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Knowledge Exchange with the Judiciary of South Sudan

By Michael M. Murungi

May 2013.

Mr. Michael M. Murungi, the CEO/Editor of National Council for Law Reporting (left) with the Chief Justice of the Republic of South Sudan The Hon. Justice Chan Reec Madut, at the first capacity building retreat for the Judiciary of South Sudan - May 2012

As part of a bilateral agreement between the Republics of Kenya and South Sudan, the National Council for Law Reporting has been sharing its knowledge and experience in the establishment of a system for official law reporting and law revision with the Judiciary of South Sudan. This capacity building was conducted through a series of seminar-style knowledge exchange retreats held between May 2012 and May 2013. The retreats were organized by the Kenya-South Sudan Liaison Office (KESSULO) and involved the Judiciary of Kenya and the Kenya School of Law and a rich diversity of stakeholders in the Kenyan legal and justice sector.

South Sudan – A Country and a Judiciary in Transition

Between 9 and 15 January 2011, a referendum as held to determine whether South Sudan should declare independence from Sudan. 98.83% of the population voted for independence. The now-defunct Southern Sudan Legislative Assembly ratified a transitional constitution shortly before independence on 9 July 2011.

Earlier in March 9, 2007, the Government of Kenya (GoK) and the then Government of South Sudan, now the Republic of South Sudan (RoSS), had signed a Memorandum of Understanding, whereby the GoK undertook to provide technical assistance and capacity building for the RoSS.

The Transitional Constitution of The Republic South Sudan, 2011 in Part Seven establishes “The Judiciary of South Sudan” (JOSS) as an independent an independent arm of government. It is headed by the Hon. Chief Justice Chan Reec Mandut and his deputy the Hon. Justice Reuben Madol.

Historically, the larger Sudan applied the Common Law until 1993 when the Khartoum government abolished it and introduced continental/Sharia Law.  However South Sudan has returned to the Rule of Common Law and its Judiciary has seen the need for capacity building on the English principles and practices of the Common Law.

Though a lot has been done in terms of capacity building through other development partners in the Judiciary of South Sudan, the transition from the application of Continental Law to  Common Law has been slow and challenging. One of the major contributing factors is the shift from use of Arabic to English as the official language of transacting court business.

Mr. Cornelius Lupao, a Senior Law Reporter at the National Council for Law Reporting (right) showcases some of the Council's publications to Judges of South Sudan - May 2013

A majority of the Judges though very keen to see the success of the transformation of the Judiciary of South Sudan, needed a deeper appreciation and a refreshed understanding of  the integral elements of the administration of justice in a Common Law legal system.

Kenya’s choice as a capacity building and knowledge exchange destination for the Republic of South Sudan is based not on only on its geographical proximity but on its many decades of experience in the administration of justice in a English/Common Law legal system.

The hierarchy of courts in the Republic of South Sudan is as follows:

The Supreme Court

The President of the Court is The Chief Justice who is deputised by a Deputy Chief Justice. The Court is comprised of other associate judges who should not be less than nine in number. The Power and jurisdiction of the Supreme Court is provided for in Article 126 of Part Seven of the Transitional Constitution.

The Court of Appeal

The Court of Appeal is headed by a President who constitutes panels of at least three Justices each, presided over by the most senior judge.

The High Court

The President of the Supreme Court establishes one High Court in each of the ten states of the Republic.

The County Courts

These are equivalent to Kenya’s subordinate courts or Magistrates Courts.  However in South Sudan, the judicial officers presiding over these courts carry the title of ‘Judge’ as opposed to the title of ‘Magistrate’ which is used in Kenya.

The Payam Courts

These are Courts established at the county level with jurisdiction limited to presiding over prosecutions for criminal offences punishable by up to one year imprisonment and a fine not exceeding 300 South Sudanese Pounds (SSD), and civil cases in which the value of the subject matter does not exceed 500 SSD.

Other Courts

These are such other Courts or Tribunals as deemed necessary to be established in accordance with the provisions of the Interim Constitution of South Sudan.

Adopted with modification from a concept paper originally prepared by the Kenya School of Law.

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