Judiciary Reform: Sudan Comprehensive Peace Agreement

Chapter II: Power Sharing (Signed at Naivasha, Kenya on 26th May, 2004)

2.11 The National Judiciary

2.11.1 The powers of the Judiciary shall be exercised by Courts and other tribunals. The Judiciary shall be independent of the Legislature and the Executive. Its independence shall be guaranteed in the Interim National Constitution.

2.11.2. There shall be established at the National Level:

2.11.2.1. A Constitutional Court;

2.11.2.2. A National Supreme Court;

2.11.2.3. National Courts of Appeal; and

2.11.2.4. Any other National Courts or tribunals as deemed necessary to be established by law.

2.11.3. The Constitutional Court

2.11.3.1 There shall be established-a Constitutional Court in accordance with the provisions of this Peace Agreement and the Interim National Constitution.

2. 11.3.2. The Constitutional Court shall:

(i) Be independent from the Judiciary and any other courts in the country. It shall-be headed by the President of the Constitutional Court, duly appointed by the President with the consent of the First Vice President, and shall be answerable to the Presidency;

(ii) Uphold the Interim National, Southern Sudan, and State Constitutions and its composition shall be representative;

(iii) Have original jurisdiction to decide disputes that arise under the National Interim Constitution and the constitutions of Northern States at the instance of individuals, juridical entities or of government;

(iv) Adjudicate on the constitutionality of laws and set aside or strike down laws or provisions of laws that do not comply with the National, Southern Sudan, or the relevant State constitutions;

(v) Have appellate jurisdiction on appeals against the decisions of Southern Sudan Supreme Court on the Constitution of Southern Sudan and the constitutions of Southern Sudan states;

(vi) Adjudicate on constitutional disputes between organs and levels of government, with respect to areas of exclusive or concurrent competencies;

(vii) Protect human rights and fundamental freedoms;

(viii) Have criminal jurisdiction over the President, the two (2) Vice Presidents of the two (2) Speakers of the National Legislature, and the Justices of the National and Southern Sudan Supreme Courts.

2. 11.3.3. Decisions of the Constitutional Court shall be final and binding.

2. 11.4. The National Supreme Court

2.11.4.1 The National Supreme Court shall:

(i) Be a court of review and cassation in respect of any criminal or civil matter arising out of or under national laws;

(ii) Have criminal jurisdiction over the Justices of the Constitutional Court;

(iii) Review death sentences imposed by any Court in respect to matters arising out of or under National Laws; and

(iv) Have such other jurisdiction as determined by the Interim National Constitution, the Peace Agreement, and law.

2. 11.4.2. The National Supreme Court may establish panels for the purposes of considering and deciding appeals on matters requiring special expertise including commercial, personal, or labour matters.

2. 11.4.3. The Justices of the Constitutional and National Supreme Courts and all the judges of other National Courts shall perform their functions without political interference; they shall be independent, and shall administer justice without fear or favour. The Interim National Constitution and the law shall' protect their independence.

2. 11.4.4. Judges other than the Justices referred to in Section 2.11.4.6 herein shall be appointed by the Presidency on the recommendation of the National Judicial Service Commission.

2. 11.4.5. The National Judicial Service Commission shall be chaired by the Chief Justice. Amongst others, representatives of academia, judges, members of the legal profession, members of the National Legislature, and the Minister of Justice shall sit on this Commission. The National Judicial Service Commission shall be as determined in the Interim National Constitution referred to in paragraph 2.12 herein and shall reflect the need for appropriate representation, inclusiveness, and diversity.

2.11.4.6. (i) All Justices of the Constitutional Court shall be appointed by the Presidency on the recommendation of the National Judicial Service Commission, subject to approval by two-thirds ((2/3)) majority of all the members of the Council of States, having regard to competence, credibility and the need for fair representation.

(ii) All Justices of the National Supreme Court shall be appointed by the Presidency on the recommendation of the National Judicial Service Commission, having regard to competence and credibility.

Implementation History

2005

Full Implementation

The 2005 CPA contained judicial reform provisions that required the establishment of the Constitutional Court, the National Supreme Court, and appellate Courts. With respect to the Constitutional Courts, its members are appointed by the president upon the approval of the National Judicial Service Commission, and subject to two-third majority approval of all members of the Council of States. Nevertheless, the CPA requires an adequate representation of southern Sudan in the Constitutional Court. In the 2005 Interim Constitution, which was enacted in July, these reforms were institutionalized.

The National Assembly approved the Constitutional Court Act on 1 October 2005. This act became law in November. According to this act, Mr. John Aungi Kasiba from SPLM and Dr. Wahabi Mohamed Mukhtar from NCP were appointed as Deputy Chief Justices. Mr. Jalal-Eddin Mohamed Osman from NCP was appointed as Chief Justice. These appointments were made on 28 November 2005. Similarly, the president and members of the Constitutional Court were sworn in on 31 December 2005.1

Similarly, the National Judicial Service Act was adopted in October 2005. The National Judicial Service Commission was established on 7 December 2005.2 With the establishment of the Constitutional Court, the Supreme Court and the representation of southern Sudan in the Constitutional Court, the judicial reforms took place in Sudan as sought by the 2005 CPA.

  • 1. "The CPA Monitor-Monthly report on the Implementation of the CPA," UNMIS, March 2006.
  • 2. Ibid.
2006

Full Implementation

Judicial reforms took place in 2005. No further developments observed.

2007

Full Implementation

No further developments observed.

2008

Full Implementation

No further developments observed.

2009

Full Implementation

No further developments observed.

2010

Full Implementation

No further developments observed.

2011

Full Implementation

No further developments observed.