By Wol Deng Akech
March 31st 2019 (Nyamilepedia) – This article examines the historical struggle in the courtrooms by the people of South Sudan for freedom of speech and expression. The aim is thus to survey and illustrate the judicial perspective on interpretation of this fundamental rights. This historical evaluation in nexus to the contemporary constitutional adjudication in the common-law world at large and South Sudan in particular aim at drawing the attention of the courts and judges in South Sudan. It also stresses focus on interpretation of particular judges in South Sudan to reckon them about the ongoing progressive foreign jurisprudences on the right to freedom of speech and expression on one hand and on the other hand informs the foreign reader about the state of Bill of Rights or constitutional interpretation in South Sudan. Indeed, the paper has invoked progressive interpretations of fundamental rights from the U.K, India, and the U.S to help in justifying the grounds as to why the South Sudanese litigants and courts should scarcely claim and upheld free speech as fundamental and foundational tenet of a democratic society. The article argues that the sanctity of all rights will be meaningless if free speech is not accorded an important status by the stakeholders.
1 – INTRODUCTION
More than 200 years ago, one of the American Constitution architects, Thomas Jefferson wrote to a respected military general, Edward Carrington that “were it left to me to decide whether we should have a government without newspapers or newspapers without the government, I should not hesitate a moment to prefer the latter.”i This letter shows the sanctity of free speech in the American soil and the rest of the world that have embraced democratic values as form and foundation of their societies. It has also caused constitutional reform which led to the U.S. Constitution Firth Amendment which states that:
“The Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for redress of grievances.”
A similar provision has been postulated in the Transitional Constitution in various provisions such as Article 8(religion),ii Article 23(religious rights),iii Article 24(freedom of speech and media),iv Article 25(freedom of assembly and association)v and Article 32(right of access to information)vi under the Transitional Constitution of the Republic of South Sudan, 2011(Amended 2015) hereinafter referred to as TCSS, 2011 or the Constitution. The mentioned Articles have close links in common. One may not be able to effectively enjoy any one of them without the others or at least two of them at the same time. However, it should be noted that all these freedoms are independent fundamental rights under the South Sudanese constitutional framework. Although each freedom is autonomous, they are profoundly linked. They are indispensible pillars of every democratic society. Like the U.S constitution, these rights to freedoms were embodied in a single Article in the earlier Sudanese constitutions i.e. Article 7 of the Self-Government Status, 1953, Article 5 common to the Transitional Constitution of the Sudan, 1956 and Transitional Constitution, (Amended 1964) and even in the Addis Ababa Peace Agreement, Appendix A, paragraph 4. Freedom of speech and expression as known may be exercised by words of mouth, printed, electronic, carton, engraved words on the walls or picture, remain silence etc. This freedom is not just a mere freedom but a fundamental right to freedom as it is enumerated in the Bill of Rights. By judicial struggle, I mean the judicial process in which litigants seek and/or draw the attention of the courts to enforce the sanctity of the right on one hand and on the other, the adherence of courts/judges thereof to the principles of judicial independence and impartiality or restraint/decline to affirm the importance and necessity of the right even in circumstance where their independence allows them or is tempered with.
My first aim in this paper is concerned with the freedom of speech and expression as struggled for in the judicial battlefields. I will attempt to illustrate as a reminder to South Sudanese judiciary, private and State legal professions, governments at various levels (both legislatures and executives), media houses and the general public on how the journalists, practicing Lawyers, judges had struggled in the past for realisation of this vital fundamental freedom. In doing so, I will emphasise on the Greater Sudan scenario where judges have stood firmly to uphold the said freedom. Where the Courts in the Sudans are founded to have restrained themselves in upholding this right, some foreign judicial precedents may be cited to substantiate the necessity to uphold this freedom. The second aim is that; as the country approaches a new transitional era, it is important to embark on this freedom for it is the mother of all civil liberties and a key to constitutional and democratic transformation. The paper thus, sought to argue the stakeholders to establish a firm practice, promotion and protection of this right although South Sudanese political elites equate it as a threat to their political ambitions. In the following sections, I have discussed a brief historical overview, the roles of court in free speech. In addition the role of stakeholders and the legacy of freedom of speech and expression and finally end it with conclusion
2 – HISTORICAL OVERVIEW OF JUDICIAL STRUGGLE FOR FREEDOM OF SPEECH AND EXPRESSION
The people of the Sudans have always been the lovers of fundamental freedoms throughout their past and present lives against the invasion, colonialism and oppression. This is evidently reflective in the 1881-1885 revolution against Gordon Pasha’s government whose achievement/result was hijacked and sectionalized in the process into and by the so called “the Mahdist Revolution or Ansar State.”vii In fact, it was a collective achievement of the peoples of the Sudans including the present day Bahr el Ghazal, Unity and Northern Upper Nile regions.viii Khalifa Abdullah Altasha when he became the successor tried to acknowledge this fact by secularising the State to accommodate everyone but ended in internal feuds between him and the so called “Awalad Al Bilad.”ix Because of this historical quest for freedoms, the peoples of the Sudans have been known as people who always do the unexpected or impossible. For instance, they are the first people in Africa to overthrow the colonial government, military dictators in 1885, 1964 and 1985 consecutively. Unlike the rest of colonial territories under the British Empire or other foreign rules, the people of the Sudans were the only among the few to attained independence in less than six decades. This briefly indicates the wiliness of Sudanese peoples to live a decent live in a civilized society.
