Introduction
Following the vote for independence in 2011, South Sudan adopted its provisional constitution – the Transitional Constitution of the Republic of South Sudan, 2011 (Transitional Constitution).Footnote 1 Like any modern constitution, the Transitional Constitution divides powers among the three branches of government – parliament, executive and judiciary. At the same time, it concentrates much of the executive power in the president. The oft-cited examples are the powers to dismiss a state governor and create new states unilaterally, the latter resulted from a constitutional amendment in 2015.Footnote 2 The rationale for the concentration of power, as articulated during the hasty constitutional drafting process, was that the new nation needed a strong president to effectively maintain peace and stability as it prepared to exit from a highly volatile transitional period (but in which it has been stuck).Footnote 3
However, the concentration of power, in addition to the fact that the president of the Republic, Salva Kiir Mayardit, is a military dictator, has proved counterproductive. In particular, it has encouraged the president to exercise his powers without following the procedures provided in the Transitional Constitution and the laws.Footnote 4 One of the powers regards the removal of judges from office on various grounds, including “gross misconduct, incompetence and incapacity” to perform in the job effectively and efficiently.Footnote 5 This is a contingent power in that the removal has to be recommended by the National Judicial Service Commission (Judicial Service Commission), the body that supervises the judiciary and judges.Footnote 6
The Judicial Service Commission, as an intermediary body, was intended to be a limit on both parliament and the executive government by insulating judges against political whims or overreach. However, it has not been effective in constraining President Mayardit. The president, for example, has been removing judges from office through Republican Decrees (presidential decrees) without the recommendation of the Judicial Service Commission and without the removal being reviewed by either parliament or the Supreme Court of South Sudan – the highest court of the land – for compliance with the Constitution and the laws. The president’s decisions are subject to judicial review constitutionallyFootnote 7 but are, in practice, not reviewed apparently due to fear of reprisals.
The president made an extraordinary move in 2017, removing 14 judges from the lower courts at once on the ground that they unlawfully engaged in a strike, including calling on the then chief justice of the Supreme Court of South Sudan, Chan Reec Madut, to resign or for the president to remove him for mismanaging the judiciary and its affairs.Footnote 8 In another dramatic move in mid-2025, President Mayardit removed Madut and his deputy chief justice reportedly without the recommendation of the Judicial Service Commission.Footnote 9
The removal of the 14 judges was effected through the Republican Decree No 100/2017 for the Removal of Justices and Judges of the Judiciary of the Republic of South Sudan.Footnote 10 The judges, represented by Justice Malek Mathiang Malek (the applicant and one of the judges removed), immediately appealed their removal to the East African Court of Justice (EACJ) under the Treaty for the Establishment of the East African Community (East African Treaty). The treaty gives an individual who is a resident of a partner state the right to challenge the unlawful decisions or actions of the government of the partner state that infringe the provisions of the treaty.Footnote 11 The governments of the partner states have the same right against each other in matters arising under the treaty.Footnote 12
In Justice Malek Mathiang Malek v The Minister of Justice of the Republic of South Sudan and the Secretary-General of the East African Community (Malek v Minister of Justice),Footnote 13 the applicant filed the application on 13 September 2017 in the EACJ, arguing that the Republican Decree No 100/2017 was unconstitutional because the president lacked the power to dismiss judges unilaterally and thus invalid.Footnote 14 The EACJ upheld his appeal and ordered the president to reinstate all the judges to their previous positions automatically and to reimburse the applicant for the costs he incurred in the case.Footnote 15 South Sudan’s minister of justice and constitutional affairs sought not to appeal the case, nor did the president comply with the court orders, which violated article 38(2) of the East African Treaty that requires the governments of the partner states to respect and implement the EACJ’s decisions.
Although the court orders have not been complied with, the case, being the first ever to overrule President Mayardit’s Republican Decree, is a triumph for the rule of law and judicial independence in South Sudan (the rule of law is used here in its general sense whereby all citizens and their political leaders and institutions are subject to the law). The court, to its credit, showed courage – something no court in South Sudan would have done as it is extremely risky for judges to overrule President Mayardit’s decisions.
This case note discusses the significance of Malek v Minister of Justice. It begins with a discussion of the serious challenges facing South Sudan’s judiciary, notably executive overreach into the judicial functions. Particular regard is paid to the actions of former Chief Justice Madut, who had been pandering to the national executive government since he was appointed in 2011 until his dismissal in 2025.
