Spring 2007, Volume 3

A deeper look into the current state of the legal system in Southern Sudan reveals rings of complications.  The Interim Constitution of Southern Sudan (ICSS), Interim National Constitution (INC), and CPA form the foundation for the legal framework of Southern Sudan during the interim period leading up to elections and the referendum for self-determination in 2011.  Provisions of the ICSS provide a vague guide to the role of customary law.  Under Article 130, the Supreme Court is given final jurisdiction with respect to all litigation under statutory and customary law (Southern Sudan 2005, Article 130).  Jurisdiction of customary law courts, however, is ultimately left for determination by each state (Southern Sudan 2005, Article 171(3)).  The role of traditional authorities and customary courts is even vaguer under the local government provisions of the ICSS: “The object of local government shall be to: … (i) acknowledge and incorporate the role of traditional authorities and customary law” (Southern Sudan 2005, Article 173(6)(i)).  Further provisions draw similar divisions of duties; the ICSS provides vague guidance that customary law and the role of traditional leaders should be accounted for while leaving ultimate responsibility to state governments.

The current reality is that state government and judiciaries are nascent in Southern Sudan, while customary law continues to exist in an unadulterated form in the rural, mono-ethnic regions of the south.  In the former garrison towns, such as Juba, the capital of Southern Sudan, customary law has been altered, primarily by the imposition of Sha’ria law by the northern government during the war, but remains the primary body of law.  In Juba and other areas of large populations of internally displaced persons (IDPs), customary courts regularly collaborate to adjudicate intertribal disputes even while each displaced tribe retains its own intra-tribal dispute mechanisms.  Since the signing of the CPA, most urban areas have developed semi-parallel systems of statutory and customary law.  Attempts are made at defining subject matter jurisdiction, but often to no avail.  Instead, individual chiefs adjudicate in customary courts how they see fit rather than abiding by set policies of removal and remand.  In rural areas the effects of the statutory system are even less pronounced.  Jurisdiction on all subjects remains squarely in the hands of the local chief even if the ministry has set jurisdictional policies. 

The legal profession and statutory system deride the customary courts and chiefs that administer them as incompetent and corrupt.  Yet surveys of southern Sudanese reveal a greater amount of trust in the customary system (UNDP Southern Sudan 2006).  As experienced in numerous developing countries, the formal judicial system is an institution little understood by the majority of citizens, and its powers of judgment are seen as biased and/or capricious (Prillaman 2000).  One of the major struggles of developing country judiciaries is to create an institution that is accountable, transparent, and trusted by a majority of its citizens.  Rule-of-law theorists highlight the importance of transparent judicial mechanisms to the overall security and economic development of countries (Messick 1999). 

The customary court system in Southern Sudan, despite the decades of government oppression, has managed to achieve this goal on its own.  Transparency and accountability in the courts is high, while court decisions are generally believed to be fair (International Rescue Committee/UNDP 2006, UNDP Southern Sudan 2006).  A look into the operation of the customary courts reveals a structure that places a premium on transparency and community participation.  Customary courts are held in public places.  Large trees and open buildings form the courtroom.  Dispute processes are held as a public forum with large numbers of community members present to observe (and comment).  Judgments are rendered after lengthy arguments from the participants and between the chiefs, who form panels of up to seven.  Lawyers are prohibited.  The chiefs act as both advocate and arbiter; the community acts as public opinion.  Chiefs are typically revered as the custodians of the complex oral legal history of tribes and clans.  Yet chiefs who continually advocate for unfair decisions lose credibility among their community and the constituents that pay their allowances.  Chiefs without credibility lose prominence on the court panel.

Customary courts in Southern Sudan have also shown an amazing degree of cross-jurisdictional flexibility.  The sheer number of southern Sudanese IDPs (Sudan has the largest number of IDPs in the world) has necessitated it.  Chiefs from different tribes regularly convene in the same customary court to adjudicate cases between members of different tribes.  When a defendant appears from a tribe that does not have representation on the panel, the case is suspended, and a chief from the appropriate tribe is summoned to help adjudicate at a later date. 

