Misconception About Rwanda Genocide and the South Sudanese Agitation

By Dut Deng Kok, Juba, South Sudan

Thursday, August 1, 2019 (PW) — After the genocide experience in 1994, Rwanda continues. In remembering its dead population during the ugly tragedy, a museum was created in their honor with a bold inscription written on it ‘’Never Again’’. This is the best that has happened to those victims of human cruelty.

With the above understanding, it has become imperative for we at the Foundation for Peace Professionals to re-direct a certain misconception about the Rwanda genocide that is being thrown around by analysts, when they are commenting on the implication of ethnic based secessionist hate in South Sudan, which may lead to similar thing as experienced in Rwanda.

While most commentators are right in quickly referring to the Rwanda Genocide experience in other to caution agitators about the consequences of their actions, it is important to bring us to another perspective that is yet to be properly looked at and fully appreciated.

In 1994, when the ethnic based hate campaign began in Rwanda, the total population of the country was just a little over 6 million.

South Sudan: The Office of the President under the Transitional Constitution, 2011,(Amended 2015)

The Office of the President under the Transitional Constitution, 2011 (Amended 2015): Is it a Cultivation of a Hegemonic Presidency in South Sudan?

By Tong Kot Kuocnin, Juba, South Sudan

President Kiir’s Bahr el Ghazal tour, Feb 2019

I. Introduction

Wednesday, July 17, 2019 (PW) —- A country’s constitution plays the major role in ensuring constitutionalism since it creates and allocates powers to the institutions of government and also seeks to control and/or restrain the exercise of such powers. It is noteworthy that state institutions comprise the Executive; the Judiciary and the Legislature.

This article analyses the role of the constitution in checking the powers of the president (who heads the Executive) in order to achieve constitutionalism in a democratic state. It singles out the office of the president (presidency) as it yields more powers compared to the other institutions and hence has crucial impact on constitutionalism, good governance and the rule of law. The article discusses and focuses on the office of the president under the TCSS, 2011 (Amended 2015) to highlight how the unchecked presidential powers which continue to stifle constitutionalism in South Sudan. 

This article first gives the general introduction and background before analyzing the office of the president as enshrined under the Interim Constitution of Southern Sudan, 2005 and the TCSS, 2011 (Amended 2015). It will also discuss to ascertain whether or not the office of the president (presidency) is a hegemonic presidency. However, before it concludes, the article will discuss and examines the cultivation of a hegemonic office of the president (presidency) under the constitution of South Sudan, 2011 in correlation to the Interim Constitution of Southern Sudan, 2005.

The Conflict Between the Right to Freedom of Expression and the Law of Defamation in South Sudan

The Right to Freedom of Expression and the Law of Defamation in South Sudan: A Juristic Analysis

By Tong Kot Kuocnin, Juba, South Sudan

Kerbino Wol Agok and Peter Biar Ajak

I. Introduction

Tuesday, July 02, 2019 (PW) —- Freedom of expression is one of the fundamental rights, which are universally recognized and protected. Indeed, the Constitutions of most countries of the world, including South Sudan, have expressly provided for the protection of this right because of its importance and relevance to the enhancement of personal liberty and democracy. The right to freedom of expression is also protected under the Universal Declaration of Human Rights and the various regional Instruments and Conventions on human rights, including the African Charter on Human and Peoples Rights. Obligations and duties are imposed on the State or its agencies and on individuals to protect and promote human rights and fundamental freedoms.

However, the right to freedom of expression, like most other rights, is not absolute. There are recognized restrictions and exceptions to this right; one of which is to be found in the law of defamation. Thus, the enjoyment of the right to freedom of expression must take into consideration the right of other citizens to protect their reputation. The courts therefore have an important role to play in balancing the conflicting interests between freedom of expression and protection of reputation. This article aims at examining the legal and constitutional guarantee of the right to freedom of expression in South Sudan and the extent to which the law of defamation has restricted the enjoyment of this right. The effectiveness of the South Sudanese courts in striking an acceptable balance between the two conflicting rights and interests in this regard is also examined.

The Case of Arbitrary Arrests and Detentions in South Sudan: A Juristic Analysis

By Tong Kot Kuocnin and Ms. Yar Telar Deng, Nairobi, Kenya

Peter Biar Ajak is a South Sudanese PhD student of politics and world affairs at Cambridge University in the UK; he was detained by agents of the national security at Juba International Airport on his way to Aweil for the celebration of Red Army Day.

