South Sudan: Appointment and promotion of judges; Security of tenure

To safeguard the independence of the judiciary and the rights to equality before the law and equal access to the profession, international standards clarify that judges should be appointed though an open process on the basis of prescribed criteria that are based on merit and integrity, and without discrimination.{{1}} To ensure that the composition of the judiciary is essentially reflective of the population and to combat discrimination and ensure equality before the law, steps should be taken to ensure the appointment of qualified women and members of minority communities.{{2}}

As regards appointment criteria, the UN Basic Principles on the Independence of the Judiciary stipulate that persons selected must be “individuals of integrity and ability with appropriate training of qualifications in law”.{{3}}

An appropriate method of appointments of judges is a prerequisite for the independence of the judiciary{{4}} and is a means of ensuring equal access to the profession. On the procedure for judicial appointments, the UN Basic Principles on the Independence of the Judiciary provide that “[a]ny method of judicial selection shall safeguard against judicial appointments for improper motives”.{{5}} The Human Rights Committee and the Special Rapporteur on the independence of judges and lawyers, in relation to appointment and promotion of judges, have repeatedly recommended the use of bodies that are independent from the executive,{{6}} plural and composed mainly (if not solely) of judges and members of the legal profession,{{7}} and that apply transparent procedures.{{8}}

Promotions within the judiciary must be based on objective factors, particularly ability, integrity and experience.{{9}}

It is widely accepted that when judges have security of tenure in office they are less vulnerable to pressure from those who can influence or make decisions about the renewal of their terms of office. Accordingly, international standards prescribe that judges tenure must be guaranteed until a mandatory retirement age or expiry of the term of office.{{10}}

While as described below in section 4, judges nonetheless remain accountable throughout their terms of office, as a necessary corollary to the guarantee of security of tenure, international standards specify that during their term of office, judges may be removed only in exceptional, strictly limited and well-defined circumstances provided for by law, involving incapacity or behaviour that renders them unfit to carry out the duties of their office, and following a fair procedure.

The Judiciary Act provides a number of alternative requirements for appointment to the bench, either by way of promotion from inferior courts or from outside the judiciary, which appear to be consistent with international standards.{{11}}

Pursuant to the Constitution, the President appoints the Chief Justice on the basis of is or her competence, integrity, credibility and impartiality. The appointment of the Chief Justice is subject to the approval by a two-thirds majority of all members of the National Legislative Assembly.{{12}}

The President appoints the Deputy Chief Justice and all Justices of the Supreme Court, the Courts of Appeal and the Judges of the High Courts and County Courts, upon the recommendation of the Judicial Service Commission, on the basis of the same criteria. As with the Chief Justice, the appointments of the Deputy Chief Justice as well as the Justice of the Supreme Court are also subject to approval by a majority of two-thirds of all members of the National Legislative Assembly.{{13}}

Furthermore, the Transitional Constitution calls for “substantial representation of women”{{14}} in the judiciary. In practice, however, few women serve as judges in South Sudan and there are no female justices of the Supreme Court.

The Transitional Constitution establishes the National Judicial Service Commission.{{15}} Its structure, composition, the terms of service of its members and its functions are to be determined by law. It is anticipated that the National Judicial Service Commission, will actually be a renamed Judicial Service Council. The Judicial Service Council was established under the Judicial Service Council Act.{{16}} The Chief Justice, his or her deputy and two justices of the Supreme Court on the basis of seniority; the Ministers of Justice and of Finance and the chairperson of the Legislation and Legislative Affairs Committee of the Legislative Assembly; the Dean of the Law Faculty of the University of Juba; and the President of the Bar Association are members.{{17}}

Whatever its name, however, the Commission does not appear in practice to be fulfilling its mandate under the Constitution, with regard to the appointment of judges. The only judicial recruitment between independence and December 2013 was carried out without the JSC’s involvement.{{18}}

In February 2013, the first round of recruitment of future judges since the start of the Interim Period in July 2005 led to the appointment of 78 judicial assistants, who may subsequently be appointed to the judiciary on a permanent basis after an 18-month probation period. The appointment process was criticized as opaque; and allegations of nepotism have been made.{{19}}

The law contains guarantees of security of tenure for judges. A justice or judge’s contract can be terminated under four circumstances only: removal or dismissal; resignation; retirement (at the age of seventy){{20}}; or death.{{21}}

[[1]]1. [expand title=”Principle 10″]

Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.

