International Development Law Organization

South Sudan: Law in a Fragile State

18 Apr 2013

Today (Friday April 19) marks a milestone in IDLO’s involvement in South Sudan, as the final sixteen-strong class graduates from one of the organization’s most transformative courses. With funding from the US State Department through its law enforcement arm (INL), the training has covered both the fundamentals of common law and what is known as ‘legal English’.

As it transitions away from Sharia-influenced law, South Sudan is not just swapping one legal system for another. Unusually among post-conflict and emerging nations, it is changing the very language in which justice is done. The Arabic associated with Northern domination is being dropped. The country is, in effect, culturally rebooting its judiciary, as part of the broader effort toward self-definition. Common law and English are seen as anchoring the young nation to the East African mainstream. 

“This paradigm shift is something we’ve had to align our training with,” says Ted Hill, IDLO Country Director for South Sudan, on the line from Juba. He goes on to describe the course as “neat little packages of subjects: criminal procedure; civil procedure; evidence; and, indirectly, English, with language instructors on hand to support the process.” 

The packages may be neat, but do not seem exactly ‘little’. Is two or three months long enough to transmit such complex notions, largely in a new idiom? “From my interactions,” Mr Hill says, “I can tell you that the students are extremely appreciative, and are making the most of the opportunity.” 

South Sudan and its judiciary are a work in progress – and will remain so for some time. While the judges’ readiness to absorb new ways is not in doubt, their number (fewer than ninety) falls far short of needs in a nation of eight million or more. Another seventy-five newly appointed ‘assistant judges’ are waiting to achieve full status: the process, involving on-the-job experience followed by formal training, is one which IDLO has been asked to support. But there is little doubt that as things stand, South Sudan, and its vast agrarian hinterland in particular, remains judicially underserved. 

“This is a country that is just creating itself,” Mr Hill explains. “The whole idea of a formal justice system is unfamiliar, or even foreign, to many people here. They have either lived in a state of conflict for more than twenty years, or come from traditional society, with little allegiance to, or control by, a central government. Building judicial capacity here is a massive task.” 

The gap between the need for justice and its availability is bridged by a variety of customary practices. It is estimated that up for four-fifths of South Sudanese use informal systems to press claims, seek redress or resolve disputes. Outside Juba and the main centers, customary justice is often the only kind there is.

How far to engage with informal justice systems, in Africa and elsewhere, is increasingly a matter of debate for the development community. In South Sudan, this balancing act is made all the more difficult by the lack of final constitutional provisions. In a country born of war, still plagued by violence and border disputes, constitution-making is critical. But a permanent constitution is not expected to come into force, if all goes well, until late 2014. Here too, IDLO has been providing technical assistance, smoothing South Sudan’s rocky path to modern statehood. 

A challenging job? 

Of course, Mr Hill says. But doable – with a little help from his friends on the ground.

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