When a government removes one judge from office in a way that flouts the constitution and judicial independence it would be bad enough. But a case brought to the East African Court of Justice (EACJ) by Justice Malek Mathiang Malek against South Sudan’s President Salva Kiir for dismissing him, was just the tip of the iceberg. In fact, Justice Malek was one of more than a dozen judges dismissed by the government in 2017. But Justice Malek, who has had more than 20 years’ experience on the bench, decided he was not simply going to accept the situation. Instead, he brought an action against the Attorney General of South Sudan before the EACJ. And, last week, that court decided in his favour, ruling that the dismissal of the judges was unconstitutional, against the law of South Sudan – and amounted to a violation of the East African Community Treaty.
In its latest decision, the East African Court of Justice has come out strongly against unconstitutional government action to dismiss members of the judiciary. The case involved a senior member of the judicial bench in South Sudan, appeal court judge Malek Mathiang Malek, who challenged his 2017 dismissal by President Salva Kiir.
Justice Malek was one of 14 judges dismissed by the President, who acted to fire the judicial officers without any input from the Judicial Service Commission even though this was a requirement of the constitution and the law.
Counsel for Justice Malek argued that judicial independence was guaranteed under South Sudan’s constitution which also provided that judges may only be removed ‘on the recommendation of the Judicial Service Commission.’ In particular, the President of South Sudan had no power to remove a justice of the court of appeal – such as Justice Malek – from office.
According to Justice Malek, the President’s dismissal of the judges was unconstitutional and an illegal interference with judicial independence, instilling fear and inhibiting the judiciary’s performance of its functions.
Judge Malek’s action at the EACJ named a second respondent: the head of the secretariat of the East African Community. According to Justice Malek, the head of the secretariat should have investigated the dismissal of the judges from South Sudan but did not do so.
By way of relief, the judge asked for a declaration by the EACJ that the President acted in breach of the constitution of South Sudan and that he also breached the East African Community Treaty.
In response, South Sudan’s AG claimed that the country’s President had immunity, even in a case before the EACJ. Further, said the AG, the judges who were dismissed had called for the resignation of the Chief Justice. Through that behaviour the judges had ‘lost their right to constitutional protection’, and their dismissal was thus in line with the constitution.
In their decision, the EACJ judges said that the AG did not address the question of the processes under the constitution that had to be followed before a judge could be removed. Instead, the AG merely claimed that the President had immunity, and that in any case his action in dismissing the judges was justified.
In the view of the EACJ, however, the real question was not the activities of the group of judges in South Sudan prior to their dismissal, but rather the legality of the President’s action and whether it complied with the constitution and the founding treaty of the East African Community.
On the preliminary point, the judges held that the President was not immune from challenges at the EACJ and that the court did have jurisdiction to consider whether an action by the President ‘constituted a violation of the Treaty’.
They noted that the AG had not challenged the submissions by Justice Malek on the processes that had to be followed before a judge could be lawfully removed in South Sudan. Nor had the AG disputed the evidence of Justice Malek that the President had not followed these processes.
The court said it was now established law that where a partner state of the East African Community violated its own constitution or domestic law, that amounted to violation of the rule of law principles of the Treaty. (This is a reference to one of the Treaty’s fundamental principles requiring that partner states observe good governance, rule of law, and adherence to the rights of the African Charter.)
Rule of law principles
‘Measured against this Treaty standard and expectation, the actions of the [President] in issuing the impugned Decree clearly fell short, leading to the conclusion that [he] violated the rule of law principles … of the Treaty.’
The AG had made no reference to any recommendation of the Judicial Service Commission that Justice Malek be removed. And the unchallenged evidence before the EACJ was that South Sudan had failed to comply with the ‘specific and mandatory requirements’ of the law before dismissing the judges.
The judges said they were satisfied that the decree dismissing Judge Malek violated both the constitution and the law – and thus the Treaty principles.
However, the court found that the head of the Community secretariat had not been aware that the judges were dismissed until Judge Malek filed his application with the EACJ court. Once the problem came to the attention of the secretariat, it reacted quickly and called for a report from South Sudan. Thus, there was no case against the secretariat.
In the end, therefore, Judge Malek – and, by extension, those of his colleagues who were also unlawfully dismissed – won a declaration by the court that their dismissal by the President violated the constitution and the law. Judge Malek was also awarded legal costs.
Problems such as those experienced by Justice Malek and his colleagues in 2017 had been foreseen and warned about in an even earlier report of the International Commission of Jurists. The ICJ report on the situation in South Sudan, published in 2013, in fact sets the scene for the latest decision of the East African Court of Justice.
Compiled after a high-level fact-finding mission to South Sudan, the ICJ report says that while the separation of powers was clearly provided for in the country’s constitution, the reality was rather different: ‘In practice a culture of judicial independence seems not yet fully to have taken root. On more than one occasion, the ICJ had heard of incidents involving representatives of other state powers, and particularly the executive and the army, reported to have exercised undue pressures on and illegitimate interference with the exercise of judicial functions’.
The ICJ report noted that members of South Sudan’s executive as well as its military power had ‘exercised undue pressure on and illegitimate interference with the exercise of judicial functions, in violation of international standards.’
During its mission to South Sudan, the ICJ was further told about county level administrators purporting to dismiss judicial officers in the local courts, though they had no statutory authority to do so.
* 'A Matter of Justice', Legalbrief, 28 July 2020