ABSTRACT
Francis Deng (FD): Again, thank you very much for this interview. As you probably know, I used to be interested in customary law, and although I have drifted from law into other areas, the issue of the role of customary law in our new situation has been raised. Perhaps because of my earlier book, Tradition and Modernization: A Challenge for Law Among the Dinka, the US Institute of Peace asked me to revisit the role of customary law in Southern Sudan today. That’s what we’ll talk about. I’ll ask a few questions, but I really want you to inform our conversation from your own experiences rather than depend too much on the intelligence of my questions, or how informed they are. Could you, as a first step, just say very briefly your background with the practice of law in Sudan, and what you are doing now, and then we’ll continue. Paul Mayom Akec (PM): Yes, I am Paul Mayom Akec, a lawyer by
training, a graduate of the School of Law, Khartoum University in early 1981. I have served in some civil service as assistant legal counsel in 1981 with the Regional Government of Southern Sudan then. Later on, in 1982, I went to the Sudanese judiciary, after having satisfied the bar requirement, and continued to serve as a magistrate and a District Judge until 1985, when it became necessary for me as a person, like others, to join the liberation struggle. I have continued in the liberation struggle to this date. In the course of the liberation struggle, of course, options were very few. One had to do what would promote the interest of the liberation process in that particular situation. So, at times, we served as soldiers, as administrators, as politicians, and all those sorts of responsibilities that the Movement required of one to make a contribution. This briefly has been the state of affairs for the last twenty years that one has been in the Movement. But it is something that I love to do because I really needed to participate in the liberation struggle of our people. FD: Are you now in the SPLM judicial system? PM: Yes, I am currently the president of the Equatorian circuit. We have
five circuits, one for Equatoria, which is divided into two, one for Bahr el Ghazal, which is also divided into two, and also comprises some parts of Upper Nile, then there is one in the rest of Northern Upper Nile, and one
each in the Nuba Mountains and Southern Blue Nile, making five circuits. However, these judicial circuits have been made to fall under one senior judge, for want of judges. So, I preside over circuit 3 and 4, which comprise Western and Eastern Equatoria. By virtue of that position, I am Chief Judge for the Equatoria Region at present. Having said that, for the last three years, I have been involved in the process of restructuring the system. FD: Thank you. John Luk (JL): My name is John Luk. I am also a graduate of law from
the University of Khartoum, 1977. Prior to that, I worked briefly as a local government officer in Bahr el Ghazal, specifically in Yirol. I then went to the university after a year out. On graduation, I went and worked for the Southern Regional Ministry of Legal Affairs, as a legal counsel, until I went for postgraduate studies in the United Kingdom to do a Masters degree in law at London University. I finished in 1983, coinciding with the outbreak of the war in the South, so that I couldn’t go back to Sudan. Of course, the Southern Regional Government by then was dissolved. The South was broken into three regions and we were all transferred back to the Attorney General’s Chambers. I couldn’t go to Khartoum, as I joined the struggle. For some time, I was in London as the spokesperson for the SPLM/SPLA until 1988-89. I then came to the field, to the front, trained, and was deployed in Central Upper Nile. After working in some other areas, I was deployed as a civil military officer in charge of judicial affairs also. I was a Judicial Officer for Central Upper Nile, until 1991, when there was a split in the SPLM. I then went back to London, and later came back again to the field, and became Secretary of Information and the Official Spokesman of the SPLM/SPLA. Currently, I am participating in different capacities. I have a center called
the Center for Documentation, which I run there in the United Kingdom. I try to follow events in the South and document, or get documents, and keep them as archives. I am involved with the Civil Society Organization, training in advocacy issues of human rights, women empowerment, paralegal training, for the NGOs, helping them with their constituent documents, and so on. That is where I am. I have also been a member of the negotiating team of the SPLM until peace was signed. We don’t know what is next. FD: Thank you very much. I want to begin with an approach which may
reflect my own bias, but please feel free to come in with your own perspectives. As a point of entry, it’s my belief that every society has its own fundamental principles and values that determine the logic of its legal system: what the rules are, who gets what out of the system, what procedures they follow. In some societies, there is the moral code, attributed to natural law, descending from divine sources. In other societies, the logic of the system is based upon property as the most important thing. For instance, in the Western system, it is known that property was the basis for determining status and much of the distributional principles. Some schools of thought take the historical approach to law. The so-called realists emphasize the role of the
courts, while the sociological school considers a whole lot of things in the social context. In my first work, I looked at our Nilotic legal system as premised on the
