SPEECH BY HON.

TELAR RING DENG, PRESIDENTIAL ADVISOR ON

LEGAL AFFAIRS, REPUBLIC OF SOUTH SUDAN, DURING THE BAR
ASSOCIATION CONFERENCE, JUNE 21st, 2014, JUBA.

Ladies and Gentlemen,

Allow me at the outset to take this opportunity on behalf of the President of

the Republic of South Sudan, H.E. Salva Kiir Mayardit and on my own behalf,
I am very much honored to participate in this remarkable event and to
express my gratitude to the Steering Committee of South Sudan Bar
Association for organizing this conference under the theme TOGETHER FOR
THE RULE OF LAW.

All of you are aware that, the Republic of South Sudan is the newest Nation
in the world which attained her independence from the Republic of Sudan on
July 09th, 2011, the new Nation is committed to her both national and
international obligations as a Member State of the United Nations, to uphold
and promote the Rule of Law, through establishment of a number of
government institutions which play key roles in upholding and promoting the
Rule of Law.

However, to ascertain as to whether the Republic of South Sudan upholds

and promotes the Rule of Law under her national and international
obligations, it is imperative to understand the phrase Rule of Law.

1. Historical Background of the Cardinal Principle of the Rule of Law:

As the theme for this conference is Together for the Rule of Law it is
important to first understand what rule of law means. The Phrase Rule of
Law is often used, but difficult to define1. It can be traced back to the 17th
Century and was popularized in the 19 th Century by British jurist A.V. Dicey.
The concept was familiar to ancient philosophers such as Aristotle, who
wrote Law should govern. Therefore, Rule of law implies that every citizen
is subject to the law. Despite wide use by politicians, judges and academics,
the rule of law has been described as an exceedingly elusive notion, giving
1
Google

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rise to a rampant divergence of understandings that everyone is for it, but
have contrasting convictions about what it is. 2

2. Definition of the Phrase Rule of Law.

Today, the Phrase Rule of Law generally refers to the authority and
influence of law in society especially as a constraint upon behavior, including
behavior of government officials. 3 The United States Institute of
Peacedefined Rule of law to mean ability of the people to have equal access
to just laws and a trusted system of justice that holds all persons
accountable, protects their human rights, and ensures their safety and
security.

The United Nations also defined Rule of Law as a principle of governance in

which all persons, institutions and entities, public and private, including the
State itself are accountable to laws that are publicly promulgated, equally
enforced and independently adjudicated, and which are consistent with
international human rights norms and standards. It requires, as well,
measures to ensure adherence to the principles of supremacy of law,
equality before the law, accountability to the law, fairness in the application
of the law, separation of powers, participation in decision-making legal
certainty, and avoidance of arbitrariness, procedural and legal transparency

3. Importance ofUpholding the Rule of Law in a Country.

Rule of law is very vital in the reconstruction of a post conflict South

Sudan because of the following reasons:

(1) Without Rule of law, criminally and politically motivated violence will
perpetuate the threat that warring parties posed during the violent
conflict. For instance, ethnical and inter-clan clashes and violence
will be alarming.

(2) A poorly functioning justice system may promote petty and violent
crimes, politically and ethnically motivated crimes, sexual and
domestic violence, as well as organized criminal activities may also
flourish.

2
Ibid
3
Ibid.

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 (3) For the population, rule of law ensures safety and security for
individuals, families, property and businesses and it allows freedom
of movement to access public services such as education and
health. As such, the police and the army play a vital role in
ensuring the populations safety and security.

(4) It is the foundation for economic and political recovery. For without
rule of law, a countrys economic and political activities may not
prosper.

(5) It sustains peace.This is due to the fact that a culture of lawfulness

but not lawlessness is maintained and people adhere to the law.

4. Efforts by the Government of the Republic of South Sudan to

promote and upholdthe Rule of Law.

