By Wol Deng Akech
“We must struggle everyday so that this love for
humanity becomes a reality”
Sept 19th, 2018(Nyamilepedia) — At the outset, one should make it clear in this introductory part that this article attempts to cover the legal profession majorly with regard to the Bar Association or Private practicing lawyers other than Public Attorneys and Legal Advisors as provided under Article 135 of the Constitution and the Organization of the Ministry of Justice Act, 2008. However, minor focus will be made to include judiciary since it is the grantor and protector of the Bill of Rights enumerated in Part II of the Transitional Constitution of the Republic of South Sudan, 2011. It will therefore delve only on the private legal profession as enshrined under Article 136 of the TCSS, 2011 and regulated by the Advocate Act, 2013. It is in this way that the term lawyer should be understood to carries the same definition as provided under section 5 of the Advocate Act, 2013. It is also one’s wish to underline at this point that this attempt should not in any way be deciphered to means denial of the role and contribution made and achieved by this noble profession of our country in other areas that are not specifically mentioned in this work. Generally, the article discusses the agreement in brief on main important parts and the role that the legal profession may play. As to the title suggests, the Agreement was negotiated by groups by ability and power of guns and threat they post with other civil/social forces excluded. Sometimes, such social forces are called upon to pen their signatures on the readymade documents. Critical Legal School considers jurist or distinguished lawyer as “priest and prophet”, legal profession has a great role to play in this peace process. As a State’s priests, lawyers are needed in this agreement to ordain the parties to abide by what is legal and what is reasonable to guide them towards the restoration of peace and attainment of welfare for the people. As prophets, they are needed to provide insightful and accessible future which they can craft from the present situations by identifying the flaws in the R-ACRSS to provide a tangible alternative. It is in this regard that the subject of this article provoked the author’s mind to push for this debate.
- AN OVERVIEW
While I was scanning the 85 pages Initialised-Revitalised Agreement on Resolution of Conflict in South Sudan(R-ACRSS), I was set aback by the continual silence of the legal profession in the peace process for the last five years of civil war in the country. The question came to one’s mind as to why was/is there such silence about on the critical and fundamental State affairs event which has claimed lives of thousands with millions being displaced either internally or as refugees with irreparable human sufferings and lose of properties ? The five years civil war and the silence of the legal profession is one of the most arrogant acts of triage in our history as a nation. This shows identical similarities with the then Sudanese [it still stands on the same footage] legal profession silence on a systematic elimination of peoples on grounds which are irrelevant and irrational in the modern age. The Sudanese legal profession has always either being silent or reminded divided on political and State’s fundamental affairs on either siding with the Government of the day or with oppositions who altogether act contrary to the constitutional order/people.
The legal profession is supposed to stand for the people/constitutional system than to side with those who want to harbour power for their individual gains or those who illegally induct themselves to the State power. It is clear that what emerges from such arrogant silence is the State devoted to armed conflicts, ruled by “rule by law” than rule of law, lack of proper/adequate planning, development and national consciousness.
The role of legal profession in quest for peaceful and orderly democratic society has shown success in the so called modern or transitional democracies such as South Africa and India. For instance, when apartheid was still the way of life in South Africa, one of the brave judges, Judge-President John Milne of the Natal Supreme Court in his letter to an eminent jurist of International Commission of Jurists, Fali S. Nariman made a remark in despair that: “it seems that however much they may pay lip service to the idea that judiciary is totally independent of the executive, the politicians throughout the age and throughout the world would actually much prefer to have executive-minded lackeys and are considerably irritated by the independent judges functioning in an independent manner”.
The same is also true in India in 1960s and late 1970s during emergency eras with the majoritian rule where eminent judges and Advocates (lead counsels) from the Indian Bar Association such as Nani Palkhivala M. C. Setalvad, H.M Seevai, Ram Jethmalani, Prof. U. Baxi became tireless champions of civil liberties through their liberal interpretations/judgements and by means of judicial activism, public lectures on budgets, critical comments on effects of emergency on democratic values and fundamental rights have contributed to the stabilization of the Indian democracy.
