By Roger Alfred Yoron Modi, 24th September 2021
Several individuals and institutions have raised concerns, many very genuine, regarding the recent and ongoing actions of the Mayor of Juba City Council Kalisto Ladu. Some lauded the Mayor’s actions as morally good and even Constitutional, while others questioned the morality and Constitutionality of some of those actions, in relation to the rights, including human rights, of those affected.
“The inspection carried out in the city covered several areas including prostitution in lodges, illegal business activities carried out along the roads, witchcraft, drug abuse, illegal driving without licenses in the city as well as robbery involving Toronto boys,” Juba Monitor quoted Kalisto as saying.
The mayor said they carried out a general inspection in Juba city on illegal activities that are against the city by-laws, according to Juba Monitor, this came after an approval given to them by chief Justice Chan Reech Madut on public order.
A statement this week by Nyagoa Tut Pur, a Human Rights Watch Researcher, Africa Division term some of the actions a violation of the rights to privacy, equality, and freedom from discrimination, adding that they also fuel stigmatization and ignorance of HIV/AIDS.
“The government has no business policing sex among consenting adults. It should fully decriminalize sex work and ensure that sex workers do not face discrimination in law or practice. It should also enhance HIV/AIDs education, fight stigma, and enhance health care for people living with HIV,” the statement added.
The author of this article recognizes that a number of the actions indeed violate several rights and would like to raise the following points for remedy and lasting solutions.
The Transitional Constitution of the Republic of South Sudan, 2011 (as amended 2020) already recognize and guarantee the rights in question.
To determine the Constitutionality of the actions of the mayor and how redress can be sought, laws governing the City Council need to be looked into and whether they are in conformity with the national (Transitional) Constitution.
First, it is worth recalling that City Council was first established through a gubernatorial decree in March 2011.
The author of this article is not aware of any legislation enacted by the state to govern the City Council as well as the conformity of such legislation (if any) and or the gubernatorial decree of March with the Transitional (National) Constitution.
Nonetheless, in an attempt to answer the above questions, it is important to draw the attention of the public and anyone concerned to the following:
The Constitution says the City of Juba shall be the National Capital of South Sudan and the seat of the National Government and that its territory and administration shall be defined and regulated by law.
The Constitution has gone further to state that local government tiers shall consist of County, Payam and Boma in the rural areas, and of city, municipal and town councils in the urban areas, adding that pursuant to the Constitution and the state constitutions, the states shall enact laws for the establishment of a system of local government based on urban and rural councils for which they shall provide structures, composition, finance and functions.
For the purposes of the initial establishment of a local government system, and in order to set common standards and criteria for the organization of local government, the Constitution says, the National Government shall enact “the necessary legislation.” Again, the author of this article is not aware of any legislation enacted over the years for the above stated purposes.
Relevant Constitutional Provisions on National and States Powers
Under Schedule A of the Constitution, exclusive legislative and executive powers of the National Government include the National Capital territory. In Schedule B, the exclusive executive and legislative powers of a state include adoption or amendment of the state constitution subject to conformity with the National Constitution; Local Government; State taxes; Customary law courts. Schedule C provides for Concurrent Powers, and relevant to this article, the Schedule says the National and state governments shall have legislative and executive competencies on any of the matters: Matters relating to taxation, royalties and economic planning; Regulation of land tenure, usage and exercise of rights in land; Matters relating to businesses, trade licenses and conditions of operation; Health policy; Urban development, planning and housing; Trade, commerce, Industry and industrial development; Disaster preparedness, management and relief and epidemics control.
Schedule D says Residual Powers shall be dealt with according to their nature, if the power pertains to a national matter, requires a national standard, or is a matter which cannot be regulated by a single state, the Schedule says, it shall be exercised by the National Government, and If the power pertains to a matter that is usually exercised by the state or local government, it shall be exercised by the state or local government.
On Resolution of Conflicts in Respect of Concurrent Powers, Schedule E of the Constitution says if there is a contradiction between the provisions of National law and a state law on the matters that are concurrent, the National law shall prevail to the extent of the contradiction.
Rights that the Constitution says shall not be Derogated
The following are relevant provisions of the Constitution and they say:
-The Bill of Rights is a covenant among the people of South Sudan and between them and their government at every level and a commitment to respect and promote human rights and fundamental freedoms enshrined in this Constitution; it is the cornerstone of social justice, equality and democracy.
-The rights and freedoms of individuals and groups enshrined in this Bill shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.
-All rights and freedoms enshrined in international human rights treaties, covenants and instruments ratified or acceded to by the Republic of South Sudan shall be an integral part of this Bill.
-This Bill of Rights shall be upheld by the Supreme Court and other competent courts and monitored by the (South Sudan) Human Rights Commission.
