By Tong Kot Kuocnin,
July 15, 2017(Nyamilepedia) —— Judiciary in every country has an obligation and a constitutional role to protect human rights of citizens. In every democratic society govern by law; the judiciary plays a pivotal role in dispensing justice to people regardless of their origin, race, colour, ethnicity, religion or political affiliation. The judiciary is such an institution that acts as a watchdog of any democratic society in protecting and enforcing constitutional rights and fundamental freedoms of every citizen of the country without any reference to sex, tribe or ethnicity, religion or political affiliation, national or alien. One is left with no word to express when I compare our judiciary with judiciaries of other countries, even the nearest neighboring countries of Ethiopia, Kenya, Uganda and Sudan where we broke away from, you will definitely cry if you truly love this country and its peoples.
They are truly established institutions meant for nothing but to administer justice to all irrespective of their gender, race, colour, tribe or ethnicity, religion or political affiliation. They truly devoted their times for nothing but to dispense justice speedily, fairly, impartially and independently from any interference from either organs of the government of the state. That’s the true meaning of the judiciary as institution whose role is to administer justice but not to adore or worship some petty political god’s fathers. That’s not the purpose and reason with which a prestigious institution like judiciary could be established and be led by petulant. As Montesquieu wrote in 1748 that, “there is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor”. Governance is however a process of decision-making. It is the sum of the many ways in which individuals and institutions manage their common affairs. It is undergirded by fundamental notions of inclusiveness, transparency and accountability, which themselves are ways of realizing the ideals of democracy, justice and fairness.
In 1803, one of the men of vision, Chief Justice Marshal of the United States stated “it is emphatically the province and duty of judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule”. This was supplemented recently by Lord Woolf, the Lord Chief Justice of England and Wales when he underscored the transformation that has taken place regarding the role of the judiciary and the process of judicial decision-making.
In a key note address at the thirteenth Commonwealth Law Conference held in Melbourne, Australia in 2003, he explained that “just as the common law has been evolving with increasing rapidity, so has the role of the common law judge. The judge’s responsibility for delivering justice is no longer largely confined to presiding over a trial and acting as arbiter between the conflicting positions of the claimant and defendant or the prosecutor and the defence. The role of the judiciary, individually and collectively is to be proactive in the delivery of justice. To take on new responsibilities, so as to contribute to the quality of justice. At the forefront of these new responsibilities is achieving to justice for those within the judge’s jurisdiction”. Does the judiciary of south Sudan under the incumbent Chief Justice has these tenets as pillars upon which, as an arbiter of human affairs, the judiciary can extol to dispense justice fairly, impartially and independently?
The judiciary especially the Supreme Court has lost it mission upon which it was established to serve. It has been politicized more than any other judiciary in the region. The behaviour of the Chief Justice and the manner in which he conduct himself and of that of the cases brought before it has rendered and compromised its independence and impartiality as an arbiter and enforcer of human rights and fundamental freedoms in the country. His obdurate conduct of the judicial affairs has obfuscated and completely obliterated the prospects of a judiciary in a democratic society.
The judiciary cannot sustain its credibility on its own and wins the confidence and trust of the people if the credibility gap grows steadily wider day and night between the institution and the general public and more notably the people whose rights have been violated. The judiciary which is the last hope to retrieve back those rights is the one that reneged on peoples’ rights, then hostility will eventually ensued and the private citizens will take law into their own hands. It is a constitutional and legal right of every person aggrieved and sought judicial help to get back his rights through constitutionally devised mechanisms. Everyone has right to litigation, speedy hearing and fair trial in a reasonable time frame. But it is quite unfortunate that our judiciary is too deformed to be reform.
Any reforms for the judiciary of South Sudan must begins with ousting of Chief Justice Chan Reec to pave the way for true and complete reforms informed of all tenets and pillars which requires true adherence to constitutional supremacy, recognition that government and the governed are equal before the law, acknowledge itself that government is limited by law and cannot engage in any arbitrary exercise of power and recognition that individuals are endowed with certain inalienable rights that cannot be denied or taken away even by a legitimately constituted government.
Only when the judiciary of South Sudan upholds these principles which cannot happen under the leadership of the incumbent Chief Justice, that it can be cleanse and reformed. The revamp includes ousting of the chief justice to give way for hot blooded justices, energetic, non-partisan, always neutral, impartial and completely independent to administer justice speedily, fairly, impartially and independently from any either the legislature or executive. This is only where the reforms can take place, and the judiciary takes its rightful place by winning back the confidence which has faded away.
The writer is a Master of Laws (LLM) Candidate at the School of Law, University of Nairobi. He can be reached via: tongbullen@gmail.com
