By Tong Kot Kuocninm,
July 14, 2017(Nyamilepedia) —– In Africa today, many countries pride themselves on Constitutions that glow with hallowed provisions guaranteeing Bill of Rights, rule of law and justice. Very important and quite prominent amongst these provisions are the provisions that guarantee the independence and impartiality of the judiciary upon which the today’s democratic scenario is founded. In this article I shall shed light on two important words which appeared in the heading of this article –judiciary and its politicization. The later, according to Oxford Dictionary, defines “…politicize …” as to cause to become politically aware, to become interested in or active in politics”. Politicization is however frequently used as a derogatory term to describe a process wherein a political label is ascribed to a person or to an issue for instance to politicize an issue or to indoctrinate or to brainwash a person so as to effect a radical transformation of principles held, his/her character, attitudes and beliefs.
The question that immediately arises is: is the judiciary of South Sudan in crisis or politicize? This question stems from the growing public outcry with regards to the performance of the Chief Justice who has been accused many times of having compromise his position as well as the independence and impartiality of the judiciary and the diminishing public trust and confidence bestowed in it as the only institution to uphold and protect constitutional rights in the country.
It is true that our judiciary is facing a lot of hurdles in discharging its duties and the most pernicious of these hurdles is that of undue interference or influence in one form or the other. Undue interference with or influence on the judiciary has been outlawed in most African Constitutions, but that notwithstanding, in our world, there is a growing tendency and propensity on the part of the executive to exert political leverage or control over the judiciary; this exercise can come in diverse ways or forms like threats, denigration, deprivation of necessary resources or marginalization.
This happens when politicians in their pursuit to acquire and retain executive and legislative power, they are often tempted to exert political leverage over the judiciary. This is because, to an unscrupulous politician, independence of the judiciary is a stumbling block that hinders his quest for power; this independence is something that needs to be whittled down so that it poses no threat or danger in the exercise of executive or administrative powers of government.
I admit that our judiciary is still in an embryonic development as far as democracy is concerned and still evolve to dynamic institution capable of discharging its functions independently and impartially. Our judiciary is at a cross road and a crisis is expected to happens if truly the judiciary stands on its feet and exercise its judicial power of review over executive or administrative acts/decisions or when the courts declare as unconstitutional acts of parliament or ultra vires any ministerial regulation.
In many African countries, the role of the Attorney General is very crucial in ensuring that undue political interference or politicization of the judiciary does not occur because both malpractices can occur openly or behind the scenes but once their occurrence become public knowledge, the government must take active steps to condemn them as per the law. If there is in this country, in the trilateral relationship to other organs of the state, it is the judiciary that is weak, timid and secretly politicizes where the executive has naturally gains supremacy and has managed to manipulate the judiciary for political ends with regards to constitutional matters before the judiciary more particularly the constitutional panel within the supreme court.
Politicization of the judiciary can never be justified regardless of the popularity or goodness of motive because the main objective of the party politics is to gain executive and legislative power under the constitution; and to seek to manipulate and draw the judiciary into the murky puddle of politicking which is both unconstitutional and immoral, this is so because the function of the judiciary is not to gain executive or legislative power but to administer justice according to law under the constitution impartially, without fear, favour or prejudice. This is because justice and politics are often not in harmonical consonance or unison. Judges are trained in the law, politicians need no training; it is often dog-eat-dog scenario.
When high profile political cases that come before the judges it leave or put them in no-win quandary. If the decision of the judges favour the ruling government, the judges are castigated as executive-minded and biased but if the decision of favors the opposition like the current case brought before the constitutional panel of the Supreme Court presided over by the Chief Justice by the alliance of opposition political parties, the judges are labeled as anti-government or incompetent. In the next discussion, I shall discuss how politicization of the judiciary can occur, how can politicization of the judiciary can be tackled and the dangers of politicizing the judiciary.