Subject matter jurisdiction has also developed considerable flexibility in the customary courts of Southern Sudan.  As a trusted institution, customary courts receive disputes in all areas of law.  While most customary law cases center on family law in its many forms (including adultery, divorce, inheritance, and child custody), customary courts also adjudicate criminal, contract, land and property, and traditional disputes such as hexes.  Even if a case is not directly covered under the tribe’s customary law, the chiefs will often adapt customary norms of fairness to the dispute at hand.  As they presently exist, customary courts are the entry point to justice for a majority of Sudanese citizens.

A brief example from a customary court in Juba reveals how these flexibilities manifest in the framework of the post-conflict south.  In a recent case, a man from the Kakwa tribe was taken to the Kator “B” customary court in Juba by a man from the Lokoya tribe on grounds of breach of oral contract.  The Lokoya man claimed that the Kakwa man had not paid for a large supply of sugar he had taken.  The Kakwa man claimed frustration of purpose of the contract because the sugar had been stored in a warehouse that had burned down.  A panel of six chiefs adjudicated the case, one each from the Kakwa and Lokoya tribes to weigh in on potential customary law interpretations.  One of the prime witnesses, the warehouse owner, was a Muslim from the north.  The chiefs examined the plaintiff and defendant in rotation.  A Koran was produced for the Muslim warehouse owner when called to testify.  Ultimately the chiefs decided that the sugar had fully transferred into the hands of the defendant and that the plaintiff was due payment.  The chiefs next examined whether there was insurance on the warehouse and whether there was any negligence on the part of the warehouse owner.  Having deduced that the only way to make the plaintiff whole was through payment by the defendant, the chiefs ruled for full payment.  A payment schedule was made through the court’s cashier.  Public opinion generally seemed to be in favor of the judgment. 

This simple case illustrates the fundamental role customary courts are already playing with respect to dispute resolution mechanisms.  The courts are flexible in deciding cross-tribal disputes as well as in dealing with subject matters that might lie outside of customary law.  Contract enforcement is a fundamental right in market economies that many countries throughout the world struggle to provide.  Yet courts in the war-ravaged Southern Sudan region have developed local and traditional mechanisms for resolving these disputes without a single technical contribution from the statutory system. 

Currently in Southern Sudan, aid policy is geared toward establishing a “modern judiciary.”  Hundreds of millions of dollars are funneled toward building new courtrooms, developing electronic case databases, and training judges in English in schools in Nairobi.  Aid and government policy strive to create a statutory legal system that will usurp most of the traditional jurisdiction of the customary law system.  For all these efforts the fact remains that Southern Sudan is horribly understaffed for its ambitions.  Judges for the states and counties are few and often inexperienced.  The legal profession, let alone qualified prosecutors, is virtually nonexistent outside of Juba.  Yet judicial and legal policy continues to undermine and ignore the preexisting, organic judiciaries while neglecting to consider the role customary law and courts are already playing.  Instead, policies need to be developed that strengthen the capacity and legitimacy of these courts while establishing systems of appellate review that reinforce principles of human rights and technically sound judgments. 

The importance of customary law to societal norms and accepted behavior remains strong in Southern Sudan.  At the same time, customary courts are the primary mechanism for dispute resolution.  The challenge of moving Southern Sudan from conflict to lasting peace lies squarely in establishing a legal system that can peacefully resolve disputes and provide order to its economy.  To reach these ends a legal framework needs to be established that disentangles jurisdictional issues between the fledgling statutory system and customary law, while maintaining the authority and support to customary courts that further its important position on the front line of judicial access.  In short, a modern, legal pluralist state needs to be created.  Southern Sudan can look to Africa’s long and sometimes troubled history in legal pluralism for advice and lessons learned.

Africa abounds with experiments in legal pluralism.  The academic discipline of legal pluralism contains a rich catalog of research and academic literature.  Within these experiences lie a number of lessons for Southern Sudan on the virtues and pitfalls of legal pluralism.  The remainder of this article spells out how Southern Sudan can properly incorporate legal pluralist concepts developed from these experiences into its own legal framework.

