UPDATE: An Overview of the Legal System of South Sudan

By Gabriel Mading Apach & Garang Geng

Gabriel Mading Apach is a practicing lawyer and principal partner at Kush Advocates & Solicitors and a lecturer at the University of Juba, Faculty of Law - Department of Commercial Laws, South Sudan. He graduated from University of Juba in 2014/2015 academic year with LL.B 1st class, SS Bar in legal practice in 2016 and he earned his LLM in International Trade & Investment Law in Africa from the Center of Human Right at the University of Pretoria, South Africa. His experience in legal practice coupled with his LLM research paper titled Protection of Foreign Investment in South Sudan: Making a Case for Consolidation of Fragmented Investment Related Laws, have offered him the opportunity to develop an expertise on South Sudan and its legal system.

Peter Garang Geng completed his LLM in International Law studies at the Sharda University, in India. He earned his LLB degree from the University of Juba, South Sudan where he gained his expertise on South Sudan and its legal system. He has authored articles on South Sudan including a comparative study of the judicial system of South Sudan and India, which he presented at the International Seminar on Comparative Judicial Systems in India. He has worked for Global Communities, USAID South Sudan PROPEL Program focusing on community driven development in South Sudan. He also worked for the Humanitarian Development Consortium as the Protection Officer/Team Leader in Mingkaman, Lakes States, focusing on efforts to implement protection activities and offering pro bono services to the survivors of SGBV.

NOTE: This article is a complete re-write of the original article by Paul Mertenskoetter and Dong Samuel Luak.

Published September 2018

See the Archive Version!

1. Country Background

The Republic of South Sudan gained independence from Sudan following decades of deadly conflict and a referendum in 2011. On July 9th, 2011, independence was declared, and South Sudan became the fifty-fourth state in Africa and 193rd member of the United Nations.

The creation of South Sudan is the result of a long walk to freedom traceable to series of revolts among Southerners who were discontent with their northern counterparts following a continuous denial of their demands, including federalism.[1] The first war started with Torit mutiny in 1955 but little was achieved. It ended in 1972 through an agreement signed in Addis Ababa between the Sudanese government and the Anya-Anya Liberation Movement of South Sudan.[2]

Barely after ten years of tense peace, the then-Sudanese president Jaafar Nimeiri unilaterally nullified the agreement.[3] This resulted in another armed struggle in 1983 led by the Sudan People Liberation Movement/Army (SPLM/A) that became the longest civil war in Africa, claiming an estimated 2.5 million lives. The civil war ended in 2005 through an international brokered peace agreement, the Comprehensive Peace Agreement (CPA) signed between Sudan and SPLM/A in Nairobi. The agreement provided for the right of self-determination to South Sudanese to determine their political future through referendum.[4] In January 2011, South Sudanese people voted overwhelmingly in referendum to separate from Sudan and in July of the same year, South Sudan became a sovereign nation.

The independence was received amid great hope of the country abundantly rich in natural resources. Unfortunately, in mid-December 2013, the heightened political tension within the ruling party, the SPLM, redrew the fledgling nation into new devastating conflict that divided communities along ethnic lines. In August 2015, the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCISS) was signed by the warring parties[5]; however, the fighting has never stopped. The young nation faces substantial challenges both in nation- and state-building.

2. Constitutional Development in South Sudan

This section is intended to trace the historical evolution of constitutional processes in Southern Sudan to the present Republic of South Sudan. The constitutional development in South Sudan established the legal system in the country. The concept of constitutional evolution in South Sudan is a twin-peaks model, which is comprised of several agreements signed by Sudanese government and the Sudan People Liberation Movement coupled with Interims constitutions.

2.1 The Comprehensive Peace Agreement 2005 (CPA)

During the Interim Period (9 July 2005 to 9 July 2011), the CPAprovided the basis for governance in Southern Sudan, which included the semi-autonomous Southern Sudan for six years. The government of Southern Sudan was to operate in compliance with the Interim Constitution of Southern Sudan.[6] The basis of constitutionalism was derived from the CPA, which established the Interim National Constitution, applicable to whole of Sudan, as the legal framework and supreme law, with which the Interim Constitution of Southern Sudan, as well as State Constitutions and ordinary legislation at all levels of government, would have to comply.”[7] “For all but eleven of the forty-eight years since its independence in 1956, Sudan has been engulfed in civil conflict. The conflict between the North and the South erupted one year before Sudan gained its independence in 1955”.[8]

The war that the Government of Sudan and the Sudan's People Liberation Movement/Army (SPLAM/A) recently ended erupted in 1983, following the breakdown of the 1972 Addis Ababa Agreement. The root causes which propelled the war included disputes over resources, power, the role of religion in the state and self-determination.[9]

The Comprehensive Peace Agreement that was signed on the 9th January between the Government of Sudan and the Sudan People Liberation Movement was a benchmark of greatest opportunity for the country to establish its legal system and steer development in the path leading to a solid and long-lasting peace.[10] The conflict in the Sudan was the longest running conflict in Africa; that it had caused tragic loss of life, destroyed the infrastructure of the country, eroded its economic resources and caused suffering to the people of the Sudan.

