ABSTRACT
Francis Deng (FD): It is my great pleasure to be talking to the Commissioner for Legal and Constitutional Development, popularly known as the Attorney General, and to pursue some of the questions related to the future of customary law in Sudan, particularly the southern part of the country. So, Mr. Attorney General, could you just kindly introduce yourself very quickly, in terms of your background in the field of law, and then I have a few questions that I will want to ask you. Michael Makuei (MM): Thank you very much Dr. Francis. I am Michael
Makuei, the Commissioner for Legal and Constitutional Development. I am a lawyer by profession, graduate of 1975, Faculty of Law, University of Khartoum. FD: Thank you. Some of the questions I would like to ask you are almost
philosophical, but I think they are also very pertinent. It is my belief that every society, in terms of its legal system, is governed by some fundamental values that are related to the culture of the people, and it is those values that then determine how the system regulates power or resources, who gets what, the distributional aspects of things. I wonder whether you could tell us, from your experience, whether with reference to the Dinka specifically or any other groups that you know, what the main values that condition the legal system are, including procedure, in the culture of our people. MM: In terms of our cultural values, of course, customary law is one of the
main sources of law in Southern Sudan. These sources are used by the legislators for enactment of some of the laws of the New Sudan. For that matter, the values of the society are actually embodied in the customary law, and these values are what are transformed into laws. However, customary law at present in the South, or in the New Sudan, is not yet codified. It is not written. But, at present, we have set up a Customary Law Steering Committee that will conduct research on the customary law. Of course, there are a lot of regimes of customary law in Southern Sudan. And for that matter, we decided that instead of leaving these customary laws unrecorded, they should be recorded, harmonized, and, if possible, enacted. And in so doing, we have set up this Customary Law Steering Committee. Of course, this is a process. We do not expect to finish it in a day or overnight. It is a process that will take a
long time. It may go on for ten years or more. But we have started the process. We are optimistic that within the coming few years, we will be in a position to come up with something on customary law. FD: We will get back to the issue of the future of customary law specifi-
cally. For now, I would like to build on my study of customary law in my doctoral work at Yale Law School, which resulted in my first book, Tradition and Modernization: A Challenge for Law Among the Dinka of the Sudan. In my dissertation, I used the jurisprudential approach of Professors Harold Lasswell and Myres McDougal, in which law is seen as a regulator of a process by which people pursue certain goals or values, using resources, through institutions, with specific outcomes and effects. For them, the goal of human dignity was seen as the overriding objective in a democratic society. I thought that among the Dinka, and indeed in most African societies, three main principles were at work. One had to do with ancestral continuity through procreation and the continuity of the male line, which is a form of immortality. Law is very much structured to promote those values that are associated with ancestral legacy. The second is the notion of cieng, a concept of unity and harmony that envisages a community with a common cause towards the fundamental goals of the family, the lineage or the community at large. And the third is a concept of personal and collective dignity, dheeng, which is also connected with the normative principles of cieng. Interestingly enough, in my discussions with the colleagues with whom I have already talked, mostly Nuer and Dinka, there were variations of shared principles, and particularly the concept of cieng. I want to see whether it is possible to discern certain values that are pertinent to law, in terms of both substance and procedure. Would you have some observation on that? MM: Well, of course, customary law is actually the basis of everything in
the society. And for that matter, if you take Dinka customary law as such, you will find that nothing is outside customary law. Customary law is associated with the ancestral lineage and legacy. That is, you must know your origin, to which section you belong, and the code of conduct of your society, or your community. You must all the time represent that community at your best, in the sense of proper conduct. And this is where dheeng comes in, because you must be presentable. Wherever you are, you represent your people. You must always be seen to be doing the right thing. You must be proud of your section, be proud of your people, and be proud of yourself. All this goes back to custom. The other part is cieng. In Dinka custom, cieng is associated with so many
