HON. JUSTICE MALEK MATHIANG MALEK v. THE MINISTER OF JUSTICE OF THE REPUBLIC OF SOUTH SUDAN (ATTORNEY GENERAL OF THE REPUBLIC OF SOUTH SUDAN), THE SECRETARY GENERAL OF THE EAST AFRICAN COMMUNITY

This Reference was brought under Articles 6(d), 7(1)(b), 7(2), 27(1), 29(1), 30(1)(2), and 71(d) of the Treaty for the Establishment of the East African Community (“the Treaty”), Rules 24(1)(2) and (3) of the East African Court of Justice Rules of Procedure, 2013 (“the Rules”), The Vienna Convention on the Law of Treaties, 1969 (“the Vienna Convention”), and the inherent powers of the Court. The Reference sought to challenge the action of the President of the Republic of South Sudan in removing the Applicant herein from the position of Justice of the Court of Appeal of South Sudan, vide ‘The Republican Decree No.100/2017 for the Removal of some Justices and Judges in the Judiciary of the
Republic of South Sudan’ dated 12th July 2017 for being in contravention of the Constitution of the Republic of South Sudan and the Treaty, specifically Articles 6(d) and 7(2).
Hon. Justice Malek Mathiang Malek (“the Applicant”) is a citizen and resident of the Republic of South Sudan (a Partner State of the East African Community) who formerly served as a Justice in the Court of Appeal of South Sudan. He, together with a number of other Judges, formed “The Committee of Justices and Judges” that steered a strike demanding, inter alia, the resignation of the Chief Justice of South Sudan. Following the strike, on 12th July, 2017, the President of the said Partner State issued a Republican Decree for the removal of some Justices and Judges of the Judiciary of South Sudan, including the Applicant.
The First Respondent is the Attorney-General of the Republic of South Sudan, whose office has been sued in its capacity of Principal Legal Advisor of the Republic of South Sudan.
The Second Respondent is the Secretary General of the East African Community, whose office has been sued in its capacity as the Principal Executive Officer of the Community, head of the East African Community Secretariat and Secretary to the Heads of State Summit of the Community.