Article 3.1.1 of the CPA states that the National Constitution of the Sudan shall be the Supreme Law of the land. All laws must comply with the National Constitution. This Constitution shall regulate the relations and allocate the powers and functions between the different levels of government as well as prescribe the wealth sharing arrangements between the same. The National Constitution shall guarantee freedom of belief, worship and religious practice in full to all Sudanese citizens.[11]

2.2 The Interim Constitution of Southern Sudan 2005

The Interim Constitution of Southern Sudan (ICSS) was mandated by the CPA and entered into force in 2005, concurrently with an Interim National Constitution of Sudan 2005. It set out the government’s organizational structure. The differences between the Interim Constitution and the Transitional Constitution reflect ongoing internal negotiations about the “right model” for South Sudan. Under article 3 of the Interim Constitution of Southern Sudan 2005, the Supremacy of the Constitution was vested in ICSS with the binding force effect on all organs and agencies of government and persons throughout Southern Sudan and that the laws of states of Southern Sudan shall comply with this Constitution.[12]

The CPA created the Interim National Constitution of the Republic of Sudan, 2005 (INCS) which, in turn, established the Interim Constitution of Southern Sudan (ICSS). The Transitional Constitution of the Republic of South Sudan (TCSS) of 2011 is an ‘amendment’ of the ICSS. These three constitutions have been described as ‘some sort of a constitutional family’ for the Republic of South Sudan.[13] This is so because the five documents (the Machakos Protocol, the CPA, the INCS, the ICSS, and the TCSS) are historically linked, structurally similar, and substantively the same.[14] Therefore, the CPA was not just a peace treaty or a contract between the two warring parties, but a constitutional framework for post-conflict Sudan.[15] It provided a formula for power and wealth-sharing and set the basis for the future institutional and political structure of the country and for South Sudan. The most important outcome of the CPA was that it granted Southern Sudan the right of self-determination, to be exercised through a referendum at the end of a six-year period from the date of the CPA’s signing.

The CPA provided for how and when the INCS and the ICSS would be drafted, the substantive and procedural provisions of these constitutions, and how they would come into operation. This is probably why the ICSS is almost a replication of the INCS. In this regard, the CPA was more than a framework of militarily and politically negotiated peace; it defined every aspect of the government that would implement its provisions.[16] For instance, it insisted that ‘there shall be a decentralized system of government with significant devolution of powers, having regard to the National, Southern Sudan State, and Local levels of government. It provided for human rights and fundamental freedoms.

The first draft of the ICSS was prepared by the Southern Sudan Constitutional Technical Drafting Committee, initially with the assistance of four non-governmental groups, which prepared draft constitutional texts. It appears that after consideration of the drafts, the Committee decided to conform quite closely to the INCS when drafting the new constitution for Southern Sudan.19 The first draft of the ICSS was reviewed and revised by a forty-member Southern Sudan Constitutional Drafting Committee. The membership of this Committee was made up of 70 per cent SPLM, 15 per cent NCP, and 15 per cent other political forces. A revised draft of the ICSS was adopted by the Committee and presented to the Transitional Southern Sudan Legislative Assembly for approval.

2.3 The Transitional Constitution of the Republic of South Sudan 2011 (TCSS)

The first draft of the ICSS was prepared by the Southern Sudan Constitutional Technical Drafting Committee, initially with the assistance of four non-governmental groups, which prepared draft constitutional texts.[17] “It appears that after consideration of the drafts, the Committee decided to conform quite closely to the INCS when drafting the new constitution for Southern Sudan.[18] The first draft of the ICSS was reviewed and revised by a forty-member Southern Sudan Constitutional Drafting Committee. The membership of this Committee was made up of 70 per cent SPLM, 15 per cent NCP, and 15 per cent other political forces.”[19] A revised draft of the ICSS was adopted by the Committee and presented to the Transitional Southern Sudan Legislative Assembly for approval. The drafters of the ICSS did not anticipate the TCSS. The drafters of the ICSS had therefore provided that if the outcome of the referendum on self-determination favours secession, this Constitution shall remain in force as the Constitution of a sovereign and independent Southern Sudan, and the parts, chapters, articles, sub-articles and schedules of this Constitution that provide for national institutions, representation, rights and obligations shall be deemed to have been duly repealed.