The constitutional anchor of the freedom of speech and expression under which the courts and individuals are empowered to adjudicate are captured in various frameworks such as the Constitution, African Charter on Human and Peoples Rights, 1986(Article 9), Universal Declaration of Human Rights, 1948(Article 19) and other UN human rights frameworks rectified by South Sudan like ICCPR, 1966(Article 19) as it appears in Article 9(3) of TCSS, 2011.x But the last three frameworks although they are important sources of human rights, they are always referred to as “soft laws” to be resorted to only when there is national legislative or judicial pronouncements vacuum. Sometimes they are considered so; because of the heat debate between monists and dualists. But arguably, the Courts cannot merely limit their interpretations of this right on literary meaning (absurd interpretation) of the provision of the Constitution or the law. This is because the right of free speech(Bill of Rights) or the Constitution itself as a whole was expounded by the people of South Sudan, perhaps in their founding deeds and fighting creeds which date back to the earlier years of colonial era, 1947 Juba Conference, the 1955 Torit Uprising, the Anya-nya and SPLM/A Liberation wars. Thus, the interpretation and enforcement should be effected so that the agendas of these mentioned events are realised and cherished in glory by the people. Although the people of South Sudan have fought all these long wars in the battlefields, they have equally fought the same wars in the courtrooms since the time of Edgar Bonham Carter; the first colonial legal secretary (also known as Judicial Commissioner) drafted and designed a unified judicial system in the Sudan under Governor-General Reginald Wingate.
A shufti at Article 24(1) of the TCSS, 2011 makes one conclude that this provision encompasses various facets of freedom of speech and expression. These facets include but not limited to right to circulate the information, right of the press to conduct interview, right to dissent, to portray social/historical evils/events (such as negative customs, sleazy, malfeasance in office), right to receive information, to report court and legislative proceedings, to advertise, compelled speech( to disclose the information about the ingredients and contents of goods), to broadcast, to remain silence, to raise, fly and celebrate the flag, right to entertain and be entertained, right of rebuttal(to respond to an allegation in the same medium it was communicated even if it means that such medium is run by the proponent), right to express opinion in election(vote) and more importantly, the right to express beyond the boundaries.xi If free speech beyond boundaries is not guaranteed, the government may criminalized opinions of citizens while abroad or the government may engaged in illegal activities in foreign lands and debarred citizens to question such activities. However, TCSS, 2011 imposes restrictions under Article 24(2) and (3) through legislative enactment unlike the above mentioned U.S. Constitution provision which does not prescribe restrictions but provide an absolute right. Under U.S constitution, it is left as the duty of a speaker or press to impose her/its own self restraint or makes limit on the freedom of speech and expression. But, the law legislated under Article 24(2)/ (3) of TCSS, 2011 to qualify these rights seems to be far-fetching to or overriding the Constitutional intention/implications. Thus, it is always exercised on unnecessary basis particularly the enjoyment of the right which pertains to right to dissent or portray social evils or historical events. For this, one may safely say that the legislature has defeated the Constitution intention on the Bill of Rights.
