Archive for the ‘Tong Kot Kuocnin’ Category


By Tong Kot Kuocnin & Yar Telar Deng, Nairobi, Kenya

Monday, August 19, 2019 (PW) — The Third Transitional Period From 9th July 2015 to 9th July 2018. As discussed in the first and second preceding parts of this article, this is the third and final part which will concentrate on the third transitional period in South Sudanese politics from 9th July 2015 to 9th July 2018.

This part examines the last phase of the transitional period by shading more light on the political developments which ensued in 2016, after the signing of the compromised peace agreement. A dog fight erupted around the Presidential Palace – J1, shortly after the formation of the Transitional Government of National Unity (TGoNU).

Equally, the government extended the term of office of the president and other officials in July 2017 ushering in the third transitional period ranging from 9th July 2018 to 12th July 2021. The bill which amended the transitional constitution was introduced by Hon. Dengtiel Ayuen, the chair of the legislative committee in the parliament.

The amendment of the constitution allows H.E President Salva Kiir to remain in power until 2021 and extends the mandate of the current South Sudan transitional government, parliament and governors of all the 32 states for another three years.

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The Office of the President under the Transitional Constitution, 2011 (Amended 2015): Is it a Cultivation of a Hegemonic Presidency in South Sudan?

By Tong Kot Kuocnin, Juba, South Sudan

President Kiir's Bahr el Ghazal tour, Feb 2019
President Kiir’s Bahr el Ghazal tour, Feb 2019

I. Introduction

Wednesday, July 17, 2019 (PW) —- A country’s constitution plays the major role in ensuring constitutionalism since it creates and allocates powers to the institutions of government and also seeks to control and/or restrain the exercise of such powers. It is noteworthy that state institutions comprise the Executive; the Judiciary and the Legislature.

This article analyses the role of the constitution in checking the powers of the president (who heads the Executive) in order to achieve constitutionalism in a democratic state. It singles out the office of the president (presidency) as it yields more powers compared to the other institutions and hence has crucial impact on constitutionalism, good governance and the rule of law. The article discusses and focuses on the office of the president under the TCSS, 2011 (Amended 2015) to highlight how the unchecked presidential powers which continue to stifle constitutionalism in South Sudan. 

This article first gives the general introduction and background before analyzing the office of the president as enshrined under the Interim Constitution of Southern Sudan, 2005 and the TCSS, 2011 (Amended 2015). It will also discuss to ascertain whether or not the office of the president (presidency) is a hegemonic presidency. However, before it concludes, the article will discuss and examines the cultivation of a hegemonic office of the president (presidency) under the constitution of South Sudan, 2011 in correlation to the Interim Constitution of Southern Sudan, 2005.

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The Right to Freedom of Expression and the Law of Defamation in South Sudan: A Juristic Analysis

By Tong Kot Kuocnin, Juba, South Sudan

Kerbino Wol Agok and Peter Biar Ajak

I. Introduction

Tuesday, July 02, 2019 (PW) —- Freedom of expression is one of the fundamental rights, which are universally recognized and protected. Indeed, the Constitutions of most countries of the world, including South Sudan, have expressly provided for the protection of this right because of its importance and relevance to the enhancement of personal liberty and democracy. The right to freedom of expression is also protected under the Universal Declaration of Human Rights and the various regional Instruments and Conventions on human rights, including the African Charter on Human and Peoples Rights. Obligations and duties are imposed on the State or its agencies and on individuals to protect and promote human rights and fundamental freedoms.

However, the right to freedom of expression, like most other rights, is not absolute. There are recognized restrictions and exceptions to this right; one of which is to be found in the law of defamation. Thus, the enjoyment of the right to freedom of expression must take into consideration the right of other citizens to protect their reputation. The courts therefore have an important role to play in balancing the conflicting interests between freedom of expression and protection of reputation. This article aims at examining the legal and constitutional guarantee of the right to freedom of expression in South Sudan and the extent to which the law of defamation has restricted the enjoyment of this right. The effectiveness of the South Sudanese courts in striking an acceptable balance between the two conflicting rights and interests in this regard is also examined.

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By Tong Kot Kuocnin, Juba, South Sudan

I. Introduction

Friday, June 28, 2019 (PW) —- Defamation is the publication of a defamatory statement concerning a person without lawful justification. Defamation seeks to protect a person’s reputation but in the process seeks to have a balance between protecting reputation and upholding the freedom of speech.