-Subject to Article 189 (which is about a State of Emergency), no derogation from the rights and freedoms enshrined in this Bill shall be made. The Bill of Rights shall be upheld, protected and applied by the Supreme Court and other competent courts; the Human Rights Commission shall monitor its application in accordance with this Constitution and the law.
In Article 23, the Constitution provides that the following religious rights are guaranteed:
(a) the right to worship or assemble in connection with any religion or belief and to establish and maintain places for these purposes;
(b) the right to establish and maintain appropriate faith-based, charitable or humanitarian institutions;
(c) the right to acquire, possess and own movable and/or immovable property and make, acquire and use the necessary articles and materials related to the rites or customs of religion or belief;
(d) the right to write, issue and disseminate religious publications;
(e) the right to teach religion or beliefs in places suitable for these purposes;
(f) the right to solicit and receive voluntary financial and other contributions from individuals, private and public institutions;
(g) the right to train, appoint, elect or designate by succession appropriate religious leaders called for by the requirements and standards of any religion or belief;
(h) the right to observe days of rest, celebrate holidays and ceremonies in accordance with the precepts of religious beliefs; and
(i) the right to communicate with individuals and communities in matters of religion and beliefs at national and international levels.
Office of Mayor: Validity and R-ARCSS
There is no explicit provision in the R-ARCSS on power (responsibility) sharing at the level City Councils. Article 1.16.3. only says “the positions that shall be shared as per the responsibility sharing formula are: Governors, Speakers of State Legislatures, State Councils of Ministers, State Legislatures, County Commissioners, and County Councils (if any).”
Meanwhile, in his March 2021 Gubernatorial Decree for the appointment of Mayor and Deputies Mayor for Juba City Council, the governor of Central Equatoria Emmanuel Adil Anthony cited “exercise of powers” conferred upon him by Republican Decree (of his appointment by the President), read together with Article 99 (2)(a) of the Transitional Constitution of Central Equatoria State, 2012 (as amended) and Section 53 (2) of the Local Government Act, 2009. First, the author of this article would like to point out that just like the majority, he does not have a copy of the state Constitution. Many others also do not have the Constitutions of the states in South Sudan. This is an issue of the right of access to information in South Sudan which is not being respected. The term “as amended” is usually used by many leaders in South Sudan without indicating the dates of the amendments; it is a vague term and gives room to manipulations and alterations of laws.
Also, Section 53 (2) of the Local Government Act, 2009 which the governor cited does not give him the power to appoint a Mayor. On the contrary, it says the Mayor shall be directly elected by the people of the City or Municipal Council by universal suffrage in a general election.
This is a concern, not just for the people in Juba, but generally in cities throughout the Country where city councils ought to exist in accordance with the law.
Chief Justice or The Supreme Court?
As pointed above, the mayor said they carried out a general inspection in Juba city on illegal activities that are against the city by-laws, according to Juba Monitor, this came after an approval given to them by the chief Justice Chan Reech Madut on public order.
How did the Chief Justice reach the decision to grant approval on “public order” and what’s the extent of such an approval if at all he did grant?
Provisions of the Constitution that are relevant to this article say the Supreme Court shall have the competencies to:
-Interpret constitutional provisions at the instance of any state government.
-Be the court of final judicial instance in respect of any litigation or prosecution under National or state law, including statutory and customary law.
-Have original jurisdiction to decide on disputes that arise under the Constitution and the constitutions of states at the instance of individuals, juridical entities or governments.
-Adjudicate on the constitutionality of laws and set aside or strike down laws or provisions of laws that are inconsistent with this Constitution or the constitutions of the states to the extent of the inconsistency.
-Have original and final jurisdiction to resolve disputes between the states and between the National Government and a state in respect of areas of exclusive, concurrent or residual competencies.
-Uphold and protect human rights and fundamental freedoms.
Now, in light of the above, did the Chief Justice act alone? Does the Supreme Court currently have the quorum to make a decision? And what are the views of those aggrieved regarding the reforms that are to be carried out in the Judiciary light of the R-ARCSS provisions and or any other process?
The various laws mentioned here contain many good provisions, however, they need to be harmonized for better and just application at all levels. The people also need to be enlightened so that they are able to defend their rights and hold accountable those in power. This includes making available to the public at all levels the laws of the Country, including States Constitutions and enlightening them on the same. Those in power should also note that, if at all they are being just in their actions, they must demonstrate that as the rule of law requires, not through sideshows, using emotions, religious and other beliefs of sections of the society. Rights enshrined in the Constitution and the law should be upheld. In a more general sense also, some of these challenges are related to the challenges of building institutions and making good laws that continue to face South Sudan as Country right from the times to Independence, up to now through the various process being pursued.