South Sudan: The Debate Of The 28 States By Parliament Is a Sub Judice, Violation Of The Constitution And Independence of Judiciary
By Dong Samuel Luak,
Nov 18, 2015(Nyamilepedia) —- Article 124(5) of the transitional Constitution of South Sudan 2011 states the executive and legislative organs at all levels of government shall up hold, promote and respect the independence of the Judiciary.
The President of South Sudan Salva Kiir Mayardit on 2nd October 2015 issued a presidential decree establishing 28 states, which many regarded as a violation of article 162(1) of the constitution which recognized only 10 states under the decentralize system of the governance, The council of ministers approved the creation of the 28 states. The order was table as an amendment bill to the parliament by the Minister of Justice. Article 199 states, the Constitution shall not be amended unless the proposed amendment is approved by two-third of all members of each house of the National Legislature sitting separately and only after introduction of the draft amendment at least one month prior to the deliberations. Our parliament is set to debate the proposed amendment tomorrow after threats of dissolution of the parliament from President Salva Kiir to the parliamentarians if they fail to pass the proposed amendments.
The political parties alliances in South Sudan led by the Sudan People Liberation Movement for Democratic Change (SPLM-DC) petition the Supreme Court of South Sudan presided over by Justice Chan Reec who double also a Chairman of the Apuk community, its worth mentioning that the Chief Justice congratulated the President publically for creation of 28 States, the petition pray the supreme court to set aside the order for it violate the Constitution and the recently signed peace agreement in Addis Ababa, Ethiopia. Brokered by Intergovernmental Authority on development Agency (IGAD).
The international community and IGAD made several calls and appeals on the government of South Sudan to revers the establishment order to give peace a chance and end the suffering of the people of South Sudan. Civil society organizations made similar appeals and urge President Salva Kiir Mayardit to suspend the order creating 28 states. Until a people driven constitution process is established.
Our laws in South Sudan specially the code of civil procedures restrict any debate by all institution including parliament imposes upon itself, whereby debate is avoided which could involve a substantial danger of prejudice to proceedings before a court of law.
The Sub Judice convention may not be contained in the standing orders of the parliament, but is interpreted and applied by the speaker of the parliament according to circumstances. But our parliament should not debate this proposed amendment bill unless the Supreme Court disposes off the petition. If at all our parliamentarians are indeed representatives of the people and believe that judicial power is derived from the people.
The concept of prejudice to legal proceedings involves a hypothesis that a debate on a matter before a court could influence the court and cause it to make a decision other than on the evidence and submissions before the court. A danger of prejudice would not arise from a canvassing of the issues before the court or a prejudgment of the issues.
It will be devastating if the minister of Justice in South Sudan allow the proposed bill of creating 28 states be debated, while aware of the prejudice the debate may cause, because the president is faced with a very difficult situation, as indeed is the parliament. In all questions of sub judice you have to balance the absolute privilege of this place (parliament) with the absolute privilege of the courts. It’s a contest between the two. But the Independence of the Judiciary always prevails. Why hiring a lawyer if you can buy a Judge? Or the Chief Justice?
The writer is a lawyer can be reach on firstname.lastname@example.org