Reform of South Sudan Judiciary: where to start?
By Ajo Noel Julious K.
The other day I was at my favorite tea spot by the roadside at Mahata Yei, sipping hot kerekede – hibiscus tea – as speeding bikers and motor vehicles moved by. In local, Juba Arabic, this location is famously known as BARLAMAN – or Parliament in English. It earned this name because both employed and unemployed youth love coming to discussion politics of the day every evening after work. Of course for those who know it, BARLAMAN has history that dates back to the days of the liberation with its ancient spot in Yei town, then known as DNC. Today there are many Ministers and Honorable Members of Parliament in both State and Federal government who pride themselves on having been members of the BARLAMAN. It moved to Juba when the CPA was signed and all these promising young men came to the city and continued it.
As I sat there drinking my hibiscus tea with the traffic throwing dust on us, the discussion intensified around Transitional Justice, Judicial reforms and what really needs to be done and how we should go about it. “It is common knowledge that the Judiciary is understaffed, poorly financed and corrupt. Young well-educated lawyers like you must rescue us,” one of my colleagues asserted. We all know that South Sudan needs Justice but this can only be achieved when we have genuinely reformed our judiciary and enhanced its capabilities. I have had a cocktail of ideas swarming my mind on how I can contribute to make a difference in this search for judicial reform and Justice. So, in the interest of bringing BARLAMAN and its important debates to the public, I’d like to share my thoughts on where to begin with judicial reform in South Sudan.
On July 9, 2011, the Republic of South Sudan gained independence from the Sudan and adopted the Transitional Constitution of the Republic of the South Sudan. Article 122(2) of the Transitional Constitution established the Judiciary, independent of the Executive and Legislature and with a budget charged on the consolidated fund, guaranteeing political and financial independence.
The unusual process of becoming independent from a pre-existing political and legal entity created problems for the judiciary. South Sudan inherited part of the Judiciary of Republic of the Sudan – a judiciary that is highly corrupt and based on the Islamic law (sharia), with Arabic as the official language. Following Independence, South Sudan adopted the Common law system and English as its official language. This paradigm shift created confusion in the legal system with most judges trying to twig to the old judicial regime while commonwealth trained judges advocated for a complete shift. Remnants of the old system persist today: for example, summons, judicial opinions and judgments are written in Arabic while others in English.
Unfortunately, corruption has carried over, as well. Judicial power is derived from the people and exercised by the courts in accordance with the customs, values, norms and aspirations of the people and in conformity with the Constitution and the law. Thus, legally and practically, the strength of the Judiciary lies in the people’s confidence that it can deliver justrice. However, the Judiciary of South Sudan is said to be one of the most corrupt institutions in the country. There are allegations of corruption, nepotism and influence by the Executive.
The independence of the Judiciary was put to test when Pagan Amum, the Secretary General of the ruling Party Sudan People’s Liberation Movement (SPLM), challenged the President’s decision to suspend him from the party. (For more information see http://www.sudantribune.com/spip.php?article47570). The Chief Justice and security operatives are said to have threatened the advocates who filed the petition on behalf of Pagan with arrest while others fled the country for their safety (for more information see http://www.sudantribune.com/spip.php?article47676).
Serious allegations of nepotism and corruption again arose when Justice Clement John Kuc, Justice of the Court of Appeal resigned and the Chief Justice appointed his daughter to the Judiciary. It is not clear whether the Chief Justice had consulted with the Council (if it even functionally exists) on his intended appointment of judicial officers that included his daughter, as required under section 7(1)(d) of the Judicial Service Council Act. Regardless of whether the Chief Justice consulted the Council, Section 8(2) of the same law bars the Council from delegating its powers of appointments, promotions and removal of justices and judges to the Chief Justice (President of the Supreme Court). It is important to reiterate that Judiciary appointments are the sole responsibilities of the National Judicial Service Council, pursuant to Article 132 of the 2011 Transitional Constitution and Section 8 of the 2008 Judiciary Service Council Act.
The history of the Judicial Services Council is an important one. During the six years interim period, the Government of Southern Sudan through its Southern Legislature, enacted the Judicial Service Council Act of 2008. This legislation was carried over after independence by Article 200 of the Transitional Constitution, which provides for the continuity of then existing laws and institutions of Southern Sudan.
The law provides for the establishment and governance of an independent Council to promote an effective and efficient judiciary in Southern Sudan and to foster high standards of ethics and professionalism. The Judicial Services Council approves general policy for the Judiciary, annual budgets and it recommends to the President for approval the President of the Supreme Court, Its Deputy, Justices of the Supreme, the Court appeal and also matters of discipline and promotions in the Judiciary. It is this Council that is responsible for the recruitment of judges and provides recommendation for their appointment to the President. Section 9 of the Judicial Services Council Act provides for the composition of the Judicial Service Council, including; the President of the Supreme Court as the Chairperson, the Minister of Justice, the Deputy President of the Supreme Court, the Minister of Finance, the Chairperson of Legal Affairs Committee in Parliament and two Justices of the Supreme Court based on their seniority, the Dean of the Faculty of Law at the University of Juba, the president of the South Sudan Bar Association, two Justices of the Supreme Court, and an ex officio member as the Secretary General of the Council.