This blurring of constitutional boundaries has had serious consequences for the court and the judiciary as a whole. It has, for example, eroded public trust and confidence in the court’s impartiality and integrity as evidenced by the numerous calls on Madut to resign.Footnote 16 The fact that Justice Malek Mathiang sought to challenge President Mayardit’s decision in the regional court speaks volumes of the eroded trust in South Sudan’s Supreme Court in particular. The article uses Malek v Minister of Justice as a case study on the threats posed by the executive government to judicial independence in South Sudan, emphasizing the case’s significance.
Judicial independence under the Transitional Constitution
Like most constitutions, the Transitional Constitution guarantees the independence of the judiciary of South Sudan as the third arm of the government. It says, for example, that the “[j]udiciary shall be independent of the executive and the legislature. Justices and Judges shall be independent in their judicial work, and shall perform their functions without interference”.Footnote 17 The president of the Republic appoints all the judges on the recommendation of the Judicial Service Commission, although the appointments of the chief justice, deputy chief justice and justices of the Supreme Court have to be approved by a two-thirds majority of the members of the (transitional) national legislative assembly.Footnote 18
Once appointed, a judge may serve until the age of 70 years at which he or she must be retired on pension.Footnote 19 The process is that the president of the Supreme Court of South Sudan notifies the president of the Republic that a judge has reached the retirement age and the latter issues an order to retire the judge.Footnote 20 A judge may also be removed from office before reaching the retirement age. The grounds for removal, as mentioned earlier, relate to “gross misconduct, incompetence and incapacity”.Footnote 21 The task of investigating a judge lies with the Judicial Service Commission. However, this is true in theory only as the commission has never investigated any of the judges who had been removed, nor has it recommended removal.Footnote 22
Instances of political tampering with judges’ independence
Political tampering with judges’ independence has manifested in many ways in South Sudan. The most notable is President Mayardit’s removal of judges from office without following the constitutional and legal procedures. In 2016, for example, he removed the deputy chief justice of the Supreme Court of South Sudan, Ruben Madol Arol Kachuol, without the recommendation of the Judicial Service Commission and without explaining what prompted the removal.Footnote 23 It was later revealed that Kachuol’s removal was to do with his disagreement with the then chief justice, Chan Reec Madut, in a case brought by a group of opposition parties to challenge President Mayardit’s 2015 decision that abolished ten states and created 32 states without popular consultation (the president later reversed his decision and reconstituted ten states due to pressure from opposition parties).Footnote 24
The disagreement resulted from Madut’s refusal to rescue himself from hearing the case.Footnote 25 Madut was asked to rescue himself because he was suspected to have a conflict of interest in the case because he earlier wrote a personal letter to President Mayardit to congratulate him for creating 32 states.Footnote 26 The challenge was unsuccessful even though the president clearly had no power under the Transitional Constitution to create new states in the country. However, parliament subsequently amended the Transitional Constitution in 2015 to give the president power to create new states.Footnote 27
Madut, who had served as the chief justice of the Supreme Court of Sudan for nearly 14 years, and his deputy chief justice were also removed in mid-2025. It is unclear whether the Judicial Service Commission recommended their removal. However, Madut had been accused of many things since his appointment in 2011, including nepotism, poor working conditions in the judiciary, mistreatment of fellow judges, particularly the junior ones, and pandering to the president of the Republic in disregard of his constitutional bounds.Footnote 28
In 2023, for example, Madut attended a political rally in Wau city and endorsed President Mayardit for president for the 2024 presidential election (the elections were postponed and are scheduled to be held in 2026). He was strongly condemned for this by opposition parties and the members of South Sudan’s legal profession. The opposition parties accused him of having become a politically partisan judge and called on the president to remove him.Footnote 29 For better or worse, the president seemed to have listened two years later.
Other judges have voluntarily left the judiciary, citing political interference in their functions. In 2013, Justice John Clement Kuc resigned from the Courts of Appeal – the second highest court of the land. He served his resignation letter to both the chief justice of the Supreme Court of South Sudan and President Mayardit in which he was unreservedly critical of the executive government:
“I have submitted a letter of resignation to the president … [I have resigned because of] undue influence and interference with the operation of the court by some elements which is … unacceptable. Some people do not show a respect to judges. They make intentional, malicious, and slanderous statements about judges in order to frustrate their efforts … I do not want to continue in a position where operation of the court is hindered by directives by persons within the executive branch of government using the judiciary as a rubber stamp institution.”Footnote 30
Similarly, in 2017, Justice Kukurlopita Marino Pitia resigned from the Supreme Court of South Sudan and the judiciary. Like Kuc, he issued a written statement in which he outlined the reasons for his resignation which included lack of judicial independence, lack of independence of individual judges and justices, security of tenure of the office of judges and justices, lack of financial independence of the judiciary and poor administration of the judiciary.Footnote 31
President Mayardit remains undeterred and unconstrained notwithstanding these serious accusations against him and his government. The wholesale removal of 14 judges in 2017 shocked many people in South Sudan, including the members of the judiciary and the legal profession. The judges challenged the president’s decision in the EACJ in Malek v Minister of Justice. The EACJ upheld their challenge and overruled the president’s decision. While the case has made little difference in terms of constraining President Mayardit from removing judges, it is an unprecedented development because it was the first time for a court of law to overrule President Mayardit’s Republican Decree.