fundamental principle of continuity through the lineage, a principle of biological and social immortality, to continue life hereafter, through the family one leaves behind as one joins the chain of ancestors after death. Every individual is vitally important, but as part of a chain in communal solidarity. The solidarity of the clan, which emphasizes the values of unity and harmony, is subsumed under the Dinka concept of cieng. The notion of individual and collective dignity and respect becomes very central to being remembered. In the Western legal system, it is said that there is no reputation for a dead person. So, you cannot defame a dead person. With us, defaming the dead is even worse than defaming a living person. I say all this in order to ask you, in your knowledge of the legal system of traditional law, what you consider to be the fundamental principles or values that determine the substance of the law and procedure in customary law. PM: I will start from the premise that where I come from, being a Dinka
Agar, the people start to point a finger when talking about something that is criminal or a civil wrong. They start to say, kerac, it’s bad, whether a civil wrong or a criminal act; something that is not desired to happen; something that does not promote the harmony or the coexistence of the people, either as a family or as members of a clan or as a community that is living together; something that is evil; something that should not happen to interrupt good relations, the pleasurable enjoyment of human existence or the sharing of whatever is good in the life of the people. This to me is what I regard as the basis of law where I come from. Kerac is something bad, something wrong. But the distinction did not develop between what constitutes kerac as an
aspect of something criminal, and kerac as an aspect of civil wrong, something that has not offended the public interest but has offended an individual. And this goes on to the present day. In the communities that are living still intact, there is no clear distinction between what should be described as a crime and what should be considered a civil wrong. You will find that when the court arrives at a decision, what was initially a civil, or for that matter a criminal offence, starts from the premise that acaa luoi kerac, “he has done me wrong.” This, to me, is the way I conceive the entry into what constitutes a crime or what constitutes a civil wrong in our particular community. The essence of it is, should such a thing have happened and what should be done about it? If there is no kerac, then people live in harmony, and the society is free of evil. If it is free of evil, then that is a good society in which, what you mentioned earlier, cieng baai, the good cieng of the land, is maintained and thrives. Life goes on and history is recorded in the oral form in which it is passed down. This is one. Number two, for purposes of communal protection, in order for the loca-
lized community to protect itself from any adverse action by another clan or subsection, kerac must be prevented. Kerac coming from outside must be
faced by all. It starts in the family, where a child should be prevented from committing kerac, something bad. And whatever comes from outside should be collectively faced by the members of the family, or the clan, or the community, in protection of their good state of affairs that is free of kerac. And kerac, with us, should come from outside; it should not start from within. It is a very conservative way of thinking. Of course, kerac must always come from somewhere, but it is prescribed that it should not start within the group. With the socialists they will want you first to scrutinize yourself on what happened, are you free? Are you free from any wrong? Are you not part of what happened? And once you are clear that you are not part of what happened, then you can point a finger in the other direction. In our case, kerac does not come from inside, and that is why evil, kerac, must be prevented within the group. JL: That is very interesting. Taking the Nuer perspective, I believe the
Nuer will have an answer to the question you asked as to what the fundamental values, or principles, of customary law are. The Nuer have certain words they use. They have the word dhuer; dhuer is wrong. When they judge, they look at an act, and measure it against what they think are their benchmarks, or their standards of norms. They will look at an act committed against an individual, which could be, say, a tort or a criminal offense. They will come and bring the whole range of community perceptions of what is right and what is wrong. So, the Nuer will talk in terms of, “This act is dhuer,” which is a wrong. The opposite of dhuer is cuong. Cuong means what is right. This is how every case is judged. It is giving cuong or it is giving dhuer to the persons concerned. And there is a sense of collective protection, because, given the village
system, the segmentary lineage system in which Nuer society is structured, an act of an individual does not end there. If it is judged as dhuer in the eyes of the society, it has implications that threaten the security of everybody. An individual is not held responsible for his acts alone. The consequences of dhuer flow over, so that if he doesn’t make a redress quickly, so that people feel that he has recognized his wrong and has really repented, the consequences are self-help on the part of the wronged party. And in Nuer society, enforcement of customary norms, of violations of customary rules, immediately triggered self-help, because there were no courts then. Even today, that is still the case. If you don’t acknowledge your wrong, and
you are seen as arrogant, the person who has been violated is encouraged to defend his rights, and challenge the wrongdoer to a duel, for instance. And should it happen that the wrongdoer is physically stronger than the wronged person, and believes that he can commit an offence with impunity, because he is strong, the rest will join in support of the wronged person, to show the culprit that he is wrong. Sometimes, this may bring communities into conflict. For that reason, those who are close in blood relations to the offender will immediately intervene to correct him, because they know the matter will not end there. So, one is not taken as an individual.