The outgoing Chief Justice of India, Hon. Justice Dipak Misra addressed law graduates/convocation at National Law University, New Delhi on Saturday August, 4th, 2018 while mentioning number of Indian lawyers, poets and religious leaders who in their 2os of ages have inspired the legal and democratic process in India stated: “Age does not matter. The young can teach the old. Iam prepared to be taught by the degree holder today”. For reasons which can be best assessed by persons who are associated with the history of the Sudan but for which we do not have space here for, it can be said that majority of the legal practitioners today in our country are young people. For that course, it is reasonable to say that it is an incumbent duty of these practitioners to embark on the recently signed document for the stability of the country and their profession in present and future as well.
With these correlations, it will be wrong to construe that we do not have precedents of young legal professions who have made a tremendous contributions in the [South] Sudanese legal profession history. In his youthful age and as a Province Judge of EL. Obeid, Justice Abel Alier made a great contribution in the Sudanese jurisprudence by giving the legal maxim of ignorantia legis non-excusat(ignorance of law is not a defence/excuse) a distinct exception in the case of Sudan Government v. Abdel Wahab Mohamed and others(1960)SLJR PC, a case in which the Governor of Kordfan fraudulently promulgated an ordinance and sought to be applied.
In the case of Sudan Government v. Darios Bashir and others (1965) SLJR 480, a case where the accused were charged of sedition among others on reporting the Juba July 8th, 1965 and Wau July 11th, 1965 massacres, Abel Alier as defense counsel placed the court in a difficulty with the most broadest, controversial and critical legal questions to decided. His submissions were almost agreed upon entirely by the court where it observed that:
“The facts in respect of these grievances must therefore, be proved and the truth in respect of them be brought to light. The Government which engages in such High handed illegal and most inhuman acts is contemptuous and any citizen who says this of it should be protected by a presumed intention to have these illegalities and inhumanities removed : for to hold otherwise would be protected by a presumed intention to have these illegalities and inhumanities removed; for to hold otherwise would frustrate both letter and spirit of all laws and would render them futile.”
The above stated observation makes it clear that it is the duty of the citizens to prove any fact that may destabilize the society. Such facts cannot be prove or brought to light if the legal profession remains to be silent in the peace process and implementation. Lawyers are capable to differentiate the variance between what is legal and not or between a bad law or policy and challenge such before the right forum. Lawyers take care of law in every legal system for better or worse whether they fall under the State control or not. Without engaging the stakeholders and the civil population through public engagement, it will be difficult to have responsible citizenry with a responsible Government.
There are other legal luminaries in the galaxy of legal profession in our country who have excelled and moved the cause and will of our people such as Joseph A. Garang who in his notable work “The Dilemma of the Southern Intellectuals: Is it justified” and his role in the post Addis Ababa peace agreement played a great role for the cause of the people of South Sudan, Gordon Abyei, Prof. Natanle Olwak Akolawin who before the emergence of jurists such as John Wuol Makec had already made a position for Sudanese personal law of non Muslims among others.
The reader may gauge the relevance of these narrated persons and perhaps ends up with the irrelevance. But, it is imperative to illustrate the connotations of these persons and their works to this article. In one way or another, these people have maintained the ethics and professional conducts with extraordinary honesty and integrity which are doubtfully lacking and direly needed today. Such legal professional ethics and conducts are taught to every trained lawyer in order to help preserve the public good even when such conducts may be contrary to the positions of their political affinities. Abraham Lincoln rightly noted in one of his lectures in1850 where he made a heartfelt plea to the legal practitioners of his country by saying: “Let no young man choosing the law for a calling for a moment yield to the popular belief resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.” This is evidently clear that the members of the legal profession must be persons with high standards of honesty, integrity and professional ethics and the persons illustrated in the preceding paragraphs are just mentioned to make this point vividly relevant.
In the following discourses, the reasons why the role of legal profession is crucial in the R-ACRSS, the constitutional and legislative foundation of the legal profession and the relevant R-ACRSS provisions to which the legal profession may play a role are examined and the loopholes found therein are addressed to meet what people think as a genuine peace.
Why the role of Legal Profession is crucial in the R-ACRSS?