The debate as to whether the right to free speech differs from or similar with the right to freedom of press or in other words, should the same right be essentially and similarly accorded to an individual citizen and the journalist exercising her profession is an interesting debate. If free speech of an individual were to be treated different from freedom of press, it will give room even for foreign nationals/journalists to claim such right. The correct position seems to be that freedom of speech is similar to both an individual and journalist or media house since the right is expressly guaranteed to every citizen although the corporate person is not considered or accorded the rights of a citizen at all times. Regarding the status of a non-citizen who owns and runs a media house in a country like South Sudan whether entitled to this right, the possible and perhaps the right answer will depend on the wording of the provisions of the constitution and the law guaranteeing such right whether the Constitution or the law accords this fundamental right to a citizen or a person. But since the provision of Article 24 stresses the phrase “every citizen”’, then a foreigner owning and running a media house cannot claim freedom of speech and expression as of right but as a privilege. This distinction is essentially needed for national integrity. In the following section, I have dealt with how litigants and the courts in the Sudans and other common-law jurisdictions have invoked and upheld or imposed self-restrained on this right.
3 – COURTS AND THE FREEDOM OF SPEECH AND EXPRESSION
Unlike the rest of judicial systems where judicial activism has been adopted as a means for judicial law making and enforcement of the fundamental rights, the Courts and the judges in the Sudans have chosen to remain conservative or imposed unnecessary self-restraint in adjudication, interpretation and enforcement of Bill of Rights.xii The judicial conservatism and self restraint of the judges in the Sudans can be seen in Elhaj Yousuf Elhaj Mekki v. Izulldin Ahmed Mohammed,xiii where the Sudan Constitutional Court declined to uphold and enforced the Bill of Rights despite the provision of Article 48xiv of the National Interim Constitution, 2005 on the ground that the Bill of Rights is a mere covenant among the Sudanese people and between them and their governments at every levels of government and that the Court was not under duty to intervened. Judicial activism and law making are necessary tools in the present era where the ruling party parliamentary majority may abridge or back the violation of the fundamental rights. On the same note, the litigants seem inadvertently chosen not to litigate for their rights. Perhaps they have little faith in the judicial system or fear of subsequent repercussions from the State or non-state actors. In either case, the judicial power reposed in the judges by the people and to be exercised on their behalf in accordance with the aspirations of the people is obviously questioned or doubted. Perhaps, the indifferent of the trios (the litigants, legal profession and the judiciary) in claiming and upholding the Bill of Rights has awarded the government with undesirable and undeserving power to harshly used such power to restrict or gag the free speech.
It is an undisputed fact that for the last 9 years alone more than five Newspapers, TV and Radio broadcasting stations and several online websites have been closed down in South Sudan without court orders. This shows that there is something wrong even if we could agree for the sake of argument that they were shutdown on genuine grounds. Even in countries such as South Africa and India which had achieved their independences twenty-five and seventy-two years ago against oppressive systems where people were subjected to racial and religious discriminations and to which South Sudan shares the same historical prejudices did not shutdown such number of media outlets when the revolutionary forces took over power. This is in addition to number of detained journalists/individuals held without charges against them. There are cases of disappearances of journalists and activists with reportedly death allegations with no one being accounted for. This tells us that the history of judicial and fundamental rights crisis is not new in the Sudans but an embedded fear in the State to freely allow and protected these rights.
For instance, the case of Sudan Government v. Paulino Dogali & Othersxv is one of the reported few cases of how courts in the Sudans have interpreted the freedom of speech and expression. As I have mentioned in section one, the instant case covers three fundamental rights, that is, free speech, religious freedom and freedom of association and assembly. In 1960, the military dictator in Khartoum while ransacking the missionaries and specifically restricting the Christians and Jewish profession/activities in the Sudan passed a cabinet resolution that declared Sunday as a working day of the week which was a resting and a religiously observed day in Southern Sudan. This provoked protests among the students, government employees and trade unionists in the South. The accused in protest authored a leaflet arguing students, employees and trade unionists to boycott work on Sundays. The paragraph which prompted prosecution read as follows:
“The recent decree of our Government saying that Sunday, the religious holiday, becomes an ordinary working day, and that Friday, the Moslem religious day is the only resting day for all citizens of every creed, clearly states that we Christians should disregard the tenets of our Christian faith and Islam must be imposed on us by the present regime. . . . Since the day of our independence, different political parties have ruled us, but never such an order was given; and now what is the matter? Is it because we are now ruled by guns, and our mouths closed, that we should be made to turn our backs to Jesus Christ, being forced to give up our dear religion? . . . Let us resist, therefore, unanimously with one soul, one heart, one body, using these peaceful means. We appeal to all Christians in every walk of life and occupation, from the Assistant Governors to the last street sweeper to boycott work on Sundays as from the third week of April (precisely April 17, I960).”