Legal Pluralism in Africa

The GoSS is actively involved in documenting customary law throughout the region.  However, the exercise is more anthropological than pragmatic.  The government has yet to create a legal framework that can utilize these findings to create jurisdictional guidelines or that incorporates Southern Sudan’s rich cultural history. 

One reason for the failure to embrace legal pluralism as an inclusive legal framework is the prominent position of multi- and bilateral institutions against legal pluralism.  Most of these institutions favor legal systems modeled after those of Western societies that facilitate (Western) foreign investment, despite the documented legal disempowerment they cause for ethnic minorities and indigenous cultures (McAuslan 2005, 1).  As stated by Sammy Adelman (1998), the West’s insistence on its view of proper governance “straitjackets constitutional debate by circumscribing the possibility of local, pluralist responses to the crisis.” 

Investment and customary law, however, are not mutually exclusive.  Centrally based judiciaries and monist legal systems work best where there is sufficient cultural homogeneity or a strong national culture and identity.  For all its emphasis on centrally based judiciary, the US federalist judicial structure itself had strong elements of legal pluralism upon its inception.[4]  More recently, the success of complex dualist systems in countries like Malaysia — a dual Sha’ria and statutory law system with complicated personal jurisdiction issues — illustrates the greater importance of court integrity and well-defined subject matter jurisdiction to international investment.[5]  The challenge for Southern Sudan is to develop a legal pluralist framework and well-respected court system that encourages investment while embracing the cultural values of customary law. 

Another prominent critique is that legal pluralism legitimizes harmful traditional practices.  The experience of South Africa, however, as detailed below, and the approach of this article is toward harmonization of those customary laws that violate notions of human rights, not wholesale adoption.  Even with standardized human-rights norms there remains a valuable role for customary law and legal pluralism as a primary mechanism for access to justice (United Nations 2004).

African legal pluralism has much of its origins in the colonial experience, where two coexisting systems of law were encouraged: one for colonial rule and access to land and natural resources and one for the colonized.  Early approaches to legal pluralism favored this dual system where each system runs parallel to one another with only limited, prescribed interaction (Griffiths 1998, 133).  

More modern legal pluralist approaches, such as the one advocated by John Griffiths (1986, 4), treat legal pluralism as “an empirical state of affairs in society.”  Thus, any socially pluralist society inevitably contains elements of legal pluralisms that result from development and enforcement of locally accepted social norms.  In other words, legal pluralism is a synonym for cultural pluralism.  In multicultural societies such as the United States, the law, even in its strictest sense, is dynamic: “improvising, selecting, appropriating, denying, and contesting normative ideas from a host of sources” (Greenhouse 1998, 67).  The persistence of common law jurisprudence in the United States reflects this.  Decentralized adjudication in the common law history represents the need for a constant legal dynamic that adapts to localized norms and in the process debates, analyzes, and shapes the law as needed.  In the end, the process of creating law is as important as the law itself. 

The importance of diverse social fields in creating laws that reflect norms is no more evident than in African societies, where people are divided into tribal, cultural, and religious groups and along rural and urban lines.  As a result, African states are assumed to have the most legally pluralistic systems.  Reality indicates otherwise (Adelman 1998, 73).  Adelman argues that there is “a cleavage between social pluralism and rules which it generates on the one hand and constitutional pluralism on the other.” (1998, 73-74).

Mozambique

Mozambique’s history in failing to incorporate traditional authorities into a pluralist, national system offers salient lessons to Southern Sudan.  The long civil war in Mozambique was exacerbated by the segregation of traditional leaders from the ruling structure.  After independence, the ruling party Frelimo (Front for the Liberation of Mozambique) largely sought to eliminate the rule of traditional authorities as a remnant of the colonial legacy.  Under the previous colonial administration traditional authorities had served as local administrators.[6]  In its attempts to create a supra-ethnic state and national culture, the 1975 constitution replaced traditional authorities at the local level with popular courts, base-level party cells, and grupos dinamizadores (“dynamizing groups”)  (de Sousa Santos 2006, 64).  The government, however, was unable to mobilize sufficient resources to deploy these new administrative structures, creating a backlash from communities and traditional authorities (de Sousa Santos, 64).  The void of functioning local structures coupled with the political polarization of the traditional authorities caused many leaders to look to Renamo (Mozambican National Resistance), eventually leading to the bloody civil war of the 1980s.