Dr Remember Miamingi has already said in his article “Implications of Khartoum peace kidnapping” that “Iam tired of being a prophet of bad news. I want peace and I wish I can convince myself that it will come out of Khartoum. Unfortunately, I see parties jumping away from the Khartoum framework and I see countries with vested and conflicting interests use the Khartoum Framework to jump in back into South Sudan.” Initially, Dr. Remember was right and perhaps, the time will prove against those of us who have deserted his prophecy. With the help of his great wisdom, I drew the course of this discourse that many of us have been prophets and followers of bad news but who are truly in need of genuine peace than one else. Because of this need, I personally found myself challenged and in dilemma with the signed documents. Should I continue with prophecy or join the sad silence/remain muted and wait to see the immediate result of this agreement? To put the answer across, this article serves to provide an alternative while we wait and give benefit of doubt to see the start of the gun-classes who have promised to attain civility. It does not mean that those who have different prophecy on the R-ACRSS are John the Baptists proclaiming the coming of perfect Jesus Christ with true emancipation for salvation but instead this accord was negotiated, drafted and signed on every sort of imperfection. Instead, this document contains inchoate or contradictory and that its success needs an inclusive engagement of legal fraternity and others in incorporating it into the existing legal framework, otherwise, it wouldn’t serve the purpose. As a member of this noble fraternity, I feel obliged to opine what can take the R-ACRSS to its prosperous stage although our hope and trust on the signatories is very thin and short like the spider thread. For this reason, lawyers or legal profession must break the deep silence and join the track of enlightening the general public. Lawyers are known for their mindfulness to deal with the emotional and adversarial issues and find out the settlement to such issues in hand. They do this under four main society’s trust on lawyers that they work for/with:
- A right based orientation approach;
- Confidence and respect that they command in the society;
- With the belief that lawyers should be in chair to solve the problems ;
- The belief that every lawyer is bound to work within the premises of justice.
In addition to these, they are constitutionally empower and authorised to advance professional ethics, promote and protect the human rights and fundamental freedoms of the citizens and above all prevent injustice as provided under Article 136(2)(3) of the Constitution. It is because of the above four beliefs about lawyers that the public and the lawyers themselves confers faith and accepted such responsibility in working to protect and promote justice, rights and freedoms of every individual citizen and person.
However, these four beliefs about the legal profession are not sufficiently observed by the profession itself in our scenario due to its sadden silence on number of issues. Much of its work has been devoted to profit maximization than for public good. This is because majority of the profession are obstructed by the infighting and distracting factors that come from their political organizations that led them to compromise the protection and promotion of justice and human rights of the citizens. But in this starting era with the R-ACRSS in hand, one may suggest that the legal profession must take the upcoming situations courageously by providing legal discourses and alternative ideas among themselves and disseminate the legal implications of R-ACRSS to the general public and the parties as well. This should not sound to mean insinuation for lack of understanding of R-ACRSS by the parties but to illustrate that the parties have negotiated and signed with the political understanding and scope more than consequential legal implications within the country and outside world.
Therefore, the legal profession as an independent entity is in the right position in time to provide a balancing opinion and discourses. These pinions must be provided with full understanding of the various social diversities and disparities that are facing different sections of our country.
It (the call to break the silence) may sound as an internal and perhaps unnecessary criticism, but the fact is that it is a common knowledge to everyone that the Bar in its 2014 and 2015 attempted general elections was seen divided along political affiliations in which a group identified itself as the SPLM-Advocates League. Such division although it is legal, of course it vitiates and hampers the purpose and objectives of this profession where the individual advocates feel to be defending and crowning their political leadership and programs than the public interest, the abject situations and the people.
The welfare of the people is the object and mandate of every State in the 21st century era than it used to be in the past where the state operated in the laissez faire with duty of law and order. The mandate for the welfare state can be clearly seen in the provisions of Parts II and III of the TCSS, 2011. And as a constitutionally recognised entity, the private practice must spare time and space to ensure that the state exercise its policies for the attainment of the people’s rights and welfare.
To make the welfare of the people as part of the supreme law, the profession must fairly render pieces of advice and mechanisms to the State or parties on one hand and to disseminate by way of public lectures to the public on the other. If one reviews the process of R-ACRSS negotiations it is likely that a clear and succinct conclusion may be reached that the parties were and are much interested with their accommodations i.e what President Kiir may called “incentive” than a real transitional to democracy and good governance.