things. In cases of marriage, for example, if I am marrying, cieng requires that my uncles and other members of my clan must contribute cattle towards my marriage. Here, it becomes a right. Cieng, in the Dinka community, is a right. If I am marrying, it is the duty of others to pay for my marriage. This constitutes one element of cieng. Another element of cieng is that if my daughter is being married, my relatives will also be entitled to share in the bride wealth. This is cieng. If I do not distribute the bride wealth of my daughter to my
people, then they have every right to take me to court. Even if they had not paid for my marriage for that matter, they still have the right to take me to court. This constitutes cieng. Anybody who does not abide by the principles of cieng is ultimately con-
sidered an outcast. He has abandoned cieng. It is because of our customary way of life that you find some houses full with relatives. This is part of our cieng. People must be together, and it is your duty to take care of whoever comes to you. You must address their problems. This is how I see cieng. It is actually the source of everything. If you go to the courts, at times, because of cieng, you will find cases of hunger brought to the court. When there is famine, relatives have the right to take you to court and demand that you provide them with something to live on. And the court will decide accordingly, on the understanding that you will be paid when things get back to normal. If you have cattle, you will be forced to give some to your needy relatives to live on. This constitutes cieng. That is the substantive part of it. Another aspect relates to procedure. In
customary law, it is difficult to differentiate between a criminal offense and a civil suit. These are almost the same. What happens is that, if I am aggrieved, I go to the court. The chief sits under his tree or in his luak, cattle byre. I go and complain. I go and sit and at the appropriate moment, state my claim against a particular individual. The police of the chief would be sent to go and summon that man. He comes. You both sit. And the case is seen on the spot. There is no delay. The procedure is that you come and sit and everybody narrates his part of the case. You find that when it comes to the decision of the court, it is not the chief
who actually decides. It is in fact an open court. Anybody who is not a party to the suit is a chief, or a member of the court, and has a right to give an opinion. When the time for decision comes, even the least person who is sitting or standing somewhere, will say, “I want to talk.” He will be allowed to talk and talk, and at the end, pass his judgment. And the process continues, with people talking and passing judgments until in the end it reaches the chief. The chief is usually the last person to decide. And he will have learned a lot from all those judgments or opinions which were given by these gathered. At the end of the day the chief decides on the final judgment. In so doing, he reaches the correct decision, which usually reflects a consensus, because he will have benefited from all the opinions expressed. So, here we have a procedure different from our statutory procedure, by
which you come to the court and have to present a petition. The judge will interrogate you and find exactly what your cause is. Thereafter, if it is a civil suit, it is allowed on the payment of fees. You must pay the fees. Someone is sent to summon the defendant. Thereafter, the issues are framed, if the case is disputed. If it is not disputed, then it is decided on the spot. But if it is disputed, the issues are framed and another date is fixed for the hearing, and all those processes. With customary law, all these procedures are covered at the same time. And in fact, in accordance with the principles of cieng, we believe
that the customary procedure is more powerful and fast. It is faster than the statutory procedure, in the sense that the statutory procedure causes a lot of delays in the process. This is why in Sudan at present you can get civil suits waiting for ten years. And every time you come to the court, the defendant will be reported sick. That is an excuse. Then next time you engage an advocate, the advocate may decide to send away his client. Then he comes to court and says, “Yes, we are waiting for my client.” In the customary courts, everybody sits there. There is no question of a
witness being kept outside. You sit there. Everybody comes and sits and the process starts. The hearing will continue. If you are there as a witness you will talk. And in the course of your talk, you will be interrogated by everybody around: examination, cross-examination, and re-examination. In the course of the process, the court eventually reaches the correct decision. That is how I see it. We are just waiting for this customary law project to start, and then we will begin to consider all these issues and determine how best we can incorporate these procedures into our future statutory laws. FD: Excellent. Let me ask you about the reported correlation between
