Justice under Fire: The Dismissal of 13 Justices & Judges from the Judiciary of South Sudan

[Elisabeth Janaina]

Justice under Fire: The Dismissal of 13 Justices & Judges from the
Judiciary of South Sudan

Jul. 15 National, Uncategorized no comments

By Tong Kot Kuocnin, LLB (Juba), LLM(Nairobi), Specialist in Law,
Governance & Democracy, University of Nairobi.
JUL/15/2017, SSN;

One is not surprised at all to hear and see the dismissal of the
honorable justices and judges from the judiciary of South Sudan by the
president.

As the justices and judges went on an open strike two months ago
protesting against the leadership of the honorable Chief Justice and
requesting the head of state to remove him from office for his failure
to manage the judiciary effectively, and efficiently, the men and
women of honor faced the wrath of the misdeeds of the president and
his in-law, justice Chan Reec Madut.

It is not unknown to all South Sudanese what the intentions of both
men is regarding this great institution of ours.

It is not a new thing either to be surprised that innocent justices
and judges can be dismissed from the Judiciary especially those who
are opposed to the chief justice’s corrupt and dictatorial tendencies.

The first victim, a man of honor was justice Ruben Madol Arol, the
former deputy chief justice who’s unlawfully removed from office
simply because he asked the chief justice to excuse himself from the
bench since the litigants were no longer enjoying any trust and
confidence in him in presiding over the case brought before the
constitutional panel in the Supreme Court challenging the order of the
president which created the 28 states at the time.

Hitherto, the repeat of unlawful removable of the senior justices and
judges occurred again simply because they have demanded what
rightfully belongs to them.

In this article therefore, I shall not waste time narrating the ordeal
these justices and judges went through under the embattled chief
justice who took over from his predecessor, Late Justice Prof. John
Wuol Makec but I shall labor to bring to the forefront, whether or
not, the dismissal of the honorable justices and judges has met the
constitutional and statutory requirements and procedures laid down
under the Transitional constitution of the Republic of South Sudan,
2011 (Amended 2015) and other subsidiary legislations governing the
conduct, appointment and removable of the justices and judges of the
judiciary of South Sudan.

There are quite a number of statute laws in this country dealing with
how the judiciary of South Sudan should be governed, giving effect to
the constitution which is the fundamental law of the land.

First and foremost, the transitional constitution provides under
Article 123(1) that judicial power is derived from the people and
shall be exercised by courts in accordance with customs, values, norms
and aspirations of the people and in conformity with the constitution
and the law.

This succinctly means that the power lies not in the chief justice and
not the president either to do whatever they like with regards to this
great institution.

The chief justice is a mere administrator who should run and supervise
the officers of the judiciary in accordance with procedures which have
clearly been stipulated in legislations governing the judiciary
itself.

However, Article 123(2) stipulate further that judicial power shall be
vested in an independent institution to be known as the judiciary, but
nothing is said about chief justice having a power to tell the
president to dismiss any justice or a judge as an officer of the
judiciary.

The president as a head of state exercises the power given to him by
law not Chan Reec to remove the justices and judges only on grounds of
gross misconduct, incompetence and incapacity and upon the
recommendation of the National Judicial Commission as provided for
under Article 135(2) of the Transitional Constitution, 2011(Amended
2015), which in this case, the national judicial service commission
hasn’t sat and made any recommendation for the dismissal and removable
of any of the justices and judges of the judiciary of South Sudan.

This clearly puts justice under fire as the chief justice who is also
an uncle to the president’s wife, an in-law for that matter, scooped
for himself powers which aren’t defined in the constitution and any
other legislation governing the management of the judiciary.

Hence, by relegating and compromising the independence of the
judiciary, it has been made a private family business enterprise.

On the same token, the Judicial Service Council’s Act, 2008 provides
under section 7(e) that the Council has the power to recommend
appointments, promotions and removable of justices and judges in
accordance with the provisions of Judiciary Act, 2008.

But more interestingly, section 8(2) provides that council may
delegate to the president of the Supreme Court any of its powers and
functions; provided that, the council shall NOT delegate its functions
over appointments, promotions and removable of justices and judges.

Where on earth the chief justice and the president did get their
undefined and unscrupulous powers to unjustly remove these honorable
justices and judges from?

The laws are very clear and straight forward. Let us not read our
laws, more especially our constitution upside down.

Yes, the president of the Supreme Court can make recommendations to
the judicial service council on the removable of justices but such
recommendations will be effected only when the council is convened to
deliberate, examine and decide on the recommendations in accordance
with the provisions of the Judiciary Act, 2008.

Again very clear that the only institution having power to remove
justices and judges, is the judicial service council and not the chief
justice and the president.

Justice is truly under fire because instead the demands of these
justices and judges are addressed, they felt prey in the hands of
their colleague who should have stood by their side, conniving with
his in-law and a family best friend to dismiss them without following
any proper procedure as provided for under the constitution and other
laws currently in force in the country.

Justice is under fire as the judiciary remained closed for the last
three months with all accused persons in various detention facilities
continue experiencing the most inhumane, agonized and brutal ways and
manners in which the wardens of those detention facilities treats
them.

Justice is under fire as the rule of law is deeply buried and the rule
of man reigns high.

These honorable justices and judges became victims not of their own
interests but that of all of their colleagues and for the benefit and
proper functioning of the entire judiciary of South Sudan, for those
sitting in offices now and for the future generations.

His obdurate conduct of the judicial affairs has obfuscated and
completely obliterated the prospects of a judiciary in a democratic
society.

The judiciary cannot sustain its credibility on its own and win the
confidence and trust of the people if the credibility gap grows
steadily wider day and night between the institution and the general
public and more notably the people whose rights have been violated.

The judiciary which is the last hope to retrieve back those rights is
the one that reneged on peoples’ rights, then hostility will
eventually ensued and the private citizens will take the law into
their own hands.

In conclusion however, it is imperative to conclude that you’re heroes
who have been working under president Kiir’s government for the last
thirteen years and Chief Chan Reec for the last seven years.

You have undergone all hardships and other turbulent agonies in an
attempt to serve your people. I called you heroes because you stood
tall and lowered yourselves to deliver justice to those who need it
most.

I saluted and commended you for all the tireless efforts you made to
deliver justice to those who have been victimized by powerful and
wealthy people in this country.

I called you patriots because you haven’t taken up guns to kill
innocent lives just to get what you deserved but chose to use
democratic means to demand for what is rightfully yours.

Your records speak louder to us who have been on this journey of
delivering justice to the paupers with you than what Chan Reec and his
in-law have shamelessly done to you.