Opinion: On Access to Justice, Judicial Reform in South Sudan (Part 2)

By Roger Alfred Yoron Modi,

Feb 16, 2022 — Despite delays and some actions regarding the the reform of the Judiciary in South Sudan per the R-ARCSS continue to be mentioned, the credibility of those reforms and concerns about the process and improvements are mainly the responsibility of the parties to the agreement, civil society, regional and international partners, communities and bodies involved, as well as the people of South Sudan.

This article looks at Independence of the Judiciary, as the Transitional Constitution states that the Judiciary shall be independent of the executive and the legislature; together with relevant laws, observations, arguments and controversies about the same. Recognizing that while even improving the R-ARCSS is possible, all contributions made here are in good faith and may this article, together with its Part One and relevant ones mentioned here help in the reform process.

Controversies regarding Independence of the Judiciary, Judicial Service Commission and having a “Constitutional Court”.

On this, first, there are arguments by some that a solution to the issue of the Judiciary in South Sudan is by having a “Constitutional Court”. That, has been included in the R-ARCSS, through a shallow provision which says “There shall be established, during the Transitional Period, an  independent, impartial and credible Constitutional Court, whose composition, functions and duties shall be regulated by law.” (Article 1.17.7.) Which law, how and to what extent? The R-ARCSS  remained vague on that, besides offering no other details. On that, one of the views I expressed is that a Country does not necessarily need a court named “Constitutional Court” to have Constitution respected, justice, rule of law delivered, in an independent, impartial and credible process. The challenges can be looked into through issues of competence, infrastructure, independence and accountability of the Judiciary, in practice and in relations to laws.

Provisions of the Transitional Constitution relevant to this article:

Article 125 provides as follows:

(1) The Judiciary shall be independent of the executive and the legislature.

(2) The budget of the Judiciary, after its approval by the National Judicial Service Commission and assent of the President, shall be charged on the consolidated fund and it shall have the financial independence in the management thereof.

(3) The Judiciary shall be self-accounting and its finances shall be subject to public audit.

(4) The Judiciary shall be subject to this Constitution and the law which the Judges shall apply impartially and without political interference, fear or favour.

(5) The executive and legislative organs at all levels of government shall uphold,  promote and respect the independence of the Judiciary.

(6) Justices and Judges shall be independent in their judicial work, and shall perform  their functions without interference. Their independence shall be guaranteed by  this Constitution and the law.

(7) Justices and Judges shall uphold this Constitution and the rule of law and shall administer justice without fear or favour; they shall enjoy such immunities as shall be determined by law.

(8) Justices and Judges shall not be affected by their judicial decisions.

(9) The salaries, allowances, privileges, post-service benefits, tenure and other  conditions and terms of service of judicial officers or other persons exercising judicial powers shall be regulated by law.

Article 133:

(1) There shall be established an independent Commission to be known as the National Judicial Service Commission.

(2) The structure, composition, functions, and terms and conditions of service of the  members and employees of the Commission shall be determined by law.

Article 134:

(1) The President of the Republic shall appoint the Chief Justice having regard to competence, integrity, credibility and impartiality in accordance with this Constitution and the law.

(2) The President shall, upon the recommendation of the Judicial Service Commission, appoint the Deputy Chief Justice and Justices of the Supreme Court,  Justices of the Courts of Appeal and the Judges of the High Courts and County Courts having regard to competence, integrity, credibility and impartiality in accordance with this Constitution and the law.

(3) The appointment of the Chief Justice, Deputy Chief Justice and Justices of the Supreme Court shall be subject to approval by a two-third majority of all members of the National Legislative Assembly.

(4) The National Legislative Assembly shall enact a law to provide for appointments, terms and conditions of service of Justices and Judges.

(5) All Justices and Judges shall, before assuming their duties, take the oath of office  as shall be prescribed by law.

Article 135:

(1) Discipline of Justices and Judges shall be exercised by the Chief Justice with the approval of the Judicial Service Commission.

