Following the entry into force of the Transitional Constitution, The Transitional Constitution of South Sudan states that “the judiciary shall be independent of the executive and the legislature” and sets out safeguards for judicial independence.{{1}} The judiciary is comprised of the Supreme Court, Courts of Appeal, High Courts, County Courts and “other courts or tribunals as deemed necessary to be established in accordance with the provisions of this Constitution and the law”.{{2}}
The Supreme Court, located in Juba, is the apex court and the custodian of the Constitution and the State Constitutions.{{3}} The three branches of the Court of Appeal are located in Juba, Malakal and Rumbek. The ten branches of the High Court are located in the capitals of each of the country’s ten states. As of 10 June 2014, few County Courts had been established.
In October 2012, the judiciary started experimenting with the use of mobile courts to reduce judicial backlog. In March 2013, the South Sudan Law Society reported that individuals were generally pleased by the services provided by the mobile courts and that the programme has so far proved effective as a way “to accelerate legal proceedings and to compensate for the shortage of judges”.{{4}}
The Judiciary Act, which regulates “the establishment and governance of the judiciary”, predates the Transitional Constitution and differs from it on a number of points, including on the different levels of courts,{{5}} the number of justices serving on the Supreme Court,{{6}} and the prerogatives of the Chief Justice.{{7}} Given Section 3 of the Constitution, provisions that are not in conformity with the Constitution are null and void.{{8}}
The Transitional Constitution recognizes the “institution, status and role of Traditional Authority, according to customary law” and, as noted above, provides that courts shall apply customary law subject to the Constitution and statutory and common law.{{9}} The Local Government Act provides for four levels of customary law courts: Town Bench Courts and A, B and C Courts.{{10}} Customary law courts have “judicial competence to adjudicate on customary disputes”, but they cannot “adjudicate on criminal cases except those criminal cases with a customary interface referred to it by a competent Statutory Court”.{{11}} In practice, however, customary courts have reportedly adjudicated criminal matters – including homicide – that fall outside of their jurisdiction.{{12}}
Customary courts adjudicating according to customary law hear the vast majority of criminal and civil cases in South Sudan.{{13}}
The relationship between statutory and customary courts is complicated by public perceptions of the two systems, with the former seen as being vulnerable to bribery and disadvantageous to the poor (although in states where the judiciary is better staffed, individuals indicate satisfaction with the judges’ performance). Moreover, due to the shortage of judges and infrastructure in some areas of the country, access to a statutory court can sometimes prove illusory. Furthermore, among other things, the absence of a supervisory organ and the proliferation of customary courts are challenges to the coexistence of the two justice systems.{{14}}
The ICJ’s research to date has focused on the statutory court system. This profile therefore does not assess the customary court system in South Sudan in the light of international standards on the independence of the judiciary and the right to a fair trial.
[[1]]1. Transitional Constitution, [expand title=”S. 124-125.”]
Structure of the Judiciary
124. The Judiciary shall be structured as follows:
(a) the Supreme Court;
(b) Courts of Appeal;
(c) High Courts;
(d) County Courts; and
(e) other courts or tribunals as deemed necessary to be established in accordance with the provisions of this Constitution and the law.
Independence of the Judiciary
125. (1) The Judiciary shall be independent of the executive and the legislature.
(2) The budget of the Judiciary, after its approval by the National Judicial Service Commission and assent of the President, shall be charged on the consolidated fund and it shall have the financial independence in the management thereof.
(3) The Judiciary shall be self-accounting and its finances shall be subject to public audit.
(4) The Judiciary shall be subject to this Constitution and the law which the Judges shall apply impartially and without political interference, fear or favour.
(5) The executive and legislative organs at all levels of government shall uphold, promote and respect the independence of the Judiciary.
(6) Justices and Judges shall be independent in their judicial work, and shall perform their functions without interference. Their independence shall be guaranteed by this Constitution and the law.
(7) Justices and Judges shall uphold this Constitution and the rule of law and shall administer justice without fear or favour; they shall enjoy such immunities as shall be determined by law.
(8) Justices and Judges shall not be affected by their judicial decisions.
(9) The salaries, allowances, privileges, post-service benefits, tenure and other conditions and terms of service of judicial officers or other persons exercising judicial powers shall be regulated by law.
[/expand][[1]]
[[2]]2. Transitional Constitution, [expand title=”S. 124.”]
Structure of the Judiciary
124. The Judiciary shall be structured as follows:
(a) the Supreme Court;
(b) Courts of Appeal;
(c) High Courts;
(d) County Courts; and
(e) other courts or tribunals as deemed necessary to be established in accordance with the provisions of this Constitution and the law.
[/expand][[2]]
[[3]]3. Transitional Constitution, [expand title=”S. 126″]
The Supreme Court shall be the highest court and shall consist of the Chief Justice, a Deputy Chief Justice and not less than nine other Justices.
[/expand] and [expand title=”S. 128.”]
(1) The Supreme Court shall be the custodian of this Constitution and the constitutions of the states.
(2) The Supreme Court shall exercise competences as follows:
(a) interpret constitutional provisions at the instance of the President, Government of South Sudan, any state government, or any of the two Houses of the National Legislature;
(b) be the court of final judicial instance in respect of any litigation or prosecution under National or state law, including statutory and customary law;
(c) have original jurisdiction to decide on disputes that arise under this Constitution and the constitutions of states at the instance of individuals, juridical entities or governments;
(d) adjudicate on the constitutionality of laws and set aside or strike down laws or provisions of laws that are inconsistent with this Constitution or the constitutions of the states to the extent of the inconsistency;
(e) be a court of review and cassation in respect of any criminal, civil and administrative matters arising out of or under the laws;
(f) have criminal jurisdiction over the President in accordance with Article 103 (2) herein;
(g) have criminal jurisdiction over the Vice President, the Speakers of the National Legislative Assembly and the Council of States and the Justices of the Supreme Court;
(h) review death sentences imposed by courts in respect of offences committed under the law;
(i) receive appeals against decisions and judgments of the courts of appeal;
(j) have original and final jurisdiction to resolve disputes between the states and between the National Government and a state in respect of areas of exclusive, concurrent or residual competences;
(k) uphold and protect human rights and fundamental freedoms; and
(l) have such other competences as prescribed by this Constitution and the law.
