Juba erred in sacking Court of Appeal Judge Malek, East African Court of Justice rules

The Judge went on strike along with over 60 others in May 2017


WEDNESDAY August 5, 2020

By Joe Lihundi, 

Tranquility News Reporter, Arusha

The South Sudan President Salvar Kiir has goofed in sacking former Justice of the Court of Appeal Malek Mathiang Malek, a court says in its latest ruling.

The East Africa Court of Justice (EACJ) says President Kiir has not complied with Article 134(2) of the 2011 South Sudan Transitional Constitution in his July 2017 decision to dismiss Justice Malek Mathiang from office.

The evidence brought before the court revealed the South Sudan government failed to comply with specific and mandatory requirements provided for in the Judiciary Act, 2008, prior to the issuance of the challenged decree.

The court found the Republican Decree No 100/2017, which the President issued on July 12, 2017, for the removal of justices and judges in the judiciary, including Malek Mathiang, to be in violation of both the South Sudan Constitution and Articles 6(d) and 7(2) of the East African Community (EAC) Treaty.

“The impugned Decree does not on the face of it make any reference to a recommendation by the Judicial Service Council to the President for the removal of the Justices,” reads the July 24 ruling by video conference and live streaming on the EACJ website in part, adding:

“Measured against this Treaty standard and expectation, the actions of the first respondent in issuing the impugned Decree clearly fell short, leading to the conclusion that it violated the rule of law principle set out in Articles 6 and 7 of the Treaty.”

South Sudan President Salva Kiir attends the signing of a peace agreement with the South Sudan rebels aimed to end a war in which tens of thousands of people have been killed, in Khartoum, Sudan June 27, 2018. PHOTO | REUTERS

Article 6(d) of the treaty says “good governance, including adherence to the principle of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, general equality, as well as the recognition, promotion and protection of human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights”.

Article 7(2) says, in turn: “The partner states undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.”

The court cited case No 6 of 2014 of Henry Kyarimpa against the Attorney General of Uganda at the EACJ Appellate Division saying the Articles in question required activities of partner states to be transparent, accountable and undertaken within the confines of both the municipal laws and the treaty.

The EACJ First Instance Division orders the South Sudan government in the judgment it delivered recently to pay for costs of the case to Justice Malek Mathiang, who was, in turn, also ordered to pay for costs of the reference to the EAC Secretary General.

Justice Malek Mathiang along with other judges had formed a Committee of justices and judges to steer a strike demanding, among others, resignation of the Chief Justice, prompting President Kiir to issue the decree that removed him and some of the participants on July 12, 2017.

Justice Malek Mathiang filed Reference No 9 of 2017 against the South Sudan minister for Justice, who doubles as Attorney General, and the EAC Secretary General, at the EACJ challenging the government for his dismissal from office as a Justice of the Court of Appeal.

The East African Court of Justice (EACJ) in a video conference session that was live streamed on the regional court’s website. PHOTO | EACJ

He argued that the Transitional Constitution, 2011, which guaranteed immunity of justices and judges in Article 124(7), did not give President Kiir powers to sack him, accusing the Head of State of violating the country’s supreme law and the provisions of the EAC treaty.

Under Article 134(2) of the Constitution, the justices and judges could only be removed from office on recommendation of the Judicial Service Commission, he said.

Justice Malek Mathiang said the EAC Secretary General failed to investigate or verify the removal of the South Sudan justices and judges as expected of him under Article 71(1)(2) of the treaty.

The Article says “the secretariat shall be responsible for the undertaking of either on its own initiative or otherwise, of such investigations, collection of information, or verification of matters relating to any matter affecting the community that appears to merit examination”.

Justice Malek Mathiang, therefore, accused the EAC Secretary General of the failure to fulfill his obligation as stipulated in Article 29(1) of the treaty.

The Article says “where the Secretary General considers that Partner State has failed to fulfill obligation under this Treaty, the Secretary General shall submit his or her findings to the Partner State concerned, for that Partner State to submit its observations on the findings”.

Children display the South sudan Transitional Constitution promulgated in 2011. PHOTO | VIVAT

Mr Bieng Piek Kol, who represented the South Sudan government, maintained, however, that the removal of the justices and judges was legal and in line with the Constitution and that it did not violate any provision of the treaty.

He said the instant Reference was improperly brought against the minister for Justice cum Attorney General, as the Republic Decree No 100/2017 was the act of the President who enjoyed immunity even before the regional court.

Ms Christine Mutimura, who represented the EAC Secretary General, said Justice Malek Mathiang did not demonstrate that the executive arm of the bloc was aware of the actions occasioned on him by the South Sudan government prior to the filing of the reference.

“When the impugned actions of the partner state came to its attention upon the filing of the instant Reference, the second respondent did take action by initiating inquiries on the same,” she said as she prayed the court to dismiss the case with costs.

The court agreed with her saying without knowledge the Secretary General could not be expected to conduct any investigation and come up with a report under Article 29(1).

The EACJ First Instance Division Principal Judge Monica Mugenyi was flanked by former Deputy Principal Judge Faustin Ntezilyayo and Justice Charles Nyachae during the ruling.

Pope Francis kisses the feet of the leaders of South Sudan during a spiritual retreat in the Vatican. PHOTO | MAIL ONLINE

Dr Ntezilyayo resigned from the court in February, but signed the ruling as per Article 25(3) of the East African Community Treaty which says a judge shall, only for the purpose of completing a particular matter, continue to sit as a judge.

The regional court last week concluded its maiden online sessions which saw four judgments and eight rulings delivered, six cases heard and seven scheduling conferences held via video conference and live streaming.

“This has been a milestone for the court in delivering justice as deserved to the East Africans during this Covid-19 pandemic that has affected work places globally,” the court says in a statement.

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