Customary Law and Criminal Justice in South Sudan

Over sixty tribal, non-state systems of justice operate in South Sudan, alongside a struggling state legal system. USIP is working with tribal chiefs, state judges, police and other stakeholders to map the law applied in each, improve cooperation between them, and develop an integrated approach to justice.

Over sixty tribal, non-state systems of justice operate in South Sudan, alongside a struggling state legal system. USIP is working with tribal chiefs, state judges, police and other stakeholders to map the law applied in each, improve cooperation between them, and develop an integrated approach to justice.

The civil war between northern and southern factions in Sudan ended with the signing of a Comprehensive Peace Agreement in 2005. A key term of the Comprehensive Peace Agreement (CPA), now enshrined in the Interim National Constitution and the Interim Constitution of South Sudan, is the creation of a federal system, under which the South has autonomy, in inter alia, its judicial system. With the rejection of Shari'a, the assertion of the importance of culture, and the sheer absence of formal justice structures, customary law will play a major role in the Southern Sudan legal system. This poses significant challenges as to how to incorporate customary law, given the diversity of at least 60 customary law systems, conflicting value sets, and demographic changes as over 4 million internally displaced persons (IDPs) and refugees return to traditional communities and oil lands. In the face of intensely violent conflicts over land and other economic resources, one priority is the need to clarify the role of customary law in the administration of criminal justice. Unless there is an integrated approach to law enforcement and more dialogue with the chiefs, modernizing is in danger of causing more conflict than resolving it.

USIP's project in Sudan aims to facilitate the development of a long-term justice strategy in South Sudan, specifically regarding the role of customary law.

USIP's work consists of three main components: 

  • Facilitating Traditional Leaders Councils and their communities to ascertain their own customary and community laws
    Working with tribal chiefs, relevant local and international partner organizations, and South Sudan government agencies, USIP is collecting and compiling the criminal law and procedure as applied in the various customary law systems in South Sudan. This includes gathering information about the role of tribal chiefs as customary judges. USIP has facilitated the establishment of traditional leaders' councils in several states of South Sudan, which are playing a key role in this ascertainment exercise. USIP is also assisting in the creation of a multi-party Working Group on Customary Law and in the development of a Customary Law Development Center in Juba.

    The ascertainment for Lakes State, the first state planned in the project, is nearly completed. Numerous and extensive meetings have been organized through the Council for Traditional Authorities, bringing together local chiefs and community stakeholders, in addition to consultations with members of the judiciary.

  • Creation of a digitized records managements for statutes, law reports, customary and community laws and court judgments

    For law enforcement and the criminal justice system to function effectively, and for any process of reform of criminal law and procedure to occur, it is crucial that the relevant laws, regulations, and jurisprudence from both the formal and customary justice systems be accessible to and inform those engaged in these functions. Following a USIP-commissioned assessment of the requirements for setting up a records management system consolidating relevant case law, statutes, and customary law deriving from the ascertainments, the Institute is now conducting an expansive project of collection, digitization and construction of a comprehensive, searchable database. All data will eventually be accessible to a wide range of stakeholders, including the courts, police, local government, chiefs, the Ministry of Legal Affairs and Constitutional Development, the South Sudan legislature, the Human Rights Commission, and the South Sudan Law Society. In late 2008, the project will include USIP facilitation of trainings and meetings of users to discuss contents and planned use of the system as the foundation for developing an integrated and more effective approach to justice and legal reform.

  • Organizing workshops for criminal sector actors and traditional chiefly authorities and their communities

    As noted above, USIP has been instrumental in the process of tribal chiefs organizing their own Councils of Traditional Leaders at the state level. In the current phase, USIP is organizing a series of workshops to bring together these chiefs with national police, judges, corrections officials and other relevant criminal justice actors, as well as representatives of Sudanese civil society groups. These workshops are helping to develop better understandings between actors in the various systems of justice, and to begin to lay the groundwork for improved communication and cooperation. The first of these workshops was held in mid-March in Lakes State.

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