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Challenges of Accountability: An Assessment of Dispute Resolution Processes in Rural South Sudan

Challenges of Accountability
An Assessment of Dispute Resolution Processes in Rural South Sudan
By David K. Deng
March 2013

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Photos: David K. Deng
This report presents findings from an assessment that the South Sudan Law Society (SSLS)
conducted on the accessibility of local justice systems across six rural counties of South Sudan.
The assessment included a comprehensive household survey that examined the legal needs of
populations residing in the six counties and the legal services that are available to service those
needs and numerous interviews with local justice service providers and users.
David K. Deng is the author. Victor Bol provided research assistance.
The views contained in this paper are those of the author alone.
They do not necessarily reflect the views of the SSLS, Pact, or their donors.
South Sudan Law Society (SSLS)
Hai Thoura
Juba, South Sudan
Phone: +211 (0) 955 073 591
Email: southsudanlawsociety@gmail.com
© 2012 South Sudan Law Society (SSLS)

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About the South Sudan Law Society (SSLS)

The South Sudan Law Society (SSLS) is a civil society organization based
in Juba. Its mission is to strive for justice in society and respect for human
rights and the rule of law in South Sudan. The SSLS manages projects in a
number of areas, including legal aid , community paralegal training, human
rights awareness -raising and capacity -building for legal profess ionals,
traditional authorities and government institutions.

Acknowledgeme nts

We would like to extend our profound appreciation to the wide range of
people and organizations whose assistance made this report possible, first
and foremost to the many government officials, community members, and
legal professionals that took part in our interviews and surveys. We are
especially grateful to the South Sudan National Bureau of Statistics (NBS)
for supporting this endeavor. We are also thankful to those external
reviewers that offered their valuable feedback on the methodology and draf t
report, as well as the internal reviewers within Pact and the SSLS. Casie
Copeland served as report editor and she , Godfrey Mupanga, Dina Parmer
and rest of Pact’s access to justice team in South Sudan provided
indispensable guidance and feedback through out the research project. Emma
Kandelaars assisted with the data analysis. This report was made possible
through a grant from the International Bureau of Narcotics and Law
Enforcement (INL) at the U.S. State Department. We would like to thank
Michael Gunia n, Mary Walz, Dianna English, and Chris Tatum at INL for
their support through the project.

Table of Contents
About the South Sudan Law Society (SSLS) ……………………………………………………………………………………..ii
Acknowledgements …………………………………………………………………………………………………………………..ii
Tables …………………………………………………………………………………………………………………………………..v
Figures ………………………………………………………………………………………………………………………………….v
Acronyms ……………………………………………………………………………………………………………………………viii
Map of South Sudan …………………………………………………………………………………………………………………ix
Executive Summary …………………………………………………………………………………………………………………..1
Recommendations …………………………………………………………………………………………………………………….3
To the Government of South Sudan ………………………………………………………………………………………………….3
To Legal Aid and Rule of Law Institutions ………………………………………………………………………………………..6
To the United Nations Mission in South Sudan (UNMISS) and the Donor Community ………………………………..8
Chapter One : Project Overview and Context ………………………………………………………………………………….11
1.1 Introduction ………………………………………………………………………………………………………………..11
1.2 Project Overview …………………………………………………………………………………………………………14
1.3 Methodological Note …………………………………………………………………………………………………….15
1.4 Sample Characteristics …………………………………………………………………………………………………..16
Chapter Two : Landscape of Justice in South Sudan …………………………………………………………………………18
2.1 Legal Pluralism in South Sudan ………………………………………………………………………………………..18
2.2 Challenges to Expanding Government Authority in Rural Areas …………………………………………………..19
2.3 Strengths and Weaknesses of Customary Courts ……………………………………………………………………..21
2.4 Blood Compensation and Extra-judicial Settlements of Homicide Cases …………………………………………26
2.5 Efforts to Expand State Presence and Better Regulate Customary Courts ………………………………………..27
2.6 Special Courts, Mobile Judges and Other Ad Hoc Responses ……………………………………………………..29
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2.7 Enforcement Gaps at the Payam and Boma Levels ………………………………………………………………….30
2.8 ‘The Prison Is Empty’ ……………………………………………………………………………………………………35
Chapter Three : Challenges of Accountability …………………………………………………………………………………37
3.1 Inter-communal Violence and the Effect of Historical Grievances ………………………………………………..37
3.2 Cattle Raiding, Abduction and Trans-boundary Crime ………………………………………………………………41
3.3 Gender Discrimination in Statutory and Customary Justice ………………………………………………………..47
3.4 Penalizing Resistance to Forced Marriage Under Customary Law ………………………………………………..50
3.5 The Pressure to Resolve Marital Disputes within Close Social Networks ………………………………………..52
3.6 Catering to Patriarchal Interests in Rape Cases ………………………………………………………………………55
3.7 Girl Child Compensation ………………………………………………………………………………………………..58
3.8 Excessive Use of Criminal Sanctions in Relation to Unpaid Debt …………………………………………………59
Chapter Four : User Choices and Perceptions ………………………………………………………………………………….64
4.1 Accountability Gaps and the Accessibility of Complaint Mechanisms ……………………………………………64
4.2 Trends in the Use of Formal and Informal Complaint Mechanisms ……………………………………………….70
4.3 Hypothetical Disputes and Preferred Complaint Mechanisms ……………………………………………………..77
4.4 User Perceptions of Procedural Fairness and Outcome Satisfaction ……………………………………………….84
Chapter Five : A System in Flux ………………………………………………………………………………………………….88
5.1 Blood Compensation and Capital Punishment in Murder Cases ……………………………………………………88
5.2 Attitudes on Adultery and an Approach to Reform …………………………………………………………………..96
Concluding Remarks ………………………………………………………………………………………………………………101
Annex I – Description of Project Areas ………………………………………………………………………………………..104
Annex II – Glossary ……………………………………………………………………………………………………………….113
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Tables
Table 1: Overview of Sample Population
Table 2: Sample Characteristics
Table 3: Time to Resolution for Physical Assault by Complaint Mechanism
Table 4: Time to Resolution for Theft by Complaint Mechanism
Table 5: Time to Resolution for Homicide by Complaint Mechanism
Table 6: First Forum Preferences
Table 7: Requests for Divorce by County
Table 8: Dispute Trajectories for Spousal Neglect
Table 9: Dispute Trajectories for Rape
Table 10: Dispute Trajectories for Adultery
Table 11: Dispute Trajectories for Homicide
Table 12: Dispute Trajectories for Theft
Table 13: Dispute Trajectories for Abduction
Table 14: Dispute Trajectories for Physical Assault
Table 15: First Assistance Preference for Physical Assault Hypo
Table 16: Dispute Trajectories for Physical Assault Hypo
Table 17: First Assistance Preference for Domestic Violence Hypo
Table 18: Dispute Trajectories for Domestic Violence Hypo
Table 19: First Assistance Preference for Adultery Hypo
Table 20: Dispute Trajectories for Adultery Hypo
Table 21: Dispute Trajectories for Murder Hypo
Table 22: First Assistance Preference for Murder Hypo
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Figures
Figure 1: Time to Resolution for Theft, Physical Assault, Homicide and Rape Cases
Figure 2: Homicide Rates by County
Figure 3: Was the Killing Intentional?
Figure 4: Perpetrator Profiles for Homicide
Figure 5: Dispute Incidence Rates
Figure 6: Types of Stolen Items
Figure 7: Theft Rates by County
Figure 8: Abduction Rates by County
Figure 9: Perpetrator Profiles for Abduction
Figure 10: Perpetrators of Abduction in Akobo and Pibor
Figure 11: Rates of Forced Marriage by County
Figure 12: Did the Household Member Request a Divorce?
Figure 13: Reasons for Asking for a Divorce
Figure 14: Rates of Rape by County
Figure 15: Was Your Household Member Imprisoned for Debt?
Figure 16: Debt Dispute Rates by County
Figure 17: Imprisonment for Debt by County
Figure 18: Should Debtors be Punished?
Figure 19: Preferred Punishments for Unpaid Debt
Figure 20: Ability to Access Complaint Mechanisms
Figure 21: Access to Complaint Mechanisms for Homicide, Theft and Abduction at the County Level
Figure 22: Access to Complaint Mechanism by Types of Perpetrator for Homicide, Theft, and Abduction
Figure 23: Preferred Complaint Mechanisms for Spousal Neglect, Rape and Adultery
Figure 24: Preferred Complaint Mechanisms for Homicide, Abduction, Theft and Physical Assault
Figure 25: Preferred Complaint Mechanisms for Physical Assault Hypo
Figure 26: Preferred Complaint Mechanisms for Physical Assault Hypothetical in Renk
Figure 12: Preferred Complaint Mechanisms for Domestic Violence Hypo
Figure 28: Preferred Complaint Mechanisms for Adultery Hypo
Figure 29: Preferred Complaint Mechanisms for Murder Hypo
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Figure 30: Perceived Fairness of Process
Figure 31: Satisfaction with Outcome
Figure 32: Satisfaction with How Local Institutions Manage Local Violence
Figure 33: Satisfaction with How Local Institutions Manage Non-local Violence
Figure 34: Satisfaction with Local Police Managing Local Violence
Figure 35: Satisfaction with Local Police for Non-local Violence
Figure 36: Do You Support the Death Penalty?
Figure 37: Support for the Death Penalty by County
Figure 38: Support for the Death Penalty by Ethnicity
Figure 39: Support for the Death Penalty by Age Range
Figure 40: Preferred Remedy for Murder
Figure 41: Reasons for Choosing Execution
Figure 42: Reasons for Choosing Compensation
Figure 43: Opinions on Punishing Male Adulterers
Figure 44: Opinions on Punishing Female Adulterers
Figure 45: Opinions on Punishing Male Adulterers by County
Figure 46: Opinions on Punishing Female Adulterers by County
Figure 47: Preferred Punishments for Male Adultery
Figure 48: Preferred Punishments for Female Adultery
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Acronyms
CPA……………………………….Comprehensive Peace Agreement
EA………………………………… Enumeration Area
EES………………………………. Eastern Equatoria State
GoSS……………………………… Government of Southern Sudan (pre-independence)
ICG………………………………. International Crisis Group
ICSS……………………………… Interim Constitution of Southern Sudan
IDP……………………………….. Internally Displaced Person
INL………………………………..International Bureau of Narcotics and Law Enforcement
Isis-WICCE……………………….Isis-Women’s International Cross-Cultural Exchange
J4P…………………………………Justice for the Poor Program at the World Bank
JIU…………………………………Joint Integrated Units
LRA……………………………… Lord’s Resistance Army
NBS…………….…………………South Sudan National Bureau of Statistics
OLS……………………………….Operation Lifeline Sudan
RVI………………………………. Rift Valley Institute
SAF………………………………. Sudan Armed Forces
SAS………………………………. Small Arms Survey
SCBC…………………………….. Sudan Catholic Bishops’ Conference
SIHA……………………………… Strategic Initiative for Women in the Horn of Africa
SPLM/A………………………….. Sudan People’s Liberation Movement and Army
SSLS……………………………… South Sudan Law Society
SSCCSE………………………….. South Sudan Center for Census, Statistics and Evaluation
UNICEF………………………….. United Nations International Children’s Emergency Fund
UNMISS…………………………. United Nations Mission in South Sudan
USIP………………………………United States Institute of Peace
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Map of South Sudan

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Executive Summary

Since the signing of the CPA in 2005 and independence in 2011, South Sudan has
struggled to establish fair and effective governance and rule of law institutions . In recent
years, prosecutors and magistrates have been deployed to some rural areas . S tate legal
advisers and judiciaries have begun to monitor customary courts and encourag e chiefs to
adhere to jurisdictional limitations . Several independent and local ly driven initiatives
have sought to improve justice services for rural populations, for example, by
incorporating women into customary court structures and addressing the historical legacy
of conflict through various forms of reparat ion.

Local justice systems — comprised of a diverse set of dispute resolution processes at the
county level and below — have been a key target of reform efforts. 1 Residents of rural
areas have access to a range of mechanisms to resolve their disputes includin g:
adjudication in customary or statutory courts; submission of formal complaints to police,
prosecutors and county commissioners; mediation services provided by local government
officials, traditional authorities, or families, friends and neighbors; and v arious
interventions by civil society actors, including peace -building initiatives and legal aid.

Despite the gradual reforms , however, fundamental problems of accountability remain.
Key challenges arise in terms of investigating and prosecuting perpetra tors of violence
and ensuring that governance institutions respect, protect and fulfill the rights provided
for in the Transitional Constitution and other sources of law . South Sudan has not yet
established a justice system that affords predictable and rel iable legal protection for the
poor and marginalized and meets the basic requirements for justice for its people . To
develop such a justice system, the Government of South Sudan must overcome a number
of challenges, including widespread impunity for inter -communal and politically
motivated violence and pervasive injustices in the customary and statutory courts .

Impunity for I nter -communal and Politically Motivated V iolence

Inter -communal violence is among the most intractable problems confronting the justice
system. In recent years, violent conflict has resulted in the deaths of thousands of people
in rural areas. The perpetrators of this violence are able to kill innocent people, loot
livestock , destroy property , abduct women and childre n and commit a cts of sexual
violence with impunity. Political interests, such as armed rebellions against the state and
government counter -insurgency campaigns, often contribute to this violence and heighten
the scale and intensity of conflicts.

South Sudan’s justice system has not developed workable solutions to securing
accountability for perpetrators of inter -communal violence. The difficulty of investigating
and prosecuting these acts is compounded when the perpetrators have easy access to
internal administrative b oundaries and soft international borders. Not only can they evade
1 Local government in South Sudan is comprised of the boma, payam, and county administrations. The
boma and payam level roughly correspond to the district and village levels, respectively.

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capture by escaping across county lines or into neighboring countries, but they can also
use cross -border trade to secure weapons and supplies.

The government’s current approach to combatin g inter -communal violence combines
political solutions, such as peace conferences and blanket amnesties, with harsh military
interventions, such as forced disarmament campaigns and organized attacks against
armed groups. This approach has at best provided short -term solutions to the problem of
inter -communal violence ; a t wors t, it has contributed to ongoing cycles of conflict .

Improving justice services for rural populations is an integral part of the solution. By
increasing accountability for violent crimes through public prosecutions and trials, the
government can ease the burden of response on political and military institutions. Legal
interventions are an appropriate entry point for reforms because they are not implicated in
conflict systems in the same manner as political and military institutions. A justice -based
approach would prioritize long -term and sustainable solutions based on the fair and
transparent application of the rule of law. When residents of rural areas see justice being
done, it li mits the likelihood of reprisal attacks and contributes to stability in rural areas.

Pervasive Injustices in Customary and Statutory Courts

Rural populations in South Sudan use local justice systems to resolve a wide range of
criminal and civil dispute s. However, the manner in which local justice systems define
punishable misconduct and their treatment of various groups sometimes imposes unfair
costs on disadvantaged parties.

The circumstances in which local justice systems discriminate against women and
children are well documented. For example, some courts recognize a cause of action for
families who want to force their daughters to marry men selected by the families. Rarely
do girls rely on courts to enforce statutory prohibitions on forced marriage . Families
sometimes use courts to pressure young women to marry their rapists so as to avoid the
stigma that society attaches to rape victims and secure bridewealth payments for the
family. Local justice systems rarely prosecute domestic violence unless a woman’s life is
at risk. When women retaliate, injuring or killing their abusive husbands, they are often
punished with harsh prison sentences that do not take into consideration the mitigating
factor of abuse. Discriminatory practices such as these disco urage women from reporting
abuses and reinforce patriarchal power structures that undermine women and children’s
statutory and constitutional rights.

The challenges of accountability described in this report present fundamental obstacles to
the creation o f a fair and efficient justice system. Overcoming these obstacles will require
the sustained effort of the government and citizens of South Sudan and their international
partners. There are several areas in which targeted reforms and interventions by
gover nment policy -makers and their international partners could help to strengthen local
justice systems.

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Recommendations
To the Government of South Sudan:

On I mproving Access to Justice in Rural Areas

1. Expand, extend and strengthen justice services and programming to the
payam levels to ensur e more complete geographical coverage of rural areas .

Research data shows wide divergences in the strengths of justice institutions in
the county seat versus those in the outlying payams. Within the county seat, there
is typically a strong police presence, criminal matters can be efficiently
investigated and customary judges have less trouble enforcing their decisions. In
more remote parts of counties , local institu tions have less capacity to investigate,
prosecute and enforce legal decisions. When people in rural areas do not have
confidence in the ability of their local leaders to resolve their disputes, they are
more likely to resort to self -help solutions, such a s revenge killings. It is therefore
important to cover each payam in a given county in a systematic and context –
specific manner.

2. Make increased use of special courts and mobile judges in rural areas.

South Sudanese law allows the Chief Justice of the S upreme Court to create
special courts “presided over by a High Court Judge…[and] assisted by two
assessors for the trial of tribal or sectional conflicts and disputes involving capital
offences.” 2 Such courts have already been used to address specific co nflicts in
Lakes and Jonglei states. The existing special courts should be subject to further
stud y in order to better understand their strengths and weaknesses and to ensure
that judges have the capacity to handle the scale and complexity of the crimes th at
take place in the context of large -scale inter -communal violence. Steps should
also be taken to ensure that the procedures and outcomes in special courts are
compliant with South Sudanese and international legal standards. Increasing use
of special cour ts and mobile judges in rural areas would extend justice services to
underserved areas and address conflicts before they become intractable.

3. Develop incentives to encourage judges to maintain a sustained presence in
rural areas.

The shortage of statutor y court judges in rural areas undermines the effectiveness
of local justice systems and restricts justice options for rural populations. In order
to discourage the tendency of judges to remain in Juba and other more developed
areas, the Judiciary could exp lore various employment incentives and
disincentives. For example, the Judiciary could assign judges to serve in their
home areas, rather than sending them to other areas, as has been done in many of
2 Government of South Sudan, Code of Criminal Procedure Act, ch. II, § 16 (2008) .

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the counties assessed in this report. Judges who are ser ving in their home areas
may be more likely to remain at their assigned posts for longer periods of time.
The Judiciary could also consider various forms of monetary incentives to
encourage judges to remain at rural posts for longer periods of time.

On L egal Reform

4. Develop a Legal Aid Act with the goal of creating an enabling environment
for legal aid in South Sudan.

The prevailing model of legal aid in the country seeks to provide legal services
only in the most serious of criminal cases. In a typical legal aid case, the
government or one of its international partners will provide funds to hire a private
lawyer to represent a client accused of having committed a capital offense. This
model of legal aid may be effective at providing a high quality of le gal services to
a very small number of clients, but each case comes at a high cost and this model
cannot sufficiently address the vast need for legal aid in South Sudan. It is
therefore important that the Ministry of Justice take the lead on revising the
government’s legal aid strategy and develop a Legal Aid Act which takes into
account available funding and human resources from the Government of South
Sudan and international partners.

5. Clarify the role of paralegals in South Sudan.

In South Sudan, paral egals perform important functions in lobbying for reforms in
local justice systems, channeling cases to appropriate forums and mediating minor
disputes that arise within their home areas. However, they do not have legal
capacity to represent clients in sta tutory courts.

The government is making efforts to standardize the licensing of community
paralegals , which may give them capacity to represent criminal defendants in
minor matters. In developing these regulations , licensing should be made optional,
not mandatory, so as not to impede the important functions that non -licensed
community paralegals perform outside of the formal system . Mandatory licensing
would reduce the number of community paralegals in remote areas and decrease
the number of women, many o f who are not able to leave family duties to travel to
Juba for trainings and licensing. Therefore, it is critical that the roles of unlicensed
community paralegals working outside the formal system are clarified in any
forthcoming regulations.

In addition to advocacy in statutory courts, c ommunity paralegals could also be
encouraged to speak out on behalf of people’s constitutional and statutory rights
in customary courts as an additional form of oversight.

