The mythos of judicial independence in South Sudan

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