To actualize the above provision, an “All-Southern Sudanese Political Parties Conference” was convened in Juba with the aim of “building consensus” for the independence referendum and post-referendum issues.[20] On 21 January 2011, President Kiir appointed a Technical Constitutional Review Committee to review the ICSS. The main mandate of the Committee was to ‘re-cast existing government structures in the south at a regional level as the institutions of a sovereign state.

There were two main concerns with the process that led to the drafting of the TCSS. The first was the exclusive nature of the process. The SPLM insisted that this was an amendment and thus a technical review process, rather than a constitution-making process that needed wider participation. Based on that assumption, a small “technical” group made up of SPLM members (except one) was set up to undertake this review. For many observers, the technical group was more of a political group and represented only by one political party, the SPLM. This was mainly because the twenty-four members first appointed by the President were all, except one, from his party. After the political parties complained, the President appointed an additional eleven members from other political parties, two from civil society organizations, and one from faith-based groups.”[21]

The draft of Transitional Constitution of the Republic of South Sudan was pushed through National Legislative Assembly before independence.

2.3.1 The Nature of the Transitional Constitution

The Republic of South Sudan whose constitution is still transitional pending a permanent constitution has adopted a presidential form of government. The president, who is elected directly by the people, is the head of state and government, the Commander-in-Chief of the Armed Forces and the Supreme Commander of all other regular forces.[22]

The country is governed based on decentralization.[23] The constitution is a blend of federal and unitary feature given that States have their own constitutions,[24] governors[25] elected directly by the people of the states and states legislative assemblies.[26] However, under the constitution, the president has power to remove state governors and dissolve state legislative assemblies in the event of a crisis that threatens national security.[27]

The country has a bicameral parliament known as the National Legislature. The upper house is the Council of States, comprised of 50 representatives elected through their respective States Assemblies. The National Legislative Assembly, which is the lower house, is comprised of 332 members who are elected directly by their constituents.[28] It should be noted that the composition of National Legislature has been reinstituted in accordance with the provision of ARCISS. The current South Sudanese parliament also known as Transitional National Legislative Assembly as provided for in the peace agreement composed of 400 members in the Lower House and 90 members in the Upper House.[29] In the area of the justice system, the Judiciary is one of the organs which has the Supreme Court as the highest court headed by the Chief Justice, the Court of Appeals, the High Court, county courts and customary courts. All the judges of the statutory courts are appointed by the president and they can be removed by the president in the event of gross misconduct, incompetence and incapacity.[30]

Administratively, South Sudan comprises of ten decentralised states and seventy-nine counties, however, in 2014, the president unilaterally expanded the states from original ten states recognised by the constitution to thirty-two states.

2.3.2 The Agreement on the Resolution of Conflict in South Sudan 2015 (ACRISS)

The Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARCISS) was signed between the Government of South Sudan and opposition groups. It became a part of the constitution because it established the Government of National Unity, which is in place to date. ARCISS appears to have succeeded the Transitional Constitution of South Sudan as it has suspended some provisions in the original constitution; it affected all levels of government; and the government tenure was fixed to be up in October 2018. It is unclear whether ARCISS will carry along with the constitution for the next years to come or it will end in October 2018. After the signing of this document, the prisoners of war together with those who were charged of offence against state were set free. As such, ARCISS became a part of the constitution which is stronger than the constitution. The differences between these two is that, the all laws are to conform with the constitution and political decisions shall conform with ACRISS.

3. Constitutional Review Process

The Transitional Constitution by its nature is to remain in force pending the espousal of a perpetual constitution. After independence, the National Constitutional Review commission was established and in accordance with constitution, the President was entitled to appoint its members, after due consultation with the political parties, civil society and other stakeholders which was accomplished, having Prof. Akolda Mantiel as a chairperson. The commission’s tasks were to review the constitution after having gathered ideas from stakeholders with a view to including any changes that may need to be introduced to the current system of governance. Secondly, the commission was to raise an awareness on constitutional issues to the general public. Under the Transitional Constitution, the commission was to draft and present a constitutional text together with explanatory report to the president within six months. Afterwards, the said draft must be approved by National Constitutional Conference before being sent to the legislature. “The legislature is then provided with three months to enact the Constitution and forward it to the President for assent and signature”.[31] While the Committee completed its work in 2013, the constitutional review process was behind schedule.

4. The Judicial System in South Sudan

South Sudan has dual judicial systems consisting of statutory and customary law courts. Both systems operate concurrently, and in a parallel manner at urban and rural levels respectively. The formal Courts follow the principles laid down in the statutes in their disputes resolutions while Customary Courts rule according to the customary laws of their respective ethnic groups.

The relationship between two court systems is often unclear. Although customary courts are subordinate and answerable to statutory courts,[32] they are more closely linked with the executive branch than to judiciary as they are established and regulated by the Local Government Act and are administered by the local governments at the county level. This has undermined the capacity of the formal courts to monitor and supervise the judicial functions of the customary courts.