How Politicization of the Judiciary can occur
In the proceeding part of this article, I shed lights on the politicization of the judiciary and its independence as per the provisions of article 124(1), (5), (6) & (7) of the Transitional Constitution of the Republic of South Sudan, 2011. In this subsequent part, I intend to look at how politicization of the judiciary can occur. In many constitutions in Africa and world over, the executive plays an important role in the appointment of judges and especially the Chief Justice. In Lesotho for instance section 120(1) of the constitution stipulates that: The Chief Justice shall be appointed by the King acting in accordance with the advice of the Prime Minister. This is because the Prime Minister being the head of the executive and leader of the ruling political party has the prerogative in advising the King as to who is to be appointed Chief Justice, a crux which smacks off party politics and become a contentious issue in certain way.
In South Sudan, Article 133(1) of the Transitional Constitution gives powers to the president of the Republic to appoint Chief Justice and 133(2) empowers the president to appoint Deputy Chief Justice and Justices of the supreme court, justices of the court of appeal and judges of the High Court having competence, integrity, credibility and impartiality in accordance with the constitution and the law. This is because he (president) has constitutional prerogative as the head of state and a leader of the majority and ruling party, to appoint who should be Chief Justice of the Republic. However, many celebrated and renounced constitutional law lawyers argues that what is crucial is not the manner or modus of appointment that tends or is likely to politicize the office of Chief Justice but what counts in the long run is the integrity, probity, honesty and other virtues of independence and impartiality of the appointee that matters to ensure that position of Chief Justice is not compromised.
It is when the judiciary is embattled or under siege that the pivotal but protective and defensive function of the Chief Justice as the head of the judiciary comes to the fore because individual judge should not be left to his/her own devices against scurrilous attacks for performance of his/her functions. It is generally accepted that the judiciary is by nature apolitical and much of the legitimacy of the court’s decisions rests upon the fiction that it is not apolitical institution but exclusively a legal one. Judges are supposed to be non-political appointees, recruited through a competitive examination and follow special training. Judges as arbiters are not expected to participate in politics because judicial independence implies independence from political influence.
It is in this way that the politicization of the judiciary can rear its ugly head in many devious forms including marginalization of the judiciary by throttling its resource base-rendering it complaint and beggarly and gratuitous labeling of judges as anti-government or as executive-minded, reactionary, and counter-revolutionary or as timid, corrupt or as incompetent. All these virtues qualify as undue interference and as antithetical to the spirit of the constitution whether they emanate from government circles or from opposition or other pressure groups. It is on this basis that the politicization of the judiciary can occur and thus can never be justified regardless of the popularity or goodness of the motive because the main objective of party politics is to gains executive and legislative power under the constitution; and to seek to manipulate and draw the judiciary into the murky puddle of politicking whereas the main function of the judiciary is not to gain either executive or legislative power but to administer justice according to law under the constitution impartially.
Thus it is through appointment process of Justices and Judges that the politicization of the judiciary occurred in the sense that the executive tries to bring in those judges that cannot turns their back when it is faced with critical policy issues which needs and involves adjudication and interpretation of the constitution and the law, the case in point being the constitutional petition before the Supreme Court Constitutional Panel on the Constitutionality of the Presidential Decree creating 28 states in South Sudan. It is therefore important to always sensitize the executive and legislative branches about the importance of judicial independence and of impartiality in democratic governance. Indeed many politicians loathe the idea of judicial independence out of sheer ignorance, stereotype or other grudges or misconceptions for instance fear jealousy, impunity and self-righteousness.
The politicians whether in or out of governance must be sensitized that the courts are the bulwark of human rights and even of their executive power; and that no judge should ever be ‘their man’ or ‘woman’ but a peoples judge at all times. Under such circumstances, the judiciary seems to be the last resort for thousands of South Sudanese people whose human rights and freedoms are violated on a regular basis because as a neutral arbiter, it is presume to stand a best position to protect human rights and check power abuses. This is because judges are presumed to be learned, impartial and apolitical; as such they are free to judge without fear or favour. Hence, the judicial organ is often regarded as the least dangerous branch of government as it neither controls the purse nor the sword but unfortunately the effectiveness, independence and impartiality of the judiciary has been compromised because it is internally reactive than active, incompetent and succumbs to external political pressure. So, for the judiciary to play the role incumbent upon it the environment has to be favorable and judges have to strife to be competent, neutral, impartial and independent. In the next part of this article, I intend to look at how politicization of the judiciary can be tackled and therefore the dangers of politicizing the judiciary.
