Study on the Harmonisation of Customary Laws and the National Legal System in South Sudan

15 Aug 2016
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This report relies on the ascertainment study of customary laws in South Sudan to produce an analysis of the harmonisation of the various customary laws across South Sudan, as well as emerging alignment of customary laws with the Transitional Constitution of South Sudan (TCSS), international human rights law, and, as applicable, recent South Sudan legislation, such as the Land Act and Local Government Act that have clarified aspects of customary jurisdiction.

The objective of this report is to identify the natural synergies and potential conflicts of substantive law and jurisdiction that characterize the modern plural legal order of South Sudan, with the end goal of crafting a plural legal framework that preserves traditions and culture while strengthening the rule of law to create a peaceful, well-governed and prosperous South Sudan.

The analysis is limited to data obtained through the self-ascertainment studies. Many ethnic groups now only use customary law in civil disputes, while criminal and legal themes, e.g. cattle theft and arms trade (which have become too complex or inter-tribal in nature) are now taken up by the statutory system (according to the Local Government Act, or practice). In some communities, while the subject matter jurisdictional lines have been redrawn, there is still no formal judicial infrastructure, thus the customary system while not having de jure jurisdiction, retains de facto jurisdiction to hear cases and give sentences per criminal statute. Thus, it is important to consider customary law conflicts or areas of reform based solely on positive or active rights violations or conflicts, rather than a customary law’s failure to prosecute or punish where criminal jurisdiction clearly applies.