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6. Develop a Family Law Act that provides a statutory alternative to marriages
under customary law.

A Family Law Act, based on research that identifies pressing issues, should be
designed to give meaning to the rights in the Transitional Constit ution and the
Child Act and should lay out clear p rocedures for combatting practices that harm
women and children, such as forced marriage, abduction, denial of inheritance
rights, the circumstances in which individuals may apply for a divorce and the
distribution of property upon divorce.

7. Develop a Gen der -based Violence Act to establish and strengthen
mechanisms that protect women and girls from violence.

A gender -based violence law could explicitly prohibit the mo st egregious and
widespread forms of g ender -based violence by defining and prohibiting d omestic
violence, including marital rape , establishing criminal sanctions for parties that
practice or facilitate girl child compensation and set ting the minimum marital age
at 18. Institutional mechanisms, such as a Task Force on gender -based violence or
an alternative mechanism, should be established to ensure proper implementation
of the law and allow the many women and girls across South Sudan demanding
protection of their rights to voice their concerns.

On E nhanced Support for Military Justice Services

8. Expand training on South Sudanese laws, human rights and humanitarian
law at the sub -national level for officers and enlisted men.

The SPLA’s transition from a guerilla movement to a professional army will take
many years to complete. Basic tra ining in relevant standards and codes of conduct
is indispensable to this transition. In order to build a military culture that fully
respects civilian institutions and encourages military personnel to abide by
domestic and international law, institutional and capacity building activities must
reach every level of the military hierarchy, not just the national leaders.

9. Ensure Judge Advocates are deployed at Divisional Headquarters and below
and accompany any significant deployment of troops. Develop incenti ves for
legal professionals to serve in the military justice system.

The deployment and legal empowerment of Judge Advocates would represent a
major step forward for military justice in South Sudan. Including Judge
Advocates in all significant deployment s of troops ensures that the rights of both
civilians and accused soldiers are protected. The SPLA’s Military Justice
Directorate should be properly resourced to enable its functioning and to attract
qualified lawyers. To encourage legal professionals to p ursue a career in military
justice, incentives such as scholarships and care er placement services could be

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made available to people who serve in the military justice system for a set period
of time.

To Legal Aid and Rule of Law Institutions:

On I mproving Access to Justice for Disadvantaged Populations

10. Support victims of sexual assault to file cases against perpetrators .

In many countries , state prosecutors are responsible for supervising the
investigation and prosecution of crimes such as sexual assault and rape. However,
in South Sudan , private attorneys acting on behalf of their clients can litigat e
cases and request both criminal penalties and civil remedies. This provide s
opportunities for legal aid provision in cases of sexual violence. Legal aid
attorneys could support women whose rape claims are not taken forward by either
the police or prosecutors to file cases against individuals who assaulted them .
Attorneys defending women charged with physically assaulting or killi ng their
spouses or other family members in response to gender -based violence should
also use past experiences of domestic v iolence to argue for mitigating
circumstances and reduced sentences. Government support for initiatives such as
these could be stren gthened by developing clear policy objectives and
implementing legislation for government efforts to combat sexual violence in
South Sudan.

11. Explore alternative sentences to imprisonment for people who are unable to
pay their debts.

The application of c riminal sanctions to civil wrongs , such as imprisonment for
debt, is inappropriate and risks alienating local populations and delegitimizing the
local justice system. Legal aid organization should advocate for alternative
sentencing options. Such options m ay include the attachment of non -essential
property to satisfy debts, mandatory community service, behavioral health
programs, suspended sentences and delayed adjudications. These alternatives are
often less costly than extended imprisonment and are more l ikely to lead to
reformative outcomes for culpable parties.

On Better Resolution of Murder Cases

12. Develop a strategy for providing criminal defense for individuals accused of
capital offenses.

According to the Transitional Constitution of South Sudan, a ny person who is
accused of a crime punishable by death must have access to legal advice and
representation. In South Sudan, where m ost people accused of murder cannot

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afford a lawyer, a legal aid program is the only viable means to ensuring this
right .

There are a few basic strategies that organizations providing legal aid, whether
government or non -governmental, could adopt in addressing capital offenses .
First , when there is an unassailable case against the defendant, the attorney could
make an effort to encourage the victim’s family to opt for compensation and a
prison term in lieu of the death penalty. Second, for those already convicted, the
attorney could first try to contest questionable decisions in the court in which they
are delivered prior to appealing to a higher level court . Third, a ttorneys could
systematically appeal the death row convictions in the courts of appeals in Juba,
Malakal and Rumbek. Such efforts could be done in coordination with the
Department of Legal Aid a nd Human Rights in the Ministry of Justice. Fifth, l egal
aid providers could select certain cases to appeal to the Supreme Court, with a
view to eventually obtaining a ruling on the unconstitutionality of the death
penalty. Sixth, for cases in which the ti me period for appeals has lapsed, the
attorney could try to develop a well -reasoned argument for why the time period
should be extended to allow for an appeal . These strategies would serve to address
the most serious of the challenges presented by the use of capital punishment.

13. Be willing to n egotiate blood compensation as a customary matter alongside
courtroom trials , when necessary.

South Sudanese law recognizes homicide as both a criminal matter and a civil (or
customary) matter, in which the victim’s family can be paid compensation for
their loss in the form of cattle. Compensation agreements are traditionally
negotiated in customary courts, however, th e government has recently begun to
limit customary courts’ jurisdiction over homicide cases , restricting them from
negotiating compensation agreements .

A long -term solution to addressing the high rates of homicide in South Sudan
requires the involvement of statutory courts whose decisions are enforced by a
capable police force. Both t he state and the public have an interest in seeing
murder pun ished with criminal sanctions since remedies that are purely civil in
nature can fail to deter individuals from committing premeditated killings.
Furthermore, many chiefs lack the expertise to adjud icate homicide cases in
accordance with statutory standards and the power to enforce sanctions on unruly
parties.

Given these challenges, i n the short term, chiefs could be permitted to
immediately negotiate blood compensation awards while the accused rem ains in
police custody awaiting trial . This would help ensure stability in the aftermath of
a homicide and eas e the burden on statutory courts .3 If chiefs are completely
3 It m ay also be necessary to take steps to ensure that the accused’s payment of compensation does not
prejudice subsequent trial s in statutory court.

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barred from intervening in homicides — as they have recently been in many
areas — the fami lies of the homicide victim may be left waiting for months or
years before the murderer is sentenced in the statutory courts. In some cases,
during this wait for justice, victims’ families take the law into their own hands and
kill members of the accused’s family as revenge for the ir loss. These cycles of
violence can continue indefinitely and are often at the root of larger conflicts.

To the United Nations Mission in South Sudan (UNMISS) and the
Donor Community:

On Incorporating Justice and Accountability as a Benchmark to the End of UNMISS’s
Mission in South Sudan

14. Integrate justice and accountability into UNMISS strategies as integral
elements of conflict reduction, protection of civilians and stabilization in
South Sudan and as a necessary benchmark to the end of UN MISS’s mission .

Despite nearly two years in South Sudan, UNMISS has no actionable justice and
accountability strategy and has devoted insufficient attention to the government of
South Sudan ’s efforts to investigate and prosecute those responsible for violence .
UNMISS provides significant and high -level support for short -term, political
settlement of disputes, typically through peace conferences or peace processes.
Nearly all such efforts end with agreements, often highly specific , on the need for
accountability and enhanced justice services. UNMISS should move beyond
operating in a ‘ crisis response ’ mode — in other words, only providing support to
high -profile, limited -impact efforts — and become more strategic in linking short –
term c onflict mitigation support with long -term support for improvements in
justice and accountability. This type of strategic action would better enable
UNMISS to support South Sudanese peace actors and to deter and hold
accountable perpetrators of violence aga inst civilians.

On Strengthening Donor Support to the Justice Sector

15. Integrate support to the justice sector with conflict reduction programming.

Justice and peace are intimately intertwined and cannot be easily separated from
one another. For the past eight years, peace has been prioritized and blanket
amnesties and impunity have been the norm. This has helped to bring people into
peace processes that otherwise might have resorted to violent tactics and to
establish the foundations of governance in the country. However, an approach that
prioritizes peace at all costs is not sustainable in the long term. The donor
community should support the governm ent of South Sudan to begin the transition
towards increased accountability for inter -communal and political violence. The
first step in this regard is to better understand the links between conflict and

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justice and to carefully incorporate elements of sup port to the justice sector into
conflict reduction programming.

16. Ensure programming is conflict sensitive and appropriate to the context in
rural South Sudan.

Conflict sensitiv e programming requires a thorough understanding of the complex
socio -political dynamics that underpin violence in South Sudan. In order to
generate this understanding, the donor community should invest time and
resources into pre -programming research and analysis , including drawing from
existing sources of information . These tasks require people and institutions that
have experience with cutting -edge research techniques, an in -depth knowledge of
South Sudan and its history and practical experience working in pluralist legal
systems .

17. Prioritize reform at regional, sta te, county and payam levels to prevent
further cent er -periphery imbalances.

Decades of conflict in Sudan have demonstrated the danger of pursuing grossly
unequal development paths for different regions. Under the administration of the
Government of Sudan , South Sudan faced decades of discrimination and
marginalization in a national order that denigrated Southern Sudanese identities
and forced assimilation into a national identity that did not reflect the diverse
realities of the country. South Sudan canno t afford to replicate that mistake. The
donor community should therefore focus its programming in an effort to develop
all regions equitably and in a manner that is responsive to the particular needs of
local populations. A greater focus on programming in rural areas is indispensable
to this approach.

18. Coordinate efforts with key counterparts in the government of South Sudan,
civil society and with other donors.

The South Sudan Development Plan was a first step in setting a framework for
donor coordinati on . However , donors could do much more to improve
coordination of support to the justice sector. To ensure justice is improved for all
South Sudanese, coordination should not be limited to the national level but also
state and local levels to ensure funding is targeted to areas most in need. Donor
coordination should also take into consideration the r isks implementing partners
face when coordinating with UNMISS , given that it is a military actor and
sometimes unpopular with South Sudanese .

10

19. Consider the impact of donor portfolios among judicial, legislative, and
executive branches of state and natio nal governments.

Nearly all donors in South Sudan grant a dis proportion ate amount of support to
Executive branch actors as compared to the Judicial or Legislative branches . The
national level also receives a disproportionate share of resources when compa red
to the state and local levels. Donor support should be cognizant that the Judicial
and L egislative branches are often less developed or less politically powerful,
particularly at the sub -national level. The Government of South Sudan is in the
process o f transitioning from a one -party centralized system to a multi -party
federal government. To limit the potential for donor support to contribut e to a
centraliz ation of power in the Executive, donors should evaluate individual and
overall portfolios to ensur e that funding is in line with their stated priorities.

11

Chapter One
Project Overview and Context
1.1 Introduction

Since pre -colonial times, local justice systems have been the primary means by which
South Sudanese have sought to resolve their disputes. Local justice systems cover a broad
array of formal and informal complaint mechanisms, ranging from mediation by fami ly,
friends and neighbors to adjudication by chiefs and statutory court judges. They can often
be distinguished from the more formal state Judiciary by the emphasis that they place on
restoring social relationships through a process of negotiation and settlement, as opposed
to clearly deciding in favor of one party over the other. 4

In the early twentieth century, the British colonial empire asserted its control over Sudan
through the system of indirect rule. 5 Local justice systems incorporated new stru ctures,
became more formalized, and began to assert the powers of the colonial authority. 6
Criminal sanctions became available to chiefs and other traditional authorities for the first
time, as the colonial administration built prisons in rural areas and a uthorized senior
chiefs, under the supervision of government judges, to sentence people to death by
hanging for capital offenses. 7 Statutory courts applying an amalgam of common law,
4 Francis Deng recounts a popular case that illustrates the alien nature of adversarial court procedures to the
Dinka. Frustrated by the bizarre behavior of a hired attorney s peaking solely in favor of the accused, one of
the Dinka witnesses in the courtroom exclaimed, “The way you are talking, you must have been bribed.”
According to Deng, the justice among the Dinka requires anyone involved in the settlement of a dispute to
balance the opposing positions in an effort to reconcile them. FRANCIS M. DENG , CUSTOMARY LAW IN THE
MODERN WORLD : THE CROSSFIRE OF SUDAN ’S WAR OF IDENTITIES 25 (2009) [hereinafter DENG ,
CUSTOMARY LAW ]; see also CHERRY LEONARDI ET AL ., UNITED STATES INSTITU TE OF PEACE (USIP) AND
THE RIFT VALLEY INSTITUTE (RVI), LOCAL JUSTICE IN SOUTHERN SUDAN 27 -29 (2010). 5 According to Douglas Johnson, indirect rule as it applied to Sudan had two main goals: (1) it was
intended to keep costs down and administrative organiz ation simple by allowing the Sudanese to manag e
‘non -essentials’ on their own and (2) it had an evolutionary aim to develop native institutions through “the
inevitability of gradualness,” shedding what was “evil and barbarous,” but nurturing those aspects which
administrators deemed locally valuable. Douglas Johnson, Judicial Regulation and Administrative Control:
Customary Law and the Nuer, 1898 -1954 , 27 JOURNAL OF AFRICAN HISTORY 67 –68 (1986). 6 The manner in which the existing customary systems related t o the systems imposed by British indirect
rule varied across the country. In Abyei, for example, the pre -existing chiefly lineages assumed the role of
government chiefs. See generally , FRANCIS M. DENG , THE MAN CALLED DENG MAJOK : A BIOGRAPHY OF
POWER , POLYGYNY AND CHANGE (1986). Yet when the Murle of Pibor County discovered how the system
of indirect rule worked, they reportedly put forward their most incompetent men as their official chiefs and
proceeded to ignore these chiefs as they tried to implemen t their duties. JONATHAN ARENSEN , MURLE
POLITICAL SYSTEMS AND AGE -SETS 7, available at http://www.cmi.no/file/1964 -Murle.pdf . 7 According to Sharon Hutchinson, “During the 1930s and 1940s court preside nts [senior government
chiefs] were sometimes pressured into imposing the death sentence on individual Nuer who had been
charged under the Sudan Penal Code with ‘culpable homicide amounting to murder’. In such cases, the
individual chiefs involved did not see themselves as personally responsible for such killings: They were
merely deferring to the will of the government or the toruok (‘foreigners’).” SHARON E. HUTCHINSON ,
08
Fall

12

statutory law and customary law were also established in urban areas, pro viding
additional options for complainants seeking justice for perceived wrongdoings.

Two successive civil wars (1955 -72 and 1983 -2005) brought further changes to local
justice systems in South Sudan. During the second civil war, the Sudan People’s
Libera tion Army (SPLA) and other armed groups took over many judicial functions at a
local level, undermining the role of traditional authorities in dispute resolution and
rendering them subordinate to political and military interests. Yet, despite the social
up heaval and shifting politics that accompanied the wars, customary law as applied by
chiefs and other local leaders remained the primary means by which South Sudanese
sought to resolve their disputes.

Local justice systems offered several advantages in th e wartime context. Throughout
South Sudan’s history, no central authority had ever successfully extended its sovereignty
into the rural peripheries of the country. Indirect rule through local justice systems was
seen as an efficient method of maintaining s ocial cohesion in these ungoverned spaces.
Furthermore, since the judicial decisions of traditional authorities were based on people’s
customs and social norms, they often enjoyed greater acceptance among local populations
than rules passed by a faraway ce ntral authority or by the various armed groups that
operated in South Sudan during the war.

Since the end of the second civil war in 2005 and South Sudan’s independence in 2011,
the Government of South Sudan has continued to rely heavily on local justice systems for
maintaining social order in the country. The SPLA’s transition away from the exercise of
judicial functions, while not fully complete, was a significant step in the establishment of
civilian governance in rural areas of South Sudan. This trans ition has been more gradual
in some rural areas as many wartime commanders are now Governors and County
Commissioners and continue to govern with a military mindset.

As part of the reform process, the Southern Sudan Legislative Assembly passed the Local
Government Act in 2009. The Local Government Act empowers traditional authorities,
who preside over customary courts at the county, payam and boma levels of local
government, to play a dual role as judges and local administrators. 8 These traditional
author ities have both state and non -state characteristics — they sometimes receive salaries
from t he state and are answerable to C ounty Commissioners. H owever, traditional
authorities are also seen as the custodians of community law and custom, which is largely
ou tside the control of the state. 9

NUER DILEMMAS : COPING WITH MONEY , WAR , AND THE STATE 108 -09 (1996) [hereinafter HUTCHI NSON ,
NUER DILEMMAS ]. 8 Government of South Sudan, Local Government Act, ch. 10, § 98(2) (2009). The SPLM/A first
introduced thes e local governance structures following the 1994 National Convention in Chukudum. See
generally , OYSTEIN H. ROLANDSEN , GUERRIL LA GOVERNMENT : POLITICAL CHANGES IN THE SOUTHERN
SUDAN DURING THE 1990 S (2005). 9 As Martina Santschi notes, similar dynamics were apparent during the war as well, “During the war the
SPLA/M as well as the Sudanese government relied on chiefs who found themselves in a challenging role
wedged in between the armed forces (of both parties to the conflict) and the communities. Apart from
collecting taxes and acting as j udges for customary law courts, chiefs also had to supply the SPLA with

13

Despite the reforms that the government has tried to introduce in recent years, numerous
problems of access to justice remain. Statutory court judges and government prosecutors
have restricted the jurisdiction of customary courts without providing alternatives for
populations residing in rural areas where there are no judges. The lack of an effective
police force, particularly at the payam and boma levels of local government, makes it
difficult for chiefs to enforc e judicial decisions, and logistical difficulties, such as lack of
transportation to state courts, that justice service providers and disputing parties
encounter when maneuvering through state hierarchies sometimes leads to long delays in
judicial processe s and unlawfully extended detentions in rural areas.

There are also more fundamental problems of accountability that arise. While local
justice systems regularly receive and resolve certain types of disputes, especially those
relating to marital issues a nd sexual crimes, the manner in which they define the
misconduct often imposes unfair costs on women and children and serves to reinforce
patriarchal power structures in local societies. Furthermore, existing justice services have
been almost completely un able to pursue accountability for the inter -communal violence
that has taken the lives of thousands in the postwar period. Efforts to investigate and
prosecute criminal activity are particularly complicated when perpetrators evade capture
by crossing count y administrative boundaries and international borders or when they are
protected by communities and political leaders who are unwilling to turn them over for
prosecution. Until the new nation finds a way to bridge these accountability gaps, people
will con tinue to take the law into their own hands through revenge killings and other self –
help measures . T hose with less negotiating power in local societies will be forced to bear
the costs of other people’s misconduct.

This report provides an assessment of lo cal justice systems in six rural counties across
three states: Budi and Ikotos counties in Eastern Equatoria State; Akobo and Pibor
counties in Jonglei State; and Nasir and Renk counties in Upper Nile State. Chapter One
provides relevant background informa tion, including an overview of the Access to Justice
in South Sudan Program . Chapter Two delves deeper into the landscape of justice in
South Sudan by outlining the problems confronting local justice systems and recent
attempts at reform. Chapter Three det ails certain challenges of accountability that arise in
relation to inter -communal homicides, trans -boundary cattle theft and abductions, gender
discrimination in customary justice, and excessive use of criminal sanctions in relation to
unpaid debt. Chapte r Four provides additional information about the choices that people
make when navigating local justice systems, their preferred complaint mechanisms when
confronted with different types of disputes and their perceptions of procedural fairness
and outcome satisfaction with different complaint mechanisms. The conclusion
summarizes the most important findings and outlines certain targeted reforms that can
help to strengthen local justice systems in the current context.

food and new recruits.” Martina Santschi, Between Community and Government: Traditional authorities in
post -conflict Southern Sudan , 15 TSANTSA 109 (2010).