(2) Justices and Judges may be removed by an order of the President for gross misconduct, incompetence and incapacity and upon the recommendation of the National Judicial Service Commission.

As I repeatedly argued, and to the best of my knowledge, there is no National Judicial Service Commission in South Sudan. Also, no legislation for establishment and operations of National Judicial Service Commission has been enacted.  What is there is  the Judicial Service Council, established under the Judicial Service Council Act 2008.  Though Section 6(2) of the Judicial Service Council says the Council shall be independent and impartial, and shall exercise its powers and perform its functions “without fear, favour or prejudice in the interest of and maintenance of an effective and efficient Judiciary” and adherence to “a high standard of professional ethics,” and some have interpreted that the Council is the National Judicial Service Commission envisioned in the Transitional Constitution, available facts do not support that.

Meanwhile, the R-ARCSS claims that there is a Judicial Service Commission, in Article 1.19.1.9. read together with 1.19.1, the R-ARCSSS says that during the Transitional Period, the “Judicial Service Commission (JSC)” shall be restructured and reconstituted at the national  level, and that the Executive shall supervise and facilitate the reforms and re-constitutions “paying particular attention to the mandate and appointments, to ensure their independence and accountability.”

The government of South Sudan (RTGoNU) also claims the same, and in the National Report submitted by South Sudan at this month’s Third Cycle of South Sudan’s Universal Periodic Review, the government said “…The reforms to be recommended by the Judicial Reforms Committee, include restructuring of the Judiciary to be undertaken by the reconstituted Judicial Service Commission during the Transitional Period. The Judicial Reform is to also include, but not limited to, the review of the Judiciary Act, 2008, Judicial Service Commission Act, 2008 and capacity building of the judicial personnel and development of the judiciary infrastructure.”

The effects of these controversies regarding having an Independent National Judicial Service Commission per the provisions of the Transitional Constitution have been in many ways clear on affecting the Independence of the Judiciary.

While Article 125 (2) of the Transitional Constitution which provides that “The budget of the Judiciary, after its approval by the National Judicial Service Commission and assent of the President, shall be charged on the consolidated fund and it shall have the financial independence in the management thereof” need to be reformed to include the legislature in the process, and transparency, challenges in delivery of justice related to budget of the Judiciary have been expressed severally. In an interview I had in 2020 with Malek Mathiang, the former Justice of South Sudan’s Court of Appeal who President Kiir had removed through a Presidential Decree, Mathiang emphasized the need for wide reforms of the Judiciary to be able to deliver justice.

“For the Judiciary to be functional, Judges should be protected. Judges should be delivered services. As I’m talking to you, the judges don’t have transport means, no cars. The Judges have no security services and sometimes some of them effect sentences, sentencing accused person to death.  The judges would be fearing when they are not protected. Not that alone, the salaries of the judges are not at all enough. Such a judge at such a situation, how will you expect him or her to be administering justice….This  Judiciary of South Sudan needs a long, a wide transformation,” he said.

The Appointment of Chief Justice and Controversies on Independence of the Judiciary, including the Role of lawyers (Advocates) in South Sudan:

Article 134 (1) says “The President of the Republic shall appoint the Chief Justice having regard to competence, integrity, credibility and impartiality in accordance with this Constitution and the law.” This leaves out the National Judicial Service Commission from the process of the appointment of the Chief Justice, unlike that of the Deputy Chief Justice and Justices of the Supreme Court, Justices of the Courts of Appeal and the Judges of the High Courts and County Courts, provided for in Article 134(2). Also note that Article 127 (1) (a) says The Chief Justice, among others, shall be the head of the Judiciary and the President of the Supreme Court.

