Dear Honourable Michael Makuei Lueth, Minister for Information, Communication, Technology and Postal Services and government spokesperson for the Revitalised Transitional Government of National Unity, I extend my greetings for the new year, 2024. I am writing in response to your recent statements regarding the preference of South Sudanese for the East African Court of Justice (EACJ) over our national courts and your characterization of international law as “so-called.” Your comments, made during the evening news on January 26, 2024, have prompted me to address certain concerns.
In your statement, two crucial issues were highlighted, suggesting your dissatisfaction with the EACJ. Firstly, you raised concerns about cases reaching the EACJ directly without first passing through our national courts. Secondly, you questioned the basis and credibility of international law by referring to it as the “so-called” International law.
These remarks may be perceived as a potential violation of South Sudan’s obligations under the Treaty for the Establishment of the East African Community, signed in Arusha on November 30, 1999. The treaty, effective since July 7, 2000, binds all partner states, including South Sudan, to its provisions.
Your use of the term “so-called” in relation to international law could be interpreted as disapproval, suggesting that it is phony or simulated. It is essential to recognize that such language undermines the foundations of international cooperation and the work of the EAC.
As a legal professional, it is crucial to exercise caution in choosing words, especially when addressing matters of international diplomacy. Words have the power to either build or destroy, and they should be wielded responsibly. Professional ethics demand careful consideration to avoid being taken out of context or perceived as careless or reckless with language.
In matters of international diplomacy, thorough research is imperative to prevent mistakes that may impact the image of the law and the country. South Sudan, as a member of the United Nations, has an obligation to conduct itself in a civilized manner, as outlined in Article 4 of the UN Charter of 1945. This article emphasizes the importance of being a peace-loving state and accepting the obligations contained in the Charter.
Moreover, international and regional treaties, such as the EAC Treaty, to which South Sudan is a signatory, must be observed and implemented in good faith. The Vienna Convention on the Law of Treaties (1969) underscores the binding nature of such agreements, requiring parties to fulfill their obligations in good faith.
It is essential to recognize that challenging the credibility of regional and international treaties after accession or ratification, without placing reservations on specific provisions, is not permissible. South Sudan, including its representatives, is obligated to uphold and honour the commitments made under these treaties.
It is crucial to recall that South Sudan, before becoming a member of the East African Community (EAC) under Article 3(3) of the EAC Treaty, underwent a thorough engagement process with other member states. The application for membership was a deliberate and considered step, with South Sudan submitting an Instrument to the Secretary General of the EAC. Notably, this Instrument did not contain any reservations to the provisions of the Treaty, indicating an unequivocal acceptance of association with and participation in all EAC activities.
The acceptance of the Community, adherence to universally accepted principles of good governance, democracy, the rule of law, and the observance of human rights and social justice were integral aspects of South Sudan’s commitment. Additionally, there was an acknowledgment of the potential contribution to the integration within the East African region, meeting the conditions for membership as outlined in Article 3(4) of the EAC Treaty.
South Sudan formally acceded to the EAC Treaty on April 15, 2016, in accordance with Article 8(5) of the same Treaty. The subsequent full membership was granted on September 5, 2016, marked by the deposition of the instrument of ratification at the EAC Headquarters in Arusha, Tanzania. With this accession and full membership, the Republic of South Sudan acquired equal rights, obligations, and privileges within the bloc.
Under the EAC Treaty, South Sudan assumed the obligation to implement all its provisions unconditionally, without reservations or scepticism. Operational Principles, such as the “maintenance of universally accepted standards of human rights,” were embraced as part of the EAC law. South Sudan, as a member, is duty-bound to observe Articles 6(d) and 7(2) of the EAC Treaty. These articles impose obligations related to fundamental principles of good governance, encompassing democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, and the recognition, promotion, and protection of human and peoples’ rights as stipulated in the African Charter on Human and Peoples’ Rights.
The EAC Treaty mandates South Sudan to uphold Articles 6(d) and 7(2) in all its practices and activities, with a particular emphasis on respecting human rights and fundamental freedoms. Failure to adhere to these principles, which are vital for robust regional integration and a prerequisite for EAC bloc accession, may be construed as a breach of the EAC Treaty, invoking the jurisdiction of the EACJ. Established as one of the EAC’s organs, the EACJ, being a treaty-based judicial body, ensures the interpretation, application, and compliance with the EAC law.