14

1.2 Project Overview

In 2011, Pact, the South Sudan Law Society (SSLS) and several other partner
organizations began implementing the Access to Justice in South Sudan Program , funded
by the United States Department of State’s Bureau of International Narcotics and Law
Enforceme nt Affairs (INL). The goal of the program was to increase citizens’ access to
justice in six rural counties. Program activities were centered on a series of legal aid
clinics established in five of the six counties — Budi, Ikotos, Akobo, Nasir, and Renk —
with the goal of providing free legal services to people who would otherwise be unable to
afford them. These legal services consisted mainly of legal advice, mediation and legal
representation in statutory courts. The legal aid staff also conducted trainings w ith local
justice service providers and monitored the activities of justice institutions at the local
and state levels.

Such services have never before been available to South Sudanese. By providing free
legal services through a staff of full -time, in -hou se lawyers, the Access to Justice in South
Sudan Program seeks to tackle many of the systemic problems in the justice system with
better coordination and low cost interventions . Some of the issues the program has
targeted include: unlawful detention and ex tended remand periods, more appropriate use
of civil remedies and criminal punishments by judges and traditional authorities, the
provision of legal defense for all people accused of a capital offense, and the protection
of women and girls from sexual viol ence.

The program also included a research component consisting of an assessment of local
justice systems in the six rural counties. The purpose of the assessment was to provide an
empirical basis for understanding the current reality of legal needs of r ural populations,
the range and effectiveness of justice services available to serve those needs and to
identify priorities for reform. 10 Due to the geographic limitations, the assessment did not
aim to provide a representative picture of rural justice syst ems across South Sudan.
Rather, its goal was to generate highly specific data about the justice systems in these six
counties.

10 Relatively little is know n about local justice systems in South Sudan. A number of studies have been
conducted on the traditional justice systems of certain ethnic groups and how specific customary norms
relate to the political, social, and economic processes found in certain area s. See e.g., FRANCIS M. DENG ,
TRADITION AND MODERNIZATION : A CHALLENGE FOR LAW AMONG THE DINKA OF THE SUDAN (1972);
FRANCIS M. DENG , CUSTOMARY LAW , supra note 4; ALEU AKECHAK JOK ET AL ., WORLD VISION
INTERNATIONAL AND THE SOUTH SUDAN SECRETARIAT OF LEGAL A ND CONSTITUTIONAL AFFAIRS , A STUDY
OF CUSTOMARY LAW IN CONTEMPORARY SOUTH SUDAN (2004) [hereinafter ALEU AKECHAK JOK ET AL ., A
STUDY OF CUSTOMARY LAW ]; JOHN WUOL MAKEC , THE CUSTOMARY LAW OF THE DINKA PEOPLE OF
SUDAN (1988); DENG BIONG MIJAK , UNITED NATIONS DEVELOPMENT PROGRAM (UNDP), THE
TRADITIONAL SYSTEMS OF JUSTICE AND PEACE IN ABYEI (2004). Researchers have devoted less attention to
studying how local justice systems function in practice and their effectiveness in servicing the legal needs
of rural popu lations. Several important studies in recent years have begun to fill this gap in the literature.
See e.g., LEONARDI ET AL ., LOCAL JUSTICE , supra note 4; TIERNAN MENNEN , HAKI , COMBATING GENDER –
BASED VIOLENCE IN THE CUSTOMARY COURTS OF SOUTH SUDAN (2011); Government of South Sudan,
Ministry of Gender, Child and Social Welfare et al. , Gender -Based Violence and Protection Concerns in
South Sudan (n.d.) [hereinafter Ministry of Gender, Gender -based Violence ].

15

1. 3 Methodological Note

The assessment used complementary quantitative and qualitative techniques. This
approach allowed us to gather general data about populations in the six counties and to
concretize that data through highly specific information on complaint mechanisms in
each county.

Quantitative research

In March and April 2012, with the assistance of the South Sudan National Bureau of
Statistics (NBS), a household survey was undertaken to guage people’s perceptions and
experiences with the justice system in rural areas of South Sudan. The goal of the surv ey
was to gather baseline information about people’s experiences with the justice system,
their perceptions of how well the system served them based on such experiences and their
opinions about justice. The NBS developed a sample of 1,520 randomly selected
households in the six counties (see Table 1 ).

Table 1: Overview of Sample Population
County Population Males Females HHs Total
18+
% 18+ % of
Sample
# of HHs
in Sample
EAs
Renk 137,751 73,969 63,782 22,491 78,782 57% 17% 270 27
Nasir 210,002 115,641 94,361 29,030 113,081 54% 25% 380 38
Akobo 136,210 75,314 60,896 17,713 76,493 56% 17% 260 26
Pibor 148,475 76,018 72,457 22,741 80,466 54% 18% 27 0 27
Budi 99,199 50,103 49,096 16,773 54,634 55% 12% 180 18
Ikotos 84,649 42,106 42,543 16,521 47,112 56% 10% 160 16
Totals 816,286 433,151 383,135 125,269 450,568 55% 100% 1520 152

These 1,520 households were distributed across 152 census enumeration areas (EAs). 11
EAs are predetermined sets of data categorized according to geographical area that the
NBS generated during the 2008 national census. 12 Teams of enumerators interviewed ten
households in each EA: two households in the middle of the EA and two households ea ch
in the north, south, east and west of the EA. 13 Two respondents were interviewed per
household: the household head provided general information about the household and its
members and a second randomly selected respondent over the age of 18 provided
info rmation about their opinions on justice and the household’s experiences with the
justice system. 14 While this approach had an in -built disadvantage in that the randomly
11 Three questionnaires were misplaced en r oute back from Pibor, leaving a sample size of 1,517
households. 12 Prior to independence, the NBS was called the South Sudan Center for Census, Statistics and Evaluation
(SSCCSE). 13 The South Sudan National Bureau of Statistics (NBS) generated detailed map s of each enumeration are a
(EA) which enumerators used to identify respondent households. The first household in each pair was
selected randomly and the second household was selected by skipping three households from the first. 14 Enumerators used a Kish g rid to randomly select the individual respondent. The household head and the
individual respondent were both interviewed separately. This approach provided for approximately 3,040
respondents total.

16

selected individual respondent was not necessarily the household member that
experienced the dispute, the methodology generated statistically significant data on a
range of disputes in a reasonably efficient manner and without overrepresenting the views
and experiences of the household head.

The two questionnaires used in conducting the interviews were adapted from a model
developed by the World Bank’s Justice for the Poor Program (J4P) in Indonesia. 15 The
Household Questionnaire gathered basic information about the household and its
members. The Individual Respondent Questionnaire asked r espondents for their opinions
on how to punish certain types of misconduct, their preferred complaint mechanisms for
resolving different types of disputes and their levels of satisfaction with local institutions.
Individual respondents were asked detailed questions about the incidence of ten different
types of disputes in the household, the complaint mechanisms that people used in seeking
justice for the perceived wrongs and their views of and experiences with those complaint
mechanisms. The ten disputes fo cused on were: forced marriage, spousal neglect, debt,
theft, physical assault, abduction, homicide, premarital sex, adultery and rape.

Qualitative research

The qualitative research was the main vehicle through which researchers sought to
understand how and why people make certain types decisions in navigating local justice
systems and to ensure the data was situated in the appropriate historical, cultural and
political context. The techniques used included: a literature review covering both primary
and secondary source material; field visits to observe justice institutions at the county
level, including prisons, customary courts, statutory courts, and police detention facilities;
semi -structured interviews with state and local government officials, polic e and prison
services, traditional authorities, detainees and users of various complaint mechanisms;
and interviews in areas beyond the six target counties to provide comparisons and link
local experiences with state and national institutions and processes .

1.4 Sample Characteristics

On the whole, the sample population was largely representative of South Sudanese
society. However, some idiosyncrasies of rural populations become evident in the county
level data, such as the homogeneity of ethnic groups in some counties, the diversity of
ethnic groups in others and the prevalence of pastoralists in certain areas (see Table 2 ).

Table 2: Sample Characteristics
Characteristics Description
Urbanicity The six counties were selected, in part, due to the unique insights they
offered into rural justice systems. However, it should be noted that several of
the EAs in these counties are designated as urban areas. 16 Overall, 14.5
15 See KRISTEN HIMELEIN ET AL ., WORLD BANK , SURVEYING JUSTICE : A PRACTICAL GUIDE TO HOUSEHOLD
SURVEYS (2010). 16 Some of the EAs that the NBS designates as urban areas are in fact realtively small towns that are county
headquarters.

17

percent of the sample population resided in urban EAs. The sample
population ranged from 1 00 percent rural in Budi and Ikotos to 52 percent
urban in Renk.
Gender Distribution The gender distribution of the sample slightly favored females, with women
representing 53.5 percent of individual respondents the sample (n = 812).
While this contrasts somewhat with the findings of the 2008 census, which
found that men outnumbered women at the national, state and county levels,
it can be partially explained by the fact that we conducted our survey during
the dry season, when many young men would be takin g their cattle herds out
to pasture. 17
Age Ranges The majority of individual respondents fell in the 18 to 33 -year -old age
range. According to the 2010 census, more than 50 percent of the population
in South Sudan is younger than 20 -years -old. 18
Ethnicity The sample also reflects the diversity of ethnic groups residing in these six
counties. 19 The Nuer are by far the largest ethnic group in the sample (44
percent, n = 663), mainly due to the large populations of Lou Nuer in Akobo
and Jikany Nuer in Nasir. 20 At the county level, the most ethnically diverse
populations can be found in Budi, Ikotos and Renk. The ethnic diversity in
Budi and Ikotos are typical of Eastern Equatoria, which is home to a large
number of minority ethnic groups. The diversity in Renk, o n the other hand,
is a function of its large urban population.
Education The majority of respondents did not have any formal education (67.4
percent), though a considerable number of individual respondents did have
primary school (16.3 percent) or seconda ry school (13.9 percent) education.
At the county level, Renk and Budi stood out as those having the most highly
educated populations. When asked whether they were able to read and write
in English or Arabic, 31 percent of respondents answered, ‘yes’. Howe ver,
when those respondents were asked to read a simple sentence in English or
Arabic, only 68.1 percent of those who said they were able to read were able
to read the whole sentence. These results are consistent with the low literacy
levels in South Sudan .21
Livelihoods Finally, in terms of livelihoods, most respondents said that they worked as
either ‘farmers’ (37.5 percent) or ‘cow or goat herders’ (18.5 percent). There
were also a large number of people who identified their livelihoods as ‘other’
(9.7 percent) or as ‘c ivil servants’ (6.5 percent).

17 The 2008 census found that women comprised only 48 percent of South Sudan’s population. Government
of Southern Sudan (GoSS), Statistical Yearbook for Southern Sudan 15 (2010) [hereinafter GoSS,
Statistical Yearbook]. 18 Id. , 9. 19 Individual respondents overwhelmingly identified as South Sudanese, though the sample included 15
resp ondents from Sudan, Uganda and other African countries. 20 It should be noted that this ethnic distribution clearly does not reflect the national population, in which
Dinka are the most populous ethnic group in the country. 21 According to the NBS, 72 percent of people above age six cannot read or write. GoSS, Statistical
Yearbook, supra note 17, 48.

18

Chapter Two
Landscape of Justice in South Sudan

Local justice systems in South Sudan encompass a variety of formal and informal
mechanisms, ranging from mediation within close social networks to adjudication in
customary and statutory courts. For the most part, the more formal mechanisms tend to
have a limited reach in rural areas and the bulk of disputes are handled by mediation or
through the customary courts.

While local justice systems demonstrate a degree of accessi bility and efficiency, they also
suffer from several gaps that undermine their ability to provide effective justice services.
For example, courts face major enforcement gaps in rural areas, particularly at the payam
and boma levels of local government. Amb iguities in the relationship between the
statutory and customary systems undermine the enforcement of judicial outcomes. Lines
of appeal are not clearly defined and statutes of limitations are not consistently enforced,
allowing disputing parties to pursue litigation indefinitely in many different forums.

Government actors have made efforts in recent years to better oversee the functioning of
customary courts and to clarify their relationship to the statutory system. However, the
justice sector suffers fr om under -resourcing and a general lack of transparency, and many
government actors do not have the necessary expertise to oversee South Sudan’s complex
judicial systems. Given these constraints, restrictions that government actors place on
customary courts in circumstances where the statutory system does not provide a viable
alternative, whether due to limited physical presence or capacity, inevitably results in
accountability gaps. This is particularly apparent with regard to homicide cases and
disputes in volving parties that wield political or military power.

2.1 Legal Pluralism in South Sudan

South Sudan has a pluralist legal system that incorporates parallel systems of statutory
and customary courts. 22 The 2008 Judiciary Act structures the statutory courts in a single
hierarchy, starting with the Supreme Court at the national level, followed by three
regional courts of appeals, and high courts in the capitals of each of the ten states. 23 The
high courts have original jurisdiction for all capital offenses, including homicide cases. 24
At the local government level, the Judiciary Act envisages county courts and payam
courts in all of the counties and payams. However, only a fraction of county courts have
been established and there is not yet a single payam -level statutory court in South
22 Statutory courts have jurisdiction over most crimes and civil suits above a certain amount of money ,
which the law has removed from the jurisdiction of customary courts. They also have appellate jurisdiction
over customary courts. 23 The regional courts of appeals are located in Juba, Malakal and Rumbek. 24 Code of Criminal Procedure Act, ch. II, § 12 (2008).

19

Sudan. 25 County courts are presided over by first – and second -class judges, also known as
magistrates. 26

When the Government of Southern Sudan was established in 2005, it incorp orated a
decentralized Judiciary in which high courts and county magistrates fell under the control
of state governments. 27 However, during the interim period the re were several occasions
when Governors and County C ommissioners threatened and even physicall y assaulted
judges whose rulings were contrary to their executive interests. Senior judges began to
complain that decentralization was compromising the independence of the Judiciary. To
remedy the problem, the Transitional Constitution centralized the Judi ciary and placed it
under the administration of the Chief Justice of the Supreme Court after independence. 28

2.2 Challenges to Expanding Government Authority in Rural Areas

These policies of decentralization and centralization were meant to clarify the separation
of powers between the Executive and the Judiciary and are indicative of the Judiciary’s
resilience in the face of political interference. However, these policies hav e had limited
effect on the accessibility of statutory courts in rural areas. Three of the counties in the
project area — Budi, Ikotos and Pibor — still do not have any statutory courts. In Budi and
Ikotos, matters requiring formal adjudication are sent to the statutory courts in Torit and
Kapoeta.

The inaccessibility of these courts to populations in Budi and Ikotos leads to severe
logistical challenges for justice institutions in the area. The police and prosecutors’
offices do not have reliable means of tr ansport and accused criminals can be held in
detention for months awaiting transfer to the statutory courts. Once the accused arrive in
court, hearings can be further delayed awaiting the appearance of necessary parties, such
as witnesses and complainants, who are often unwilling to incur the high costs associated
with travel from rural areas. It is not uncommon for accused parties to languish for years
in prison in Torit or Kapoeta while their hearings are repeatedly adjourned pending the
appearance of nec essary parties.

Pibor offers an even more extreme example of these challenges. Pibor is approximately
180 kilometers from Bor, the capital of Jonglei state, where the high court sits. Travel is
difficult in the best of times, and during the eight -month r ainy season transport by road is
25 Part of the problem c an be traced to a lack of judges. The Judiciary has not hired any new judges since it
was created in 2005. In January 2012, the Judiciary reportedly began a recruitment process to hire more
than 100 additional judges. At this writing, however, the process had not concluded. See HUMAN RIGHTS
WATCH , PRISON IS NOT FOR ME: ARBITRARY DETENTION IN SOUTH SUDAN 93 (2012). 26 The terms ‘magistrate’ and ‘county court judge’ are used interchangeably throughout this paper.
According to the Code of Criminal Procedure, first -class magistrates can sentence people to a maximum of
seven years in prison and issue fines not exceeding 5,000 Sudanese pounds. Second -class magistrates can
sentence people to a maximum of three years in prison and 2,500 Sudanese pounds. Code of Cri minal
Procedure Act, ch. II, § 13 -14. 27 Interim Constitution of Southern Sudan , pt. 7, § 132(2); Id. , Schedule C, § 7 . 28 Transitional Constitution of the Republic of South Sudan (TCRSS) , pt. 7, § 122(8) (2011) .

20

impossible. There is no statutory court judge or prosecutor based in Pibor. 29 As a result,
the customary court system handles the vast majority of disputes, including most
instances of homicide. Unlike the statutory system, the customary system is not
empowered to handle cases involving the SPLA. Without statutory judges and judge
advocates to hold soldiers to account, most crimes committed by the thousands of
soldiers stationed in Pibor — whether the crimes are military or civ ilian in nature — go
largely unpunished.

In Nasir, Akobo and Renk, statutory courts have been established with differing degrees
of effectiveness. There are m agistrate courts in Nasir and Akobo, but the judges do not
maintain a sustained presence in the cou nties and most cases are channeled to the
customary courts. 30 The reluctance of judges and prosecutors to live in rural areas creates
additional challenges for local justice systems. Renk , on the other hand, has a well –
established statutory court system tha t coexists alongside the customary system.
However, as discussed in more detail in Section 2. 5 below, considerable tensions have
arisen between the two justice systems in recent years.
Constraints on Investigatory and Prosecutorial Services in Rural Areas
On February 17, 2012, a vehicle carrying a group of Kenyans recruited to work at a construction site in Chukudum
came under attack on the road from Camp 15, a military base in the northern part of Budi county. Three of the Kenyans
were killed and four others injured. 31 The police and military organized investigations and a local resident eventually
turned himself in to police. The man reportedly confessed to having killed the Kenyans and engaging in other crimes in
the area. The state prosecutor then cal led two local chiefs to his office to take their witness statements. According to the
prosecutor:

When I asked the chiefs, “What’s your name? How old are you? What’s your tribe?” the chiefs were disappointed. They
said, “These people are harassing us.” I told him, “No. This is important. We must take your name. Even if my father
comes before me I must ask him, ‘What’s your name?’” …This is a normal procedure.

Despite prosecutor’s explanation, the two chiefs left and all subsequent attempts to locate them failed. Due to the lack
of witnesses to corroborate the confession, the accused remained in prison. Since he had reportedly admitted guilt, the
state was not willing to release him, even though the statutory period of pretrial detention had expired.

This story illustrates some of the difficulties of investigating and prosecuting homicide cases in rural areas. Residents
are often unfamiliar with the formal processes of prosecutorial investigation and statutory court hearings. Complainants
and witnesses ofte n feel intimidated or disrespected by judicial processes. When coupled with the high costs of travel
and accommodation in urban areas, these feelings of alienation can cause necessary parties to miss court hearings,
leading to excessive delays in trial. 32
29 Jonglei has only four judges (two High Cour t judges and two Magistrates) for its eleven counties; eight
prosecutors in Bor; two Magistrates and a prosecutor in Akobo; and one Magistrate and a prosecutor in
Twic East. UNMISS, INCIDENTS OF INTER -COMMUNAL VIOLENCE IN JONGLEI 30 (2012) [hereinafter
UNM ISS, INCIDENTS OF INTER -COMMUNAL VIOLENCE ]. 30 An international organization provided support that enabled the judge to travel to Nasir towards the end
of 2012, but f or the first few months of 2013 he did not maintain a presence in the county. 31 South Suda n probes killing of Kenyan workers in Eastern Equatoria , SUDAN TRIBUNE , Feb. 20, 2012;
Peter Lokale Nakimangole, Assailants Kill 3 Kenyans Along Ngarich -Chukudum Road , GURTONG TRUST ,
Feb. 19, 2012. The place where the attack took place already had a reputa tion as a particularly dangerous
section of the road. One year earlier, two Catholic priests from the diocese of Torit had come under attack
at that same location. 32 Many judges also require a complainant to be present in order for criminal prosecutions to proceed. This
can raise certain complications, especially when the crime was committed by one family member against
another and the victim is not willing to bring charges against the accused.