How Politicization of the Judiciary can be Tackled
As we had a look at the politicization of the judiciary and how its politicization occurs, I beg your indulgence to critically look at how politicization of the judiciary can be tackled as this is an important task that needs resolve and commitment. How to tackle politicization of the judiciary however requires a combine effort of all the members of the judiciary who should all be sensitized about their functions as judicial officers. This needs a true ethical foundation which is very important in galvanizing the institution of the judiciary.
The judicial oath of office taken by the judges upon entering their judicial offices should be a ringing bell emboldening and fortifying the members of the judiciary in the discharge of their functions as judicial officers. To tackle the politicization of the judiciary, the Judicial Service Commission which is such an important organ under the constitution must always be vigilant in the appointment process so that only competent, fit and proper persons receive the commission’s recommendation to the president.
A full interview on important issues and aspects of judicial life must take place for each and every appointment. No secrecy should be countenance nor should political nepotism or patronage allowed to disadvantage the fit and proper persons who should have been appointed on a meritocratic way. Our Judicial Service Commission is so redundant and remains a bedridden sick mole awaiting its befitting burial. It is this institution that is supposed to supervise and look in the performances of the judges country-wide but it remained tooth-brush of the Chief Justice. Thus, to tackle politicization of the judiciary, a positive climate of integrity must prevail both in the judiciary and the executive. This is essential if not critical in order to forestall all sinister attempts to corrupt the judiciary politically.
This is imperative because the oft vulgar and vitriolic party dynamics and polarity can adversely affects the judiciary’s independence and impartiality because to politicize the judiciary is clearly unconstitutional and such sinister overtures are a clear admission that the government lacks legitimate authority in its governance. As the former Chief Justice of Lesotho Pius Langa opined; ‘an intimidated judiciary subservient to those who wield power becomes an extension of the executive and cannot be trusted to deliver justice’ judges should act without bias and should not be susceptible to external pressure or influence…judges should not succumb to any kind of pressure, criticism or intimidation from whatsoever source. Hitherto, politicization of the judiciary generates judicial and political corruption which can permeate the entire justice system corrupting the staff and lowering morale and productivity.
When corruption sets in, like cancer, it soon becomes systemic and endemic with disastrous results to a budding democracy. Therefore, politicization of an institution that should manifest honesty and impartiality always emanates from moral decadence prevalent in the society and it is decadence that has no respect for constitutionalism, legality and the rule of law. In hot pursuit for aggrandizement, unscrupulous politicians will unashamedly target judges to win them to their political philosophy and influence; and once under their beck and call then they can twist judges around their little fingers in the manner of a quivering dog at the sight of a raised whip or a mendicant uncontrollably salivating at the sight of a tantalizingly titled bowl of soup. Thus, far be it from every one of us therefore to condone subjugation even to the slightest degree, of high judicial principle founded on sound ethics to barefaced pursuit and acceptance of unorthodox political favors for satisfaction of love and glory and self-aggrandizement on the part of a judicial officer. Preserve the integrity of the institution, protect and defend it. In the next part of this article, I intend to look at the dangers of a politicized judiciary and therefore the presumed legacy of such an important institution which has vanished given the inertia of the judiciary in protecting the constitutional rights and fundamental freedoms of South Sudanese.
Dangers of a Politicized Judiciary
In South Sudan, a troubling trend has developed in the Judiciary of South Sudan over the years and accelerated recently by a new pinnacle under Chief Justice Chan Reec Madut. This troubling trend has advanced a pro-cooperation agenda at the expense not only of the opposition groups but of fundamental democratic institutions. To many South Sudanese, the Judiciary is the last hope for the people of South Sudan to get justice but the price of the institution’s head cooperation with the executive has been very high on South Sudanese. It is not enough to proclaim rights, they must be protected. To declare that we are a ‘state of law’ or democratic does not make us one.
