Rule of Law Vs Rule of Man: Where is South Sudan?

By:  Biel Boutros Biel

Prof. A.V. Dicey believes that rule of law means “equality before the law and that no one is above the law”.Arguably, Justice Prof. George Kanyeihamba states in the affirmative that;

“A government which performs any act which is not supported by any law, is as guilty of violating the rule of law as an individual or a group of them who take the law into their own hands”

October 13, 2013 (SSNA) — President Salva Kiir Mayarditstated in 2012 that;  “——our struggle was to make human rights a reality in South Sudan; therefore, as an independent nation, we must strive to build our new nation on values and principles of our Constitution and human rights ideals”

However, two years of its independence, South Sudan remains under a country in which our leader uses power to oppress and dictate interests of the governed contrary to the Constitution.

There is no freedom of speech, expression and media. In November 2011, Destiny Newspaper Editor Ngor Garang and his deputy Dengdit Ayok became the first victims. Dengdit wrote an article entitled; “Nyan Bany” (Daughter of the President), criticizing the marriage of the daughter of the first family to an Ethiopian national. He asserted that this marriage would lead to the leaking of national secrets to the foreign land through the daughter as there are no secrets between a couple. That landed the editors more than two weeks’ detention by the National Security. Kiir’s family could have used the civil law to sue the Newspaper if they believed the article defamed them but they didn’t instead used sword over the helpless editors.

Other victims of abuse of rule of law included Isaiah Abraham. He was gunned down on December 5, 2012, due to his views on looming dictatorship. Dr. Marial Benjamin, the former Minister of Information and Broadcasting made wild promises for government’s speedy investigations of the case, yet, no perpetrators have been held accountable to date. In May 2013, Former BBC Correspondent Alfred Taban and Michael Koma were detained for 8 hour-interrogations and 3 days’ detention respectively. The orders came from the former Deputy Minister of Interior Gen. Salva Mathok Gengdit. He claimed defamation in article published by Juba Monitor run by the two journalists in which Bul-Nuer community accused the Minister of murdering their late young man Banyjioth Mathoat Tap. The late was found dead on March 30th 2013 beneath the premises of the Minister and with blood stains thinly pinning the lines inside to the Minister’s premises. That created more confusion than one would imagine though!

In Juba alone, John Louis Silvio, civil society member Modessa Wiyual Manytap, Reverends Manasse Matayo, Idris Nalos Kida and David Gayin, were mysteriously disappeared, but were believed to have been picked up by the Military Intelligence or National Security agents.

President Kiir has removed the elected governors of Lakes and Unity states as allowed by the unpopular provison of Article 101(r) of the Constitution that empowers the President to remove the State Governor and dissolve the State Legislative Assembly in the event of an emergency that threatens national security. In Unity State, there was no any emergency that threatened national security and so did the Lakes state that has up to now thin pockets of clannish clashes which do not amount to an emergency that threatens the national security. To the public expectations, Jonglei State Governor Kuol Manyang Juuk who has failed to curve insecurities which continue to claim in thousands lives of innocent civilians as he failed to devise better ways of curving tribal clashes along side rebellions could have been the one removed long time ago. Instead, however, President Kiir recently removed him and promoted him to a National Defence Minister. In all his acts, the President is expected to respect the Constitution.

To the contrary, so far no gubernatorial elections have been held within 60 days as required by Article 101(s) of the Constitution. Recently, President Kiir also ordered the Parliament to endorse the new Vice President Hon. James Wani Igga and the new Speaker Hon. Magok Rundial respectively without any obedience to the Constitution that establishes the Parliament. Lakes State imposed miliary caretaker Governor and Upper Nile Governor as empowered by the President have undermined through threats the State Parliaments. The list is endless.

The noble question that should be asked by any sane South Sudanese is; where is rule of law? South Sudan ruling party instead stands with the rule of man! President Kiir has chosen to govern in a way that dishonours his people’s struggle for liberty while publicly talking about the importance of human rights. The situation requires action and our silence is a betrayal of those who died to make us live today. Elie Wiesel firmly once stated;

"I swore never to be silent whenever and wherever human beings endure suffering and humiliation. We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented".

So what is required now? The Parliament should impeach the President and calls for Presidential elections within 60 days. We should wake up from this deep sleep and ask tough questions including; why did we fight Sudan for over two decades? Courageously, we should discuss the kind of Constitution we want, which protects and preserves the gains and the will of the people and not that glorifying the President as a “semi-god”. The document must be passed through a referendum. A commission for the Implementation of the Constitution should be formed. Civil Society, religious institutions and academic think-tanks, should hold more discussion and debates in leading the ways for good governance.

The diplomatic missions and friends of South Sudan at international arena should support democratic efforts through financial assistance and open critique of the evils. They should push for strong institutions which promote rule of law and human rights. The Anti-Corruption Commission must be supported and by law, an Anti-Corruption Court is established to try corruption cases. An independent Constitutional Court must be set up to deal with all human rights violations. The Law Reform Commission must be well structured to start reviewing the jungle laws including the Penal Code to conform to democratic transformation. If nothing positively happens per se, then a regime change must be a remaining option.

Finally, Arch Bishop Desmond Tutu warns us when he states; "If you are neutral in situations of injustice, you have chosen the side of the oppressor, if an elephant has its foot on the tail of a mouse, and you say that you are neutral, the mouse will not appreciate your neutrality"

It is my considered view that to save ourselves and the posterity, we must act now not tomorrow!

Biel Boutros Biel is Lawyer, The Executive Director of South Sudan Human Rights Society for Advocacy and Co-Chair of National Human Rights Forum with South Sudan Human Rights Commission. He has served as columnist (JUNGLE REFLECTIONS) at The Sudan Tribune Newspaper and former reporter of The Citizen English Daily.  He is currently a Visiting Scholar in Human Rights Advocates Program at Columbia University, New York City, USA. The views expressed here are his not of the institutions he is associated with. He can be reached on: [email protected]; Tel: +16464318960

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