By Tong Kot Kuocnin,
March 29, 2019(Nyamilepedia) — In all civilized nations of the world, Bar Association, which is mostly one of the independent institutions of the country enjoys a formidable respect for it integrity and which work alongside criminal justice sectors of the state.
It works side by side with only the criminal justice sectors in making sure that the legal and constitutional rights of the subjects are truly protected and implemented. It work is to ensure that justice is awarded to those who deserve it and not to those who take law into their own hands.
However, the legal profession in South Sudan embodied these noble pillars. it work, as per the provisions of article 136 (2) of the TCSS, 2011, is to observe professional ethics, and promote, protect and advance the human rights and fundamental freedoms of citizens.
Equally, article 136(3) of the said constitution provides further 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.
Thus, it is on this vein the legal profession in South Sudan can be divided into three sections: firstly, the Bench (or the Courts), secondly the Private Bar (or the Bar Association) and thirdly the Public Bar (or the Public Prosecution Attorneys).
According to section 7 of the Judiciary Act, 2008, the Bench (courts) is composed of at least 5 Courts of law with different jurisdiction ranging from the Supreme Court, Court of Appeal, the High Court, County Courts and the Payam Courts as well as Such other Courts or tribunals as deemed necessary to be established in accordance with the provisions of the ICSS and any other law.
The Private Bar (in this case, the South Sudan Bar Association (SSBA) is composed of Bar council and Bar association as per the provisions of Chapter II, under Section 6 and Chapter VIII under section 43 of the Advocates Act, 2013. It is mainly composed of licensed advocates practicing under the supervision of the Bar. This in essence means that, the advocates engaged in private practice in law as an independent private legal profession which shall be regulated by law.
The Constitution of South Sudan 2011 succinctly stipulates under Article 136 (2) that advocates shall observe professional ethics, and promote, protect and advance the human rights and fundamental freedoms of citizens and Article 136(3) that advocates shall serve to prevent injustice, defend the legal rights and interests of their clients, seek conciliation.
However, Public Bar (or the public prosecution attorneys from the Ministry of Justice and Constitutional Affairs) is made up of State Attorneys who act on behalf of the Government and are employed in the Ministry of Justice and Constitutional Affairs as per the provisions of Article 135(1) of the TCSS, 2011.
On the same vein, Article 135 (3) of the TCSS, 2011 provided further that Public Attorneys and Legal Advisors shall advise all levels of government, represent them in public prosecution, litigation, adjudication, and conduct pre-trial proceedings. They shall recommend law reform, strive to protect public and private rights, advice on legal issues and shall render legal aid.
This article however, attempts and sets out to look at the crisis of leadership in the Bar and examine the extent to which the political influence has impacted on the Bar. It will further examine the crisis of ethics which has caused public outcry and draw its conclusion on the challenges facing the Bar.
The Crisis of Leadership
The crisis of leadership of the South Sudan Bar Association has been an incessant order of business between and amongst advocates themselves. This crisis of leadership even intensified in 2014 after the demise of the Bar’s President Dr. William Kon Bior (RIP).
As the Bar was constituted before the independence of South Sudan in 2011, there grows a public demand by the advocate after the independent, and more specially, in 2014, when the advocates’ General Assembly convened it first ever national conference on and between 20-22 of June 2014 at New Sudan Palace Hotel.
The crisis of leadership in the Bar was manifestly made clear when a certain section of the advocates connived with the leadership of the country and the ruling party in the person the SPLM Acting Secretary General to disrupt the conference and the proceedings for the election that was due to take place after the passage of the rules and code of conduct for the advocates in June 2014.
The fraternity was copiously divided along party lines where those who belongs to the ruling party, the SPLM (this author included but was conscious of the independence of the Bar) and those with liberal understanding (which the author of this article took side with) emerged, which led to the disruption of the conference and the proceedings of the elections that were due to take place after the passage of the advocates rules and codes of conducts in June 2014 at New Sudan Palace Hotel.
The division amongst the advocates that ensued during this conference signals how deep the crisis of leadership loomed largely in the minds and hearts of those who had wanted to continue Kings of advocates versus those who wanted total change of leadership and the complete reorganization of the Bar Association.
This crisis of leadership continue unabated and the Bar Association continue to operate in disarray, with loose support and confidence from many advocates who continue to oppose the legitimacy of the incumbent leadership.
The other segments of fraternity submits to the hegemony of the few elites who continue to wields power and threatened to suspend those who failed to recognize and accept their legitimacy in return for renewal and issuance of advocate’s practicing licenses, a power which the steering committee which was setup by the advocates’ general assembly didn’t have.