The trial Court sentenced the first accused and three other students under section 4 of the Defence of the Sudan Act, 1958 to 12 and 10 years in prison. But on appeal, M.A. Abu Rannat CJ, reduced the sentences to 5 and 3 years imprisonment respectively. Abu Rannat CJ, in his judgement observed:
“Reading the leaflet as a whole, I have no doubt that its object is to invite opposition and bring discredit to the Government. One of its objects is clearly to provoke difference between Moslems and Christians. We are a secular State, and the object of the Council of Ministers’ resolution of Feb. 1960 was mere unification of working days in the whole country. The interpretation put by the authors of the leaflet is to show that the present Government is imposing Islam and fighting Christianity.”
Although, Sunday was restored as a resting day in Southern Sudan, the imprisonment was not remitted. I deeply regret and feel in pain to disagree with the learned CJ’s opinion and submit that this interpretation is wrong. I further submit that Article 5 of the 1956 Constitution seems to me to be paramount and overridden section 4 of Defence of the Sudan Act, 1958. Free speech is a fundamental and foundational tenet of democratic society which includes the right to dissent, criticise the legislation or government policies within the parameters of the law. The mere mentioning of Christian and Muslim religions in the leaflet should not be construed to amount to sedition nor does it necessarily show any bad intention or faith of the accused but to illustrate the point why they did think it right to keep Sunday as a resting day in the South. It is even right to comment or criticise a religion about real facts for healthy profession. Upholding such unsustainable charges against the accused amounts to nothing but a licence for government to suffocate and gag freedom of speech and expression. It is also another way for inviting perpetual dictatorship and possibly a death-knell to principles of democratic government. On whether the observation of the learned Chief Justice that the “object of the leaflet was to invited opposition and bring discredit to the government” could be a good justification to curtail the rights, it would be pertinent to justify the contrary with the following two Indian precedents. In Romesh Thapper v. State of Madrasxvi, the government of the State of Madras through an order issued under Madras Maintenance of Public Order Act banned the entry of a journal into its territories on the ground of public order and security of the State. The Supreme Court struck down section 9(1-A) of the said Act on the ground that, only an act serious enough to constitute a danger to the foundations of the State or a threat to overthrow, could justify curtailment of the right to freedom of speech and expression. Ram Mahnohar Lohia v. State of Biharxvii is another relevant case. Ram Manohar was a socialist leader. He opposed the state government on what he saw as excessive taxes on the State’s poor masses without services being rendered back to the citizens. He argued the citizens to protest and resist the payment of taxes. He was detained under the Preventive Detention Act, 1950 and charged for causing threat to public order and security of the State. The Supreme Court held the detention as mala fide and observed that:
“Public order, law and order and security of the State are not synonymous expressions. These concepts are in the nature of three concentric circles, “law and order” represents the largest circle within which lies the next circle representing “public order” and within which is the smallest circle representing “security of the State.” Thus, an act which affects “law and order” may not necessarily affect “public order” and an activity which may be prejudicial to “public order” may not necessary affect “security of the State.”
However, Jalal Ali Lufti P.J, before the Paulino Dogali case had upheld the right to freedom to disseminate religious information or teaching in the schools in the case of Sudan Government v. Father Silvano Gottardi.xviii Father Silvano was a Catholic priest in Juba. He went and entered a Khalwa(Koranic school) at Malakia. He greeted the Khalwa supervisor and decently asked whether it was possible for him to give instruction to catholic boys who were attending classes in Khalwa but the supervisor said it was not possible and he left cordially. After few days the Sheikh informed the Sharia Kadi(Islamic judge) who lodged an FIR against the priest under Sudan Penal Code (SPC) on the grounds inter alia; breach of peace, disturbing public tranquillity and for trespassing in a place of worship. The trial Court convicted him on all counts and sentenced him to imprisonment, fine and deportation. On appeal before the Province Court, Jalal Ali Lufti P.J founded the charges implausible to the provisions of the SPC. The learned judge quashed the conviction and stated that:
“The accused did not enter the Hoshxix of the Khalwa with intent to commit any offence or to intimidate, insult or annoy any person in possession. He entered to fulfil a lawful object, to which the Catholic boys are entitled, and there were sufficient grounds to make him believe that his entry would even be welcomed by those responsible for the Khalwa . . . On the other hand neither the Khalwa nor its hosh are places for worship. . . . A Khalwa, as stated before, is a school below the elementary school where mainly the Koran is taught, together with Arabic and Arithmetic. . . . Muslims never go to a Khalwa to pray.”
