malek v minister of justice of the republic of south sudan and another reference 9 of 2017 2020 eacj 21 24 july 2020

malek v minister of justice of the republic of south sudan and another reference 9 of 2017 2020 eacj 21 24 july 2020

The removal of the Applicant as Justice of the Court of Appeal of South Sudan was in violation of the Constitution of South Sudan and the Judiciary Act, as the required procedures, including recommendation by the Judicial Service Commission, were not followed. This violation of domestic law constituted a breach of the rule of law and good governance principles under Articles 6(d) and 7(2) of the Treaty. There was no evidence that the Secretary General failed in his obligations under the Treaty, as he was not aware of the impugned actions prior to the Reference.

Citation
malek v minister of justice of the republic of south sudan and another reference 9 of 2017 2020 eacj 21 24 july 2020
Parties
Applicant: Hon. Justice Malek Mathiang Malek; First Respondent: The Minister of Justice of the Republic of South Sudan (Attorney General of the Republic of South Sudan); Second Respondent: The Secretary General of the East African Community
Court
EACJ
Jurisdiction
Tanzania
Judgment Date
24 July 2020
Procedural Posture
Reference / Judgment
Outcome
Reference allowed in part
Legal Topics
Judicial Independence, Rule of Law, Removal of Judges, Treaty Obligations, Good Governance
Source Language
English
Constitutional Law Administrative Law International Law Human Rights Law Judicial Independence Rule of Law Removal of Judges Treaty Obligations +1 more

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Parties

Hon. Justice Malek Mathiang Malek

Applicant

The Minister of Justice of the Republic of South Sudan (Attorney General of the Republic of South Sudan)

First Respondent

The Secretary General of the East African Community

Second Respondent

Procedural Posture

Reference / Judgment

Legal Issues

  1. 1 Whether the removal of the Applicant from the position of Justice of the Court of Appeal of South Sudan was lawful under the Transitional Constitution, Judiciary Act, Judicial Service Council Act, and the Treaty for the Establishment of the East African Community.
  2. 2 Whether there is a cause of action against the Secretary General of the East African Community.
  3. 3 Whether the Applicant is entitled to the remedies sought.

Ratio Decidendi

The removal of the Applicant as Justice of the Court of Appeal of South Sudan was in violation of the Constitution of South Sudan and the Judiciary Act, as the required procedures, including recommendation by the Judicial Service Commission, were not followed. This violation of domestic law constituted a breach of the rule of law and good governance principles under Articles 6(d) and 7(2) of the Treaty. There was no evidence that the Secretary General failed in his obligations under the Treaty, as he was not aware of the impugned actions prior to the Reference.

Court Disposition

Reference allowed in part

Orders

  • Declaration that the removal of the Applicant was in violation of the Constitution of South Sudan and Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community.
  • Costs awarded to the Applicant against the First Respondent.