Thus, this leadership crisis and wrangling in the fraternity remained unresolved until today and it will continue in deity as the incumbent leadership is unwilling to organize an advocates conference and to conduct elections.
III. The Political Influence on the Bar
The legal profession has always and will predictably continue to play in pivotal role in South Sudan’s social development. Indeed, the observance of the rule of law in a country like South Sudan striving to uphold and promote democratic principles will be mere rhetoric if its judges and legal practitioners are not assured of independence of mind and action.
The independence of the legal profession is not accorded to lawyers for their own benefit or to shield them from being held accountable in the performance of their duties: the purpose of independence is to protect the people by affording them a platform from which to pursue, ultimately exercise, and protect their constitutional rights.
The independence of the legal fraternity means that they are accorded protection similar to that of the judiciary, in order to enable them to render their services to clients without fear, favour, or undue interference by the state.
The political influence on the Bar was manifestly made clear when a certain section of the advocates connived with the leadership of the country and the ruling party in the person the SPLM Acting Secretary General to disrupt the conference and the proceedings for the election that was due to take place after the passage of the rules and code of conduct for the advocates in June 2014.
After having failed to win the confidence of all the advocates to vote for a filthy, incompetent, lousy and reckless candidate forced on the advocates who are the true members of the SPLM, they disgruntled elements rushed to contact their immediate relatives in the national security and the CID who unscrupulously and unethically stormed polling venue and harass, intimidate and threatened the peaceful law abiding and professional advocates with guns and took ballot boxes to their office resulting into disruption and total over halt of the elections proceedings.
This unlawful and unethical conducts by the so-called national security and their cohorts is a blatant violation of the provisions of the constitution and the law. This is an independent institution not aligns or affiliated to any organ of the government, the executive, legislature nor the judiciary.
This conduct amounts to the rule of men and not the rule of law anymore where rule of the security reign higher than the rule of law, and to make it worse above the provisions and clauses of the constitution. This begs that question that, Is South Sudan a security state, if yes then why enacting laws which guided the acts and conducts of any public and private officials?
It has remained a puzzle as to where on earth, has the Bar Association been controlled by the ruling party? Which country in the world does this precedent exist? well, looking justifiable answers hasn’t been easy and hence the possible answer is of course not, no any country to which such shame and disgraceful precedent can be cited to cement and solidify the unlawful and unethical conducts of the security organ and its affiliates in south Sudan.
These elections of the Bar Association was a litmus test to the leadership and an alarm bell that no credible, free and fair elections can be conducted in South Sudan without all the security organs interrupting and confiscating ballot boxes under the pretext of keeping law and order.
This is a complete abuse of power by those who are entrusted by law to keep law and order and to protect and defend the integrity of the institution. It justifies the extent to which political influence on the organization, operation and conducts of the Bar has practically been made a norm and thus the Bar became a lame for sacrifice on alter of political sabotage to undermine the independence of the Bar Association.
South Sudan Bar Association is an independent institution which is not a property to any organs of the state and its functions and activities must be adhered to and respected as per the provisions of Article 136 of the Transitional Constitution of South Sudan , 2011.
It is not an affiliate of the SPLM, neither is it aligns to any other political party in the country or to any organ of the government. Own it not as a party or a government but as a state which shields numerous institutions with different constitutionally mandated and defined functions and statuses.
The Crisis of Ethics
Ethics can be described as codes of conduct upon which a group of persons live in accordance with and changes from time to time while pivoted on the circumstances and dynamic of a society.
It broaches on the hopes and aspirations of the particular group and differs profoundly from morals which define personal character. For example, a defence lawyer may find murder immoral but rules of ethics bind a lawyer to represent a murderer in the best possible way.
As Kuloba J (as he then was) in Apollo Insurance Company Ltd v Scholastica K. Kamau & Muthanwa & Company Advocates Civil Case No. 1945 of 1999, said, that:
“Today the “hungry and unscrupulous advocates” are not “few”, they are not merely “hungry and unscrupulous”, they triple satanic depravity with wicked greed and an ever-increasing ethical decadence. Their number grows by the day. The “few occasions” of “serious abuse” spoken of in 1991, are today almost common routine; “serious abuse” now comes with cruel ravishment. The wrongs done are in a litany which stretches, like Banquo’s line of kings, to the crack of doom”.
