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,

Dong Samuel Luak, author (photo credits: supplied)

Dong Samuel Luak, author (photo credits: supplied)

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 dong.luak@yahoo.com

4 comments

  • Louis Michael Nyarsuk

    Politics is an art not scince which require impirical evidients or math. And there is no right or wrong answer in Politic. It is like playing cards or chess. You need to plan your move or else the oppoent can overrun you. We in the IO came up with self determination and was hijacked. We proposed 21 States and wes hijacked too and inflated through plagarism to purport an aceptable theory. Now majority of the states and people are buying to what ever form of states (28) just to devolved powers to their ethnic group. And infact many tribes in south sudan are rivaling against each others within a state. For example Shilluk want the governorship of Malakal, Nuer want the govrnorship of Malakal, and Dinka want the governorship of malakal. Malakal is being contested by these tribes. Benui is beeng contest by Nuer from Mayom, and Dinka Parring against Nuer from Leer. Jonglie states is been contested by Murle Nuer, Dinka Bor and Dinka Abilyang of George Othor which resulted in to the formation of rebellion which the Goverment had failed to overcome for years; Ie (South Sudan defence force and the Cobra rebellion of Yau Yau). Even us in Cenral Equatoria the Bari speakers are not please with each others siply because Bari had governorship of Central Equatoria for long time before giving it up to Mundari. Some resort to calling Bari as the Dinka or Equatoria. The Lotuko of eastern Equatoria are not please to be governed by Toposa, the Madi and Acholi feel marginalized by the former. The Muru are not please to be under Zande, and would prefer Mundri States, the Peretit of Wau and Raja are afraid of Dinka infiltration to their territory. So the fear of domination is the main social phobia that brew hatred and incite tribal sentiment and ethnic strife or rebellion. The piont i want to drive home to my fellow supporters is that, the SPLM Juba are appealing to tribal sentiment and are trying to steal the balll from IO to score a goal. Intead of whinning and disrupting the same core values of which we proclaimed; we should enter in to dialogue with SPLM Juba to discuss the loofholes and defence our rational of 21 Sataes. Otherwise Juba wil take the credit for establishing the 28 states. We should also unederstand that, to rejected the 28 states outright which emboied our proposed 21 states will backfire on SPLMIO if the Juba got away with it. IO should also understand that ,they are in partneship and since we all share the same idea of increasing the States from 10 to 20+++ we should not then back away from it. Besides IGAD is not doing much to pressure the Governement and nobody from heaven will come to enforce it unless we go back to war. And since Kiir is still in the driver seat, he stand upper hand to twist and overturn the truck of peace. It is better for IO to renogotiate this 28 states the way how the security arrangement was renogotiated. Finally, IO asked for 21 states during the IGad peace negotiation but did not get it, because the other partner refused. Now he accepted our demand let go for win win solution rather than dragging our feet back and forth. The author is a PhD scholar of Political Philosophy on the Effect of Ethnic Chauvinism and Polarazation on Democracy in Afirca with special Reference to South sudan. (Tribal Democracy).

  • Louis Michael Nyarsuk

    Legislations or laws are enact by legislatures or legislative Assembly base on majority vote. Whether the law is good or bad, once enacted it become a law. And that is what the Legislature is going to do in few hours in South Sudan. The same legislative body amended the constitution to extent the tenure of office of the president; tomorrow they are going to amend the constitution to increase the power of the president again to appoint governors, and State legislatures, and members of the council of state.
    Democracy is the rule of absolute, because the majority could become absolute, dictators, and tyrants.
    Plato said: “Democracy is the rule of animals, because 99 animals can shake their heads against one animals which is gifted with knowledge”. his concept of philosopher king. Once the chairman of the college of law told us that, “what was a law yesterday is not a law today, and what is a law in other countries may not be a law in another. The law in Southern United States legalized capital punishment or death penalty, whereas death penalty in the northern parts of United State is illegal. Sharia law is acceptable to Arabs and Muslims whereas non Muslim and non Arabs are against it.
    Ours is a pitiable suitable.

    • No more doubts according to leading Government When Kiir is over all he will did what every he likes but if Not Kiir and he is other man it will be as night dream for fuck a creation of 28 States We did not live under man we lived under super-um Being God Where is Dr. John Garang & William Nyuon who threatened their life? if so Southern Sudanese couldn’t be feed with Un boiled food