Wednesday, March 20, 2019 (PW) Abstract: This paper deals with the “Rights of arbitrarily arrested and detained persons in South Sudan”. It is based upon the juridical norms of criminal law which presumes that the “thousand of accused persons can be punished but one innocent shouldn’t be punished arbitrarily”.The paper explicitly articulate that one of the basic tenets of our legal system is the benefit of the presumption of innocence of the accused person till he/she is found guilty at the end of the trial conducted by a dully constituted open court of law based on the evidence gathered. The reason being that the rights of an accused person not to be arbitrarily arrested and detained are sacrosanct. The accused in South Sudan are accorded certain rights, the most basic of which are found in the South Sudanese Transitional Constitution, 2011.

Kerbino Wol Agok

I. Introduction

There are several key pieces of legislation in South Sudan that relate to arrest and detention, most notably the Transitional Constitution of South Sudan, 2011 and the Code of Criminal Procedure Act, 2008.

The Transitional Constitution 2011 sets out a comprehensive Bill of Rights that promotes life and human dignity, personal liberty, equality before the law, the right to a fair trial and freedom from torture. The Code of Criminal Procedure Act, 2008 sets out the procedures for arrests and detentions and allocate powers to the relevant authorities.

South Sudan and the Inhumanity of the Death Penalty

By Kur Ayuen Kou, Melbourne, Australia

Friday, February 22, 2019 (PW) — I am deeply appalled by the continuous use of death penalty as the best form of punishment in our fractured society. In a span of one week, South Sudan has carried out six executions on inmates, some of who have not exhaust all their legal options, including the right to appeal for clemency to His Excellency the President of the Republic. REST IN PEACE!

This is a worrisome development in a country that is preaching forgiveness, tolerance and peace. It’s very painful that the government can embark on this undertaking when it has other weighty state responsibilities.

As concerned citizen of our nascent Republic, we are call to duty when the responsibility knocks on our doors. The duty to protect, preserve and defend the constitution does not only lie with the government, it’s a collective responsibility of every citizen. Our national heroes including our President gave their lives to liberate millions of us from the bondage of slavery.

South Sudan: Whose power is it to change the name of the SPLA to SSPDF?

By Wol Deng Akech, Lucknow, India

President Kiir paying his last respect during the public viewing of the body of the late Gen. James Ajonga Mawut, chief of general staff of the SPLA

Thursday, 04 October 2018 (PW) — On Tuesday, 2^nd 2018, H.E President Salva Kiir issued a presidential decree which changed the name of the nation’s national army from Sudan people’s Liberation Army to South Sudan People Defence Forces. It is not known what triggered for this prompt change. The change of the name seems to have come into the power of President as Commander-in-Chief of the SPLA. Many critics have been commenting on the name SPLA and appealed for the change of the name of the army to meet what they think may be the conformity of the army to its national duty. As it appears from the decree itself, the decree came as a result of the SPLA 6^th Command Council Conference held on 3^rd August 2017.

With such circumstantial developments, one has to look at it and find out as to where does such power fall under or originated from within the Constitutional scheme(i.e powers of the president and Commander-in-Chief under Articles 10, 151-154 and the Schedules provided in the constitution) and the statutory framework provisions under the SPLA Act(Amended), 2009.   In both frameworks, nowhere it is mentioned specifically whether the naming of the armed forces shall be exclusive power of the national executive/the president.

It is therefore pertinent to be said that such powers are incidental in the exercise of the constitutional powers expressly and impliedly provided under the constitution. Thus, the question is whose power is it? The answer to this question is the purpose of this article. Another question which poses itself as a result of the name effected is whether the name changing guarantees a “reform or transformation” of the army or promising?

The sadden silent of the legal profession on the IGAD-led R-ARCSS

By Wol Deng Akech, Lucknow, India

1. Introduction

Tuesday, September 11, 2018 (PW) — 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.

Transitional Constitution of South Sudan, 2011 Amendment Bill, 2018: A Juristic Commentary

By Tong Kot Kuocnin, Nairobi, Kenya

 

Friday, August 03, 2018 (PW) — As this author once wrote about the transitional periods in south Sudanese politics, a series that is still in its third publication stage, there’s yet another transitional period which emerged as the TNLA amended the Transitional Constitution of the Republic on a Bill introduced to the August House by the Hon. Minister of Justice and Constitutional Affairs of the TGoNU to extend lifespan and mandate of the Office of the President, the Office of the FVP, the duration and term of the TNLA, States Governors and States Legislative Assemblies from 12^th August 2018 to 12^th August 2021.