A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule or which tends to lower him in the esteem of right thinking members of society. As per Lord Atkin in Sim v. Stretch, defamation is usually in words but pictures, gestures and other acts can also be defamatory. Insults directed to the claimant himself do not in themselves constitute defamation since the tort is not primarily concerned with the claimant’s wounded feelings.

Instead the gist is that the defendant either lowers the claimant in the estimation of reasonable, right thinking members of society or causes such people to shun or to avoid the claimant. Reputation extends to both character of the individual as well as his trade. A statement which only amounts to an insult without causing injury to reputation would not be actionable.

Defamatory statements are of two kinds; Libel, which is in permanent form which for example connoted in pictures, writing, pictures, effigy, radio and television broadcasts, public performances, plays. It is addressed to the eye.  Slander is defamatory matter that is in transitory form for example spoken or oral, it is usually addressed to the ear.

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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 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

federalism

Do Not Confuse a Camouflaged Call for Confederation for Call Federalism

Monday, June 25, 2018 (PW) — As South Sudan slipped back to war in 2013, the debate on federal system of government resurface once again as it went silent when the country gained her independence in July 2011.

This incessant debate has again been triggered by the fact that many South Sudanese leaders who have swallowed these bitter pills when the region was struggling to succeed from the north have felt unease with the way the country was being governed.

This debate on the system of governance in the country has been fueled by the continuous transitional periods which began shortly after the country’s independence from the North in July 2011 although certain elements of federalism appears to have been enshrined in the transitional constitution of the Republic of South Sudan, 2011.

In this article, I shall labour to bring to fore, the contextual understanding of the legal underpinnings of federal debate in South Sudan, which, according to many South Sudanese is the best pill to do away with imbalances many claims have been besetting South Sudan. (more…)


By Tong Kot Kuocnin, Nairobi, Kenya

kiiriek3

Monday, May 21, 2018 (PW) — Since the establishment of the government of Southern Sudan in 2005 following the signing of the Comprehensive Peace Agreement, South Sudan failed to embark on extensive judicial reforms with a rigorous process of impartial and non-partisan appointment of the Chief Justice, justices, judges and other judicial officers where applicants should have been publicly interviewed by a revamped Judicial Service Council (JSC). Subsequently, parliament should have vetted and passed the nominees before full appointment by the President.

However, as I always share different and contending opinion, my contention has always been that, the effectiveness of judicial reforms depends on wider reforms in the entire justice sector. This would include critical stakeholders, such as, the prosecuting authorities, penal institutions and the police – and even the executive and parliament which put forward and approve budgetary allocations.

This is to ensure that complementary reforms are taking place within all those other institutions in order to ensure effective and timely delivery of justice. Since 2005 to date, weak institutional culture and structural impediments have stood in the way of judicial reforms, but this should not be allowed to retard efforts to implement an ‘ambitious plan to make the courts more efficient and open, increase professionalism, and expand the court system’ if at all the judiciary leadership was willing to undertake much needed reforms. (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…)


South Sudan under Salva Kiir: An Examination of Three Transitional Periods in South Sudanese Politics

By Tong Kot Kuocnin, Nairobi, Kenya

protest at the american embassy in Juba

protest at the American embassy in Juba

February 20, 2018 (SSB) — Following the untimely, sudden and shocking departure of the legendary, charismatic and founding leader of the peoples’ movement, the Sudan People’s Liberation Army/Movement (SPLA/M), Dr. John Garang de Mabior in a helicopter crush in July 2005, just twenty-one (21) days in office after having been sworn-in as FVP of the Republic of Sudan and President of the Government of Southern Sudan, his longtime deputy, comrade in the struggle, a brother and a best friend, Gen. Salva Kiir Mayardit was crowned to succeed the throne left by his longtime leader, a comrade in arm, a friend and a brother, Dr. John Garang de Mabior.

As the most senior in the hierarchy of the movement and the immediate next person after him, Gen. Salva Kiir Mayardit was set to take over the mantle insignia of leadership. However, as per the stipulations of the Comprehensive Peace Agreement, and by virtue of being the leader of SPLM which is one of the signatories and partner to the Agreement, Gen. Salva Kiir Mayardit automatically became the FVP of the Republic of Sudan and the President of the Government of Southern Sudan (GoSS) and commander-in-chief of the SPLA and a supreme commander of other regular forces.

