South Sudan: The Rule of Law and its Supremacy

BY: Cde. Bramatali Wani Lo-Lipo Lo-Lisi, JUBA, FEB/23/2014, SSN;

As I continue to profoundly and justly reflect on my beloved Country, adulterated and betrayed as manifested by the lurid, ugly and horrid events of Sunday, 15 December 2013 hitherto; this time I chose to contemplate issues around The Rule of Law.

In my apposite notion, just to delimit, it is legislative, executive, judiciary as well as civil society decisions based on application of known legal principles.

Allegedly and for real, South Sudan legal principles are enshrined in the “Transitional Constitution of the Republic of South Sudan, 2011;” it is the supreme law of our independent sovereign State; remember, NOT the “Interim Constitution of Southern Sudan (ICSS), 2005” which with all that came with or in it is defunct since it has been repelled!

Perhaps, all will by and large concur that A. V. Dicey is credited for the fame of “the rule of law” in modern times.

Nevertheless, development of this legal concept can be traced through history to many ancient civilizations, including indigenous Europe, Asia, and Africa including South Sudan.

In indigenous African wisdom, it is regarded that superlative form of government is that ruled by the erudite chief (ibid, 2011, p. Art. 98 (b)(d)).

This is augmented by the adage: the chief’s wisdom emanates from the people in whom the sovereignty of the Constitution is vested (ibid, 2011, p. Art. 2). And what is our reality?

In Europe Aristotle completely opposed excessive powers by any highest powers-that-be beyond defending and serving the rule of law.

I am sure Aristotle questions and teaches us to query any excessive powers accorded presidents (ibid, 2011, pp. Art. 3(1), 101). As the cliché states: absolute power corrupts absolutely, I agree with Aristotle; do you?

Roman statesman Cicero said, “We are all servants of the laws in order that we may be free.”

That is valid in South Sudan, for as citizens in whom constitutional sovereignty is vested and in whose will authority is derived if there are grievances against the President irrespective of his/her immunity (legibus solutus) (ibid, 2011, p. Art. 103 (1)) you can sue him/her (ibid, 2011, p. Art. 20).

This is the concept of the Supremacy of the Law: all persons and governments are subject to the law. “I’m fully accountable to the law … The most important Office in America is the Office of the citizens, Not, the Office of the President.” (Barack Obama, Bama, 19 November 2012).

Besides, “in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” (Paine, 1776)

Modern legal theorists inform South Sudanese to make prospective and well-known laws with characteristics of generality, equality, and certainty (formal approach).

Therefore, the absence of at least a known Government Gazette threatens our laws as “bad laws”.

Then in contrast, South Sudan is a Society under rule by law where the law is a mere tool for Government, which suppresses – no check against abuse of power (rule of law) (substantive approach) – have those putrid episodes that we are in to date illustrated something here?.

For that reason, it should be abundantly understood that the rule of law can determine the quality and good governance of South Sudan. All Government agents should have confidence and abide by the rules of Society.

As citizens we should trust the quality of our social contract enforcement by the police and the courts that should reassure us prospect of respect for the law for peace to flourish.

All government functionaries, including the President (The Transitional Constitution of the Republic of South Sudan, 2011, p. Art. 99, the Justices of the Supreme Court, and all members of National Legislature, pledge first and foremost, to uphold the Transitional Constitution.

These oaths demonstrate the superiority of the rule of law as opposed to the rule of any human leader. Do we realize that supremacy or have we made ourselves as persons absolute?

The separation of powers is key here – the independence of judiciary and parliamentary autonomy, which provide social, economic and cultural conditions conducive to human dignity as well as: equality before the law, accountability to the law, fairness in the application of the law, participation in decision making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

How about “Our: two-tier parliaments – the Council of States (CoS) and the National Legislative Assembly (NLA) – are they aware of this critical fact vis-à-vis the discharge of their duties and responsibilities?

To what extent have they been causal factors to the current excruciating debacle experienced by our State up till now?

The judiciary in South Sudan as a transitional and developing country tends to be inferior to the executive.

This threatens the rule of law and it can produce “judicial corruption,” which is more dangerous than “executive corruption,” in contrast to corruption by private actors, for it strangles effective court systems thereby rendering them useless to civil society in situations of unfair government spending and executive impoundment of previously authorized appropriations.

In South Sudan today perhaps including Juba, there are tells of arbitrary arrests; secret trials; indefinite detention without trial such as the case of the so-called failed coup detainees; cruel or degrading treatment or punishment the “genocide” committed notwithstanding.

These were horrifying occurrences of the erstwhile oppressive Sudan that we together in different ways dedicatedly combated.

South Sudan and her people have suffered so profusely then; thus, such should be the least despicable barbarisms to mate against any citizen of South Sudan.

Remember that we are a volatile transitional State with all the fragilities so much caution is demanded.

Today we have important law called South Sudan Political Party Act, 2012. Consequently, the South Sudan Political Party Council and South Sudan Electoral Commission have been decreed.

So the stage is set for registration of political parties for the first time in Republic of South Sudan.