21

Local justice systems also face problems of witness protection. Chiefs that cooperate with
police and prosecutors can be subject to harassment and beatings by the relatives of
accused criminals. In a 2008 report, Small Arms Survey (SAS) observed that chie fs were
hesitant to turn criminals in to the authorities, for fear of retaliation. SAS received reports
of chiefs being attacked and shot; in some cases chiefs even actively cooperated with the
criminals. 33

These limitations have serious implications for s ecurity in rural areas. Delays in the
justice system can invite revenge killings from the families of deceased murder victims as
impatient family members take the law into their own hands. In one incident, a legal aid
attorney came across a group of young men with pangas (machetes) chasing another
youth down the road in the center of Chukudum. When they caught the youth, the
attorney asked them what happened. They replied that the young man had killed one of
their relatives so they were now going to kill hi m. With systems that are unable to deliver
justice services in a credible and efficient manner, this type of response is not uncommon
among rural populations.

2.3 Strengths and Weaknesses of Customary Courts

Since statutory courts have not yet been established in many counties, customary courts
often act as the court of first instance for both civil and criminal disputes in rural areas. 34
Customary courts, presided over by chiefs or panels of chiefs, are established at the
county, payam and boma level s of local government. Hearings are typically held under
trees and are open to the public. The 2009 Local Government Act restricts the jurisdiction
of customary courts to “customary disputes,” for which judgments are to be rendered “in
accordance with the customs, traditions, norms and ethics” of the populations residing in
their jurisdictions. 35 Criminal matters lie outside the jurisdiction of customary courts,
unless the case has a “customary interface” and has been referred by a competent
statutory court. In practice, however, many traditional authorities do not adhere to these
jurisdictional limitations and customary courts can hear a range of criminal disputes,
including homicide. 36

33 SMALL ARMS SURVEY (SAS), SUDAN ISSUE BRIEF , HUMAN BASELINE SECURITY ASSESSMENT (HBSA),
SYMPTOMS AND CAUSES : INSECURITY AND UNDERDEVELOPMENT IN EASTERN EQUATORIA , 8 (Apr. 2010)
[hereinafter SAS, SYMPTOMS AND CAUSES ]. 34 Under common law, civil wrongs typically require a monetary remedy while criminal wrongs are
punished with crimination sanctions, such as fines and prison sentences. 35 Government of South Sudan, Local Government Act, ch. X, § 98(2). 36 In at least one case , a customary court has sentenced an accused murderer to death. Due to the lack of
oversight and monitoring mechanisms in customary and statutory courts, it is difficult to know precisely
how many times customary courts have issued death sentences.

22

Town Bench Courts and Rural Customary Courts

In addition to county -, payam – and boma -level customary courts, some areas also have
town bench courts situated in the county headquarters. 37 Judges in town bench courts tend
to be more literate than rural chiefs and are often selected from among the urban
population, tho ugh they are commonly referred to as chiefs. 38 While town bench courts
are technically customary courts, they usually have a closer relationship with local
magistrates, prosecutors and police than the rural customary courts. As a result, they are
often the preferred complaint mechanism for more complicated disputes, such as those
involving business matters, people from different ethnic groups, or situations in which
compensation cannot be agreed between the parties.

As the chairperson of the town bench cou rt in Nasir explains, the court mostly handles
disputes involving thefts and physical assaults:

We get many cases of theft. This is a big problem in Nasir town. A person will be sent to us by the
police with a letter. If the case is bigger with large comp ensation we send it to the C ommissioner.
Adultery issues are given to the chiefs. Also family issues are for chiefs so we do not deal with
them. 39

Litigants can appeal decisions of the town bench court to the magistrat e, if he is present,
or to the County Commissioner. There are also reports of people makin g complaints
directly to County Commissioners. While the C ommissioner is an executive officer and
does not have the legal authority to adjudicate disputes or regulate the functioning of
customary or stat utory courts, individuals and groups sometimes take their disputes
directly to him when they do not feel as though they can receive a fair hearing in the
customary courts, if they anticipate problems in enforcing judgments on the opposing
party, or if thei r cases are “political ” in nature. 40 As an Ethiopian trader in Nasir
explained:

Yes, my people sometimes complain of the proceedings [in the town bench court]. There are
pressures from the outside. Different people can come and give their opinion and judgm ent and
this is influencing the decision of the judge in this court. We do not feel often free to talk, so I
have to take this role and speak my mind. Sometimes the language is also moving from Arabic to
Nuer so it is difficult to follow. We are paying tra nslators to come with us.

37 The c ustomary court systems vary across the six counties. Both Ikotos and Budi have customary courts
presided over by local chiefs at the county, payam and boma levels. There are no town bench courts in
Ikotos and Budi and most cases are processed at the payam -level court and in the county seat. Akobo,
Pibor, Nasir and Renk, have town bench courts that adjudicate the bulk of disputes in the county
headquarters. 38 LEONARDI ET AL ., LOCAL JUSTICE , supra note 4, 22. 39 According to the chairperson, the town bench co urt in Nasir typically hears about five or six cases a day. 40 The authority to adjudicate disputes and regulate the statutory and customary cou rts is not among the
powers of County C ommissioners listed in the Local Government Act. See Local Government Act, ch. VI,
§ 52. The Local Government Act calls for the creation of a Customary Law Council at the county level to
regulate the activities of customary courts. To our knowledge, none of the six counties assessed has yet
created this council. See Local Govern ment Act, ch. X, §§ 95, 96.

23

The ambiguity of these overlapping lines of authority between the rural customary cou rts,
town bench courts and the C ounty Commissioner gives rise to a degree of
unpredictability for court users. One can never be certain if a fin al judgment has been
rendered or if the losing party will resurrect the dispute in a different forum. This
problem is also encountered in statutory systems, where statutes of limitations and time
periods for appeals are not consistently followed. The refer ral of more difficult cases to
Commissioners, many of whom are former members of the SPLA and are still able to
exert influence over the security forces, is indicative of efforts by complainants to secure
justice in an environment where the security sector continues to exert a degree of
dominance over civilian institutions.

Strengths of the Customary System

These concerns notwithstanding, customary courts (including both rural customary courts
and town bench courts) have a number of noteworthy strengths. They are able to process
cases fairly quickly and at relatively low cost, they are geographically accessible to rural
populations and , since their decisions are often based on local norms, they are culturally
familiar to rural populations. 41 Customary cour ts are also durable and better equipped to
function in areas prone to insecurity. For example, in August 2012, there was
considerable insecurity in several rural payams of Akobo County. In response, payam
chiefs relocated their courts to the relative safet y of the county headquarters, where they
held hearings under trees in a clearing next to the police headquarters. Litigants could
come to the county headquarters to submit cases and some even moved closer to town to
pursue their legal complaints on a daily basis. After the insecurity subsided, the chiefs
simply returned to their home areas and continued their work.

Perhaps the greatest strength of customary courts is their efficiency in disposing of cases.
They operate at low cost, barring the occasional i mposition of high court user fees , and
because they do not require complicated litigation by legal professionals, they are able to
resolve cases relatively quickly. The survey gathered data on the time to resolution of
four types of dispute: theft, physica l assault, homicide and rape. In cases of theft, physical
assault, homicide and rape the mean resolution rate was less than 20 days (see Figure
1).42

41 In most counties, chi efs at the county level and payam level are paid salaries by the government, while
lower level chiefs only collect small court fees for their service. In Budi and Ikotos, it costs 40 South
Sudanese pounds (SSP) to open a case in the executive chief’s court (payam level court). In Nasir, there are
both court fees (around 30 SSP) and fees to file cases with the police (between 10 and 30 SSP). When this
assessment was conducted, four SSP was roughly equivalent to one US Dollar. 42 Perhaps not surprisingly, homicide cases took the longest with o nly 50 percent of disputes resolved in
less than 20 days.

24
Figure 1: Time to Resolution for Theft, Physical Assault, Homicide and Rape Cases

28.7% 28.7%
20.3%
11.4% 10.9%
0%
10%
20%
30%
40%
<5 6-20 21-50 51-100 >100
Days
Theft
36.0%
27.3%
20.7%
8.7% 7.3%
0%
10%
20%
30%
40%
<5 6-20 21-50 51-100 >100
Days
Physical Assault
22.4% 27.6% 21.6% 16.4% 12.1%
0%
10%
20%
30%
40%
50%
<5 6-20 21-50 51-100 >100
Days
Homicide
18.5%
40.7%
11.1% 14.8% 14.8%
0%
10%
20%
30%
40%
50%
<5 6-20 21-50 51-100 >100
Days
Rape

25

*Time to resolution looks simply at the length of the resolution process, not whether the result is just or fair.
Respondents were asked how long their household member had been pursuing their claim in a particular forum. The
data includes a few cases in w hich the dispute had not yet been resolved by the time of the interview.

Disaggregating the data to identify which forums resolve disputes most quickly shows
statutory courts to be less efficient than other avenues for dispute resolution. For
example, in cases of physical assaults and thefts, ‘chiefs’ and ‘friends, family and
neighbors’ were able to resolve cases most quickly with the vast majority resolved within
20 days. Physical assault and theft cases brought to statutory courts and local government
officials took significantly longer to resolve (see Table 3 and Table 4).

Table 3: Time to Resolution for Physical Assault by Complaint Mechanism
Family,
friends,
neighbors
Chief Clan
headman
Statutory
court
Police Local
gov’t
official
Days

<20 88% 78% 83% 33% 58% 21 -50 6% 11% 17% 38% 28% 51 -100 - 8% 4% >100 6% – – 25% – 22%

Table 4: Time to Resolution for Theft by Complaint Mechanism
Family,
friends,
neighbors
Chief Clan
headman
Statutory
court
Police Local
gov’t
official
Days

<20 75 % 72 % 38% 60 % 69% 38% 21 -50 17 % 14% 63 % 30 % 22 % 16 % 51 -100 - 10 % 4% 13 %>100 8% 3% – 10 % 4% 33 %

Consistent with the challenges described by nearly all interviewees, c hiefs were
noticeably less efficient at resolving homicide cases. However, they still resolved cases
more quickly than both statutory courts and local government offic ials (see Table 5 ).
Overall , homicides prove challenging not only in terms of time to resoluti on, but also in
terms of fairness of process and outcome, enforcement of judicial decisions and
achieving solutions that prevent further violence and revenge killings.

Table 5: Time to Resolution for Homicide by Complaint Mechanism
Family,
friends,
neighbors
Chief Clan
headman
Statutory
court
Police Local
gov’t
official
Days

<20 80% 56% 33% 40% 64% 42% 21 -50 20% 25% 0% 29% 21% 51 -100 - 19% 13% >100 – – 33% 20% 7% 25%

26

Several factors contribute to the length of time it takes for statutory courts or local
government officials to resolve disputes: local government officials and statutory courts
tend to receive the more complicated and contentious disputes; judges often do not
ma intain a continuous presence in rural areas and it takes time for them to travel to areas
where they are needed; and statutory courts tend to have more complex requirements and
processes. Understanding the relative efficiency of customary courts and other more
informal forms of mediation helps to shed light on the important services they provide in
rural areas.

2.4 Blood Compensation and Extra -judicial Settlements of Homicide
Cases

Blood compensation is a traditional remedy for homicide under customary law. It
involves the payment of a certain number of cattle to the family of the deceased in order
to compensate them for their loss. In some cases, women or girls may be provided to th e
family of the deceased in lieu of cattle. The precise rituals that accompany blood
compensation payments vary between different ethnic and tribal groups, but the
underlying rationale is that it allows people to better manage fragile social relationships
in the wake of a killing by providing the family of the deceased with a sense of restitution
and remedy. However , blood compensation and the associated practice of girl child
compensation can also force women into unwanted marriages, send girl children to live
with families where they experience sig nificant prejudice and hardship and fail to deter
premeditated murders committed by people who are able and willing to pay
compensation.

Blood compensation payments vary by area. In most places, blood compensati on mirror s
the amount of cattle that is typically paid in bridewealth, the idea being that a male
relative of the deceased can marry a woman using the compensation award. For example,
in Akobo, compensation for intentional homicide is 50 cows, 10 of which are paid as a
fine to the government. Some groups also distinguish between killings that take place
during inter -clan fighting, revenge attacks and accidents, each requiring a different
amount of compensation.

Compensation for homicide has a long history in South Sudan and is often practiced
outside of government structures. A s a Lou Nuer executive chief in Akobo explains:

In the past, when a person committed murder, there was no [formal] procedure. There was only
compensation. The relatives of the decea sed could bring him to court and tell him, “If you have 50
cows, then you pay.” Then there is something called revenge. The relatives of the deceased can go
and kill the murderer or his relatives. If both of them are taken to court, then you can make both
sides pay compensation. The one who kills and the one who revenges can both pay.

South Sudanese law does not sanction the negotiation of blood compensation settlements
outside of statutory courts. According to the Penal Code Act, the family of the decease d
and the perpetrator are meant to negotiate the blood compensation award in the high court
after the judge has delivered a guilty verdict — combining criminal and civil penalties into

27

one process. 43 If the family of the deceased opts for blood compensation, the judge can
then sentence the accused to a term of imprisonment not exceeding 10 years. However,
given the limited reach of the statutory court system, many chiefs continue to settle
homicide cases between willing parties locally , without involving statu tory courts .

Local government officials can also adjudicate homicide cases, particularly in the
absence of prosecutors and judges. County C ommissioners and local police officers draw
on principles of customary and statutory law and use existing resources to find practical
solutions to managing homicides in rural areas. According to the acting Police
Commissioner in Nasir:

In case of a murder that has happened and the person kills someone, in the absence of the judge,
we ask the case to go to the Malakal high court. In a situation where the killing is an accident and
the family of the deceased will accept compensation from the family of the person that did the
killing, then that can be easily dealt with by us. We will take the person who has killed and put
them in prison for their protection. When the compensation is paid we will keep this man for some
time until it is okay for them to go out.

…T his is our problem. In Nasir there are two types of killing. One is when someone is killed in
fighting or raiding between the clans and it was nobody’s fault. The other is revenge killings.
There are many [revenge killings], and this is a very serious offence. In the first matter, we can
deal with this if the judge is not here. In the second we must wait until the judge can come, or we
will ask for the case to go to Malakal. In the time being we just keep these people in prison.

While the adjudication of murder cases lies outsi de the jurisdiction of police, County
Commissioners and customary courts, it is a wi despread and highly valued service among
rural South Sudanese. It reduces the potential for revenge killings and provides
restitution, especially in the absence of a viable statutory system. The main challenge for
local justice systems is twofold. First, t he justice system must develop ways of securing
both civil and criminal liability for homicides. Reform efforts would need to balance a
number of concerns, including: the interests of the state and the relations of the deceased
in seeing the guilty party h eld accountable; the importance of maintaining harmony
within the community; the need to promote solutions that limit the potential for revenge
killings; and disincentivizing premeditated murders by people who are willing to pay
compensation awards. Second , the justice system must ensure that compensation awards
do not impose penalties on innocent third parties, specifically women and girls. These
challenges are made all the more complex by the ambiguity between criminal and civil
punishments in South Sudan ese law and custom and local preferences for blood
compensation as a means of preventing revenge killings.

2.5 Efforts to Expand State Presence and Better Regulate Customary
Courts

Customary courts have an uneasy relationship with the formal system on s everal fronts.
Whereas statutory courts lie firmly within the national Judiciary, customary courts fall
under the Ministry of Local Government at the state level, an Executive institution. This
43 Government of South Sudan, Penal Code Act, ch. XVI, § 20 6 (2008) .

28

mixture of centralized statutory courts and decentralized cust omary courts serves to
widen the gulf between the two systems. Chiefs also play both executive and judicial
roles, which raises separation of powers issues. 44 Furthermore, Ministries of Local
Government are often under resourced and do not have the expertis e to monitor and
regulate the legal aspects of customary courts.

There has been a strong push from state governments in recent years to force chiefs to
adhere to their jurisdictional limitations, particularly in instances of homicide. The
Ministry of Jus tice has appointed legal advisors in each of the ten states and many of the
counties. These legal advisors offer legal counsel to state and local governments and help
police to investigate and prosecute criminal activity in statutory courts. The prosecutor s
have arrest powers and, together with the police, play a key role as local gatekeepers,
deciding which accused parties are to be prosecuted and which are to be freed.
Technically speaking, decisions of the county -level prosecutors can be appealed to thei r
superiors in the state capitals. In practice, however, the difficulty of traveling to far away
urban areas and rural residents’ unfamiliarity with formal legal processes means that most
complainants have little recourse if they are dissatisfied with the prosecutor’s decision.

In many parts of South Sudan, local prosecutors have been working to remove homicide
cases from customary courts. In Ikotos, for example, the county prosecutor toured each of
the payams and instructed chiefs that they must refer all murder cases to the high court in
Torit. A payam chief was reportedly arrested for failing to follow these instructions.

Undermining Cheifs or Enforcing National Law?

In Renk County, the local government and the Judiciary have made even more of a concerted effort to restrict the
jurisdiction of town bench courts and customary courts. There are three statutory courts in Renk town, a Dinka
paramount chief’s court, and chi efs’ courts for the many different ethnic groups that reside in Renk. The paramount chief
sits at the top of the customary court hierarchy and can receive appeals from decisions at the payam level, as well as
appeals involving non -Dinkas.

Shortly after i ndependence, the Renk County Commissioner, with the support of the high court judge, suspended all
customary courts from operating for about six months. When they restarted, chiefs were told that their decisions could no
longer be appealed to the paramount chief but only to the statutory courts. The Commissioner was concerned that the
increasing number of ethnically -defined customary courts was exacerbating tribalist sentiments, a concern echoed in
interviews with civilians and government officials in Renk. The Commissioner also felt it was inappropriate for non –
Dinka litigants to appeal cases to a Dinka paramount chief.

These actions have generated substantial tension between the local government and the Dinka chiefs. According to an
attorney in Renk:

Now the new umdas [payam chiefs] are complaining. They say the system before the independence was better than after
independence. Before they could appeal to the paramount chief. But now all their instructions are given by the court. They
complain that th e court only gives them few cases. They say when they punish someone, the court overturns their decision. It
is becoming a problem between the chiefs and the court.

44 Chiefs also have both state and non -state characteristics. In some areas, they are both salaried public
employees and part of the traditional authority hierarchy within their communities. In other areas, a
distinction is sometimes drawn between “government chiefs ,” which are considered to be agents of the
government, and chiefs that receive greater recognition from the community.

29

The recent reforms in Renk’s local justice system illustrate the fast pace of change in the transitional context . The
paramount chieftancy has been in place since the colonial era. It has survived the deprivations of war and the changes of
government in the postwar period. Many people in Renk’s justice system see no reason to change to a new and
unfamiliar system whose values of individual rights and criminal sanction are not shared by their people. However, other
actors in the local government and Judiciary —including many educated people —view a neutral, non -tribal system, based
on the laws of South Sudan as necessary to promote social harmony and development

As these examples demonstrate, local justice systems in South Sudan remain in a state of
flux. For some justice actors, such as the chairperson of the town bench court in Nasir,
the changes are positive :

Lots of changes are happening. Before we were not in government and now we are part of it.
Initially there were no laws but now we have them, such as the Local Government Act. Now we are
able to direct our people properly. There wer e no judges before and chiefs were the ones giv ing
justice and they were benefitting you see. Now we benefit South Sudan.

For others, such as the umdas in Renk, the changes see m arbitrary and counterproductive.
It will take several years for reforms to ta ke root in local justice systems. It is therefore
important that local governance institutions adopt clearly articulated policies of reform
that can remain consistent across successive administrations and are sensitive to the
values represented in current systems. For reforms to be effective, they must be evidence –
based, developed through consultative processes with local stakeholders, and, to the
extent possible, built upon consensus decisions among local populations.