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By Tong Kot Kuocnin, Juba, South Sudan

Edmund Yakani

MR. EDMUND YAKANI BERIZILIOUS is the Executive Director of the Community Empowerment for Progress Organization (CEPO), a Juba-based South Sudanese civil society organization.

January 19, 2018 (SSB) — Successive crisis have beset the Republic of South Sudan since its independence from Sudan marked by rising militias and warlords fighting for petty interests and demands. The most recent and more devastating one is the conflict which erupted on 15th of December 2013, due to the failure of the SPLM leadership to amicably settled the procedures and mechanisms of voting within the SPLM primaries if need be, causing untold suffering and unspeakable human and material destructions.

This was followed in July 2016 by another deadly dogfight which suddenly erupted in and around J1 which is the presidential palace. While the virulence of the violence which shook the country transcended into the unprecedented scale, in particular, its tribal dimension around which it crystallized the events constituted just one episode in a thorny political and security crisis resulting into the signing of the Compromise Peace Agreement on the Resolution of the Conflict in South Sudan in August 2015.

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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 Tong Kot Kuocnin, University of Nairobi, Kenya

Gen James Ajongo Mawut Unguec

May 30, 2017 (SSB) — In my previous article titled ‘Economic and Political uprising are civil means to end Unproductive Governments – published by Juba Monitor Daily Newspaper Vol. 6, Issue No. 651 at p 7, I succinctly explored in depth the economic hardships that befell on Tunisian to that befalling on South Sudanese.

Truly, the economic hardships we’re facing are not less than the economic hardships and situation which caused President Ben Ali of Tunisia to flee, President Ali Abdullah Saleh of Yemen to leave office and fled and great President Hosni Mubarak of Egypt to resign and put under trial.

The causes and conditions of this so-called Arab Spring which almost swept through the Arab world are not less than the economic hardships we’re facing in South Sudan. Our economic situation is much worse than that of the Arab Spring World. Our unemployment rate is beyond hundred per cent level.

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By Tong Kot Kuocnin, University of Nairobi, Kenya

Chan Reech Madut

Justice Chan Reech Madut, head of South Sudan Judiciary

April 27, 2017 (SSB) — In the previous article I authored titled ‘The Nation Needs a New Face in the Judiciary NOT Justice Chan Reec Anymore – Published 0n 5th December 2015 by Juba Monitor Newspaper Vol. 5 Issue No. 574 Page 5, and another piece titled ‘Why Too Many Judges and Justices are discontented with Chief Justice Chan Reec’s Leadership in the Judiciary? Published by Stance Media newspaper on Thursday 17th of Dec. 2015, Issue No. 71, Page 10, I explore hitherto issues that, if the judiciary of South Sudan could indeed position itself in its rightful place.

These articles plus many others were greeted with hostility by many stooges and kitchen supporters of the Chief Justice leadership. They turn blind eye to the important issues tackled in the articles for a simple fact that they are beneficiaries of that messed leadership but care less of the important place the judiciary occupy as an institution in our country. In this article “Crisis of the Judiciary of South Sudan: A Leadership problem”, I ironically intends to bring to forefront the crisis which has invasively infested the judiciary of south Sudan which lies not in the judiciary as a juridical institution but in the leadership of the incumbent Chief Justice.

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By Tong Kot Kuocnin, Nairobi, Kenya

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.

February 17, 2017 (SSB) —- The rule of law is a cornerstone of contemporary constitutional democracy as underscored by its role in cementing good governance and respect for human rights. The rule of law requires that the state only subject the citizenry to publicly promulgated laws and that no one within the polity be above the law. The rule of law doctrine envisages that the power of the state and government be only exercised in consonance with applicable laws and set procedures.

The three essential characteristics of modern constitutionalism are limiting the powers of the government, adherence to the rule of law and the protection of fundamental rights. However, in the absence of the rule of law and respect for human rights, contemporary constitutional democracy would be impossible. Beyond that however, it is not clear what characteristics the rule of law must possess to help sustain its folds and respect for human rights, what specific role it must ensure with regards to individual rights and liberties, and how it might ultimately contribute to help respect human rights of the people and protect their lives in Eastern Lakes State.