[/expand] of the UN Basic Principles on the Independence of the Judiciary provides in part: “In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.”. Also, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article A.4(h)-(j);”]

(h) The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged. Any method of judicialselection shall safeguard the independence and impartiality of the judiciary.
(i) The sole criteria for appointment to judicial office shall be the suitability of a candidate for such office by reason of integrity, appropriate training or learning and ability.
(j) Any person who meets the criteria shall be entitled to be considered for judicial office
without discrimination on any grounds such as race, colour, ethnic origin, language, sex,
gender, political or other opinion, religion, creed, disability, national or social origin, birth, economic or other status. However, it shall not be discriminatory for states to:

1. prescribe a minimum age or experience for candidates for judicial office;
2. prescribe a maximum or retirement age or duration of service for judicial officers;
3. prescribe that such maximum or retirement age or duration of service may vary with different level of judges, magistrates or other officers in the judiciary;
4. require that only nationals of the state concerned shall be eligible for appointment to judicial office.

[/expand] 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), [expand title=”para. 19.”]

The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception.The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

[/expand][[1]]

[[2]]2. Gabriela Knaul, Special Rapporteur on the independence of judges and lawyers, Report to the General Assembly, UN Doc. A/66/289 (2011), para. 22-33, 92; Human Rights Committee, Concluding Observations on the United Kingdom, UN Doc. CCPR/CO/73/UK (2001), [expand title=”para. 15;”]

The Committee notes that, despite recent improvements, the proportions of women participating in public life, particularly at senior levels of the executive and judiciary and in Parliament, and also in the private sector, remain at low levels.

The State party should take necessary steps towards achieving an appropriate representation of women in these fields.

[/expand] Human Rights Committee, Concluding Observations on France, UN Doc. CCPR/C/FRA/CO/4 (2008), [expand title=”para. 26;”]

The Committee notes with concern that persons belonging to racial, ethnic or national minorities are rarely selected for representative bodies, including the National Assembly, and may occupy few positions in the police, the public administration and the judiciary. (articles 2, 25 and 26)

The State party should facilitate the participation of persons who are members of minority groups in publicly elected bodies, including the National Assembly and local government. In particular, the State party should seek ways to increase the number of candidates belonging to minorities included in the list of political parties running for elections. The appointment of persons from minority backgrounds as members of the police, public administration and the judiciary, is also important to assure the representation of the needs of varied communities in the planning, design, implementation and evaluation of policies and programmes affecting them.

[/expand] Human Rights Committee, Concluding Observations on Sudan, UN Doc. CCPR/C/79/Add.85 (1997), [expand title=”para. 21;”]

The Committee is concerned that in appearance as well as in fact the judiciary is not truly independent, that many judges have not been selected primarily on the basis of their legal qualifications, that judges can be subject to pressure through a supervisory authority dominated by the Government, and that very few non-Muslims or women occupy judicial positions at all levels. Therefore:

Measures should be taken to improve the independence and technical competence of the judiciary, including the appointment of qualified judges from among women and members of minorities. Training in human rights law should be given to all judges, law enforcement officers and members of the legal profession.

[/expand] Committee Against Torture, Conclusions and recommendations on Bahrain, UN Doc. CAT/C/CR/34/BHR (2005), [expand title=”para. 7(h);”]

The Committee recommends that the State party: …

(h) Fully ensure the independence of the judiciary and include female judicial officials in its judicial system;

[/expand] Committee on the Elimination of Racial Discrimination, General Recommendation XXXI on the prevention of racial discrimination in the administration and functioning of the criminal justice system, UN Doc. A/60/18 (pp. 98-108) (2005), [expand title=”para. 5(d);”]

5. States parties should pursue national strategies the objectives of which include the following: …

(d) To promote proper representation of persons belonging to racial and ethnic groups in the police and the system of justice;

[/expand] Committee on the Elimination of Racial Discrimination, Concluding Observations on Guatemala, UN Doc. CERD/C/GTM/CO/12-13 (2010), [expand title=”para. 8;”]