There are many other similar landmark judgements where the courts in the Sudans upheld the right to freedom of speech and expression. Some of these are Sudan Government v. Milton Thompson,xx Sudan Government v. Darious Bashir & Othersxxi and Joseph A. Garang & Others v. The Supreme Commission & Others.xxii The last two cases deserve our attention. In Darious Bashir case, Mr Darious Bashir, Mr Bona Malwal and Mr Chan Malwal, the proprietor, editor and assistant editor of the Vigilant Newspaper respectively were charged under sections 105 and 106 of the SPC for arousing illegal opposition or hatred against the government and exciting hatred between the people. Prosecution was initiated because the Vigilant Newspaper carried a story about the reprisal killings of civilians in Juba and Wau by the army and the opinion article published by the paper under the title “Ours is National Liberation.” Abdal Mageed Imam J, in his judgement seems to have adopted an activist approach when he stated:
“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 frustrate both the letter and spirit of all laws and would render them futile.”
Joseph A. Garang case came at the background when the Constituent Assembly amended Article 5(2) of the Sudan Transitional Constitution (amended 1964) to criminalize free expression of opinion and association with communism and to disqualify Communist Party MPs from membership in the Constituent Assembly, as provided in Article 46. The amendment of Article 5(2) and (3) partly read thus:
“5(2) any person who shall perform or to seek to perform any act in furtherance of communism whether local or international, or perform or seek to perform any act in furtherance of apostasy or non-belief in heavenly religions or by way of using force or intimidation or any other unlawful means to perform or seek to perform any act to overthrow the Government;
“5(3) every association whose aim or means constitute a contravention of the proviso to sub-article (2) shall be deemed to be an unlawful association; and the Constituent Assembly may enact any legislation which it shall deem to be necessary for the implementation of the provisions of that proviso.”
In furtherance of this Amendment, the Constituent Assembly enacted the Dissolution of the Communist Party Act, 1964 to ban the Communist Party, declared it as unlawful association and to disqualify its eleven MPs. The petitioners thus challenged the amendment and dissolution of the party on the ground that the amendment was unconstitutional and it infringes their fundamental rights of free speech and freedom of assembly and association. Salah Eddin Hassan, J ruled that the Amendment and the Act were unconstitutional and violative of the said rights. He astutely observed that:
“……..as far as fundamental rights are concerned the Constitution makers by their silence intended that these guaranteed rights should not be subject to any abridgment by constitutional amendment during the Transitional period which is two years old. It is the paramount duty of the Constituent Assembly during these two years to make and pass the permanent constitution. It is also assumed with safety that the fundamental rights, especially those of free expression of opinion, and the right of free association and combination subject to the law should become completely inviolable even by the process of constitutional amendment until the passing of the permanent Constitution; so that every citizen whatever his political beliefs may be could have a say in the permanent Constitution, under which he and his children and maybe his children’s children shall live and survive.”
This judgment shows the sacrosanct of the fundamental rights in a civilized society which must be protected strongly by democratic system. Unfortunately, the judgment as it is known was not enforced by the government of the day but instead the Supreme Commission (acting as Presidency) dissolved the Constituent Assembly. The Indian Supreme Court in the case of L.C Golak Nath v. State of Punjabxxiii had almost made a similar judgment which it extensively elucidated and enunciated further in the case of Kesavanada Bharati v. State of Keralaxxiv to propounded “the doctrine of basic structure of the constitution.” According to this doctrine, there are some basic features of a constitution which cannot be abridged and that they are kept out of reach of government even by constitutional amendment power of the legislature. These features include the sanctity of fundamental rights, social justice, supremacy of the constitution, separation of powers, rule of law, unity and integrity of the nation etc.
4 – THE STAKEHOLDERS AND THE LEGACY OF FREEDOM OF SPEECH AND EXPRESSION
By stakeholders, I refer to the stakeholders in media profession. These include the journalists, the government at all levels, judiciary, legal profession (both private practicing Lawyers and State’s Legal Counsels), NGO partners and activists. For better protection of right to freedom of speech and expression, all these stakeholders need to come together into terms to genuinely cooperate on the enforcement of this primordial right on one hand. On the other hand, to lay down or agree on terms on how to avoid or tackle its abuse. For legacy, I mean the state of freedom of speech and expression in the today South Sudan and the contribution of stakeholders thereof. As part of stakeholders and their legacies on free speech, this section will briefly examine how stakeholders have contributed towards the realisation of the right.