(2) The Supreme Court shall sit in panels of three justices each on all matters; except that when sitting as a Constitutional panel it shall consist of not less than nine members of the Supreme Court and chaired by the Chief Justice.
(3) Decisions of the Supreme Court shall be taken by majority of Justices in each panel.
(4) The decisions of the Supreme Court shall be final and binding.
(5) The Supreme Court shall regulate its functions and procedures in accordance with the law.
[/expand][[3]]
[[4]]4. UN High Commissioner for Human Rights, Report to the Human Rights Council on progress of technical assistance and capacity-building for South Sudan in the field of human rights, UN Doc. A/HRC/23/31 (2013), p. 6. Also see International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 22.[[4]]
[[5]]5. The Judiciary Act provides for Payam Courts below County Courts (see Judiciary Act, [expand title=”S. 7(e)”]
The Judiciary shall be established and structured as follows—
(a) The Supreme Court;
(b) The Courts of Appeal;
(c) The High Courts;
(d) The County Courts;
(e) The Payam Courts; and
(f) Such other Courts or tribunals as deemed necessary to be established in accordance with the provisions of the ICSS and any other law.
[/expand]). This hierarchy is also replicated in the Code of Criminal Procedure Act 2008 (S. 8(1)) and the Code of Civil Procedure Act 2007 (S. 18-22).[[5]]
[[6]]6. Compare Judiciary Act, [expand title=”S. 10(1)”]
The Supreme Court shall consist of the President of the Supreme Court, a Deputy President and five (5) other Justices.
[/expand] and Transitional Constitution, [expand title=”S. 126.”]
The Supreme Court shall be the highest court and shall consist of the Chief Justice, a Deputy Chief Justice and not less than nine other Justices.
[/expand][[6]]
[[7]]7. See Judiciary Act, [expand title=”S. 19,”]
The President of the Supreme Court shall have the power to grant temporary judicial powers to any Judge or person for a specified period and may renew such powers from time to time.
[/expand] which confers the power to grant temporary judicial power and is not replicated in the Transitional Constitution. Also compare Judiciary Act, [expand title=”S. 6(2)”]
The Judiciary shall be independent of the Southern Sudan Executive and the Legislature. The President of the Supreme Court, as the head of the Judiciary, shall be answerable to the President of GoSS for the proper functioning and administration of the Judiciary.
[/expand] and Transitional Constitution, [expand title=”S. 123(8)”]
The Chief Justice, as the head of the Judiciary, shall be responsible for the administration of the Judiciary.
[/expand] and [expand title=”S.127,”]
(1) The Chief Justice:
(a) shall be the head of the Judiciary and the President of the Supreme Court, and shall be responsible for the administration and supervision of all Courts; and
(b) may issue judicial circulars, warrants of establishment and directives to the Courts necessary for the proper and efficient administration of justice.
(2) When the office of Chief Justice falls vacant, the Deputy Chief Justice shall perform the functions of the Chief Justice pending the appointment of a new Chief Justice.
[/expand] where the former prescribes that the Chief Justice is answerable to the President for the administration of the judiciary.[[7]]
[[8]]8. Transitional Constitution, [expand title=”S. 3.”]
(1) This Constitution derives its authority from the will of the people and shall be the supreme law of the land. It shall have a binding force on all persons, institutions, organs and agencies of government throughout the Country.
(2) The authority of government at all levels shall derive from this Constitution and the law.
(3) The states’ constitutions and all laws shall conform to this Constitution.
[/expand][[8]]
[[9]]9. Transitional Constitution, [expand title=”S. 166.”]
(1) The institution, status and role of Traditional Authority, according to customary law, are recognised under this Constitution.
(2) Traditional Authority shall function in accordance with this Constitution, the state constitutions and the law.
(3) The courts shall apply customary law subject to this Constitution and the law.
[/expand][[9]]
[[10]]10. See Local Government Act, [expand title=”S. 97.”]
(1) There shall be established Customary Law Courts as follows:-
(a) “C” Courts;
(b) “B” Courts or Regional COurts;
(c) “A” Courts or Executive Chief’s Courts; and
(d) Town Bench Courts.
(2) The Local Government Authority shall ensure adequate representation of women in the Customary Law Courts.
[/expand] A Courts are found at the Boma level (the lowest level of local government, corresponding to a chief’s area), B Courts at Payam level (intermediate administrative level between boma and county), and C Courts at County level.[[10]]
[[11]]11. Local Government Act, [expand title=”S. 98(1)-(2).”]
(1) The Customary Law Courts shall have judicial competence to adjudicate on customary disputes and make judgments in accordance with the customs, traditions, norms and ethics of the communities.
(2) A Customary Law Court shall not have the competence to adjudicate on criminal cases except those criminal cases with a customary interface referred to it by a competent Statutory Court.
[/expand][[11]]
[[12]]12. See International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 23.[[12]]
[[13]]13. David K. Deng, Challenges of Accountability. An Assessment of Dispute Resolution Processes in Rural South Sudan (2013), p. 20.[[13]]
[[14]]14. See International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 24-26.[[14]]
