ABSTRACT
Francis Deng (FD): This is an interview with Dr. Peter Nyot Kok in New Site, Kapoeta County, Southern Sudan, February 8, 2005. Peter, as I mentioned to you the other day, I am interested in revisiting this whole area of customary law in Sudan. It has been quite a long time since I worked on customary law. On the other hand, Sudan seems to have been in a situation of flux, where one doesn’t really know what the changes in the legal system are, and what the place of customary law is. I’d like us to sort of range and talk about various aspects of the legal system, with special reference to customary law. Let me first ask a rather philosophical question about the kinds of values that customary law is supposed to promote. You and I have been to Yale Law School, and we know that according to
the theory of law propounded by the late professors Harold Lasswell and Myres McDougall, law is supposed to regulate processes in which people seek values, using resources, through institutions, with certain outcomes and effects. We also know that different legal systems have their own normative frameworks, determined by their fundamental values. I think I am right in saying that in the evolution of Western law, property was the basis on which the allocation of rights and responsibilities were based. Accordingly, the process of reform was premised on property relations. We know that in other countries, Sudan today being an example, religion is supposed to be the point of entry, and everything else should then relate to that. In the history of jurisprudence, we have seen how different schools of
thought emphasized different sources for law. Natural law advocates emphasized the divine origin of law. Others adopted the historical approach that saw law as a reflection of the spirit of the people of a given society. And yet others emphasized the importance of the courts. More recently, the critical school emphasized social justice as the premise of law. What would you say are the fundamental values that the customary laws of the peoples of the Southern Sudan, as you know them, are based upon? Peter Nyot (PN): Thank you very much Francis. I became interested in the
customary law of the Dinka effective from 1999, after I became actively involved in the Sudan Peoples Liberation Movement (SPLM). It was an interest reinforced by the choice which I made to come and practice law in
Southern Sudan. I found very quickly that you can’t practice law in a meaningful way without an awareness of what the customary law is. So, I sort of got into it from the angle of legal practice. I deferred defining what law was until the time I felt I had sufficiently immersed myself into customary law practice. In short, I will say that I can identify three main sources of customary law. Property is in place all right. I will still put it as a number one source of the customary law of the Dinka. I haven’t really determined what I should put second between religion and what I will call the way of life. The two are not the same. On reflection, I will put the way of life as second to property. FD: What do you mean by the way of life? PN: Way of life is that part of the culture that is not predetermined by
religion. It is the way people do things, such as the way people get married, that is not prescribed by religion; the way people bring up their children, that is not prescribed by religion; the way people bury their dead, that is not prescribed by religion. Those kinds of things. I distinguish these from those prescriptions laid down by religion. For instance, Dinka religion says that you should mourn your mother for four days, and that you should slaughter a cow on the death of your mother. This is the sort of thing I regard as having a religious dimension. Way of life is determined basically by what people have observed to be the way according to which their forefathers and foremothers had conducted their approaches to life; how life has been lived. Take cultivation, for example, there is no religious prescription for cultivating and for storing crops. It is what has been seen to work. I distinguish between those two categories. But I find it difficult to determine which one should get the priority over the other, between religion and the way of life. Then there is the other category, which is the massive and pervasive influ-
ence of received law. As you know, English common law has the greatest influence; to a limited extent, Islamic law has also exerted some influences. These sources of law have had an influence over our customary jurisprudence. With the increasing coming into the practice of law by different lawyers, law itself has had to be interpreted according to the principles of interpretation in English common law. This too is not an insignificant source of influence. These are what I will summarize as the basic guiding principles of customary law. FD: Although we’ll come back to the influence of received law, it is inter-
esting that you say that through interpretation you can transform the customary legal system. Will you give an example of the kinds of principles of interpretation that are transforming customary law? PN: The area of commercial relations is an example. We didn’t have a rule
of customary law which required contracts over US$20 to be in writing. Due to the influence of received law, that is common law, contracts above fifty Sudanese pounds now have to be in writing. Sometimes they are written in Dinka. Contracts touching on land laws also have to be conveyed in writing. Traditionally, it used to suffice to have witnesses determine how much money
was spent. On that basis, you could have the contract enforced by the court. But now, it has to be written to confirm the contract. If people don’t know how to write, they have to look for somebody who knows how to write. FD: It is interesting you identified those areas, because as you will recall,