 The Bill sought to amend Articles 66(2), 100(2), 103(A), 164(5) and 165(1) of the Transitional Constitution of the Republic of South Sudan, 2011 (as amended) 2018 to provide for the extension of the term of office of the above organs of the state.

The Bill is cited as the “Transitional Constitution, 2011 (as Amended) Bill, 2018, which of course, shall come into force upon the assent of the president of the republic.

The authority upon which the government relied on is initiated in accordance with the powers vested in the president or the FVP under article 106 A (4)(c)(i) of the Transitional Constitution, 2011 (as amended) as well as powers vested in the National Legislature under Article 55(3)(a) read together with article 199.

The Resignation of Justice Bullen Panchol Awal from the Supreme Court of South Sudan

By Eng. Deng Diar Diing, Mombasa, Kenya

Monday, July 2, 2018 (PW) — “Justice suffers when men refuse to stand firm for what is right. If we don’t fight lawlessness, it prevails. If we don’t establish the truth in our nations, truth becomes foreign in the country. God says there is no man when there is nobody who stands for the truth.” Sunday Adelaja.

When I heard that Justice Bullen Panchol Awal Alier finally threw in his towel as a judge of Supreme Court of South Sudan on Friday 29th of June 2018, I then knew the last nail on the coffin of meritocracy, objectivity and the spirit of rule of law has been driven home by the beneficiaries of anarchy in beloved Country.

Bullen Panchol has been among the few judges who have refused the use of Supreme Court as a tool of settling political scores, something that has kept the 64 tribes together regardless of daily mayhem our country witnesses. This is something that has stood between him and being the President of Supreme Court(Chief Justice), a worthwhile course indeed!!!

The Legal Implications of UN Sanctions on the Republic of South Sudan

By Tong Kot Kuocnin, Nairobi, Kenya

This slideshow requires JavaScript.

Monday, June 25, 2018 (PW) — As the conflict in South Sudan continues unabated, the international community in collaboration with regional blocs led by the IGAD, took central stage in bringing together the warring parties to a negotiated political settlement of the conflict.

However, given the inability of the parties to the conflict to strike a sustainable and implementable peace to alleviate and lessen the suffering of the vulnerable people, mostly children, women and elderly people, the international community has embark on the use of threats of arms embargo, individual and economic sanctions as well as freezing the accounts and assets of the parties involved in the conflict.

The US has been leading this crusade of sanctioning individuals from both parties to the conflict who have been seen as obstacles to peace as a punishment mechanism to deter frighten them as well as a hammer to forcefully persuade those peace destroyers.

The central theme of this article is to analyze the legality, implications and effects of sanctions under the UN Charter taking South Sudan as a case study.     

Is Independence of the Judiciary of South Sudan a Reality or Myth?

By Tong Kot Kuocnin, Nairobi, Kenya

Monday, May 21, 2018 (PW) —The increasing reliance by South Sudan polity on the court to decide major political disputes and issues of public interest has brought the independence of the Judiciary into sharp focus and criticism.

Informed opinions on the Judiciary in South Sudan varies between those who believe that the “Judiciary is dead” or that it is “on trial” and the more compassionate view that it is a “beast of burden” or a “sacrificial lamb” waiting to be roasted by the executive.

These remarks are derive from observations of the alleged or actual behaviors of the judges and their independence, impartiality and integrity. While the above metaphors may be subject to various interpretations, they do raise consideration, curiosity and interest as to why our Judiciary should attract such comments and perhaps to what extent the concepts are justified.

This writer has incessantly, on numerous instances, written extensively on the independence and impartiality of the judiciary, its judicialization, institutional reforms needed and whether the judiciary has been politicized or is it in crisis.

The (un)constitutionality of the state of emergency declaration in Aweil East state

By Dut Kuot Akok, Juba, South Sudan

July 29, 2017 (SSB) — In South Sudan, whenever they see such a question, the first thing that comes to theirs mind and makes conclusion of you without going deeply to read first what the question is all about is to either label you as Rebel, traitor or economically traumatized indigent who is out of his mind owing to current economic crisis the country is going through.

Such hysterical perceptions and egocentric attitudes are what brought us to this irretrievable man made debacle since we fear realities and bits of advice that could have correct our mistakes but we intentionally reject them because they hurt and point out our failures and ignorance.

Thus, they wrongly perceived as such, however, we should not bury our heads in the sand that we will be called Rebel (s) or traitor (s) but we should continue pointing out the truth and finger point the wrongdoers concurrently. Less importantly, they should be allowed to vomit their venom to the best of theirs appetite by calling whatever names they like but the truth remains clear as a bell.