More controversies on the Independence of the Judiciary come in from the Judicial Service Council Act, 2008, which in section 7, says, the functions of the Council shall be to—

(a) approve the general policy of the Judiciary;

(b) approve the annual budget of the Judiciary;

(c) recommend to the President of the Government of Southern

Sudan, appointments of—

(i) President of the Supreme Court;

(ii) Deputy President of the Supreme Court;

(iii) Justices of the Supreme Court;

(iv) Presidents of the Courts of Appeal; and

(v) Justices of the Courts of Appeal.

Meanwhile on the Composition of the Council, Section 9 of the Judicial Service Council Act, 2008 says the Council shall be comprised of the Chairperson and eight (9) members, as follows—

(a) the President of the Supreme Court, Chairperson;

(b) the Minister of Legal Affairs and Constitutional

Development, member;

(c) the Deputy President of the Supreme Court, member.

(d) the Minister of Finance and Economic Planning, member;

(e) the Chairperson of the Legislation Legal Affairs Committee of Southern Sudan Legislative Assembly, member;

(f) the Dean of Faculty of Law, University of Juba, member;

(g) the President of the Southern Sudan Bar Association,member;

(h) two Justices of the Supreme Court according to the order of their seniority, members; and

(i) the Secretary General of the Council exofficio member, as Secretary.

Article 137 of the Transitional Constitution provides that:

(1) Advocacy is an independent private legal profession and it shall be regulated by law.

(2) Advocates shall observe professional ethics, and promote, protect and advance the human rights and fundamental freedoms of citizens.

(3) Advocates shall serve to prevent injustice, defend the legal rights and interests of their clients, seek conciliation between adversaries and may render legal aid for the needy according to the law. Meanwhile, the law enacted so far, The Advocates Act, 2013, that among others, provides for establishment of the Bar Association, has been observed severally as shallow, unable to regulate the profession, through a credible, predictable manner, and is even not being followed as over the years members of the Bar Association has been engaged on factionalism over elections to the Bar Association, and seeking court orders in search for legitimacy. Concerns have also been expressed on the need to reform the The Advocates Act, 2013, including to adhere to international and regional instruments,  The UN Basic Principles on the Role of Lawyers, the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.

When South Sudan was gaining Independence in 2011, the Transitional Constitution it promulgated, which is still the Transitional Constitution now, though with amendments including the incorporation of the R-ARCSS, in Article 198 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.”

Clearly, the presentation of these laws, and of others will here-below, show how the Independence of the Judiciary is compromised.

The Basic Principles on the Role of Lawyers, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba 27 August to 7 September 1990, among others, in its preamble made references to the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and while the principles there are many and need to be looked into in the search for reforms in South Sudan, for the purposes of this article, here are is an excerpt from the the Principles:

“Duties and responsibilities

12. Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.
13. The duties of lawyers towards their clients shall include:

(a) Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients;

(b) Assisting clients in every appropriate way, and taking legal action to protect their interests;

(c) Assisting clients before courts, tribunals or administrative authorities, where appropriate.

14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.
15. Lawyers shall always loyally respect the interests of their clients.

Guarantees for the functioning of lawyers

16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
17. Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.
18. Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.
19. No court or administrative authority before whom the right to counsel is recognized shall refuse to recognize the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles.
20. Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.
21. It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time.
22. Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.

Freedom of expression and association

23. Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.

Professional associations of lawyers

24. Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.
25. Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics.”

In the search for reforms, here-below also is a relevant excerpt from the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, adopted by The African Commission on Human and Peoples’ Rights, among others, “Recalling its mandate under Article 45(c) of the African Charter on Human and Peoples’ Rights (the Charter) “to formulate and lay down principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African states may base their legislation;” “Solemnly proclaims these Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa and urges that every effort is made so that they become generally known to everyone in Africa; are promoted and protected by civil society organisations, judges, lawyers, prosecutors, academics and their professional associations; are incorporated into their domestic legislation by State parties to the Charter and respected by them;” among others:

“G. INDEPENDENCE OF LAWYERS:

(a) States, professional associations of lawyers and educational institutions shall ensure that lawyers have appropriate education and training and be made aware of the ideals and ethical duties of the lawyer and of human rights and fundamental freedoms recognized by national and international law.