Under Article 8(4) and (5) of the EAC Treaty, the EACJ takes precedence over all courts of the Republic of South Sudan concerning the implementation and application of the Treaty. South Sudan, by depositing the instrument of ratification for accession to the Treaty on September 5, 2016, at the EAC Headquarters in Arusha, Tanzania, affirmed the precedence of the EACJ over its national courts in matters related to the EAC Treaty.
As discussed earlier regarding the law of treaties, South Sudan, by expressly and voluntarily accepting the obligations outlined in the EAC Treaty and principles of Regional and International laws, is obligated to perform these duties in good faith, as stipulated in Article 26 of the Vienna Convention on the Laws of Treaties (1969). Furthermore, under Article 9(3) of the Transitional Constitution of the Republic of South Sudan, 2011, as amended, the country is constitutionally bound by the EAC Treaty, with international human rights instruments forming an integral part of its Bill of Rights.
Referring to international law governing the EAC and the EACJ as “So-Called international law” is deemed unprofessional, as it undermines the core principles of the legal profession and etiquettes. It is crucial to approach such matters with the due diligence and respect they deserve.
It’s noteworthy that the President of South Sudan serves as the President of the EAC and oversees its organs, including members working within the EAC. South Sudan’s active involvement in nominating judges to the EACJ and electing members to the EALA signifies our role as decision-makers within the EAC, necessitating cooperation and support for effective implementation of the Treaty.
Additionally, the EACJ serves as our supreme court of appeal in matters concerning the relationship between the EACJ and the National Courts of South Sudan. Rather than criticizing, it is essential to collaborate with and support these institutions.
Criticism against the EACJ and international law should be approached with a thorough understanding and not driven by emotions. It is crucial to conduct research before making comments or statements to ensure informed and rational discourse. The EACJ’s jurisdiction, as a specialized court, does not necessitate the exhaustion of local remedies, providing a unique opportunity for national courts to engage with an international court through litigation.
As stipulated in Article 27(1) of the EAC Treaty, the East African Court of Justice (EACJ) possesses jurisdiction over the interpretation and application of the EAC Treaty, particularly when matters pertain to the application or interpretation of the Treaty or any other East African Community law. This jurisdiction is concurrent with that of National Courts, as outlined in Article 33(1) of the Treaty. It is crucial to note that the EACJ’s jurisdiction is not excluded from the national courts of partner states, including South Sudan.
Furthermore, according to Articles 28(2) and 30(1) of the EACJ, challenges to the legality of any Act, regulation, directive, decision, or action on the grounds of ultra vires, unlawfulness, or infringement of the provisions of the EACJ Treaty, or any related rule of law, can be brought before the EACJ. Under these articles, Partner States, the Secretary General of the EACJ, Legal and Natural Persons, and national courts are empowered to make reference to the EACJ. The representation in proceedings before the EACJ can be done either in person or by an agent, and legal representation requires an advocate entitled to practice before the superior court of any partner state or in South Sudan.
In terms of the exhaustion of local remedies, a principle often required in international law, it is important to highlight that applications to the EACJ are not obligated to exhaust domestic remedies before being brought to the Court. This departure from the usual practice is based on the principles of “people-centered and market-driven cooperation” as outlined in Article 7(1) of the EAC Treaty. The EACJ, being a specialized court, has the authority to determine cases without waiting for the exhaustion of local remedies. The only limitation is the two-month period stipulated in Article 30(2) of the Treaty, requiring cases to be lodged within two months of the decision or action in question.
In conclusion, citizens often prefer the EACJ over National Courts for several reasons. The justice system in South Sudan is perceived as broken, with concerns about judges imposing decisions on litigants and instances of corruption due to underpayment and delayed salaries. Seeking justice in South Sudan is regarded as a formidable challenge, prompting citizens to turn to the EACJ for its cost-effectiveness. Filing a case before the EACJ is often cheaper or even free, as there is no court fee, and only lawyers are remunerated. The preference for the EACJ is rooted in the perceived weaknesses of the justice system in South Sudan rather than any shortcomings of the EACJ itself.
Juol Nhomngek is a member of the Transitional National Legislative Assembly (TNLA), representing Cueibet County on the ticket of the SPLM-IO. He is a lawyer specializing in Constitutional law and human rights. He can be contacted via nhomngekjuol@gmail.com
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