The South Sudanese judiciary faces substantial challenges in delivering justice. Upon coming into force of the constitution, South Sudan adopted English as the official language[33] and common law as its legal system. It is pertinent to note that majority of the present judges and lawyers in South Sudan were trained in Arabic language under old Sudan’s sharia based civil law system. They therefore lack language skills to practice in English. This has undermined judiciary’s ability to deliver justice.[34] A study by the International Commission of Jurist has also noted the lack of uniform legal practice in the country.[35]

5. The Legal Profession in South Sudan

Lawyers are, with judges and prosecutors, fundamental to human rights protection and respect for the rule of law in any country.[36] As such, it is important to have access to a legal profession which is well regulated by law and policy. In South Sudan, the legal profession is regulated by the Advocates Act 2013 and the Transitional Constitution of the Republic of South Sudan 2011. the Transitional Constitutionenshrines the guarantee of the independence of the legal profession and spells out lawyers’ duties to promote, protect and advance the fundamental rights and freedoms of citizens.[37] In practice, there is no standardized procedure for admission to the bar presently operating in South Sudan. Under the Advocates Act 2013, in order to be entitled to practice as an advocate in South Sudan, one must be a citizen of good character, hold a law degree or any other higher qualifications from a recognized university or legal institution, hold a Legal Professional Certificate or be exempted by the Ministry of Justice from this requirement and have been awarded a license to practice.[38]

To put an analysis on the laws, the constitution and the Act, it is clear that there is a serious conflict on the ground that the Bar be independent under the constitution while the Act requires that the Bar shall have representatives from Ministry of Justice and the Court of Appeal. The procedures for enrolment to the bar are not consistent. The Act requires that a trainee advocate be attached to a senior lawyer (commissioner for oaths) for a duration of one year before he or she is given a license to practice.[39] It happens that senior lawyers do recommend untrained law graduates for license and there is no existent mechanism to monitor this inconsistent. The UN basic principles on the role of Bar associations stated that the bar must be truly independent, self-governing and operate in accordance with international standard.[40] However, the legal profession in South Sudan is currently flattered with politics and corruption rather than merit basis.[41] The Singhvi Declarationclearly states that there must be established in each jurisdiction one or more independent and self-governing associations of lawyers recognized in law, whose council or other executive body shall be freely elected by all the members without interference of any kind by any other body or person.[42]

On the contrary, the Bar council together with the Bar Association have been continuously run by few individuals from the Ministry of Justice, the Court of Appeal and the Bar Association. No doubt that there have not been elections since independent up to date. There were several attempts to conduct elections, but the processes were frustrated by the national security leading to split of the Bar. To date, there are two rivalry Bar Associations, the one recognized by the ruling party and the one recognized by the court. Disappointingly, the one recognized by the ruling party is the current license-issuing authority. Despite the Supreme Court judgement disqualifying the very active bar now, it still operates with the members of the Court of Appeal.[43]

The completion of a period of training with a senior lawyer, as provided for under Sudanese law has been maintained as a practice in South Sudan to date. The ICJ reported that a title for a lawyer is being attributed in South Sudan without systematically applying verifiable and predictable criteria as to the person’s competency.[44]

6. Court Structure

6.1 The Supreme Court

The Supreme Court located in the capital Juba is the apex court and custodian of the constitutions and state constitutions. It consists of a Chief Justice, his deputy and five other justices.[45] Its decisions are final and binding in all courts, including customary courts. The court is vested with exclusive and original jurisdiction to adjudicate on any legal disputes arising either under TCSS or state constitutions.[46] Other jurisdictions include review and cassation in respect of any criminal, civil and administrative matters arising out of or under the law,[47] interpretation of laws and the power of Judicial review.[48] The Supreme Court sits in panels of three justices on each matter except on constitutional issues when quorum of not less than nine judges is required.[49] Their decisions, taken by majority, are final and binding.

6.2 The Court of Appeal

The Court of Appeal is the second highest court in the country. It consists of President and four other justices.[50] There are three branches of the Courts of Appeals located in Juba, Malakal[51] and Rumbek. They take appeals from the high courts and their decisions can be appealed against before the Supreme Court.[52]

6.3 The High Courts

There is High Court in each of the ten states of South Sudan. However, with the recent expansions of states from ten to thirty-two, there are at least twenty-two states without High Courts. High Courts are vested with exclusive and original jurisdiction[53] over all murder cases and hear appeals from the County courts.