The Government of the Republic of South Sudan together with other

stakeholders, is committed to upholding and promoting rule of law, and
has in its efforts to ensure that rule of law is achieved in the nascent
nation, established the following Independent Rule of Law Institutions and
their functions respectively, under the Transitional Constitution of the
Republic of South Sudan, 2011, (hereinafter referred to as the
Constitution) and the laws enacted thereunder:-

(1) The Ministry of Justice,whose functions are stipulated under

Article 135 of the Constitution read together with the Ministry of
Legal Affairs and Constitutional Development Organization Act, 2008,
stipulates that allPublic Attorneys and Legal Advisors shall be under
the Ministry and they shall advise all levels of government, represent
them in public prosecutions, litigation, adjudication, and conduct pre-
trial proceedings as well as recommend law reform, strive to protect
public and private rights, and shall render legal aid; and the Minister
is the chief legal Advisor and the prosecuting authority at all levels of
Government

Under section 23 of the Ministry of Legal Affairs and Constitutional

Development Act, 2008, the Ministry is responsible for rule of law
and the legal profession by ensuring that, rule of law and prompt

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 justice are dominant and prevalent in the legal sector; and improving
efficiency in the legal profession by ensuring that proper rules, sound
traditions, practices and ethics are established.

(2) Law Review Commission established under Article 137 of the

Constitution whose functions shall be in accordance with the law,
but mainly Law reform and revision.

(3) Armed Forces, Law Enforcement Agencies and Security under

Part Ten of the Constitution such as:-

(a) TheSudan Peoples Liberation Army (SPLA) which is to

be transformed into theSouth Sudan Armed Forces
constituted under Article 151 of the Constitution read
together with the Sudan Peoples Liberation Army Act,
2009,mandates the SPLA to uphold the Constitution and
the law; defend the sovereignty of the country; protect
the people of South Sudan; secure the territorial
integrity of South Sudan; defend South Sudan against
external threats and aggression;

(b) ThePolice Serviceestablished under Article 155 of the

Constitution read together with the Police Service Act, is
mandated to prevent, combat and investigate crime,
maintain law and public order, protect people and their
property and uphold the Constitution and the law;

(c) the Prisons Service established under Article 156 of the

Constitution read together with the Prisons Service Act,
ismandated with correctional, reformative and
rehabilitative functions; respect the will of the people
and rule of law and order, including civilian authority
as well as democracy, human rights and fundamental
freedoms;

(d) the Wildlife Service established under Article 157 of the

Constitution is mandated to protect the wildlife and
preserve and conserve the natural habitat of fauna and
flora in South Sudan;respect the will of the people and

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 rule of law and order, including civilian authority as
well as democracy, human rights and fundamental
freedoms and the protection of animals in accordance
with the law;

(e) theFire Brigade Service established under Article 158 of the

Constitution is mandated to prevent and protect the
people of South Sudan and their property from fire and
disasters;

(f) the National Security Service established under Article 160

(1) of the Constitution is mandated under Article 160 (3) of
the Constitutionto be in charge of the internal and
external security of the country and its people.

(4) An Independent Judiciary:

Independence of the Judiciaryemanates from the doctrine of separation of

powers which is to the effect that, for a free and democratic society to
exist there must be a clear separation between the three (3) branches of
Government namely; the Executive, the Legislature, and the Judiciary. In
other words, the doctrine entails that, liberty and human rights can
flourish only where each branch sticks to its proper role. The rationale
behind the doctrine is to promote the rule of law, without which,
the rule of law will be imperiled.

However, it is also worth noting that the doctrine of separation of powers

has got its limitations. There is probably no Country in the world in which
the doctrine is applied strictly and absolutely, because in any modern
State, there must be a great deal of cooperation and interaction between
the three branches of government (the Executive, the Legislature, and
the Judiciary) for effective and efficient conduct of the business of the
State, as well as checks and balances.

(5) The Legislature: Article 54 of the Constitution established the

National Legislature composed of the National Legislative Assembly
and the Council of States whose competence underArticle 55 of the
Constitution is mainly legislative in nature, among other functions
such as:

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 (a) represents the will of the people of South Sudan;
(b) discusses statements by the President and take decisions as
may be necessary;
(c) authorizes annual allocation of resources and revenue;
(d) impeaches the President and the Vice President;
(e) confirms a declaration of war;
(f) confirms a declaration of state of emergency or terminates
thereof; etc.

(6) Advocacy:Role of Advocates in ensuring that the rule of

law is observed
Lawyers are not altogether popular professionals.

Ray Simon/Murray Schwartz said the following about lawyers in

their text Lawyers and the Legal Profession. They warned law
students that they are about to enter a profession which is under
constant attack. They said lawyers are not popular, they are not
trusted, lawyers are not respected. You are embarking on a career
that will lead you to ridicule, criticism and suspicion, your work will
seldom be understood or appreciated by your friends, by the public
or even by your own clients.