blood wealth and bride wealth. In my own work, I observed that the amount of payment for compensation in homicide and the amount of cattle needed for marriage were related. The question was raised whether this was related to the idea of the continuation of life. If a man is killed, you need enough cattle in order to marry, to have children born to his name. This is something that has struck many people. There appears to be a correlation between compensation for the life lost and the value of children, that is begetting children to the name of the deceased. I understand that in some cases now there is a change, particularly among the Agar. They say that the chiefs decided to lower the value of the bride wealth, but that has not affected the value of the blood wealth in homicide. How do you see the correlation between blood wealth and bride wealth? MM: By blood wealth I assume you mean the dia. FD: Yes. MM: In fact, there is no correlation, even though they appear to be almost
the same. In marriage and the payment of bride wealth, the intention is to guarantee the continuity of the family. When a person dies he is a loss to the family. If he is not married, then the blood wealth, the dia, which is paid, is actually used for marrying a wife for the deceased relative. In so doing, you have now guaranteed the continuity of the deceased, despite his absence. Children will be born and they will be named after him. Even though they do not know the father, when they grow up, they will know him and become proud of their father, whom they have never seen. This, in a way, is what adds to the population. It is said that a Dinka man never dies. If he dies when he is not married, then a wife will be married for him and he will continue to live through the children to be born. If he dies after marriage, then people will take care of his family, his children, and his wife, and more children will be
borne by his widow to his name. They will be recognized as his children begotten by a relative, so that his continuity is guaranteed. However, in cases of marriage, you cannot set the maximum price, because
this is a social transaction. What is usually done is that whenever there is any dispute in the marriage, you set the minimum. So, in case the parties disagree, and they come to the court, the court will set the minimum for dowry. But if the parties agree and understand themselves, they can go as far as their wealth can take them. And here, nobody will interfere with their agreement. It is a question of understanding. But once there is no agreement and people go to court, the court will impose the minimum payment. This is the procedure. Now, in terms of the bride wealth and the dia (the blood wealth), the cor-
relation to me is not clear. The value of the dia is something that was agreed upon by the chiefs. An example is in Wanh-Alel, where the dia was set at thirty cows plus one. That one cow goes to the court, but the thirty goes to the relatives of the deceased. This is in Wanh-Alel and this is what is applicable in the whole of Bahr el Ghazal. But if you cross to Upper Nile, say to the Bor area, the dia is fifty cows, but the bride wealth is not fifty. The minimum is thirty cows for marriage. And it has no maximum. So, if you disagree, and you go to court, the groom’s family will be forced to pay thirty. But in cases of dia, irrespective of whether or not the family marries a wife for the deceased, the dia is fifty cows. Out of the fifty, the court takes about ten as court fees. Now, you are left with forty. An additional two are taken, one is killed for the ritual ceremony of atonement, and one is given to the specific court that made the settlement. So, actually the relatives of the deceased receive only thirty-eight head of cattle. Of course, human life has no value in the first place, but this is something
symbolic, to make people feel that their loved one is compensated, and as such, they will not decide to take law into their hands and revenge, as it was in the past. There have been some complications here and there because there is also a conflict of customs. Now, the people of Wanh-Alel, if any of them is killed, say among the Nuer or the Dinka of Upper Nile, the family of that person pays in accordance with the Wanh-Alel custom. Of course, you apply the custom of the deceased. If someone from here, in Bahr el Ghazal, kills a person from Upper Nile, he will pay fifty. If someone from Equatoria kills a Dinka from Bahr el Ghazal, he pays according to Wanh-Alel, fifty head of cattle. And if he kills somebody from Upper Nile, he pays according to the custom of the deceased; that is, he pays fifty. The question arises, if one kills someone from Equatoria, where people do not possess that level of cattle wealth, how much dia should be paid? Of course, human life should be the same everywhere, so, in principle, should the compensation for life. And yet, conditions differ. These are some of the issues on which we need to harmonize the law. I remember a case, a traffic case, in which a car overturned and killed a
lot of people, including some Equatorians, some from Bahr el Ghazal, and
others from Upper Nile. They all died. Now, when the case came before the judge, they decided that compensation should be based on the customs of the deceased person. So, the same people who died in that same car accident were compensated differently. That created a very big problem. This is where we need to harmonize the customs, so that we can come up with something fair to all. Keeping the situation as it is now will drag us into problems one day. FD: That is a fascinating challenge. We will come back to the modern
