How Customary Law is Undermining Justice at the Lower Statutory Courts in South Sudan
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INSISTENCE ON THE OLD CUSTOMARY LAW IN THE “LOWER COURTS” HAS HINDERED JUSTICE IN MOST LITIGATIONS: THE CASE OF SOUTH SUDAN.
BY JOSEPH ACIEC MATHEN, Juba, South Sudan
Hierarchy of the Court System.
Thursday, April 29, 2021 (PW) — Article 123 of the 2011 Constitution (as amended), provides for the structure of the court system in South Sudan. According to the hierarchy, it’s comprised of the Supreme Court, Courts of Appeal, High Courts, County Courts and other courts or tribunals.
The Supreme Court is the final court of appeal. Any party aggrieved by a decision of the Court of Appeal is entitled to appeal against that decision. All other courts are bound to follow the decisions of the Supreme Court especially on “questions of law”.
The Courts of Appeal handle such appeals from decisions of the High Courts. The High Court is highest court at the State level in South Sudan. Its senior judge is answerable to the state government for the performance and administration of the state judiciary.
The other courts are either tribunals or traditional courts. A tribunal is an institution with the authority to judge, adjudicate on, or determine the disputes or wrangles between the parties. All tribunals appeal to the High Court. An example of a tribunalis the “County Land Authority” (established by section 92 (2) of the Land Act, 2009); which has jurisdictions to adjudicate land disputes. On the other hand, article 167 (3) of the constitution, provides for the traditional courts which shall apply Customary Law.
My emphasis in this brief paper will focus mostly on the “lower courts”, notably, those below the High Court, where the application of customary law is dominant. Notwithstanding, the weakness of the legal system in the country may stretch thediscussion even to the other courts above.
Contrast between Customary Law and Written Law.
To a lay man, the distinction between these two concepts may appear problematic. Coalesced with the lack of awareness about the Law, the need to differentiate and for one to advocate for his/her rights based on the two notions has somewhat stymiedjustice among the litigants.
Customary Law is the ‘law consisting of customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and ‘intrinsic’ a part of a social and economic system that they are treated as if they were laws.’ (Black’s Law Dictionary, 9th edition).
A custom means a practice that has been followed in a particular locality in such circumstances that has come to be accepted as part of the law of that locality. In South Sudan, the Law varies from place to another as well as from tribe to tribe. It’s not uniform!
It is a custom among the DINKA that “adultery” is punishable by “compensation” by paying a specific number of cows. This may be different from other tribes say BARI or KUKU, who are not pastoralists. In the same vein, the numbers may be differenteven among the diverse NUER communities, although they are all cattle keepers.
On the other face, Written Law is a body of rules of conduct of binding legal force and effect, “prescribed”, recognized and enforced by controlling authority. The key difference between the two doctrines, is that the latter must be “jotted down” in the statutes while customary Law may not, however, it must be immemorially in existence and continuous.
In South Sudan, Written Law include – The Constitution, 2011 (as amended); Penal Code Act, 2008; Contract Act, 2008; Land Act, 2009 etc.
In a nutshell, as a matter of legality, the Written Law overweighs the Customary Law. However, the status quo in the lower courts portray as if it is the versa vice, therefore, my attention will revolve around that law which is directly derived from the customs, not the Written Law. That said, it is also imperative to hint at the difference between Civil and Criminal Law before proceeding.
Contrast between Civil Law and Criminal Law.
Another point of controversy among the litigators is the distinction between the above two branches of law. Failure to ascertain the two has also mocked justice, in a sense that majority do not know the courts with specific jurisdictions in the country, so as to file their litigations or petitions accordingly.
Usually, we may succumb to people filing their cases involving theft, assaults, extortion, rape and even murder in the traditional courts, yet they are supposed to be in the jurisdiction of the modern courts.
‘Criminal law and civil law differ with respect to how cases are initiated (who may bring charges or file suit), how cases are decided (by a judge or jury), what kind of punishment or penalty may be imposed, what standards of proof must be met, and what legal protection may be available to the defendant.’ (Brian Duignan; Britannica).
To be precise, I will stick to the punishment or penalty as a yardstick. In civil cases, punishment always consists of a monetary award and never consists of imprisonment. In other words, the plaintiff is only compensated in order to be restoredin his/her original financial or social position.
Here, defendants are not entitled to the same legal protection as are the criminally accused. The examples of civil cases are; defamation (including libel and slander), breach of contract, negligence resulting into injury or damage of property etc.
In contrast, in criminal cases, punishment for serious charges, for example, felonies e.g murder often consist of imprisonment but at times may also include a fine. However, that fine goes to the state, not the victim or family of the victim, as is the fashionin our lower courts today.
But, if those fines are exaggerated, like it is in most of our courts, it becomes looting not seeking for justice! In South Sudan, criminal cases include; murder, infanticide, assault, rape, adultery etc (all according to sections 206, 209, 223, 227 and 266 respectively of the penal code Act, 2008)
Henceforth, the practice where “criminal offences” like the above, are punished by “compensating” the victims or by hyperbolizing fines has in most occasion hindered justice in the judiciary. This is according to the concept of punishment as lucubrated below.
The Concept of Punishment
The purpose of punishment might not be the expiation or atonement for the crime. According to Jeremy Bentham (18thcentury Utilitarianism), ‘the justification for criminal sanctions is in the good that they engender.’
