By Bida Elly David
The autonomy of the judiciary in South Sudan has been called into question by the Judicial Reform Committee (JRC) and the Council of State as the elections approach.
This issue arose during a meeting between the JRC and the Council of States in Juba on Friday.
Last week, Nathaniel Oyet, the first deputy speaker of the Revitalized Transitional National Legislative Assembly, advocated for greater visibility of the Judiciary, stating that they are currently toothless and underestimated.
Speaking during the meeting, James Ogoola, the chairperson of the South Sudan Judicial Reform Committee, expressed concerns about the dominance of power by the executive branch over judicial matters.
He pointed out that the president appoints the chief justice almost without any recommendations from others. Additionally, the same president appoints other judicial positions.
Mr. Ogoola highlighted the need for an independent constitutional court in the country and questioned who should have the authority to appoint its head, the president or the chief justice.
He further emphasized the importance of judicial independence, particularly in handling legal matters that may arise during elections.
“After the election, they will say the election was rigged, I petition. So those disputes will come to the judiciary. But now the judiciary we have is not experienced about those,” Ogola stated.
He noted that disputes related to rigged elections and petitions would come before the judiciary.
“We don’t want to go back to the gun again, to go back to war or to violence. The only rational, logical solution is to have a judiciary third arm of the state, which has people in good numbers, people adequately trained, people who are independent in their judgment, impartial.”
He stated that the Judicial Reform Committee’s role is to strengthen and address any weaknesses within the judiciary.
He asserted that establishing an independent judiciary is crucial to avoid resorting to violence and to ensure impartial and fair judgments.
The JRC chairman tinted the need for clear separation of powers between the three branches of government through constitutional justice.
Given that South Sudan is heading for its first elections, he urged the country to consider judicial independence as a key factor.
He anticipated potential disputes, problems with nominations, grievances from individuals, and issues with the electoral commission falling under the jurisdiction of the judiciary.
Mr. Agoola questioned the extent of the president’s authority in appointing key positions within the judiciary, particularly in the presence of the chief justice.
“He appoints deputy chief justice of the Supreme Court, Court of Appeal, the other judges, he appoints them upon recommendation, I think, of the Judicial Service Commission. Why is there that distinction? But also, Chief Justice seems to have quite some powers in these things, like promotion and so on and so on,” he said.
He also clarified that the chief justice has the power to grant a small judge the authority of the high court.
The JTC chair stated that Parliament has a significant role in advocating for judicial autonomy, as stipulated in the constitution.
For her part, Mary Ayen, the first deputy speaker of the Council of States, agreed with James on the importance of judicial independence.
She described the South Sudan legal system as complex, with a mixture of the old Sudanese constitution still in use.
Ayen stated that unless a constitutional court is established, the separation of powers will never be clearly defined.
Ayen expressed frustration with the absence of a constitutional court, which has resulted in many pending legal cases within the Council of States.
She believed that if a constitutional court existed, these cases could be presented before it.
“We felt like if there were a constitutional Court, we would have taken this document to the Constitutional Court. Because if you go through it, you will see that in so many provisions, the Council of State either is completely forgotten,’’ she said.