Equally, it has been observed also by Arlin Adams, in his article titled “The Legal Profession: A Critical Evaluation” (1989) 93 Dickinson L. Rev. 643, that:
“All professions, especially one as central… as the legal profession, should undergo a continuing process of examination and self-evaluation. Any group that does not engage in such an exercise loses much that makes it a profession: a shared set of principles and customs that transcend self-interest and speak to the essential nature of the particular calling or trade.”
This has been cemented by the writings of Prof. PLO Lumumba who writes that, In recent years, the public has evinced dissatisfaction and disappointment with members of the legal profession, which has inspired the need for enforcement and punishment to protect the public.
Lumumba continue to say that the diminished respect for the profession has expressed itself in sour humour, ridicule and criticism. This is not an entirely new phenomenon; lawyers, have for centuries been vulnerable to periodic bouts of public disdain.
As Prof. PLO Lumumba writes, popular scorn of lawyers is reflected in the works of early writers like Plato, Shakespeare, Dickens, Sandberg and many others who have contributed to the anthology of lawyer-bashing literary allusions.
When Roscoe Pound authored his classic essay on “The Causes of Popular Dissatisfaction with the Administration of Justice” in 1906, he began his thesis with a collection of ancient English barbs against the legal system and profession.
When John dos Passos wrote his monograph, The American Lawyer,4 he reminded his readers that the condemnation of lawyers resonated through the pronunciamento of the Papal Legate at the Council of London in 1237, who “heard the cry of justice, complaining that it is greatly impeded by the quibbles and cunning of advocates.”
The crisis of ethics has been a common problem over the centuries, in which people have been moved not only to write in, but to act on, spite for lawyers. When Shakespeare has Dick the Butcher tell the rebel leader Jack Cade, “The first thing we do, let’s kill all the lawyers,” he is echoing the actual agenda of 1381 revolutionaries as recounted in Holinshed’s Chronicles.
On the same note, history records had it that rebels at least tried to make good on their campaign promise. So did the debt burdened Massachusetts farmers who waged Shays’ Rebellion some four centuries later, scorning lawyers as “the pests of society.”
Truly, much of this public dissatisfaction with lawyers has originated from time immemorial in impatience with the restrictions and procedures of the law itself and the misconception of the lawyers’ role in society. The intrinsic character of law as a restrainer and regulator necessarily builds up impatience in those groups who see themselves as disadvantaged by its application.
And, as the law becomes more pervasive, this impatience appears to grow and spread. Coming at a time when institutions having custody of the vision and values of the society are felt to be in general disrepair and disrepute, a generalized climate of disdain is easy to achieve.
In short, now as for centuries past, a major wellspring of disregard for lawyers has been a disappointment in the law itself, often generated by exaggerated expectations of what the law can achieve in reality.
It is not in dispute that there is widespread breakdown in the fundamental values that anchor the profession. First, there are areas in which genuine reform is required to improve professional performance and raise public confidence in the profession. At the institutional level, disciplinary mechanisms and processes should be restructured to recognize the multiple aims of a professional disciplinary system.
For these reasons, the legal profession should develop and adopt codes and rules of conduct and practice that forge and govern legal professional ethics which illustrate the high standards on which reputations for professionalism are designed, respected and upheld.
The South Sudan Bar Association is indeed in an appalling state and there’s a need on a very serious note to reorganize the Bar to meet the best professional standards if it is to compete at the regional and international plane.
The independence of the legal fraternity is fundamental to the practice of law. Moreover, if the legal fraternity is not independent, then the whole idea of the rule of law will remain a pipe dream in South Sudan. The existence of an independent judiciary depends on an independent and organized legal profession.
The Private Bar in South Sudan is the one which is engaged in assisting and representing private individuals in both criminal and civil proceedings before the court. Its members perform the function which are performed by both barristers and solicitors in many other common law countries including in England.
However, the number of advocates is far from adequate. The few advocates who exist are centre in urban areas (major towns) such as – Juba, Wau, Malakal, Bor and Torit, leaving the largest proportion of the citizens residing in the smaller towns, legally unattended to.
There are still monumental challenges facing the legal profession in South Sudan, and these ought to be addressed as a matter of urgency if the profession is needed to reclaim its noble place, built trust and confidence by the public and mirror the image, aims and objectives which it intends to serve.
The author holds Bachelor of Laws (LL.B) Degree from the University of Juba and a Master of Laws (LL.M) specializing in Law, Governance and Democracy from the University of Nairobi. He is an Advocate before All Courts in South Sudan. His areas of research interest includes: Constitutional Law and Human Rights, Rule of Law and Good Governance. He can be reached @ firstname.lastname@example.orgemail@example.com respectively.