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Weekly moots (debates of law) Moots no. (5) of 2014

                     

‘’Moots are literally known as debates of law explored to law students as an educational exercise by listening to qualified lawyers or barristers debating before judges, the students gradually learns not only the law but also how court business are conducted or otherwise defined inter alia as; a mock trail set up to examine a hypothetical case as an academic exercise’’.

 

BRIEF FACTS

 

On or around 12th September, 2004, “the national Minister of Labor, Public Service &Human Resource Development, a lawyer by profession Ngor Kolong Ngor was being quoted by the local   media houses in the Republic of South Sudan as well as the regional particularly Uganda and Kenya to have issued an administrative circular which has been marked as a ministerial circular no.007/2014 directing employers in the Republic to limit employment of foreign workers to certain level and that the priorities in employment be always given to the local workers ”.  Ms. Mary Keden Abuk, a South Sudanese widow whose husband was killed during the liberation struggle, arrived in Juba yesterday from Uganda with her three kids after being denied access to sell tea at Kampala’s street and as result, she can’t afford to pay school fees to her kids especially after the family source of income (cattle) were looted by the Rebel in Bentiu of Unity state. She seeks legal advice on the following legal issues:-

1. Whether she has a right to bring a legal action to enforce the ministerial circular so that the foreign workers quit jobs in South Sudan similar to what she experienced in Uganda?  

2. What remedies are available to Ms. Mary Keden Abuk ? 

3. How can the interest of unemployed local workers be protected?

                       Resolutions:-

 

As to the issue no.1, for Ms. Mary Keden Abuk, to bring legal action to enforce the said ministerial circular, she must establish that the said circular is either a law enacted according to the recognized process or a subsidiary legislation enacted by authorized body. In the instant case, the circular was neither enacted by the national legislative assembly   whose duties is to enact laws nor a subsidiary legislation enacted or issued by an authorized body but issued by the national Minister of Labor whose duties is to issue administrative circular to regulate the labour affairs in the absence of the enabling laws governing the labour. As such, she could not bring legal action to court of law to enforce the same circular as the courts shall have no jurisdiction to entertain the matter. However, other institutions could still implement the said circular as an administrative order to regulate their affairs in regard to the labour employments.   

As to the issue no.2, the remedies available to Ms. Mary Keden Abuk   shall be mainly either to; raise a suggestion on the ground of what is known as suggestion from a concerned good citizen to the minister of Justice to initiate the labour bill to be adopted by the National Council of Ministers and thereafter be sent to the national legislative assembly to be enacted as law or approach her (MP) member of parliament in the national legislative assembly to raise a motion to have the Labour Bill enacted immediately and alternatively she could persuade her  ministry of foreign affairs and international corporation to apply reciprocal treatment, a well known custom between states in the  international law which means if the Republic of Uganda or Kenya do not allow citizen of the Republic of South Sudan to do certain job within their jurisdiction, the Republic of South Sudan would be entitled to apply the same treatment to their citizen in its jurisdiction.

 As to the issue no.3, these moots believe that the only way to protect the interests of unemployed citizens in this county is not by issuing ministerial circular but rather to enact labour laws that would have embodied   legal provision to punish any employer who shall employ foreign workers in a job supposed to be done by local workers as it was the case in Kenya in the late1960s when it revoked licenses from Asian who preferred to remain non-citizens and the Uganda during   Idi Amin Dada when non-citizen of Asian citizens were expelled from Uganda. The situation is even worse in Tanzania and Ethiopia where non-citizen is hardly employed.

Law applicable (Legislations considered):-

 

1) Section 38 of the investment promotion act, 2009, provided that:-

(1) Employee of enterprises owned by foreign investors in South Sudan regardless of nationality shall be subject to the laws applicable in South Sudan and principle of equal pay for equal job. 

2) Labour relations between enterprises owned by foreign investors and theirs employee may be regulated by their labour agreements, which agreement shall not establish standard lower than the mandatory requirements of the applicable law in South Sudan.

3) Without prejudice to the provisions of labour laws applicable in South Sudan, investors shall have the right to employ managers of any nationality in order to conduct investment and business activities.

4) Investors shall have the right to employ non-managerial staff of any nationality, provided that South Sudanese citizens of similar qualification and experience shall be given preference in recruitment.   

 

2) Section 43 of the investment promotion Act, 2009, provided that:-

Without prejudice to the provisions of this act, the Southern Sudan investment authority shall:

(i) Protect the interest of the indigenous communities in whose areas investment shall take place, and 

(ii) Ensure that indigenous enterprises and investments are promoted, encouraged and protected.

 

Recommendations:

 

Either The national Ministers of Labour and Justice to initiate labour bill and immediately present the same to the national council of ministers for approval  before it is enacted as law by the national or The national legislative assembly to adopt a motion to have the labour bill enacted so that to protect unemployed local workers in the country.

 

About the author

Mr. Kiir Chol Deng Achuil is practicing advocate in Juba and runs his own legal firm under the name and style of Kiirdit & co. Advocates. He is the author of these weekly moots (debates of law) and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .


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