6.4 The County Courts

These are lower courts below the High court in each county. As of March 2018, few County Courts have been established. Similarly, with the expansion of states, it is not clear how many counties have been established so far given that the creation of counties is a going on process.[54] According to the Code of Criminal Procedure, County Courts enjoy original jurisdictions limited to criminal cases that carry sentence with not more than seven years imprisonments and fine not exceeding 5000 SSP.[55] The constitution leaves room for the establishment of more courts or tribunals when deemed necessary.[56]

6.5 The Customary Courts System

The Transitional Constitution recognizes the customary law courts, the institution and role of traditional authority.[57] The Local Government Act of 2009 formally established the customary law courts. These courts that are presided over by traditional chiefs and decide cases according to customs, norms, traditions and ethics of their respective communities.[58] As they are quick and more easily accessible than Statutory Courts, an estimate of more than 90 percent of disputes in South Sudan are handled by them.[59] According to Section 98 (2) of the Local Government Act of 2009, Customary Courts do not have jurisdiction over criminal matters except for those cases with customary interface and only after having been referred by Statutory Court. However, the Act does not define the criminal cases with a customary interface. Consequently, they hear all kinds of cases including homicide that clearly fall outside of their jurisdictions. The local Government Act 2009 departed greatly from Chiefs' Courts Ordinance of 1931 which vested the customary courts with full jurisdiction over criminal matters.[60]

Customary Courts occupy an important place within the legal system of South Sudan. During the North-South civil war, customary law was the primary source of social order and stability within the southern region.[61] Customary law reflects the traditions and the customs for which the South Sudan struggled for decades to secure.[62] While Customary Courts play an increasingly important role in the legal system of South Sudan, their procedures and rulings are often inconsistent with basic human rights principles. Practices such as compensation of murder with exchange of a girl child[63] and holding relatives or members of a clan collectively responsible for a crime of individual clearly violates international human rights law.[64] The basis of customary law has always been to achieve reconciliation and harmony within the community; however, it often does this at the expense of women and girls. Although the Local Government Act provides for representation of women within customary law courts, in reality, it is hard to find female chief making up the bench in the customary law courts. It is therefore not surprising that women are less likely to get justice in case of violation of their individual rights. The Local Government Act provides four levels of the customary law courts.[65] “C” courts at the county level are the highest courts and receives appeals from “B” courts. “B” courts are at Payams level with only jurisdiction up to a maximum penalty. The Town Bench courts with competence of “B” courts at town level. Their decisions are appealed against before County Judge of the First Grade. The last are “A” Courts at Boma level that mainly deal with family and marital issues.

7. International Law in the Domestic Legal System of South Sudan

The sources of law provided under Article 5 of the (TCSS) do not expressly mention international law as one of the sources in South Sudan.[66] However, the provision of clause (e) “any other relevant source,” is construed to include international law. The TCSS provides for the process of ratification of international instruments but it silent on whether ratified treaties can be applied by courts directly or there is another process, such as transformation. The constitution however, deals briefly with the procedural aspect of international law. For example, it is the function of the National Legislative Assembly (NLA) to ratify international treaties, conventions and agreements.[67] Similarly,” it provides that the president shall direct, supervise foreign policy and ratify treaties and international agreements with the approval of the National Legislative Assembly.”[68] However, the constitution is certain with respect to international human rights law.[69]

8. Independence of the Judiciary

Judiciary independence is one of the fundamental elements of the modern democracy. International human rights law requires that the judiciary be independent of the executive and legislative branches of government as a threshold for a fair trial, protection of individual rights and to obtain effective remedies for any violation thereof from the other authorities of the state.[70] The independence of the judiciary is inherently connected with the principle of separation of powers. The principle of separation of powers, which is the cornerstone of the rule of law, is reaffirmed in a number of international instruments, particularly with regard to the judiciary.[71]

The Transitional Constitution provides that the judiciary is independent of the executive and legislative branches.[72] It affirms that judicial power is “derived from the people and is exercised by the courts in accordance with the customs, values, norms and aspirations of people and in conformity with the constitution and the law.”[73] It also provides that “the executive and legislative organs at all levels of government shall uphold, promote and respect the independence of the” Judiciary and that all organs and institutions of the State are bound to execute judicial decisions.[74] The constitution further states that the judiciary and its members shall be subject to the constitution and the law, which judges apply impartially and without political interference, fear or favour. In doing so, judges are to be protected from reprisals as a consequent of their judicial decision.[75]

Despite these clear constitutional provisions guaranteeing the independence of judiciary, the practice shows that there has been direct interference by the Executive in the Judiciary. In 2014, the Deputy Chief Justice was dismissed by the president upon objecting to a presidential order that expanded the constitutionally-recognised ten states to twenty-eight. This was followed by subsequent dismissal of 14 justices and judges who went on strike demanding the removal of the Chief Justice and improvement of working conditions.[76] According to South Sudan law, Judges cannot be removed unless on proved gross misconduct, incompetence and incapacity and only upon the recommendation of the National Judicial Service Commission.[77] It should be Noted that there is no physical presence of National Judicial Service Commission and how it exercises this function remains unclear. Since then, the judiciary, particularly the Supreme Court has witnessed a series of resignations over lack of judiciary independence and interference from the members of the executive.[78]