There is a generalized lawlessness in our society and with the weaknesses of the other controlling forces, the courts have to be the last resort for the guarantee of the rule of law; but if the judiciary is politicized and becomes weak, then those guaranteed rights are vulnerable to infringement and hence total violation by the powerful. The judiciary is supposed to be a valuable asset for the protection of human rights and to check power abuse thoroughly. But, extrinsic and intrinsic factors have however made our judiciary become unable to play this role effectively. The danger is that the citizens of this country are left helpless with the impotence of the justice system where many resort to other means of taking law into their hands as a manifestation in a bid to obtain satisfaction. An effective judiciary is therefore of vital importance as it inspires confidence in the people. It serves as a check by preventing the concentration of power in government and its subsequent abuse.
When courts challenge governmental action, they validate government’s status and legitimacy and provide an important element of political stability. However, that’s not being the case with our judiciary. Public opinion’s polls on the streets and on social media reveals that the trust and confidence of the people in the Justice sector (the judiciary) has drop to zero percent when the current Chief Justice took over and more especially when he (Chief Justice) openly and public knelt to his knees and worship his political god-father, the president of the republic when the later issued a presidential decree creating 28 states in the country dismissing longstanding trust and confidence in the Judiciary in the hearts and minds of the people hence relegating the image of the institution to be a subordinate of the government and not an independent institutional organ of the government.
This submission by the Chief Justice has raised public eyebrows and the solicitude of the people with regards to the fundamental role of the judiciary in protecting constitutional rights and democratic consolidation in the youngest nation. This is further manifested by Supreme Court twisting and cleverly deciding on most contentious constitutional cases brought before it either by members of the same organization or the opposition where many commentators have been quick to remark on the weakness, partiality and insubordination of the judiciary which has given in and relinquish all its institutional integrity and independence as an institutional organ of the government. The Chief Justice is in a position to promote a strong understanding of the place of the court in the legal system and of values of justice and impartiality the court proclaims mainly through their judicial work. This is important with an unpoliticized judiciary because it’s a wider responsibility to ensure that the values that court espouses are understood by all who are involved in the work of the court and reflected by the manner in which people are treated when they have contact with the court.
There is a problem if people who come to a court think they have not been dealt with fairly and courteously or in the manner in which one would expect an institution committed to the administration of justice treat them. We live in an age of accountability. What is required of judges is changing. Sentences are widely discussed and criticized and are a topic about which everyone has a view. What judges say in court is not immune from criticism. Judges have obligation to publish full reasons for their decisions which are often subject to appeal and criticism. A judge must refrain from making comments on matters of political controversy, if they do then they have definitely compromised the impartiality and independence of the judiciary because the society will resort to the same court and seek judicial or legal opinion. For society to maintain its respect for the law, the law must bear relevance to the society to which the court is its custodian.
There are many occasions upon which a judge is required to decide what is just, what is fair or what is reasonable. In cases of this kind, a judge necessarily seeks to apply basic values representative of community values. In doing so, he/she cannot merely reflect on transient shifts in public opinion. The judge must objectively determine what is just, fair or reasonable so that while reflecting the basic values of the community, the judge does not allow him/herself to be influenced merely by his allegiance to the leader of the country through temporary shifts in public opinion or by prejudice, emotion or sentiment. The guiding principle must always be true adherence to the rule of law. The mentality of the judges more especially the Chief Justice must change; they have to be aware of the sacredness and strategic place of their mission. They have to be competent, neutral, impartial, in a nutshell, independent. It is only through these conditions that they can be the last resort and hope to South Sudanese people of all walks of life who are watching them day and night.
Tong Kot Kuocnin is a Master of Laws (LLM) Candidate at the School of Law, University of Nairobi. He can be reached via: tongbullen@gmail.com