Malek v Minister of Justice: factual background
The case arose out of very trying circumstances in 2017. Malek Mathiang Malek was a judge of South Sudan’s Courts of Appeal. Because of the poor working conditions in the judiciary, which have continued to worsen, Malek and other judges made two requests to former Chief Justice Madut: salary increase and improvement in the work environment, both of which Madut rejected.Footnote 32 As a result, Malek and his colleagues formed a Committee of Justices and Judges that led a strike for a few months, demanding that their requests be met. The right of employees to strike in South Sudan is protected under section 96 of Labour Act, 2017. As employees of the judiciary who face serious financial challenges, judges have the right to strike.
President Mayardit intervened in the situation and instructed Madut to prepare a supplementary budget for the judges and allocated cars for judges’ commuting.Footnote 33 Madut, for reasons best known to himself, failed to comply with the president’s instructions. The judges, perhaps encouraged more by the president’s intervention, went on a strike again, calling on Madut to resign.Footnote 34 In response, Madut recommended the dismissal of the judges to President Mayardit.Footnote 35 On 12 July 2017, the president issued the Republican Decree No 100/2017, removing the 14 judges from their respective courts and the judiciary. Shocked and left without any credible avenue in which to challenge their dismissal in South Sudan (as Madut, who was the chief justice of the Supreme Court of South Sudan which hears matters that arise under the Transitional Constitution, was implicated in their dismissal), the judges took their case to the EACJ.
Grounds for the application
Malek Mathiang filed the application in the EACJ on behalf of his colleagues and himself. He hired three lawyers to represent him. There were three major grounds for his application:
• President Mayardit had no power under the Transitional Constitution to remove judges unilaterally. Consequently, the Republican Decree No 100/2017 violated article 134(2) of the Transitional Constitution that requires the removal to be recommended by the Judicial Service Commission.
• The Republican Decree No 100/2017 violated articles 6(d) and 7(2) of the East African Treaty, both of which obligate the partner states to adhere to the principles of good governance, such as the rule of law, democracy and human rights, in their domestic systems.
• The secretary-general of the East African Community failed to intervene and investigate the actions of President Mayardit as he was required to do so under articles 29(1) and 71(1)(d) and (2) of the East African Treaty.Footnote 36
He then requested the court to declare the Republican Decree No 100/2017 as invalid and to award him costs of the proceedings against South Sudan’s minister of justice and constitutional affairs.Footnote 37 The minister of justice and constitutional affairs as the first respondent submitted that the decision of the president of South Sudan was a sovereign act immune from a legal challenge. He also submitted that the judges engaged in an unlawful conduct, consequently losing their constitutional protection.Footnote 38 The secretary-general of the East African Community submitted that he was not aware of the removal of judges in South Sudan before the applicant filed the case in the EACJ and that when he was made aware, he immediately conducted enquiries into the matter.Footnote 39 Consequently, he had no case to answer and that the application should be dismissed with cost against the applicant.Footnote 40
South Sudan was officially admitted to the East African Community on 5 September 2016 and it is one of the eight partner states.Footnote 41 The EACJ, as the judicial arm of the community (located in Arusha, Tanzania), has jurisdiction to hear cases referred to it by individuals from the partner states and those arising between the community and its employees, involving a violation of the East African Treaty.Footnote 42 The procedures governing the filing of an application are specified in the East African Court of Justice Rules of Procedure 2019. An applicant, as a first step, must file a notice of motion in the court and must serve the respondent with the notice.Footnote 43 The court can then set a date for hearing when it is satisfied that all the parties have received a notice of the application.
The EACJ, having satisfied itself with all the procedural matters, identified three major issues for determination:
• Whether the removal of the 14 judges vide the Republican Decree No 100/2017 was lawful under the Transitional Constitution and the laws and the East Africa Treaty.