challenges for the application of customary law. On this question of compensation for homicide, is the thinking in the South now against capital punishment, which is currently in place in the country? Judging by customary law, it is obvious that people would prefer compensation to capital punishment. What is the thinking behind that; is it simply to compensate, or is there more to it than that, such as, in human rights terms, a principled stance against the idea of capital punishment? MM: Yes, in fact, even though undeclared, there is a strong cultural bias
against capital punishment. This issue with reference to human rights principles has just come up recently. Customarily, it seems as though the intention originally was to fight against capital punishment. In our customs, we do not have capital punishment; it never existed originally. Capital punishment was introduced by statutory law. At the beginning, if you killed someone, his family will just revenge. To avoid vengeance, it was decided that people should be compensated. You are paid dia, instead of taking the law into your hands and killing an innocent person who never participated or had a hand in that offense. Compensation was always there until statutory laws were introduced. With the introduction of statutory laws, it was thought that the best way of addressing this capital offense was to sentence people to death. Nevertheless, if the accused is found guilty, and before the court passes the
death sentence, the court has the right to ask the relatives of the deceased if they want the sentence to be passed against the accused or if they want the alternative punishment through compensation. If the family of the deceased says, “We don’t want compensation; let him be sentenced to death,” then that goes. Otherwise, if the family of the deceased says, “We accept that he pay compensation,” the court will rule accordingly. FD: Am I right in assuming that in most cases, people prefer compensation? MM: Yes, in most cases people prefer compensation because this capital
punishment is not part of our customs. It is not part of our culture. So, it is just a mere coincidence that human rights advocates came up with new principles against capital punishment. Opposition to capital punishment was already there in our customs, except that it was not officially recorded. People did not go down to analyze why people objected to it. In addition to opposing capital punishment as such, the intention, of course, as I said earlier, is to guarantee continuity. If you are close to someone that is killed, that is a loss to the family and to the society. People did not want to lose more lives.
Instead, they wanted to guarantee the continuity of life and secure the life of the accused. So, our people actually agree with the idea of discouraging capital punish-
ment. But, for the time being, there is the case of the habitual offender, who has killed so many people. He can kill a person today, and if he is not sentenced to death and is eventually released, he will commit another murder. He becomes a habitual offender. These are the types of criminals on whom we cannot avoid passing the death sentence, as long as he causes death, plans it, and executes it intentionally. Our policy is to adopt our customary law, and, in most cases, a person is only sentenced to death when there are certain severe circumstances, so that we deter others from following the same line. But, generally speaking, courts look into the customary legal practices to mitigate the sentence. FD: That’s a good analysis of the balances that need to be made. Let us
now look into the place of customary law in our legal education and practice. When I was in the Law Faculty, in Khartoum University, there was such a strong prejudice against customary law. In fact, I think I was the only one who took advantage of my vacations, with the encouragement of my professors, to study customary law. I used the material from that research later on when I did my postgraduate studies in London and at Yale. My colleagues, Gordon Abyei and Natale Olwak Akolawin, wanted to do fieldwork, but could not. The Northern administrators and even the chiefs were suspicious about that kind of research. In my own tribe, when I went to do fieldwork, rumors were going around that I was being prepared to be the appellate authority, over the paramount chief, my father. At one point, my father asked me, “Mading, this recording of customary law, is it carried out all over the Sudan or only in this tribe?” And I knew what was on his mind. Considering the situation, I told him that I did not want to sit in court anymore, and that I would only interview people at home, which was what I did. More importantly, we had the central government prejudiced against customary law, which they associated with the South, and which they considered primitive and subversive. They wanted to encourage Sharia and modern Western law, even though in the North too, over 90 percent of the population were still governed by customary law. What is the place of customary law today, both at the national level, how the central authorities see the role of customary law, and certainly in the South? MM: Well, for the central government, of course they are somewhat hostile
