SPLM-IO lawmaker Juol Nhomngek Daniel. [Photo by The Radio Community]OPINION – Receive my greetings for the new year, 2024. In reference to the above subject, I am writing to respond to your recent statement on why cases go to the East African Court of Justice (EACJ) without passing through the court system and your derogatory remarks by referring the international law to as “the so-called.” It was on January 26, 2024, during the eight (8) O’ Clock evening news when I was listening on the South Sudan Broadcasting Corporation (SSBC) when I heard you making such statements. In your statement, you raised two fundamental issues that shows that you are not satisfied with the EACJ.
Your statement can amount to a flagrant violation of the obligation of South Sudan under the Treaty for the Establishment of the East African Community that was signed in Arusha on 30 November 1999 and entered into force on 7 July 2000 following the conclusion of the process of its ratification and deposit of the Instruments of Ratification with the Secretary-General by all the three Partner States.
The issues that you raised in your comments are—first, that the EACJ is receiving cases directly before passing through our courts and second, you questioned the basis and credibility of the International law when you made the disparaging remark that the “so-called International law”. Making derogatory remarks against one of the organs of EAC and the law governing the Community and relations among the partners is undermining the Community and its work.
In English, the phrase “so-called” means disapproval because you are directly abusing it of being—phony, simulated, counterfeit, dummy, ersatz, faked, feigned, forged, imitation, mimic, pretended, pseudo, put on, sham, substitute, weak matches, apish etc. I do not know whether when you decided to resort into choosing the phrase “so-called” against the International law governing the EAC, you thought that way. I would like to remind you as the lawyer you are bound by professional ethics as you have a greater duty to choose your words carefully so that you are not taken out of context or being viewed as being careless or reckless with words. Words are legal weapons that can build or destroy any establishment.
Hon. Minister, as a matter of practice, lawyers and other government officials are supposed to do thorough research on the topic that they are planning to make statement on so that they do not make mistake that can affect the image of law and the country. This is very important when it comes to the matters of international diplomacy. South Sudan by virtue of its membership of the United Nations (UN) as a duty through its officials to behave and talk in a civilized way to avoid violating Article 4 of the UN Charter of 1945.
Article 4 provides for the conditions of the admission of States to the UN membership and one of the conditions a country must fulfil in order to become a member is being a peace-loving state which accept the obligations contained in the Charter and are able and willing to carry out the obligations that the UN imposes through its laws.
Hon. Minister, all the international and regional treaties acceded or ratified by the countries like the EAC Treat that South Sudan acceded to must be observed and implement in good faith as provided for under article 26 of the Vienna Convention on the Law of Treaties, 1969. The Vienna Convention on the Law of Treaties is an international agreement that regulates treaties among sovereign states. It is also known as the “treaty on treaties”, the VCLT establishes comprehensive, operational guidelines, rules, and procedures for how treaties are drafted, defined, amended, and interpreted.
The Treaty on treaties establishes binding obligations for the parties under the treaty as it is the case in the case of the EAC Treaty and Partner States to perform the obligations under such a treaty in good faith. South Sudan and its agents like you and others in similar positions are therefore not allowed to challenge the credibility of the Regional and International Treaties once the country has acceded or ratified it or them without putting any reservation on any provision of such a treaty or treaties.
Hon. Minister, you know very well that before South Sudan became a member of the EAC under Article 3 (3) of the EAC Treaty, it engaged other members and applied to be admitted to the membership of the EAC. The Instrument that South Sudan issued and deposited with the Secretary General of the EAC does not carry any reservations to any provisions of the Treaty, which means that it unconditionally accepted to be associated with, or participate in any of the activities of the EAC that inter alia include –(a) acceptance of the Community as set out in the Treaty; (b) adherence to universally acceptable principles of good governance, democracy, the rule of law, observance of human rights and social justice; (c) potential contribution to the strengthening of integration within the East African region besides meeting the conditions of the membership under Article 3 (4) of the EAC Treaty.