• Whether the secretary-general of the East African Community (second respondent) failed in his responsibilities under articles 29(1) and 71(1)(d) and (2) of the East African Treaty.
• Whether the applicant was entitled to any remedies.
On the first issue, the court found that the Republican Decree No 100/2017 violated article 134(2) of the Transitional Constitution under which the removal of a judge has to be recommended by the Judicial Service Commission. It also found that the decree violated sections 48(1–3), 53(6) and (7) and 55 of South Sudan’s Judiciary Act, 2008, which provide the procedures to be followed in removing a judge for any of the grounds specified in the Transitional Constitution.
These provisions require a full and proper investigation to be conducted by a board of discipline composed of judges appointed by the president of the Supreme Court of South Sudan. The board then submits its finding to the president of the said court, who, in turn, submits the findings to the Judicial Service Commission with recommendations to dismiss or reprimand a judge, among other things. If dismissal is the recommendation, then that is ultimately what the commission can submit to the president of the Republic. In short, the role of the president of the Republic is simply to confirm the recommendation of the commission, not act independently or unilaterally to remove a judge.
Similarly, the court found that the Republican Decree No 100/2017 violated articles 6(d) and 7(2) of the East African Treaty, which obligate the partner states to uphold the rule of law. In emphasizing the paramountcy of the rule of law, the court referenced its previous decision in James Katabazi and 21 Others v The Secretary-General of the East African Community in which it said:
“perhaps the most important application of the rule of law is that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether a totalitarian leader or by a mob rule. Thus, the rule is hostile to both dictatorship and anarchy.”Footnote 44
On the second issue, the court dismissed the applicant’s claim, saying that the second respondent acted appropriately and responsively when he learned of the removal of judges in South Sudan.Footnote 45 On the third issue, the court awarded costs to the applicant against the first respondent (South Sudan’s minister of justice and constitutional affairs) but it awarded costs to the second respondent (the secretary-general of the East African Community) against the applicant.Footnote 46
The applicant claimed a total cost of USD 483, 830 aside from the order for him and his colleagues to be reinstated to their previous positions as judges of the judiciary of South Sudan. This claim was supposed to be enforced by South Sudan’s High Court (the court of first instance) in accordance with article 44 of the East African Treaty and rule 84(1) and (2) of the EACJ rules of procedure 2019. However, the claim remains outstanding six years after the order was made, and it is highly unlikely that it will ever be settled. Also, the judges have not been reinstated. The minister of justice and constitutional affairs, presumably on the advice of President Mayardit, instructed the judges to reapply for their positions:
“Based on the directives from the Office of His Excellency the President of the Republic on the ruling on the application filed by Justice MALEK MATHIANG, before the East African Court of Justice, and in the matter of implementation of that ruling, the dismissed Justices and Judges may apply to the Judiciary and the Judicial Service Commission for reinstatement … to their previous positions.”Footnote 47
The judges flatly refused to apply, saying that their tenure was not lawfully terminated and that they should be reinstated automatically. Speaking out in the media, Malek Mathiang said that “[the decision of the minister] is wrong. The correct decision is that those justices should be reinstated automatically … Application means two things: acceptance or rejection”. The latter would arguably have been the most likely outcome.Footnote 48 Regardless, the case is a significant development in the history of South Sudan’s judiciary and for the rule of law.
Significance of the case
Malek v Minister of Justice is significant for many reasons. First, it is unprecedented in that it was the first time for a court of law to hold President Mayardit accountable in overruling his Republican Decree No 100/2017 and ordering him to reinstate the judges to their previous positions. Of course, the president did not comply with the ruling. Non-compliance with the EACJ’s rulings has consequences under the East African Treaty. For example, article 38(3) of the treaty requires the partner states to implement the EACJ’s rulings without delay. Article 146 gives the summit (heads of state and government of the partner states) power to suspend a partner state for failing to observe and fulfil the principles and objectives of the treaty.Footnote 49 Article 147(1) gives the summit power to expel a partner state for “gross and persistent violation of the principles and objectives of [the] Treaty”. The rule of law is one of the principles that may lead to the expulsion of a partner state if it has violated it persistently.Footnote 50
The Government of South Sudan violated the East African Treaty in at least two ways. First, it failed to observe and uphold the rule of law in dismissing judges without following the constitutional and legal procedures. Second, it failed to comply with the EACJ’s ruling, compliance being about respecting the court’s ruling and upholding the rule of law. The question, however, is whether these violations are serious enough to warrant a suspension or an expulsion. The secretary-general of the East African Community has the responsibility to investigate violations of the East African Treaty. However, it is unclear what action the then Secretary-General, Peter Mathuki, took to address the violations. For example, did he inform the summit of the East African Community of the violations? Given the time that had elapsed since the ruling was made in 2020, it is logical to assume that nothing was done about the violations.
