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By John Smith
August 12, 2013 (SSNA) — 1. The Presidential Legal Advisor has no legal authority to engage in the execution of any court decrees against government institutions. This is a function of the Minister of Justice under the Constitution. Under Article 135 (b) of the Transitional Constitution 2011, the Minister of Justice is mandated to represent the government in Court or any other Legal proceedings to which any level of the government is a party.
2. The above constitutional provision was clearly affirmed verbatim in the recent Republican Decree without number dated August 3rd 2013, for the cancellation of Republican Decree No. 55/2013 for the affirmation of the continuity of the Presidential Advisor on Legal Affairs Hon. Telar Ring Deng as the Presidential Advisor on Legal Affairs. Paragraph (3) of the decree reads as follows:
“He as the appointed Minister of Justice, shall be the Chief Legal Advisor and Prosecuting Authority at all levels of government, and shall perform such other functions of legal nature as may be prescribed by law in accordance with Article 135 (2) of the Transitional Constitution of the Republic of South Sudan, 2011”.
Certainly, the above is the mandate of the Minister of Justice, which now Hon. Telar Ring Deng is about to assume if confirmed by the National Legislative Assembly. The above being the constitutional mandate of the Minister of Justice, there is no doubt that Hon. Telar Deng acted contrary to the Constitution by writing directly to the Governor of the Bank of South Sudan suggesting to him to accept paying Mr. Garang Deng Aguer the amount of Six Million US Dollars (6,000,000USD) as compensation for two plots of Land in Juba.
The only authority that represents the government at all levels in civil litigation is the Minister of Justice and not the Presidential advisor for Legal Affairs. This case was against the government of Central Equatoria (Ministry of Physical Infrastructure) whose administrative order for repossession of the 2 plots near the Bank was challenged in Court. There was no case between the bank and Mr Aguer. Therefore, the Minister of Justice was the only appropriate legal authority to advise the government on the execution of the decree of the Supreme Court and not the Presidential Legal Advisor. It was then possible for the government to offer alternative plots in a suitable location or in case Mr. Garang Deng Aguer insisted on monetary compensation, then the Ministries of Housing and Physical Planning, Finance and Economic Planning and Justice and any independent property valuation expert that the Court might appoint, should have been involved in the determination of the value of the 2 plots. The Presidential Legal Advisor has no business suggesting any settlement let alone suggesting the extraordinary sum of 6 million USD. And why should the value of land in South Sudan be assessed in foreign currency leaving our national currency, which is the Legal tender for transactions within the country? This indeed raises a lot of question marks especially when this comes from the Presidential Legal Advisor who is supposed to be the legal eye of the President.
3. Hon. Telar Ring may say that he was instructed by the President of the Republic to write the letter to the Governor of the Bank suggesting that Mr. Garang Deng Aguer be paid the 6 million USD from the public money kept by the Bank of South Sudan (the banker of the government) without passing through the Ministry of Finance. This in itself is a gross violation of the law particularly the appropriation Act. The Ministry of Finance is the only institution with authority to order any payment from the government account to settle any legal claims against the government. The action of the Hon. Legal Advisor certainly undermines the mandate of the Minister of Finance. Any argument to the contrary cannot be legally sustained because of the following:
(i) Such argument would be very much amazing if not greatly disturbing and embarrassing, because the very reason why the President is allowed to have a legal advisor by the Constitution is to get quality legal advice whenever taking important decisions affecting the nation. The critical role of the legal advisor is to make sure that the decisions and measures taken by the President are consistent with the constitution and the law.
(ii)This case is about implementation of a Court decree under the Civil Procedure Act, 2007. Whatever the instructions of the President may have been, execution of court decrees is a technical matter. The President is not a lawyer to be expected to know the necessary legal procedures that are followed in execution of court decrees or orders against the government. It is the duty of the Legal Advisor who is expected to be competent in the knowledge of law, who should have guided the President on this matter. Hon. Telar did not do his duty as a competent Legal Advisor should do.
(iii)The Presidential Legal Advisor was expected to be mindful of how he relates with other legal institutions of the government and the degree of coordination required. The Presidential Legal advisor is therefore expected not to undermine the mandate of the Ministry of Justice as the institution that gives mandatory legal advice to all levels of government and represents the government in all civil litigations and conducts public prosecutions on behalf of the government.
In fact, it was the Ministry of Justice that represented the Government in the civil suit raised by Mr. Aguer up to the level of the Court of Appeal in which Mr Aguer lost the case. It was the Supreme Court that finally reversed the decision in favour of Mr. Garang on a procedural point which was that the Minstry of Physical Infrastructure of Central Equatoria was not competent under the Public Premises Eviction Act, 2006 as this power is vested in the Minister of Justice.
Since all claims against government are handled by the Ministry of Justice under section 33(2) of the Civil Procedure Act, 2007, the question to be asked is: Which law authorizes the Presidential Legal Advisor to advise payment of USD 6 million as compensation to Mr. Aguer?
(iv)Execution of decrees against the government are governed by section 223 of the Civil Procedure Act which provides as follows:
223 (1) Where the decree is against a GOSS institution or a public servant in respect of any such act as aforesaid in section 33 (2) of this Act, a period shall be specified in the decree within which it shall be satisfied and if the decree remained unsatisfied, at the expiration of such period the Court shall report the case to the President of the Supreme Court.
(2) Execution shall not be issued on any such decree unless it remained unsatisfied for a period of three months from the date of such report.
In this particular case, the court tasked with the execution of the Supreme Court decree did not make any report after which the three months period stipulated above would have come into effect and a decree for execution against the would have been issued.
CONCLUSION:
1. Hon Telar Ring Deng, whatever might have been his intentions in writing the letter to the Governor of the Central Bank to compensate Mr. Garang Deng Aguer with 6 million USD, had acted contrary to the constitution and the Law. There are relevant government institutions whose mandate is to handle litigation on behalf of the government including the process of executing any decrees against the government. Moreover the Central Bank was not the right body to pay the compensation because the transaction was not a direct sale of property between the Bank and Mr. Garang Aguer. It was suit against the government which decided to acquire the two plots for safety reasons due to closeness to the Bank of the petrol station erected on one of the two plots.
2.Advising the Governor of the Central Bank to pay compensation in foreign currency and not in local currency which is the legal tender, undermines the Bank of South Sudan Act and all the Circulars issued by the Bank and the Ministry of Finance not conduct any local transaction, be it contract or otherwise, in foreign currency.
3. Hon. Telar Ring Deng failed to properly advise the President about the legal provisions and procedures to be followed in the execution of court decrees against the government. Any competent Legal Advisor would have drawn the attention of the President to the provisions of existing laws, in this case the Constitution and the Civil Procedure Act, which do not in anyway invoke the authority of the President. He has therefore, misled the President by either failing to discharge his legal duty towards the President or deliberately acted with ulterior motives that do not relate to the protection of public interest. There is no doubt that if the 6 million USD were paid to Mr. Garang Deng Aguer, this would have resulted in unlawful financial loss to the government.
4. As to his academic qualifications, Hon. Telar Ring Deng has his Academic papers in order from Buckingham University, awarded after 1990s. The short coming in his performance may relate to the fact that he has not kept himself informed of the current laws of South Sudan and above all he deceived the leadership of the Movement in 1984 when he joint as a lawyer and work under the Command of Dr Riek Machar in western Upper Nile, referred to Dr Riek’s testimony.
The author can be reached at [email protected]