The independence of South Sudanese Judges: a constitutional and legislative perspective
By Tong Kot Kuocnin
May 31st 2018 (Nyamilepedia) – Conceptually, judicial independence has been defined in various ways by legal theorists and philosophers. Admittedly, the principle is very extensive and complex, and this creates enormous definitional difficulties.
However, the common thread that runs through the various definitions is an acknowledgment that judicial independence exists at two levels: Firstly, at an individual level – the ability of a judge to impartially and independently apply his or her mind to a matter without undue influence; and secondly at an institutional level – the ability of the judiciary to control the administration and appointment of court staff.
The principle of judicial independence is a fundamental and widely cherished element of democracy. As a result, it features quite prominently in many international legal instruments. It is also protected and guaranteed by the South Sudanese Constitution under Article 124 and pertinent relating statutes.
Considering whether that protection is sufficient in the South Sudanese context, is the basis of this article. In making that determination, we begin from the premise that judicial independence entails the ability of a judge to make a decision without undue influence and interference from internal and external forces.
Moreover, the judge must have security of tenure and financial security in order to guard against bribery and related interference and corrupt conduct. Furthermore, the judiciary must manage its own administrative functions and activities.
In essence, a judiciary that does not have individual and institutional independence falls short of the core requirements of judicial independence. Although judicial independence exists at an individual and institutional level, from a conceptual perspective this article deals with individual independence.
The particular question addressed in this article, is whether the existing legislative mechanisms in South Sudan sufficiently protect the impartiality of the bench and insulate judges from improper influence in their adjudicatory tasks – consistently with section 124 of the Constitution.
This is relevant, as the author of this Article believes, given recent assertions that judicial independence has been compromised on several occasions. In addressing this important question, an analysis is made of the impartiality of judges, their appointment, security of tenure, complaints and disciplinary proceedings, removal of judges, and remuneration.
Some challenges to judicial independence in South Sudan – largely relating to impartiality and bias – are identified and discussed as well.
1. Impartiality of Judges
Impartiality is generally understood to refer to the “state of mind or attitude of a judge or tribunal in relation to the issue and parties in a particular case.” However, central to the concept of impartiality is the absence of bias, whether actual or perceived.
The opposite of impartiality, therefore, is bias. The question that arises then is how bias is determined. In one of the south African landmark cases in S v Collier, the accused insisted on being tried by a black magistrate and the presiding white magistrate refused to recuse himself, it was held on appeal that:
“Equally, the apparent prejudice argument must not be taken too far; it must relate directly to the issue at hand in such a manner that it could prevent the decision-maker from reaching a fair decision … the mere fact that a decision-maker is a member of the SPCA does not necessarily disqualify him from adjudicating upon a matter involving alleged cruelty to animals. By the same token, the mere fact that the presiding officer is white does not necessarily disqualify him from adjudicating upon a matter involving a non-white accused. The converse is equally true …”
In essence, the court was seeking an objective determinant for bias which goes beyond frivolous issues. What must be determined is the objective state of mind or attitude that an adjudicator has towards a particular matter. However, it is equally important that a balance is struck between recusal on the grounds of bias, and a judge’s obligation to dispense justice.
Thus, from the above explanations, the test to determine bias can be summarized as follows: a) there must be a “reasonable apprehension”, b) the “reasonable apprehension” ought to be held by an objective and well informed person, c) the apprehension must be that the judge will not be impartial in adjudicating the matter, and d) this “apprehension must be made in light of the oath of office taken by the judges.”
The presumption is that a judge is impartial in his/her adjudicative responsibility – hence, the person who alleges the bias must prove it in terms of established jurisprudence.
The objective test is exacting on the person who wishes to prove it. Actual bias or the suspicion thereof impugns negatively on the administration of justice and may affect public confidence in the justice system. Thus, litigants should not be allowed to question it unnecessarily.
2. Judicial Appointment of Judges
Historically, the judicial appointments of judges has traditionally been that judges are drawn from the senior ranks of the bar. In many countries the world over, the procedure has been that “the Judge who is the President of the court concerned would assess the needs of the division, identify a possible candidate with the requisite qualities, and make a recommendation to the Chief Justice. If the Chief Justice concurred, the recommendation would be forwarded to the President for endorsement.”