when I did my doctoral dissertation at Yale Law School, which I published as my first book, Tradition and Modernization: A Challenge for Law Among the Dinka of the Sudan in 1971, I attributed the logic of Dinka customary law, whether you are talking about substantive or procedural law, to certain basic values. I identified as number one, the importance of procreation, which Professor Harold Lasswell called the myth of permanent identity and influence. That overriding goal, or modality, as Lasswell preferred to call it, determines the way resources are distributed or shared, and the hierarchy of authority, starting with God, other deities, the ancestors, and coming down to the parents. The next overriding goal I identified was the notion of unity and harmony, subsumed in the Dinka concept called cieng, which advocates the ideals of human relations as a means of collectively pursuing lineage or ancestral values. Solidarity of the lineage required that members be united behind the clan, even though they do so as individuals. These values are then projected onto the community in its varying formation. A third and related value was the dignity of the human being, both as an individual and as a member of the community. This value is embodied in the concept of dheeng. Respect, atheek, is an aspect of dheeng. I always give the example of how in Western jurisprudence the dead person has no reputation and therefore cannot be defamed, whereas, among the Dinka, the reputation of a dead person is more important than that of the living. Will these be representative ways of looking at the system of values behind the law or are we being selective of what I consider important? PN: I think we are being broader than what I consider to be the Dinka way
of life and religion. FD: For example, could cieng be considered a way of life? PN: Yes, cieng will be a way of life. In fact, cieng came to mind immedi-
ately when I was attributing the sources of the legal system to religious beliefs and the way of life. I failed to mention cieng because the imposition of Sharia has affected our thinking. I was partly trying to make a distinction between those aspects of law that had sources in prescribed religions, such as the Islamic Sharia, and those, again drawing from the Islamic sources, that are known as sunna, or the practices of the people. FD: So, in a sense, we are really interacting with the impact of Sharia and
Islam in general? PN: That sort of thing. I was reacting to that. FD: That makes sense. I wanted us to begin with the logic of any one given
legal system, and then move to the pluralistic situation of the modern world, specifically in Sudan, where different systems are brought together and interacting. This includes the traditional system, with its logic, the received English common law system, with its logic, and now Sharia, or Islamic law,
with its logic. Their coexistence and interaction is another area that I would like us to consider, particularly given the fact that you have not only practiced inside the country, but have taught law also, and are now based in Southern Sudan. The interaction of these different systems in the modern context is an important one. But before we go to that, let us take the logic of one major principle, or
some major principles. For instance, among the Ngok Dinka, and I believe it is widely shared among other Dinka groups, the value of compensation for homicide, and the value of bride wealth for marriage, tend to be correlated, because, in a sense, the compensation for homicide is used in marriage to beget children for the dead person, to continue his name. Isn’t this a case of correlation between the value of the human being and the need for compensation to afford bride wealth to marry a wife for the purpose of procreation to remember the name of the dead man, or does the compensation come first and then influence the bride wealth? PN: I find that question very interesting because, if you are looking to
adopt the right approach to find out where you are at, and you look at compensation among, say, the Bor Dinka, theirs is a culture that has sought to lower the bride wealth or bride price to reasonable levels, while compensation for homicide has remained consistent. With a different logic entirely, the idea is to make marriage affordable. But then you come to our culture in the eastern part of Dinkaland, and you find that there is a correlation between the dia, or blood wealth, and the bride wealth. You therefore find that there might be different logics in different subsystems of the culture. In the Bor Dinka situation, maybe economics is a major consideration, and the belief that marriage should be the right of every human being, and should be made affordable. By the same token, somebody who has died should be adequately compensated so that he could have a wife married for him. So, I think that the Dinka have different considerations governing the size of the bride wealth and the size of compensation for homicide. In Rumbek and Yirol, the whole consideration of compensation has been subjected to deliberate policy making by the chiefs. This was when Wanh-Alel came in. Wanh-Alel was a famous meeting of the chiefs, to which Deng Majok [Paramount Chief of the Ngok Dinka, the interviewer’s father] was invited. He apologized that he could not come. It was said that he had very much wanted to attend, but for a number of reasons could not. I think he had to go for a meeting in Khartoum. That Deng Majok had not come was the major observation in the deliberations. The idea was to agree on a common law among the Dinka. FD: Where is Wanh-Alel? PN: In Tonj. FD: So, in a sense, this was part of a reform process? PN: Yes, it was a reform process. And the provisions are interesting to look
at, because they go a bit beyond the traditional law that was existing up to that point. FD: What do the Bor pay for compensation for homicide?
