The politics of customary law ascertainment in South Sudan

Abstract

This article focuses on a strategy produced by the Government of Southern Sudan and the UNDP in 2009 for a written ascertainment of customary law. It argues that this strategy reflected a legalistic desire to regulate and order the hybrid, composite practices and laws of the local courts and to ensure certainty, predictability and substantive requirements such as equality and due process. Based on empirical research into local justice in 2009-10, the article argues that the goal of ascertainment was driven more by multiple – often contradictory – political agendas than by the actual needs of litigants. The universalising discourse of international rule of law programming can mask the politics of interventions. But in South Sudan, the politics of justice intersected with broader debate over decentralisation of government and over ethnic and cultural rights, at both national and local levels. The contradictions within the ascertainment strategy were in turn a product of long-standing tensions between local culture and universal norms, tensions that litigants and justice providers were exploiting creatively by employing multiple logics and laws to argue cases. The article explores the question of whether more certain or fixed laws would strengthen or hinder access to justice for the weak or poor, arguing that in the current context in South Sudan the interests of the latter were served more by the accessibility and flexibility of the law and justice provided by chiefs and by some county-level magistrates. The article explores the nature of this living law as it was manifest in actual court cases, and argues that it differed from the normative assertions of customary law that recording has tended to produce. Finally the article uses an example of recent tensions over customary law and justice in Rumbek to illustrate some of the potential pitfalls of trying to introduce greater certainty of judicial outcomes, and to reinforce our arguments for the politicised nature of law.