However, this position has changed significantly. The process followed in the appointment of judges is now prescribed by the Constitution. Article 133 of the Transitional Constitution provides that the President of the Republic shall appoint the Chief Justice having regard to competence, integrity, credibility and impartiality in accordance with this Constitution and the law.
This article stipulates further that the President shall, upon the recommendation of the Judicial Service Commission, appoint the Deputy Chief Justice and Justices of the Supreme Court, Justices of the Courts of Appeal and the Judges of the High Courts and County Courts having regard to competence, integrity, credibility and impartiality in accordance with this Constitution and the law.
Equally, the same article states further that the appointment of the Chief Justice, Deputy Chief Justice and Justices of the Supreme Court shall be subject to approval by a two-thirds majority of all members of the National Legislative Assembly.
As is the usual practice in most countries of the world, the body tasked with the responsibility of facilitating the appointment of judges is the Judicial Service Commission (JSC), which in our case is still called Judicial Service Council (JSC).
The JSC is established in terms of Article 132 (1) of the Constitution of South Sudan, 2011 (Amended 2015) which provides that there shall be established an independent commission to be known as the National Judicial Service Commission, and Sub-article (2) which stipulates further that the structure, composition, functions, and terms and conditions of service of the members and employees of the Commission shall be determined by law and the Judicial Service Commission Act.
According to Section 9 of the Judicial Service Council Act, 2008, the JSC consists of the Chief Justice, Minister of Justice, Deputy President of the Supreme Court, Minister of Finance and Economic Planning, Chairperson of the Legislation and Legal Affairs Committee from the National Assembly, Dean of the Faculty of Law of the University of Juba, President of South Sudan Bar Association, Two justices of the Supreme Court according to their order of appointment, and the secretary General of the Council as Ex-Officio member of the Council.
While the body is diverse, in that it consists of members of a wide spectrum from within and outside the legal profession, it is, however, also heavily composed of political nominees and as such, the appointment of judges by the JSC has not, however, been without controversy.
As one the critics of how the judiciary of South Sudan has been mismanaged, I have raised this as a concern, although there is nothing that has been done about it.
It is submitted here that a distinction should be made between being nominated to implement an independent task and being “appointed to act in accordance with the dictates of the executive.”
It is also important to note that democratic processes dictate that the “executive participates in the appointment of judges as they represent the electorate who have a vested interest in the appointment of judges … The drafters of the present Constitution sought to ensure that persons from diverse political, social and cultural backgrounds, representing varying interest groups, would participate in the deliberations of the JSC.”
But that has not been the case. The JSC has been hijacked by these political appointees who connived with the Chief Justice who has different hidden agenda of destroying this noble institution for reasons best known to him.
Furthermore, it should be noted that “checks and balances” allow for intrusion of one arm of government into another – to ensure that there isn’t an over concentration of power. Thus, the composition of the JSC should have envisages cooperation between all three arms of government, including other stakeholders such as the legal profession and academia – in the appointment and dismissal of judges.
As per the provisions of Article 133, the appointment of judges is vested in the President, as head of State and Government. Under Article 133(1) of the Constitution, the president appoints the Chief Justice having regard to competence, integrity, credibility and impartiality in accordance with this Constitution and the law.
This is done without any consultation with the JSC, which is supposed to interview the nominees for this position and the leaders of parties represented in the National Assembly. Similarly, the President should first consults the JSC before appointing the Chief Justice and President of the Supreme Court.
In terms of Article 133(2), the President shall, upon the recommendation of the Judicial Service Commission, appoint the Deputy Chief Justice and Justices of the Supreme Court, Justices of the Courts of Appeal and the Judges of the High Courts and County Courts having regard to competence, integrity, credibility and impartiality in accordance with this Constitution and the law.
The list must have three names more than the number of vacancies to be filled. The president must advise the JSC if any nominees are unacceptable – and must give reasons. The JSC then supplements the list with further nominees, and the president must make the remaining appointments from the list so supplemented.
Article 133(3) provides that – The appointment of the Chief Justice, Deputy Chief Justice and Justices of the Supreme Court shall be subject to approval by a two-thirds majority of all members of the National Legislative Assembly.