Thus, the legal profession theoretically remains as the only crusaders of transition to democracy and good governance on behalf of neglected civil population for change to ensure equality, liberty and justice. This fraternity at this point of time must dedicate its time as a contributor to the process of imparting justice to the people at large in various ways i.e by means of advisory opinions to the government or the parties as provided in the constitution and the law or by way of social class litigations/public interest litigation to act as a people’s guidance in the implementation process of the R-ACRSS. This is possible and it comes under the role and purview of the profession since the R-ACRSS is going to be incorporated into the Constitution.
The government or the parties to the R-ACRSS may misapply the provisions of the provisions of this document whether in the process of incorporation into the constitution or implementation in their favour or against one or more parties. For this reason, the need is felt in this article to suggest that the role of private practicing lawyers is essentially needed in this process to assist the parties and courts in cases of adjudication. This is because the members of the practicing profession are more knowledgeable with the daily operation of law and any policy document related thereto such as the legal implications of the R-ACRSS within the Constitutional framework and relation of South Sudan with other countries and organisations are best experienced and known by them.
The Constitutional and Legislative Foundation of The Private Profession
The constitutional and legislative foundation of the private profession in South Sudan is provided under the provisions of Article 136 of the Transitional Constitution of Republic of South Sudan hereinafter referred to as the constitution and Advocate Act, 2013 hereinafter referred to as the Advocate Act. It will be a blatant error to put the scope of the role of private practicing lawyers in a precise scope and limit since the country is set to be following the common law system where enormous sources of law exist. This is because of its nature in the constitutional and legislative frameworks and the daily practice of the lawyers’ role. However, it is possible to be stated that as long as the foundation originates and revolves around the constitutional and legislative arena, one may infer that both frameworks and the common law principles constitute the foundation and at the same time act as complementary to one another. As a matter of principle, Article 136 of the constitution stipulates the advocacy as a private profession. This constitutional declaration has been deliberated by the Parliament in the form of the legislative enactment i.e the Advocate Act, 2013. This legislation provides that the purpose is to provide regulatory framework for private legal practice and its operation thereof.
Article 136(1) provides the nature of the legal profession and how it should operate i.e that it should operate by and through law. It is not clear whether the definition of law is specifically confined to the Act of Parliament (Advocate Act) or includes Common Law principles and any other fair rules of other legal systems. Since the word “law” of which the profession should be regulated is not defined in the Constitution or in Advocate Act or in the Interpretation of Laws and General Provisions Act, 2006, it will be appropriate to suggest that the term law must be construed to be wider enough to encompasses all the rules which the legislature did not comprehend at the time of its enactment. This is to give room for legal profession and open windows for future, circumstantial and technical challenges such as R-ACRSS. However, it must be read with the provision of section 5 of the Act that defines “legal practices” which [definition] bears the same inclusive nature.
Regarding to the functions and mandates of the legal profession, Sub-article (2) of Article 136 of the constitution declares a constitutional intention for the role, mandate and functions that the profession must play in the country. This proviso requires that the profession must stand to observe professional ethics, promote, protect and advance human rights and fundamental freedoms of the citizens. The constitutional mandate and functions of the legal profession in its lexical sense seems to have been covered fully under this provision. However, the use of the expressions “human rights” and “the fundamental freedoms of the citizens” give the same meaning to the provision of sub-article (1) above. It means inclusion in the role, mandate and function of the legal profession, promotion, protection and advancement of human rights as provided in the international treaties and to which South Sudan is a party to and has rectified such treaties per the wordings of Article 9(3) of the constitution. As to the “fundamental freedoms of the citizens”, such freedoms stand to carry the same meaning and scope as generally provided under Part II of the Constitution and other relevant laws. The Act in section 7 provides fewer contents about the constitutional declaration of the role of the profession which if interpret conservatively, will give limited role and functions to the legal profession towards general public good on justice and human rights promotion and protection. But if one critically read provisions of sections 7 and 31(c) of the Act, the same constitutional mandate can be seen to have been fulfilled in the Act.
The question may arise as to how does the role; mandate and function of the legal profession extend to include works such as its role in the R-ACRSS? To get the answer to this question without referring to particular provisions in R-ACRSS, the same constitutional framework provides us with perhaps elaborate and sufficient answer as it stands clearly stated in sub-article(3) of the same article. Where it says that:
“Advocates shall serve to prevent injustice, defend the legal rights and interests of their clients, seek conciliation between adversaries and may render legal aid for the needy according to the law.”
