The independence of the judiciary must be guaranteed by the State and enshrined in the Constitution or the law.{{1}}
The principle of an independent and impartial judiciary, and safeguards to protect it, are enshrined in South Sudanese law. However, the State institutions do not yet fully respect this principle, in practice.
The Transitional Constitution states that judicial power “is derived from the people and is exercised by the courts in accordance with the customs, values, norms and aspirations of the people and in conformity with the Constitution and the law”.{{2}} Further, the “judiciary shall be independent of the executive and the legislature”{{3}} and the latter two branches of power “shall uphold, promote and respect the independence of the judiciary”.{{4}} All organs of the State are bound to execute judicial decisions.{{5}}
The judiciary and its members are subject to the Constitution and the law, and judges must apply the law impartially and without political interference, fear or favour.{{6}} They are to be protected from reprisals consequent to their judicial decisions{{7}} and enjoy immunities for fulfilling their professional functions.{{8}}
Despite these unambiguous provisions, the ICJ was informed of a number of incidents that took place between independence and the end of 2012, involving members of the other branches of government, in particular the Executive and the army, interfering with judicial processes; some examples are described in sub-section 4 below.{{9}}
[[1]]1. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 1;”]
The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
[/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(a).”]
The independence of judicial bodies and judicial officers shall be guaranteed by the constitution and laws of the country and respected by the government, its agencies and authorities;
[/expand][[1]]
[[2]]2. Transitional Constitution, [expand title=”S. 123(1).”]
Judicial power is derived from the people and shall be exercised by the courts in accordance with the customs, values, norms and aspirations of the people and in conformity with this Constitution and the law.
[/expand][[2]]
[[3]]3. Transitional Constitution, [expand title=”S. 123(2)”]
Judicial power shall be vested in an independent institution to be known as the Judiciary.
[/expand] and [expand title=”S. 125(1)”]
The Judiciary shall be independent of the executive and the legislature.
[/expand] and Judiciary Act, [expand title=”S. 6.”]
(1) Judicial power in Southern Sudan is vested in an independent organ to be known as “The Judiciary of Southern Sudan” hereinafter referred to as the “Judiciary”.
(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.
(3) The Judiciary shall have an independent financial budget charge on the consolidated fund, approved by the President of the Government of Southern Sudan, on the recommendation of the Council.
[/expand][[3]]
[[4]]4. Transitional Constitution, [expand title=”S. 125(5).”]
The executive and legislative organs at all levels of government shall uphold, promote and respect the independence of the Judiciary.
[/expand][[4]]
[[5]]5. Transitional Constitution, [expand title=”S. 123(7).”]
All organs and institutions, at all levels of government, shall obey and execute the judgments and orders of the courts.
[/expand][[5]]
[[6]]6. Transitional Constitution, [expand title=”S. 125(4) and (6).”]
(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.
…
(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.
[/expand][[6]]
[[7]]7. Transitional Constitution, [expand title=”S. 125(8).”]
Justices and Judges shall not be affected by their judicial decisions.
[/expand][[7]]
[[8]]8. Transitional Constitution, [expand title=”S. 125(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.
[/expand][[8]]
[[9]]9. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 28-29.[[9]]