In terms of Section 7 of the Judicial Service Council Act, 2008, the Council shall recommend to the President, the appointment of Chief Justice and the President of the Supreme Court and his Deputy, the Justices of the Supreme Court, the presidents and justices of the courts of appeal.
The appointment of judges is therefore crucial to the independence of the judiciary. By stipulating clear procedures to be followed in their appointment, the Constitution ensures that appointments are done in a transparent manner and for the correct reasons.
The process also seeks to ensure that judges who are appointed are people of ability, who are fit and proper. Moreover, the appointment processes also ensure that the constitutional imperatives of transformation are taken into account.
The Constitution, through the JSC, therefore ensures that judges aren’t appointed arbitrarily for inappropriate reasons. This is particularly important in a constitutional democracy to which South Sudan is aspiring to be, as judges are the guardians of the Constitution.
3. Security of Tenure of Judges
Another important feature of judicial independence is security of tenure. As both the Constitution and the Judiciary Act, 2008 are silent about the tenure of office of judges, it is a held practice that the justices of the supreme court holds office until reaching the age of 70 years of age, which is the retirement age.
Judges of other courts “hold office until they are discharged from active service in terms of an Act of Parliament”. The Judiciary Act, 2008 provides for Remuneration, benefits and Conditions of Employment.
Furthermore, the Act also provides that the president may discharge a judge from active service of the Court for incapacity through ill health, or at the judge’s own request for a reason the president deems sufficient.
However, my argument in this matter has been that the terms of office of judges should be fixed in order to provide stability and consistency in the functioning of the court, and to prevent any perception of bias or a lack of independence in the judiciary.
In essence, if the judges gives their decisions without any fear of removable by the executive, their decision will underscore a security of tenure as an important element of judicial independence, and demonstrates the vigilance of South Sudan courts – particularly the Supreme Court – in enforcing such security and protecting judicial independence and impartiality of the judges and justices.
4. Complaints, Disciplinary Proceedings and Removal of Judges
Complaints and disciplinary proceedings against judges, and procedures for their removal from office are intrinsically interrelated and sensitive issues. Their sensitivity stems from the general view that any complaints, disciplinary action and removal of judges ought to be dealt with in terms of a clear legislative framework.
What gives rise to this view is the desire to insulate any such proceedings from abuse or manipulations – be it political or otherwise. It is therefore important to ensure that clear, objective standards are established.
In our context, article 134(1) of the Constitution states that “Discipline of Justices and Judges shall be exercised by the Chief Justice with the approval of the Judicial Service Commission.”
Equally, Article 134(2) of the said constitution provides further that “Justices and Judges may be removed by an order of the President for gross misconduct, incompetence and incapacity and upon the recommendation of the National Judicial Service Commission.”
However, in terms of Section 48(1) of the Judiciary act, 2008, Complaints against Justices and Judges shall be presented directly to the President of the Supreme Court his or her Deputy or through the President of the Court of Appeal concerned as the case may be.
Equally, section 48(2) of the Judiciary Act, 2008 further provides that the President of the Supreme Court may refer such complaints to any Judge higher in grade than the Judge complained against, to conduct investigation, as may be necessary, and submit his or her report with the recommendations thereof to the President of the Supreme Court.
Hitherto, where it transpires from the investigation, provided for in subsection (2), above, that the matter may require discipline of the Justice or Judge concerned, the President of the Supreme Court shall take measures against him or her as he or she deems necessary in accordance with the provisions of the Act.
It is to be submitted here that the Judiciary Act creates a clear legislative framework that ought to be followed in matters pertaining to complaints, disciplinary procedures, and the removal of judges.
It is furthermore submitted that the possible reason for this onerous procedure is, firstly, the principle of security of tenure which is premised on the principle that a judge’s tenure is secure and may only be removed in exceptional circumstances.
Secondly, this is consistent with the principle of checks and balances which ensure that the power to remove judges doesn’t solely rest with the judiciary. The importance of this is that it removes overconcentration of power in the judiciary regarding the removal of judges.
5. Remuneration of Judges
Although the salaries, allowances and benefits of judges are governed by the Judges Remuneration and Conditions of Employment Act, in most counties the world over, that is not the case in South Sudan.
