South Sudan: Why the Chief Justice should resign?
By: Mut Turuk
April 15th, 2015 (Nyamilepedia)-Any observer, being a practitioner lawyer, a concerned South Sudanese or even a judge serving in the Judiciary of South Sudan will agree beyond reasonable doubt that the current Chief Justice Mr. Chan Reech Madut is a wrong person in a wrong place.
And as such, he should resign or being relieved as the head of the Judiciary for failing to protect the in-dependency of the judiciary from political interference as well as corruption and unprofessional ethics. Being a chief justice is a privilege because a person is presumed or expected by the public to exercise have a high degree integrity, impartiality, competence, credibility, good conduct and adhere to professional ethics and conduct.
Many people in South Sudan believe that the Chief Justice is a symbol of corruption, incompetent, and that has been evidenced by the Audit General reports that have implicated him in financial corruption in the Judiciary. He is the sole appointing authority of judges without transparency and clear criteria as to how a person is qualify to be appointed as a judge. And that was evidenced in the his last appointment which involved irregularities and nepotism in which most of those appointed assistant judges hail from his home state of Warrap including his own daughter. Other appointees were appointed by him upon recommendations by his close friends.
Furthermore, it has been alleged by most of the Judiciary staffs that he was seen kissing one of his messengers in his office, donating money to female staffs in the Judiciary, his unauthorized use of the Judiciary’s vehicles by his family members while some judges go to work on foot and vis-a-visa, his involvement in business with businessmen in the country by awarding his partners contracts by single tender without following procurement proceedings of the government, strong rumors of his sexual harassment against many female judges and other female judicial officers. It is also being said that such sexual harassment was a determine factor for many female judges who have been deployed in the head quarter of the Judiciary in Juba as well as in the last appointment of assistant judges. Repeatedly, he was seen coming to the office while drunk. It is also believed that he is the sole signatory to a judicial account which has never been audited before.
Looking at the manner in which he conducts himself, one would wonder how comes such person be the chief justice? Personally, I do not surprise seeing him attending the last political rally of the SPLM on March 5th 2015, because I believe he might be a ruling party member or showing his political alliance to the one who appointed him. How comes that he should not differentiate between what is a national occasion whereby his attendance is necessary and a political party occasion whereby his attendance would compromise his integrity, credibility and impartiality as well as the independency of the Judiciary in the eyes of the public?
In 2012, his unprofessional ethics was evidenced by his interfering in trial proceedings in a case between Pagan Amum v. Arthur Akuen, the plaintiff is the former SPLM Secretary General and the head of the current Former Detainees of the SPLM and the defendant was the former minister of finance Arthur Akuen. During one of the session he entered into a court room and interrupted the presiding judge by directing lawyers himself instead of the presiding judge who felt in a great surprise seeing his boss in the court room without an excuse, to worse degree, he interrupted court proceedings. Such unprofessional ethics and behaviors were widely criticized and strongly condemned in the country among legal fraternity as well as in the region because it is contrary to the rule of law and practice. It was unbelievable for most of us to see the head of the judiciary behaving in that way.
In another occasion, In August 2013, he repeated the same unprofessional ethic and behaviours when Pagan Amum was banned by president Kiir neither to talk to media nor to travel outside Juba on the grounds of alleged corruption in SPLM’s financial affairs. Pagan decided to file a petition in the Supreme Court on the ground that his constitutional rights had been violated by president Kiir’s order. It happened that I was one of the petitioner’s (Mr. Pagan) lawyers.
The Chief Justice had received the petition in the morning himself as his Supreme Court has been operating without rules since it was established. He had to direct other official to record the petition after welcoming Mr. Pagan Amum warmly in his office.
Thereafter, Pagan addressed the media briefly about the petition inside the Judiciary’s compound and suddenly after he left, I and other colleagues remained behind as to attend other cases for our clients, and while we were chatting with some journalists from Aljazeera and other local media, we saw him running from upstairs down toward us, shouting on Aljazeera journalist, “who allowed you to take photos”, “who allowed you to take photos, rubbish” insulting the lady.
The lady was trembling from fear of a strange man who was accompanied by the police and was not dressing in casual in working day that make him not looked like a boss. She asked my colleague in a shaking voice “who is this person? He was replied that “he is the Chief Justice”. My colleague asked her to cool down as the Chief Justice was shouting on us, asking us” who are you? We replied, to him that we are lawyers? He started talking to us in an impolite language that we could not imagine to be for a chief justice with insults. Suddenly, he grabbed the journalist’s camera to remove the tape but he could not make it. Of course, he might not be aware of how to deal with that technology until he ordered his police to confiscate and detain the journalist in the Judiciary.
Later on, we were told that he had received a call from one of the general slamming him on how he should allowed Pagan to address media in the Judiciary’s compound while he knew that the president banned. Since he was appointed as the Chief Justice, he is known of biasness in favor of powerful people particularly if they are involved in litigation before courts. This was evidenced when he interrupted Pagan Amum’s case during the trail. Such move that was interpreted to be in favor of Pagan Amum. Similarly, he the petition filed by Pagan Amum was dismissed on ridiculous and unreasonable grounds simply because president Kiir was respondent.
Thus, it was the same interpretation as he did with the first case.
What a chief justice!
What would the public expect if the Chief Justice does not respect and abide by the law? This question will lead us to the main topic of this article in which he appeared to be the main player. On March 31st 2015, he wrote an official letter addressing to Dr. William Kon Bior, who was the chairman of South Sudan Provisional Advocates’ Admission Committee.