Since the civil war ended, the Mozambican government has attempted to better integrate the traditional authorities into the administrative and legal systems of the state.  The 2000 Law of Community Authorities recognized greater participation of traditional authorities in public administration.  At present there exists only a patchwork structure for the role of traditional authorities and customary law.  Traditional authority differs from region to region and depends more on individual influence rather than established systems or legal orders.  In rural areas in particular there is a societal appeal to “return to the traditional.”  This coupled with a growing activism on the part of traditional authorities to intervene more broadly in conflict resolution points to an ongoing resurrection of customary systems in Mozambique and to the historical, social, and cultural importance of customary law.

South Africa

South Africa provides another case study on legal pluralism supported by a multicultural constitutional process.  South Africa is one of the most prominent examples of social pluralism providing recognition to traditional leadership and customary law (Oomen 1999, 86).  The South African Constitution creates a comprehensive system of rights to cultural, linguistic, religious, and traditional communities.  Specifically recognized within this is the role of customary law and traditional leadership.  Section 221 of the constitution states:

(1) The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution. 

(2) A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs. 

(3) The courts must apply customary law where that law is applicable, subject to the Constitution and any legislation that deals specifically with customary law. 

Under this section customary law is clearly subsumed within the rights and structures of the constitution but is also given its own place as the chosen law where applicable.  The constitution recognizes customary law but requires its harmonization with human rights principles.  The third subsection provides the strongest support by making application of customary law a requirement and providing that customary law is subject only to legislation that specifically deals with it.  Additional sections of the constitution established guidelines for national legislation to provide for a national council of traditional leaders and to define roles for traditional leadership at the local level.  The role of customary law was recognized by the constitution but intentionally left vague and subject to interpretation by, in the words of the Constitutional Court, “future social evolution, legislative deliberation and constitutional interpretation.”[7]

The role of customary laws was interpreted in such a way by the Communal Property Association Act (1996) that provided for allocation of communal land by a democratically elected board.  This act reflected the opinion that the authority of chiefs to allocate communal land was too easily corrupted.  The act did not, however, attempt to substitute individual title for communal tenure — often the more sensitive and contentious issue.  Chiefs are recognized as responsible for settling disputes in the customary courts under territorial and subject matter jurisdiction per the apartheid-era Black Administration Act.  New acts are continually passed to abolish outdated provisions.  The Customary Marriages Act (1998) is one example, where customary marriages were given legal recognition, overturning provisions of the Black Administration Act (Oomen 1999, 92).

South Africa’s commitment to legal pluralism and traditional structures is an important development because it reflects not only a constitutional dedication to multiculturalism but also the political and functional need for incorporating traditional legal systems.  

Ghana

Ulrike Schmid’s work on legal pluralism as a source of conflict between tribes in Ghana provides important insight on the pitfalls of certain pluralist approaches (2001).  In the northern region of Ghana, a history of conflicts between the Gonja and Nawuri tribes escalated to a civil war in 1994 in part due to the power relationships established by a legal pluralist system.  Traditional authorities that had been delineated in terms of tribal membership were altered and assigned to a specific territory.  Traditional definitions of jurisdiction by tribal allegiance were mixed with an artificial jurisdiction measurement based on territory.  The restructuring created a new legal hierarchy that gave “majority tribes” legal dominance over “minority tribes.”  Historical conflicts over land were now placed in a legal framework that subordinated minority tribes’ customary law to that of the majority tribes (Schmid 2001, 7).  The Gonja tribe imposed its newfound legal power over the Nawuri in adjudicating land conflicts, leading to Nawuri backlash and ultimately civil war.