South Sudan acceded to the EAC Treaty on 15th April 2016 in accordance with Article 8 (5) of the same Treaty and then became a full member of the EAC on the same year, 5th September 2016. This was marked with deposition of the instrument of ratification on the Accession to the Treaty for the Establishment of the East African Community with the Office of the Secretary General of the East African Community (EAC) at the EAC Headquarters in Arusha, Tanzania on September, 5, 2016.
As you know very well more than I do that with the accession to the EAC Treaty and the grant of full membership to the bloc that followed the admission, the Republic of South Sudan acquired full and equal rights, obligations and privileges. The obligations under the EAC Treaty requires South Sudan to unconditionally implement all the provisions of the EAC Treaty without any reservation or expressing any scepticisms to the requirements of the Treaty.
Hon. Minister, in that respect, South Sudan accepted to be bound by the ‘Operational Principles’ of the EAC Treaty such as “maintenance of universally accepted standards of human rights” under the regional and International Human Rights principles and Treaties that are specifically incorporated in the EAC Treaty, which are the source of the EAC law. South Sudan as the duty to observe Articles 6 (d) and 7 (2) of the EAC Treaty that impose the duty on it to observe the fundamental principles of Good governance including adherence to the principles of democracy, rule of law, accountability, transparency, social justice, equal opportunities, gender equality as well as the recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.
Hon. Minister, the treaty requires South Sudan to observe Articles 6 (d) and 7 (2) in all its practices and activities. Once South Sudan fails in its duty to observe and respect human rights and fundamental freedoms, which are essential in forming strong regional integration as it is one of the prerequisites for accession to the EAC bloc, it can be presumed to have breached the EAC Treaty and the court becomes seized with jurisdiction. The EAC Treaty provides for the establishment of the Court (EACJ) as one of its Organs. The EACJ as a treaty-based judicial body is tasked to ensure adherence to the EAC law in the interpretation and application of and compliance with the Treaty.
Hon. Minister, the EACJ under Article 8 (4) and (5) of the Treaty takes precedence over all courts of the Republic of South Sudan on matters pertaining to the implementation and application of the Treaty. South Sudan in 2016 undertook the necessary steps by depositing the instrument of ratification or the Accession to the Treaty with the Secretary General at the EAC Headquarters in Arusha, Tanzania on September, 5, 2016. This made the EACJ as one of the Organs of the EAC take precedence over all courts of the Republic of South Sudan on matters pertaining to the implementation and application of the EAC Treaty in accordance with Article 8 (5) of the Treaty.
Hon. Minister, as you have understood in the foregoing discussion on law of treaties and how South Sudan became a member of the EAC by expressly and voluntarily accepting to be bound by the EAC Treaty and the principles of Regional and International laws, South Sudan has the duty to perform the obligations under the Treaty in good faith in accordance with Article 26 of the Vienna Convention on the Laws of Treaties of 1969. As the matter of law and in respect to the International law that you derogatory referred to as “so-called,” the Republic of South Sudan is Constitutionally bound by the EAC Treaty under Article 9 (3) of the Transitional Constitution of the Republic of South Sudan, 2011 as amended.
Article 9 (3) of the Transitional Constitution provides that all rights and freedoms enshrined in international human rights treaties, covenants and instruments ratified or acceded to by the Republic of South Sudan shall be an integral part of the Bill of Rights of South Sudan. The Bill of Rights is provided for under Article 9 to Article 34 of the Transitional Constitution, 2011 as amended. Hence, it is always not professionally of you as the Lawyer, former Legal Counsel and the former judge to act as if someone who does not know the ethnics of law by undermining our own Constitution. Using derogatory terms by referring the international law governing the EAC and the EACJ as “So-Called international law” is unprofessional. It goes to the heart of the legal profession and etiquettes.
Hon. Minister, moreover, you have forgotten that your President is the President of the EAC and all its organs, which we have our members working there including the Deputy Secretary General, Honourable members of Parliament (EALA), Justices of EACJ and other individual South Sudanese employees working within the EAC. Having accepted to nominate members to the EACJ to act as Judges and to elect Honourable Members to the EALA, we are part of decision-makers in the EAC and instead of castigating them, we must cooperate and support in implementing the Treaty. In addition, the EACJ is our supreme court of Appeal when it comes to the relationship between the EACJ and the National Courts of South Sudan.
