The mythos of judicial independence in South Sudan
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By Ajo Noel Julious K.
In the July 9, 2011 DECLARATION OF INDEPENDENCE, South Sudan adopted
The Transitional Constitution of the Republic of the South Sudan. This
Constitution replaced the Interim Constitution adopted in 2005 after
the signing of the Comprehensive Peace Agreement (CPA). These
important developments occurred pursuant to the South Sudanese
people’s massive vote for independence in the Referendum, a right
guaranteed in the CPA.
Article 122 of the Transitional Constitution establishes the
Judiciary, with its powers derived from the people and exercisable by
the Courts in accordance with the Constitution and the customs,
values, norms and aspirations of the populace. The Constitution
ordains the Chief Justice as the head of the Judiciary and the person
responsible for its administration.
The power vested in the Judiciary exists independent of the executive
and the legislative branches. The language guaranteeing judicial
independence in Article 122(2) of the Constitution is reiterated in
Section 6 of the Judiciary Act No. 4 of 2008. The Judiciary budget is
charged on the consolidated fund following approval by the National
Judicial Service Commission (for more on the National Judicial Service
Commission’s composition, mandate and powers, see my article in [fill
in the blank]), hence having the financial independence in the
management thereof.
One might ask, what exactly is judicial independence? There are of
course different meanings attributable to the phrase. The most common
perception is that judicial independence is the concept that the
judiciary must be kept separate from the other branches of government.
That is, courts should not be subject to improper influence from the
legislature or the executive, or from private or partisan interests.
The courts and judges should be free to exercise their powers and
jurisdiction, and to perform their functions without fear from or
favor to any individual or authority.
The key determinant of whether a country enjoys a high standard of
justice is the independence of the judiciary. Such independence is
secured by ensuring that the appointment and removal of judges are not
bound to the whims of an individual or authority. In South Sudan, the
Constitution and the Judicial Service Commission Act elaborate the
procedure for the appointment and removal of judges. These processes
ensure that a Justice or Judge may only be removed for a cause that
has been meticulously investigated and that the decision accords with
the Constitution. The fact that the salaries of the judges are charged
on the consolidated funds after being fixed by the parliament enhances
this notion of judicial independence. It is important to note that the
power of parliament in setting the salary structure of judges itself
has nothing to do with the independence of the Judiciary. Independence
only relates to how judicial officers conduct their work and
themselves while in office. The duty of parliament is only to set the
salaries of judicial officers and how the judicial officers conduct
themselves and their work thereafter has no bearing on judicial
independence.
To further secure judicial independence, Article 124(8) of the
Transitional Constitution guarantees that Justices and Judges are not
affected by their judicial decision. This immunity ensures that the
courts may reach decisions without fear of any retaliation. If there
was no immunity for the Justices and Judges, it is probable no
individual would desire to serve in the Judiciary and judicial
officers would be scared to reached any decisions based on the law.
Further under the Penal Code Act it is a criminal offence for anyone
to try to influence the course of justice in any way – be it through
writing, speech or otherwise – whereby the fair hearing, trial or
decision of any matter in a proceeding may be prejudiced. Under the
sub judice rule, the merits of matters before the court are not to be
devolved until the court has pronounced itself on the matter. This
rule is meant to advance judicial independence by deterring
individuals who might be interested or tempted to undermine the
authority and powers of the court.
However, these statutory and constitutional guarantees of judicial
independence have, in some respects, been swept under the rug. The
head of the Executive appoints and fires judges without any
involvement of the Judicial Service Commission or any heed for
constitutionally mandated processes. As we read from the media, when
Justice John Clement Kuc resigned from the bench, he did not served
his resignation to the Judicial Service Commission as required by the
law. Equally, when Ajonye Perpetua was dismissed from the office of
the President and Judiciary concurrently, the processes established by
the law were not followed specifically with regard to the position she
held in the Judiciary. These examples point to the reality that judges
are bound to individuals, not to institution, and we therefore lack a
strong judiciary.
In other instances, the lack of clarity in legislation has undermined
judicial independence. It can be difficult to make sense of South
Sudan legislations. Section 6(2) of the Judiciary Act, which provides
that the Judiciary of South Sudan shall be independent of the
executive and the Legislature, further provides that the Chief Justice
who is the President of the Supreme Court is answerable to the
President of the Republic of South Sudan, the head of the executive.
In the same spirit, the High Court that is the highest court in every
State, the President of the same Court is made answerable to the
Governor of the State, who is the Head of the Executive branch in the
State. In comparison with the Transitional Constitution and the
Judiciary Act, these are glaring contradictions. It is important to
note that the Judiciary Act, though enacted under the 2005 Interim
Constitution, is saved by Article 200 of the Transitional
Constitution, which 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. This article
clearly requires parliamentary action to align this law with the
current Constitution.
So what can be done? We might be optimistic and hope that poor
drafting is not a deliberate act of parliamentarians or public
officials seeking to effect government policy. Nevertheless,
contradictory laws present serious problems. The biggest questions,
however, are whether the parliament is cognizant of these loopholes,
whether it has the will and capacity to pursue changes, and whether it
is the right time to align this law or keep the status quo awaiting a
permanent Constitution. The other way to resolve this problem given
the Parliament’s potential inaction would be through judicial
activism. However, judicial activism has been unheard of in South
Sudan. Furthermore, the end result of an improved legal framework
requires parliamentary action. Some of these contradictions would have
to be resolved through the Constitutional Panel declaring them null
and void to the extent of its inconsistencies with the Constitution.
But South Sudan has a chance at the end of it all. We can fix these
problems and create an independent judiciary through the permanent
Constitution and amend all laws that are not in conformity with the
grand norm. To supplement parliamentary action, there is need to
encourage judicial activism because it is the quickest way to respond
to laws that prove to be unprogressive, undemocratic, and out of line
with the Constitution.
The Author is an Attorney/Advocate, a graduate of UCU and Harvard Law
School. He also holds a Post Graduate Diploma in Legal Practice from
Law Development Centre and a holder of the Attorney General Award of
Excellence. He can be reached on [email protected],
[email protected] or legal@ajoadvocates and visit
www.ajoadvocates.com for details
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