2.6 Special Courts, Mobile Judges and Other Ad Hoc Responses

Levels of insecurity and conflict vary greatly throughout South Sudan, but the three states
of Eastern Equatoria, Jonglei and Upper Nile contain some of the most insecure areas in
the country. The government has had some success in curtailing politically motivated
violence in Eastern Equatoria in recent years through negotiations and military
interventions against groups such as the Lord’s Resistance Army (LRA) and other non –
state armed actors. However, political insurgencies remain a fundamental problem in
Jonglei and Upper Nile and all three states experience high levels of lawlessness and
inter -communal conflict.

In addition to political and military responses, the government has experimented with
several judicial approaches in r ecent years. For example, the Chief Justice of the Supreme
Court recently established a special court to resolve a dispute between two Dinka clans in
Bor County, Jonglei State. 45 In Lakes State , four special courts were established to
prosecute cattle theft s and inter -sectional and inter -clan conflicts among Dinka and Atuot
45 The special court is comprised of individuals from different states as well as payam chiefs from the areas
in quest ion. Its decisions can be appealed to the court of appeals in Malakal. Special Courts Formed to
Deal with Inter -Communal Conflict in Jonglei State , GURTONG TRUST , Feb. 4, 2013, available at
http://www.gurtong.net/ECM/Editorial/tabid/124/ctl/ArticleView/mid/519/arti cleId/9412/Special -Courts –
Formed -To -Deal -With -Inter -Communal -Conflict -in-Jonglei -State.aspx . There has also been resistance to
these special c ourts by some local leaders. See Jacob Achiek Jok, Deer Rejects Formation of Special Court
to Solve Conflict with Koch , GURTONG TRUST , Feb. 9, 2013, available at
http://www.gurtong.net/ECM/Editorial/tabid/124/ID/9501/Default.aspx .

30

populations. 46 The Judiciary has also deployed mobile judges to certain regions. For
example, mobile judges were sent to Akobo to hear homicide cases that had led to violent
inter -clan con flict and abductions. People from Akobo reported high levels of satisfaction
with the mobile courts and expressed a desire for them to be used more frequently.
However, the government has not sustained the practice.

Securing the Future by Resolving Past Injustices

Local actors in South Sudan have begun to experiment with different approaches to resolving past grievances. For
example, the County Commissioner in Nasir has committed to providing collective compensation to groups for any
deaths, cattle thefts and abduct ions arising from incidents that occurred after 2011. At the same time, he is trying to
address pre -2011 cases involving inter -clan fighting among the Jikany and inter -sectional fighting between the Jikany
and the Lou.

The manner in which the Commissioner is approaching this issue is causing a great deal of controversy. After so many
years, the facts of who killed whom and for what reason have become unclear and subject to debate. People also fear
paying compensation will make it seem as though they are admitting guilt and could make them a target for revenge
killings. There is also some question about the Commissioner’s methodology and whether the endeavor has a clear
timeline. To the extent that people do not feel that justice is being done, t here is a chance that the Commissioner’s
initiative will not su cceed in settling these decades -old disputes. Yet, at the same time, the fact that he is going to such
great lengths to try to resolve them, and expending so much political capital in the proce ss, highlights the importance he
attaches to addressing past grievances as a way of reducing the potential for future conflicts.

2.7 Enforcement Gaps at the Payam and Boma Levels

Rural areas in South Sudan are confronted with numerous enforcement gaps. Limited
police presence in rural areas, inadequate justice services for crimes and abuses
committed by military personnel and the militarization of rural communities all pose
fundamental challenges to local justice actors.

Policing Gaps

Eight years after the signing of the CPA and the end of the civil war, the police service
has yet to fully establish itself in rural areas. According to past estimates from senior
police officers, there should be at least 2,000 police officers in every state, with ar ound
120 officers deployed in each county. 47 In practice, however, police tend to stay close to
urban centers due to the lack of accommodation, food, transport and security in rural
areas.

In January 2012, for example, the Ikotos C ounty Commissioner repor ted that there were
approximately 100 police in the county. The vast majority of those police were stationed
either at the county headquarters or had been sent to the state capital in Torit. Only eight
46 Gabriel Mayom, Special Courts to Hear Cattle Raiders Cases in Lakes State , GURTONG TRUST , Sep. 26,
2012, available at
http://www.gurtong.net/ECM/Editorial/tabid/124/ctl/ArticleView/mid/519/articleId/7891/Special -Courts –
To -Hear -Cattle -Raiders -Cases -In-Lakes -State.aspx . 47 SAS, SYMPTOMS AND CAUSES , supra note 33 , 9.

31

police were stationed at the payam level and four of t he six payams did not have any
police presence. The situation is much the same in other rural areas. 48 A civil society
representative working in Nasir explained that the police do not maintain a consistent
presence in areas prone to insecurity:

When we went to Dinkar payam we noticed that there was not a single policeman. It was a time
when there was a lot of cattle raiding between the clans around Dinkar payam… People came at
night to raid and some people were injured. I cannot say how many co ws were taken but people
said many. Police were deployed to the payams to try and provide some security but until this day
they do not stay in the payams. Now, they are all here [in Nasir town]. 49

Corruption and abuse of power, often associated with alcoh olism, is also a systemic
problem in the police service. 50 People often complain that for small bribes, the police
will release suspects from custody. 51 As Clement Ochan wrote in 2007: “Criminals [in
Ikotos] are well aware that if they are caught, they will be able to bribe their way to
freedom.” 52 Ochan also documented numerous allegations of torture. According to an
Ikotos resident interviewed by Ochan:

If a person committed a crime in the villages and he ran away, the police normally come and
round up the villagers and torture the innocent civilians. They demand that the villagers show the
person who committed the crime… Even if you are falsely accused, instead of interrogating you in
a good way, they beat you up before interrogation. 53

The limited police p resence at the payam and boma levels of local government and the
unprofessional conduct of some members of the police service poses fundamental
challenges to local justice systems. Given the negligible police presence in many rural
areas, most crimes at th e payam level are reported to chiefs, not to the police. In a 2007
survey, 59 percent of respondents in Torit, Magwi and Ikotos counties in Eastern
Equatoria state said they would report a crime to traditional authorities first and 16
percent would inform the nearest family member. Only 11 percent of respondents said
that they would report a crime to the police first. 54

48 In some counties, the SPLA has deployed in areas with no police or with an inadequate number of police
and has taken on policing functions. 49 The acting Police C ommissioner in Nasir said that each payam had approximately 20 to 50 police
officers except Wa nding , where there were no police stationed because the area was still occupied by SPLA
soldiers. 50 In a 2008 study, SAS found that, “Cooperation between chiefs and police is often fraught with problems,
as police officers are perceived to be incompetent or corrupt, even setting suspects free in exchange for
small bribes.” SAS, SYMPTOMS AND CAUSES , supra note 33 , 8. 51 SAS reported a range of allegations against the police: “[W]hen police are trucked in to respond to a
specific security threat, respondents suggested that certain villages receive preferential coverage and others
none, depending on local connections to high -level commanders or politicians. In other cases, residents
claimed that unjustified force and punishments are applied.” Id. , 9. 52 CLEMENT OCHAN , FEINSTEIN INTERNATIONAL CENTER , TUFTS UNIVERSITY , RESPONDING TO VIOLENCE
IN IKOTOS COUNTY , SOUTH SUDAN : GOVERNMENT AND LOCAL EFFORTS TO RESTORE ORDER 21 (2007)
[hereinafter OCHAN , RESPONDING TO VIOLENCE IN IKOTOS ]. 53 Id. 54 SAS, SYMPTOMS AND CAUSES , supra note 33 , 8.

32

SPLA Deployments in Rural Areas

The reluctance of some police officers to stay in insecure locations where communities
are often better armed than the police is understandable. As a prosecutor in Eastern
Equatoria remarked in relation to criminal activity in Budi: “To them, the police ar e
nothing. We don’t send the police. We always send the army, because they can chase the
police. They’ve got arms.” 55 Even the SPLA sometimes finds it difficult to deal with
heavily armed local populations in rural areas. A representative of Eastern Equator ia state
government recounted a story illustrating the difficulties that the SPLA encounters in
combating insecurity in Budi:

The case of Budi is so complicated. About four or five months ago, some of the Buya came and
raided cattle in the army garrison. They came very early in the morning and they took the cattle
and they left. Of course, the army, when they got up, they were annoyed and they started running
[after the culprits]. These people [the Buya cattle -rustlers], they knew that the army would follo w
them, so they made an ambush. They chased the army back until the garrison. They killed one
driver and one officer was shot and wounded from behind.

So when this happened, we called to Juba and there was a mobilization of the army. The
commander of the area came here and people decided to go with a very big force composed of
police, fire brigade, prison and the army. But when they went to the mountain of the Buya, they
found that it was not easy. These people [the Buya] have many mountains. They’ve got c aves.
They can really cause havoc for the army. So people decided not to continue and said they would
leave it for another time.

So this area around Camp 15, for us, it is very important. Now it’s a bit quiet. But there was a time
like last year and the year before, when we didn’t move. Budi is a difficult place. It is a very tough
place.

The SPLA is often called upon to undertake policing functions in situations that are
deemed to be beyond the capacity of the police. The SPLA, originally founded as a
guerilla movement to fight the Government of Sudan, has proven ill -equipped to
undertake policing functions. SPLA units, for example, often rely on local communities
to feed them while deployed. This can give rise to a perception among local populations
tha t unwelcome soldiers are “stealing” their limited provisions. 56

Local justice systems encounter particular difficulties in securing accountability for
abuses or crimes committed by SPLA forces deployed in rural areas. The SPLA Act
requires that soldiers w ho commit crimes against civilians be tried in civilian courts. 57
While this legislative requirement is a positive step towards accountability, the absence
of statutory courts and the limited protection for judges means that in practice, the SPLA
continues to police itself. The task is made all the more difficult as most senior SPLA
55 This finding is supported by focus groups that the SAS conducted in 2008, in which interviewees said
that the police “are often too weak or easily overpowered by local armed communities.” Id. , 9. 56 Examples of unpopular campaigns are ci vilian disarmament or counter -insurgency; campaigns for which
both the objectives and the tactics often engender hostility from local communities. 57 Government of South Sudan, Sudan People’s Liberation Army (SPLA) Act, ch. VI, § 37(4) (2009)
(stating that “Whenever a military personnel commits an offence against a civilian or civilian property, the
civil court shall assume jurisdiction over such an offence).

33

officers at the sub -national level have not received training on national laws and have few
judge advocates at their disposal to support military justice services. The lack of an
effective military justice system has implications both in terms of SPLA crimes against
civilians and for crimes that soldiers commit among themselves. Due to the lack of
effective solutions, soldiers are often allowed to commit criminal acts with impunit y.

In Akobo town, a special court has been established to deal with cases involving soldiers.
The special court hears almost all cases involving military personnel, even serious crimes
such as rape. However its punishments are usually limited to small fi nes. Even this
limited amount of accountability is only possible because most soldiers based in Akobo
are from the same ethnic group as the community; such a solution would be unlikely to
succeed in most other settings. The limited success of the special c ourt in Akobo
highlights the need to consider alternative accountability mechanisms for crimes
committed by soldiers in rural areas in the absence of well -protected statutory courts.
Reform efforts could also include legal training for the SPLA leadership at the sub –
national level and the strengthening of judge advocates.

Rural Population’s Choices of Complaint Mechanism

Reflecti ve of these challenges, survey data shows that rural South Sudanese are most
likely to submit disputes to chiefs, family member s or neighbors, while the police figure
prominently as the second or third places to which people submitted their complaints. An
exception can be found in the case of abductions. Rural South Sudanese generally assume
abductions to be committed by neighbori ng tribes . However, friends, relatives and local
chiefs — the main actors in rural justice systems — have little power over neighboring
tribes. As discussed further in Chapter Three, most households that have had a family
member abducted do not seek redress through the justice system. Those that do complain
often submit their complaints to local governmen t officials and civil society
organizations, perhaps reflecting the influence that these institutions have beyond their
immediate area (see Table 6).

34

Table 6: First Forum Preferences

Spousal Neglect
Complaint Mechanism Pct. No.
Other family/friends/neighbors 40.8% 40
Spouse 25.5% 25
Clan headman 12.2% 12

Physical Assault
Complaint Mechanism Pct. No.
Other family/friends/neighbors 27.0% 43
Chief 17.6% 28
Local government official 13.2% 21
Self -help 13.2% 21

Homicide
Complaint Mechanism Pct. No.
Chief 23.4% 29
Police 14.5% 18
Other family/friends/neighbors 14.5% 18
Local government official 16.9% 21

Rape
Complaint Mechanism Pct. No.
Other family/friends/neighbors 38.2% 13
Local government official 20.6% 7
Chief 11.8% 4
Police 11.8% 4

Armed Civilians and Conflicts of Interest among Chiefs

Given the lack of police presence in some areas, chiefs at the payam and boma levels can
find it difficult or impossible to enforce decisions against unruly parties. According to the
paramount chief in Budi:

The cases are not being solved down there [at the payam level]. Only here in the town, where the
chief is still strong, people can use the system sometimes. But generally down there, there are no
cases. People ar e still owning guns. They even beat the chiefs. When you try to fine them, they
say, “You come and we’ll see. You come and see me in my home. Just try to take these cows.”

Theft
Complaint Mechanism Pct. No.
Other family/friends/neighbors 20.8% 42
Police 18.8% 38
Chief 17.3% 35
Abduction
Complaint Mechanism Pct. No.
Local government official 30.6% 15
Civil society 20.4% 10
Other family/friends/neighbors 16.3% 8
Adultery
Complaint Mechanism Pct. No.
Chief 32.9% 25
Spouse 19.7% 15
Other family/friends/neighbors 14.5% 11

35

Similar dynamics are reported in Nasir. Some payams in Nasir have as many as three or
four head chiefs, each representing between six to ten bomas. According to a local civil
society representative, cases can move back and forth across the payams and bomas with
different chiefs making contradictory decisions: “Chiefs are arguing with eac h other.
There is sometimes no communication between them… When cases are crossing boma
and payams different chiefs are making decisions and it is difficult sometimes to keep
track.” The prevalence of guns also raises enforcement problems for chiefs at the payam
level, though in Nasir town itself people usually do not move openly with their weapons.
According to the civil society representative:

The greatest issue is intimidation during a case. People just come with their families and force
some chiefs t o make a decision in their favor. Also, if people refuse to pay compensation and are
strong, then the chief can do nothing.

People from minority ethnic groups and economic migrants are particularly vulnerable.
For example, an Ethiopian trader in Nasir cit ed accountability for wrongdoing, mostly
associated with petty theft and fighting, to be an issue of concern for economic migrants
from Ethiopia. According to the trader :

If something happens in town the people in security here often fail to follow up even if they get
the right information. They say it is out of their control. There was somebody who stole some ouzo
[a licorice flavored spirit] from the market of a shop that belonged to an Ethiopian. The man who
stole was South Sudanese and he was somehow connected to the security people in the fire
brigade and just ran away. We went to the police in the market and asked them to chase the man
but they did not go. We are deve loping a report to give to the Police C ommissioner, as we are not
happy. But it is difficult when people are connected like this. This is why we are sleeping where
we work, this is not normal for us but we have to protect our shops just because we cannot be
without our income. But I have to say that the problems are small . Even the fighting when people
are drinking can be handled.

The reform of police services at the payam and boma levels , improving access to justice
for victims of crimes committed by soldiers and providing security for justice sector
actors must be prior itized if the government is going to improve access to justice for rural
populations. Police should work closely with payam and boma chiefs to legitimize their
presence in local societies and build relationships with the communities they serve .
Training pr ograms and other civil society initiatives can help to facilitate this process by
ensuring that their activities are conducted at the payam level and not just in the county
headquarters. Likewise, training and defense support to the SPLA should be focused on
the divisional level and below to ensure such efforts achieve tangible impact.

2.8 ‘The Prison Is Empty’

Prisons face similar resource constraints as police, though since they have less interaction
with civilian populations, the prison services have n ot engendered the same degree of
resentment. Most of the counties have prisons that house roughly 20 to 40 prisoners,
though in Renk the prison holds more than 100 prisoners. Some prisoners stay in the
prison full -time and others are permitted to move free ly during the day, only coming back

36

to the prison to sleep in their cells at night. Prisoners may also be released on bail, if they
have a reliable person that is willing to provide a guaranty on their behalf. 58

Most prison facilities in South Sudan are in a severe state of disrepair and escapes are
commonplace. The entire prison population in Budi reportedly escaped in early 2012
because they were not being provided with enough food. In Nasir, there are no water
facilities i n the prison compound and inmates sometimes escape when being escorted to
the boreholes in town. Since they do not have uniforms for the inmates, it can be difficult
for police to recapture people who have escaped. According to a social worker in Ikotos:

The police and prison have a small cell where these culprits are kept, but they find some of the
culprits normally run away because the thing is not well established. They [the prisoners] can
burrow a hole at night and when the prison guards go out the fol lowing day they will find that the
prison is empty. It has happened several times. …It was going to cause a lot of injury and people
killed because those people [the prisoners] ran away in different directions indiscriminately. It has
happened many times i n the last three years.

As bad as the situation is in the county headquarters, it is far worse at the payam level.
Detention facilities are virtually non -existent and the authorities must suffice with tying
suspects to trees or detaining them in facilitie s that were not designed to accommodate
detainees. 59

In the face of these challenges, some individual actors are struggling to put in place
systems to better manage the use of prisons in rural areas. The director of prisons in
Nasir, for example, develope d a form for chiefs to use in sentencing people to prison
terms. The form documents the nature of the crime, the forum to which the case was
referred, any special needs of the prisoner and the period of detention. According to the
director, he sometimes re fuses to take certain prisoners and sends the cases back to chiefs
for review:

Before a case is brought we have procedures to follow and must be supported, but this is not
happening here. Chiefs are arresting people and bringing people to prisons. Under t he Prisons Act
we are supposed to detain someone for only seven days until their case is dealt with. There is
sometimes no review of cases at all. Sometimes the accused will be left for one month or more and
no one will come for him. Sometimes, we will jus t release him… We are not a hotel. We cannot
just keep people here. There is no space. How can we manage this?

The misuse of criminal sanctions such as incarceration is a central problem in local
justice systems. Any reforms to local justice system should clarify the distinction
between disputes that can be resolved through payment of compensation only and those
that require criminal punishment, such as incarceration.
58 To release a prisoner on bail, the authorities require someone to provide a guaranty on their beha lf, such
that if a complainant wants to open a case in the future, the guarantor is responsible for ensuring that the
accused submits his/herself to police custody. The authorities require the guarantor to be someone who is
known to be trustworthy, often a government employee, with a national ID, telephone number and
permanent residence. 59 Nasir County is an exception. It has four prisons at the payam level each of which can house up to 15
detainees. The smaller ones do not have separate space for women, so sometimes they cannot accept female
detainees.
Current prison, Ikotos

37

Chapter Three
Challenges of Accountability

South Sudan has undergone significant changes in recent years. The influx of
governmental and non -governmental actors into rural areas after the end of the war has
helped to develop institutions, provide security and improve access to justice for rural
pop ulations. However, certain types of legal problems continue to confound the justice
system. For example, existing complaint mechanisms are almost completely unable to
hold perpetrators of inter -communal violence, gove rnment actors who commit crimes or
arme d groups that commit acts of violence against the state to account. Individuals and
groups are able to commit numerous acts of murder, robbery, sexual violence and
abduction with impunity. These accountability gaps become more pronounced when the
crimes ar e committed across county administrative lines and when the perpetrators have
easy access to soft international borders. 60

In addition to these problems of accessibility, there are also problems associated with the
manner in which local justice systems re solve certain types of disputes. These problems
arise when courts impose unfair or discriminatory decisions on innocent parties, such as
forcing girls to marry men against their will, forcing rape victims to marry their rapists,
exchanging girls as compens ation for homicides, or incarcerating people for indefinite
periods of time when they are not able to repay their debts.

