The Struggle for South Sudan

Challenges of Security and State Formation

Luka Biong Deng Kuol, Sarah Logan, Luka Biong Deng Kuol, Sarah Logan

• Publisher: I.B. Tauris
• Year: 2018
• ISBN:
  9781786725752
• Edition: 1
• Topic: Histoire
• Subtopic: Histoire de l'Afrique

South Sudan, the world's youngest country, has experienced a rocky start to its life as an independent nation. Less than three years after gaining independence in 2011 following a violent liberation war, the country slid back into conflict. In the wake of infighting within the ruling Sudan People's Liberation Movement (SPLM), violence erupted in South Sudan's capital, Juba, in December 2013. The conflict pitted President Salva Kiir's predominantly Dinka presidential guard against Nuer fighters loyal to the former Vice President Riek Machar. As fighting spread across the country, it has taken on an increasingly ethnic nature. Ceasefires have been agreed, but there have been repeated violations by all sides. Today the conflict continues unabated and the humanitarian situation grows ever more urgent. This book analyses the crisis and some of its contributing factors. The contributors have worked on South Sudan for a number of years and bring a wealth of knowledge and different perspectives to this discussion. Providing the most comprehensive analysis yet of South Sudan's social and political history, post-independence governance systems and the current challenges for development, this book will be essential reading for all those interested in the continuing struggle for peace in South Sudan.

‌Chapter 1

Learning from Customary Law

Forging Ethnic and National Identities in South Sudan

‌Naomi Pendle

Introduction

The 2005 Comprehensive Peace Agreement of the Government of Sudan (GOS) and the Sudan People's Liberation Army (SPLA) resulted in the formation of the new state of South Sudan in 2011. In this context, national leaders and international observers called for the South Sudanese to start nation-building to accompany the state-building project (Jok, 2011). Throughout the 22-year war that led to the CPA, southern Sudanese had fought each other. This fractured trust in a common southern Sudanese identity, militarised relationships and carved out new group boundaries and perceived divisions between groups.

Since the CPA, the new national government’s attempts to centralise power have prompted protests on the periphery, and opposition leaders have often shaped their mobilisation strategies around more localised identities such as ethnicity (Thomas, 2015). South Sudanese have asserted sub-national identities as an expression of exclusion from the state, thereby further fragmenting identities. For a short time after the December 2013 conflict erupted, commanders and political leaders in the armed opposition were able to coalesce a common Nuer identity, in response to the apparent targeting of Nuer by government soldiers in Juba. This was in contrast to previous decades, when Nuer leaders had found the Nuer notoriously difficult to unify politically (Johnson, 2003). This common Nuer political identity has not lasted. Other broad identities such as ‘Equatorian’ have similarly only had a fragile political weight. Yet people have increasingly relied on more fragmented, localised identities to survive the war and have distanced themselves from larger notions of a community, such as belonging to a South Sudanese nation.

Since the Anglo-Egyptian condominium in the early nineteenth century, and throughout the episodes of war in southern Sudan, customary courts have operated and have been a dominant source of public authority. Chiefs have kept order through customary courts, even when national politics have changed in times of war, peace or regime change. Customary law advocates have sometimes imagined southern Sudan as a single legal community, to the extent that it has a shared jurisprudence and experience that values the use of the customary law. This perspective has created discourses of commonality and a southern Sudanese sense of belonging. Customary laws were upheld in the south, sometimes through government policy and sometimes despite government rulings. This created a shared jurisprudence, procedure and legal language across very different southern legal regimes. This commonality exists alongside a more detailed landscape of contested and contrasting identity, seen in customary law’s horizontal plurality and the variety between groups’ substantive laws. While the common use of customary laws helps people imagine South Sudan as a shared legal body, it masks the diversity of substantive customary law, thereby permitting simultaneously both unity and diversity of law, culture and identity.

Proponents of federalism, especially ethnic federalism, appear to imagine that South Sudanese society is structured into a plurality of discrete ethnic groups over which an administrative structure can be neatly layered. For some policymakers, there are similar assumptions behind customary law. They assume the unity of socio-political groups (along tribal or ethnic lines) and imagine that there is a common moral code reflecting this unity, which serves as the foundation of the group’s customary law. The law itself often claims its authority through its association with a specific moral community (Rangelov, 2014).

However, studies have long noted that a unified legal system can become the cause, as well as the consequence, of a group’s unity (Kuper and Kuper, 1965). As Assaf Likhovski notes, ‘law is not merely a way to enhance separate, oppositional identities. Law can also serve as a common ground, a mediating factor in the conflict between […] norms, a way to express heterogeneous, hybrid, impure forms of the self’ (Likhovski, 2006: 214). Laws, including customary laws, not only resemble but also (re)imagine and constitute communities and ideas of belonging. Through customary laws and customary courts, governments, chiefs and South Sudanese citizens have reimagined and recreated both real and fictitious legal communities and ideas of identity. Lessons can be learnt from the experience of customary law in South Sudan about how a perception of shared identity can be maintained while other identities and notions of community can still be valued.

This chapter explores examples of how chiefs, judges and governments have used customary law not simply to reflect pre-existing layers, but also to remake them through constitution, co-option and contestation by local actors. It will provide, first, a brief introduction to customary law in southern Sudan and, second, discuss ideas of identity in dominant government discourses about southern Sudanese customary laws during the Anglo-Egyptian government, under the SPLA and into the post-CPA era. Customary law simultaneously promoted ideas of being southern and (re)created a diversity of moral and legal communities within this national identity. In the post-CPA era, the central government has attempted, but often failed, to control ideas of identity in customary law. The example of the Dinka laws of Wathalel will then be discussed; these have served as a mantra for a common western Dinka identity and a common southern Sudanese identity, while at the same time protecting the de facto diversity of substantive law. The Dinka laws of Bahr el Ghazal have a common name in the discourse, but have variation that has persisted because this commonality has not been constituted as a reality in the courts. Wathalel also gives us insights into how the law and local governance has, in fact, been shaped from the bottom up as much as by the decisions of national governments.

Customary law during the condominium years

In Anglo-Egyptian condominium Sudan in the 1920s, the government was moving formally from military campaigns of pacification into a civil administration, which included indirect rule and promotion of the rule of law. One of the most profound contributions of the condominium government in Sudan was its law and law courts, predominantly in the form of the chiefs’ courts and customary law (Johnson, 2003). Through the courts, the government hoped to increase public security (Howell, 1954) and enforce acceptance of the government (Johnson, 1986). Adherence to the courts was presented as synonymous with recognition of the government’s authority to settle disputes (Johnson, 1986), and of government authority more broadly.

The British use of customary law in southern Sudan reflected a mid-nineteenth-century shift in British jurisprudence which recognised the rules of the ‘native’ as laws, and which cautioned against the rapid application of western law in the colonies. The Sudan government, in the Chiefs’ Courts Ordinance of 1931, formally established the customary courts as a dominant form of legal and political authority across southern Sudan. Yet the apparently acephalous societies of southern Sudan offered the British no obviously recognisable, pre-existing legal authorities to co-opt as public authorities over the ‘native’ law (Johnson, 2003).

The government appointed as chiefs a diverse collection of individuals who had often gained authority through their ability to deal with government (Leonardi, 2013). The substance of the customary law was negotiated between the government and these chiefs, and it merged southern Sudanese ideas and practices with British notions of justice (Leonardi et al., 2010). After the nineteenth-century shift towards native law, the British government was hesitant to impose the entire substance of English law. Some Anglicisation of procedure was, however, imposed (Likhovski, 2006), encouraging a degree of commonality across chiefs’ courts.

Southern Sudanese...