By Tong Kot Kuocnin, LLB (Juba), LLM(Nairobi), Specialist in Law, Governance & Democracy, University of Nairobi.
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.