Article 26 of the International Covenant on Civil and Political Rights (ICCPR) – acceded to by South Sudan in February 2024 – prohibits any discrimination based on language, but Article 6 of the Transitional Constitution of the Republic of South Sudan (TCSS) does not explicitly recognise Arabic language despite the fact that majority of South Sudanese lawyers, prosecutors and judges only speak and write in Arabic. On 5 August 2025, one lawyer, Mr Deng Kur, on his Facebook timeline called on the current Chief Justice to end ‘the unconstitutional use of Arabic in court proceedings’. Many lawyers have also made similar pronouncements citing Article 6 above as the basis.

This blog argues that the lack of express recognition of Arabic under Article 6 and potential prohibition of its use in courts on the basis of the above provision is inconsistent with Article 26 ICCPR taking into account the provisions of TCSS, the Code of Civil Procedure Act 2007 (CCPA) and the ICCPR. It further examines Article 6 of the Interim Constitution of Southern Sudan (ICSS) 2005 (repealed by the TCSS).

Background

In 2005 immediately after the signing of the Comprehensive peace agreement, the government of Southern Sudan adopted the ICSS as the supreme law. Article 6 of ICSS recognised all indigenous languages, Arabic and English (as official working languages) and sign language. The ICSS further highlighted that ‘there shall be no discrimination against the use of either English or Arabic’. In 2007, the government of Southern Sudan adopted the CCPA 2007 which recognises English and Arabic as official working languages in South Sudan (section 66). The ICSS has since been repealed by the TCSS but the CCPA remains in force through a continuity clause in Article 198 TCSS.

In 2011, South Sudan officially seceded from Sudan and became an independent state. In the same year, the government of South Sudan adopted the TCSS, Article 3 of which references the TCSS as the supreme law in South Sudan. Interestingly, Article 9 of the TCSS provides that ‘All rights and freedoms enshrined in international human rights treaties … ratified or acceded to by the Republic of South Sudan shall be an integral part of this Bill’.

Incompatibility

Section 66 CCPA recognises the lived (and continuing) challenges that the current non-recognition of Arabic under Article 6 TCSS presents. For example, the International Commission of Jurists’ country profile (2014 report) states that: ‘…Arabic continues to be used in courts and that the switch to English-only has posed significant practical problems, for many judges, prosecutors and legal practitioners who were trained in Khartoum…’.

Article 6 TCSS makes no reference to Arabic. In other words, Arabic does not even have the same status as indigenous (national) languages or English despite its widespread use. This makes Article 6 inconsistent with Article 26 ICCPR read with Article 9 TCSS.

In Diergaardt & others v. Namibia (2000), the newly independent government of Namibia made English its official language despite the fact that only 0.8% of its population spoke English, relegating Afrikaans as a national language. The government of Namibia also issued a circular proscribing the use of Afrikaans. On the merits of the case, the United Nations Human Rights Committee (UN-HRC) found that the government’s circular, ‘intentionally targeted against the possibility to use Afrikaans when dealing with public authorities’ violates Article 26 ICCPR (para 10.10). Consequently, the UN-HRC suggested permitting government officials ‘to respond in other languages other than the official one in a non-discriminatory manner’ (para.12).

Similar to Namibia, post-independence South Sudan relegated Arabic in the TCSS. It is on this basis that many are calling for a new circular to prohibit the use of Arabic in courts in South Sudan. Such a decision would contravene Article 26 ICCPR as reasoned by the UN-HRC, which provides an ‘interpretative guidance’ for domestic courts.

Conclusion

Article 26 ICCPR is an integral part of the TCSS within the meaning of Article 9 of the TCSS. In this light, South Sudan is obliged to comply with its treaties obligations by ensuring that those trained in Arabic language continue to use Arabic without being discriminated against.