February 10, 2013 (SSNA) — Legal rights are those rights that any human person, or any legal person, can sue for in any court of law, and if these rights are violated, they can claim remedies or damages. However, when people speak of development as a process of socio-economic/financial, technological, cultural and political positive change, in human society, various issues come to play. Many people do not agree over the issues; whether, the notion of development is a legal right, in a formalistic and legalistic sense. However, it is important to mention that, when issues of development are viewed from some aspects of international human rights law, there arise controversies whereby, some people would like to argue that, yes, issues of development are now becoming legal rights that, those who suffer from the lack of development, can sue whosoever is in charge of their development processes, because, it means that, some human rights to development have been violated.
Development here shall be defined as the equitable and beneficent provision of all basic and essential goods and services, to all the citizens of South Sudan, without any discrimination, on tribal, religious, linguistic, political, ethnic, and racial grounds. The services shall include access to all educational, medical, social welfare, security, employment, judicial, legal, public health, and recreational services. These are all legitimate services which, the government of South Sudan is expected to provide for all of us in South Sudan. Arguments about the lack of resources and other procedural excuses ought not to be made the perennial scapegoats, and the curtains behind which, those endowed with the fiduciary duties of care would always hide.
On the other hand, here in South Sudan, is there a legal right not to be poor? Alternatively, does it mean that, we in South can sue our government for letting us being poor? It is important to mention that, when I speak of development, I always mean positive development. I do not mean the proliferation of social instability and the widespread of murders and robberies, in Juba for example, since the advent of the government of independent South Sudan, under the leadership of the SPLM. These variables of dangerous cultures are attributable to the kind of reckless governance which appears to have been entrenched in South Sudan. These are negative developments which deprive us in South Sudan, of beneficent fruits of positive development. Our government must bear the responsibility for this unfortunate situation.
When we collectively, in South Sudan, allowed the SPLM to form the government of South Sudan, we did so, with the understanding that, the government shall use the powers we delegated to it, through our various executive, judicial, and legislative institutions, in a prudent fashion, and in the best interest of us all, so that, we enjoy the positive development discussed here. This delegation of powers is characterised by legal principles that govern unwritten contracts in our everyday civil interactions. However, this is a political contract which attracts legal consequences. The many assumptions and terms of this political contract between us and the SPLM as the government include the fact that, there shall always be transparency, accountability, honesty, and fairness, the rule of law, institutionalism, and constitutionalism in all manners of dealing with public issues.
It was also assumed that, the SPLM as the government of South Sudan shall disabuse itself from reckless and grossly negligent conducts, which endanger the life of the nation and us herein. It was also assumed that, should the SPLM as the government of South Sudan, abuse its fiduciary duties, and somehow, becomes dishonest, and indulges in acts and omissions, which are utterly unconstitutional, and illegal, it was assumed, and agreed in this contract that, the peoples of South Sudan, shall be the jury and the judge.
It is obvious that, we in South Sudan did not collectively vote for the SPLM as a government to institute a reign of terror as we see in South Sudan. We did not vote for the SPLM to form a government which is to brutalise us through its various agents and agencies. These aspects of brutalisation include the hunger and famine we are enduring and succumbing to, the systemic assassinations, extra judicial detentions and imprisonments, threats of violence and death we are subjected to, and the systemic displacement of peoples from their villages that we are witnessing, all these are acts and omissions which we did not endorsed in our political contract with the SPLM as government of South Sudan.
We in South Sudan do not want to be poor in midst of plenty. We do not want to become a chronically dependent people on handouts from international and regional donors. We as parents in South Sudan do not want to depart from this world leaving behind generations of international beggars, and dependents. We do not want to bequeath our children and posterities some demeaning cultures of begging and irresponsibility. Our fear is that, the SPLM government ruling at the moment, in South Sudan, does not listen to all advice being offered, and it is determined to entrenched these cultures of dependency in the South Sudan, to our collectively detriment. All these acts and omissions, taken all together, and subjected to proper legal analyses, can give rise to justiciable claims, within the remit of development claims and exposure to unnecessary poverty and death, through poverty for reasons of corruption and criminal negligence.
Alternatively, when we in South Sudan ask questions like; what has happened to unemployment? What has happened to inequality? What has happened to discrimination? What has happened to illiteracy and innumeracy? What has happened to infant mortality rates? What has happened to corruption? What has happened to gender inequality? And so on and so forth. These questions are all asked within the remit of political economy of South Sudan. Systemic and objective search for causes of the dire sufferings of the entire peoples of South Sudan, have already established the loci for the comprehensive causes of these evils in the lives of South Sudanese.
For example, the President of South Sudan himself has already admitted to the fact that, some of his previous and current ministers have stolen millions of public dollars from the coffers of government of South Sudan. It has also been established that, millions of dollars have also been stolen by government officials through the so-called dura contracts in South Sudan. It is also open secrets that, millions of dollars have been stolen through bogus procurement contracts, like the issue of vehicle procurement contracts which have been in the public domain for a long time. These are direct governmental acts and omissions which have direct causal relationships, with the chronic and debilitating and fatal poverty, undermining the livers of South Sudanese.