towards customary law, even though, personally, I consider Sharia as custom. So, if Sharia is a custom, then it is a customary law based on the society in the North. All the laws that have been enacted and even the behavior of the society are based on custom, whether it is Islamic or other sources. For us in the South, our sources of legislation are led by customary law. This is why we are trying to develop customary law and codify it, if possible. In the course of doing that, we will be conducting a great deal of research. We will involve many researchers who are interested in our customary law, so that they go
down to dig and find out these customs. We must back up our policy decisions with empirical knowledge. In the course of doing that, we will need to go and find out from the people exactly why they do what they do. Even though they will not be giving you the same explanation in terms of human rights, in terms of women’s rights, in terms of child rights, and so forth, you will be in a position to reach your own conclusions on the basis of your interaction with those communities. So, with us in the South, our source of legislation is custom. And because
custom is not developed, we need to do some work, to conduct research, and then come out with what may constitute a substitute to the current statutory law. Yes, it is true; in fact, the Northern government did not have any interest in developing our customary law, because they feared that it would replace the other laws, including the Islamic Sharia laws. So, it was a policy of the national government to see to it that customary law did not find any home, and should not be developed. They inculcated it into our minds that these were primitive customs, and that we did not need to talk about them. And we believed them. Some people, like you, did not believe them and you continue to record and project our customary laws, because you did not believe that they are primitive. Our laws have been there. They have existed from time immemorial and have been inherited by generations after generations. Our customary law is rich, and is valuable. It is only that we were made to believe that customary law is primitive and that we do not need to entertain it. This is how the government was fighting customary law, especially in Southern Sudan. Time has come now for us to develop it, and show the international community that all these human rights they have been talking about, like child rights, we have them; we have our own child rights. And we have women’s rights. You have everybody’s rights in the community. All these things are there, except that we have not gone down to record them, study them, develop them, and promote them so that they are known by the international community. I remember a time when we had a workshop here on juveniles. It was
attended by a lady, a judge from Norway. She was talking to us about children’s rights. When we told her about child rights in our Southern communities, she was very surprised. We said to her, “After all, have you seen street boys here in Rumbek? Do you see street children here in the town?” She said, “No, I was indeed surprised that I did not see any street children. Despite the effect of the war on your people, I have not seen any street children.” I said to her, “This is one of the issues that is actually addressed by custom. It is our duty to take care of any child, any homeless child, any child who has lost parents. It is the duty of the next of kin to take care of such a child. These things do not exist everywhere. Even in Europe, where the modern ideas about human rights are now coming from, you find children in the streets. In our society, it is also the duty of every person to discipline a child, when he sees him going astray. Meanwhile, in the modern world now, if you begin to discipline somebody’s child, it amounts to child abuse, an offence.” So, we
talked to the Norwegian lady judge and she was very surprised by what we said. She said, “You have very good customs.” We said, “Yes, we have good customs, except that they are not known.” The Arab-Islamic government has been depicting these customs as primitive. And the international community also believes that our customs are primitive, backward, and that we do not need to build on them. They believe that we are against women’s rights, against children’s rights, and so forth. Even our women now have come to believe that customary law is hostile to
women, and are fighting it. This is not correct, because in our customs, women’s rights are entrenched. Contrary to Western belief, in our customary law, women have the right to inherit. Once her husband dies, she is fully responsible for her wealth. If the children are young, she takes care of them until they grow up and they take over from their mother. It is the right of the mother to take anybody to court if he misappropriates her properties, and the court will grant her right. You hear some women now crying for women’s rights, land rights. After all, land with us is not owned by the individual; it is owned by communities. And it is the right of the community to ensure that the family stays in their homestead. There is nowhere where women are evicted simply because they left their husbands. FD: That is interesting. On this question of land, my view is that actually
