Judiciary of South Sudan: A Paralyzed and Dysfunctional Third of Arm of Government
By Tong Kot Kuocnin,
July 16, 2017(Nyamilepedia) —– 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. I also felt obliged not to accept, as a member of legal fraternity, the shame that befalls on us as this institution is only led, manage and administered by only and only lawyers who are deemed and presumed to be the best among the community of lawyers, people with high moral conscience and integrity, highly trained in the field of law to do nothing but administer justice to the people. As I am left with no more words to explain and describe the state of the judiciary of South Sudan given my numerous articles and writings about the state of our judiciary, the conditions the judges and justices who are servants tasked to deliver justice impartially and without any favour to any of the adversaries faces, I shall in this article labour again to bring to the attention of not only the people of South Sudan but to the entire world of the pathetic state our judiciary has been plunged into.
As we may all recall, the Republic of South Sudan gained independence from the Sudan on the 9th of July 2011 following an overwhelming referendum vote on self-determination by the people of Southern Sudan. However, Article 123(2) of the Transitional Constitution established the Judiciary, independent of the Executive and Legislature and with a budget charged on the consolidated fund thus guaranteeing both political and financial independence from the other arms of the government. Hitherto, the unusual process of becoming independent from both pre-existing and existing political and legal entity thus far created unresolved problems for our judiciary. The Judiciary of South Sudan indeed inherited part of the Judiciary of the Republic of the Sudan upon which it broke cords, a judiciary that was highly weak, corrupt and was based on the principles of Sharia’a law with Arabic as an official language.
Judicial power according to Article 123(1) of the Transitional Constitution is derived from the will of the people of South Sudan and shall be exercise by courts in accordance with customs, values, norms and aspirations and in conformity with the constitution and the law but not the President of the Republic. Thus, this literally translates that legally and practically, the strength of the Judiciary lies not in the Head of the State but in the people’s confidence that the institution can indeed administer and deliver justice fairly and impartially to the people of South Sudan. Unfortunately, the judiciary is said to be one of the most corrupt institutions in the country in which corruption both administratively and financially has taken toll within the judiciary thus leaving the institution in these pathetic conditions. There is such an outspoken outcry by all judges and justices that there is untold corruption, nepotism and influence by the Executive in the exercise and discharge of the Judiciary’s functions and duties. This was put to test when the former SPLM Secretary General challenged the president’s orders to suspend him as a Secretary General and hence from the party as well.
The independence of the Judiciary was also put to test again when the Alliance of the Opposition parties challenged the Presidential Order creating Twenty-Eight (28) States which led to the unlawful removable and dismissal of Justice Ruben Madol as Deputy Chief Justice and Justice of the Supreme Court as well, a move which violates and contravenes the provisions of Article 135(2) of the Transitional Constitution of the Republic of South Sudan, 2011 and section 8(2) of the Judicial Service Council Act, 2008 respectively. This is the state of the judiciary of South Sudan and it will continue to be under the incumbent Chief Justice whose protection and legitimacy rest on the shoulders of the Head of State even when has lost respect, veneration and legitimacy from the members of the Judiciary.
It has to be bore in mind that the decline in public confidence, the disdain from other arms of government, and the dissipation of internal confidence within the judiciary, are the enduring legacies of the Judiciary’s own historical injustices which are evidence of an institution that hungers for renewal and a complete restoration of its lost constitutional mission and mandate. The overweening influences of the executive has created an enfeebled judiciary, an arm of government strikingly reluctant to play its classical role in the defence and upholding of the constitutional principle of separation of powers. This has created an institution plagued by both social and administrative corruption and inefficiency causing a veritable figure of scorn at odds with the public interest. It has become an institution marred by crisis of confidence which was supposed to be enjoyed by both litigants and the public at large. These pathologies, however, saw the institution develop toxic insularity and cold insensitivity and internalized privilege and entitlement rather than service to the nation and its people.
Hence, paralyzation and creeping dysfunctionality, unprofessionalism and corruption became the immediate result; as well as institutional ignominy, the resultant effect. We have a duty to restore the Judiciary to its rightful constitutional place, and forge a new relationship with the public whose duty it exists to serve. Therefore, the transformation of the Judiciary from a paralyzed and dysfunctional arm of the government must achieve at least three lost objectives: first, it must reset the relationship between judiciary and other arms of government molded on the principle of separation of powers premised on the principle of robust independence and constructive interdependence, where the judiciary will reposition itself as a strong, effective and equal independent arm of government while engaging other agencies in the administration of justice within acceptable confines of the constitution as the grundnorm. Second, the Judiciary must reorient its organizational culture to customize it with the exigencies of its social realities and its institutional design and leadership style needed to reflect known models of modern management science. Third, and most important, it must emerge and operate as a service entity which serves the people. It must win back public confidence; express itself with such authority and integrity that the public will always respect its opinions and decisions even when they disagree with those opinions and decisions.
The Judiciary must recapture public imagination, not through its outdated aristocratic poise and rituals, but through the rigor of its jurisprudence. It’s obvious that the Judiciary of South Sudan under its current leadership faces a number of challenges with respect to leadership and management. The key ones include chronic under-capacity in leadership and management offices, lack of mentorship from the senior echelon, excessive centralization, and absence of consultancy, privatization and personalization of leadership spaces from the top leadership, clientelism, poor attitudes and ethics, discrimination and ethnicity and a weak culture of professionalism in the management of the courts. Each leadership and management office such as the offices of the Chief Justice, Deputy Chief Justice, Presidents of the Courts of Appeal, presidents of the High Court and resident Magistrates are supposed to have efficient professional and executive offices designed to support them to deliver their responsibilities.
The Judiciary was supposed to standardize offices in all court stations to eliminate the variations and asymmetries that presently exist. In a nutshell however, the primary responsibility for the successful and sustainable transformation of the Judiciary rests with its leadership, management and staff at all levels and in all capacities. A clear and robust organizational design, a dynamic leadership and management team; and a competent and motivated staff are conditions necessary for a successfully transformed Judiciary. Rest assured that to have these reforms and transformation take place, the Judiciary needs a new face and not the incumbent under whose leadership the judiciary lost confidence in the public hence creating an enfeeble judiciary, one that has submitted to the Executive arm of government and relegated its independence, neutrality and impartiality.
The Judiciary must be restructured to have these reforms and complete transformation takes place to meet the demands of the public and continue to enjoy respect and command confidence of the people. Under the incumbent Chief Justice, the Judiciary of South Sudan is an institution designed to fail, so frail in its structures, so low on confidence enjoys by litigants, so weak in its public support that is expected from it to deliver justice timely, and so deficient in its integrity. This is the state of the judiciary of South Sudan under the incumbent Chief Justice. One month plus on, the Judiciary of South Sudan has collapsed before our eyes as the judges and justices went on an open strike due to the deplorable and pathetic conditions they have been undergoing since the independence of South Sudan from Sudan. The collapse of the laws is the collapse of the state and the society; hence the collapse of the Judiciary of South Sudan is the collapse of South Sudanese society for this is the only institution which safeguards the conducts and omissions of other arms of government.
Tong Kot Kuocnin, LLB (Juba), LLM, is a Specialist in Law, Governance & Democracy from the University of Nairobi. He can be reached at email@example.com