BLOG| New Casebook Designed to Help Protect Constitutional Rights in South SudanDec 5, 2017
Practitioners across a variety of sectors received an introduction and training on a newly developed constitutional litigation casebook for South Sudan, designed to boost research, advance constitutional issues and protect the rights of citizens.
This week’s User Session, held at Juba Landmark Hotel and facilitated by UNDP’s Access to Justice and Rule of Law project, is the latest step in the rollout of the reference guide. The User Session follows a validation workshop held in October. The discussions allowed representatives from the Ministry of Justice and Constitutional Affairs, representatives of the South Sudan Bar Association and civil society organizations to dive into practical applications of the booklet. Once finalized, A Casebook on Constitutional Litigation in South Sudan will be published and disseminated in hard copy and online via UNDP and the Ministry of Justice and Constitutional Affairs websites.
Winluck Wahiu, who helped develop the constitutional litigation guide, in collaboration with the Ministry of Justice and Constitutional Affairs, explained how the casebook can help South Sudanese access and protect their rights, and why it is an important milestone for the constitutional democracy.
What constitutional rights do people in South Sudan have?
Winluck: According to the Transitional Constitution of Republic of South Sudan, 2011 (hereafter referred to as the Constitution), the people of South Sudan should enjoy all rights that guarantee personal freedom. These include the right not to be deprived of life unless where capital punishment is imposed by a court of law after a fair trial; the right not to be arrested without cause; the right to privacy at home and for their communications and property; and the fundamental freedoms to express themselves, to move freely inside and outside the country and to associate with others collectively. Women and children have separate rights, including the right to be treated with dignity and to be protected from harmful customs and traditions. The Constitution also recognises that ethnic and cultural groups have rights to their own particular culture and way of life. The people also have a right to access housing and not to be evicted from their homes unlawfully.
What is the South Sudan Bill of Rights, and how does it compare globally?
Winluck: The Bill of Rights is the part of the Constitution wherein the provisions enshrining rights are found. This is in part two of the Constitution currently in force. The Constitution states that the Bill of Rights is a covenant, or agreement, among the people of South Sudan and between them and their government at every level. It is also a commitment to respect and promote human rights and fundamental freedoms as a cornerstone for social justice, equality and justice.
How does this new casebook help people access or protect their rights?
Winluck: The rights in the Constitution are supposed to be enforced by the Supreme Court in South Sudan. This is in addition to the duty of all public organs not to infringe on the rights and to take positive steps to achieve the fulfilment of the rights. A person whose right is violated by a public official or any other person should be able to go to the Supreme Court and obtain a remedy. The remedy could take various forms, such as an award of money as compensation, a declaration as to the rights of the person petitioning the court and an injunction (order stopping further violation) or an order to do a particular thing. Currently, the Supreme Court in South Sudan has only handled a small number of individual complaints and many judges and lawyers have not referred to the constitutional rights in their work. The casebook, developed by UNDP in collaboration with the Ministry of Justice and Constitutional Affairs, is meant to help the judges and lawyers to see how other courts in other countries have handled constitutional rights so that they are able to “borrow” some of the foreign experiences domestically. It is a guide containing influential cases from courts in countries in Africa and elsewhere.
What should most South Sudanese understand about enforcing constitutional rights?
Winluck: Most South Sudanese should understand that they have rights which should be respected and protected by the government, public bodies and even private companies and their own communities. These rights are important because they enable individuals to live freely in a way of life in which they may develop their full potential without hindrance from the state or anybody else provided they comply with the law. Sometimes the rights will be infringed or disturbed in some way and when this happens, South Sudanese should understand that they can go to the Supreme Court and ask it to provide a remedy. The Supreme Court has a legal duty to offer an effective remedy. Finally, South Sudanese should understand that they should be able to ask the judges, lawyers and legal aid NGOs to assist them to realise their rights.
What would make someone in South Sudan proud about this process?
Winluck: South Sudanese should be proud of this process because its objective is to make an important part of their Constitution alive, implementable and meaningful, otherwise the rights remain in the book but not in reality. They should also be proud of the knowledge in the casebook as some of it originates from their own country, even if there is only a small number of South Sudan cases for now. At the same time, the process of developing the casebook involved consultations with South Sudanese constitutional and legal experts, whose opinions were given consideration. It is a casebook developed for South Sudanese with their challenges in mind.