Is the state of emergency decree an attempt to rescind the national dialogue? (Part 1)

By Wol Deng Akech, Juba, South Sudan

SPLM Reunification: President Museveni meets President Kiir and G-10 leaders in Kampala

July 26, 2017 (SSB) —- As issues of public debate cannot be approach without aligning them to legal instruments or public policy frameworks, I decided to make an attempt in answering the question above by examining National, Regional and International frameworks and lastly personal opinion approach by discussing the chances of viability of National Dialogue alongside the State of emergency (SoE).

On July 17, 2017, President Salva Kiir issued another shocking evening presidential decree like the Justices and Judges Dismissal decree. This time, President of the Republic issued a decree in accordance with Article 189(1) of the Transitional Constitution of the Republic of South Sudan 2011 (amended 2015) three (3)-months state of emergency in Gogrial, some part of Tonj, Wau and the Aweil East States.

This decree came at the background of intensifying inter-communal fights among the three communities of Gogrial State namely; Apuk Vs Aguok, Apuk Vs. Kuac Ayok and Apuk Vs. (Abiem Mayer in Tonj State). These communal fights left a number of dozens of people killed and no one detained for the agitation of such violence.

Judiciary Independence, from What?

By Wol Deng Akech, Lucknow, India

IGAD plus President Kiir, 25 July 2017

July 25, 2017 (SSB) — For the last two months, the question regarding the Judiciary independence became a matter of a public debate and interest due to the circumstance of Judiciary strikes demanding the improvement of conditions of work within the Judiciary and relieve of Chief Justice Hon. Justice Chan Reec Madut by the President or to tender his resignation to the President. The same matter reached its high climax when the 13 Justices and Judges were dismissed by President Salva Kiir through an evening Presidential decree (Decree No: 100/2017) which is out cried by the nation and the region as well.

As a member of this learned fraternity, one feels it as necessary to make some attempts in pursuit of a better judicial system in our country.  The purpose of this piece of writing is to test the independence of Judiciary in the Republic of South Sudan in regards to selection, recommendation, appointment dismissal of Justices and Judges.  It will also discuss the basis and legality of the dismissal order, the lack of which will mean powers of the executive without limits is tyrannical in practice or judiciary/Justice with the decision without force/power or independence is powerless.

Thus, we must have an executive which runs its daily activities within the ambit of Constitution and the law and Judiciary which has to administer, presides cases, makes its decisions with force for the establishment of functionary justice delivery institution.  The legal nature of the decree will be discussed at a later stage in this paper and eventually leads to a conclusion with some recommendations, but the first one would like to examine the conditions in which a judiciary is referred, to be independent.

South Sudan: Justices and Judges Need Nation’s Shoulder to Lean On

By Wol Deng Atak, Nairobi, Kenya

Molana Wol Deng Atak

July 15, 2017 (SSB) —- I applaud the courage of Justices and Judges threatened by Kiir’s Administration with punitive measures for calling for justice. Their collective resolve to stay the strike despite the threats against them is remarkable; and this sends a crystal clear message to Kiir’s Administration in Juba that it is not enough to suppress genuine demand by decrees.

The calls for justice, improved working conditions, and resignation of Chief Justice need every one of us to support. We ought to give it up to the Justices and Judges in support of their clarion stance. Leaving it to them to battle it alone would not only defeat the common good of every citizen, but would also make it impossible to bring desired solution for common good of every citizen in the near future.

The reality on working conditions at the Judiciary dawns on me when I visited high court to only learn that the court’s proceedings had been adjourned because of lack of papers for Judges to record the details of the court proceedings. There was ‘no money to buy the papers’.

Justice Under Fire: The Unfolding Tragedy at the Judiciary of South Sudan

Justice under Fire: The Dismissal of 13 Justices and Judges from the Judiciary of South Sudan

By Tong Kot Kuocnin, Nairobi, Kenya

 

July 14, 2017 (SSB) — One is not surprised at all to hear and see the dismissal of the honorable justices and judges from the judiciary of South Sudan by the president. As the justices and judges went on an open strike two months ago protesting against the leadership of the honorable Chief Justice and requesting the head of state to remove him from office for his failure to manage the judiciary effectively, and efficiently, the men and women of honor faced the wrath of the misdeeds of the president and his in-law, justice Chan Reec Madut.

