Unofficial translation : SPLM-DC Order of the Constitutional Court 17/01/2010

The Republic of the Sudan

The Constitutional Court

No: CC/CD/172/2009

Date: 17/1/2010

 

Members of the Sudan People's Liberation Movement- Democratic Change

Versus

The First Vice President of the Republic, President of the Government of Southern Sudan and Chairman of the Sudan People's Liberation Movement, and Other.

 

Head of the Khartoum Summons Office,

 

On the strength of the order of the Constitutional Court, you are kindly requested to summon the below mentioned that following the presentation of the suit to the Constitutional Court and after considering it, the court issued the following order:

 

The suit is accepted and the order issued by the first defendant stipulating that there should be no cooperation with the party of the plaintiffs directed to the ten Governors of Southern Sudan vide the letter of the second defendant dated 9 November 2009 carrying number GOSS/DPA/PO/J/1.A.1 is cancelled.

 

Please, hand each a copy of the decision and confirm.

 

Thank you.

 

El Hadi Talha El-Mubarak

Chief Supervisor of the Constitutional Court.

 

Summons issued to:

 

1. Mr Kamal Mohammed El Amin Abdel Salam

Advocate, Khartoum- Advocate of the Plaintiffs;

 

2. Mr Nabil Adib Abdalla and Manal Awadh Khogali

Advocates, Khartoum.

In the Name of Allah, the Compassionate and the Merciful

 

Members of the Sudan People's Liberation Movement- Democratic Change

Versus

The First Vice President of the Republic, President of the Government of Southern Sudan and Chairman of the Sudan People's Liberation Movement, and Other.

 

CC/CD/172/2009

 

First: This is a suit against the decision of the First Vice President, President of the Government of Southern Sudan and Chairman of the Sudan People's Liberation Movement (First defendant) in which he directed the Governors of the ten Southern States to cooperate with all the political parties except the Sudan People's Liberation Movement- Democratic Change. Attached is the directive which is the subject of the suit which was communicated to the Governors vide the letter of the Minister of Cabinet Affairs and Acting Minister of Presidential Affairs of the Government of Southern Sudan (Second defendant).

 

The Plaintiffs are founding members of the SPLM-DC party registered in accordance with the Political Parties Act 2007 with the Registration Certificate No. 78 attached. The Plaintiffs assert in their suit that the directive whose constitutionality is being contested breaches their constitutional rights provided under Articles 29 (Personal liberty), 31 (Equality before the law), 39 (Freedom of expression and media) and 40 (Freedom of assembly and association).

 

We afforded the defendants the opportunity to respond to the suit and the request to suspend the implementation of the directive. Their advocate replied that the suit be dismissed because it does not contain a matter that deserves a constitutional ruling. In his reply he said that what came from the first defendant is not an order that can be cancelled, but just a directive from the first defendant in his capacity as a party Chairman to his subordinates in the same party, the effects of which may be eliminated and not that it be cancelled.

 

As a precautionary measure, the Advocate of the defendants admits that the plaintiffs are founding members of the SPLM-DC party and admits that the letter which is the subject of the suit was indeed issued by the defendants but contends that the letter is just a directive in the context of cooperation between parties operating in Southern Sudan except the party of the Plaintiffs and that the applicants have never been denied their right to practise their political rights. Therefore, he stated that the interest of the Plaintiffs to raise a constitutional suit is not there and hence he asked that the suit be dismissed.

 

Second: In my opinion, nothing of value can result from the attempt of the Advocate of the defendants to distinguish between an order that can be cancelled and a directive whose effects may be eliminated and cannot be cancelled. Isn't the result the same in the two cases of cancellation and eliminating the effects? It seems we are in a theoretical exercise in hair splitting that does not help in any way. The end result of what came from the defendants, call it an order or a directive, is discrimination against the applicants by providing all kinds of cooperation to all political parties and denying it to them solely on the basis of political opinion because this is the only area political parties by their nature, composition and aims operate; a matter that breaches Article 31 of the Interim Constitution 2005. It also contravenes Article 18 of the Interim Constitution of Southern Sudan relating to equality before the law which is identical to Article 31 of the Interim Constitution 2005.

