South Sudan: An Independent Judiciary in An Independent State? Composed of 60 eminent judges and lawyers from all regions of the world, the International Commission of Jurists promotes and protects human rights through the Rule of Law, by using its unique legal expertise to develop and strengthen national and international justice systems. Established in 1952 and active on the five continents, the ICJ aims to ensure the progressive development and effective implementation of international human rights and international humanitarian law; secure the realization of civil, cultural, economic, political and social rights; safeguard the separation of powers; and guarantee the independence of the judiciary and legal profession. ® South Sudan: an Independent Judiciary in an Independent State? © Copyright International Commission of Jurists, 2013 The International Commission of Jurists (ICJ) permits free reproduction of extracts from any of its publications provided that due acknowledgment is given and a copy of the publication carrying the extract is sent to its headquarters at the following address: International Commission of Jurists P.O. Box 91 Rue des Bains 33 Geneva Switzerland Paintings by Roger Pfund South Sudan: An Independent Judiciary in An Independent State? 1 TABLE OF CONTENT Executive summary ................................................................................................... 3 I. Introduction .......................................................................................................... 7 A. Objectives of the present report............................................................................ 7 B. South Sudan: country background ........................................................................ 8 II. The legal system in South Sudan........................................................................ 11 A. The Constitution and the constitutional review process ...................................... 11 1. The Comprehensive Peace Agreement and the Interim Constitution of Southern Sudan 2005......................................................................................................................11 2. The Transitional Constitution of South Sudan 2011...................................................12 3. Constitutional review process ................................................................................13 B. Sources of law and elements of legal reform....................................................... 14 1. Legal pluralism in South Sudan: domestic customary law and other sources of law .......14 2. The shift towards the English language and common law system................................15 3. Challenges related to law reform............................................................................16 C. South Sudan’s international human rights obligations ........................................ 17 1. Accession to international human rights treaties.......................................................17 2. South Sudan Human Rights Commission .................................................................19 III. Court structure ................................................................................................. 21 A. The statutory courts system under the Transitional Constitution and the Judiciary Act .......................................................................................................................... 21 B. The Local Government Act and customary courts ................................................ 23 IV. Judicial independence in the statutory courts system........................................ 27 A. The principle of separation of powers and judicial independence in South Sudan 28 B. Safeguards and guarantees of judicial independence .......................................... 29 1. Judicial appointments and promotions ..................................................................29 a. Criteria for the selection and promotion of judges ...............................................29 b. Selection processes and the Judicial Service Council ............................................31 c. Judicial training and continuing professional development ....................................33 2. Judicial discipline and irremovability of judges .........................................................35 C. Lack of judicial resources .................................................................................... 37 V. The legal profession ............................................................................................ 41 A. Lack of operational regulatory framework for admission to practice law ............ 41 B. Legal education and training ............................................................................... 43 C. Organized legal profession in South Sudan ......................................................... 45 1. The absence of an operational bar association .........................................................45 2. Legal aid and educational programmes for the general public.....................................47 D. Disciplinary system and code of ethics................................................................ 49 VI. Conclusions and recommendations .................................................................... 52 2 Executive summary On 9 July 2011, the Republic of South Sudan became an independent State, and a few days later, the 193rd Member State of the United Nations. Independence came after 50 years of almost continuous civil war with the North, rooted in deep cultural, ethnic and religious differences. Since independence, South Sudanese authorities have taken some meaningful steps towards ensuring that the new-born country has institutions and a legal framework that complies with rule of law principles. However, as far as the justice sector is concerned, significant institutional challenges remain and several gaps in the constitutional and legal order need to be addressed for South Sudan to comply with international human rights standards on the administration of justice. As regards South Sudan’s international human rights obligations, it should be noted that at present the country is not party to any international human rights treaty. Between October and November 2013, the Legislative Assembly passed bills for the ratification of the African Charter on Human and Peoples’ Rights and the Convention on the Rights of the Child. The Government has pledged to ratify all core international human rights conventions. At present, the highest legal authority in South Sudan is the Transitional Constitution of South Sudan 2011, which came into force on 9 July 2011. The Transitional Constitution provides for its own replacement by a permanent constitution, setting out the process and timeframe for drafting and adoption. However, the constitutional review process is far behind schedule: the main reason for the delay has been identified by the Legislative Assembly as a shortage of financial and human capacities assigned to the Constitutional Review Commission. As a consequence, the timeline for the constitutional review process under the Transitional Constitution has been amended, and the mandate of the Constitutional Review Commission extended till 31 December 2014. Since independence, the legislature of South Sudan has passed a number of important laws related to the justice sector, and several others are at different stages in the legislative process. However, in spite of the remarkable pace of legislation, there appears to be a mismatch between the financial and human resources allocated for the performance of day-to- day legislative work and the amount of legislative work still to be done. On one hand, the task is made particularly challenging by the coexistence in South Sudanese legal tradition and culture of legal concepts and procedures that derive mainly from two distinct and very different legal systems: one statutory and the other customary in character. Local and national laws and procedures percolate both up and down the judicial hierarchy: some chiefs sentence according to written laws, while some statutory judges apply principles and procedures derived from local cultures. The inconsistency of approach undermines South Sudan’s ability to deliver justice in accordance with the principle of legal certainty. Primarily for practical reasons, the present report focuses on the compliance of the statutory court system with international law standards on judicial independence. At the same time, it must be acknowledged that the vast majority of legal cases in South Sudan are decided outside the statutory court system. Indeed, despite lacking jurisdiction to do so, customary courts on some occasions even pass criminal sentences, including for serious crimes. Another essential feature of South Sudanese justice system under the Transitional Constitution is its departure from the inquisitorial procedures traditionally followed by customary courts – which are characterized by an active engagement with the parties by the local chief – in favour of the adoption of more adversarial features. In fact, since the entry into force of the Transitional Constitution, the statutory justice system in South Sudan has officially moved from an approach inherited from the older Sudanese system, in which Sharia was a source of law and the courts operated in Arabic, to a common law system that operates in English. The 3 change has not yet however been entirely integrated into the actual practices