The subject of that letter was the nomination two judges, Dr. James Alala Deng and Ms. Sumaya Saleh Abdalla who are judges of the Court of Appeal and the High Court respectively. What brought the surprise in the letter is the ill intention of putting the law aside by him for the purpose of getting an exit strategy for his ruling party (SPLM) after failing to rig the Bar Association elections. Who would be bound by the law in South Sudan if the Chief Justice himself does not respect the law and the oath of office he had taken before the people of South Sudan? Is he aware that the judiciary derives its power from the people of South Sudan? How can the Chief Justice address somebody who is not the president of the Bar Association nominating two learned judges to represent the Judiciary in the Bar Council pursuant to section 6(2)(b) of the Advocacy Act, 2013? A move that is contrary to the provisions of the Advocacy Act itself.
It is known to everybody in the legal fraternity and the public including Dr. William Kon Bior himself that he does not represent the Bar Association in whatsoever capacity. To my surprise that the letter was addressed to him as the president of the Provisional Committee for South Sudan Bar Association. A body that was dissolved by lawyers themselves as well as a similar action was taken by the former Minister of Justice Mr. John Luk Jok dissolving the South Sudan Provisional Advocates Admission Committee which was headed by Dr. William in a ministerial executive order dated on Feb, 22nd 2013 under order No.01/2013. Therefore, how comes the Chief Justice addressed Dr. William Kon Bior as the president of the Bar Association? On which grounds is he the president of the Bar Association as far as the law is concerned?
Laughably, I do astonish from the language used by the Chief Justice in his letter and particularly word “perusal” when citing 6 (2) (b) of the Advocacy Act, 2013. Deceitfully, it seems he has tried to select such word in order to send a signal to lawyers that he had understood the law carefully and that is why he had written that letter. What a silly trick! To “peruse” is to read or examine something, usually in a carful and thorough way or taking time to do it. Having read the provision of the above-mentioned section, I do conclude that he has misdirected himself deliberately for reasons known to him and to all of us. Section 6(2)(b) of the Advocacy Act says among other things talks about the establishment of the Bar Council and especially subsection (b) authorizes the Chief Justice to assign two judges to represent the judiciary in that body.
Hypothetically, if he had perused that section thoroughly and carefully he could have understood that he is only an appointing authority. In other words, he can only appoint or assign two judges who would represent the Judiciary in the Bar Council and not to determine who should be the president of the Bar Association because the president of the Bar Association is the chairperson of the Bar Council by virtue of being the elect president of the Bar. Currently, pursuant to the Advocacy Act, 2013 pending the elections, neither Dr. Samuel James who is the head of the Steering Committee, the legitimate body that represents the will of the advocates in the country can claim to be the president of the Bar Association nor Dr. William Kon Bior who was impeached by lawyers can be imposed by the Chief Justice against the will of the advocates.
Obviously, the whole idea of addressing Dr. William Kon as the president of the Bar Association came as the result of the regime’s pressure on him and its failure to rig advocates’ elections because the majority wanted the legal practice in the country to be independent from politic. This attempt by him to address Dr. William Kon Bior is meant for withdrawing of the legitimacy from the Steering Committee which was formed by lawyers themselves after impeachment of Dr. William Kon and his Secretary General Mr. James Altaib from the Bar Association and thereafter followed by the dissolution of the Advocates’ Admission Committee by the former Minister of Justice John Luk. Subsequently, Dr. William Kon Bior himself has complied with the impeachment as well as the dissolution of the Advocates’ Admission Committee by the former Minister of Justice. If the Chief Justice wants his friend Dr. William Kon Bior to be the president, he should support the free and fair elections of the Bar Association and indeed, he should talk to his ruling party to allow the elections go ahead without grabbing elections ballots so that Dr. William can enjoy uncontested legitimacy that is only extended through elections by the lawyers rather than by the Chief Justice using the National Legislature’s exit strategy.
I strongly urge the two judges Dr. James Alala Deng and Ms. Sumaya Saleh Abdalla as they are well known of having integrity, credibility and impartiality among the legal fraternity and the people of South Sudan in general, to disqualify themselves from the so-called Chan Reech and Dr. William Kon’s Bar Council until free and fair elections are held by lawyers so that they are not used as rubber stamps by the Chief Justice for politically motivated move.
If Dr. William Kon is still fit, a presumption that I doubt, he should wait for elections to be elected as the president of the Bar Association rather than looking for another extension as it has been the case nowadays the Country. It will be a shameful thing for a renowned lawyer like him to seek such illegal ways to climb up after he was impeached by the General Assembly of the Bar Association.
I strongly, believe that the Chief Justice should resign if he has heart for that, despite the fact that that culture is not known within the regime’s doctrines. He should be reminded that anything can be restored but reputation is not restorable particularly when it involves unprofessional ethics and corrupt practices. Whatsoever the case, whether he is going to resign soon or later, fighting against corruption in the Judiciary as well as other government institutions will remain a collective duty of the people of South Sudan until such corrupt individuals are cleared off. Insofar as the South Sudan Bar Association is concerned, the Steering Committee headed by Dr. Samuel James will remain the legitimate body until the elections are held and a new elected president will be the chairperson of the Bar Council pursuant to section 6 of the Advocacy Act, 2013. Explicitly, section 6 of the Advocacy Act, 2013 is black and white and I hope the Chief Justice will try to peruse it thoroughly again and see where he fits in to consider Dr. William Kon Bior as the president of Bar Association. Until the Bar Association’s elections are held, I think the Chief Justice does not need to embarrass himself by placing himself in a direct conflict with the provisions of the law and professional ethics.
Whatever attempts being made by the Chief Justice for reinstating Dr. William Kon without considering all previous actions taken by lawyers and the former Minister of Justice against Dr. William Kon Bior, will remain null and void as far as the law is concerned and it will set a bad precedent in our judicial history in the Country.
The author is a senior South Sudanese lawyer. He can be reached through email@example.comM