Alas, no sooner had this procedure been honoured than the SPLM, alleged “Ruling Party” caused and plunged the entirety of the State of South Sudan into blood-letting!

Who is responsible the Fellow Compatriots? Who is a nationalist then?

It is a trying moment for us as a Country; it is a make-or-break moment, beware! However, all citizens and governments should be responsible and commit to creation of a perpetual peaceful State of South Sudan that will tick in the community of States.

Chiefly, the “SPLM” as a majority party Not the “Ruling Party” in power today has the onus to provide leadership and so lead. So, quickly legitimize the constitutionalism to ensure constitutionality of the transfer of power and our ability to find successor leaders.

In this regard, my meticulous researched position is: – South Sudan demands none but a Federal Constitution above all else.

Besides, clearly inform the people that the military, the SPLA, is a national servant under the masses, the civilians (ibid, 2011, p. Art. 3 (1)) and Not an army of any political party irrespective of past links whatsoever!

The writing is valiant on the wall that intimidation or corruption in the declared upcoming electoral process are intact nonetheless should be avoided at all costs.

Let us unite in common purpose to support and stick to the Rule of Law in all circumstances in all places and in all times.

I suppose that the National Police Service (NPS) must be made truly national in character so it should have or adopt a strategy while performing their duties and functions in pursuit of the rule of law. While policing they should know that minimum legal instruments exist at their disposal.

In addition to the Southern Sudan Code of Criminal and Civil Procedure, 2008, TCSS restrain arbitrary or unjust exercise of Police including other security agencies’ powers of arrest, search and seizure and use of force (ibid, 2011, p. Art. 155 (3) (5) (6)).

Otherwise, there seems a growing trend of tribalism in the National Police Service (NPS), other security and organized agencies hence defeating the national vision so far (ibid, 2011, p. Art. 155 (1)).

Recruitment must not base on nepotism or social-welfare or appeasement – consideration of important benchmarks such as education, moral turpitude and other relevant eligibilities is fundamental.

Particularly, the failure to indeed decentralize (ibid, 2011, p. Art. 155 (1)) the police only help precipitate the rise in violent crimes in the Country as such the role, administration and scope of police authority will increasingly come under question and may lose public legitimacy.

The National Police Service (NPS), other security and organized agencies in my view entail a protection department whose mission includes providing protection for executives such as president, vice president, speaker, ministers, governors, commissioners, visiting foreign dignitaries, and other high-ranking individuals.

That is necessary because such individuals are entrusted with fundamentals of public assets and liabilities.

Sometimes it is laughable though in South Sudan of the current moments that all these security aides of the State are utilized as private guards moreover paid by our public coffers.

For example, citizens of South Sudan are being harassed, attacked and most cased killed in cold blood by criminals of whatever sort defenselessly while public hired and paid security persons could be next guarding some “boss” within the same realm of society; what a shame and scandal!

All in all, our President, the Fountain of Wisdom, is not subject to a person but in no uncertain terms to Almighty and the Law of the Land.

This is a demonstrative validity of the concept of the rule of law and Supremacy of the law – all persons, President inclusive, and government are subject to the law.

Therefore, in order for the law to exhibit its full prowess in South Sudan, it is suggested that it must be a good and operational law.

Thus, we demand for effective and farsighted parliaments and good law-enforcement agencies as the police in South Sudan.

NPS therefore should rise to the occasion to enforce the law, protect property and life, and limit proliferating civil disorder around South Sudan hitherto.

South Sudan Government should expedite establishment of a Government Gazette in order for our laws to be prospective and well-known with characteristics of generality, equality, and certainty to circumvent the present gross abuse of power (rule of law).

All Government institutions, functionaries, agents including NPS should have confidence in and abide by the recognised legal regime in our Polity and similarly all the citizens should trust in their participation in quality fulfilment of their part of the bargain of the national social contract thus keen partners like the international community should solicit extra facilitation accordingly. God Bless South Sudan!

Cde. Bramatali Wani Lo-Lipo Lo-Lisi
+211 95 528 5356
Juba, South Sudan

2 Comments

  1. monychol says:

    Wani, all these procedures of operating civilities are what we needs in South Sudan .Nonetheless ,savages individuals paid with our money such as those in the current dangerous and hostile administration of Salva Kiir set up in August last year would not allows anything like that in South Sudan .The malicious ,annoying and irritative individuals such as Makuei Lueth, Kuol Manyang, Aleu Ayeny and not the least but most dumb the president are the liabilities of the Presidency and cancer in the flesh of South Sudan .

  2. Wiyual Mading says:

    I think the legal theories you have stated have no place in our land Mr. Wani, example of Obama is not in place because he can be criticized legally and he cannot arrest you., But why Kiir suspended Pagan and his lawyers were terrified by security till they run away for their own life? Why would the curt dismiss the case opened by pagan again President and called it a administrative?
    From were do you get a logical article to remove elected governor, and for what reason?
    Obama has no tribe and has no militias call Duot Ku Bany, Mathiang Anyor and Gel Weng. But Kiir is a tribal leader, crushing whoever he sees a threat to Dink rule, now Nuer have finish, you Equatorian be careful, you are next. espcially Lubong and Baksoro.

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