Second, while the EACJ’s ruling has not been complied with, the case is a triumph for the rule of law both in South Sudan and the East African Community, in large part because the EACJ placed strong emphasis on the paramountcy of the rule of law. The governments of the partner states are strictly subject to the law in their domestic systems. This is what matters most from a legal perspective and in the context of South Sudan where the government has very little regard for the rule of law.
Third, the case reveals the extent to which the executive government of South Sudan has compromised judicial independence and judges’ personal independence. It confirms the serious allegation against the former chief justice of South Sudan’s Supreme Court, Chan Reec Madut – that he played a role in the way the executive government has been tampering with judicial independence. For example, he did not observe his constitutional boundaries as he meddled in purely political matters. The very fact that he recommended the dismissal of 14 judges speaks volumes of the extent of his lawlessness – lawless in the sense that he had no power under the Transitional Constitution to recommend the dismissal of a judge to the president of the Republic. Only the Judicial Service Commission exercises that power.
These lawless acts caused the public to lose trust and confidence in both him and the judiciary, leading to calls for him to resign. While it is unclear what process went into his removal, for example, whether there was an investigation into any misconduct he may have been accused of, President Mayardit arguably acted appropriately in removing him. This might be a case where the Latin principle of quod necessaurium est, licitum est [that which is necessary is legally excusable] is justified. Madut’s removal provides much-needed opportunity for South Sudan to embark on the long overdue judicial reform process. His being the head of the judiciary and his perceived closeness with President Mayardit were identified as some of the obstacles to the reform process. In fact, opposition parties have long said that a genuine judicial reform must begin with the removal of Madut.Footnote 51 It remains to be seen whether the government will be finally and fully committed to carrying out the reform.
Fourth, the case is consistent with the practice of the African regional courts whereby violations of the relevant treaties are flagged and early warnings are given, and boundaries for acceptable behaviour are set for the regional governments in accordance with the rule of law.Footnote 52 Similarly, the case adds more value to academic work through the critical analysis of the issues of contention and applicable principles of law. The analysis is in line with much of the academic constitutional debates that strongly emphasizes the role of the rule of law in constraining the government effectively, creating an environment conducive to constitutionalism.Footnote 53
Finally, the case gives hope to the people of South Sudan that the EACJ serves for them as an alternative avenue from which to seek justice. This is in view of the fact that courts in South Sudan are not able to render justice accordingly, especially in matters involving the executive government or the members of South Sudan’s military who use force and threats to achieve an outcome they desire in a court case.Footnote 54 This leaves judges in fear for their lives, thus the reason they tend not to rule against the government in most, if not all, cases.
Conclusion
Malek v Minister of Justice was a case brought by Justice Malek Mathiang in the East African Court of Justice to challenge President Mayardit’s dismissal of 14 judges. The court found that the dismissal violated the Transitional Constitution of South Sudan and the laws and the East African Treaty, particularly its rule of law provisions. It then ordered President Mayardit to reinstate the judges to their previous positions and to reimburse the applicant (Justice Malek Mathiang) for the cost he incurred in the case, none of which has been complied with.
This case note has argued that, while the court orders remained unimplemented, the case has a special significance for many reasons. For example, it is the first known case to overrule President Mayardit’s Republican Decree. Importantly, the case is a triumph for the rule of law in South Sudan. For one thing, the court repeatedly reminded President Mayardit and his government of the paramountcy of the rule of law and the need for him to exercise his powers in accordance with the known laws of South Sudan. Of course, the case has made little difference in terms of constraining President Mayardit as he has continued to dismiss judges. But what is most important from a legal perspective is that the court did what was expected of it – it stood up to an authoritarian leader and ruled accordingly. No court in South Sudan could have done this for fear of reprisals.
More broadly, the case has implications for the sovereignty of partner states in that sovereignty must be exercised within the confines of the rule of law, and transnational constitutionalism in that it reveals an interface between the laws of the East African Community as a regional organization and South Sudan’s domestic laws, with the laws of the former having paramountcy where a conflict arises. The case also adds to the strengths of the EACJ’s developing jurisprudence where it interprets the laws of the community and those of the partner states consistently to ensure harmonization.
Competing interests
None
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