Schmid’s account of the tribal conflict in Ghana is an important lesson to be considered by the GoSS when constructing jurisdictional definitions in the new judicial framework.  The experience also highlights the need for creativity in legal pluralism by not imposing foreign structures, like territorial jurisdiction, that compromise underlying, customary relationships.

The experiences of Mozambique, South Africa, and Ghana represent individual lessons along the spectrum of customary law treatment in Africa.  Mozambique illustrates one end of the spectrum where customary law and traditional authorities were replaced by “modern” systems and unfamiliar structures such as “dynamizing groups,” eroding the legitimacy of the government.  South Africa represents perhaps the most successful integration of customary law into a constitutional framework.  The constitution recognizes the authority of customary law while also providing clear guiding language on when it should be applied and when legislation subsumes it — a characteristic not reflected in the Southern Sudan Constitution.   Ghana is a clear example of when attempts to integrate customary law into the legal and judicial framework go awry.  The Ghana experience illustrates the dangers of attempting to mix foreign legal structures — territorial jurisdiction — into systems of legal pluralism.  Legal pluralism should not create power dynamics between tribes but should stabilize the status quo that has governed tribal relationships for centuries.

Legal Pluralism for Southern Sudan

Stabilizing relations between previously warring factions in Southern Sudan is an arduous and ongoing task.  Southern Sudan now needs a legal/judicial framework that reinforces these efforts while recognizing the importance of tribal identity and customary law.  In this section I attempt to accelerate this urgent discussion by proposing a legal framework based on in-country research of legal institutions, a review of regional African approaches, and consideration for the current post-conflict needs of the southern Sudanese.  This framework attempts to synthesize the legal pluralist experiences of other African countries into a framework that addresses dilemmas of personal, territorial, and subject matter jurisdiction while promoting integrated and sustainable institutional solutions.  The framework I propose also relies heavily on analysis of current, organic approaches to legal pluralism in the customary courts of Southern Sudan. 

The current legal pluralist approach of customary courts in multi-ethnic areas of Southern Sudan provides important lessons on the vetting and collaboration required for legal pluralism.  For legal pluralism to function in multi-ethnic Southern Sudan there has to be a built-in flexibility that allows discussion and compromise between customary law traditions.  There also has to be significant space for oral jurisprudence and less emphasis on rigid statutory procedures. 

The first step in developing a legal pluralist system in Southern Sudan is to begin documentation of all customary law and to create a legal clearinghouse for judicial decisions by tribe.  Documentation would build up the jurisprudence within each tribe and create a structure for continued recording of judgments.  The process would also assist in creating a “professional” customary law system with increased consistency and predictability of rulings.  The system would allow tribes to better track compliance and evolving changes to jurisprudence.  In the south there are infinite complexities within each tribe, along subtribe and clan lines.  Documentation would be limited to the tribal level and, at this stage, would focus solely on appellate-level proceedings within each tribe.  Clan and family-level judgments could be documented in the future.

Consideration must be given to constitutional reform that emulates South Africa’s pluralist approach and provides more guidance to the place of customary law throughout Southern Sudan.  The current wording in the Interim Constitution of Southern Sudan leaves too much interpretation to each individual state constitution.  A national approach is required for customary law as tribal boundaries and relations cannot fit neatly into the territorial jurisdiction of the ten states.  It is also essential that customary law be viewed in the context of the constitution and that, like South Africa, harmonization with rights occurs at the Southern Sudan level.

The next consideration for Southern Sudan legal pluralism is establishing systems of personal, territorial, and subject matter jurisdiction within and across tribes and systems of law.  Figure 2 provides an organizational chart summary of the tri-level system. 

                               Customary            Intertribal                     State Statutory/Constitutional

Level                     (for each tribe)

 

                                     Tribal

National                    Supreme Council          Supreme Court                                         Supreme Court

                            

                                                           Special                                                       Appeals Court

State                                                   Appellate level           

                                                                                    Statutory

                                                                                                                Question

County                  Appellate level           Appellate level                                             District Court

  

Payam                 Customary court           1^st Court of

                                       First level                      instance              Constitutional

                                                                                  Remand   

Boma                   Clan and family

                                        disputes

 

Figure 2.

