Introduction to Part Three

As part of my preparation for this study, I conducted extensive interviews – or, as I will prefer to consider them, conversations – with leading policy makers, thinkers, and actors in the justice system in Sudan and in particular Southern Sudan. A leadership training workshop organized by the Sudan People’s Liberation Movement and Army (SPLM/A) in collaboration with the university of South Africa, at New Site, Kapeota County, in Equatoria in February 2005, at which I served as a facilitator, provided a unique opportunity to discuss the issues raised in this study. I then proceeded to Rumbek in Bahr el Ghazal, the interim capital of the Government of Southern Sudan, where I held conversations with more judges and lawyers. I later took advantage of being in Khartoum in August 2005 to interview more judges and lawyers from both the North and the South, including the minister of justice of the Government of National Unity. I was struck by the fact that the Southerners I spoke with all seemed to

reflect a remarkable degree of agreement on the main issues raised. While these issues ranged considerably, the conversations were structured around a number of principal themes. The starting point was a discussion of the sources of customary law, with a focus on the fundamental cultural values or norms on which the legal system was based and which it intended to promote. Within that broad normative framework, we discussed the substantive content of customary law, its rules of procedure, and the role of traditional leaders. Since most of customary law relates to personal affairs, in particular family matters, gender, and age issues, specifically the status of women and children figured prominently. Much of the emphasis was placed on the prejudices of the Arab Islamic-

dominated national legal system against African customary law and how promoting customary law in the South was an essential part of the liberation struggle. With less tension, comparisons with Western legal thought and practice were made to underscore the positive aspects of customary law that have tended to be viewed negatively by applying Western criteria. In particular, much emphasis was placed on the contrast between the Western adversarial system, in which the judge or the court plays the role of an umpire, and the customary law approach of mediation and conciliation, with

the judge or court playing an active role in searching for a point of consensus and reconciliation. While even in this comparative context, customary law is valued as an integral aspect of a highly prized identity, which the South had fought to protect and preserve, the comparative debate with the West is approached more creatively and constructively than the virtually zero-sum confrontation with the Arab-Islamic North and its agenda for the application of Sharia Islamic Law. It is clear from all accounts that customary law now enjoys a great deal of

emotional and intellectual association with the struggle the people of the South have waged for half a century. And the aspiration of the leadership is that it should figure in all aspects of nation-building: constitutionalism, governance and, of course, the administration of justice. In its optimal vision, this will elevate customary law to a normative framework whose postulates and stipulations are all-embracing, as guides to the political, social, economic, and cultural processes of nation-building. This is an enormous challenge whose dimensions and long-term implications will still have to be thought through and worked out. The vision is clearly ambitious, if not yet well defined. Judging from the

experiences of Sudan and other African countries, customary law is still faced with the prospects of being relegated to a subordinate role in the context of legal pluralism that still favors the received English common law for the secularists and Sharia for the Islamists. And yet, in their approach to the challenges before them, the leaders of the legal profession interviewed clearly see the preservation, promotion, and development of customary law as central to the development of Southern Sudan. One of the issues on which those interviewed came across as sensitive and

somewhat cross-culturally defensive is the potential conflict between customary law and international human rights and humanitarian law. While some acknowledged that there were areas in which customary law will need to be reformed, such as those relating to gender inequality, the general tendency was to see customary law and tradition in general and the value system they represented as conforming to human rights and humanitarian standards. In their view, even accepting international standards as universal norms, the best way to promote them among the people in Southern Sudan is to present them as an embodiment of their own traditional values and not as an imposition from the outside. Meanwhile, issues pertaining to the preservation and promotion of cus-

tomary laws ranged from recording them, analyzing them, harmonizing them to address the problems of diversity, restating them with a view to reform, and eventually codifying them to guide the courts in their administration of justice. While there was some difference of opinion on whether customary law should be codified or not, there was virtual unanimity on the need to ascertain and record Southern customary laws comprehensively, so that no group will feel left out. Coming out with a common code that will either be unified

or will still accommodate a degree of diversity is a challenge still to be addressed. Clearly, there is still a gap between this positive outlook and the enthu-

siasm with which the future of customary law is viewed, on the one hand, and the need for a clear articulation and practical plans for achieving what at present should be seen as broad aspirations. Many questions still remain to be answered. How much can the laws of such diverse groups be fully harmonized to form a unified system of law capable of general application among increasingly interactive and pluralistic communities? To what extent is customary law capable of addressing the needs of the complex modern society beyond the cohesiveness of any homogeneous ethnic group? Is customary law capable of being adapted and modernized to deal with the emerging challenges of a modern state? To what extent is reform with a view to addressing issues of gender inequality and human rights protection in general possible without challenging and undermining the integrity of customary law? What is meant by making customary law a source of legislation generally? Does this imply legislation in areas in which customary law has competence or is it envisaged to be reinterpreted and applied to areas outside the traditional scope of application? What does making use of customary law and traditional cultures in general in the areas of constitutionalism and governance mean and how in practical terms can that be accomplished? And how can customary law be synthesized with elements of other laws, such as received Western law and relevant Islamic principles, to produce a legal system enriched rather than threatened and undermined by these outside sources? These are only some of the questions that need to be raised and addressed

in a practical way. And while the responsibility for addressing them lies mostly with the national leadership, those interviewed see a major, if complementary, role for international partners by providing both funding and expertise. Whatever their ultimate implications in practical terms, these conversations

give a remarkable insight into the thinking of individuals who will be among the leaders whom history has placed at the frontiers of revolutionary leadership, challenged to steer the process of reconstruction and nation-building in the South. That there is such a degree of consensus among them is an indication of how unified Southern leadership is on these challenges. If, on the other hand, they are a self-selected sample who might be at variance with others, then other perspectives not reflected here will have to be ascertained and comparatively reflected too. Then the search for an even wider common ground will be necessary. In my view, what is critically important is to generate debate on the issues involved – and as the South moves toward establishing a Government of their own, for the first time since their country became exposed to outside rule, the timing could not be more opportune. The conversations with prominent legal professionals included in this volume are almost certain to add to the debate on the role of customary law and

contribute constructively to addressing the legal and broader issues facing the Government of Southern Sudan. The interviews with the Minister of Justice and Northern lawyers differ

significantly from those with Southerners, mostly because they focus on the legal situation at the national level, where Sharia has been dominant. But even here, as one might expect, the views of the Minister differed from those of the lawyers in that he represents the official view, and as he has contributed significantly to the development of the system he naturally defends it, characterizing it as more reflective of common law principles than of Sharia, despite perceptions to the contrary. The lawyers, on the other hand, see the legal situation and the interplay of religious and secular laws as “confused,” “uncertain,” and “chaotic,” and see the post-conflict challenges of the CPA as the urgent need to address the crisis. In the discussion with the Northerners, customary law hardly figured, partly because they did not seem to know much about it. Indeed, with the abolition of the Native Administration in the North by Nimeiri and the repeal of the Chiefs’ Courts Ordinance of 1931 and the Native Courts Ordinance of 1932, and their replacement by the People’s Local Courts Act of 1977, they thought customary law had been abandoned, at least in the North. The truth, of course, is that it is being administered by the People’s Local Courts, which function in much the same way as their predecessors.