By Manyang Mayom
January 8, 2010 (RUMBEK) – South Sudan’s tightly guarded supreme chief justice, John Wol Makec, in an interview Thursday explained the unique legal system of this semi-autonomous region. Makec and his colleague John Clement Kuc, an appeals court judge based in Rumbek, highlighted the strains on the judiciary and yet called on their countrymen not to take the law into their own hands.
- Chief Justice John Wol Makec of the Southern Sudan Supreme Court (photo Manyang Mayom)
Sudan as a whole is governed through customary law, common law and Islamic law in North Sudan. The country’s southern region was given its own set of institutions under an interim constitution agreed upon as part of the Comprehensive Peace Agreement of 2005.
Chief Justice John Wol Makec, a man with a diplomatic manner, was the deputy president of the National Constitutional Court in Khartoum before moving to his current role. In an exclusive interview held on January 7, 2010 at Palm-tree Hotel in Rumbek, the chief justice highlighted the fact that Southern Sudan’s judiciary and law differ from the national system.
Justice Makec explained that English common law – the model for South Sudan’s formal legal code – was originally a customary law, but because it became the custom of all tribes in England at that time, it developed into the national law.
"Just as the customs of various tribes in England became the common law in England, and all the tribes became a nation, we also in Sudan we are developing toward nationhood. Then our customs are going to be a common law of Southern Sudan," he suggested.
Southern Sudan commonly has cases of murder and land dispute. Civil cases are also very common, affirmed John Wol Makec. Compared to the states along the Nile of northern Sudan, where there are many land issues, the cases in areas of South Sudan, like Dinkaland for instance, are more commonly about cattle and marriage.
There are different types of judicial authority in South Sudan, since tribal chiefs often still exercise judgements. "Chiefs’ Court are operating in Southern Sudan and there are not clear boundaries of jurisdiction between chiefs’ courts and judges’ courts, as well as the courts of appeal. All cases are different from place to place in Southern Sudan," said Makec.
The majority of chiefs do not derive their authority from the constitution or the government. But they hold court often under a tree, and rule in cases of homicide, cattle theft especially in Dinkaland and Nuerland, and other cases like the use of drugs and adultery in particular areas, said the chief justice.
Justice Makec voiced concern at the prevalence of these unauthorized judges. "Anybody who was not appointed legally and given power by the chief justice is not entitled to try anybody or to try any case — there are too many of these cases happening in states. You will find people calling themselves Payam judges and people calling themselves chiefs in some states who are not appointed by the chief justice and they have no judicial power to try cases."
As to appointed judges, these are lacking in the region, according to Justice Makec: "We have over one hundred judges; we will still need more judges. The most important qualities for those who will do good work in the judiciary are that they are experienced and able. Previously the judges from the South Sudan were completely effective covering South Sudan."
"The South Sudan government lacks judges that can handle cases, as judges’ accommodations trouble those who have accepted to operate in Southern Sudan. Ordinary citizens are also complaining of long trials without charges placed upon them by their challengers that arrested them. Some also complain that chiefs and judges are being bribed but no proper charges have been brought to the chief justice nor to the court of appeals."
Before the signing of the Comprehensive Peace Agreement in 2005, Southern Sudan was administered regionally under the control of the Sudan People’s Liberation Army. With the CPA, ten states were created in South Sudan and above them the Government of Southern Sudan. "Judges became scarce and most experienced judges refused to join the judiciary in Southern Sudan due to the lack of accommodation and the insecure environment," commented Makec.
When the ten states were created, John Makec was still in the National Constitutional Court in Khartoum. "So when I was appointed here, I inherited what had already been done by former Chief Justice Ambrose Riny Thiik. I found judges already appointed and transferred to their respective states."
‘EVERYBODY IS TAKING THE LAW INTO HIS HAND’
The new judiciary did not develop cooperative relations with the Southern Sudan Police Services, according to Makec. "We really need police to be trained to deal with work effectively, cooperation always is dependent on experience," he said.
South Sudan’s prisons are reported generally to have poor sanitation. There are also instances across the states of people detained for long periods of time without any intervention from local judicial authorities. Justice Makec described the main prisons as very full, including those in Rumbek, Wau, Juba and Malakal. "The conditions are not the direct responsibility of the judiciary although we are concerned," he noted, "prisons is a responsibility direct to the Ministry of Interior Affair."
He explained one of the reasons for the full prisons is the many bodies with law enforcement powers without much oversight. "The law has been put by everybody into his own hand so that there are too many hands of people arresting people and taking them into prison to be kept there without investigations; and you can find the army involved, the executive, individuals, chiefs and the police… So when so many hands are involved, then you will find a large number of people arrested and many are convicted by someone who has no judicial power."
"Everybody is taking the law into his hand arresting people and those who fine people and place money into their pocket. We need to accommodate judges and now there are no accommodations places for them. There are more challenges that need quick solutions without any right now."
Recently, the Southern Sudan Chief Justice was accompanied by the President of the High Court of Appeal on a tour of all Lakes state counties’ prisons as well Rumbek’s main prison. Makec said that on that tour, they ordered released a number of women and men, including 11 women in Cueibet County, who had been put in prison improperly. There were cases of prisoners who were being held because their relatives were wanted for arrest.
‘WHEN I CAME TO RUMBEK, I DID NOT KNOW WHERE I COULD SLEEP’
- Judge John Clement Kuc, President of the High Court of Appeal for Bahr-El-Ghazal, based in Lakes state (photo by Manyang Mayom)
Justice John Clement Kuc, Acting President of the Court of Appeal for Bahr-El-Ghazal, during an exclusive interview highlighted similar issues to those raised by Chief Justice Makec. The government of Lakes state, which was set up in 2005, has 5 county judges. There are 2 judges at the high court of appeal, although there are supposed to be 3.
"When I came to Rumbek, I did not know where I could sleep; so I had to sleep with my friend at his house," he recalled. He also added that serious cases have been pending in the court of appeal since 2006 to 2009 due to the lack of judges.
According to Justice Kuc, judges and lawyers refused to join the Southern Sudan judiciary because there are no places for them to be accommodated. "We are inviting our colleagues to join us so that we can serve in this crucial period in South Sudan," he said.
He also complained that "Some of the judges are threatened by people who are wearing army uniform, and all threats are happening in various courts in Southern Sudan. Over one thousand chiefs are operating without judicial power, all asking ‘who will pay me’? The Local Government Act said clearly that the regional court, executive court and town court are going to be handled by local government and yet it has not yielded fruit."
Referring to Lakes state cases, he said that murders, cattle theft and general law-breaking have resulted in guns in the hands of everybody. He also added that adultery has taken third position in crimes in Lakes state since the CPA was signed.
Justice Kuc downplayed the problem of prison sanitization, affirming that the prison situation has improved because there are beds for sleeping on inside jails especially in Rumbek main prisons, though at present there is still a lack of latrines inside jails.
He also called upon the public to observe the issue of bribery and to bring such cases even though they are difficult to prove.
Kuc also affirmed to the public that military prisons are not to detain civilians, only soldiers. "If there are civilian detainees there in the military jail, then they must be reported immediately to us and we shall help to bring those civilians out into a civilian prison which is run by police — we need all civilians to tell us their dilemma of detentions in military secret cells. All detention centers which are not in our book are illegal jails."
He concluded the interview by saying, "This judiciary is the judiciary of people, and the law is the law of people, so all of us must try to respect the law – if we respect the law we will get all what we need like development. And if we disrespect laws, then all funds will go to security and we shall not benefit from our constitutional rights."