Douglas J, of the U.S. Supreme Court on the freedom of press which is an essential aspect of freedom of speech and expression had once rightly said in the case of Terminello v. Chicago,xxv that “acceptance by the government of a dissent press is the measure of maturity of the nation.” The today’s civilized societies are distinguished from savage states/societies by how far the freedom of speech and expression is tolerated by the State or non state actors as protective agent, how the citizens as the owners seek its enjoyment and the manner in which judiciary inescapably uphold it on the other. As stated early, free speech includes the right to dissent and criticise the government. This dissenting aspect of free speech is the prerequisite of a healthy democracy. Every governed is expected to express her view no matter how bitter such views may be. Its absence will only attain a formal democracy where every right is restrictively guaranteed at sweet-will of the government. In such democracy, alternative views and ideas are opted out which eventually leads to standardization of ideas by the government and more likely by servile judges.xxvi To put it in Justice Krishna Iyre’sxxvii words, such democracy is a drugged, debauched and depraved democracy which attains nothing but despair our future. By and large, the state of free speech today in South Sudan is not quite promising. This makes me to remind the stakeholders with the words of great Indian eminent jurist, late Nani Palkhivala that:
“Constitution represents the charter of power granted by liberty and not the charter of liberty granted by power. Liberty is not a gift of the state to the people; it is a people enjoying liberty as citizens of a free Republic who have granted powers to the legislature and the executive.”xxviii
In this way, the stakeholders are reminded that they are duty bound to protect the rights whose protective power is entrusted in the government by the people.
At this point, some of the decided authorities may be illustrated to examine the state of tolerance on diversity of opinions as acceptance of free speech in South Sudan. The case of Members of SPLM-DC v. FVP, President of Government Southern Sudan and Chairman of the SPLM,xxix is one of the cases in issue. It was a case in which the respondents directed the Governors of the former Southern Sudan Ten States to cooperate with all the political parties except the SPLM-DC in a letter written in Cabinet Ministry’s headed paper and with stamp. The petitioners approached the Constitutional Court on the grounds among others that their right to freedom of expression and media (Article 39) and freedom of association and assembly (Article 40) under the Interim Constitution of the Republic of the Sudan, 2005 have been violated. Abdalla elAmin Bashir, President of the Constitutional Court who authored an ineffable majority judgment ruled the directive/order as unconstitutional and cancelled it. Bullen Panchol Awal J, dissenting, wrote his separate judgement. However, it is to be humbly submitted that the dissenting judgment of the learned justice is irrelevant and extraneous to the facts and submissions of the learned Counsels for the following reasons. In my reading of the judgment, I sincerely failed to allocate it (judgment) within the ambits of legal theories of interpretation.xxx Awal J said “I take judicial notice of Dr. Lam Akol who is well known for moving between parties……..the court could ask the detailed report on why this particular party is target.” I wonder how the learned justice reached his conclusion to suggest a defense ground to the respondents which they did not raise in their submission. For coherence, the learned Counsel for the respondents did only argue that the letter was a mere political administrative order of the Chairman of the Party (SPLM) not as FVP and President of GOSS. Regarding the motive of the letter, the respondent’s Counsels stated that it was just a directive in the context of cooperation between the parties operating in Southern Sudan except the petitioners. With this, I fail to see the ground on which the learned Justice reached his argument. More interestingly, he cited Joseph A. Garang authority as his illustration of why the activities of the petitioners should have been banned in Southern Sudan. The Court in the said authority did not uphold the Constitution Amendment and Dissolution of Communist Party Act, 1964 which banned the Communist Party and disqualified its MPs in the Constituent Assembly (precisely the Court in Joseph A. Garang case did not uphold the ban of Communist Party). But like Joseph A. Garang case, the majority decision was not enforced as it became evidently clear during the April 2010 Sudan’s general elections where the activities of the petitioners were restricted and properties allegedly confiscated by the Government till 2012 when Dr. Lam Akol, the Chairman of SPLM-DC reached an understanding with H.E. President Salva Kiir Mayerdit, the first respondent.