William Shakespeare once wrote the famous line in Henry 5 th that,

first thing: Lets kill all the lawyers.

King Cromwell in 1656 said, Lying lawyers whose hands are full of
mischief and their pens dipped in gall, their teeth are swords and
spears and their throats, open sepulchers to devour and swallow up
the poor and the needy amongst men.

Jonathan Swift another writer of the 13 th century described lawyers

as a society of men bred up from their youth in the art of proving
by words multiplied for the purpose that white is black and black is
white according as they are paid.

There is street talk circulating around that private advocacy is a

means to easy and quick riches and that privately engaged lawyers
are a fast-talking, money-grabbing lot.

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Is there any Role for Lawyers in ensuring that the Rule of
Law is observed in View of the above?

Lawyers certainly believe that they have a role in society, in the

words of an ex president of the American Bar Association, we build
no bridges, we raise no towers, we paint no pictures and there is
little of all that we do which the eyes of men can see. But we
soothe out difficulties, we relieve stress, we correct mistakes and
we take other peoples burdens and by our efforts we make possible
the peaceful life of a man in a peaceful state.

Lawyers have a duty and a responsibility to society. The lawyers

very existence is service to society. The principles governing the
legal profession require advocates or lawyers to provide service to
clients of whatever class. They have no choice; they are not
required to pick and choose clients.

Lawyers also help Clients to incorporate companies, negotiate on

behalf of clients, create trust, help in purchasing property, and try
to secure interests of clients.

Lawyers keep stock of changing rules and regulations on how to do

things. The lawyers role is the provision of technical know-how, not
just in transactions but also in legal proceedings in court. An
observer may not appreciate the fact that such proceedings are
governed by technical rules of procedure.

Most legal proceedings are very technical and only proceed

smoothly where a lawyer is involved. Citizens need the assistance
of lawyers in most of the legal proceedings in court. Lord Denning
in Road To Justice, thus noted, the law is a science which
requires long study and experience before a man attains proficiency
in it and the ordinary citizen cannot properly put his argument
before the judge except with the assistance of a trained lawyer.

The role of lawyers is not limited to what they do for their clients, it
extends beyond the lawyer client relationship, they are expected as
lawyers to play a much larger role in society in various transactions.

Lawyers have a calling to the enforcement of human rightsand

advocates on admission to the bar; and they take an oath swearing

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 to defend the constitution and the rule of law. By doing so, it
means that they are swearing to uphold the Bill of Rights among
other provisions.

They have a role to ensure that the rule of law is upheld. By

participating in fighting evils not just by representing a client in
court by engaging in debates and issues of this kind.

Having stated that, after the CPA and following the establishment of
GOSS in the year 2005 and coming down to the time of the
independence, the Bar Council/Association has never been properly
established, as there was no legal framework to establish the same,
however all the same I commend you the Advocates in the orderly
manner in which you organized yourselves by forming provisional
committees which prepared ground for establishment of Bar
Association as envisaged in the Advocates Act, 2013. As an
independent private legal profession, Advocacyhas been provided
for under Article 136 of the Constitution as read together with
Advocates Act, 2013. Since the enabling law has been enacted, it is
certain that you will observe professional ethics, promote, protect
and advance human rights and fundamental freedoms including
prevention of injustice, and defend the legal rights and interests of
their clients, seek conciliation as well as render legal aid for the
needy in accordance with the law.

(7) The Government has also ratified and acceded to a number of

International Treaties and Conventions such as the United Nations
Convention Against Corruption, The Geneva Convention of 1949,
etc.some of which have been domesticated and others are yet to be
domesticated, and has further expressed keen interest in acceding
to more International Treaties/Conventions in the field of Human
Rights, International Humanitarian Law etc. And under Article 9 (3)
of the Constitution, all rights and freedoms enshrined in
international and human rights Treaties, Covenants and
Instruments ratified or acceded to by the Republic of South Sudan
shall be an integral part of the Bill of Rights.

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 (8) The Government in its bid to ensure that the rule of law is adhered
to by all sundry, when it deems necessary forms investigation
Committees in matters of public interest. I.e. recently, following the
attempted coup, the President formed an investigation committee
under the auspices of Justice John Wol with a view of investigating
all individuals who violated law in the wake of the attempted coup,
and thereafter they will have their day in Court of law.