3.1 Inter -communal Violence and the Effect of Historical Grievances

Homicides perpetrated across ethnic lines are among the most intr actable issues that
confront local justice systems, particularly when they occur in the context of large -scale
violence. Inter -communal violence manifests at various levels in South Sudan: it can
involve inter -tribal conflict, such as the violence between the Buya and Didinga in Budi
or the Lou Nuer, Dinka Bor and Murle in Jonglei; inter -sectional conflict, such as the
chronic fighting between the Lou Nuer of Akobo and Jikany Nuer of Nasir; or inter -clan
conflict, such as the violence among the clans of Din ka Abaliang in Renk or among the
sub -groups of Lango in Ikotos. The executive chief in Chukudum described the dynamics
of ethnic violence in Budi:

Raiding is everywhere here. People are coming from this way, that way, that way, to this side.
Where there are cows, there must be raiding. Toposa are coming to the other side there, and this
60 For more information on border management in South Sudan, see ANNETTE WEBER , FRIEDRICH -EBERT –
STIFTUNG , BOUNDARIES WITH ISSUES : SOFT BORDER MANAGEMENT AS A SOLU TION ? (Jan. 2012), available
at http://library.fes.de/pdf -files/iez/08869.pdf ; CHRISTOPHER MILNER , CONCORDIS INT ’L, CROSSING THE
LINE : TRANSHUMANCE IN TRANSITION ALONG THE SUDAN – SOUTH SUDAN BORDER , EXECUTIVE SUMMARY
(Jan. 2013 ), available at http://concordis -international.org/wp -content/uploads/2013/01/Crossing -the -Line –
Executive -Summary -Jan -2013.pdf ; A greement between the Republic of the Sudan and the Republic of
South Sudan on Border Issues (Sep. 27, 2012), available at
http://www.smallarmss urveysudan.org/fileadmin/docs/Agreement -on -Border -Issues -September -2012.pdf .

38

neighbor of ours, Logir, here to this side. …It is a kind of rev enge. When you kill a woman, they
will come and kill a woman. When you slaughter a small boy, they will come and slaughter a boy.
If they have driven cows, you will go and drive cows.

Common to these different forms of violence is the almost complete inability of the
justice system to hold the perpetrators to account. 61 Several thousand civilians, including
women and childre n, have been killed or abducted and had their property destroyed as a
result of inter -communal violence and cattle raiding i n Jongl ei s tate in recent years .
Nonetheless, the perpetrators of these crimes have enjoyed almost total impunity in terms
of criminal justice, even though the President has publicly acknowledged that politicians
and local leaders are playing a role in supporting the violence .62

Several factors contribute to the intractability of these disputes. The disputing parties are
typically strangers and may be less willing to negotiate customary compensation awards.
Suspects may be harbored and protected by armed groups i n rural areas or they can
escape across county administrative lines or international borders. As county
administrative boundaries continue to fragment along ethnic lines, the task of prosecuting
inter -communal crimes is becom ing more difficult. In urban ar eas, panels of chiefs are
sometimes convened to adjudicate disputes involving people from different ethnic
groups, but few comparable mechanism s exist for large -scale inter -communal violence in
rural areas. 63 Furthermore, it is often not clear which governm ent institutions — the
Judiciary, state Governors, local government officials, police, or the SPLA — have
primary responsibility for managing the violence.

Another important characteristic of inter -communal homicide is the role historical
grievances play in p erpetuating the violence. Historical grievances — which may stem
from any number of sources, including atrocities committed during the war, colonial -era
land disputes, or even longstanding feuds between individual families — are sometimes
used as justification s to dehumanize entire groups of people and can heighten the scale
and intensity of inter -communal conflicts, as well as conflicts between rural communities
and government actors. Frustrations associated with a lack of accountability for past
wrongs can ac crue for many years before people decide to take their revenge. The
executive director in Akobo described the dynamics of inter -clan fighting among the Lou
Nuer:

Interviewer : Is there any major trouble from within, between the clans of Lou Nuer?

Executive Director : Yeah, there is this internal fighting. It is caused by revenge. If someone’s
relatives are killed by one of the other family, they can look for someone very tall and handsome,
like you. They can even wait for 30 years. If that family ha s no person equivalent to the other
61 According to UNMISS, “[G]iven the gravity, scale and breadth of the crimes being committed in Jonglei,
the formal justice system does not currently for the most part have the capacity to meaningfully investigate,
prosecute, adjudicate or defend accused persons.” UNMISS, INCIDENTS OF INTER -COMMUNAL VIOLENCE ,
supra note 29 , 32. 62 Id. , 28. 63 DENG , CUSTOMARY LAW , supra note 4, 135 (stating that feuds between those who were in different
tribes were rarely settled through the payment of blood compensation, but those between local lineages or
groups were usually settled).

39

person [that was killed], they can wait. You can be killed because of your qualifications. You are
an educated person. Otherwise, you are handsome. You are a fighter. Otherwise, you are the only
son in the family. You ar e a priest. You are a lone man within the family that has wealth. So those
are the reasons they see. They don’t kill anyhow. They are targeting people.

Survey data showed a remarkably high rate of homicides across the six counties. Nearly
20 percent of ho useholds in the sample reported having one or more household members
killed within the last two years. 64 The figures at the county level shed additional light on
the scale of the problem. Twenty -seven percent of households in Akobo , 24 percent of
households in Nasir and Budi and 21 percent of households in Pibor reported that one
household member or more had been killed in the last two years (see Figure 2).65
Individual respondents said that the majority of killings (58.9 percent) were intentional,
although a quarter of respondents did not know whether the killing was intentional or not,
so the murder rates may be significantly higher than the data suggests (see Figure 3).
These findings are consistent with the high levels of inter -communal violence that these
four counties have experienced in recent years.

Figure 2: Homicide Rates by County

Figure 3: Was the Killing Intentional?

64 A ‘household’ is defined as a place where a group of people eat and sleep together on a regular basis. The
survey was restricted to private homes and did not include any public facilities such as hospitals or prisons. 65 Note that the survey’s definition of ‘homicide’ included both unintentional and intentional killings.
7.8%
24.2% 26.9%
21.3% 23.9%
8.1%
0%
20%
40%
Renk Nasir Akobo Pibor Budi Ikotos

40

Respondents indicated that ‘Individuals from other villages’ were responsible for half of
all homicides in the project areas. This finding was mirrored at the county level, which is
con sistent with reports of high levels of inter -tribal, inter -sectional and inter -clan fighting
in these areas (see Figure 4). Respondents attributed 18 percent of homicides to the
police, SPLA, or other security sector actors, further evidence of the substantial
accountability gap relating to crimes by security sector personnel.

Figure 4: Perpetrator Profiles for Homicide

The government’s current approach to managing political and inter -communal conflicts
usually involves a combination of political solutions, such as peace and reconciliation
conferences or blanket amnesties and military solutions, such as forced disarmament
campaigns or military assaults against politicized armed groups. 66 Occasionally, the
Judiciary will also establish ad hoc complaint mechanisms, such as special courts or
mobile judges, to deal with specific acts of inter -communal violence, though none so far
have been established to deal with violence committed by government actors. These
types of solutions, while a necessary component of any multifaceted approach to
resolving complex conflicts, tend to be short -lived, unsustainabl e and lacking in
accountability. The absence of viable justice options creates an environment in which
individuals and groups sometimes feel that the only way to deter other groups from
harming them is to engage in revenge attacks, often in escalating cycl es. The violence
that results contributes to the high levels of lawlessness and insecurity in many rural
areas.

By incorporating an element of public accountability into the current approach, the
government and its international partners can relieve the burden on political and military
66 See John Ashworth and Maura Ryan, “One Nation from Every Tribe, Tongue, and People”: The Church
and Strategic Peacebuilding in South Sudan , 10 J. OF CATHOLIC SCHOOL THOUGHT 47 -67 (2013).
50.7%
13.1%
10.5%
9.8%
5.2%
4.2%
3.3%
2.0%
1.3%
0% 10% 20% 30% 40% 50% 60%
Individual(s) from another village
Individual(s) from same village
Other security sector
Other
Family member(s)
SPLA
Police
Public official
Don’t know

41

institutions, which are ill -suited to lead on this form of accountability and are often an
integral part of conflict systems. Increased public accountability can also reduce
incentives for individuals and groups to engage i n violence. Any such legal solutions
must be well coordinated between statutory courts and traditional authorities. The
combination of criminal sanctions and customary remedies takes advantage of the
efficiency of customary courts and their ability to quic kly get the parties talking to one
another and the interest in holding perpetrators of inter -communal homicide accountable
for their crimes. Police and prosecutors must also work closely with traditional
authorities to investigate wrongdoing and apprehend suspects for trial.

3.2 Cattle Raiding, Abduction and Trans -boundary Crime

Many of the concerns associated with inter -communal homicides also arise in relation to
cattle raiding and abductions. The justice system’s inability to investigate and prosecute
these crimes gives rise to large accountability gaps in rural areas. Not only can suspects
evade capture by crossing into neighboring counties or across international borders, but
armed groups ca n also generate revenue and secure weapons and supplies through cross –
border trade. Cows, gold and other commodities can provide currencies for cross -border
exchanges in the informal market. 67

Petty Theft, Cattle Raiding and Cross -border Trade

Theft arises in two main forms in rural areas of South Sudan: petty theft, involving what
are usually small amounts of money or goods and cattle or livestock raiding , which can
range from the theft of a few heads of cattle to the looting of entire herds nu mbering in
the thousands . In some instances, heavy weaponry and violence against civilians has been
used during cattle raids .68 Generally speaking, petty theft that relies on secrecy and deceit
carries a heavy social stigma in South Sudan. According to Cher ry Leonardi et al. :

Above all other crimes or offenses, petty, repeated theft — with the exception of certain kinds of
cattle stealing — is widely seen to be a deeply antisocial and unrespectable activity, punishable by
flogging and imprisonment. This is the nearest thing to a purely criminal case in terms of how the
courts handle it, seemingly because thieves so lower their own status that they are removed from
normal social relations, thus precluding a payment of compensation, which implies a certain
equali ty and reciprocity of relations. 69

Cattle raiding, on the other hand, is often conducted in the open and is deeply intertwined
with local social, economic and political processes. 70 Young men take part in violent
raids on neighboring groups in order to capture cattle to use for bridewealth payments, to
67 Anne Walraet, Governance, violence and the struggle for economic regulation in South Sudan: the case
of B udi County (Eastern Equatoria) , 21 AFRIKA FOCUS 53 (2008) [hereinafter Walraet, Governance,
violence and the struggle for economic regulation ]. 68 South Sudan has the largest number of cattle per capita. South Sudan leads world in livestock wealth ,
SUDAN TRIB ., Jan. 25, 2013, available at http://www.sudantribune.com/spip.php?article45286 . 69 LEONARDI ET AL ., LOCAL JUSTICE , supra note 4, 38. 70 Id.

42

prove their strength in battle and to assert their manhood. 71 When they return home , they
are often greeted with songs extolling their fighting prowess. In this sense, cattle theft
enjoys a degree of social acceptance among many pastoralist groups. This acceptance,
however, is beginning to change due to the realities of the current context, particularly the
increased intensity of raiding , the rising death tolls during cattle raids and the heavily
militarized nature of local populations. This concept of cattle raiding as a “traditional”
activity is also contradicted by the motivations of political and military leaders who
sometimes manipul ate conflicts (and those involved in conflicts) in self -interested
attempts to garner support from local constituencies and benefit from the post -war
consolidation of power. When viewed through the lens of these current realities, cattle
raiding becomes le ss about “tradition” and more about power and political positioning.

While cattle theft is a relatively common occurrence, the motives that drive perpetrators
are poorly understood. Traditionally, cattle were used for marriage or other customary
practice s, such as compensation for homicide or adultery. During the second civil war,
this began to change. Along with other commodities such as gold and alcohol, cattle
increasingly became important forms of currency in cross -border trade. 72

The increasing signi ficance of the cattle trade may have created additional incentives for
individuals and armed groups to engage in large -scale cattle theft. Individuals and groups
can bring their cattle to nearby markets in Ethiopia, Kenya or Uganda and exchange them
for va rious goods and supplies, including small arms. 73 Anne Walraet explains how the
SPLA profited from this form of cross -border trade in Budi during the war:

Once the border is crossed, the cattle are walked to the nearby livestock market at Agoro [in
Uganda] , where they are sold and the business cycle enters its next phase: that of the tra de in
commodities back to Sudan.. . Some of the products for export to Sudan are readily available at the
Agoro market itself: necessities such as soap, salt, manufactured go ods and (second -hand) clothes.
Others are procured further south in Uganda, such as (mostly illegally brewed) alcohol (“Lira -Lira”
and “Kasese -Kasese”). Also weapons and ammunition are available at a market adjacent to the cattle
auction. 74
71 Walraet, Governance, violence and the strug gle for economic regulation , supra note 67 , 58 -59. 72 According to Anne Walraet, the monetisation of cattle for livelihood or commercial purposes has for a
long time remained a marginal activity in South Sudan. It was only in emergency situations, such as
drought, that cattle were brought into the money econ omy or bartered for grain. In general, cattle — not
money —are regarded as wealth. More recently, however, cattle trading has been on the rise and has
subsequently changed the foundations of wealth. See Walraet, Governance, violence and the struggle for
econo mic regulation , supra note 67 . 73 According to SAS, “ In Lou Nuer areas, an old Kalashnikov -pattern assault rifle costs two or three cows,
and a new one goes for three or four cows. PKM -type machine guns cost 10 cows. Ammunition typically
sells for 3 –5 South Sudanese Pounds (SSP) per cartridge, the equivalent of about USD 0.75 –1.00. One cow
can be worth 200 –500 rounds, depending on the size of the cow. In Murle areas prices are similar. A
Kalashnikov goes for SSP 2,000 –3,000, or three to four cows, and usuall y comes with a fully loaded
magazine.” Small Arms Survey (SAS), Human Baseline Security Assessment (HSBA), My Neighbor, My
Enemy: Inter -tribal Violence in Jonglei , 21 SUDAN ISSUE BRIEF 4 (Oct. 2012), available at
http://www.smallarmssurveysudan.org/fileadmin/docs/issue -briefs/HSBA -IB21 -Inter –
tribal_violence_in_Jonglei.pdf . 74 Walraet, Governance, violence and the struggle for economic regulation , supra note 67, citing
DARLINGTON AKABWAI AND PRISCILLAR E. ATEYO , FEINSTEIN INT ’L CENTER , THE SCRAMBLE FOR CATTLE ,
POWER AND GUNS IN KARAMOJA (2007).

43

Similar dynamic s have been reported on the Ethiopian border as well, which has been a
transit route for small arms into South Sudan since the colonial period. 75 Due to the
length of the border, the remoteness of the terrain, the proliferation of weaponry and
conflicts in neighboring countries, arms smuggling across South Sudan’s international
borders is notoriously difficult to contain.

The survey data showed theft — including both petty theft and cattle and livestock theft —
to be the most common dispute across the six counties .76 Thirty -eight percent of
households (n = 571) had experienced one or more thefts in the past two years (see Figure
5).

Figure 5: Dispute Incidence Rates

Most of the incidents of theft (62.1 percent) involved the stealing of cows or other
livestock (se e Figure 6). The rates of theft were especially high in Akobo, where 63.1
percent of households claimed to have experienced a theft in the past two years (see
Figure 7).

75 According to Sharon Hutchinson: “The eastern Gaajak Nuer were active importers and distribu tors of
firearms since the early 1910s, purchasing successively more powerful models along the Ethiopian frontier
and exchanging these for cattle with their brothers further west as well as with Shilluk, Dinka, Nuba, and
even Baggara Arab communiti es. As early as 1912, the British reported a burgeoning Gaajak ivory/Oromo
gun trade with well -established meeting points and routes of traffic.” HUTCHINSON , NUER DILEMMAS ,
supra note 7, 111; see also , SAS, My Neighbor, My Enemy , supra note 73 , 4 (stating that traders ferry small
arms and ammunition from other states within Sou th Sudan as well as its neighbo rs, most notably Ethiopia,
across Jonglei’s borders to town center s). 76 The survey question asked individual respondents whether anyone in the household had something stolen
from them in the past two years. In our pretests of the survey, it was apparent that victims of cattle raids
viewed the stealing of their cattle as theft , so there was no concern of underreporting due to differing
perceptions of what constitutes theft.
38%
28%
20%
18%
12%
10%
9%
7%
7%
4%
0% 10% 20% 30% 40%
Theft
Physical assault
Homicide
Debt
Forced marriage
Premarital sex
Spousal neglect
Abduction
Adultery
Rape

44

Figure 7According to respondents, 81 percent (n = 160) of these incidents involved the
theft of cattle or other livestock. Respondents in Pibor and Nasir also reported high rates
of cattle theft.

Figure 6: Types of Stolen Items

Figure 7: Theft Rates by County

The high rates of cattle theft are a function of the large number of pastoralists in Akobo,
Nasir and Budi and the frequent raids betw een communities of the same ethnic group, as
well as trans -boundary cattle raids between different ethnic groups. Respondents in
Akobo, Nasir and Budi indicated that ‘Individuals from another village’ were responsible
for most thefts. 77 These findings are consistent with qualitative data . Respondents in
Renk and Ikotos, on the other hand, reported that ‘Individuals from the same village’
were responsible for most thefts, suggesting that cattle raiding in these areas is much
more localized. 78

77 Sixty -six percent of respondents in Akobo (n = 114), 44 percent of respondents in Nasir (n = 104) and 32
percent of respondents in Budi (n = 24) reported that the perpetrators were ‘Individual(s) from another
village’. An abnormally large percentage of perpetrators were identified as ‘Other’ (27.6 percent) in Budi.
It is not clear to whom these responses are referring. The list of options was sufficiently l arge that it should
have covered most responses. 78 Thirty -six percent of respondents in Renk (n = 13) and 42 percent of respondents in Ikotos (n = 14)
reported that the perpetrators were ‘Individual(s) from the same village’.
49.0%
22.6%
13.2% 13.1%
1.8% 0.3% 0%
10%
20%
30%
40%
50%
60%
Cows Money Other Other livestock Gun Don’t know
14.8%
52.4%
63.1%
24.3%
40.0%
19.4%
0%
20%
40%
60%
Renk Nasir Akobo Pibor Budi Ikotos

45

Abduction and Inter -communal Violence

Abduction in South Sudan covers a wide range of practices, including human trafficking
for the purposes of economic or sexual exploitation, the abduction of women and children
in order to expand family size and gene rate income through bridewealth payments,
kidnapping and the taking of captives during war or raids. Historically, abduction was
associated with the slave trade in South Sudan. Numerous instances of slavery were also
documented during the civil war, when n orthern -allied militias would take Southern
Sudanese women and children and sell them into forced labor in northern Sudan. 79
Abductions in South Sudan in the post -CPA period are commonly associated with inter –
communal violence .80 The crime is particularly pr onounced in Jonglei State. 81

To a certain extent, inter -communal violence in Jonglei has its roots in events that
transpired during the civil war. There was a perception among the Murle that the SPLA
was a tribal movement led by the Murle’s historical riv als, the Dinka and Nuer. After one
of their leaders was executed by the SPLA in the early years of the war, many Murle
allied themselves with Khartoum and began to organize militias in opposition to the
SPLM/A. Ethnic divisions were also apparent in the 19 91 split within the SPLA, in which
a number of senior Nuer and Shilluk commanders defected from the SPLA and formed
their own rebel movements. Th is history explains some of the political marginalization
that Murle have experienced in the postwar period , as well as the ongoing violence
among ethnic groups in Jonglei. This legacy of inter -communal conflict in Jonglei make s
it difficult for local justice systems to negotiate settlements for abductions committed
across ethnic lines .