 

(2). The claim by the Advocate of the defendants that what came from his clients is not more than a political directive from the Chairman of the SPLM to his subordinates in the party is, I am afraid, belied by the letter itself which is written on a headed paper in the name of the Government of Southern Sudan (GOSS) Ministry of Cabinet Affairs and carries the GOSS' No GOSS/PA/PO/J/1.A1, signed by the Minister of Cabinet Affairs and Acting Minister of Presidential Affairs, stamped with the stamp of the Ministry of Cabinet Affairs and directed to the Governors of the ten States in their capacity as such. If the first defendant wanted to address his subordinates in the party he would have done so without using the official papers belonging to the Government of Southern Sudan and he would have not asked the Minister of Cabinet Affairs and Acting Minister of Presidential Affairs in his two capacities as such to convey the contents of his directive.

 

(3) The Advocate of the defendants admits the latter and its issuance from his clients but contends on its content and claims that it is just a political directive and not an order. In fact, the letter is written in a clear smooth language and does not mean other than one thing; that is discrimination against the Plaintiffs on the one side and the other political parties on the other.

 

(4) Article 31 of the Interim Constitution 2005 stipulates that: all persons are equal before the law and entitled without discrimination, as to race, colour, sex, language, religious creed, political opinion, or ethnic origin, to the equal protection of the law. The laws that demand providing equality for the purposes of this suit include the Political Parties Act 2007, Article 4(3) of which allows any political party that has satisfied the requirements and was registered in accordance with the law to operate politically on the National, Southern Sudan and State levels. Since the party of the Plaintiffs has satisfied the requirements, was registered and was issued with a certificate to that effect by the Political Parties Affairs Council, and since it is still active and not dissolved or suspended in accordance with Article 19 of the Political Parties Act 2007, it is entitled to exercise its political activities fully on equal footing with all the other political parties without discrimination for any of the reasons stipulated in Article 31 of the Interim Constitution of the Republic of Sudan 2005. I have no doubt in my mind that the order which is the subject of this constitutional suit ordering or directing the Governors of the ten Southern States to cooperate with all the political parties except the SPLM-DC party (as such by name) is tantamount to a clear discrimination against that party as to political opinion, a matter that violates Article 31 of the Constitution. In my opinion, the matter is so clear and obvious that it does not require an explanation. In fact, the explanation and interpretation may be damaging for the clarity and frankness of the order. This is on the one side. On the other, the Interim Constitution of Southern Sudan stipulates clearly for the equality before the law in a provision identical to Article 31 of the Interim Constitution of the Republic of Sudan 2005. This means that the letter whose constitutionality is being challenged also violates the Interim Constitution of Southern Sudan 2005. Even if that was not to be the case, the provisions of the Interim Constitution of the Republic of Sudan 2005 override any provision in the Constitution of Southern Sudan and the States' Constitutions as provided for in Article 3 of the Interim National Constitution.

 

(5) What remains after all this is the claim of the Advocate of the defendants that the Plaintiffs do not have an interest to raise a constitutional suit on the basis that the order being contested has not been implemented against them and that they have not been prevented to practise their constitutional rights. In my view, the claim is not sound because the establishment of an interest does not demand confiscation of the rights of the applicants and actually preventing them from exercising these rights. In this suit, we are confronted with an order issued by the First Vice President, President of the Government of Southern Sudan to the Governors of the ten States in Southern Sudan ordering or directing them not to cooperate with the party of the Plaintiffs in name singled out from the other parties. It is an order that contravenes and violates in a direct way the rights and basic freedoms, and in my view should not continue to hang on the party threatening it at every moment especially that nothing came from the defendants to the effect that they have retracted the order and their two Advocates did not say that the Governors concerned may refrain from implementing the contested order.