While noting the efforts made by the judiciary in the area of training, in the provision of interpreters, in the application of cultural expertise and in the appointment of bilingual staff to the courts to improve indigenous peoples’ access to the official system of justice, the Committee reiterates its concern about the problems experienced by indigenous peoples in gaining access to justice, particularly because the indigenous legal system is not recognized and applied and because of the lack of a sufficient number of interpreters and bilingual court officials who are knowledgeable about judicial proceedings. It regrets, in particular, that, when a number of judges were appointed to the Supreme Court in late 2009, no indigenous person was selected (art. 5 (a)).

[/expand] Committee on the Elimination of Racial Discrimination, Concluding Observations on Colombia, UN Doc. CERD/C/304/Add.76 (1999), [expand title=”para. 13.”]

It is noted that indigenous and Afro-Colombian communities are underrepresented in State institutions, including in the legislature, the judiciary, government ministries, the military and the civil and diplomatic services.

[/expand][[2]]

[[3]]3. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 10;”]

[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article A.4(i)”]

The sole criteria for appointment to judicial office shall be the suitability of a candidate for such office by reason of integrity, appropriate training or learning and ability.

[/expand] and [expand title=”Article A.4(k).”]

No person shall be appointed to judicial office unless they have the appropriate training or learning that enables them to adequately fulfil their functions.

[/expand][[3]]

[[4]]4. 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), [expand title=”para. 19.”]

[/expand][[4]]

[[5]]5. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 10;”]

[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article A.4(h).”]

The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged. Any method of judicial selection shall safeguard the independence and impartiality of the judiciary.

[/expand][[5]]

[[6]]6. Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article A.4(h) encourages “the establishment of an independent body”. Also e.g., Concluding Observations on the Congo, CCPR/C/79/Add.118, [expand title=”para. 14;”]

The Committee expresses its concern at the attacks on the independence of the judiciary, in violation of article 14, paragraph 1, of the Covenant. It draws attention to the fact that such independence is limited owing to the lack of any independent mechanism responsible for the recruitment and discipline of judges, and to the many pressures and influences, including those of the executive branch, to which judges are subjected.

The State party should take the appropriate steps to ensure the independence of the judiciary, in particular by amending the rules concerning the composition and operation of the Supreme Council of Justice and its effective establishment. The Committee considers that particular attention should be given to the training of judges and to the system governing their recruitment and discipline, in order to free them from political, financial and other pressures, ensure their security of tenure and enable them to render justice promptly and impartially. It invites the State party to adopt effective measures to that end and to take the appropriate steps to ensure that more judges are given adequate training.

[/expand] Concluding Observations on Liechtenstein, CCPR/CO/81/LIE, [expand title=”para. 12;”]

While noting that the constitutional amendments of 2003 sought to clarify the system of appointment and tenure of judges, the Committee is concerned about some elements of the new mechanism which may not be compatible with the principle of the independence of the judiciary (art. 14).

The State party should consider amending the mechanism for the appointment of judges to secure tenure, so as to guarantee fully the principle of the independence of the judiciary. The elements to be reviewed should include: the criteria for the appointment of members to the selecting body, the casting vote of the Princely House and the limited nature of tenure.

[/expand] Concluding Observations on Tajikistan, CCPR/CO/84/TJK, [expand title=”para. 17;”]

The Committee is concerned about the apparent lack of independence of the judiciary, as reflected in the process of appointment and dismissal of judges as well as in their economic status (art. 14, para. 1). The State party should guarantee the full independence and impartiality of the judiciary by establishing an independent body charged with the responsibility of appointing, promoting and disciplining judges at all levels and by remunerating judges with due regard for the responsibilities and the nature of their office.

[/expand] Concluding Observations on Honduras, CCPR/C/HND/CO/1 (2006), [expand title=”para. 16;”]

The Committee notes the State party’s implementation of selection procedures for judges in accordance with the Judicial Council Act. It is concerned, however, at the failure to establish an independent body to safeguard the independence of the judiciary and to supervise the appointment, promotion and regulation of the profession (article 14 of the Covenant).