(b) States shall ensure that lawyers:

1. are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference;
2. are able to travel and to consult with their clients freely both within their own country and abroad;
3. shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

(a) States shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.

(b) It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time.

(c) Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a judicial body or other legal or administrative authority.

(d) Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.

(e) Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.

(f) Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.

(g) Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.

(h) Lawyers shall always loyally respect the interests of their clients.

(i) Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and the protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.

(j) Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional association shall be elected by its members and shall exercise its functions without external interference.

(k) Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom and recognized international standards and norms.

(l) Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.

(m) Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or even before a judicial body, and shall be subject to an independent judicial review.

(n) All disciplinary proceedings shall be determined in accordance with the code of professional conduct, other recognized standards and ethics of the legal profession and international standards.”

On Access to Justice and Customary Laws: Controversies and Understanding:

In part one of this article I mentioned that in this month’s Third Cycle of South Sudan’s Universal Periodic Review UPR at the United Nations Human Rights Council, at Geneva, included in the the Compilation of UN Information, Report of the Office of the United Nations High Commissioner for Human Rights is that  Customary courts were not mandated to hear serious criminal cases and were ill-suited to providing justice to women and victims of sexual violence given gender biases and the lack of procedural safeguards. That is true. There continues to be a lot of controversies and contradictions about application of Customary laws in South Sudan, as well as delivery of justice. In these controversies, citations have also been made on legislation such as the Penal Code Act, 2008 and Code of Civil Procedure Act, 2007.  A South Sudanese lawyer in an article in 2019 expressed the need to  enact rules of procedure for criminal, civil and evidence laws in South Sudan, arguing, among others, that “Codes enacted without the rules of procedure (guidance) on application of these same codes, make the law a burden to the suspects. In fact, law may become an element of terror to create fear for the law than obeying the law. Law must be applied as it is enacted and excuses intended to cause misapplication are against the natural justice.” The article is available on this link for further reading in this search for reforms.

Some of the continues controversies regarding Access to Justice and Customary Laws relate to the rights of the child and women in South Sudan. However, the issues are more of the process to do with application of justice, the processes, rather than the laws. Some of the arguments as can be seen here-below, are a mixture of distortions, sometimes citing laws that are subordinate in inconsistent with the Transitional Constitution (the Supreme Law) and sometimes by people who take unfair advantage of the  women and children using the inadequacies in the process for delivery of justice.

Some relevant Articles of the Transitional Constitution here-below:

Article 5: The sources of legislation in South Sudan shall be:

(a) this Constitution;

(b) customs and traditions of the people;

(c) the will of the people; and

(d) any other relevant source.

Article 166 :

(1) The institution, status and role of Traditional Authority, according to customary  law, are recognised under this Constitution.

(2) Traditional Authority shall function in accordance with this Constitution, the state constitutions and the law.

(3) The courts shall apply customary law subject to this Constitution and the law

On Rights of Women, Article 16:

(1) Women shall be accorded full and equal dignity of the person with men.

(2) Women shall have the right to equal pay for equal work and other related benefits with men.

(3) Women shall have the right to participate equally with men in public life.

(4) All levels of government shall:

(a) promote women participation in public life and their representation in the

legislative and executive organs by at least twenty-five per cent as an affirmative action to redress imbalances created by history, customs, and

traditions;

(b) enact laws to combat harmful customs and traditions which undermine the

dignity and status of women; and

(c) provide maternity and child care and medical care for pregnant and lactating women.

(5) Women shall have the right to own property and share in the estates of their deceased husbands together with any surviving legal heir of the deceased.

On Rights of the Child, Article17:

(1) Every child has the right:

(a) to life, survival and development;

(b) to a name and nationality;

(c) to know and be cared for by his or her parents or legal guardian;