It has also been established that, gross criminal negligence have also contributed to corrupt allocation of resources, commensurate with corrupt prioritisation of the various productive economic and financial resources, to serve the primary interests of groups and individuals, at the expense of the interest of the peoples of South Sudan. When situations like these exists, and when millions of lives are put at risk due to criminal intentions of individuals and groups, and which frustrate formal public projects, which were intended to protect human beings from dangers of poverty and hunger, and which consequences can be fatal, it can be argued that, those; legally responsible for such cruelties, ought to face legal interrogations, and if found guilty, they ought to be punished.
It can be argued that, when government officials and including senior executives such as ministers elect to behave like criminal gangsters in society, and in the process, they abuse and misuse constitutional powers and offices for their own private gains and interests, such individuals have fallen outside the immunity of the constitution, and they have fallen into the net of the criminal law. On the other hand, the government is vicariously liable for acts and omissions of its ministers and others, and therefore, this can give rise to the claim that, the people of South Sudan have got a legal right not to be impoverished, by such criminal gang of ministers, and others in the civil service, who in fact, criminally, privatised the public sphere, within the remit of government of South Sudan, for their own interests.
These dishonest ministers and others, indulged in these orgies of misappropriations during the course of their employment by the government of South Sudan, they were made responsible for the allocation of resources among the various sectors within the economy of South Sudan, however, they added new sectors, which happen to be their private interests, and thus, they directed the bulk of the public resources to serve these private interests to the detriment of the peoples’ interests. Whether the government of South Sudan knows of this or not, is immaterial. The government ought to have known any way. This is a criminal misappropriation of assets and values, and the intention is to deprive the public from the use values in these assets and property, and therefore, the public also do not have the control over the exchange value of the said values and property, once they are misappropriated by such constitutional criminals.
The case of South Sudan is not the run-of-the-mill case in development economics parlance, whereby, the government of the day has done all that it could reasonably have done, within the ambit of available resources, but, others in society got left out, not due to some discriminatory plans, but due to sheer scarcity of these goods and services. The problem in South Sudan is not the lack of resource; our problem is chronic deficit of rule of law, institutionalism, constitutionalism, meritocracy, accountability, transparency, honesty, and legitimacy in society. All the conducts that caused these miseries in South Sudan are laced with criminality, and the actors involved are inherently linked by fraudulent intentions and moralities of hypocrisy and opportunism sustained by insatiable selfishness and lust for ill-gotten fortunes.
Therefore, when resources are reasonably allocated for societal benefit, it might become very difficult for those who felt left out by development process to claim some kind of discrimination. However, does this then mean that the government of South Sudan is free to willy-nilly abuse and misuse development resources without taking into serious consideration the various basic needs of the peoples of South Sudan? The answer is no. Philosophically, and indeed legally speaking, as pointed out above, the government of South Sudan is considered a trustee for public assets and property found within South Sudan. The government of South Sudan, looks after these values on behalf of the peoples of South Sudan, and should individuals within the government of South Sudan abuse this trust, they are bound to be prosecuted, and if found guilty they are sanctioned and punished.
For example in our recent past, here in South Sudan, and during the era of the notorious High Executive Council (HEC) government, which brought about the re-division of South Sudan by then, there were so many illegal conducts associated with public assets and property, and where individuals enriched themselves at the expense of the peoples of South Sudan, and yet these individuals got away without being prosecuted for breach of trust vis-à-vis the peoples of South Sudan. The current government of South Sudan appears to be following every tiny footstep of the HEC government. There are so many common variables in these two governments, but for the temporal variable, one could have easily concluded that, it is HEC government all over again. God save the peoples of South Sudan.
What shall happen if the current government of South Sudan continues to abuse and misuse resources meant for positive development of the peoples of South Sudan? Can the peoples of South Sudan sue the government of South Sudan for this culpable conduct? It must be mentioned that, like any other government, the government of South Sudan is free to allocate the various development resources throughout South Sudan. It is worth pointing out that, some individuals who worked for the HEC government, are also present in the current government of South Sudan, in one capacity or the other, but they are there. May be this is why history is repeating itself with very high velocity in South Sudan. Is that why also the current government of South Sudan, is finding it difficult to distinguish private assets from public assets? Who knows.
If government ministers in South Sudan, continue to ignore this difference between the public and the private, then they may be prosecuted this time round. However, does it mean that they shall be prosecuted because there are any legal right to development vis-à-vis the peoples of South Sudan? No. These people shall be prosecuted for individual crimes based on misappropriation of public fund. However, should the government of South Sudan indulge itself in discriminatory allocation of development resources along some tribal and ethnic lines, then if proven beyond reasonable doubt that this is the case, it can be argued that, the aggrieved peoples of South Sudan affected by this conduct can sue the government of South Sudan, because such kind of discrimination is prohibited by both national and international law within the remit of human rights law.
Therefore, even though, there is no straightforward right to sue for developmental deprivation, when governments indulge in acts of discrimination, then it is possible that, within the remit of development paradigms, peoples can sue their governments. Governments are morally obliged to provide development benefits to their peoples, especially government like the government of South Sudan, which came into existence as a result of self-determination, meant to combat gross discrimination and marginalisation.
The Author can be reached at [email protected]