By Pur Thok GokDak
The Gubernatorial Order No. 33/2023 issued by the Jonglei State Governor, H. E. Denay Jock Chagor, dated 19th October 2023 for the Formation of High-Level Committee for Land Investigation in Jonglei State, 2023 A.D. to investigate the Former Mayor of Bor Municipal Council (who is also the Appointed Commissioner for Bor County) and Head of Jonglei State Legal Administrations for unlawful land agreements with companies and individuals in Bor, has created legal dilemmas. By definition, a legal dilemma exists when an actor confronts
irresolvable an unavoidable conflict between at least two legal norms that obeying one or applying one norm necessarily entails the undue impairment of the other.
Unquestionably, Governor Denay is the head of the executive branch of the State Government and represents the will the people of the Jonglei State as well, as provided in under Article 164 (2) of the Transitional Constitution of the Republic of South Sudan, 2011 (amended), read together with Article 99 (1) of the Transitional Constitution of Jonglei State, 2011 (amended).
To that effect, Governor Denay has all powers and prerogatives to exercise, in the ambit of laws, powers vested on him under Article 99 (2) of the Transitional Constitution of Jonglei State, 2011 (amended), read together with Article 164 (6) of the Transitional Constitution of the Republic of South Sudan, 2011 (amended) as well as Section 36 and 37 of the Interpretation of General Laws, 2006.
Nevertheless, the Gubernatorial Order No. 33/2023 of Governor Denay created the following.
legal dilemmas:
The first pressing legal dilemma in this matter is the legality and constitutionality of
investigating the Jonglei State Head of Legal Administration, who is Counsel General of the National Ministry of Justice and Constitutional Development pursuant to purported Gubernatorial Order No. 33/2023.
At the outset, it is imperative to take note that Legal Counsels are not immune from disciplinary measures and/or actions as provided under Section 57 of the Ministry of Justice and Constitutional Development Organization Act, 2008 which states that: “Any Legal Counsel who violates professional ethics, rules and regulations or behaves in a way that is incompatible with the duties of his or her office, or commits an act which degrades the Ministry or legal profession, shall be subject to investigation and possible discipline”. However, under Section 58 of the Ministry of Justice and Constitutional Development Organization Act, 2008, read together with Section 5 of the Investigation Committees Act, 2006, it is the Minister, Under Secretary or the Counsel General who supervises the work of the Legal Counsel involved, to constitute Board of Discipline after an administrative investigation has been conducted by the Counsel General who supervises the Legal Counsel involved, or in the case of a Counsel General, the Under Secretary.
Hence, the Gubernatorial Order No. 33/2023 did not take into cognizance of the fact that the Public Attorneys and Legal Advisors are under the National Ministry of Justice as provided under Section 24 of the Ministry of Justice and Constitutional Affairs Development Organization Act, 2008, read together with Article 136 of the Transitional Constitution of the Republic of South Sudan, 2011 (amended). And therefore, it is the National Ministry of Justice that has exclusive powers on the administrations, discipline and any other issue related thereto or incidental to the duties of the Legal Counsels and Legal Advisors as provided under Schedule A (22) of the Transitional Constitution of the Republic of South Sudan, 2011 (amended).
The second pressing legal dilemma is the legality and constitutionality of the letter addressed to H.E. Denay Jock Chagor, the Governor of Jonglei State by the H.E. Jacob Akech Dengdit, the Deputy Governor, Jonglei State: “Subject: Rejection of the unilateral formed High-Level Committee by the Governor Denay Jock Chagor’s Order No.33/2023 Dated 19th Oct. 2023 to Investigate the Former Mayor of Bor Municipal Council and the Current Appointed Commissioner of Bor County and Director for Legal Administration in Jonglei State”, with Ref. JS DG O.A.1.A, dated 20th October 2023. The same letter was also echoed by letter addressed to
H.E. Denay Jock Chagor, Governor of Jonglei State by Minister of Housing, Lands and Public Utilities: “Subject: Resignation from the formed High-Level Committee as per the directives from my Party SPLM Chairman.”, dated 22nd October 2023.
Deputy Governor of Jonglei State and the Chairman of SPLM, H.E Jacob Akech Dengdit and the Jonglei State Minister of Housing, Lands and Public Utilities ought to have taken cognizance the fact that, they both, are answerable to the State Governor under Article 164 (2) and (4), read together with Article 99 (2) (a) and (b) of the Transitional Constitution of Jonglei State, 2011 (amended). Nonetheless, the Deputy Governor, as well as State Minister, has constitutional
obligations to address legitimate and genuine State issues to the Governor, pursuant to directives of the President of the Republic of South Sudan, dated 12th April 2021, addressed to the ten (10) States and three (3) Administrative Areas: Cooperation and Collegial Governance of the State Government” through meetings and/or dialogues, and not through written documents that can, likely, tarnishes the image of the State Government and could also, possibly, arouse undesirable sentiments amongst the communities of Jonglei State.