In other words, since criminal offences not only affect the victims but the society as a whole, an adequate account of punishment must take note of the traditional metaphysics of retribution – that somehow the punishment must address the crime and seek to negate its occurrence. This can’t be overcome by mere compensation or fines!
One of the reasons why communal conflicts are recurrent today, is because of this customary law of compensation or fines. Civilians took it for granted – because it is easier for them to compensate murder offences – and hence most crimes remained unpunished and the society unprotected.
The primary purpose of punishment must be to express a connection between the offender’s suffering a punishment and the victim’s suffering the crime. The crime generates a general fear of violence among those who learn about it. Because crimeitself is an assault upon the public, therefore, it makes sense to think of punishment as an expression of public authority.
In a nutshell, ‘the appropriate length of imprisonment must come to depend more on the projected dangerousness of the offender than on the gravity of the offence triggering the conviction’ (George P. Fetcher; the purpose of punishment). Thenceforward, to “compensate or charge fines” is to project on the gravity of the offence instead of dangerousness of the offender. That also mocks justice!
The doggedness on the Old Customary Law
The supremacy of Customary Rules today. Like I have discussed previously, it seems as if the drafters of most of our statutes were dictated by the rules of the customs, rather than to bring fairness and stability in the society, according to the presentcircumstances. Yes, customs are the foundation of any society but circumstances vary with time. Therefore, we must likewise change to suit the circumstances.
For example, Section 206, (penal code Act) provides for murderin this manner; ‘whoever causes the death of another person – with the intention of causing death, commits the offence of murder, and upon conviction be sentenced to death or imprisonment for life and ‘may also be liable for a fine; provided that, if the nearest relatives of the deceased opt for customary blood compensation,’ the court may award it in lieu of death sentence with imprisonment for a term not exceeding ten years.’
The phrase – ‘may also be liable for a fine, provided that, if the nearest relatives of the deceased opt for customary blood compensation,’ has connatural sense of the customs. Yet, an offence such as murder is not private, but public which should solely involve the interest of the state on behalf of the victim.
Just like the crime of murder, other criminal offences have got punishments with connatural of customs. Coupled with the rigidity of our society, lower courts have deliberately aborted the phase of punishment that contradicts the customs, for example, imprisonment but only opted for compensation. Thecase in point is the crime of Adultery.
On similar footing, the concept of oath taking is another challenge today. The essence of a divine oath is an invocation of divine agency to be a guarantor of the oath taker’s own honesty in the matter under question. In the past, contentious issues beyond the capacity of the judge or adjudicator were determinedby the oath, and it remained indispensable in our customary law.
Today, with the change of attitudes regarding beliefs – as the society draws slowly away from the deity – due to the western waves of civilization, the traditional practice has become a business venture for those tasked to do the oath. Because of thelevel of technology, they’re sacredly contacted and bribed before the parties reached the scene. That has frequently diluted justice.
Outside the boundary of our topic, are other factors hinderingjustice among litigants in South Sudan. Firstly, the lack of geographical jurisdictions. In line with my discussion about the hierarchy of our court system, any litigator has steps to follow and must stick to the hierarchy of the system. In case a person is aggrieved by the decisions of a traditional court, he/she can’tjust appeal straight to the Court of Appeal without going to theCounty Court.
Likewise, geographical jurisdiction is paramount. However, today, you may find the adultery case being filed in Rumbek, and if the ruling is against the person, he may go and appeal in Wauor Juba where he believes justice will be in his favor. I used “he” because Customary Law dictates the “ineligibility” of women to sue for adultery. Another injustice for the women!
Secondly, the issue of corrupt and incompetent judges,especially in the traditional courts. The corruption is triggered by lack of proper stipulation of the amount of fines to be imposed on the parties at fault, or failure by the judges to follow the stipulation. Often, we find charges ranging from 30,000 to 50,000 pounds. With the current dollar crisis, the figures might escalate!
Conclusion
I’m not here to chart the course for the judiciary in South Sudan, neither do I have the guts to challenge the competency of my seniors. As a concerned citizen, my interest is to throw light in the corners that appear dark at “my sight”. And, therefore, I stand the chance of criticism or correction. I’m well aware that anything against the customs is sensitive to challenge, and the challenge may appear blasphemous to the society, as the maxim goes; ‘If you want to test the rigidity of any society, try to temper with its customs and traditions’.
My advocacy is for the State to strengthen the customs that areadvantageous in the current context, and abandon what doesn’t suit the present circumstances. Therefore, the idea of compensation in some criminal offences, and which may lead to instability in our communities should be dropped with costs. Like I highlighted above, most of our statutes or laws need to be revised to suit the situation.
The need to promote awareness about law in the community is also key. For people to know, advocate, protect and promote their Rights and Liberties, they should be familiar with the law. The adjustment on the side of the judicial officials is also a call, ranging from the National Level up to the grassroots – traditional courts – so as to get rid of the corrupt and incompetent judges. Through all this justice, equality and equity will be inevitable in our litigations.
MAY GOD BLESS SOUTH SUDAN!
The AUTHOR is a South Sudanese Law Student (LLB 3) at Nkumba University, Uganda, and can be reached via@ josephaciec66@gmail.com. (+256-774973700, also available on WhatsApp).
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