The State party should take effective action to safeguard the independence of the judiciary, including the prompt establishment of an independent body to safeguard the independence of the judiciary and to supervise the appointment, promotion and regulation of the profession.

[/expand] Concluding Observations on Azerbaijan, UN Doc. CCPR/C/AZE/CO/3 (2009), [expand title=”para. 12;”]

The Committee remains concerned that, despite the reforms undertaken and the progress made during the reporting period, through, inter alia, the amendments in the Judges Act, the adoption of the Judicial Council Act, the establishment of the statute of the Judges’ Selection Committee, the Code of Ethics for Judges, the State party’s judiciary does not appear to be fully independent from the executive branch or from political pressure. The Committee is also concerned about reports that corruption within the judiciary remains a problem (art. 14).

The State party should strengthen its efforts to ensure a fully independent judiciary. Given the important prerogatives of the Judicial Council, in particular regarding selection, promotion, and disciplining of members of the judiciary, the State party should ensure that the Judicial Council, in its composition and work, is fully independent from the executive so as to create conditions ensuring full independence of the judiciary. The State party should increase efforts to combat corruption, in particular within its judiciary, by investigating promptly and thoroughly all incidents of suspected corruption. If corruption is established, the officials concerned should face criminal and not only disciplinary sanctions.

[/expand] Human Rights Committee, Concluding Observations on Kosovo (Serbia), UN Doc. CCPR/C/UNK/CO/1 (2006), [expand title=”para. 20.”]

The Committee is concerned about the absence of adequate guarantees for the independence of international judges and prosecutors. It is concerned about the low remuneration of local judges and prosecutors, the low representation of ethnic minorities in the judiciary, the excessive length of civil court proceedings and court backlogs and the frequent failure to enforce judgements (art. 14).

UNMIK, in cooperation with PISG as required, should establish independent procedures for the recruitment, appointment and discipline of international judges and prosecutors, ensure adequate terms and conditions for local judges and prosecutors whereby they are shielded from corruption, increase the representation of ethnic minorities in the judiciary, assign additional judges to courts with case backlogs and ensure enforcement of judgements without delay.

[/expand] Also see Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 11;”]

(a) The process and standards of judicial selection shall give due consideration to ensuring a fair reflection by the judiciary of the society in all its aspects.

(b) Any methods of judicial selection shall scrupulously safeguard against judicial appointments for improper motives.

(c) Participation in judicial appointments by the Executive or the Legislature or the general electorate is consistent with judicial independence so far as such participation is not vitiated by and is scrupulously safeguarded against improper motives and methods. To secure the most suitable appointments from the point of view of professional ability and integrity and to safeguard individual independence, integrity and endeavour shall be made, in so far as possible, to provide for consultation with members of the judiciary and the legal profession in making judicial appointments or to provide appointments or recommendations for appointments to be made by a body in which members of the judiciary and the legal profession participate effectively.

[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 9.”]

The selection and each appointment of a judge must be carried out according to objective and transparent criteria based on proper professional qualification. Where this is not ensured in other ways, that are rooted in established and proven tradition, selection should be carried out by an independent body, that include substantial judicial representation.

[/expand][[6]]

[[7]]7. Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), [expand title=”para. 28-29.”]

28. The composition of this body matters greatly to judicial independence as it is required to act in an objective, fair and independent manner when selecting judges. While a genuinely plural composition of this body is recommended with legislators, lawyers, academicians and other interested parties being represented in a balanced way, in many cases it is important that judges constitute the majority of the body so as to avoid any political or other external interference. In the Special Rapporteur’s view, if the body is composed primarily of political representatives there is always a risk that these “independent bodies” might become merely formal or legal rubber-stamping organs behind which the Government exerts its influence indirectly.

29. In order to ensure that such a body is apt to select judges in an objective, fair and independent manner, the judiciary and other parties directly linked with the justice system must have a substantial say with respect to selecting and appointing the members of such a body. According to some regional standards, members of the independent body should be selected by the judiciary.

[/expand] See International Commission of Jurists, International principles on the independence and accountability of judges, lawyers and prosecutors – Practitioners’ guide, no. 1 (2007), pp. 45-48.[[7]]

[[8]]8. Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article A.4(h);”]

[/expand]Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), [expand title=”para. 32.”]

