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For customary law is to survive must accommodate fundamental change

 

By Kuyang Harriet Logo Mulukwat

 

C

ustomary law was the fabric with which the South Sudanese communities were held together during the civil war. And customary law continues to play a significant role in transforming the legal system. A combination of legal systems (customary and statutory) operates side by side – with customary law playing a significantly prominent role not just in justice dispensation, but in regulating the lives of many communities. The application of customary law as it is raises significant concerns – on the ability of customary law to embed the concepts of international and domestic human rights standards to the key tenets of its application. Customary law is perceived to be at odds with contemporary and internationally accepted standards of human  and individual rights – in particular the status of women and children which has generated contentious  debate on the capacity and ability of customary law systems to uphold these rights.

Within society the role and status of women is seen as a reflection of a culture that places a premium on the cohesion and strength of the family as a basis of society. The male is the undisputed head of the family and marriage as means of strengthening the bonds between families and clans within tribes.

The subsequent legislation and legal framework consistently sought to regulate the application of customary law to factor in the concept of rights, vis-à-vis the notion of preserving the traditions and customs of the people.  For instance, The Transitional Constitution of South Sudan has entrenched a bill of rights in the Constitution – a bill which lays down the rights of all men, women and children as a basis for the enjoyment of basic human rights. The tone of the bill of rights is equal to that found in international and regional human rights standards. However, the same constitution derives its source of law from the customs and traditions of the people and places premium on the role that customary law can play in family matters. In the absence of a family law, customs regulates an area of law which has raised a lot of contentious debate, which continues to date.

The question has always been – if the anticipated change and transformation of customary law is eminent, who should be the drivers of this change? Should it be an external or an internal force? Let’s take for instance the consistent efforts of external drivers and partners who had anticipated changing the customary law and replacing it with a formal law, taking the shape of laws transplanted from jurisdictions considered progressive in respecting the rule of law – while the external drivers might have their valid reasons, their programming nearly constituted cultural imperialism – for the later part of 2004 the sensitivities of  the matter led to the slowing down of the pace of interventions providing an avenue for partners and donors to rethink their approaches on customary law. While an outsider would view the concept of customary law as inconsistent with human rights standards and deprives a section of the society from living in dignity or to the outside observer, particularly one whose culture is based upon the rights of the individual, the status of women in this role is that of a secondary citizen. Notwithstanding the fact that these cultural practices have evolved over countless generations and survived twenty years of war, some in the international arena view their effects upon the status and role of women to be repugnant.

To an insider, who understands the concept of customary law, it is the way of life and might see no problem with its application as it is. But an insider who has had the chance of living in the diaspora, the provisions of customary law would directly clash with their way of life and at the best fall short of guaranteeing the basic human rights as enshrined in the constitution.

There is no doubt the current status and role of women and children in society must and will change. There are however, considerable questions concerning how best to bring these changes about. Much of South Sudanese customary law has evolved to deal with personal issues of family, marriage children and wealth. To attempt to impose revolutionary change in human and individual human rights, particularly those of women, would come in direct conflict with most customary law systems and impact upon the very foundations of the majority of South Sudanese tribal societies.

That may be the preferred option but history shows that change will be out with the control of South Sudanese society. The forces for change will be external; a combination of the expectations of returning refugees, particularly from the developed world, and the deluge of information that will rapidly follow South Sudan’s inevitable communications revolution. If customary law is to survive these revolutionary forces it will have to accommodate rapid and fundamental change. 

 

The author is a South Sudanese lawyer and senior Consultant, a continuing legal scholar and writer on Democratic Governance and the Rule of Law and lectures at the College of Law, Juba University on a part time basis.

She can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.

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