It will be a misreading of the provision to think that this provision stands only as it states the role, mandate and functions of Advocates towards their clients only. The occurrence of the words “prevent injustice and “defend legal rights” justify it enough for us to include R-ACRSS since it has become a public document and the law which affects the life of everyone. Thus, it can be said that it also provides legal rights to every citizens which if act upon by the parties contrarily, it may cause injustice which the Advocates must ensure to prevent by constitutional authorization.
The Relevant R-ACRSS Provisions Which Sought The Role of Legal Profession
Unlike the Agreement of Conflict Resolution in the Republic of South Sudan (ACRSS), 2015 which acknowledged the participation and role of professional societies including academia in its preamble, the R-ACRSS does not acknowledge in its preamble the participation and the role to be played by other stakeholders including the legal profession. However, this should not be taken as an implication or intention of the parties to exclude such stakeholders, because the R-ACRSS as its name suggests is the revitalization of ACRSS, 2015 and any provision which is not expressly affected by the provisions of R-ACRSS remain valid.
The R-ACRSS has incorporated many legal terms and concepts in most of its parts.
In the preamble thereof, there are terms or concepts which are to laymen are very impossible to place them into understandable form and scope. These include recognition of the TCSS, 2011. These concepts and other more relevant provisions can be briefly discussed in the following manner.
PREAMBLE OF R-ACRSS
The preamble of the R-ACRSS carries thematic ideals or concepts which have been the sources of controversies in the history of legal theory/jurisprudence among the practitioners, jurists and academics of the various constitutional systems. The first paragraph of the preamble declares the intention and the commitment of the parties under and/or acknowledging the TCSS, 2011 to lay the foundation for a united, peaceful and prosperous society based on justice, equality, respect for human rights and the rule of law.
These, to a layman, seem to be comprehendible and capable of being place in a limited scope. However, history and development of legal and political systems have shown that there has never been a straitjacket or a definite agreement on the definition of these themes which the parties have chosen to use in the accord. Regarding to the TCSS, 2011, most of the contentious issues which can be said to be the chief major cause of persistence war have been associated with the constitutional flaws, but here the parties seem to have recognised the constitution as it stands amended including the creation of the 32 States. Looking critically to the use of these expressions, we may find that the oppositions have consented to the current administrative structure. But it is equally possible to be assert that such declaration have been incorporated in this document as additional safeguards to supplement and complement the constitution as it stands amended and recognised by all the parties. The use of such selective expressions such as justice, equality, respect for human rights and the rule of law impliedly suggest that in case the creation of the States or any action effected by the three amendments, these thematic legal and political concepts may be invoke in the correction in circumstances where injustice, lack inequality and non adherence to human rights and rule of law have been ensued by any amendment. This is true in the sense that most of the current states have caused much roar ranking from land/border disputes and complains that some of the areas which should have been constituted as States have not met such expectations despite the fact that the population and geographical locations of these areas deserve to be States.
However, the difficulty will be in circumstances of invoking these broadest, vague and unambiguous concepts which are not capable of being given single significant description. The difficulty will be whether justice, equality, respect for human rights and the rule of law shall be taken to mean constitutional and statutory justice or should they be extended to acquire status in principles of natural rights and justice? Of course, in making such determination to produce answers to such broadest questions, it can be done only with the active participation of the learned members of the legal profession.
In paragraphs three and fifth, the parties have also declared that they are determined to compensate the people by committing themselves to peace and constitutionalism. Federal system of government is recognised as a popular demand of South Sudanese.
All these constitutional or political themes are subject to various interpretations and understandings. The term constitutionalism is a modern constitutional and political term which is only familiar to the constitutional and political theorists. In most fragile States, constitution and constitutionalism are conceived to mean the same thing or used interchangeably. But this is a flagrant mistaken perception in the eyes of the modern constitutional and political theorists. A country may have constitution but may lack constitutionalism. The words of the ruler or decree or edifices of the ruler in the fragile states constitute law or constitution which basically lack constitutionalism. The difference between the two is that constitution ought not to only confer powers on the individuals or institution but must also provide restraint on such power conferred. Constitutionalism encourages or envisages government with appropriate limitations on the powers of the government to prevent abuse of the rights of the individuals in the process of exercising such conferred powers. It is known in the Western democracies as the limited government. It seeks to decentralise the power than to concentrate in the hand of an individual or few individuals. The question is whether the TCSS, 2011 and A-ACRSS provide any limitation on the government?