Another important case on the freedom of speech and expression in South Sudan is the case of Pagan Amum v. President of South Sudan and Chairman of the SPLM (2013).xxxi On around 23rd July, 2013, the SPLM Chairman who is also the President of the Republic Mr Salva Kiir Mayerdit issued a party standing order suspending Mr Pagan Amum from being the Secretary General of SPLM and to be investigated for the alleged mismanagement of the party affairs. Another order was issued subsequently which denied the petitioner free speech and movement (“not to make any press conference or address any media whatsoever and not to travel outside Juba until the investigation is completed and report so rendered.”) The petitioner petitioned the Supreme Court. He prayed for the Court to quash the order for being unconstitutional and violates his constitutional right to freedom of speech and media under Article 24 of the TCSS, 2011. It is worth noting that while the petitioner was filing the petition before the Court, he addressed the media houses inside the judiciary premises. This was fierily responded to by the Chief Justice on the basis that the petitioner had defied the order which denied him to address the media. This reaction proves that the learned Chief Justice has breach the sacred principles of judicial independence and impartiality. The Courts/judges are not bound by the impugned order of a person/an authority who is a party to the matter. The Court in its judgement ruled that the petitioner did not exhaust all the available remedies within the SPLM structure as section 308(c) of the Civil Procedure Act, 2007 requires. The Court also doubted whether the non-state actor can be held responsible for violating the human rights. In other words, the Court argued that the human rights violations cannot be enforced against the non-state actor/private citizen or political party in this case. I would like to make a few remarks on the two arguments in the following manner.
Firstly, on the exhaustion of available remedies as required by section 308(c), this section should not be read separately. Its reading and interpretation should be extended to include the necessary implication and intention of the provisions of Article 9(1)xxxii (4)xxxiii and Article 20(right to litigation)xxxiv of the TCSS, 2011. These provisions are parts and parcels of the Bill of Rights of which the Court is obliged to uphold. Mere requirement and existence for/of exhaustion of remedies as required by this section is not a sufficient ground to dismiss the petition for the enforcement of Bill of Rights. As long as the petitioner explicitly and impliedly proves that there is a violation of his/her fundamental right, it becomes not a discretionary power of the Court but a duty to afford such without strict adherence to the legislative requirement, otherwise the jurisprudential and Grundnorm intention of Articles 9(1) (4) and 20 are misread, misinterpreted and misapplied. A person challenging an action for violation of his constitutional rights should not be required to exhaust such daunting alternative remedies. What if that the application is the only chance before the petitioner get permanently harmed? Would it not amount to failure of the Supreme Court to enforce the Bill of Rights? The exhaustion of alternative remedies should be applied only if there is no direct or immediate infringement of constitutional rights.
Secondly, the question of whether human rights should be enforced against the non-state actor has been debated at length by the academic lawyers, profession and the judges. However, the human rights jurisprudence in the modern age has settled this debate. Few cases on the evolution of this jurisprudence are cited below to elucidate the scope of the term “State” state action/actor or non state actor. In the case of United States v. Cruikshank,xxxv the United States Supreme Court ruled that the Fourteenth Amendment prohibits against the State action only and not that of the private citizens. The Court said that the provision says nothing about the right of one citizen against another. In other words, the Court considered State as public authorities like the Congress, White House and Judiciary or any department/official that fall under each of the three. In Civil Rights Case,xxxvi the U.S. Supreme Court struck down the Civil Rights Act, 1875 and held that the Fourteenth Amendment prohibits a State action of a particular character only. The Court said that the wrongful act of an individual is simply a private wrong. These judgements were met with criticisms from the bench, bar and the academics because of strict interpretation of the term state action. These judgements also made racial discrimination to get rooted in the American society. However, the Supreme Courts of the United States developed and expanded the definition of State action first in the case of Smith v. Allwright.xxxvii In that case, the law authorised the political parties to frame their own rules for primary elections. The political parties prohibited the non-White voters from participating in the primary elections. The Court held that the exclusion of the non-White voters as State action. It stated that such action was in violation of the right to vote in a primary election. The court stated further that “the right to vote in a primary elections for the nomination of the candidates without discrimination by the State… is a right secured by the Constitution.” In the United Kingdom and with the enactment of the Protection of Human Rights Act, 1998, the U.K authorities were obliged to provide effective remedies for violation of human rights. Section 6 of that law imposes greater responsibility on the public authorities to protect human rights. In R (A) v. Partnership in Care Ltd,xxxviii