The legal deficiency in South Sudan
By Luka Biong Deng
South Sudan is one of the few countries in the continent that is well endowed with well trained lawyers. The culture of pursuing the legal professional is well rooted in traditional legal system where the traditional courts provide not only a platform for accessing justice but also for showing various skills of oratory, leadership and wisdom. Most traditional chiefs during colonial period and after independence would like their children to either become lawyers or medical doctors. When I sat for the Sudan Certificate Examination, my first choice was to study law at University of Khartoum but the admission office decided to admit me to faculty of economics although my results qualified me to be admitted to faculty of law. I opted to continue with faculty of economics as by then I was having not less than five half-brothers and cousins studying at faculty of law at University of Khartoum.
There is no doubt having such skilled and experienced legal human resource is a blessing in building a new state based on the respect of rule of law. Some aspects of state failure are closely connected to the culture of obedience to law and of accepting law as the basis on which to construe social relationships and to resolve conflicts. As the people of South Sudan have just celebrated the second anniversary of the their independence on 9th July 2013, it is important to assess to what level the new nation has been respecting the rule of law, particularly the constitution as its supreme law.
The Transitional Constitution that was drafted by qualified lawyers suffers from glaring deficiencies as manifested in the removal of elected governors of Unity and Lakes states. Unlike the Interim Constitution 2005, the Transitional Constitution grants absolute power to the President to remove elected state governors and to dissolve elected state parliament. This power is only exercised in the event of a crisis in the state that threatens national security and territorial integrity. Of great concern, the judgment of the level of crisis in the state is left for the President to decide rather than subjecting it to objective process to rationalize the exercise of such power.
Paradoxically, while the Interim Constitution restricted the tenure of the Office of the President to two terms, the Transitional Constitution left the tenure of the Office of the President unlimited. Also, the constitutional right of any aggrieved citizen to contest the act of the President that involves violations of the constitution and the Bill of Rights has been dropped in the Transitional Constitution. One glaring but deliberate flaw in the Transitional Constitution is for the President to appoint the ministers without consultation with the Vice President. With this oversight, the Transitional Constitution fails to recognize the fact that the Vice President becomes President when the office of the President falls vacant. Consultation in the appointment of ministers allows collegial and collective leadership in governing the state.
While the Interim Constitution restricted the powers of the President to remove only the members of the Supreme Court, the Transitional Constitution grants the President the power of removing any justice and judge. The recent removal of the First Class Judge Ajonge Perpetuar from the judiciary raises serious question about the independence of judiciary. As the President has the right to remove any justice and judge, but such removal is only effective in case of gross misconduct, incompetence and incapacity and upon the recommendation of the National Judicial Service Commission.
Given the fact that Judge Ajonge was appointed to the judiciary and then seconded upon the request of the Office of the President to be a legal aide, then the possibility of being incompetent and incapacity is ruled out by simple reasoning. As such the only reason for her removal is the gross misconduct that is an offence and punishable by law. As Ms Ajonge has not been charged before a court of law, then it is difficult to justify the gross misconduct without a court ruling or a thorough investigation.
Of late the members of the Anti-Corruption Commission have been involved in incidents that may not require their engagement as an independent institution. The role of the Commission is to investigate and prosecute only cases of corruption. The incident of stolen money from the Office of the President was a simple police case that did not warrant establishment of an investigation committee headed by the Chairperson of the Anti-Corruption Commission. Equally, the case of contract of USD 8 million could have been administratively investigated by the Ministry of Justice rather than forming another investigation committee headed by the Chairperson of the Commission.
In fact the Presidential Decree for lifting the immunity of the two ministers and the formation of the investigation committee for this contract have a lot of irregularities. Some legal analysts describe such irregularities as legal embarrassment. The constitutional reference for the President to use other functions as basis for lifting the immunity of the two ministers was legally inappropriate as exercise of such function must be prescribed by law. Paradoxically, there is no immunity act in South Sudan and as such the President decreed the lifting of immunity of the two ministers without a law. There was no need for the President to lift the immunity of the two ministers as the investigation is only administrative.
The real legal deficiency was clearly exhibited recently when new cabinet and advisors were appointed. The legal anomaly that occurred was quite shocking as one person was appointed as Presidential Advisor as well as a national minister. This underlines the quality of legal services being rendered to the President. Although the President corrected this anomaly after his meeting with the SPLM Caucus of the National Legislative Assembly, but it has unnecessarily humiliated the President before his nation.
The National Parliament, with the SPLM having absolute majority, failed to approve, by simple majority, a cabinet appointed by the President and the Chairman of the SPLM. This raises a fundamental question of whether the President was legally advised to consult with his party before announcing the new cabinet. Even a clear constitutional provision for representing women by at least 25% was not adhered to in the cabinet appointed by the President. The many and haphazard decrees of establishing new ministries and relieving and reappointing new ministers and deputy ministers painted rather bad image to the newest country. More decrees of relieving more ministers and appointing new ministers are expected as the National Parliament based on its background check and vetting of appointed ministers may disqualify some.
This account raises a fundamental question of what happens to the legal profession in South Sudan. If we look at the way the Transitional Constitution was drafted by some of our best lawyers and defended by almost the same lawyers in the National Council of Ministers and the National Legislature, then one wonders of what happened to our lawyers? One would say that the Transitional Constitution was almost meant to appease the President. Even the confusion that is happening in the formation of the new cabinet is largely created by lack of objective legal advice to the President.
The people of South Sudan should not take our lawyers for granted, particularly as we are now in the process of making the permanent constitution and appointing those who will be legal advisors to our public institutions. Law-making is more about creating system of rules of conduct to govern society and it cannot be dominated by one profession such as lawyers who may be better to interpret such laws. A teacher, nurse, veterinarian, priest and chief may be more informed than a lawyer to provide the context within which laws are made. As rightly stated by Dong Samuel of South Sudan Law Society that “Public distrust of lawyers reached record heights in the United States after the Watergate scandal. We have also seen its heights recently in South Sudan”. The lawyers of South Sudan have an uphill task of regaining the trust of the people of South Sudan by living up to the values and ethics of legal profession.
The author is a Fellow at Harvard Kennedy School. he can be reached at firstname.lastname@example.org. This article is also published by the New Nation Newspaper
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