With this abstract and always contested idea of constitutionalism, the private practicing profession has to come in fiercely as crusader of the people’s rights and justice for all to assist the parties in realising this constitutional theory in the basic document of the country and check on the other pieces of legislation.
As to the federal system of government, one may agree with the cognizance of the parties which declares federal system as a popular demand of the people of South Sudan. Insofar as the constitutional and political development is concerned, the call for federalism in South Sudan since 1947 has been in consistent and persistent position and has indeed contribute to the outbreak of the Sudanese civil wars.
The R-ACRSS further bears in its Article 1.4.11 that “the Parties reaffirm their commitment to the ARCSS that a federal and democratic system of governance that reflects the character of the Republic of South Sudan and ensures unity in diversity be enacted during the permanent constitution making process”. The wording of this provision read together with Article 1.2.15 of the R-ACRSS sound more rhetoric like the provisions in TCSS, 2011, 1998 and 2005 Sudan Constitutions which proclaim federal system of governance with devolution of more powers to the local governments but practically such constitutional promises were/are not realised to that effect. The question is what type of federalism will meet the scope of this provision? Should it be cooperative federalism, fiscal or vertical federalism and above all what should be the pattern of such kind of federalism to be chosen be? These questions among others can be only answered adequately only if the legal profession intervene than to reserve the debate and choice of federalism to the parties who may choose a divisive and fragile type of federalism since each political party drives for a specific type of federal system which suits their individual political agenda.
THE WOMEN REPRESENTATION
Afresh to the provisions of the ACRSS, 2015, the R-ACRSS has made little progress in the women representation in all organs of governments at various levels. Article 10(5)(2) of the ACRSS, 2015 recognises the affirmative action for women at 25% whereas it requires only the Government and the armed opposition(the SPLM/A-IO) to nominate four(4) and three(3) women to the cabinet respectively. The R-ACRSS has however; raised the affirmative action from 25% to 35%. It has also made it mandatory and figuratively for various parties to nominate women in selecting their ministerial portfolios and parliamentary seats in both States and at national levels. The new provisions of the revitalized Agreement for the women representation appear in Articles 18.104.22.168, 1.11.2, 1.11.5, 1.13.3 and 1.13.5 of the R-ACRSS, i.e the Vice President, ministers/deputy ministers and legislatures at all levels of government. The question to effect of this is what criteria to be applied by the parties in ensuring adequate representation of women as guaranteed in the preamble and provisions of R-ACRSS? To check our 13 years of the SPLM rule experience on the affirmative action, the allotted 25% for women has been always allotted and occupied by women who on their own are competent and empowered enough to compete on merit with their fellow men. Most of the women who have represented or became beneficiaries are either wives or daughters of the top politicians or military generals. To that effect, the purpose of gender affirmative action can be vividly said to have been defeated by procedural injustice though the father and founder of our nation had ensure the substantive justice for women particularly the most disadvantaged groups.
To take the path of principle of an inclusive, reformative and transformative exercise in the R-ACRSS implementation process, the women caucuses in their various and diverse organisations must participate in the process or consultation in choosing the women representatives. And this course cannot happen without efforts from the persons or group of persons with special expertise like legal profession and specifically, the Female Lawyers Association.
The women IDPs and refugees must see themselves in this political exercise than being excluded as it happened in the High Level Revitalization Forum (HLRF) process, otherwise, any representation of the true victims by persons who are not or less affected by war is a misrepresentation and arguably, be said to be contrary to the preamble of the R-ACRSS.
THE LEGISLATURE AND OTHE REFORMS
The ACRSS, 2015 put the number of members of parliament at 400 than 332 members which was the exact number after the independence and constitution of the parliament. This was done by adding additional 68 members from the Armed Opposition (SPLM/A-IO), Former Political Detainees (FDs) and Other Political Parties at 50, 01, and 17 respectively. While all the Members of National Transitional Legislative Assembly and the Council of States who were unseated following the outbreak of 2013 crisis were accordingly reinstated.