It has not unknown to al South Sudanese what the intentions of both men is regarding this great institution in our. It is not a new thing either to be surprised that innocent justices and judges can be dismissed from the Judiciary especially those who are opposed to the chief justice’s corrupt and dictatorial tendencies. The first victim, a man of honor was justice Ruben Madol Arol, the former deputy chief justice who unlawfully removed from office simply because he asked the chief justice to excused himself from the bench since the litigants were no longer enjoying any trust and confidence in him in presiding over the case brought before the constitutional panel in the Supreme Court challenging the order of the president which created the 28 states at the time.

Why the Chief Justice Chan Reech Madut must go now!

By Simon Manut Chan, Juba, South Sudan

June 19, 2017 (SSB) — On 20^th April 2017, the legal fraternity led by the Justices and Judges Committee of the Judiciary of South Sudan held a dramatic press conference where they issued a press release outlining their grievances to the Government and the public at large.

1. One of their chief demand topping the list was a called for the immediate resignation of the Chief Justice Chan Reech Madut which will be the subject of this piece of article.
2. The Justices and Judges Committee joins several other individuals and institutions that have been calling for the Chief Justice to step down as part of the reforms of the judiciary over the years.
3. Finally Justice Khalid Mohammed Abdalla, Chairperson of the Justices and Judges Committee says “the rationale behind our demands is in order to deliver good services to our people, address the backlog of cases and to strengthen the independence of the Judiciary of the Republic of South Sudan”.
4. With the above conclusion, Justices and Judges Committee and all the staff of the Judiciary all want to work under a new judiciary that would be well regarded by society and that all South Sudanese should be accountable and equal before the law.

Judiciary of South Sudan: A Paralyzed and Dysfunctional Third Arm of the Government

By Tong Kot Kuocnin, Nairobi, Kenya

The newly appointed Governor of Ruweng state Hon. Them Machar Kuol

June 19, 2017 (SSB) — In most of my preceding articles on the state of the Judiciary of South Sudan, on how best this great institution can function effectively, efficiently and independently from the other arms of the government, I have had a number of cocktail ideas inadvertently swarming in my mind on how best I can contribute as a law abiding citizen of this country on the quest for an equal, just and prosperous society guided by the principles of natural justice, equality and liberty.

I have had in a number of times shared my thoughts and ideas on how the judiciary of South Sudan should indeed be made to meet its standard and its rightful place as an institution charged with sole responsibility to deliver and administer justice to the populace. I have had all the time sleepless nights and days as I felt like not contributing in the quest for justice and judicial reforms much needed by our great institution as well as the people of South Sudan.

The illegality, unconstitutionality, and unpopularity of Eastern Lakes cabinet

By Tong Kot Kuocnin, Nairobi, Kenya

Governor Rin Tueny Mabor of Eastern Lakes state

June 7, 2017 (SSB) — First and foremost, as a legitimate citizen and a son of Eastern Lakes State, allow me to register and adds my voice to the unfolding political wrangling which has been dominating the social media for the past couple of days of the allegations that the Hon. Governor of Eastern Lakes State has been quoted on Radio Tamazuj to have said that he has the power to dissolve the Transitional Legislative Assembly of Eastern Lakes State, a statement which prompted the two or three honorable MPs to go viral on both the social media and radio interviews.

The said allegation has been voiced out in the social media and Miraya FM radio interviews by the said honourable MPs of Eastern Lakes State Transitional legislative Assembly with regards to the status of the cabinet of Eastern Lakes State. This is a serious matter which must not be ignored. However, before I indulgent you into the burning issues for discussion in this article, I wish to briefly explain the legal and English terms thrown around and alleged to have been uttered by the honorable MPs as they appeared in the heading of this article.

Rule of Law and Democracy: Addressing the Gap between Policies and Practices in South Sudan

By Molana Arop Malook Lual, Juba, South Sudan

South Sudan’s coat of arms, in which the eagle symbolizes vision, strength, resilience and majesty, and the shield and spear the people’s resolve to protect the sovereignty of their republic and work hard to feed it.

May 5, 2017 (SSB) — The Declaration adopted on 24 September 2012 by the United Nations General Assembly in which South Sudan is a member at the High-level Meeting on the Rule of Law at the National and International Levels reaffirmed that “human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations”. Indeed, government responsiveness to the interests and needs of the greatest number of citizens is strictly associated with the capacity of democratic institutions and processes to bolster the dimensions of rights, equality and accountability.

If considered not solely an instrument of the government but as a rule to which the entire society, including the government, is bound, the rule of law is fundamental in advancing democracy. Strengthening the rule of law has to be approached not only by focusing on the application of norms and procedures. One must also emphasize its fundamental role in protecting rights and advancing inclusiveness, in this way framing the protection of rights within the broader discourse on human development.