The third legal dilemma is legality and constitutionality of investigating Former Mayor of Bor Municipal Council and the current Appointed Bor County Commissioner. It is imperative to note that a Republican Decree is a law in the Republic of South Sudan as provided for under Section 31 of the Interpretation of the General Laws, 2006, unless and otherwise, contested under Article 104 of the Transitional Constitution of the Republic of South Sudan, 2011 (amended). The fact that the Former Mayor is the Current Appointed Bor County Commissioner, immune him from,being subjected to any investigation by virtue of being Appointed through Republican Decree, even though he has not yet been sworn into Office. The Appointed Commissioner should have his Appointment revoked, by the Appointing Authority, before he answers for his blameworthiness.
The fourth legal dilemma is the legality and constitutionality of the precedence of the Gubernatorial Order No. 33/2023 over the Decision of the High Court of Jonglei State. The ‘Right to Litigation’ is one of the Bill of Rights enshrined under PART TWO of the Constitution of the Republic of South Sudan. In fact, Article 20 of the Transitional Constitution of the Republic of South Sudan, 2011 (amended) states that: “The right to litigation shall be guaranteed for all persons; no person shall be denied the right to resort to courts of law to redress grievances whether against the government or any individual or organization.” Moreover, Article 123 (1) 20 of the Transitional Constitution of the Republic of South Sudan, 2011 (amended) states that: “Judicial power is derived from the people and shall be exercised by the courts in accordance with the customs, values, norms and aspirations of the people and in conformity with this Constitution and the law”; additionally, Article 125 (1) of the Transitional Constitution of the Republic of South Sudan, 2011 (amended) states that: “The Judiciary shall be independent of the executive and the legislature.”
The matter purported to be investigated vide the above-mentioned Order is being adjudicated before the High Court of Jonglei State whereby the High Court Judge has ordered Stay of the Execution pending final decision on the “Civ/App/No/82/2023 for judicial review of the stay of execution”. Hence, as mandated by the Constitution and the law, the High Court Decision on this matter supersedes the Order, and thus, the State Government (and aggrieved (women) vegetable- sellers) ought to have followed the case (through their Counsel who represents the State Government) before the High Court of Jonglei State and furthermore, before Court of Appeal and finally, before the apex Court of South Sudan, the Supreme Court. The visiting of the sites and also verbal ordering stoppage of constructions by Governor Denay, himself in person, is not
within ambit of laws, because it is the mandate of the courts to order for injunctions and thereafter, the police enforce the orders of the courts.
The final legal dilemma is the contradictory messages from the Civil Society Organizations that contravene the provisions of South Sudan NGOs Act, 2016: firstly, the Jonglei State Youth Union wrote a letter (dated 21.10.2023) to Governor Denay and shared it on media supporting the Order of Governor Denay; and secondly, Juor-koch Youth Association and Juor-koch Community Leadership, respectively wrote letters (both dated 23rd October 2023) to Governor Denay and shared them on media rejecting the Order of Governor Denay. The third and the most appalling scenario is the meddling into and instigation of escalating pollical strife between Governor Denay and the Deputy Governor Akech, by the Chairperson of Jonglei State Civil
Society Network, Bol Deng Bol. On his Facebook, Bol Deng Bol posted both the pictures of the Order of Governor Denay and the picture of the Rejection of the Order by Deputy Governor Akech on 22nd October 2023 a wrote: “WITHOUT FEAR OR FAVOUR, please execute your mandate”. The body of the message is conclusive evidence of his meddling into political strife between Governor Denay and Deputy Governor Akech (I request my readers to read his post).
On 23rd October 2023, Bol Deng Bol posted both the pictures of the Order of Governor Denay and the picture of the Rejection of the Order by the Deputy Governor and wrote: “ACCOUNTABILITY WILL EVENTUALLY SUFFCIE”. Again, the body of the message is conclusive evidence of his instigation of the escalation of political strife between Governor Denay and Deputy Governor Akech (I request my readers to read his post). Eventually, Bol Deng Bol wrote a letter and shared it on media appreciating the formation of the High-Level Committee, dated 25 October 2023.
And fourthly, Anyidi Youth Association wrote a letter (dated 26th October 2023) to Governor Denay and shared it on the media rejecting the Order of Governor Denay. More and more letters emanating from Civil Society Organizations supporting and rejecting the Order of Governor Denay are expected to flood the media.
The Civil Society Organizations such as Jonglei State Youth Union, Juor-koch Youth Association, Juor-koch Community Leadership, Jonglei Civil Society Network, and Anyidi Youth Association are pressure groups formed on the mandates of non-partisan, non-political, community interest-based humanitarian-based pursuant to provisions of the Non-Governmental Organization Act, 2016.
Member (s) of Civil Society Organizations should be peace-abiding, peace-lovers and peace- promoters and ought to have not fueled political strife in the State Government by having taken either side. Additionally, member (s) of Civil Society Organizations could have refrained in affairs that tarnish image of the Jonglei State Government and also could not have partaken activities that can arouse undesirable sentiments amongst the communities of Jonglei State because they are NOT political parties.
The author can be reached via email at gpurthok@gmail.com