In this connection the Special Rapporteur refers to the appointment of the judges of the Supreme Court of Ecuador in 2005, which were made in accordance with his recommendations,31 in particular those referring to objective criteria to select candidates with a view to their independence, competencies and integrity. This ensured the transparency of the selection and appointment processes. Furthermore, for the first time in Ecuador’s history, public hearings were held at which backgrounds of the nominees could be openly scrutinized. This experience was qualified by the United Nations as a major example of good practices.

[/expand] See Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Preliminary Report to the Human Rights Commission on a mission to Ecuador, UN Doc. E/CN.4/2005/60/Add.4 (2005), [expand title=”para. 5(d).”]

5. Various options for resolving the crisis are being discussed in Ecuador. Rather than expressing a view on the various alternatives, the Special Rapporteur believes that, in keeping with United Nations standards, the country should immediately arrive at a formula to govern the appointment of a Supreme Court which will include the following elements:…

(d) Machinery to ensure transparency in the selection of judges and enable members of the public to be aware of the candidates and express their opinions about them.

[/expand][[8]]

[[9]]9. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 13;”]

Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience.

[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article A.4(o);”]

Promotion of judicial officials shall be based on objective factors, in particular ability,
integrity and experience.

[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 14.”]

Promotion of a judge shall be based on an objective assessment of the judge’s integrity, independence, professional competence, experience, humanity and commitment to uphold the rule of law. No promotions shall be made from an improper motive.

[/expand][[9]]

[[10]]10. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 12;”]

Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.

[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article A.4(l);”]

Judges or members of judicial bodies shall have security of tenure until a mandatory
retirement age or the expiry of their term of office.

[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration),[expand title=”Article 16(b)”]

Subject to the provisions relating to discipline and removal set forth herein, judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or expiry of their legal term of office.

[/expand] and [expand title=”Article 18(c);”]Retirement age shall not be altered for judges in office without their consent.

[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 8;”]

A judge cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure. A judge must be appointed for life or for such other period and conditions, that the judicial independence is not endangered. Any change to the judicial obligatory retirement age must not have retroactive effect.

[/expand][[10]]

[[11]]11. See Judiciary Act, [expand title=”S. 20,”]

Any person appointed to a judicial position—

(a) shall be a Sudanese citizen;

(b) shall be of sound mind;

(c) shall be a holder of at least LLB Degree or its equivalent qualification in law from a recognized University or higher institution of law;

(d) shall not be less than—

(i) twenty-five years of age if the appointment is to a County or Payam Court;

(ii) thirty five years of age if the appointment is to a High Court or a Court of Appeal; or

(iii) forty five years of age if the appointment is to the Supreme Court, and

(e) should not have been convicted by a competent Court of an offence involving dishonesty or moral turpitude, not withstanding the fact of being subsequently pardoned.

[/expand] [expand title=”S. 22-26″]

22. Appointment of Justices of the Supreme Court.

(1) The appointment of the President, Deputy President and Justices of the Supreme Court shall be subject to approval by two-thirds majority of all members of the Assembly.

(2) Subject to the provisions of sections 20 and 21 of this Act, appointment of the Justices of the Supreme Court shall be as follows—

(a) by selection from among Justices of the Courts of Appeal;

(b) by appointment from outside the Judiciary as follows—

(i) from among the former Justices of the Supreme Court or the Court of Appeal; provided that, the conditions under which his or her prior appointment had been terminated are not inconsistent with his or her judicial integrity;

(ii) from among the Legal Counsels at the Ministry of Legal Affairs and Constitutional Development or from the National Ministry of Justice, with experience of not less than fifteen years in these Ministries;

(iii) from among the advocates with experience or practice in the legal profession for a period not less than fifteen years; and

(iv) from members of the law teaching staff, at a recognized university, or its equivalent on condition that they should have actually taught law for a period not less than eighteen years.