9. Protection of Human Rights in South Sudan

TCSS Contained a lofty Bill of Rights. It provides for both civil and political rights as well as economic, social and cultural rights. It further provides that all rights and freedoms enshrined in the international instruments ratified or acceded by the Republic of South Sudan are integral part of the bill of rights.[79] However, like in most African constitutions, socio-economic rights are included in the Fundamental Objectives and Guiding Principles rendering them non-justiciable.[80] It was however, argued under Interim National Constitution of Sudan 2005 (INCS) the forerunner of TCSS that, although socio-economic rights are included in the Fundamental Objectives and Guiding Principles, they are nevertheless justiciable by the virtue of Article 27(3) that recognized internationally guaranteed rights.[81]

South Sudan fought for decades to uphold inter alia,human rights and fundamental freedoms. The country itself is founded on justice, equality, respect for human dignity and advancement of human rights and fundamental freedoms.[82] Contrary to this, South Sudan is observing tremendous violations of human rights. The mid December 2013 conflict has witnessed the worst human rights violations recorded in the country’s recent history.[83]

10. Ratification of International Human Rights Instruments

Under classical international law, once a new state is created, it automatically inherits treaty obligations of the predecessor.[84] This rule has been disregarded by the newly independent states who favour a rule of “non-transmissibility” or “clean slate.”[85] This rule provides that when a new state emerges, it is not bound by the treaties of the predecessor by the virtue of a mandatory rule of state succession.[86] The 1978 Vienna Convention on Succession of States with respect of Treaties recognises non-transmissibility rule and gave due recognition to the consent of the states.[87]

Accordingly, when South Sudan seceded from Sudan, it did not automatically succeed to treaty obligations of the later. Since May 2013, it has succeeded to number of core international human rights treaties including International Covenant on Civil and Political Rights, 1966; International Covenant on Economic, Social, and Cultural Rights, 1966; Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol, 1979; International Convention on the Elimination of All Forms of Racial Discrimination, 1965; Convention on the Rights of the Child, 1989; Convention against Torture and Other Cruel Inhuman or Degrading Treatment of Punishment, 1984.

To date, only Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol, and Convention on the Rights of the Child have been ratified.[88]

At the regional level, South Sudan has recently ratified the main African Charter’s Protocol on Human Rights and the Rights of Women, also known as Maputo Protocol.[89] Regrettably, South Sudan remains the only member of Africa Union which is not a member of African Charter on Human and People’s Rights.[90]

South Sudan however, has expressed a general commitment to observe international human rights norms through its voluntary pledge for candidature to the Human Rights Council.[91]

11. Law Reporting in South Sudan

A law report is a record of a judicial decision on a point of law which sets a precedent. Not all decisions taken in a court of law set a precedent, however interesting they may be in terms of the facts of the case or its sequences. As a general principle of law, a decision is only reportable if it lays down a new principle of law, changes or clarifies the existing law.[92]

In South Sudan, there is no established system of law reports. The only way of finding decided cases is through judgement transcripts, which are not law reports. The judgment transcript does not have the same value as a record of the decision contained in law report. In practice, a judgement transcript is used in place of summary reports (case summaries, digests and case notes) which consist of abridgements of the judgement and are presented in a less formal way than a full text law report. In spite of this, there is no official site where these judgements transcripts can be found. In other words, finding a judgement transcript requires one to apply to a court that passed the judgement in order avail a hard copy signed paper.[93]

12. Access Current Laws of the Republic of South Sudan

This section provides link to the laws passed by the Parliament of South Sudan from 2006 to present. It should be noted that laws passed before independence have been confirmed by the Transitional Constitution as having binding force of law in the independent South Sudan.[94] For about twelve years of autonomous government and independent South Sudan respectively, over eighty (80) laws have been passed by the parliament with the recent Acts being the Broadcasting Corporation Act, 2013, Media Authority Act, 2013, Right of Access to Information Act, 2013, National Security Service Act, 2014, NGO Regulation Act, 2016 and the most recent, the Labour Act 2017.

Access the Laws of the Republic of South Sudan (a compilation of documents updated as of May 2018). Please note that the authors are committed to updating the documentation available at this link as relevant documents become available.


Internet Sources

[1] Bona Malwal ‘Sudan and South Sudan ‘from one to two’ 16 (2015).

[2] Bona Malwal Supra note 1 at p68.

[3] Ibid.

[4] See The Comprehensive Peace Agreement Between the Government of the Republic of the Sudan and the Sudan People’s Liberation Movement/Sudan People’s Liberation Army (reproduced by the UN Mission in Sudan) for detailed information on CPA.

