must also emphasize its fundamental role in protecting rights and advancing inclusiveness, in this way framing the protection of rights within the broader discourse on human development.

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