 

On the basis of the above, it is my opinion that the suit is admissible and that the order whose constitutionality is being contested that was issued by the first defendant stating that there should be no cooperation with the party of the Plaintiffs and which is communicated to the Governors of the ten States in Southern Sudan through a letter written by the Minister of Cabinet Affairs and the Acting Minister for Presidential Affairs in the Government of Southern Sudan dated 9^th November 2009 and numbered GOSS/DPA/PO/J/1.A.1, be cancelled.

 

(signed)

Abdalla El Amin Al Bashir,

President of the Constitutional Court.

24/12/2009.

 

In my opinion, as we are to defend the constitutional rights we should concentrate on the substance of what we are addressing without ignoring -naturally- the form. In this case, the letter in form carries all official signs supported by the executive power as the President of the court has elucidated.

 

As to substance, the letter urges for cooperation with all the parties and not to hinder their activities except the party of the Plaintiffs. In the context of excepting and the logic of things, what was meant by the letter is the lack of cooperation with and hindering the activities of the party concerned. I have no doubt in my mind that this position is a clear and unambiguous discrimination as the President of the Court has concluded. It denies the Plaintiffs rights whatever they are that are provided by the order issued by the highest executive power in Southern Sudan. I am not inclined to accept the claim by the Advocate of the defendants that no executive order was yet issued because I have no doubt that the Governors, if we assume for argument sake that it was a political directive, will ignore it and refrain from implementing it when they wear the other hat (executive). Therefore, I agree with the conclusion of the President of the Court.

 

(signed)

El Tayeb Abbas El Jaili,

Member, The Constitutional Court.

28/12/2009.

 

I agree with both Justice Abdalla El Amin Al Bashir and Justice El Tayeb Abbas in their conclusions regarding the reasons and conclusion.

 

(signed)

Abdalla Ahmed Abdalla,

Member, The Constitutional Court.

28/12/2009.

 

I agree with the conclusions of my learned colleagues.

 

(signed)

Sanya El Rashid Mirghani,

Member, The Constitutional Court.

28/12/2009.

 

I agree with my learned colleagues on the reasons advanced leading to the conclusion, without which a basic principle in the Comprehensive Peace Agreement stipulated in Article 2.5.1 part A, which was embodied in the Bill of Rights in the Constitution. It is incumbent upon us to apply the provisions of Article 22(A) of the Constitution and Article 15(1) of the Constitutional Court Act.

 

(signed)

Somi Zeidan Attiya,

Member, The Constitutional Court.

29/12/2009.

 

I agree on accepting the constitutional suit because the order being contested contravenes the constitutional rights of the applicants in the way that has been explained by my colleagues above.

 

(signed)

Abdel Rahman Yagoub Ibrahim,

Member, The Constitutional Court.

20/12/2009.

 

This is a constitutional suit presented by members of the SPLM-Democratic change by Dr Lam Akol Ajawin. They are bringing this action against a decision/order/directive purportedly said to have been issued by Dr. Luka Tombekana Manoja on the order of the defendant.

 

In a letter dated 9 November, 2009, Dr Luka Tombekawa Manoja directed the governors of the ten southern Sudan States to cooperate with all other Southern Political Parties and not to hinder their work except the so-called SPLM/DC. According to the letter this was a directive from the defendant.

 

The SPLM/DC is a young political party which has just only recently broken away from the SPLM. It is registered with Political Parties Affairs Council and a certificate to that effect is filed in the records. In fact, it was registered on 12/10/2009.

 

The applicants, now, before the Constitutional Court, claim that the directive or decision of the first Vice President of Sudan, President of the government of Southern Sudan and Chairman of the SPLM be cancelled and secondly an order be given for their party (SPLM/DC) to operate in Southern Sudan.

 

This would be in line with Interim National Constitution, 2005 Provisions in Article 29 - Personal Liberty, Article 31 - equality before the law, Article 39 - Freedom of Expression and media and Article 40 - Freedom of assembly and association. The applicants assert that the decision or directive of the defendant breaches Article 18 of the Interim Constitution of Southern Sudan. The decision of the defendant in furtherance of injustice distorts the clear provisions of section 4(3) of the Political Parties Act, 2007.