First, one problem with the current Judicial Services Council that contributes to corruption is its composition. The presence on the Council of members of the Bench and the Executive branch of the Government may compromise the Council’s impartiality. A number of observations support this assertion. The Judicial Services Council is responsible for recruitment of all judicial officers including the Chief Justice, all members of the Supreme Court, Presidents of the Courts of Appeal and its members who are recommended to the President for appointment. In this very Council, the President of the Supreme Court is the chairman and the Deputy President of the Supreme Court and two more justices, members. The Secretary General, an ex officio member, is also to be chosen from among the Supreme Court Justices. Thus, of nine total members of the Council, at least five are justices of the Supreme Court. It is a legitimate fear that the Council will turn out to be a sort of “Supreme Court Justices club.” These conditions raise concerns as to the Council’s impartiality and conflicts of interest in the recruitment processes. It is important to note that perceived conflicts of interest and impartiality can be mitigated by Council members’ individual morale dogmas and desire to do what is just and right. However, the structure is inherently suspect.
Second, another issue with the Judicial Services Commission relates to the South Sudanese President’s exercise of his appointment power. Legally, the ideal process requires that whenever there are vacancies in the Judiciary, the Council must advertise. Eligible candidates will apply through the set, standard process and qualified candidates will be shortlisted and interviewed by the Council. Those candidates that are successful will be recommended to the President for appointment. The President’s appointment powers are limited to the Supreme Court and Court of Appeal Justices and he shall have at least three candidates from which to choose for the position of Chief Justice.
However there can be a situation where the president may refuse or not act on any Council recommendation for appointment of judicial officers for one reason or another. This situation has been experienced in Kenya and Uganda where it took almost a year for the president to act on a recommendation from the Judicial Service Council for appointments. South Sudan may fall victim to the same scenario.
Yet, there are ways to address these deficiencies in the Council’s operation. First, with respect to the Council structure, all is not lost. Our law seems to have been borrowed from Kenya, which has similar provisions. The Kenyan law has proven effective since the Country launched it judicial reform processes after the new constitution was adopted in 2010. The law has been supported by political will from the Executive branch and strong systems that advocated and provided accountability. Despite the provision that the Council shall be independent and impartial, and shall exercise its powers and perform its functions without fear or favor or prejudice in the interest of and maintenance of an effective and efficient Judiciary in South Sudan and adherence to a high standard of professional ethics, the contrast is true of South Sudan. The problem, however, can be remedied by getting the right persons in the right places, men and women of superior pedigree and ethics. If constituted correctly, the Council composition can be a positive, bringing together the various policymakers from the Legislature and the Executive to share in shaping the Judiciary and paving way for an independent institution.
Second, regarding the Presidential appointment system, the situation can be avoided by amending the law to restrict Presidential appointment after recommendation from the Council only to the Chief Justice and Deputy Chief Justice (also known as the President and Deputy President of the Supreme Court) and the Presidents of the Courts of Appeal. In the alternative, legal reform could provide for approval by Parliament of the Chief Justice and the Deputy Chief Justice and all other Justices of the Supreme Court and Courts of Appeal. The High Court Judges and other subordinates courts can be recruited and appointed by the Council without presidential or parliamentary appointment requirements. These changes would save time and avoid political bickering in the Judiciary, thus paving the way for more real judicial independence.
The absence of a fully functional judicial service commission has far reaching consequences in relation to other legislations. For instance, the National Security Services Act, 2014, provides for an establishment of oversight mechanisms to the National Security service in the name of a Complaints Board. This board is to be appointed by the President upon recommendations from the Judicial Service Commission. Therefore, importance of having a fully independent and functional judicial commission goes without saying.
More generally, in order to have a sound and strong Council, there must be a strong bar association, the body that brings practitioners together. There is a need because the head or leader of the bar association is automatically a member of the Council, charged with functions as stipulated in the Act. It is unfortunate, however, that the Bar Association has been locked in struggle over its own legitimacy and standing. I will provide analysis of the bar association and its predicaments in a forthcoming article.
In sum, what really needs to be done to reform the Judiciary as we move forward?
The Judicial Service Council has to be constituted immediately and given the resources to carry out its statutory functions. There should be then a systematic overhaul of the whole Judiciary, starting from the Courts of Record, the High Court, The Court of Appeal and Supreme Court and subsequently encompassing the subordinate courts at the Magistrate level. The reform process should include;
• Advertising judiciary position for which applicant judges, both new and old, must apply,
• Creating clear, detailed selection criteria for judicial positions,
• Publicizing shortlisted applicants in the media for the public to view and submit complaints to the Council,
• The candidates are interviewed not in camera with the public asked to submit their genuine complaints about any applicants,
• Forwarding to the president or parliament (depending upon the route chosen) approved candidates’ names.
For any and all of these reforms to succeed, there is need for political will to change the Judiciary. Genuine overhaul of the Judiciary at these early stages shall underlie its future growth and development.
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, Kampala Uganda and is a winner 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