BUL DENG YOL-NKUMBA UNIVERSITY-Chief Justice David Maraga once opined that “the greatness of a nation lies in its fidelity to its Constitution and strict adherence to the rule of law.” The Constitution is the superior source of law, and this informed the reason any other law that contradicts its position is inconsistent with the level of inconsistency. Vital and core to the above is the common saying that ‘nobody is above the law.’
Many are times constitutional postholders and protégés abuse their privilege status and end up acting as if they owe no one duty in the society. To nip the vicious practice in the bud, first, it’s an essential ingredient that one knows the law. For it’s at that point that you will be able to decipher what you are entitled to and what is expected of those in power in relation to the subjects. The social contract has it that society surrenders its duties to the ruler in exchange for services. From here, it should settle in minds that we live in an interdependent ecosystem.
Since it’s untenable to highlight all the laws in one go, I will address my mind to the “Presidential Decree.” This law is sometimes referred to as “Presidential/Executive Order.” The Free Dictionary defines Decree as a formal and authoritative order having the force of law or legally binding directives by the President or anyone acting in the President’s capacity. A Decree serves two significant purposes; to impose a new policy that the Executive desired to achieve and to prompt parliament into legislating laws where necessary. Mind you; such purposes are meant to be made in good faith.
Decree traces its origin in the Chancery Court, where the chancellor would determine the rights of a party, in line with equity and good conscience. Often, the Decree was the final determination in matters of litigation. The Executive later embraced this. The first known presidential Decree was in 1789 when President George Washington requested heads of executive departments to report back to him on the affairs of the United States.
Under the doctrine of separation of powers, the government was structured into the traditional three branches; The Parliament, Executive, and the Judiciary. Each serves a purpose different from the other and is encouraged to remain independent from influence. Parliament serves the duty of law-making but, at some point, can delegate some of its mandates to other institutions to ease its work-load and help in fostering the smooth running of the government. Judiciary, on the other hand, interprets and applies the laws to specific case laws, and Executive deals with the policies and sees into it that laws are enforced to the later.
Article 86 of the Transitional Constitution of South Sudan empowers the President to issue a presidential order on an urgent matter, in case the National Legislature is not in session. This Order is subjected to the approval of Parliament. If the parliament rejects the Order, then it loses the force of law. In other words, the power to issue the Presidential Order is majorly grounded on subsidiary legislation, as depicted under Article 92. However, there are exceptions to the degree of the Presidential Orders/Decree. The law prohibits the President from making any order on matters of Bill of Rights, decentralized system of government, general elections, annual allocation of resources and financial revenue, penal code, and administrative boundaries of States. These are exclusive preserves of the parliament.
Having stated the above, history has it that presidential powers are, in most cases, abused by the presidents, and the Constitution falls prey to confrontation. One way of effecting abuse is by use of non-law based Orders to police other branches of government. In the 70s in Uganda, President Idi Amin obliterated the laws of the land and its organs and resorted to using Decree to run the government. That compromise was abhorrent and plunged Uganda into a bottomless pit as the resultant fate was the alteration of the status quo since other branches of government were bludgeon into silence and receded into oblivion.
Judiciary, being the custodian of the rule of law and a body that spur democracy, needs to be impartial. Caroline Kennedy observed that “the bedrock of our (the US) democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.” Judiciary independence has been enshrined in the Constitution under Article 124 and further legislated in the Judiciary Act (2008). However much it may be brought out by laws, things look different on the ground. As things stand in South Sudan, the Executive has coerced Judiciary to submit to its whim by exploiting the loopholes displayed by the judiciary’s leadership.
A case in point to the above is when the President, in March 2016, unconstitutionally dismissed the Deputy Chief Justice summarily through Presidential Order. This dismissal ensued when the President decreed twenty-eight States, contrary to the ten States. Before a court petition by opposition party members, this Presidential Order was openly supported by the Chief Justice. The latter was then asked by the opposition members to recuse after petitioning to challenge the constitutionality of the Order. The Chief Justice refused to leave the Bench and instead decided to go against the spirit of impartiality as captured under Section 48 of the Judiciary Act.
