Friday, April 07, 2006

In Defence of Democracy, Basic Freedoms and the Constitution: Integrity checks on judiciary post holders ought to be mandatory


By John A. Akec *
16 March 2006
London, UK

The University of Khartoum experienced many violent confrontations between South Sudanese students and student members of National Islamic Front in mid 1980s. During that time, there used to be a saying amongst South Sudanese students at the University of Khartoum that went like this: " When attending students open air debate, and if you see South Sudanese students from Abeyi area charging forward, then you too must charge." The reasons? Because, goes the explanation, the Muslim Brotherhood students must have dispatched some disguised abuse or insult in their own language (Arabic)! Though a very significant number of those who entered Khartoum University in early 1980s understood, spoke, and wrote very fluent Arabic, it came to be recognised that those from Abeyi understood it much better than most! For them, it was almost like first language.

This concept of "understanding" or appreciating the value of what is at stake, I suppose, rings true about almost everything else including such things as freedom of speech, democracy, and basic freedoms. Jesus told a Samaritan woman seeking help that food reserved for children must not be given to dogs. Therefore, we are better advised to think before throwing something of worth away, where it may not serve the purpose it was intended for in the first place. This concept of "understanding" the worth of something or appreciating its "true meaning" spans everything we hold dear in life not just the importance we attach to such things as democracy, equality, freedom, and the rule of law. Because our fellow Northern Sudanese always understood where the centre of gravity of power resides, they have often persisted on retaining positions which they regard as the levers of power, by hooks or crooks. The best we can do when we wake up is attempt damage control.

Probably because of our African ancestors' generosity with their gold, folk tales have it that Arab traders whose caravans crossed the Sahara Dessert into West Africa and interior carrying salts, were able to exchange their salt with native African gold: a kilo for a kilo, and an once for an once. This was a highly unfair barter economy which many of us would find today too naive to be true. But we know for certain from recorded history that by AD750, Arabs armies had already overrun North Africa from which Muslim spread their faith to Western Africa. Amongst many of the Western African kingdoms and empires was kingdom of Ghana founded by King Magan Sissie (modern-day Gambia, Guinea, Mali, and Senegal and lasted from AD770 to AD1070). We are told by historians that Arab traders "marvelled at African warriors with gold-mounted swords and gold-decorated shields." Even dogs at kings' palaces wore gold collars. Salt, gold, and slaves were the main traded goods in addition to leather goods, ivory, and kola nuts. The invention and subsequent use of fire-arms by Europeans and Arab invaders might have led to decline and disappearance of many great African civilisations, but one may still suspect that no enough economic controls were exercised by the founding fathers of those early African civilisations to prevent the loss of their scarce economic resources to the outside world. The traces of that early inequitable barter economy between Africans on the one hand, and Arabs and later Europeans on the other; and apparent lack of negotiating prowess are still to be seen in Navasha Agreement and in the implementation of Comprehensive Peace Agreement (CPA) that we have negotiated in twenty first century.

However, other enduring civilisations did and still do comparatively better when it comes to matters of life and death. That is, they fought and still fight tooth and nail to preserve their hard-won heritage. For example, in the US late last year and early this year, Republicans and Democrats have been locked in grilling battles over appointment of a new Chief Justice, and over nomination of a judge to replace a retiring member of the 9-member US supreme court. The issues at stakes not only strained bi-partisan co-operation in the Senate to the limit, but also created tensions within the Republican party itself. The the stakes included death penalty, affirmative action, and women right to abortion. But at the heart of it all, was to preserve the integrity of American Constitution as the founding fathers delivered it in 1787.

The appointment of Chief Justice Roberts to replace late William Rehnquist sparked fierce confrontations between pro-choice and anti-abortion campaigners at all fronts. Pro-choice campaigners dreaded that Chief Justice Robert, the Republican nominee who eventually won the post, will swing the court to the right and may lead to overturning of Roe v Wade ruling responsible for legalising abortion. His nomination was passed in Senate (controlled by the Republicans) by 78-22 majority.

The nomination of a new a member to supreme court, however, proved more tortuous. Ms Harriet Miers who was the first choice by president Bush, was forced to withdraw following a fierce criticism from conservatives over her lack of credentials. The second choice, Mr Samuel Alito, faced a grilling questioning in the Senate. Many accusations were made against Mr Alito such as the concern raised by the Democratic Senator, Dick Durbin:

"[Judge Alito] your records raises troubling questions about whether you appreciate the checks and balances in our constitution - the careful efforts of our founding fathers to protect us from a government or president determined to seize too much power over our lives."

And that of Senator Edward Kennedy, siting Mr Alito 15-year record on Federal appeal court in Philadelphia: "In an era when the White House is abusing power, is excusing authorising torture, and is spying on American citizens, I find Judge Alito's support for an all-powerful executive branch to be genuinely troubling."

