After winning the battle against the North, the war for South Sudan has ensued. Poor leadership, historical grievances and economic interests have all contributed to conflict. But another crucial part of the puzzle is the South’s struggle to configure a mode of statehood that is acceptable to peoples and powerbrokers alike. This has everything to do with a plethora of politico-legal questions which a yet-to-be drafted Constitution is envisioned to answer. Which powers should the federal government devolve to the states? And how should customary authorities – which deal with the vast majority of disputes – be incorporated into the legal system?
South Sudanese can and do turn to a great amount of alternative authorities (Rigetrink, Kenyi and Schomerus, 2013). And while some studies suggest that people are quite apt at navigating legal pluralism (Isser et al, 2010), others hold that customary fora are unpredictable and deny fundamental rights. So should customary law be codified? And if so, should such a codification filter out practices which are at odds with human rights?
To help answer some of these questions, the Van Vollenhoven Institute of Leiden University, Cordaid and the Justice and Peace Commission of Tambura-Yambio started a joint NWO-funded research project . Together with 10 local researchers, I am currently in Yambio to research how justice seekers attempt to solve land and family disputes by engaging with the complicated patchwork of state and non-state justice mechanisms. Also, we study the ways in which justice providers solve disputes, and compete for recognition both from below and from above.
Squarely in the middle of this wrestling match for recognition, are the chiefs. They advocate themselves as ‘custodians of the land’, firmly grounded in local cultural and historic context. But while chieftaincy certainly has roots in the distant past (Evans-Pritchard), just about every aspect of their form and functions has been thoroughly shaped by the policies of the respective powers ruling this territory. From the exploitative early Turkish and Egyptian days; to the British ‘Native Administration’ (1921); through to the marginalization and forceful ‘Arabization’ policies by the Sudanese government in Khartoum; to the civil wars where chiefs were forced to supply food, recruits and intelligence to both sides of the conflict. Chiefs always had to balance between the overwhelming power of the outsider, and the demands of their own peoples (Reining, 1966; Leonardi, 2012).
Since independence, the chiefs have been integrated into both the judiciary and the executive. Their dual priorities are justice and order. Chiefs lead Customary Law Courts to adjudicate on customary disputes, and their decisions can be appealed against in statutory courts. But at the end of the day, the judiciary cannot remove a chief – the executive can, and they receive their salary from the Ministry of Local Government.
The ongoing peace negotiations include discussions on a new Constitution, Land Act and elections. All the chiefs of South Sudan are watching. Will they be judges or administrators, or will they be both? The future is likely to mean more tightrope-walking.