Abductions are painful exp eriences for communities and individuals, but they have also
become a highly politicized and complicated issue. The return of abducted children is a
way for chiefs or local officials to curry favor with state and national actors and
demonstrate their commi tment to peace. This politicization of abduction limits national,
state and local justice actors’ abilities to prevent future abduction and to ensure the best
outcomes for abducted women and children. Additionally, peace conferences regularly
reach resolut ions calling for the return of abducted women and children, but these
resolutions are made with little or no consultation with the abducted women and children
themselves. In fact, many abductees prefer to stay where they are. Abducted children
sometimes do not remember their family or place of origin and can be subject to long
periods in government custody prior to return and abducted women can face uncertainty
in their position within their community upon return.

Abduction rates reported in Akobo and Pibor were the highest of surveyed areas, with
18.1 percent of households in Akobo and 9.7 percent of households in Pibor reporting
79 See JOK MADUT JOK , WAR AN D SLAVERY IN SUDAN (2004). 80 Oystein H. Rolandsen and Ingrid Marie Breidlid, A Critical Analysis of Cultural Explanations for the
Violence in Jonglei State, South Sudan , 1 CONFLICT TRENDS 50 (2012), available at
http://www.accord.org.za/downloads/ct/ACCORD_Conflict_Trends_2012_1.pdf . 81 The practice is often associated with the Murle of Pibor, but the Lou Nuer, Jikany Nuer and Bor Dinka
have also been known to abduct peop le in the context of inter -communal violence in Jonglei.

46

one or more abductions in the last two years (see Figure 8). Overall, respondents
overwhelmingly identified the perpetrators of abductions as ‘Individual(s) from another
village’ (see Figure 9). These findings are consistent with qualitative data that abductions
in Jonglei cross ethnic and administrative boundaries. 82

Figure 8: Abduction Rates by County

Figure 9: Perpetrator Profiles for Abduction

Eighty -six percent of r espondents in Akobo thought their household member was
abducted by ‘Individual(s) from another village’ while respondents in Pibor reported a
much more diverse group of perpetrators (see Figure 10 ).83 In Pibor , 36.3 percent of
82 As noted above, the crime of abduction is often associated with the Murle of Pibor. The motivations for
abductions among the Murle and other tribes are poorly understood. There is a widely circulat ed rumor that
Murle women are sterile and that the Murle abduct other people’s children because they cannot produce
children of their own. Jon Arensen cites past incidents in which Arab militia introduced venereal diseases
that left some Murle women sterile and the World Health Organization (WHO) intervened and subsequent
generations of Murle women have not encountered problems producing children. See JONATHAN ARENSEN ,
CONTEMPORARY ISSUES FACING THE MURLE (n.d.), available at http://www.cmi.no/file/1964 -Murle.pdf . 83 The diversity of perpetrators in Pibor may also point to complexities in identifying the perpetrators.
According to Rolandsen and Breidlid, for example, the youth who participate in ad hoc raiding parties may
2.2% 3.4%
18.1%
9.7%
6.1%
3.1%
0%
10%
20%
Renk Nasir Akobo Pibor Budi Ikotos
64.3%
9.6%
7.0%
5.2%
4.3%
4.3%
3.5%
0.9%
0.9%
0% 10% 20% 30% 40% 50% 60% 70%
Individual(s) from another village
Family member(s)
Other security sector
Other
Police
Individual(s) from same village
Public official
Don’t know
SPLA

47

abductions are thought to be by government and security actors. This finding is consistent
with qualitative data indicating the high levels of impunity enjoyed by government actors
in Pibor. T he dynamics of abductions are not uniform across South Sudan and reforms
would require a nuanced and context -driven approach to be effective .

Figure 10 : Perpetrators of Abduction in Akobo and Pibor

Akobo Pibor

As noted above, ethnically charged rhetoric and dehumanizing language targeting entire
communities often accompanies inter -communal violence in Jonglei. In this context,
social and cultural no rms do little to disincentivize abduction and human trafficking
between warring groups. When coupled with a lack of viable justice options, long –
standing feuds often lead to cycles of violence in which crimes such as abduction,
homicide , sexual violence an d theft abound.

3.3 Gender Discrimination in Statutory and Customary Justice

The manner in which local justice systems settle marital disputes and sexual crimes often
serves to reinforce patriarchal power structures at the expense of women’s and girls’
rights. 84 Part of the problem may be traced to the strong tendency of statutory courts to
either refer marital disputes to town bench courts or customary courts where
discriminatory practices may be applied or to apply the discriminatory laws themselves.
Se ction 6 of the 2007 Code of Civil Procedure Act allows for the application of custom to
a wide range of family disputes:

Where a suit or other proceeding in a Civil Court raises a question regarding suc cession, inheritance,
legacies, gifts, marriage, divorce, or family relations, the rule for decision of such question shall be:
(a) Any custom applicable to the parties concerned; provided that, it is not contrary to justice,
equity or good conscience and has not been by this, or any other enactment, altered or

also be current and former members of militias, rebel groups and official military units. Organized criminal
gangs conducting raids for profit may also form a part of the complex conflict dynamics. Rolandsen a nd
Breidlid, A Critical Analysis , supra note 80 , 54. 84 See STRATEGIC INITIATIVE FOR WOMEN IN THE HORN OF AFRICA (SIHA), FALLING THROUGH THE
CRACKS : REFLECTIONS ON CUSTOMARY LAW AND THE IMPRISONMENT OF WOMEN IN SOUTH SUDAN (Dec.
2012) (illustrating the way s in which the often ambiguous legal frameworks of customary law perpetuate
violence and discrimination against women and how, when it comes to women’s human rights, these are
patriarchal institutions that contribute to gender -based violence and the victim ization of women and young
girls in South Sudan) [hereinafter SIHA, FALLING THROUGH THE CRACKS ].

48

abolished or has not been declared void by the decision of a competent Court; or,
(b) The Sharia Law in cases where the parties are Muslims except so far as it has been modified
by such custom as is above referred to. 85

Customary practices related to marit al disputes and sexual crimes include forced
marriage and traditional remedies for rape, which require the girl to marry her rapist if he
is willing and able to make bridewealth payments to her family. Though in isolated cases,
judges may deem these custom ary practices to be ‘contrary to justice, equity or good
conscience,’ more often the case is decided in favor of the party seeking to apply the
customary rule. Constitutional and statutory protections, such as the prohibition on forced
and early marriage i n the Transitional Constitution and the 2008 Child Act, are rarely
invoked in practice. 86 As a result, male wrongdoers in marital disputes and sexual crimes
are often allowed to avoid prosecution and criminal sanction. Accountability gaps
associated with ge nder discrimination are particularly pronounced in rural areas, where
custom and tradition continue to play strong roles in defining misconduct and allocating
blame.

That being said, certain innovations have taken place in recent years that give women and
girls greater rights in customary proceedings. In Pibor, a recent County Commissioner
appointed a woman to the town court. 87 There are no statutory courts in Pibor, and nearly
all serious cases are heard by the town court. Male and female interviewees both
responded positively to the appointment. As one chief said, “It is good that there is a
woman now because she can talk to the other women and can know their hearts. Before it
was only men and there were things the women do not tell us.”

Another local in novation can be found among the Shilluk in Upper Nile. The Shilluk
have a reth (divine king) who is their highest legal authority. Traditionally, women are
not allowed to speak in the reth’s court. However, the reth recently appointed a woman to
his court who is charged with representing women; she is the only woman allowed to
speak and the reth seeks her council in cases involving women. Policies such as these,
which enable women to have a voice in customary courts, are vitally important and can
help to im prove processes and outcomes for women in customary systems. Supporting
such reforms while introducing other solutions such as paralegals and legal aid clinics for
women and girls can help reduce discriminatory practices in local justice systems.
85 Code of Civil Procedure Act, ch. I, § 6 (2007). Francis Deng notes the controversy that has historically
accompanied the use of the repugnancy clause in Sudan: “[T]he qualification which requires conformity to
“justice, equity and good conscience” or to “ justice, morality and order” implies not only control over local
custom, but also the relegation of customary law to a lower status than statutory law or Islamic law.” DENG ,
CUSTOMARY LAW , supra note 4, 31. 86 See TCRSS , pt. 2, § 15 (stating that, “Every pe rson of marriageable age shall have the right to marry a
person of the opposite sex and to found a family according to their respective family laws, and no marriage
shall be entered into without the free and full consent of the man and woman intending to m arry”); Child
Act, ch. II, § 23(1) (stating that, “Every child has the right to be protected from early marriage, forced
circumcision, scarification, tattooing, piercing, tooth removal or any other cultural rite, custom or
traditional practice that is like ly to negatively affect the child’s life, health, welfare, dignity or physical,
emotional, psychological, mental and intellectual development”). 87 Complicating matters further, the highest court in Pibor is called the High Court, even though it is a
custom ary court, not a statutory court.

49

Marriage in South Sudan

Disputes between married partners and within families must be understood within the
broader context of marriage in South Sudan. There is a great diversity of practices when
it comes to marriage, but certain similarities can be cautiously drawn across society as a
whole. First, husbands typically play a dominant role within the marriage. As Orly Stern
ex plains in Hope, Pain and Patience :

The roles and positions of both men and women within a marriage are clearly defined and strictly
enforced: men are the heads of households, holding positions of authority within their families;
women are subservient to their husbands, with their roles focused on the home and the rearing of
children. …In practice, the system often leaves women extremely vulnerable, with little recourse
in cases of abuse or when husbands fail in their duties of support and protection. 88

A 2011 survey on gender -based violence by the Ministry of Gender, Child and Social
Welfare, found that more than 60 percent of men “strongly agreed” with the statements,
“women are subordinate and need to be directed and disciplined,” and “it is a man’s
tra ditional right to punish and discipline women for wrong -doing.” 89 Women were
largely in agreement with men. Seventy percent of women “strongly agreed” or
“somewhat agreed” that, “men as heads of family must control their family.”

A second common feature of marriage in the South Sudanese context is the manner in
which it shapes social relations. Marriage in South Sudan is not only a coming together of
two individuals, but also a binding of families and kinship networks. 90 The emphasis
placed on the broader so cial implications of marriage gives rise to a situation in which
families exert additional influence over who their family members may marry. This can
have both positive and negative implications for women, in that women may have access
to advice and suppo rt from family members, but their ability to influence partner
selection and to flee abusive relationships is restricted.

A third feature concerns the economic importance of marriage for South Sudanese
families. As mentioned above, when a man marries a wo man his family must pay
bridewealth, often in the form of cows or other livestock, to the family of the woman.
Bridewealth payments can be anywhere from a few goats to 50 cows or more. 91 As a
South Sudanese woman quoted in Hope, Pain and Patience characteri zed it: “Lives are
structured around cows, marriage and children: cows give you marriage, marriage gives
you children. Therefore there is a circle. ”92 The marriage is not considered finalized until
the bridewealth is paid in full, which may take several yea rs. These large sums create
88 Orly Stern, ‘This is how marriage happens sometimes’ , in FRIEDERIKE BUBENZER AND ORLY STERN
(EDS .), HOPE , PAIN AND PATIENCE : THE LIVES OF WOMEN IN SOUTH SUDAN 1 (2011) [hereinafter Stern,
‘This is how marriage happens’ ]. 89 Ministry of Gender et al. , Gender -Based , supra note 10. 90 Stanislava Benesova, Southern Sudanese Women in the Diaspora , OSPREY JOURNAL OF IDEAS AND
INQUIRY (2004), available at http://digitalcommons.unf.edu /. 91 While marriages for most people do not exceed 50 cows, some bridewealth payments may reach 200
cows or more. 92 Stern, ‘This is how marriage happens’ , supra note 88, 4.

50

economic incentives for families to accumulate cattle wealth so that they can afford
marriages for their sons. 93

Bridewealth as a Political Tool

One tactic employed as part of the Unity State government’s counterinsurgency strategy during conflict in Mayom in
early 2011 illustrates the importance placed on marriage and the exchange of cattle to cement social relations. While the
SPLA was engaged in combat with an armed group, the Governor issued an order divorcing those who had taken up
arms against the state from their wives. The counterinsurgency campaign also involved violence against civilians and the
burning of thousands of homes, but nearly two years after the conclusion of the campaign, civilians in Mayom describe
the divorces as some of the most painful of their experiences of that period. 94 One reason for this perception is that many
of the divorces remain unsettled: cattle and women were taken back by their respective families, children were separated
from parents, gr ievances were created between families and clans, and two years later many still feel their lives and
community have not fully recovered.

3.4 Penalizing Resistance to Forced Marriage Under Customary Law

Forced and early marriages are a common feature of South Sudanese society, particularly
in rural areas. 95 In addition to forced and early marriages, men in South Sudan often have
more than one wife and wealthy and powerful men often have dozens of wives.
According to the United Nations Children Fund (UNICE F), 39 percent of South
Sudanese girls aged 15 to 19 and 7.3 percent of girls under age 15 are married. 96 This
reflects a common belief in many South Sudanese communities that girls are ready for
marriage at the onset of menstruation. 97 According to a high -ranking government official
quoted in a study by the United States Institute of Peace (USIP): “Once girls reach
puberty, potential husbands come and apply [to marry them]. If the girl is found with a
boyfriend, her family can kill her. If she is impregnated by a boyfriend, she can be beaten
to death. ”98

Both the Transitional Constitution and the 2008 Child Act contain provisions outlawing
forced and early marriage , Article 15 of the Transitional Constitution states:
93 Stephanie Beswick, ‘We are bought like clothes’: The war over polygyny and levirate marriage in South
Sudan , 8 NORTHEAST AFRICAN STUDIES 35 -62 (2001). 94 AMNESTY INTERNATIONAL , SOUTH SUDAN : OVERSHADOWED CONFLICT ARMS SUPPLIES FUEL
VIOLATIONS IN MAYOM COUNTY , UNITY STATE (2012). 95 Forced and early marriages are closely linked conc epts. An argument can be made that early marriages
are necessarily forced marriages because it is not possible for a girl who is not of marriageable age to
consent to a marriage. 96 UNICEF, Children in South Sudan , (n.d.) available at
http://www.unicef.org/esaro/Children_in_Sudan_summary_sheet_final.pdf ; see also South Sudan’s Ticking
Youth Time -Bomb , VOICE OF AMERICA NEWS , Apr. 7, 2011 (reporting that t he 2008 South Sudan census
estimated that two in five girls marry before age eighteen and 11 percent marry before age fifteen). 97 Ating Benson Okello, Eligible for marriage at the onset of menstruation , THE NILES (May 21, 2012),
available at http://www.theniles.org/articles/?id=1170 . Nuer customary law sets the marriageable age of
girls at age 15. 98 MARC SOMMERS AND STEPHANIE SCHWARTZ , UNITED STATES INSTITUTE OF PEACE (USIP), SPECIAL
REPORT , DOWRY AND DIVISION : YOUTH AND STATE BUILDING IN SOUTH SUDAN 5 (Nov. 2011) [hereinafter
SOMMERS AND SCHWARTZ , DOWRY AND DIVISION ], available at
http://www.usip.org/files/resources/SR_295.pd f.

51

Every person of marriageable age shall have the right to marry a person of the opposite sex and to
found a family according to their respective family laws, and no marriage shall be entered into
without the free and full consent of the man and woman intending to marry. 99

Article 26 of the Child Act contains a similar provision, which states that every female
child has the right to be protected from forced and early marriage and calls on all levels
of government and society to adopt measures to “ensure that child marriage and other
harmful cultur al and social practices are abolished.” 100 Unfortunately, these legal
pro tection s are rarely available in practice and since the country does not yet have a
family law that would provide a uniform statutory basis for marriage, the vast majority of
marital di sputes are decided by local justice systems in accordance with local customary
laws. 101

Figure 11 : Rates of Forced Marriage by County

Survey data confirmed the high prevalence of forced marriages in the six counties. The
highest rates of forced marriage were seen in Pibor, where 24 percent of households
reported one or more forced marriages in the last two years (see Figure 11 ).

Pibor is the most remote of the six counties that we examined, and these high rates of
forced marriage may indicate the strong role that custom and tradition con tinue to play in
Murle society.

99 TCRSS , pt. II, § 15. 100 Child Act, ch. II, § 26 (stating that “no female child shall be expelled from school due to pregnancy or
motherhood or hindered from continuing her education after one year of lactation”). 101 Even the definition of what constitut es a ‘forced’ or ‘early’ marriage in South Sudanese law is
ambiguous. The Transitional Constitution reserves the right to found a family to people “of marriageable
age ” but it does not expressly define a minimum age for marriage. Nor does the Child Act. Th e chairperson
of the Human Rights Commission has called for legislation prohibiting the marriage of girls age 16 and
below, but such legislation has not yet been drafted. South Sudan Human Rights Commission Condemns
Forced Marriages , SUDAN TRIBUNE (Mar. 8, 2011), available at http://www.sudantribune.com/South –
Sudan -s-human -rights,38222 .
2.2%
10.5% 10.4%
24.0%
17.8%
3.8%
0%
10%
20%
30%
Renk Nasir Akobo Pibor Budi Ikotos

52

3.5 The Pressure to Resolve Marital Disputes within Close Social
Networks

When confronted with disputes relating to spousal neglect, local justice systems often
pressure the couple to try to resolve their issues within their close social networks, where
the influence of male patriarchies tend s to be the strongest. This can result in the
imposition of unfair or discriminatory customary practices on women and girls, who
typically wield less negotiating power within the context of the family. According to
Leonardi et al. :

It is apparent …that men frequently have the upper hand, in court cases, through their potentially
closer relationships with chiefs and judges; in marriage systems, which vest rights over women in
their parents or husband’s family; and in inheritance systems, which largely exclude women
unless they are widows. The courts are also overwhelmingly male arenas .102

Women may also be disinclined to resort to public dispute resolution processes such as
statu tory or customary courts out of fear of provoking violent reactions from their
husbands or because they cannot afford the court fees.

For the purposes of the house hold survey, spousal neglect include s marital disputes that
did not necessarily involve viol ent assaults. Examples of spousal neglect claims that often
arise in customary courts include men who do not support their wives and children or
women who refuse to cook for their husbands. While only 8.8 percent of households in
the sample reported a prob lem with spousal neglect in the past two years, 41.7 percent of
the household members who complained about spousal neglect asked for a divorce from
their spouse (see Figure 12 ). In the majority of cases (73.2 percent), the household head
or his or her spou se requested the divorce, but in a significant minority of cases (18.5
percent) the sons or daughters of the household head were the ones requesting the
divorce. Of those household members that asked for a divorce, 46.2 percent of individual
respondents sa id that the reason was that their spouse ‘drinks too much’ (see Figure 13 ).
High rates of alcohol abuse are common throughout South Sudan and are often associated
with criminality and security sector abuses .

102 The quote continues: “Yet women nevertheless seem confident that they will be heard and judged fairly
in the courts, and female litigants often speak with considerable force.” LEONARDI ET AL ., LOCAL JUSTICE ,
supra note 4, 41; see also Chan Reec Madut, Customary Law from the Perspective of Human Rights (2005)
(unpublished paper) (stating that husbands or male relatives tend to be domineering in their attitude vis -à-
vis women and customs do not seem to provide sufficient protection of their rights) [hereinafter Madut,
Customary Law ], cited in DENG , CUSTO MARY LAW , supra note 4, 43.

53

Figure 12 : Did the Household Member Request a Divorce?

Figure 13 : Reasons for Asking for a Divorce

There is a general consensus in the literature that both customary courts and statutory
courts rarely grant divorces. Chan Reec Madut, the current chief justice of the Supreme
Court , ob serve s that women in South Sudan have found it increasingly difficult to divorce
even cruel husbands unless the wife’s life is overtly threatened. He says that families are
dis inclined to approve divorce s both bec ause they will lose bridewealth and because they
prefer to maintain the social relations created by marriage. 103 According to Leonardi et
al. , courts sometimes deliberately delay cases involving request ed divorce s to allow time
for the aggrieved spouse to c alm down and reconsider the request. 104 Leonardi et al. also
documented cases of women being put in prison between court hearings , apparently to
intimidate them into withdrawing their request for divorce .