In defence of Mr Alito, the Republican Senator Charles Grassly said:

"[Judge Alito] has a reputation for being exceptional and honest judge devoted to the rule of law, and a man of integrity". Others described him as "fair-minded judge who will respect supreme court precedents.".

President George W. Bush defended Mr Alito nomination saying:

"Sam's got the intellect necessary to bring a lot of class to the court...He's got the judicial temperament necessary to make sure that the court is a body that interprets the law and doesn't try to write the law."

Good luck Judge Alto in your torture chamber, short may your pain last, and long may democracy live in that land of the free called America.

As we can see from the arguments and counter arguments, both the Republicans and the Democrats are fighting to preserve their greatest heritage: the American Constitution written by its founding fathers and named after Alexander Hamilton's mother (Constitution). Hamilton, James Madison, and George Washington (who was later elected to become the first American president) were amongst the 55 state delegates (or wise minds) who drafted the Constitution in Pennsylvania in 1787. The constitution was to be the manual into a bright future for the new nation that came into being on July 4, 1776, the day on which American independence from the British Crown was unilaterally declared.

The strength of American constitution hings on a system of checks and balances which separates the powers between the executive (the presidents and his administration), the legislative body (the Congress comprised of the Senate and House of representatives), and the judiciary. According to this principle which was first proposed by Edmund Randolph of Virginia, the executive runs the country and devices and executes policies guided by the constitution. The legislative body (the Congress) approves and supervises the executive, writes new laws and amends the existing laws if necessary. The judiciary interprets the law and brings to books those who contravene it without necessarily writing the law themselves. Pleased with their creation one of the founding fathers, Alexander Hamilton, quipped:

"The only way it [the constitution] could fail is if one party gained control of not just the Executive but also the Senate and House chambers, and upon doing so, proceeded to bring in liked-minded judges!!!!"

Upon hearing that clever remarks, the wise farmers who wrote the constitution laughed uncontrollably. They had good reason to celebrate. It was unfortunate, however, when they conspired not to tell the existence of such a constitution to black Americans lest they rebel and call for their rights to be upheld by the same constitution. That job was left to Civil Rights movement in 1960s to bring to light, some 200 years later.

For South Sudan, it is still open question whether enough care is being taken to ensure sufficient checks and balances are being operationalised. True, Article 54 of our constitution stipulates the separation of powers between the executive government of South Sudan, the Southern Legislative Assembly, and the Judiciary. Understandably, the executive positions and those of legislative assembly were filled mostly by presidential degrees after consultation with political parties and communities, guided by broad criteria spell ed out in the Comprehensive Peace Agreement. The process as a whole was far from perfect as it allowed commanders and those close to the president of the government of the South to appoint their family members, their relatives, and the "like-minded" political allies with impunity into the government organs. All of which could undermine the constitutional checks and balances.

The focus of this article is on judiciary appointments in the government of Southern Sudan. While many developing countries claim to maintain the separation of powers according to the American model, independence of judiciary has always been found lacking. And until now one is not clear about the criteria used to fill legal appointments such as those who head our justice system and the members of supreme court of Southern Sudan. One cannot be sure if all those appointed to head our judiciary are fair-minded people with enough integrity, courage, and intellect to uphold the spirit and the letter of law and protect the citizens from an "all-power executive branch" that may decide to spy, torture, or take full control over our lives. Prior to appointments, nominees to South Sudan supreme court ought to undergo integrity checks such as finding out their views on issues such as freedom of the press, the right to criticise the government of South Sudan, and the right to protest. The nominees' public views and records of service should also be examined to see if they are up to the mark to hold the post. Also, judicial appointments that may lead to conflict of interests need to be avoided by all means. For example, a judge should not be a member of Southern Legislative Assembly and at the same time be a member of Supreme Court. Doing so would mean that she or he will be writing and interpreting the law at the same time. This also applies to government's legal advisers. They can be one or the other, and not both. These are the AB Cs of democracy and good governance. They can only be ignored at our own peril.

Sudan has been a dysfunctional state since Independence and has not been able to provide justice to all its citizens. This is not because it lacks a good constitution but because in most part, the constitution has not guided decision-making. South Sudan can do well avoiding the pitfalls that plagued the Northern dominated central government of the past 50 years. New laws and better laws will always be welcomed. But it is imperative that we live by the existing laws before thinking of enacting new ones.

Fredrick Douglas, the great American Civil Rights leader once observed :

"The problem in America is not Racism, but rather is the question whether the American people are honest enough, committed enough, determined enough, and courageous enough to live by their own constitution."

See if we can measure up to such a high ideal.

*This is was written and published elsewhere as dated. This is for the benfits of those who have not read it.