Moreover, the Presidential Order was way beyond the parameters of Article 86 of the Constitution. The President closed his eyes to the fact that the law does not permit him to determine the administrative boundaries of the States. Worse enough, the legal system succumbed to the Order, and this signaled to judicial officers that they are at the mercy of the President and that constitutionalism is an illusional adventure.
From then on, the line for unconstitutionality was drawn in the sand, and any attempt to deviate from the President’s policy line in defense of the rule of law has become an equation to lose a job over. That is why judicial officers ducked, and the Executive’s extensive infiltration has become unquestionable.
Another striking incident of the negative impact of Decrees on the legal system is when nine judges, in June 2017, were dismissed through a Presidential Order for having gone on strike to voice the state of their living conditions. It is a constitutional right to picket, and any dismissal should be upon the recommendation of the Board of Discipline after investigation. Something that never happened. What then is the meaning of security of tenure? The Executive is spitting venomously.
Aside from the abuse of power, South Sudan’s case appears not to be the lack of laws, but rather a lack of political will power to have in place institutions that can fight for the legal system. This is clearly seen under Section 22 of the Code of Criminal Procedures Act (2008), which establishes the Directorate of Public Prosecution (DPP). The DPP’s office is vital in supervising investigations and public attorneys and taking prosecutions to criminal courts. But the laws in place have subordinated it deliberately or out of sheer naivety and instituted it under the Ministry of Justice and Constitutional Affairs. To further entrench the dependency of DPP’s office deeper, the appointment and removal of the DPP’s director are made by the President, through an Order, with the recommendation of the Minister concerned with the support of the relevant Under-Secretary. This anomaly has been why there is no severe corruption case that has ever seen the wrath of the law.
Going forward, it is an inescapable constitutional reality that laws supersede Presidential Orders, and such Orders should not be conceived as tools of controlling other branches of government. On account of the above incidences, it is no public secret that Judiciary has been disarmed and projected to look like an annexure of the Executive. This being the case, Judiciary should deeply soul-search and ask itself hard questions to salvage the nation from the oppressing agendas of the Executive.
In my opinion, an empowered Bar Association that can initiate public interest litigation should be green-lighted. The vicious wrangles in the Association is an indirect Achilles’ heel to the entire legal fraternity. Besides, Judiciary should be seen to be self-accounting. That basis is the launchpad and the reason why the majority of democracies develop and ensures the President is arm-twisted in his appointment of judges by conditioning his appointments to the approval of (in the case of South Sudan) the Commission.
In a situation as that of South Sudan, the Judicial Service Commission is in disarray, and the structures built have no precedence to absorb the pressure from the Executive. It appears as if Judicial officers are appointed by the President, who falsely inculcated into them that he can relieve them by way of an executive order, minus the input of the Commission. The incompetency portrayed by the Commission leadership would have been a thing of the past had it based its approval of judges on merit.
Coming to the DPP’s office, the law-makers would best institute it as an independent institution and empower it to investigate, with unlimited discretional prosecutorial powers, all criminal cases. As things stand, the DPP’s Director has been impeded by design to assume that the office has no power to curtail the seemly unending looting of public resources and violation of human rights.
On the same footing, those assigned with the drafting of the permanent Constitution of South Sudan should check the President’s powers; else, I am afraid the present characteristics of untouchable leaders will roll on, and democratic space will keep on shrinking.
Judiciary! Fear, not the Presidency, for the supreme law, encapsulates you to be independent, self-accounting, and the custodian of the law. The insurance policy and blessing of the Constitution is that “this Constitution derives its authority from the will of the people and shall be the supreme law of the land. It shall have a binding force on all persons, institutions, organs, and agencies of government throughout the country”.