23. Appointment of Justices of the Courts of Appeal.

The appointment of Justices of the Courts of Appeal shall be as follows—

(a) by promotion from among the Judges of the High Courts;

(b) by appointment from outside the Judiciary as follows;

(i) from former Judges who have held the post of a Judge of a Court of Appeal or High Court; provided that, the conditions under which his or her previous service was terminated are not inconsistent with his or her judicial integrity;

(ii) from Legal Counsels at the Ministry of Legal Affairs and Constitutional Development or from Legal Counsels in the National Ministry of Justice, with experience of not less than thirteen years in those Ministries;

(ii) from advocates; provided that they should have actually practised advocacy for a period of at least thirteen years; and

(iv) from members of the teaching staff of a recognised university or its equivalent, provided that they should have taught law for a period of at least fifteen years.

24. Appointment of High Court Judges.

The High Court Judges shall be appointed as follows—

(a) by promotion from County Court Judges of First Grade;

(b) by appointment from outside the Judiciary as follows—

(i) from former Judges who have held the post of a High Court Judge and County Court Judges of First Grade; provided that, the conditions under which his or her service was terminated were not inconsistent with their judicial integrity;

(ii) from Legal Counsels from the Ministry of Legal Affairs and Constitutional Development or from Legal Counsels in the National Ministry of Justice, with experience of at least ten years, in these Ministries;

(iii) from advocates, with an experience of practice for a period not less than ten years; and

(iv) from members of the teaching staff of a recognized university, or its equivalent, on condition that they should have taught law for a period not less than twelve years.

25. Appointment of County and Payam Court Judges.

The County and Payam Court Judges shall be appointed as follows—

(a) by promotion within the Judiciary from—

(i) a County Court Judge of Second Grade to County Court Judge of First Grade;

(ii) from a Payam Court Judge to a County Court Judge of second grade; and

(iii) from Judicial Assistant to a Payam Court Judge; and

(b) by appointment from outside the Judiciary as follows—

(i) from former County Court Judges of First, Second or Third Grade, and Judicial Assistants; provided that, the conditions under which their previous services were terminated are not inconsistent with their judicial integrity;

(ii) from Legal Counsels at the Ministry of Legal Affairs and Constitutional Development or from Legal Counsels in the National Ministry of Justice on condition that—

(a) where the appointment is in the post of County Court Judge of the First Grade, he or she should have actual experience of at least six years;

(b) where the appointment is to the post of County Court Judge of the Second Grade, he or she should have actual experience of at least four years; and

(c) where the appointment is to the post of a Payam Court Judge, he or she should have actual experience of at least eighteen months as an Assistant Legal Counsel;

(i) where the appointment is to a post of County Court Judge of the First Grade, he or she should have actually practised in the legal profession for a period of at least six (6) years;

(ii) where the appointment is to the post of a County Court Judge of second grade he or she should have actually practised in the legal profession for at least four (4) years;

(iii) Where the appointment is to the post of a Payam Court Judge he or she should have actually practised for eight months;

(d) from the members of the law teaching staff of a recognized university or its equivalent, on the condition that—

(i) where the appointment is to a post of a Court Judge of the First Grade he or she should have experience of at least nine years;

(ii) where the appointment is to the post of a County Court Judge of the Second Grade, he or she should have an experience of at least seven years; and

(iii) where the appointment is to the post of a Payam Court Judge, he or she should have actually taught law for at least two years.

26. Appointment of Judicial Assistants.

(1) The appointment of Judicial Assistants shall be by way of selection.

(2) A Judicial Assistant shall be under probation, for a period of eighteen months.

(3) The President of Supreme Court may—

(a) shorten the probation period, for the purpose of appointment, when such Judicial Assistant is in possession of the following—

(i) good performance; or

(ii) a post-graduate certificate in law;

(b) increase the probation period, where the performance of such Judicial Assistant is not satisfactory.

(4) Subject to the provisions of subsection (2), above, a Judicial Assistant after completion of the probation period, shall be in service by an order of the President of GoSS on the recommendation of the President of the Supreme Court

[/expand] and [expand title=”S. 40.”]

(1) Promotion of all Justices and Judges shall be based on competence and seniority.

(2) Assessment of competence shall be based on the following criteria—

(a) the judicial performance of the Justices or Judge; and

(b) the report of a direct superior authority on the conduct of the Judge.