Challenges in implementing the Rule of Law in South Sudan

The challenges encountered on daily basis in the quest for upholding the rule
of law inter alia are as hereunder:-

1. The subsequent legislations that provide for the mandate and

Independence of the three arms of the Government especially the
Judiciary, as guaranteed under the Constitution need to be reviewed to
adequately and elaborately provide for the proper independence of the
Judiciary.

2. Inadequate capacity building and continuous legal training and

education to Public Attorneys, Judicial Officers, Advocates,
Legislatures, Police etc. This inadequacy in capacity building has
resulted into some of our laws being poorly drafted, which are
sometimes inconsistent with the Constitution.

3. Inadequate Technical and Financial support from the Government and

the donor Community to Rule of Law Institutions, projects and
activities.
4. Limited or no access to the law/legal decisions by the citizens and
even some legal professions. There can be no rule of law unless there
is access to the basic sources of law.

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 Recommendations:

As we have all gathered here as stakeholders in the quest for the

promotion the upholding the rule of law, allow me to make the
hereunder recommendations:-

1. Law Reform. The Law ReviewCommission should come up with proper

areas of reform within the already enacted laws which should be
enacted by the Legislature; also there is a need to align some of our
Laws enacted prior to the coming into force of the Constitution to the
said Constitution. The current laws should be amended to be
responsive to the needs of the population and suit the prevailing
situation in order for Institutions charged with the upholding and
promotion the rule of law to operate efficiently.

2. Independence of the Judiciary from the Executive and Legislature

should be guaranteed by amending the Legislations and drafting of
more appropriate legislations.

3. The Government in conjunction with donor community should inject

more human and financial resources to the Rule of Law Institutions
and activities to help South Sudan uphold and promote the rule of law.
This will come in hand with training of some of our
Police/Lawyers/Judges what rule of law entails.

4. The Judiciary through Technical Office should produce Law Report for
reference as precedents for court decisions.

5. There is a need for the Ministry of Justice together with other stake
holders to print the laws and make it publicly available, so that the
citizens get to know what the rule of law means and its significance.

6. With respect to the Training of Advocates, the Government together

with development partners is in the process of establishing an
equivalent of the Kenya School of Law in Kenya and Law Development
Centre in Uganda such that our fresh law graduates get well trained
before they render legal services to the populace. By the same token,

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 it is my humble submission that Section 12 of the Advocates Act,
2013, (which concerns qualifications for Licensing of the Advocates)
should be amended to capture the mandatory legal requirement of
Lawyers attending diploma training in law before they are actually
admitted to the roll of Advocates, apart from the requirement under
Section 12(2)(d) of the Act, which stipulates that an Advocate must
have undergone legal training under an a practicing Advocate before
they are admitted to the Bar. This will go a long way in ensuring that
the standards of our Advocates are high in so far as rendering of legal
services is concerned.

7. The Bar Council as envisaged in Section 46 of the Advocates Act,

2013, should expeditiously make regulations for the necessary
implementation of the Provisions of the said Act.

Ladies and Gentlemen,

Allow me to inform you, although all of you have all followed the devastating
eruption of armed conflict within the Republic of South Sudan, which started
in the Presidential Army Unit in Juba last year on Sunday 15 th December
2013. That dreadful event has been called many names other than what it
was but for certainty sake, it was a coup attempt against the legitimate
democratically and constitutionally elected government led by President
Salva Kiir Mayardit. That unfortunate episode was organized by former
disgruntled elements led by Dr. RiekMachar, the former Vice President,
which was a deliberate offence to the principles of rule of law.

It is also worth mentioning;

Security in South Sudan: I wish to emphasis that everything is under the

control of the Government of the Republic of South Sudan under the able
leadership of H.E. Salva Kiir Mayardit;

Human rights violations: it is also of our great concern. As earlier stated,

the Government has already formed a committee to investigate what has
happen in the areas controlled by the Government; as there has been a lot
of allegations of atrocities committed. The government is doing its utmost

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best to take to court all those who are proven guilty by these investigations
set up thereto.

Cessation of hostilities and the cease-fire: will that stand? From the
Government side, we will make sure the agreement to the Cessation of
Hostilities is respected and no violation of cease-fire by our forces and our
President has recommitted himself many times to uphold the agreement in a
bid to have lasting peace in the Country.

THANK YOU!

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