the House of Lords held a private provider of mental healthcare to be a functional public authority within the meaning of section 6 (3) (b) of the Human Rights Act, 1998. The recent United Kingdom Supreme Court judgement in Gay Cake Casexxxix is even more interesting in the development of human rights jurisprudence. In this case, the applicant (a gay man) ordered a cake from the respondent with the words “support gay marriage” to be engraved on the cake. The respondent after they accepted the order declined afterwards on the grounds of religious belief that only heterosexual and marriage between man and woman is what is recognised by God. They contended that it is their religious right not to celebrate “same sex marriage.” Lee then sought a declaration from the Court to enforce his freedoms including freedom of speech. The Court in its judgement held both freedoms of the applicant and the respondents sacrosanct and inviolable. In other words, the Court has enforced the rights of both parties (religious freedom and freedom of speech). If the U.K Courts with constitutional system which says “I THE QUEEN” can enforce the human rights against the non-state actors then who are the South Sudanese judges not to enforce the Bill of Rights against the non-state actors when our Constitution’s preamble says “WE THE PEOPLE?” In fact, such restrictive interpretation of the term “State” has been scrapped long time ago in the Indian jurisprudence.xl
5 – CONCLUSION
To conclude, the question which is the title of this paper may be precisely answered here. In the discussion, it appeared that the stakeholders at some point have collectively achieved the constitutional promises. The freedom of speech and expression is both bought and fought with/by the freedoms of the people. Through judicial proceedings it is said to have been fought. It is also fought in the battlefields of all the longest wars we endured together. It is bought with the blood of the fallen heroes/heroines and wounded. It is bought with the freedom of all those who were/are detained in illegal and immoral detention cells. However, much still awaits the stakeholders. As it also becomes the fact in the foregoing sections, the judicial struggle for freedom of speech and expression is the most commendable struggle to everyone. This type of struggle has been spearheaded by some of [South] Sudanese distinguished lawyers such as Joseph A. Garang, Abel Alier, Hanna George to mention but few in addition to journalists like those of the vigilant, Hon. Alfred Taban, Ustaz Nhial Bol Aken who stood firm to report the deadly evils of the government in the heart of Khartoum and recently Alwatan Arabic Daily Newspaper. However, the South Sudanese courts need to boisterously enforce the Bill of Rights; otherwise any soft interpretation of the Bill of Rights will always impede the national being and presumably installed Stalinism. The jurisdiction for Constitution adjudication which is vested in the Supreme Court is one of the challenges that frustrates and reduces the chances of affording remedies for the petitioners. It is believed and hoped that in the future, this jurisdiction would be extended to the other Courts below the Supreme Court to give room for appeals either as expected in the upcoming transitional constitution arrangement with the introduction of Constitutional Courtxli as the provisions of R-ACRSSxlii require or as Article 9 (4) of TCSS, 2011 suggests. This suggestion is desirable because constitutional adjudication has been the hardest point in [South] Sudanese judicial system where the petitioners’ pleas are handled in unpromising manner particularly when the matter is against the government or an official. As to the prospects of the judiciary, the manner in which the learned Chief Justice reacted shows that the Bill of Rights is under threat and arguably the invested power in the judiciary has been subversively exercised.
The citizens should not be reluctant in litigation even when their prayers are not effectively handled. The ineffectuality of the judiciary or judges to propitiously uphold the Bill of Rights as it is seen in the cases of Pagan Amum and National Alliances v. President of South Sudan 2015xliii will serve as historical records in the future to testify against judge or Court who/which had declined to diligently accomplish the constitutional mandate. Constitutional rights Litigants should be celebrated, encouraged and protected like the American civil rights litigants like Linda Carol Brown of Brown v. Board of Education of Topeka,xliv by the government to peter-out the spirit of rebellion. This will support the civilized battles in the courtrooms and discourage the rampant armed rebellion. By doing this, it will create constitutional strength, faith and identity for the people to see their strengths in the courts and the constitution than in guns. That is the constitutional system we aspired for in the Juba Conference Hall and in the subsequent events of our liberation struggle. We fought those wars to achieve a constitution that protects all of us regardless of our tribes, gender, young or old, rich or poor, political opinion or regional belonging. It is in this spirit that our heroes/heroines fall knowing that those of us who will witness this day will be at the forefront in creating vibrant institutions which shall act as cornerstone of a democratic structure that accommodates our diverse opinions. The compromised interpretation by a committed judiciary and enforcement or the ill protection of the Bill of Right by the government is not a cry of that particular citizen who suffers the violation but a cry of the whole constitutional foundation which dates back to our many years of struggles.
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