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South Sudan: Legal tradition

The Republic of South Sudan has a pluralist legal regime that reflects the country’s turbulent history. The Transitional Constitution recognizes five sources of law: the Transitional Constitution itself; written law; customs and traditions of the people; the will of the people; and “any other relevant source”.[1]

South Sudan attained independence from the Republic of Sudan on 9 July 2011, after almost fifty years of continuous civil war. Independence came pursuant to the Comprehensive Peace Agreement (CPA), signed six years earlier. The CPA, comprised of six Protocols agreed between 2002 and 2005, provided the basis for governance during the Interim Period (9 July 2005 – 9 July 2011).

Prior to independence, Sudanese law was in force on the territory of what is now the Republic of South Sudan. Sudanese criminal law includes elements from British colonial penal law, the Egyptian civil code and the 1983 ‘September Laws’, under which penalties are prescribed by Islamic law. Religious laws govern personal matters, while civil matters are formally governed by statute, although in practice, resort is often made to unwritten rules and traditional community justice systems to resolve disputes. The 1998 Constitution of Sudan designated Sharia as the primary source of Sudanese law, leading judges to infuse their rulings with Islamic principles in order to interpret and apply religiously neutral laws in accord with Sharia principles.[2]

Since independence, the parliament of South Sudan has been facing the enormous task of amending, adapting and updating existing laws and enacting new ones, in order to create a legal system that embraces the cultural identities of the new country, while providing the stability necessary to reduce ethnic tension and foster investment. Despite the remarkable pace of legislation, it is clear that there is a mismatch between the financial and human resources allocated and the work to be done. The difficulty of setting an agenda and pursuing a clear legislative strategy presents an additional obstacle.[3]

The current framework within which the justice system is to operate in South Sudan differs from that previously applicable in three major ways. First, Sharia is no longer a source of law. Second, while during the Interim Period English and Arabic were the official working languages, since independence the official working language is English-only. Third, the justice system departs from inquisitorial procedures in favour of the new statutory court system, which includes more adversarial features. However, the changed framework has yet to be adopted throughout the system and implementation of these changes has not been unproblematic. In particular, as of December 2013 the reform towards the adversarial model has not in yet penetrated into the daily functioning of the courts and it appeared that many trials continued to be conducted according to inquisitorial procedures. Further, the ICJ was informed that Arabic continued to be used in court; the switch to English-only has posed significant practical problems, for many judges, prosecutors and legal practitioners who were trained in Khartoum and were not yet familiar with English legal terminology.[4]

The legal landscape is complicated further by the fact that a customary system operates alongside the statutory justice system. Customary law is recognised as a source of law under the Transitional Constitution[5] and remains a primary source of social order and stability throughout the country.[6] It serves as the basis for adjudication in the vast majority of civil and criminal cases, which are handled by customary courts. Each tribal group has its own discrete customary law, resulting in over fifty separate bodies of customary law co-existing within South Sudan, although the laws of many groups tend to have commonalities. Customary courts regularly collaborate to adjudicate inter-tribal disputes.[7]

Different legal systems and concepts have merged in South Sudan to such an extent that it is sometimes impossible to distinguish which laws originate from pre-existing culture and which have emerged through interaction with national laws and other legal cultures. Local customary law and national laws and procedures percolate up and down the judicial hierarchy: some customary courts sentence according to statutory law, while some statutory judges apply principles and procedures derived from customary law. The end result is that, in practice, there is little certainty about what law will be applied in any given cases.[8]

 

Footnotes    (↵ returns to text)

  1. 1. Transitional Constitution, S. 5.

    The sources of legislation in South Sudan shall be:

    (a) this Constitution;
    (b) customs and traditions of the people;
    (c) the will of the people; and
    (d) any other relevant source.

     Several different versions of the Transitional Constitution appear to have been published. This profile uses the version that was uploaded to the websites of UNESCO and WIPO. 
  2. 2. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 15.
  3. 3. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 16-17.
  4. 4. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 15-16.
  5. 5. Transitional ConstitutionS. 5.

    The sources of legislation in South Sudan shall be:

    (a) this Constitution;
    (b) customs and traditions of the people;
    (c) the will of the people; and
    (d) any other relevant source.

  6. 6. Transitional Constitution, S. 167.

    (1) Legislation of the states shall provide for the role of Traditional Authority as an institution at local government level on matters affecting local communities.

    (2) Legislation at the National and state levels shall provide for the establishment, composition, functions and duties of councils for Traditional Authority leaders.

  7. 7. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 14-15.
  8. 8. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 15.
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