Hon. Minister, it is not good for those who are expected the country, are working against its downfall by behaving unreasonably that can injure the country diplomatically yet we always go to seek for the diplomatic assistance in the region. The same complaint you raised about the EACJ accepting the cases from South Sudan and other Partner States was also raised by the Deputy Chief Justice recently which made me think differently about our system. The problem that I have discovered is that the comments against the EACJ and the International Law by some of you is always made out of emotion. It is always good to do research on any topic in law before making any comment or statement.
What you need to know is that the EACJ is a specialized Court that does not need the exhaustion of local remedies. It always has jurisdiction to hear and determine cases referred to it by individuals or to it for preliminary ruling by the national courts. This is one of the rare opportunities where national courts, at all levels, are given a chance to interact with an international court through litigation.
Hon. Minister, as it is provided for under Article 27 (1) of the EAC Treaty, the EACJ has jurisdiction over the interpretation and application of the EAC Treaty. This comes when the matter concerns the application or the interpretation of the Treaty or any other East African Community law. This is in accordance with Article 34 of the EAC Treaty. It is also important for you to know that Article 33(1) of the Treaty provides for the concurrent jurisdiction between National Courts and the EACJ. The jurisdiction of the EACJ is not excluded from the jurisdiction of the national courts of partner states including South Sudan.
Hon. Minister, according to Articles 28 (2) and 30 (1) of the EACJ on issues of admissibility requirements, a matter challenging the legality of any Act, regulation, directive, decision or action on the ground that it is ultra vires or unlawful or an infringement of the provisions of the EACJ Treaty or any rule of law relating to its application or amounts to a misuse or abuse of power can be challenged in the EACJ and the EACJ has jurisdiction in such matters.
Under Articles 28, 30 and 31 the EACJ Treaty, the Partner States; Secretary General of the EACJ, Legal and Natural Persons, and national courts can make reference to the EACJ. In the proceedings the EACJ, a party may appear in person or by an agent and may be represented by an advocate. If the representation is by the advocate, then such an advocate must be one who is entitled to practice before the superior court of any partner state or in South Sudan.
Hon. Minister, as a general rule under the International law, the doctrine of exhaustion of local remedies states that, “a State should be given the opportunity to redress an alleged wrong within the framework of its own domestic legal system before the international responsibility can be called into question at the international level. However, there is no requirement that applications to the EACJ must exhaust domestic remedies as a condition before bringing it to the Court.
The reason for this position is based on the principle of enhancing a “people-centred and market driven co-operation” as enshrined in Article 7(1) of the EAC Treaty as well as the fact that the interpretation and application of the treaty has to be implemented all stages and the specialized court such as EACJ has the power to determine without waiting for exhaustion of local remedies. The only limitation for the cases referred to the EACJ is the period of two months as provided for under Article 30 (2) of the Treaty, which provides that cases ought to be lodged within two months of the decision or action complained of.
In conclusion Hon. Minister, there are several reasons why citizens prefer the EACJ to the National Courts. First of all, justice system of South Sudan is broken. It is not acceptable for the judges to impose their decisions on litigants even when the litigants are not happy with them. In court the judge must be neutral which is not the case to a greater extent in South Sudan. The courts are also corrupt as those with money can buy their way out of justice. This is because judges are not only underpaid but they are paid in arrears. Seeking for justice in South Sudan is as hard as the camel passing through the eye of the needles.
Therefore, citizens prefer EACJ because filing the case before is cost effective, cheaper or even free as there is no court fee but only lawyers are paid. Hence, a person without money can make the reference to the EACJ in person without hiring a lawyer or lawyers. What pushes citizens to go to the EACJ is the weakness of the justice system in South Sudan not because the EACJ is the one calling them. Let us not scapegoat the EACJ but the problem is the weakness of our judiciary and justice system.
The writer is a member of the National Parliament (TNLA) representing Cueibet County in Lakes State on the ticket of the SPLM-IO. He is lawyer specializing in the Constitution law and human rights. He can be reached via: nhomngekjuol@gmail.com.
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