In R-ACRSS, the Membership of Transitional National legislative Assembly is expanded to 550 with the possible dissolution of the current TNLA and be reconstituted in accordance with the provision of Article 1.13.2 of the R-ACRSS. Since, it is the appointment or nomination of 550 members than the number which was elected eight years ago, the question will be which valid criteria shall be used in selecting the members of the TNLA? This is more difficult since, there is dispute on the current administrative structures which to some extent is not effective and the recognition of the last population censuses in South Sudan remain controversial. This of course will require adequate consultation with various sectors of the country. To solve this amicably, it would be better to resort to the 1983 Sudan’s population census which the SPLM had used during the war and creation of counties in the Civil Administration of New Sudan (CANS) and upon taking over Southern Sudan as a whole. This population census is quite credible than 1993 and 2008 censuses. Contrarily to this, some areas or communities would find themselves being disadvantaged or advantaged in the expenses of others since the country was broke up into number of small states. The issue of States has number of impacts. The impacts include its relation with the Council of States and determination of States. It may delay the reconstitution of the Council of States as part of the national legislature. Since the Constitution and the R-ACRSS establish a bicameral legislature there is an urgent need to find mechanism of reconstitution the Council of States as soon as possible. Articles 1.13.4, 1.14.13 and 1.14.14 of the R-ACRSS deal with the reconstitution and report of/by the Independent Boundary Commission (IBC) prior to the reconstitution of the Council of States and in case the IBC fail to reach its conclusive report it shall be transformed into Referendum Commission on Number of States. No time limit is clearly provided for the referendum Commission on Number of States to table its report and in case it takes more than reasonable time, what will be the status of the Council of State, how will the revitalized legislature legislate if one House of Parliament remains standing contrary to the provision of the R-ACRSS? What will be the legal status of the Council of States if it continues to operate contrary [without the inclusion of the other parties] to the R-ACRSS provisions? Or if we are to say that the IBC will perform its work within the pre-transitional period, how possible is it under the current political, security and economic situations? What if its report or referendum goes beyond pre-transitional period?
Other crucial area which needs more attention is the judiciary as provided under Article 12(1) (2) of ACRSS, 2015 and now under Article 1.16 of the R-ACRSS. The need for judiciary reform is an important part in protection of rights of the people and guaranteeing constitutionalism and rule of law. Without the independent judiciary, the enshrined fundamental rights and freedoms remain to be mockery source to humanity and democratic aspirations. Articles 1.16.1 and 1.16.2 respectively stipulate that judiciary of South Sudan shall be subscribe to the principle of Separation of Powers and Supremacy of the Rule of Law on one hand and on the other reforms in the judiciary shall be effected to review the Judiciary Act, 2008 and effect capacity building of the judicial personnel and physical infrastructure of the Judiciary.
Article 1.16.3 vested the power in the RTGoNU to constitute an ad hoc Judicial Reform Committee whose function is to study and make recommendations to the RTGoNU for consideration. This committee according to the provision under Article 1.16.4 shall be chaired and deputized by foreign eminent jurists. Its members shall be drawn by the stakeholders from the [Legal profession] and composed of TGoNU, SPLM/A-IO, SSOA, FDs, OPP and IGAD with representations of 5, 2, 1, 1, 1 and 2 respectively. These provisions on the reform of judicial system raise aporetic argument to suggest that these provisions follow the footstep of ACRSS, 2015 and CPA 2005 on judicial reform which has not being achieved. Judicial reform was not achieved in the CPA and ACRSS era because the members of the concerned Committee or Commission were mere representatives of the parties to the agreement than the institution. How do you called such representation as being drawn from legal profession when members shall come by virtue of being members or affiliated to the parties? If one critically observes the constitution of the ad hoc committee, one may clearly see many flaws. First and foremost, the members of the committee who shall constitute the majority shall be entirely members of the political parties to the agreement who will be almost bound by the position of their concerned parties. It does not give mature meaning to say the members shall be drawn from the legal profession when practically these members shall be chosen by virtue of their political affiliations. There should be at least representatives of the legal profession chosen by the Bar or as it may be effected and remain bound by the rules, procedures and ethics of this independent body (Bar) than being bound by the position of their concerned parties. The legal profession is best knowledgeable with the areas which require prompt reforms within judiciary and how such reform may be ensure. Now is the propitious time for the legal profession to start breaking silence on state affairs for the attainment of genuine judicial independence.