Article 124(9) of the Transitional Constitution crudely provides that salaries, allowances, privileges, post-service benefits, tenure and other conditions and terms of service of judicial officers or other persons exercising judicial powers shall be regulated by law.
Ultimately, this seems like the president is left determines with the Chief Justice the annual salary of judges, which in many other countries, parliament has the right to debate and reject the terms of the president’s proclamation.
It’s also interesting to note that, once discharged from active service, a judge is entitled to a life-time salary, which is adjusted in terms of the Judges Remuneration and Conditions of Employment Act. In the context of South Sudan, in addition to the lifetime salary, a gratuity is also received on retirement as provided for under section 72 of the Judiciary act, 2008.
It is important that judges are well remunerated. This is because if this does not happen, they may become susceptible to illicit financial inducements from parties who may want to influence them in a particular manner.
Thus, ensuring that judges are well remunerated seeks to protect them from corrupt behaviour. A well-paid judge may find it easier to confidently resist corrupt inducements. Secondly, in order to attract the best candidates to the judiciary, it is imperative that they are remunerated competitively.
Lastly but not the least, the reason for the general principle that judges’ salaries should not be reduced is to guard against the possibility of any government attempts to influence or put pressure on judges through salary reductions to succumb them to do what they want.
Although the foregoing discussion shows that constitutionally and legislatively speaking, judicial independence seems to be fairly protected, some incidents have appeared to compromise such independence.
One example was the appointment of Judicial Assistants in 2013 where the chief justice and the president of the Supreme Court dictated the procedure for recruiting judicial assistants. This didn’t went down well with other right minded people where it was heavily criticized leading to the resignation of one of the justices of the court of appeal from Great Upper Nile Circuit, Justice John Clement Kuc Achol.
This appointment was met and greeted with much consternation because of perceived political affiliations and possible bias in favour of those who have their fathers, mothers, uncles, etc in the government leaving out the large segment of competent, capable and abled learned lawyers who have nobody in the government to lobby the chief justice for appointment.
This procedure of recruitment of judicial assistants as cited above is analogous in terms of representing insidious attempts to erode the separation of powers and the judiciary’s independence. If the sanctity of these constitutional principles is to remain, it is imperative that any such attempts must and are resisted.
Thus, suffice to say, it is a vexed and controversial issue which continues to cast a dark shadow over the independence of the judiciary in South Sudan under the incumbent chief justice.
It may therefore be safe to conclude that the abdication of a clearly demarcated line of a seemingly independence, if not total independence of the judiciary from the other arms of government in fact constitutes a threat to judicial independence.
This article is an analysis of the independence of south Sudanese judges: a constitutional and legislative perspective from South Sudan. It has explored such Constitutional and legislative measures which have been put in place and which seek to insulate judges from improper influence was undertaken.
In terms of South Sudanese jurisprudence, the presumption is that a judge is impartial and should there be any suspicion or allegation of bias, the burden of proof falls on the party alleging the bias to prove it.
More important is that, the Constitution has established mechanisms for the appointment of judicial officers and stipulates clear procedures to be followed in this process. The JSC, in the spirit of the constitution, plays an important oversight role in ensuring that judges are appointed in terms of the objective criteria stipulated by the Constitution and the judiciary act, 2008.
On the same note, the legislative framework adopted to ensure the security of tenure of judges, provides that a judge’s term of office is predetermined and is non-renewable. Equally, the legislative framework adopted in terms of complaints, disciplinary proceedings and the removal of judges, is quite elaborate.
It may therefore be safe to conclude that, generally speaking, the constitutional and legislative framework adopted by South Sudan sufficiently insulates judges from improper influence. However, there are a number of challenges in practice.
These challenges relates particularly to judicial appointments and how the JSC has handled certain matters. The on-going unwarranted dismissal of judges and justices by the president in collaboration with the chief justice constitutes a serious impediment to the judicial independence of our judges. These challenges could be construed as threats to judicial independence, and need to be debated, and also comprehensively and properly addressed.
The author holds Bachelor of Laws (LLB) Degree from the University of Juba and a Master of Laws (LLM) specializing in Law, Governance and Democracy from the University of Nairobi. He is an Advocate Before All Courts and his areas of research interest are: constitutional law and human rights, access to justice and transitional justice, rule of law and good governance.
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