ABSTRACT
Francis Deng (FD): Tilar, it is a great pleasure to talk to you about some of these issues of current importance to our people in Southern Sudan. As I said to you earlier, I am interested in looking at the status of customary law in Sudan today, particularly in Southern Sudan. As you may know, I have been interested in the study of customary law from the beginning of my legal studies, but it has been quite a while since I last looked at the situation in our country. I would like to ask you a number of questions. We can then go to some philosophical issues, and move on to the status of customary law today, and the prospects for the future. It is my belief that every society has a system of values and cultural norms that shape its approach to law. It is a question of law being a promoter of fundamental values in a society, regulating relations on the basis of those values. Before we get on to some of the specifics about the legal system and customary law, could you first introduce yourself in terms of your background, your studies, and your involvement with the legal profession? Then I would like to ask you what the fundamental values or cultural norms are that condition law in our traditional society, what values law is supposed to promote, and how they determine the law, whether we are talking about the substance of the law or the procedures. Tilar Deng (TD): Well, Dr. Francis, it is also a pleasure to be talking with
you. We have a very long relationship, since I was a student in the US in 1978. And we have continued that relationship in various ways. I appreciate having you here since our last meeting in Addis Ababa. Focusing now on the area of the customary law, I will start by asking, why it is called customary law. It is a law that is based on culture, and there are values that condition the people to respect it. But before I get into that, let me say that people are trying to codify customary law, and my view has always been consistent, that once you codify customary law, it ceases to be customary law; it becomes statutory. It cannot expand as the people go along. Our people, for generations and generations, had their own values, and these values are what form their way of behavior. There are constraints on what you can do and what you cannot do. They have lived this way for a long time. Whether it is marriages, divorce cases, or tort cases, they are based on their own customs and values. Those customs and values have shaped their outlook, the way they
perceive life, the way they perceive their relationships, whether as a family, as a clan, or as a tribe. It is a very strong component of our social systems. And our systems are based on our norms and values. That is what made us to exist, even our name, as a distinct people. If we did not have those laws and values, we would have been assimilated for a long time. FD: Thank you. By way of some jurisprudential background, let me say
that I went to Yale Law School, where law according to the theory of Law, Science and Policy was seen as based on certain overriding goals that shape the way society functions, from a legal point of view. What they considered the main value, the overriding value, was human dignity, defined as the broadest shaping and sharing of values. In my dissertation, I emphasized a number of factors, including koc e nhom, a notion of continuity through the family line, what you might call immortalization of every individual through a lineage, as a major goal that shapes the distribution of values, such as power, wealth, respect, and others. The other is the normative principle of cieng, how people relate to one another, and the norms implicit in the concept of cieng. Then there is the notion of dheeng, which is a concept of human dignity, whether that of the individual, or of the group. These principles shape the rules relating to marriage, power and authority, respect, and wealth. Will you agree or will you add something else? TD: I read what you wrote. It was very similar to what I developed. I read
parts of your thesis on the issue of cieng and dheeng. I didn’t have any disagreement with them. But let me make a few remarks. Cieng, as you put it, is related to how an individual relates to other people. As we sit here, we are relating to one another. This is cieng. Cieng is the way we live together as individuals, the way we respect one another. What makes good cieng is that people are staying together, are respecting one another and deferring to one another in expressing their views. You know, of course, that there are a variety of meanings to cieng. Dheeng too has a variety of meanings. It can refer to the physical appearance of a person, that he is handsome or beautiful. You can say, “He is adheng,” in the physical sense God created him. But adheng also goes further, and relates to a person’s conduct; that he is generous; respects other people’s views; advises people; and is a person on whom you can rely. That is adheng, one on whom people can rely. In times of difficulty, people can depend on him for support. I forgot the third concept you said … FD: Koc e nhom, standing the head of a dead person upright. TD: That relates to having your name continue after your death. FD: It’s a form of immortality. TD: Yes, which a lot of Western people do not understand. Why should a
dead person have dheeng privileges like a living person? The point here is that in our own culture, you are physically dead, but you still exist in the society. Although you are gone, people say, “His soul is still with us. We must marry a wife for him.” Relatives have to marry a wife for him, and the children will be named after him. So, it has that element that there is a blur relationship between the living and the dead. And there is also the element that his name
can never be lost, because we believe in the fact that your name can only be lost if you don’t have children alive. FD: There used to be a strong bias against customary law in the system.
When I was at Khartoum University, customary law was not taught. I did fieldwork on customary law on my own, supported by my professors, who guided my research at home. My Southern colleagues were discouraged even by their chiefs and by the attitude of the officials in the South. In your view, how is customary law being perceived today by the authorities? TD: The point is that when this movement, the SPLM/A, started, it started
as a military movement, and there were very scanty provisions in the SPLM penal code of 1983. So, customary law was not considered as a vital part of the control systems. The law was purely military. Until I’m speaking today, the customary part of our law is still being neglected. That’s why you see now a lot of breakdown of law and order. The traditional leaders are no longer in control. And since people are armed, when you kill with a foreign weapon, it is considered that the ghost of the deceased will not haunt you, because there was no proximity between you and the individual you killed. You did not kill with a traditional weapon, which requires a face-to-face confrontation. That means that the intervention of firearms, and of Western culture in general, is now beginning to erode our cultural and moral values. So, if I kill someone now with an AK-47, I will not go through any of the traditional rituals any longer. Traditionally, when you killed a person, you would go and stand outside, whether in the homestead or in the cattle camp, and you would shout out loud, calling on the people to hear you. People would come to you and you would make a public confession and say, “This is what I have done.” Immediately a bull would be brought out to be slaughtered. You would be cleansed ritually before you were allowed to associate with the people. This doesn’t exist any longer. These are the difficulties we need to correct. If
we don’t correct them, then the element of law and order, based on our cultural norms, values, and customs, will disappear. And if we don’t apply our customary law, which is very rich, even in our contest over the land issues with the North, we will be weakened. In our traditional law, land is owned communally. It is the community that leases the land to the state, rather than the state leasing or giving land to the individual. People have not looked into this matter carefully. The implications of undermining the customary law are serious. FD: That’s very interesting. I have two more questions. One, if we assume
that we should place emphasis on customary law, and we know that there are foreign interests that are looking at investing in our land today, but for whom predictable entitlement to land is a prerequisite, how are we going to reconcile community ownership with attracting investment? I can understand that following the traditional land tenure principles is a way of also protecting our people, our land, from the encroachment of outsiders who would overwhelm them, but how do we balance these two?
