ABSTRACT
Francis Deng (FD): It is a great pleasure to be meeting with you, Deputy Chief Justice Bullen. I would like you to say a word of self-introduction, including your legal background and what you are doing now. I will then have a few questions to ask you. Bullen Pancol Awal (BP): Thank you very much Dr. Francis. I am glad to
be with you personally, as a very distinguished Sudanese. It is a pleasure to have this interview with you. My name is Bullen Pancol Awal. I am the Deputy Chief Justice of the New Sudan. My educational background is simple. I graduated from Khartoum University in 1975. During the struggle, I had a chance of going to Germany. I became a Fellow of Max Plank Institute for International Law. I pursued postgraduate work in constitutional law and international law at Heidelberg University. So far, that is the background to my education. If you have anything to ask me, please; you are welcome. FD: Thank you very much. That is very kind of you. Now, as I mentioned
to you earlier, my focus is on the future of customary law in Sudan, or the place of customary law and its future in the country, with particular focus on Southern Sudan. My first question is of a somewhat philosophical nature. In studying law at Yale Law School in the United States, with the New Haven school of jurisprudence, called Law, Science and Policy, the approach was that law regulates to a process in which people are seeking values using resources, through institutions, with certain results, outcomes, and effects. In that context, human dignity, defined as the broadest shaping and sharing of values, was postulated as the overriding goal. I personally saw that in our own society, the overriding values were continuing one’s identity and influence, even after death, a kind of immortality through the lineage, ideal human relations reflected in the concept of cieng, people living together in unity and harmony, and the dignity of every individual and group, reflected in the principles of dheeng. I will be interested to hear your own views of what are the main values our people consider important in shaping their legal framework, whether we are talking about substance or procedures. And you can agree or disagree with the things I have just said. BP: I personally agree with your views as expressed in some of your various
writings. I cannot claim to have understood most of your writings, but I have
attempted to read through some of your writings. Customary law, in my view, is a foundation of any society. At certain points in time, the Northern Sudanese have sometimes referred to us as people without culture, without traditions, and so on. Every society has its own norms by which it lives. But we, the people of South Sudan, have never organized our life at the national level, as people with their own way of behaving, their own way of doing things, their own ways of approaching life. Therefore, at this particular point, the time has come to elevate the values of our society, codify them, and start a proper work. I believe customary law will be the founding law for our society, just as it was in the history of English law. When we talk of precedent in English law, it actually emanates from customs. Therefore, the time has come to develop our customary law. FD: In the past, we found that in Sudan, at the level of the government,
even in the Faculty of Law, there was a discouragement of customary law. In fact, when I did my fieldwork, I was the only student who was able to do research in the tribe. My colleagues, Gordon Abyei and Natale Olwak Akolawin, had difficulty with the chiefs. Even in my own case, rumors were saying that I was coming to study customary law in order to prepare me to become the appellate authority, over my father, the paramount chief. And at one point, my father himself asked me, “Is this recording of customary law only in this tribe or is it all over the Sudan?” I decided that I will not sit in court anymore, that I will just conduct my research at home, and interview the chiefs at home. What is the general climate at the national level today? How is customary law being seen by the authorities? Then we will focus on the South. BP: In the past, anything about customary law used to be second-graded; it
used to be something hateful to the government. It was, in fact, discouraged. The other aspect was that the history of Sudan was not taught in most Southern schools. If anything, it was taught in terms of how we, the Sudanese, were related to the Arab world, Islam, and related associations. As we speak now, there is an overriding consensus to start developing our own laws, in respect to our customs. The question really is, how do we do that, because we are many nationalities in the Southern Sudan, fifty to sixty in the region. How you harmonize all these is actually the problem. FD: In the process of developing customary law, we now have a national
legal framework, based very much on Anglo-American, or should we say, English common law, whether it is through precedents or through statutes. How do we see the way this received law will be harmonized with customary law, considering that many people see customary law as reflecting a tradition that is fast dying, and especially given the way our society has been shattered, with people spread all over the world, where other systems are prevailing? BP: In the past, most laws in Sudan used to provide for Sharia; that will be
one of the main sources for law in Sudan. Another source which was referred to is custom, but in a very faint way. At present, since the start of the rebellion in Southern Sudan, customary law has been emphasized by the SPLM,
that any statute passed by the SPLM must have a reflection of customary law before that statute is applied. This is a big revolution. From that departure point, they moved forward and took strides. I think it is now a national strategy to develop customary law as the main source of legislation in Southern Sudan. FD: That being the case, what will you suggest should be the process by
which we can develop customary law? As you said, we have so many nationalities; some of the laws of these groups have been recorded to some degree, although not in a comprehensive way. The process of recording, analyzing, making comparative analysis then synthesizing, and coming out with commonalities or some fundamentals that can provide a basis for a restatement and reform of the law, will seem to be a logical one, but one that is often time consuming. Do you have a strategy, or does the legal profession have ideas, that will be useful in strategizing on how to move to make customary law more useful? BP: In fact, if I am not wrong, one of the strategies is that already devel-
oped by you. I heard from some people that you were interested in committees to embark on the harmonization of customary law. That is one aspect. An example of what can be done is found in Uganda, where the tribes of southern Uganda, the Buganda, the Musoga, the Bunyoro, all these tribes, started a process between 1969 and 1970, and organized the customs of these major tribes in southern Uganda. When I last visited Uganda in 1998, I found that a language had developed in some areas; some aspects of the law had been developed. So, I think this process of organization will depend on the proximity of tribes. There are tribes with similar ways of doing things, similar behavior patterns, similar approaches on matters of custom. You could group these tribes together, and then find other tribes with other ways of doing things, and come up with a final commonality, and try to harmonize these tribes into one legal regime. FD: You said that the tribes of Bahr el Ghazal, through a conference at
Wanh-Alel, collected laws and suggested certain directions for reform. Is this document available? And is it being used, or was this an event of one time that needs to be revived and developed? BP: That document is very much alive. We even, I suspect, have copies in
the judiciary offices. That document is being used in Bahr el Ghazal as a source of reference. It has been improved by Justice John Wuol Makec, who made commentaries on the document. And this document, I believe, is a major contribution as far as the law of the Dinka of Bahr el Ghazal is concerned, and of course, there is your own work. These three, the work of John Wuol, your own work, and the work of Wanh-Alel, put together, can bring something tangible to Bahr el Ghazal. FD: Are there concrete areas in which [international partners] can be of
help in what’s going on? Will this be in the collection of materials or recordings? Will it be better to organize meetings on specific areas of customary law? What ideas will you suggest for their assistance?