there is no society where individuals have absolute ownership of property. There are certain rights and entitlements over property. Among our people, if a woman has been given a plot of land, even though her husband can help in cultivating the land, he has no right over the land or the produce. It is her property; it is her land and the produce is hers. The same can be said, as you said, about cattle, which are allocated during the husband’s lifetime. If the man dies and the women have already been allocated their share of cattle, men are not going to come and say, “These are ours.” What is known as ‘panom’ is what stays as the collective family ownership, the ancestral land, because that is where the ancestors are buried. But you have to use the land productively. If you leave your land to be fallow for so many years, then others can come, occupy it, and use it productively. Even in terms of humanitarian law, traditional society has valuable principles. Dinka values relating to warfare, for example, are arguably in conformity with international norms. You kill face to face; you do not ambush. If a man is fallen, and a woman covers him for protection, you should not touch him. MM: You do not hit a woman; you do not hit a child. FD: These are fundamentals that people do not realize. They are principles
of a strong moral code, which are now being destroyed in the process of modernization. Now, what is the best way of proceeding forward? You have already indicated an approach which I tend to agree with. First of all, we should recognize that we have diversity of legal regimes. We need, as a first phase, to record as much as possible. Then we need to sit and analyze what we have recorded, to identify the differences and the commonalities. We should also see the weaknesses and what kind of reform is needed, so that we
restate customary law with a sense of reform, and in a comparative way. Then we can put the reform legislation into place. And there are international partners who will like to assist us in this endeavor. Should we aim at organizing a meeting first that will then plan all of this, or should we go ahead and commission studies of different communities, and then organize meetings afterwards? Or should we do both concurrently? What is your sense of the strategy for doing that? MM: In fact, there are some customary laws which are already recorded,
like Wanh-Alel, the Panjab, and Nuer law. All these are recorded, and they have been operational all this time. These are recorded laws. We do not need to start from the grassroots again. But we need to revisit them, in the form of meetings, conferences, and so forth. We need to look at them critically and see how far they have changed, because some of these customs, of these recorded customs, have already changed. So we need to go down and find out exactly what is going on through workshops, conferences, and seminars involving the communities themselves. Then we will see how far the laws have changed. We can review them and adjust them accordingly. There are other customs which still need to be recorded. These ones, which are not yet recorded, need to be recorded. After recording, we should organize workshops or seminars to discuss and ascertain whether the supposedly recorded custom is exactly what it is. You want to ensure that nothing comes up later, where people will say that, after all, this is not their customary law. So, it is after recording that we should begin to hold workshops with the
communities concerned. After ascertaining or ensuring that these are the customs of the people, you can then sit down to study them. You study and harmonize; you identify the areas of commonality and put it aside, and you identify the areas where there is complete disagreement. Then you pick up all these pieces and organize more workshops, conferences, and seminars with the elders of the communities concerned. So, you identify in the course of the recording how many customary law regimes are there. Then you start with each regime, and harmonize it within itself. And then you harmonize it with all those other regimes. After finishing with those regimes, you come up again with another process of harmonizing the regimes that should constitute a national framework of legal regime management. At the end, it will not be necessary that we come up with only one
customary law, but we can come up with regimes that will be applicable in these areas, and then we will provide a basis for resolving the conflict of customs. There will be a law also to regulate these customs. In case of any conflict, what should be done? That way, we will be in a position to at least come out with a formula for response. So, we have the two approaches. One approach is to start with workshops on the present recorded customary laws. The other relates to unrecorded laws, where you have to start with recording first, and then you organize workshops and conferences. This is how we look at it.