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By Tong Kot Kuocnin, Kampala, Uganda

Chan Reech Madut

Justice Chan Reech Madut, head of South Sudan Judiciary

February 6, 2017 (SSB) — Pursuant to the provisions of Article 122(1) of the Transitional Constitution 2011 (Amended 2015), the judicial power is derived from the people and shall be exercised by courts in accordance with the customs, values, norms and aspirations of the people and in conformity with this constitution and the law. The court of Appeal has powers under Article 122(4) of the said fundamental law to adjudicate on disputes and render judgments in accordance with this constitution and the law.

The structure of the judiciary of South Sudan is provided under Article 123(a)-(e) in which the Supreme Court is the highest court and a custodian of the Transitional Constitution and Constitutions of the states. It is a court of cassation which has final jurisdiction over both civil and criminal matters. It is a court in which the decisions of the Courts of Appeal are appealed against before it. The Court of Appeal is an appellate court where decisions of the high courts are appealed against.

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By Tong Kot Kuocnin, Nairobi, Kenya

Prisoner in Rumbek

January 17, 2017 (SSB) — When the people of South Sudan voted overwhelmingly for an independent State the choose life over death, it was a choice made as to what kind of future we and the generation to come will enjoy, it was a choice made that we and our offspring will have a life of freedom, justice and equal rights for all. This is not the case in Yirol. This hope has been dashed away by the inhumane acts perpetrated on the innocent and vulnerable person who’s their freedoms and liberties have been unlawfully and arbitrarily restrained.

Mabur-Zeed detention center in Yirol is such an illegal detention center in which most devastating, cruel, degrading and inhumane acts are being meted on the prisoners on daily basis. As the title of this article suggests, not only did the authorities in Yirol authorized and ordered arbitrary and indefinite detention, incommunicado detention, intimidations and extortion which are a common practice, beatings and torture are quite taking toll as an order of the day, but above the heinous of all, the government ordered a shoot-to-kill on five (5) detainees without any proper due process of the law.

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By Tong Kot Kuocnin, Nairobi, Kenya

Prisoner in Rumbek

January 16, 2017 (SSB) —- The detention center at Mabur-Zeed in Yirol has become emblematic of gross human rights abuses and violations perpetrated by the government of the State in the name of keeping the security of the State. The detentions at Mabur-Zeed and the wider lack of rule of law policies and practices continue to inflict serious damage on the dignity of the human person and a clear manifestation of the brutality of the government of the day which is hostile to dissenting voices in Yirol.

While Mabur-Zeed has never been reported in the news headlines about human rights abuses being meted on the innocent people in that particular part of the world, the human rights concerns associated with it are far more serious and worse than that of Guantanamo bay Prison in Cuba. Detainees at Mabur-Zeed detention center are subjected to a myriad of unaccountable human rights abuses and violations ranging from arbitrary detention without proper legal procedures being followed, indefinite detention, torture and incommunicado or prolonged detention even when the court of law says that the detention is illegal.

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Why Economic and Political Uprising are civil means to end the Life of the Repugnant and Unproductive Government: The Case of the Government of South Sudan

By Tong Kot Kuocnin, Nairobi, Kenya

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January 12, 2017 (SSB) —- The history of many African Liberation Movements have succinctly and coherently revealed that fighting for freedoms, in order to free your people from all yokes of oppression and marginalization of the repressive and most terrible despotic regimes in Africa is one thing and maintaining the legacy after the war to live longer is another. Too many African liberation movements suffered this fate and SPLM as one of the Africa’s strongest liberation movements of its time is thoroughly defaced by this disease and is on the next row.

The SPLM fought a fierce protracted civil war with the Islamist led government centered in Khartoum for more than two bloody decades which eventually culminated to the signing of the comprehensive peace agreement which form legal basis for south Sudan statehood. That was such an admired and well received legacy the SPLM as a liberation movement registered in the history of our nation. But is this legacy worth living on as it should have been? It’s certainly not. The SPLM after becoming a ruling party in both the former Sudan and the Republic of South Sudan seems to have felt short of its visions and missions and certainly lost its right direction.

The legacy which it had earned is being eaten away by some ants in its own thatched house where its cleaners became bosses. The legacy is no longer worth living in hearts and minds of the peoples of south Sudan, maybe only the SPLM diehards like myself may say yes, it would live worth living but loosely because it is the same SPLM that is eating its own tail. This is manifested by unethical and unprocedural reckless quirky mismanagement of almost all the resources of the state misguided by this assumption of being leaders of SPLM. This malfeasance conducts by these leaders led to the standstill and hence dysfunctionality of all the other organs of the party hence relegating some of them becomes weak and useless.

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