(3) Justices and Judges may be eligible for promotion as indicated below—

(a) Judicial Assistants may be considered for appointment to a Payam Court Judge after eighteen months of service;

(b) Payam Court Judges may be considered for promotion to County Court Judges of Second Grade after five years of service;

(c) County Court Judges of Second Grade may be considered for promotion to County Court Judges of First Grade after five years of service;

(d) County Court Judges of First Grade may be considered for promotion to High Court Judges after five years of service;

(e) A High Court Judges may be considered for promotion to the Court of Appeal Justices, after five years of service; and

(f) Justices of the Court of Appeal may be considered for promotion to the Supreme Court after five years of service.

[/expand] Also see International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 29-31.[[11]]

[[12]]12. Transitional Constitution, [expand title=”S. 134.”]

(1) The President of the Republic shall appoint the Chief Justice having regard to competence, integrity, credibility and impartiality in accordance with this Constitution and the law.

(2) The President shall, upon the recommendation of the Judicial Service Commission, appoint the Deputy Chief Justice and Justices of the Supreme Court, Justices of the Courts of Appeal and the Judges of the High Courts and County Courts having regard to competence, integrity, credibility and impartiality in accordance with this Constitution and the law.

(3) The appointment of the Chief Justice, Deputy Chief Justice and Justices of the Supreme Court shall be subject to approval by a two-third majority of all members of the National Legislative Assembly.

(4) The National Legislative Assembly shall enact a law to provide for appointments, terms and conditions of service of Justices and Judges.

(5) All Justices and Judges shall, before assuming their duties, take the oath of office as shall be prescribed by law.

[/expand][[12]]

[[13]]13. Transitional Constitution, [expand title=”S. 134.”]

(1) The President of the Republic shall appoint the Chief Justice having regard to competence, integrity, credibility and impartiality in accordance with this Constitution and the law.

(4) The National Legislative Assembly shall enact a law to provide for appointments, terms and conditions of service of Justices and Judges.

(5) All Justices and Judges shall, before assuming their duties, take the oath of office as shall be prescribed by law.

[/expand][[13]]

[[14]]14. Transitional Constitution, [expand title=”S. 123(6).”]

There shall be a substantial representation of women in the Judiciary having regard to competence, integrity, credibility and impartiality.

[/expand][[14]]

[[15]]15. Transitional Constitution, [expand title=”S. 133.”]

(1) There shall be established an independent Commission to be known as the National Judicial Service Commission.

(2) The structure, composition, functions, and terms and conditions of service of the members and employees of the Commission shall be determined by law.

[/expand][[15]]

[[16]]16. Judicial Service Council Act, [expand title=”S. 3.”]

The purpose of this Act, is to provide for the establishment and governance of an independent council to promote an effective and efficient Judiciary in Southern Sudan and foster a high standard of professional ethics and any other issues related thereto.

[/expand][[16]]

[[17]]17. Judicial Service Council Act, [expand title=”S. 9.”]

The Council shall be comprised of the Chairperson and eight (9) members, as follows—

(a) the President of the Supreme Court, Chairperson;

(b) the Minister of Legal Affairs and Constitutional Development, member;

(d) the Minister of Finance and Economic Planning, member;

(e) the Chairperson of the Legislation Legal Affairs Committee of Southern Sudan Legislative Assembly, member;

(f) the Dean of Faculty of Law, University of Juba, member;

(g) the President of the Southern Sudan Bar Association, member;

(h) two Justices of the Supreme Court according to the order of their seniority, members; and

(i) the Secretary General of the Council exofficio member, as Secretary.

[/expand][[17]]

[[18]]18. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 31-33.[[18]]

[[19]]19. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 31.[[19]]

[[20]]20. Judiciary Act, [expand title=”S. 63.”]

(1) a Justice or Judge shall be retired on pension, where he or she has attained seventy years of age.

(2) retirement upon application of subsection (1), above, shall be by an order issued by the President, on the recommendation of President of the Supreme Court.

[/expand][[20]]

[[21]]21. Judiciary Act, [expand title=”S. 61.”]

The service of any Justice or Judge shall be terminated for any of the following reasons—

(a) removal or dismissal;

(b) resignation;

(d) death.

[/expand][[21]]

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South Sudan: Appointment and promotion of judges; Security of tenure

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