BY: Dr. Lako Jada KWAJOK, FEB/21/2016, SSN;
Being trustworthy is not something that you could inherit, buy with your money or be awarded to you by someone, the community or any other entity. It has to be earned following numerous interactions between the person to be trusted and his or her colleagues in workplace or with members of the community.
That person would undergo a sort of unintentional scrutiny of his or her actions and decisions that would shape at the end of the day his or her public image.
It’s a slow process where confidence and reliability are central to it flanked by virtues such as honesty, selflessness, incorruptibility, fairness and the ability not to be afraid of telling the truth.
It may take a while to gain the trust of the people around you – or it may entail a lifetime in the case of institutions, organisations or governments to earn the confidence of the communities or the populace.
When a person is deemed trustworthy, it means the society has passed a favourable judgement on his or her moral standing in its entirety. However, when people lose trust in someone – it will be forever.
Thus, the question that comes to mind is – was it worthwhile taking the issue of the controversial 28 states to the Supreme Court of South Sudan given the fact that the trustworthiness of the Chief Justice who presides over the court is questionable?
The media widely publicised the endorsement of the presidential establishment order for the creation of the 28 states by the Chief Justice. It came in a congratulatory message to the president in his capacity as the head of his clan.
Now, how feasible that a different verdict would result from a court chaired by the Chief Justice following his open support of the presidential order?
And should the Supreme Court rule favouring the 28 states, which is very likely, what would the opposition parties say? Would they say it’s a biased ruling from a kangaroo court?
Then, would they not be challenged by the question – Why did you take your case to court in the first place when you well know that people have lost trust in the Chief Justice a long time ago?!
Moreover, it would give the regime a most valued legal backing and extra “ammunition” for its relentless propaganda.
Chief Justice Chan Reec has been the centre of controversy on numerous occasions. Judge John Clement Kuc resigned in March 2013 accusing the Chief Justice of nepotism, lack of transparency and incompetence.
In his resignation letter to the President, Judge Kuc said: “I do not want to continue in a position where operation of the court is hindered by directives by persons within the executive branch of government using the judiciary as a rubber stamp.”
He added… I quote, “The current situation, he said, the rule of law has been replaced with the rule of tyranny.”
These are the words of an insider which are very revealing of the ignominious state of affairs within the judiciary under the leadership of Chief Justice Chan Reec. I don’t know much about Judge Kuc but his words and the bold decision he took, gave the impression of an honourable fellow citizen.
It is clear that our judiciary has lost the service of an honest judge who seemed to be more capable of a leading role than the current Chief Justice.
The following are excerpts from the Transitional Constitution of South Sudan: “the Supreme Court has original jurisdiction to decide on disputes that arise under this constitution and the constitutions of states at the instance of individuals, judicial entities or governments. It adjudicates on the constitutionality of laws or provisions of laws that are inconsistent with this constitution or the constitutions of states to the extent of the inconsistency. Furthermore, it states – The Bill of Rights shall be upheld, protected and applied by the Supreme Court and other competent courts; Human Rights commission shall monitor its application in accordance with this constitution and the law.”
But did the Supreme Court follow the constitution in its ruling in the case of Pagan Amum, the SPLM Secretary General then in October 2013? In august 2013, Pagan Amum sued President Salva Kiir in the Supreme Court for curtailing his Freedom of Expression and Freedom of Movement.
As we know, a gag was imposed upon him, his movement was restricted and was literally under house arrest. On 30/10/2013, the Supreme Court of South Sudan threw his case away saying that he has not exhausted all the avenues in search of justice.
It was an obvious example of an individual seeking justice following infringement on his civil liberties that are enshrined in the constitution, by the executive branch of the government. There are no other competent courts in the country that has got the jurisdiction to deal with the said case.
At the time, Lawyers for Democracy in South Sudan which is an independent organisation, condemned the court ruling; accusing the Supreme Court Justices of acting in fear and failing to live up to their mandate.
As the whole thing played out, Pagan Amum ended up with no court in the land of South Sudan willing to hear his case.
As we speak, former Governor of Western Equatoria State (WES), Joseph Bangasi Bakasoro and Dr Leonzio Angole Onek of Juba University are both languishing in secret detention sites run by South Sudan National Security Services. Since their arrest in December 2015, no formal charges have been brought forward by the government against them.
The Supreme Court never weighed in on the matter so far and continued to be silent on two glaring cases of violation of the Bill of Rights.
Notwithstanding being a well educated person with reasonable experience, CJ Chen Reec’s tenure in office has been quite dismal or even disastrous. A decade or so in office saw no prosecution of corrupt officials and poor performance regarding enforcing the rule of law.
More troubling is that allegations of corruption and nepotism have tarnished his reputation. In March 2013, the Chief Justice found himself in the midst of sharp public criticism and tried in vain to deny nepotism in his decision to appoint his daughter as a Legal Assistant.
Here are excerpts from a lengthy statement by Justin Deng Mawien, a law graduate from Warrap state, “I couldn’t believe Justice Chan would do that when I saw the name of his daughter on the list of those he appointed. I know her myself. They were (Justice Chan Reec’s children) by far behind me. I finished high school when they were still in Primary. I finished university when some of his children were sitting Sudan School Certificate. I have not gotten a permanent job until now because of the claims of lack of jobs. Where did these jobs in which they are employing their own children come from? This is a clear act of nepotism. Just tell me what does this mean, you people in the media? To me it’s pure corruption and nothing more.”
With the above account, it’s no wonder that the Chief Justice has lost esteem among the majority of the South Sudanese people. In a democratic government he would have been made to resign his post or forced into early retirement as he has become a liability to the judicial institutions of South Sudan.
The National Alliance of 18 South Sudan political parties has demanded Chief Justice Chan Reec not to chair the petition seeking suspension of the presidential establishment order for the creation of 28 states. They have accused him of turning the Supreme Court into an institution devoid of impartiality.
The right thing to do would be for Chief Justice Chan Reec to recuse himself from the case as there is a clear conflict of interest here.
There is no guarantee that this will happen and even if it did unexpectedly, the opposition parties well know that President Kiir appointed the other Supreme Court Justices.
Therefore, the absence of the Chief Justice from the court hearing makes no difference concerning the outcome. It’s a futile approach to the matter by the opposition parties.
Rather than wasting their time in the pursuit of a solution in a biased and dysfunctional Supreme Court, they should focus on supporting the full implementation of the peace agreement both in spirit and letter.
That alone will provide the remedy for the conflict arising from the 28 states’ issue.
Dr Lako Jada Kwajok