Wakilii

Malek v Minister of Justice of the Republic of South Sudan and Another (Reference No.9 of 2017)

East African Court of Justice · [2020] EACJ 21 · 2020 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference brought under the Treaty for the Establishment of the East African Community challenging the removal of the Applicant from judicial office by Presidential decree
Decision
Reference allowed as against the First Respondent. Reference dismissed as against the Second Respondent.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that the President of South Sudan violated the Constitution of South Sudan and the Judiciary Act 2008 by removing the Applicant from judicial office without following the mandatory procedures requiring a recommendation from the Judicial Service Council and compliance with disciplinary processes. This violation of domestic law constituted a breach of the rule of law principle enshrined in Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community. The Court found no cause of action against the Secretary General of the East African Community.

Outcome

Reference allowed as against the First Respondent. Reference dismissed as against the Second Respondent.

Facts

The Applicant was a Justice of the Court of Appeal of South Sudan. He and other judges formed a Committee of Justices and Judges that led a strike demanding the resignation of the Chief Justice. On 12 July 2017, the President of South Sudan issued Republican Decree No.100/2017 removing the Applicant and other judges from office. The decree cited Article 134(2) of the Transitional Constitution and Section 61(a) of the Judiciary Act 2008 as authority. The Applicant contended that the President failed to follow mandatory constitutional and statutory procedures requiring a formal complaint, investigation by a Board of Discipline, recommendation by the Judicial Service Council, and an opportunity to be heard before removal.

Issues

  1. Whether the removal of the Applicant from the position of Justice of the Court of Appeal of the Republic of South Sudan vide Republican Decree No.100/2017 was lawful in respect to the Transitional Constitution of the Republic of South Sudan 2011, the Judiciary Act 2008, the Judicial Service Council Act 2008, and Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community.
  2. Whether there is a cause of action against the Second Respondent.
  3. Whether the Applicant is entitled to the remedies sought.

Orders

  • A declaration that the act of the President of the Republic of South Sudan of removing the Applicant from the position of Justice of the Court of Appeal vide Republican Decree No.100/2017 dated 12th July 2017 is in violation of the Constitution of the Republic of South Sudan and a violation of Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community.
  • Costs awarded to the Applicant as against the First Respondent.
  • Costs awarded to the Second Respondent as against the Applicant.

Rules and key headnotes

Judicial Independence — Removal of Judges — Mandatory Constitutional Procedures
A President may only remove a Justice or Judge upon the recommendation of the Judicial Service Commission as required by the Constitution, and failure to obtain such recommendation renders the removal unconstitutional and unlawful.
Rule of Law — Compliance with Domestic Law as Treaty Obligation
Where a Partner State violates its own Constitution or domestic laws, that State ipso facto falls afoul of the rule of law principle in Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community.
Due Process — Judicial Removal — Procedural Requirements
Before a Justice or Judge may be removed from office, the statutory procedures requiring presentation of a complaint, investigation, decision by a Board of Discipline, and confirmation by the Judicial Service Council must be followed, and failure to comply with these procedures renders the removal unlawful.
Presidential Immunity — Justiciability of State Acts
Presidential immunity from suit does not prevent a court from examining whether a Presidential action constitutes an act of the Partner State that violates treaty obligations, as such action is justiciable under Article 30 of the Treaty for the Establishment of the East African Community.
Sovereignty — Treaty Obligations — Supremacy of Community Law
Sovereignty cannot stand as a defence or justification for non-compliance with treaty obligations, and a Partner State cannot invoke sovereignty to exempt, impede, or restrain itself from ensuring that its actions and laws conform to the requirements of the Treaty.
Secretary General — Duty to Investigate — Knowledge Requirement
The Secretary General's obligation under Article 29(1) of the Treaty to investigate and submit findings regarding a Partner State's failure to fulfil treaty obligations is triggered only when the Secretary General has knowledge or ought reasonably to have knowledge of the alleged violation.

Legislation cited (18)

  • Treaty for the Establishment of the East African Community Articles 6(d), 7(1)(b), 7(2), 27(1), 29(1), 30(1)(2), 71(d)
  • Transitional Constitution of the Republic of South Sudan 2011 Article 123(b)
  • Transitional Constitution of the Republic of South Sudan 2011 Article 124(1)
  • Transitional Constitution of the Republic of South Sudan 2011 Article 124(5)
  • Transitional Constitution of the Republic of South Sudan 2011 Article 124(7)
  • Transitional Constitution of the Republic of South Sudan 2011 Article 134(2)
  • Transitional Constitution of the Republic of South Sudan 2011 Article 103
  • Judiciary Act 2008 Section 7(b)
  • Judiciary Act 2008 Section 48(1)(2)(3)
  • Judiciary Act 2008 Section 53(6)(7)
  • Judiciary Act 2008 Section 55
  • Judiciary Act 2008 Section 61(a)
  • Judicial Service Council Act 2008
  • Vienna Convention on the Law of Treaties 1969
  • East African Court of Justice Rules of Procedure 2013 Rule 24(1)(2)(3)
  • East African Court of Justice Rules of Procedure 2019 Rule 127(1)
  • East African Court of Justice Rules of Procedure 2019 Rule 136
  • African Charter on Human and Peoples Rights

Cases cited (11)

  • Simon Peter Ochieng and Another v The Attorney General of Uganda (EACJ Reference No. 11 of 2013)
  • East Africa Law Society v The Attorney General of the Republic of Burundi and Another (EACJ Reference No. 1 of 2014)
  • Henry Kyarimpa v The Attorney General of Uganda (EACJ Appeal No. 6 of 2014)
  • James Katabazi and 21 Others v The Secretary General of the East African Community (EACJ Reference No. 1 of 2007)
  • Samuel Mukiri Muhochi v The Attorney General of Uganda (EACJ Reference No. 5 of 2011)
  • Attorney General of Rwanda v Rugumba (EACJ Appeal No. 1 of 2012)
  • Forum Pour Le Renforcement De La Societe Civile (FORSC) and Others v The Attorney General of the Republic of Burundi and The Secretary General of the East African Community (EACJ Reference No. 12 of 2016)
  • Sitenda Sebalu v The Secretary General of the EAC and Attorney General of Uganda (EACJ Reference No. 1 of 2010)
  • Democratic Party v The Secretary General of the East African Community and 4 Others (EACJ Reference No. 2 of 2012)
  • East African Civil Society Organization Forum (EACSOF) v The Attorney General of Burundi and 2 Others (EACJ Appeal No. 4 of 2016)
  • The Attorney General of Burundi v The Secretary General of the East African Community and Another (EACJ Appeal No. 2 of 2019)

Full judgment

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Malek v Minister of Justice of the Republic of South Sudan and Another (Reference No.9 of 2017) [2020] EACJ 21 (24 July 2020)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.