 

First, assuming that the letter in question was a true directive from the First Vice President and President of Government of Southern Sudan; has he by that directive, breached his constitutional mandate under an implied article of the Interim National Constitution, 2005? And also under the Provisions of Article 103(2) of the Interim Constitution of Southern Sudan?

 

Having outlined the facts of this case, the first impression I get in the case is the timing of the issuance of the directive; And the first question to ask in this regard is: What if individuals, Parties, organizations etc do not abide by those articles and sections quoted above? Today at this time, in Southern Sudan, there are many upheavals, killings; insecurity etc. Who is doing all this disorder? One may safely infer that there is antipathy between Parties; Between groups and between Political Parties locked in power struggle in Southern Sudan. The SPLM/DC has just broken away from the SPLM- the ruling party in the South and presumably against which all the violence is directed in order to undermine its leadership.

 

There is no proof that the SPLM-DC is involved. However, the defendant having taken this decision at this particular point in time, a reasonable man may infer that the SPLM/DC is suspect or at least, among other suspects. Indeed, insecurity alarms every nation. What then are the consequences in a suspected situation? Of course, government or leader in his right senses will act.

 

The second impression I get in this case is the high speed with which my colleagues in the Constitutional Court have proceeded with the matter. I am writing a dissenting opinion and with due respect to each and every opinion given, I remain reserved and stand, to say that no attempts have been made to dig out the salient facts about the violence in the South.

 

There is Political tension in the country. I would have wished, the Constitutional Court, which is the mother and father of justice in Sudan, to act and deliver a judgment on anything about Southern Sudan with the clearest knowledge of what is happening about Southern Sudan in the South itself and in the Sudan in general.

 

In a country like Sudan which is passing through turmoil, whether in the National Assembly, whether in Western Sudan, whether in Eastern Sudan or in the Southern Sudan care and time must be given in order to dig out factual situations and provide a researched judicial answer.

 

I take judicial notice of Dr Lam Akol who is well-known for moving between Parties. One time with late John Garang, then with Riek, with Omer Al Bashir, back to John Garang and apparently now on his own. How does a court whose duty is to provide right judicial answers, fail to research into his life in order to defeat his humiliation in the hands of leadership in the South?

 

The Court could ask detailed report on why this particular party is targeted. The court could summon some of the leadership in the South to appear before it. I profoundly disagree with my colleagues though with deep respect for their opinions.

 

In this country, this is not the first time where a party has been barred out for certain national concerns and the government of the day got through against all Judicial niceties. The Sudan Transitional Constitution (amended 1964) had its article 5 amended whereby the members of the Communists Party ( Joseph Garang and others SLJR 1965) were expelled. This was a matter of National survival according to the government of the day. AS a consequence, the judicial order declaring as unconstitutional that amendment was merely declared, in sharp contrast, by the Supreme Council of state as only (declaratory) i.e. without force of law. In real honesty events taking place in the south have been underrated by this constitutional decision. This will have far-reaching repercussions.

 

"No government on earth will allow a court to drag it to the gallows when critical national issues are involved." (paraphrased from a speech by Abraham Lincoln during the American Civil War).

 

My third and last impression is that the problem between the SPLM and SPLM/DC is political and will need a political Solution. If it were judicial, it was extremely necessary for the court to examine the parties very extensively. With that note, this application has no future and our order should have been dismissal.

 

(signed)

Bullen Panchol Awal,

Member of the Constitutional Court.

3/12/2009.

 

 

Final Order

 

The suit is accepted and the order issued by the first defendant stipulating that there should be no cooperation with the party of the plaintiffs directed to the ten Governors of Southern Sudan vide the letter of the second defendant dated 9 November 2009 carrying number GOSS/DPA/PO/J/1.A.1 is cancelled.

 

 

(signed)

Abdalla El Amin Al Bashir,

President of the Constitutional Court.

 

6/1/2010.

(Unofficial translation).