[5] See IGAD, Agreement on the Resolution of the Conflict in the Republic of South Sudan, Addis, Ababa, Ethiopia (August 17, 2015) for details.

[6] Section 3.2 of the power sharing protocol, 2005.

[7] International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State 11 available at http://www.refworld.org/pdfid/530cb3604.pdf (accessed on 10th March 2018).

[8] The United Nations Mission in South Sudan’s analyses on Comprehensive Peace Agreement, (accessed on 10th March 2018).

[9] The Comprehensive Peace Agreement Between the Government of the Republic of the Sudan and the Sudan People’s Liberation Movement/Sudan People’s Liberation Army (reproduced by the UN Mission in Sudan).

[10] The President of Security Council, Joel Adechi (Benin).

[11] Article 3.1.1 of the Comprehensive Peace Agreement (2005) 25.

[12] Article 3 of the Interim Constitution of Southern Sudan 2005.

[13] Remember P.D. Miamingi, The Transitional Constitution of the Republic South Sudan, 2011.

[14] Remember P.D. Miamingi Supra note 14

[15] The Transitional Constitution of South Sudan 2011 (Draft Country Report) (accessed on August 25, 2015).

[16] See UNMIS, United Nations Mission in Sudan, Comprehensive Peace Agreement (last accessed Sept 3, 2018).

[17] Adrian Ritter, Der Ruf nach Demokratie wird Immer Lauter, Universitat Zurich (April 4, 2012).

[18] K. Cope, The Intermestic Constitution: Lessons from the World’s Newest Nation (2013) 53 Virginia Journal of International Law 667.

[19] Supra note 9.

[20] See Presidential Decree No. 002/2011 for the Formation of the Technical Committee to Review the Interim Constitution of Southern Sudan, 2005, dated 21 January 2011.

[21] See Presidential Decree No. 36/2012 for the appointment of more additional part-time members to the National Constitutional Review Commission, 2012 and Presidential Decree No. 09/2012 for the appointment of two additional part-time members to the National Constitutional Review Commission, 2012.

[22] Art.97 of the Transitional Constitution of Republic of South Sudan.

[23] Art. 1(4) ibid.

[24] Art. 163(1) ibid.

[25] Art.165(1) ibid.

[26] Art.164(1) ibid.

[27] Art. 101(R) ibid.

[28] See part five of the TCSS.

[29] Sect. 11 of the ARCISS.

[30] See part seven ibid.

[31] Supra 17.

[32] Although chiefs are not members of the judiciary, their decisions are appealed against before statutory courts, similarly, their judgments are enforced by the statutory. Refer to Section 98 of the Local Government Act of 2009 for more details on the relationship between statutory and customary law courts.

[33] Art. 6(2) of the TCSS

[34] See International Law Development Organisation ‘South Sudan: Grappling with a New Legal System.’

[35] The legal profession is fragmented between lawyers with a civil law and sharia background mainly trained in Arabic and those who receive their legal trainings from foreign countries under variety of legal systems. This means that there is no functioning professional association representing the entire legal profession in the country. See International Commission of Jurists’, South Sudan: An Independent Judiciary in An Independent State?’ (accessed March 22, 2018).

[36] Ibid.

[37] Article 136 (1) of the TCSS.

[38] Section 12(2) of Advocates Act, 2013.

[39] Sec. 15 of Advocates Act, 2013.

[40] UN basic principles on the role of Bar Association.

[41] Judge Francis Amum during a court session, stating this comment while addressing the two adversary advocates who disobeyed the rules in the court. A current researcher, Advocate Gabriel Mading was in attendance.

[42] Singhvi Declaration in implementing the United Nations' Basic Principles on the Independence of the Judiciary, which had been approved in (1985). See Draft Universal Declaration on the Independence of Justice (“Singhvi Declaration”) (last accessed Sept. 3, 2018).

[43] The researcher, Advocate Gabriel Mading is aware of this scenario in the country.

[44] The ICJ reports on South Sudan legal profession.

[45] Sect. 10(1) of the Judiciary Act of 2008.

[46] Art. 126(2) (a-c) of the TCSS.

[47] Art. 126(2) (e) of the TCSS.

[48] Art.126(2) (d) of the TCSS.

[49] Art. 126(3).

[50] Sect. 12(3) of the Judiciary Act.

[51] Malakal Court of Appeal is relocated to Juba during the during the conflict that erupted in December 2013.

[52] Sect. 13(1) of the Judiciary Act.

[53] Sect. 12(a) of the Code of Civil Procedure.

[54] Advocate Gabriel Mading has petitioned the council of states demanding has community to given a county and it was decreed out on 30th April 2018.

[55] With the devaluation of the currency in 2015, the extent of which these courts can issue fine is not clear.

[56] Article 123 (e) of the TCSS.

