—Mark Deng, McKenzie Postdoctoral Research Fellow, Melbourne Law School
In my first post published on 13 April 2025, I discussed the nature of South Sudan’s 2011 Transitional Constitution, calling it a conflation of international template and domestic aspirations. I also discussed the idea of a strong president deeply embedded in that document and how it has proved counterproductive for the new nation. In this post, I discuss how the strong president is threatening judicial independence and the proper administration of justice.
The Transitional Constitution follows the modern practice whereby the judiciary is separated from the political branches: “[t]he judiciary shall be independent of the executive and legislature” and it is vested with “judicial power”. The judiciary comprises 5 levels of courts with the Supreme Court of South Sudan at the apex. Judges are appointed by the President of the Republic on the recommendation of the judicial service commission (the chief justice of the Supreme Court, who is also the president of the court, is the chair of the commission). The same procedure applies to their removal from office. There are constitutional grounds for the removal, including “gross misconduct, incompetence and incapacity …” to serve.
As a consequence of his largely unlimited constitutional power, on top of his being a military dictator, President Mayardit has had little incentive to uphold the Constitution and respect the independence of the judiciary. More particularly, he has been removing judges from office without the recommendation of the judicial service commission.
Instances of judges’ removal
For reasons of space, I highlight only a few instances of judges’ removal here. The first is the removal of Justice Ruben Madol Arol Kachuol in 2016, who was the Deputy Chief Justice of the Supreme Court of South Sudan at that time. The President did not explain publicly what necessitated Kachuol’s removal. However, it was reported that his removal had to do with his dissenting opinion in a case brought by a group of opposition parties to challenge President Mayardit’s decree that created 28 states in 2015.
The opposition parties had argued that the President had no power to create states unilaterally under the Transitional Constitution. They were correct. At the time, the power to create new states was the preserve of the sub-national governments. However, the majority of judges upheld the decree. Parliament subsequently amended the Transitional Constitution to give the President power to create more states in the country, which is another indication of a strong president I discussed in the previous post.
The second, and the most shocking instance, is the removal of 14 lower court judges at once in 2017. The judges were removed reportedly for 2 reasons: a) they engaged in a long strike demanding better working conditions, including salary increases; b) they called on the then Chief Justice of the Supreme Court of South Sudan, Chan Reec Madut, to resign for his mismanagement of the judiciary and its affairs, or for the President to remove him on those grounds.
The right to strike is protected in the 2017 Labour Act. However, this made no difference in the way the judges were treated. The President responded by issuing a decree, removing them from their positions. It was reported that it was actually Chief Justice Madut who recommended their removal to the President. The 14 judges challenged their removal in the East African Court of Justice as a violation of the Transitional Constitution and the East African Treaty (1999) (South Sudan joined the East African Community in 2016). The East African Treaty, among others, requires the governments of partner states to adhere to the principles of good governance, such as the rule of law and judicial independence.
The East African Court of Justice upheld the challenge and ordered President Mayardit to reverse his decision. The President, however, only partially complied with the court order. Instead of reinstating the judges to their previous positions automatically, they were instructed to reapply. But they refused to do that, saying that their tenure was not lawfully terminated and that the court order should be complied with fully. This was also unorthodox as judges do not apply to be appointed to the bench. Rather, they are recommended for appointment.
The third example concerns the removal of Chief Justice Madut and his Deputy Chief Justice John Gatwech Lul in May 2025. Madut had been chief justice for 14 years. It is unclear what circumstances led to his removal and whether the judicial service commission recommended this course of action. However, Madut had not been observing his constitutional limits conscientiously, acting unlawfully on occasion. In 2015, for example, he appointed 15 lower court judges. He simply exercised the constitutional power he did not have. Only the President of the Republic has that power. Also, as mentioned earlier, he was implicated in the removal of 14 judges in 2017, bypassing the judicial service commission and recommending the removal to the President.
More worrying, Madut had openly engaged in purely political activities. In 2023, for example, he attended a political rally in Wau city with President Mayardit. The rally was organised for the President to announce his candidacy for the 2024 elections, which were postponed to a later date. Madut endorsed President Mayardit in that rally, prompting strong condemnations. Opposition parties, in particular, accused him of having become a politically partisan judge. They gave a highly likely scenario implicating his neutrality — that he would not be expected to be impartial in a potential dispute arising from the elections. The Supreme Court of South Sudan, which Madut was the Chief Justice of, also rules on electoral disputes.
Consequences of President Mayardit’s removal of judges
President Mayardit’s repeated unilateral removals of judges have many consequences for South Sudan. Most obviously, they undermine the system established in the Transitional Constitution where certain procedures have to be followed for appointing and removing judges from office. In particular, they usurp the constitutional function entrusted to the judicial service commission.
Another grave concern is that the President’s behaviour creates fear and uncertainty for judges. This makes it impossible for judges to be impartial in deciding cases involving the government for fear of reprisals. This, in turn, erodes public trust and confidence in the independence of the judiciary to administer justice properly. The end-result is the erosion of the rule of law as President Mayardit’s will becomes the law. And without the rule of law, it is impossible to achieve good governance in South Sudan, which is the Transitional Constitution’s overarching objective.
Where to from here?
Reforming the judiciary, as proposed in the 2018 Revitalised Agreement, is a step in the right direction. One particular area in need of reform is capacity building for judges. This would include training more judges in English, which is the constitutionally prescribed official working language in South Sudan. Most of the current judges received their law education in Arabic in Sudan (South Sudan’s mother country) where many of them worked as judges.
As a result, they conduct hearings in Arabic. This presents many challenges. For example, it may mean that the judges are not familiar with how South Sudan’s common law adversarial system is supposed to work. It may also be a barrier for advocates and their clients who do not speak and/or write in Arabic. This may have economic costs to courts, such as hiring interpreters (people who are literate in both Arabic and English) and translating judgements into English.
The reform is to be undertaken by a special judicial reform committee, which was established in 2022 to review the judiciary and make necessary recommendations. It released its report to the transitional government in 2024 (yet to be made public). It found that many factors have undermined the proper operation of the judiciary, including lack of accountability within the judiciary itself, mistreatment of judges by the former Chief Justice Madut and executive overreach into judicial functions. But it is unclear from news reports what measures have been recommended to address these problems.
However, reforming the judiciary will do little to secure judicial independence, considering the deeply rooted military culture of the national executive government. Indeed, as long as President Mayardit remains a military dictator, he may very well continue to dismiss judges at will. Thus, and this is easier said than done, the military culture will need to change for there to be a prospect of securing judicial independence in the long term in South Sudan.
Suggested citation: Mark Deng, Judicial Independence Under Threat in South Sudan, Int’l J. Const. L. Blog, Jul. 19, 2025, at: http://www.iconnectblog.com/judicial-independence-under-threat-in-south-sudan/
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