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Weekly moots (debates of law Moots no. (7) Of 2014 Between: Tobacco smokers in the Republic of South Sudan Vs. The National Minister of Environment

                 ‘’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 is conducted or otherwise defined inter alia as; a mock trail set up to examine a hypothetical case as an academic exercise’’.

 

BRIEF FACTS

On the Sunday of 2nd November, 2004, two tobacco smokers accused persons were arrested by police and remanded to Malakia police custody waiting for trial on man-day of 3rd October, 2014, the charges against are that both were found smoking the Mundari and Dinka tobacco in Public place in Juba town contrary to the ministerial order no:23/2014 issued by the National Minister of Environment on 7th October,2014,in which    smoking in the public places was banned and the punishment or penalty imposed would be a fine of SSP 500(five hundred South Sudanese Pounds) or equivalent $ 100 USD in black market rate or a he goat in Juba auction. They seek legal advice on the following issues:-    

 

1. Is the ministerial order no:23/2014, a law to be enforced by court of law or can court of law relies on the said ministerial order to convict the two accused? 

 

2. Is smoking tobacco in public places constitute an offence at the time of its commission?  

 

3. What are defenses available to them?

                       Resolutions:-

As to the issue no.1, the two accused shall be advised to take notice that there are two main ways to make laws; either by acts (primary legislations) passed by parliament, which are also called statutes or enactments or delegated legislations (subordinate legislations), which are also described as secondary legislation. The most important type of delegated legislation is a statutory instrument, which usually made by a minister and the power to do so must be provided for in a statutory or enabling act. It should be recognized that the rationale behind having secondary legislations (delegated legislations), is mainly to add detail to primary legislation (act or statute). Based in this brief introduction, the said accused may argue the trial court that the said ministerial order is neither a binding or enforceable law as it was not passed by parliament nor a statutory instrument as there is no statute or enabling act which confer such power on the national minister to legislate such statutory instrument given the fact that until now we have not enacted any environment   act which is supposed to be the primary legislation to any subsequent secondary legislation to regulate environment activities in this country. As such, no court of law that would rely on the said ministerial order of 23/2014 to convict the said two accused persons otherwise, they may object to the trial under section 6(d) of the code of criminal procedure act, 2008 which provided that no punishment shall be inflicted upon any person exceeding that prescribed by the law in force at the time such offence was committed. 

As to the issue no.2, in this instant case, the two accused may argue the trial court that the alleged act or omission of smoking tobacco in public places did not constitute an offence at the time of its commission as there is no appropriate law in place   to punish the said act of smoking in public places and therefore, any attempt to depart from this, would be unconstitutional as it contravenes article 19(4) of the transitional constitution of Republic of South Sudan,2011, which provided that  no person shall be charged with any act or omission, which did not constitute an offence at the time of its commission.

As to the issue no. 3, the two accused may at the same trial, raise defense of invalidity of the ministerial order no.23/2014 and ask the trial court to strike down the same ministerial order if it concludes that is ultra vires.  Ultra –vires is well-known doctrine uses by judiciary (courts) to control over delegated legislation. To explain more in this regard; the doctrine of ultra vires literally known as acting beyond one’s power or authority or out of jurisdiction and if the trial court establishes that, the minister who issued ministerial order no.23/2014, has no authority to do so or acted out of jurisdiction, the same ministerial order would be declared null and void and once its illegality has been established, the ministerial order would have no legal effect and will be considered as having been incapable of producing legal effects and the trial court would be prepared to either  grant certiorari to quash the ministerial order and deprive it of all legal effect or declare it as invalid, null and void, and ultra-vires. Friday’s are moots between the directorate of the military of Sudan people’s liberation army versus the ministry Justice and the judiciary of the Republic of South Sudan.   

Law applicable (Legislations considered):-

1. Article 19(4) of the transitional constitution of Republic of South Sudan2011, provided that: No person shall be charged with any act or omission, which did not constitute an offence at the time of its commission.

 

2. Section 6(d) of the code of criminal procedure act 2008, provided that: No punishment shall be inflicted upon any person exceeding that prescribed by the law in force at the time such an offence was committed.

 

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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