[57] Art. 167 of the TCSS.

[58] Sect. 98(1) of the Local Government Act 2009.

[59] Paul Mertenskoetter and Dong Samuel, An Overview of the Legal System and Legal Research in the Republic of South Sudan (accessed March 27, 2018).

[60] Section 6 of the Chiefs’ Court Ordinance, 1931 Laws of Sudan.

[61] Justice Aleu Akechak Jok, Robert A Leitch, et al, Study of Customary Law in Contemporary Southern Sudan, World Vision International and the South Sudan Secretariat of Legal and Constitutional Affairs, 2004. p. 7.

[62] Francis M. Deng, Customary Law in the Modern World: The Crossfire of Sudan's War of Identities, Routledge, New York, 2010, p. 7. Quoted by, International Commission of Jurists’South Sudan: An Independent Judiciary in An Independent State?

[63] Supra 61.

[64] This practice is common among the Dinka ethnic group. According to Justice Aleu AkechakJok, Robert A Leitch, and Carrie Vandewint, “the reasons for assigning collective responsibility are twofold and key to understanding why customary law courts often provide a more socially acceptable (for southern Sudanese society at least) means of dealing with homicide:

Where an individual has killed another whilst involved in an internecine dispute, the courts and the community recognize that the individual was acting as part of a family or community in carrying out the act and that the family or community bear collective responsibility.

It [collective responsibility] is a clear recognition of the solidarity of the family and the responsibility the family has for the actions of one of its members.” See Justice Aleu Akechak Jok, Robert A Leitch, and Carrie Vandewint, Study of Customary Law in Contemporary Southern Sudan, World Vision International and the South Sudan Secretariat of Legal and Constitutional Affairs, 2004.

[65] Sec. 97 of the Local Government Act.

[66] Art 5 of the TCSS states:
“The sources of legislation in South Sudan shall be:
(a) this Constitution;
(b) written law;
(c) customs and traditions of the people;
(d) the will of the people; and
(e) any other relevant source.”

[67] Art. 57(d) of TCSS.

[68] Art. 101(p.).

[69] Article 9(3) provides that; “All rights and freedoms enshrined in the international human rights treaties, covenants and instruments ratified by the Republic of the Sudan shall be integral part of this Bill.”

[70] See ICCPR, Articles 14(1) and 2, and Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), para 19; African Charter of Human and Peoples’ Rights, Articles 3, 7 and 26, and the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Principles A and C.

[71] Supra 2.

[72] Art. 124 (1) of the TCSS.

[73] Art. 122 (1) of the TCSS.

[74] Art 122 (7) of the TCSS.

[75] Arts. 124(4) and (6) of the TCSS.

[76] Tong Kot Kuocnin, Justice under Fire: The Dismissal of 13 Justices & Judges from the Judiciary of South Sudan (accessed 24.03.2018).

[77] Art. 134 (2) of the TCSS.

[78] South Sudan Supreme Court Judge Resigns (accessed 24.03.2018).

[79] Art. 9(3) of the TCSS.

[80] Art. 44 of the TCSS.

[81] R. Miamingi, ‘Inclusion by exclusion: An assessment of the justiciability of socio-economic rights under the 2005 Interim National Constitution of Sudan’ (2009) 9 African Human Rights Journal 76. Article 9(3) of the TCSS is a cut and paste of the same provisions in the ICSS which was also an exact copy of the provision in the INCS.

[82] Art. 1(5) of the TCSS.

[83] See Amnesty International Report on Human Rights Situation in South Sudan, (accessed 02.04.2018).

[84] S.K Kapoor, International Law and Human Rights 184 (2016).

[85] Ian Brownlie, Principles of Public International Law 438 (2012).

[86] Ibid.

[87] Art. 16 of the Vienna Convention provides that newly independent state is not bound to maintain the treaty in force, or to become a party to any treaty by the reason only of the fact that at the date of succession of states the treaty was in force in respect of the territory to which the succession of the states relates.

[88] OHCHR ‘Country Profile for South Sudan’ status of ratifications: Human Rights Instruments’ (accessed 30. 01.2018).

[89] Pachodo.org, South Sudan Ratifies Maputo Protocol (October 18, 2017).

[90] On 13 May 2013, South Sudan Council of Ministers approved along other human rights instruments the ratification of African Charter on Human and People Rights but has not been ratified by the National Legislative Assembly.

[91] Voluntary pledge of the Republic of South Sudan for candidature to the Human Rights Council, 31 October 2013, UN Doc A/68/565 Annex

[92] See practice direction (2012) 1 WLR (accessed on 7th April 2018).

[93] A researcher of this paper, Advocate Gabriel Mading is aware of this practice, as he is currently practicing in the Republic of South Sudan.

[94] Art. 200 of the TCSS.