Personal Jurisdiction[8]

Personal jurisdiction would first be determined by tribal membership.  Customary courts for each tribe would be organized as they currently exist, along the family and clan level, with higher courts at the payam level.[9]  Payam-level courts would then appeal to a tribal appeals court.  A supreme court would take cases certiorari from the appeals level.  Other procedures and structures within each tribal court system would be determined individually.  Personal jurisdiction in the customary court system — perhaps the most simplified out of the pluralist system — would only be granted for members of the tribe.  Any cross-tribal dispute would be referred to a separate system.

A separate court system would exist for intertribal cases, utilizing dispute resolution mechanisms currently in place in multi-ethnic areas such as Juba.  Cross-jurisdictional courts currently exist at the payam level in Juba.  Chiefs from all the tribes in the payam sit in a panel of six to eight and adjudicate through consultation and compromise with one another.  Like other courts, these courts are open to the public and allow for complete transparency of the decision-making process by the chiefs.  Each chief for the concerned party/tribe advises on the appropriate tribal law.  A paramount chief serves as chief justice for the panel and facilitates the reaching of a compromise by the parties and tribal chiefs.  As is currently practiced, where there is no chief present for a party to the dispute, the case is postponed, and a chief from the tribe is called to adjudicate.  The efficiency of dispute resolution in the customary court overrides any inefficiency created by this practice. 

It is important that an intertribal court system contain these procedures of collaborative deliberation, particularly in a post-conflict society like Southern Sudan where wounds from intertribal conflicts are still being mended.  This type of system serves the following three issues: (1) in keeping with historical dispute resolution techniques, compromise is reached through consultation; (2) rifts between tribes are repaired through public airing of grievances in a process similar to truth and reconciliation commissions — a process extremely important to a still-fractured Southern Sudan; (3) situations such as that in Ghana are avoided as minority tribes are not subjected to the laws of other tribes.

Intertribal courts would convene at the same location as the payam-level tribal courts.  Much in the same way that they currently function in Juba, a panel of chiefs representing the tribes of the region would head each payam-level court.  In mono-ethnic areas courts would contain panels of judges from one tribe.  Panels receive all cases, intra- or intertribal.  Only chiefs from the same tribe adjudicate the intra-tribal cases while the entire panel adjudicates intertribal disputes.  The right of appeal is preserved in all cross-tribal disputes.  Cases are appealed to a special intertribal court at the county level.  This system of cross-tribal adjudication has the side effect, as observed in Juba, of increasing cross-tribal understanding.  Litigants and court observers (on most days a good portion of the community) are exposed to disputes from other tribes and to those tribes’ customary laws and systems for dispute resolution.

Personal jurisdiction exists under statutory courts in much the same way as in other legal systems: “minimum contacts” with the administrative area ensures that a court has the requisite authority over a person.  County-level courts would be the entry point for disputes based on statutory law. 

Territorial Jurisdiction[10]

Territorial jurisdiction applies to both statutory and customary courts based on similar procedures found in other legal systems.  Territorial jurisdiction has less significance at the customary court level because territory is not married to customary law.  As the Ghana experience illustrates, territorial jurisdiction and customary law is often a bad combination.  Traditional authorities from the accused tribe are present at the proceedings, and their customary law is applied no matter the location.  The only significance is determining in which payam the court will sit.  In other words, personal (tribal) jurisdiction is determined first, territorial jurisdiction second. 

Subject Matter Jurisdiction[11]

Subject matter jurisdiction is the most contentious jurisdictional issue between customary and statutory systems and will require an ongoing democratic discourse and legislative process.  Traditional statutory courts do not exist in Southern Sudan.  Only through society-wide consensus do they gain authority.  Currently there are many statutes that pre-date the Comprehensive Peace Agreement and Interim National Constitution of Sudan.  Most of these were enacted by the northern government and are enforced sporadically — more in the former garrison towns, less in the former SPLA strongholds.  A major task for the south, heading forward, is to draft and enact new legislation specifically for the south.  The Southern Sudan Legislative Assembly is performing valiantly, but barely treading water. 