The very silence of the legal profession, normalization of the violence in which the country accepts violence as a logic or strategy has tainted the Sudanese nationhood and seems to be the same scenario with the new nation. This makes Che Guevara’s words more pertinent. In the silence, the lawyer or legal profession becomes part of conspiracy against the citizens by celebrating the human sufferings in silence or in a hide [behind] the actors of violence’s clothes. By the look of the activities of the profession particularly among the young emerging ones, one wonders as to what has become the role of South Sudanese lawyers/legal profession as noble profession or defenders of justice, rule of law and human rights? Has the legal profession become an annexe of the Government of the day or the oppositions or should it be seen as a critical intellectual profession?
The traditional approach that judges or judiciary sit and wait for parties/litigants to appear before him/it is no longer valid especially in societies where democratic values, fundamental rights and freedoms are proclaimed in their written constitutions. In such constitutional systems, Constitution is accorded status of supremacy and the judges or judiciary are/is set as grantor and protector of those rights and democratic values. This mandate is clearly incorporated in the TCSS, 2011 in the provisions of Articles 9(4), 124(7) and 126. Thus, the modern jurisprudence has developed and introduced suo motu as a means and power of the courts to intervene on their own initiatives even when no party has approached them in matters fundamental to the constitution.
By and large lawyers can be placed under three categories:
- Those who do nothing but the law;
- Those who do something apart from the law;
- Those who do everything but the law.
With these categories, the perception in the then Sudan [to which we inherited most of our contemporary challenges/good or bad] among lawyers [which is also lamented by Mark Fathi Massoud in his work “Law’s Fragile State, Colonial, Authoritarian, and Humanitarian Legacies in Sudan”] that any legal commentary in the Sudan would be always brief and short seems to have been proved. This is true when the legal profession choose to remain mutus on matters that concern most. This shows nothing than negligence, betrayal of constitutional and professional mandate and function. Nothing may be attained in term of democratic and constitutional development when such noble professions are caught by intellectual cowardice. Mark has commented that it is because of the history of violence and political volatility that gives no spaces for the stakeholders in law to ensure the availability of progressive legal literature. This of course creates lack of courage to ensure professional role which definitely led to professional and intellectual cowardice. Thus, some legal scholars perceive that the country [Sudan and perhaps the two Sudans] exist in a kind of legal vacuum. They support this legal vacuum by consistent ranking of the [South] Sudan among the world’s failed states. It is true as well that when law exists to limits the actions of government; it promotes peace in the country than otherwise. The private legal profession as part of legal institutions in the country can play an important role to contribute in legal reform, enhance human rights situations, consolidate democratic process and rescue the state from the persistent failures.
The question is to whether we have inherited the Sudanese State behaviours in our new nation? If so, whether the legal profession has role to play in undoing the reoccurrence of the Sudan’s legacy of injustice and suffering of the people.
Indeed, nothing different has been effectuated whether in the State behaviours or response of legal profession as stakeholder in legal reform and development in the country. The legal profession should response to these situations by evaluating the public to see fundamental rights and fundamental objectives and guiding principles enshrined under Parts II and III of TCSS, 2011 as an accessible set of legal tools for democratic stability.
The legal profession must dedicated its roles and functions as crusaders of the people’s rights and justice. And to achieve this, Constitution, laws and the R-ACRSS must be followed in letter and spirit so that both the constitution and the laws with the agreement to be incorporated say what they mean and mean what they say on the citizens and the Government or parties. Otherwise, the sadden silence of this profession on the gun-class made and owned R-ACRSS will be felt only when citizens desert the country because of perpetual fear due to persistent conflicts in which everyone become completely hushed by the state with the use of anarchism by the political actors as a norm to maintain or claim the power as it clearly appears in R-ACRSS where power sharing is formulated on the basis of who has inflicted much harm or lose on/of the people and the property.
Wol Deng Akech holds LLB from University of Juba, LLM candidate at University of Lucknow and a practicing Advocate with Garang & Associates Co. Advocates.