One of the first tasks in the relationship between the customary and statutory systems is developing a process for harmonizing customary law with the ICSS and INC.  Harmonization needs to be a systematic process of evolution of customary law to abide by constitutional provisions, especially the bill of rights.  To begin, a system of removal and remand needs to be developed from customary to statutory and back.  Customary court cases that violate rights enshrined in the constitution should immediately be removed to a constitutional or statutory court.  The constitutional court will then rule on the constitutional issue alone and remand the case back to the customary court with guidance on how the judgment needs to change to comply with constitutional provisions.  The customary court will issue another ruling in compliance that then becomes incorporated into the jurisprudence of that customary law.  Appeals from this court would extend up to the supreme court.

In addition to the constitutional harmonization process, the limits of statutory law need to be established through a constitutional process similar to that of federalist systems.  Statutory law needs to be given an evolving national forum in which to establish itself, while recognizing that customary law still regulates individual behavior.  Ideally the Southern Sudan Constitution would outline where statutory law begins and customary law ends, preferably through language that allows for an evolving constitutional interpretation.  In this manner, statutory law would establish itself through a constitutional process that involves deliberation over the best legal system for individual issues.  This also allows for statutory law to slowly alter its national mandate as multilateral customary law approaches become less (or more) efficient. 

Once statutory laws are established in Southern Sudan, customary courts would be required to remove any case that involves a statutory law issue to the county statutory court.  This would operate similar to the federal and state court relationship seen in federalist systems such as in the United States.  Entry points to the statutory system would be at the county level and would extend up to state-level appeal courts and the supreme court.  The supreme court would be the ultimate arbiter on the line between customary and statutory law.

Conclusion

In order for this hybrid pluralist system to work, the Southern Sudan government has to provide concerted institutional support to the customary courts at all levels.  Currently, support from government revenue (including oil) and international donors is almost exclusively funneled to the barely functioning statutory system.  The customary courts are largely ignored, but operate regardless and without buildings, court recorders, training, or law enforcement staff.  Local and GoSS-level judiciaries need to recognize the importance of these courts to the justice sector and strengthen rather than erode their authority.  Police need to be employed to enforce customary judgments, and the chiefs need to be incorporated into professional training courses that address their place in the judiciary and how to handle the referral and remand procedures. 

The task for Southern Sudan to create a legal structure that incorporates customary law and traditional authorities is daunting.  The hybrid legal pluralist/tri-level system presented in this article is an integrated approach that creates appellate seams between complementary systems — a mirror, in many respects, of the legal system in federalist states.  In the end, however, it is up to southerners to determine for themselves how important customary law is and to develop society-wide norms that reflect the diversity and the rich cultural history of the region.

References

Adelman, Sammy. 1998. Constitutionalism, pluralism and democracy in Africa. Journal of Legal Pluralism 42: 73-88.

Benton, Lauren. 1994. Beyond legal pluralism: Towards a new approach to law in the informal sector. Social and Legal Studies 3(2): 223-242.

de Sousa Santos, Boaventura. 2006. The heterogeneous state and legal pluralism in Mozambique. Law & Society Review 40(1): 39-76.

Greenhouse, Carol J. 1998. Legal pluralism and cultural difference: What is the difference? A response to Professor Woodman. Journal of Legal Pluralism 42: 61-72.

Griffiths, Anne. 1998. Legal pluralism in Botswana: Women’s access to law. Journal of Legal Pluralism 42: 123-138.

Griffiths, John. 1986. What is legal pluralism? Journal of Legal Pluralism and Unofficial Law 24: 1-55.

International Rescue Committee/UNDP. 2006. International Rescue Committee/UNDP First Field Report on Customary Court Observations, 15 November.

McAuslan, Patrick. 2005. Legal pluralism as a policy option: Is it desirable? Is it doable? In CAPRi Policy Briefs: “Land rights for African development: From knowledge to action.” Edited by Esther Mwangi. Available online at: www.capri.cgiar.org/pdf/brief_land-04.pdf.

McWhinney, Edward. 1962. Comparative federalism: States’ rights and national power. Toronto: University of Toronto Press.

Messick, Richard E. 1999. Judicial reform and economic development: A survey of the issues. The World Bank Research Observer 14(1): 117-136.

Oomen, Barbara. 1999. Group rights in post-apartheid South Africa: The case of the traditional leaders. Journal of Legal Pluralism 44: 73-103.

Prillaman, William. 2000. The judiciary and democratic decay in Latin America: Declining confidence in the rule of law. Westport, CT: Praeger.

Rajenthran, Arumugan. 2002. Malaysia: An overview of the legal framework for foreign direct investment. Economics and Finance, No. 5. Singapore: Institute of Southeast Asian Studies.

Schmid, Ulrike. 2001. Legal pluralism as a source of conflict in multi-ethnic societies: The case of Ghana. Journal of Legal Pluralism 46: 1-48.

Southern Sudan. 2005. Interim Constitution of Southern Sudan. Available online at www.cushcommunity.org/constitution.pdf.

Tan, P.-L. 1997. Malaysia. In Asian legal systems: Law, society and pluralism in East Asia. Sydney: Butterworths.

United Nations. 2004. Chapter 3: Building multicultural democracies. In “Human Development Report 2004.”

UNDP Southern Sudan. 2006. Draft 2006 UNDP/UNMIS Rule of Law Community Perception Survey Report for Southern Sudan, 28 July (available from the UNDP Southern Sudan office).

 

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[1] Southern Sudan has undergone two separate civil wars: the Anyanya War from 1955 to 1972; and the second civil war between the Sudan People’s Liberation Army and Khartoum government from 1982 to 2005.  The 1972 Addis Ababa Agreement provided a respite of ten years between the conflicts.

[2] Wealth sharing under the Comprehensive Peace Agreement outlines the governmental mechanisms for sharing the vast petroleum reserves located on the border between northern and southern Sudan.

[3] The term “legal pluralism” is itself an item for debate.  I address the different forms and interpretations of legal pluralism later in this article.  For the time being, legal pluralism is used to refer to a legal system that recognizes different legal orders throughout society with bases in ethnic and tribal traditions.

[4] Individual states had widely different laws on as varying subjects such as slavery, land, and inheritance.  The federalist system of the United States gave wide breadth to states to develop their own laws — a power that has slowly decreased over the past two-hundred years.  For more discussion see generally McWhinney 1962, Chapter 2.

[5] Malaysia has experienced tremendous economic growth since the 1980s, spurred primarily by international investment, despite having separate statutory and Sha’ria legal systems controlled by a weak form of federalism.  In addition, while Sha’ria law has many effects on business and investment, in Malaysia it only applies to the majority Muslim population.  For more discussion see generally Tan 1997, Rajenthran 2002.

[6] Chiefs were referred to as régulos and administered subdivisions of rural circunscriçoes or localities.

[7] As reported by Ex Parte Chairperson of the Constitutional Assembly: in re certification of the amended text of the Constitution of the Republic of South Africa, 1996, 1997 (2) SA 97 CC, para [197] at 834F-GIH.

[8] Personal jurisdiction refers to the jurisdiction of a court over the persons brought before the court and must be based upon some type of authority of the court over that person.  In US jurisprudence a person’s “minimum contacts” with the state determines whether that state’s courts have jurisdiction.  In the Southern Sudan case, tribal membership forms the basis of a loose definition of personal jurisdiction.

[9] The payam level is one administrative level below county and one above the boma level.

[10] Territorial jurisdiction refers to the jurisdiction of a court over a person/legal entity because the actions at issue took place within the territorial boundaries of the court’s jurisdiction.

[11] Subject matter jurisdiction refers to a court’s jurisdiction over the law at issue in a dispute.  In constitutional democracies courts have varied jurisdiction dependent upon the legislation and the legal framework.