In a recent report, the Strategic Initiative for Women in the Horn of Africa (SIHA) po int s
to the implications that divorce has for women. Divorced women are put in a very
vulnerable position both socially and economically. They are often rejected by both their
103 Madut, Customary Law , supra note 102. 104 LEONARDI ET AL ., LOCAL JUSTICE , supra note 4, 40.
46.2%
13.8%
12.3%
12.3%
7.7%
7.7%
0% 10% 20% 30% 40% 50%
Spouse drinks too much
Spouse was physically abusive
Spouse had sex outside the marriage
Spouse did not provide for the family
Spouse abandoned us
Other

54

husband’s family and their birth families and put at increased risk of poverty and
landlessness. Depending on the local customs, divorce can also result in a loss of custody
of children for the mother. 105 As a result, women may not view divorce as a viable
option, even if they are stuck in abusive and unhappy marriages. In fact, SIHA repor ted
cases in which women viewed admissions of adultery as a means of freeing themselves
from unhappy marriages. After the women confessed to adultery, their husbands would
take them to court and the woman would often be imprisoned. The women would spend
be tween six and nine months in prison and pay a fine, but when they were freed they
would leave their husbands. They saw this as an attractive alternative in situations where
divorces were not possible. 106

Despite this, survey data suggests that at least amo ng those populations complaining of
spousal neglect, requests for divorce may not be an altogether uncommon occurrence.
According to a civil society representative in Nasir:

If police or chief catch adultery straight away then the man and woman will be arrested. Police
may then report this to the head -chief or sub -chief of the payam where the people come from. The
chief will wait for the husband to come back and he must decide in our culture to accept or reject
his wife. The f amily can intervene first if the husband is around. In the absence of a husband , the
chief will decide.

The cultural practices of the Jikany Nuer may partially explain the relatively large
number of divor ce requests in Nasir, where respondents indicated that 74.2 percent of
their household members who experienced a problem relating to spousal neglect
requested a divorce (see Table 7).

Table 7: Requests for Divorce by County
Yes No
Pct. No. Pct. No.
Renk 10.0% 1 90.0% 9
Nasir 74.2% 23 25.8% 8
Pibor 47.8% 11 52.2% 12
Akobo 47.3% 9 52.6% 10
Ikotos 20.0% 3 80.0% 12
Budi 23.5% 8 76.5% 26

The prevalence of divorce requests in spousal neglect cases may also reflect changing
norms in the postwar period. Contrary to what Justice Reec and other interviewees
reported, Leonardi et al. observed that women seem to be increasingly successful at
arguing for divorce or the enforcement of marital obligations upon their husbands, in part
due to their exposure to different legal and social environments while living as IDPs and
105 SIHA, FALLING THROUGH THE CRACKS , supra note 84 , xii. Rules governing custody of children in
divorce cases or in the event of the deat h of the husband vary among different ethnic groups. For example,
in Nuer and Dinka customary law, the husband usually pays a certain number of cows to the woman’s
family and in return is permitted to keep the children. Among the Murle, however, several in terviewees
claimed that the mother has the primary claim for custody over the children. 106 Id. , xii .

55

refugees during t he war. 107 Women that remained in South Sudan during the war are also
increasingly vocal in advocating for their rights. Since they sacrificed greatly to support
the struggle, they say that they should also reap the benefits of independence. If policy –
makers can further substantiate changing norms such as these and support women’s right
to extricate themselves from unwanted or abusive relationships, they may be able to
reduce the acceptance of discriminatory norms . This could be done through legislative
refor ms that provide statutory alternatives to customary rules governing marriage a s well
as legal aid programs that help women submit and defend complaints of spousal neglect
and domestic violence in customary and statutory courts.

3.6 Catering to Patriarchal Interests in Rape Cases

The manner in which South Sudanese law defines rape reflects its patriarchal leanings.
The following excerpt from the 2008 Penal Code provides a vivid example. According to
section 247 states:

(1) Whoever has sexual intercourse or ca rnal intercourse with another person, against his or her
will or without his or her consent, commits the offence of rape, and upon conviction, shall be
sentenced to imprisonment for a term not exceeding fourteen years and may also be liable to
a fine.
(2) A co nsent given by a man or woman below the age of eighteen years shall not be deemed to
be consent within the meaning of subsection (1), above.
(3) Sexual intercourse by a married couple is not rape, within the meaning of this section. 108

The rape exception for ma rried couples in Subsection (3) suggests that men are permitted
to forcibly rape their wives and there is no minimum age for sexual consent among
married couples. 109 This provision effectively legalizes both marital rape and early
marriage.

Local justice systems also include practices that discriminate against rape victims. A girl
who has been raped is often stigmatized by society, which can affect her ability to marry
and the amount of bridewealth that she can generate for her family. Custom ary court
judges will sometimes force the girl to marry her rapist as a way to avoid this social
stigma and maximize her potential bridewealth. According to a South Sudanese woman
interviewed in Hope, Pain and Patience , men are even known to rape a woman s o that
she will be forced to marry them, knowing that their crime will reduce the amount of
bridewealth that her family can ask for:

A man spots a girl coming from the river. A group of men then capture her [and the first man] has
sex with her against her will. As soon as they have had sex, then they are considered to be husband
and wife. He then sends a message to the family saying ‘don’t search for the girl, she is now my
107 According to Leonardi et al. , “The powerful cultural imperative to try to maintain and restore relations
actually gives women considerable room to express their grievances in both private and public arenas.”
LEONARDI ET AL ., LOCAL JUSTICE , supra note 4, 41. 108 Penal Code Act, ch. XVII I, § 247. 109 Some customary laws have different rules, in this regard. Fangak Law, for example, prohibits sexual
activity with girls who are younger than age 16.

56

wife .’ She will then be returned to the family with cows, and will then be consider ed to be
married. 110

Responses to sexual violence against women and girls are determined in part by their
bridewealth value and the social relations that are at stake . Customary courts typically
view rape as an issue that demands social reparation, rather than justice for harm done to
the individual. Customary courts sometimes view a mature woman who is raped to be
unworthy of compensation or the pursuit of justice, while the rape of an unmarried young
woman is considered to be a greater crime. The response does not necessarily look
primarily to the harm done to the woman in question, but rather the harm to the family as
a result of her diminished bridewealth. 111

In addition to incidents of rape associated with courtship and marriage, sexual violence is
also a common feature of conflict in South Sudan. Prior to Sudan’s independence from
British colonial rule in 1956 , and the successive civil wars that began shortly thereafter,
the rape of women in the context of armed conflict was thought to be relatively rare in
South Sudan. 112 In fact, customary rules of war for Nilotic tribes expressly forbade any
form of violence against women. According to Michael Makuei, then Attorney General
for the G overnment of Southern Sudan:

[I]n our rules of war, you don’t kill a vulnerable person; you don’t kill a person who is disarmed;
you don’t kill a woman; you don’t kill a child. This is something that is in our custom. But the
conventions come and tell us, “Don’t d o this, it is against the convention and should be done like
this.” And yet we already have them in our own customary law, except that we were made to
believe that we don’t have them because we have not recorded them. 113

To the extent that traditional rules of war prohibit violence against women and children
during armed conflicts, practices chan ged during the second civil war and sexual violence
became far more pronounced. 114 The legacy of rape as a weapon of war can be seen in a
2007 survey on psychosocial t rauma in Juba County, in which 41.9 percent of women
reported that they had witnessed the rape of other women. 115 Sexual violence has also
been associated with inter -communal conflicts in the post -CPA period .

Despite the evidence that rape and other forms of sexual violence continue to be a critical
area of concern, the reported incidence rates in the six counties were lower than expected.
Of the 160 households interviewed in Ikotos, for example, not a single incident of rape
110 See FRIEDERIKE BUBENZER AND ORLY STERN (EDS .), HOPE , PAIN AND PATIENCE : THE LIVES OF WOMEN
IN SOUTH SUDAN 1 (2011). 111 SIHA, FALLING THROUGH THE CRACKS , supra note 84 , xii -xiii. 112 CATHY GROENENDIJK AND JOLIEN VELDWIJK , CONFIDENT CHILDREN OUT OF CONFLICT (CCC), ‘BEHIND
THE PAPYRUS AND MABAATI ’: SEXUAL EXPLOITATION AND ABUSE IN JUBA , SOUTH SUDAN (Aug ., 2011). 113 DENG , CUSTOMARY LAW , supra note 4, 240 -41. 114 According to Human Rights Watch, all sides made use of rape as a weapon of war in the 22 -year
conflict. HUMAN RIGHTS WATCH (HRW), SUDAN : SLAVES , STREET CHILDREN AND CHILD SOLDIERS
(1995), available a t http://www.unhcr.org/refworld/docid/3ae6a8264.html . 115 ISIS -WOMEN ’S INTERNATIONAL CROSS -CULTURAL EXCHANGE (ISIS -WICCE), WOMEN ’S EXPERIENCES
DURING ARMED CONFLICT IN SOUTHERN SUDAN , 1983 – 2005: THE CASE OF JUBA COUNTY , CENTRAL
EQUATORIA STATE (2007), available at
http://www.isis.or.ug/index.php?option=com_docman&task=doc_details&gid=11 5&Itemid=89 .

57

was reported as having occurred over the last two years (see Figure 14 ). Other surveys in
South Sudan found a similar appearance of underreporting, perhaps due to the stigma
attached to rape and reporting rape in many local societies .116 Some studies, this one
included, also use a high proportion of male researchers, which may further discourage
women from openly discussing their experiences .

Pibor had the highest incidence rates for rape, with 7.1 percent of households
experiencing one or more incidents of rape in the past two years (Figure 14 ). These
figures likely reflect sexual violence associated with the heavy inter -communal fig hting
that has plagued Pibor in recent years , as well as sexual violence associated with the
SPLA’s 2012 disarmament campaign . Doctors Without Borders, which has been working
in Pibor County since 2005, received its first ever rape cases in late 2012 when their
clinic received 26 cases of sexual violence associated the SPLA’s disarmament
campaign. Interviews indicate that beyond disarmament -related violence, rape has also
occurred in a variety of other contexts in Pibor during the past two years. 117

Figure 14 : Rates of Rape by County

In other common law countries, government prosecutors would typically be responsible
for prosecuting rape cases and private attorneys would only be involved if the victim was
seeking a civil remedy. But in South Sudan, courts often allow private attorneys to
prosecute criminal cases against alleged wrongdoers. This opens possibilities for
addressing unprosecuted instances of rape through legal aid programs that are carefully
coordinated with government actors to ensure that public prosecutions are not
inadv ertently obstructed. By providing legal representation to women and girls whose
rape claims are ignored by actors in local justice systems, legal aid programs can begin to
fill the accountability gaps that exist with respect to sexual violence and prevent further
injustice, such as forcing women to marry their rapists against their will. Legal aid
programs alone will not be able to change prevailing social norms that discourage women
and girls from speaking publicly about their experiences with rape, but in creasing
perpetrator accountability for the crime can be one component of a larger strategy to
combat sexual violence in South Sudan. Such initiatives can be buttressed by government
116 See Ministry of Gender, Gender -based Violence , supra note 10 . 117 MEDECINS SANS FRONTIERES , SOUTH SUDAN ’S HIDDEN CRISIS HOW VIOLENCE AGAINST CIVILIANS IS
DEVASTATING COMMUNIT IES AND PREVENTING A CCESS TO LIFESAVING HEALTH CARE IN JONGLEI (2012 ).
1.1%
4.2%
2.3%
7.1% 6.7%
0.0% 0%
5%
10%
Renk Nasir Akobo Pibor Budi Ikotos

58

policy and legislation that expands the government’s approach to combatin g sexual
violence.

3.7 Girl Child Compensation

As mentioned in Chapter Two, a common remedy for homicide under customary law is
for the perpetrator and his or her family to compensate the victim’s family for their loss
through the payment of a certain a mount of cattle. This remedy is in line with customary
law’s focus on restorative justice and the lack of police and prison services in rural parts
of South Sudan. However, complications can arise when perpetrators and their families
cannot afford the comp ensation payment. In such circumstances, customary courts will
sometimes allow perpetrators’ families to give one of their daughters to the family of the
homicide victim, a practice known as “girl child compensation.” 118 According to a social
worker in Easte rn Equatoria State where the practice is common, the procedure is as
follows:

When someone is killed, the girl will be told to go to those people [the victim’s family]. Then
there is a ritual always performed. They will come to the court. Things will be documented, that
from today onward, such a girl by name so -and -so is delivered t o such a clan because the relative
killed the relative of that deceased. So the girl will be given over. Then it depends on how the girl
will feel like. There are those who will say, “No, I have a boyfriend. I cannot be compensated.”
Then they will report to the boyfriend. Then that man will give cows and that will be given for
compensation [to the murder victim’s family].

For girls who are unable to avoid the arrangement through marriage to their boyfriends,
being given over to the family of the deceased murder victim is often a traumatic
experience. The girl is a constant reminder to the victim’s family of the wrong that was
done to them and their loved one. According to the social worker:

If it is a small girl, she will not complain. You know how child ren behave. She may not know that
she has been compensated. But after a couple years she will come and realize. The relatives of the
deceased will also start behaving to her in a bad way. They will say, “Now that our relative is
killed, you must stay with us.” When the child is still young, they will make her to st ay by force. If
the girl refuses , they will say, “ If you want to go, let your parents bring our brother back to life
first.”

Numerous girls have reportedly fled to Uganda, Kenya or elsewhere in S outh Sudan to
avoid being given as compensation. When girls flee, it can sometimes expose their birth
families to reprisals from the families of the deceased murder victims and place the girls
in precarious situations. A prosecutor in Eastern Equatoria rec ounted a story about a girl
who fled a compensation arrangement:

[The girl] was paid as blood compensation, so she ran. She came to the main road and from there
she escaped. Now her grandmother, whom she was staying with, she also had to escape, because
they [the family of the deceased] were going to kill her. So we had to provide protection for these
people. …The girl is now being taken care of by the Ministry of Social Development.
118 Of the six counties targeted in the survey, the qualitative research found girl child compensation to be
most prevalent in Budi and Ikotos in Eastern Equatoria. The survey did not include questions relating to
girl child compensation.

59

Several interviewees indicated that girl child compensation continues to be practiced in
their counties, both through informal agreements between families as well as in
customary courts. In a recent case reported to a legal aid clinic in Eastern Equatoria, a
young girl was killed after ingesting a container of her grandmother’ s home brewed
alcohol. Her father, who had married into the grandmother’s family, demanded that side
of the family provide a girl child in compensation for the death blamed on the
grandmother. The matter was handled entirely within the family, demonstratin g the
difficulty in establishing policies to successfully eradicate the practice.

Gover nment and civil society actors have launched campaigns to eradicate the practice,
but they face stiff opposition from some sectors of society. The social worker in Iko tos is
among the local actors advocating against the practice:

When the bill of rights of children [the 2008 Child Act] came out I decided to intervene by
sending my staff to go and attend courts. So that thing [girl child compensation] has come to a
stan dstill until now. I even one time quarreled with the paramount chief, I said, “Should you
continue with that habit, I will imprison you by opening a case against you.” So this thing has
subsided down. It is something that is the order of the day here. Espe cially payams like Chapal
and Cherekol, even Ikotos here. Those people whose relatives were killed during the war, they are
still following up the compensation of their relatives.

Although residents of Eastern Equatoria are beginning to recognize the need to abolish
the practice, a local paramount chief suggests that were he to prohibit the practice
families would be unhappy and would go behind his back to arrange girl child
compensation. The underlying reason for the ongoing acceptance of the practice may be
related more to expediency by a weak justice system than to cultural conservatism. From
that perspective, efforts to strengthen the justice system by improving linkages to
statutory courts in urban areas, providing security for chiefs at the payam leve l and
improved enforcement of cattle compensation agreements may help to reduce instances
of girl child compensation.

3.8 Excessive Use of Criminal Sanctions in Relation to Unpaid Debt

Legal problems associated with unpaid debt raise several concerns rel ated to the ability of
local justice systems to distinguish between civil and criminal matters. Customary courts
and statutory courts often treat the failure to pay a debt as a criminal matter, even when
the circumstances might suggest that a civil suit un der the law of contract might be more
appropriate. 119 For example, a dispute arose in a rural area when a friend of a local NGO
employee entrusted him with a large sum of money to hold on his behalf while he
traveled to Juba. The NGO failed to transfer funds to the c ounty office for several months
and the employee proceeded to spend his friend’s money in order to make up the
difference. When the friend returned and found that the money was gone, he opened a
119 In most legal systems, disputes over unpaid debts are managed under the law of contracts, unless some
sort of fraud or other criminal misconduct is involved. The Government of Southern Suda n passed a
Contract Act in 2008 which does not stipulate any criminal sanctions f or breach of contract.

60

case against the employee with the police. After lit igating the matter unsuccessfully in the
town bench court, the complainant opened another case in the magistrate’s court.

Despite the fact that matters involving this amount of money were outside the jurisdiction
of a magistrate’s court, and that the bre ach of an oral contract is not a criminal matter, the
magistrate nonetheless sentenced the employee to four years in prison and demanded that
he pay back the debt. 120 After several months in prison, the employee sold a business he
owned and received a sum fr om the NGO and was able to back the debt in full plus a five
percent fine . S till, the judge refused to release him. The employee wrote appeals to the
nearest high court in Bor and to the court of appeals in Malakal, but at the time of
writing, the prison s entence has not been overturned. 121 According to the employee:

I already paid the money. I don’t have any problem. If they sentenced me to four years because I
wasn’t able to pay this money, I would have no problem. But because I already paid, I wrote the
appeal to Bor. …I wrote that I have already paid this amount to the owner. Now I am free with
that complainant. My remaining problems are with the government. I cannot accept being put in
prison for four years, because I already paid the money.

Aside from business -related matters such as these, many disputes over unp aid debt in
rural areas also relate to incomplete bridewealth payments. 122 Among many groups in
South Sudan, the groom and his family make bridewealth payments in a series of steps:
the first payment may allow the man to court the woman, the second payment a llows her
to live with him at his home and the final payment finalizes the union. If a groom fails to
make these payments in a timely manner, he runs the risk of having the bride’s family
open a case against him in court. Due to the lack of alternative rem edies, such as
suspended sentences or attaching the property of the debtor to satisfy the debt, customary
court judges will sometimes ask for debtors to be imprisoned ‘until they pay .’ In some
cases, friends or family members may be incarcerated ‘in place’ of the debtor. This
mis use of crimina l sanctions can lead to indefinite incarceration for people who do not
have the means to pay their debts or are simply related to debtors and may constitute a
violation of international hum an rights law .123

Approximately 18 percent of households in the sample (n = 277) experienced a problem
paying back a debt in the last two years . One -third of these households (n = 90) claimed
that one or more household members had been imprisoned within the last two years f or
failure t o pay back a debt (see Figure 15 ). At the county level, the dispute rates ranged
from a high of 30 percent in Pibor to a low of 8.7 percent in Ikotos (see Figure 16 ).

120 According to the accused, the magistrate did not ask him what his salary was or whether he had any
assets that he could sell to pay for the debt. 121 The NGO employee had been in prison for eight months when the interview took place. 122 See SOMMERS AND SCHWARTZ , DOWRY AND DIVISION , supra note 98 . The precise number of cattle or
other livestock that a groom’s family must pay to the bride’s family varies among groups in South Sudan
and is often the subject of lengthy negotiations between the families. Bridewealth can range from a few
heads of cattle to 50 or more. 123 See PRISON IS NOT FOR ME, supra note 25 .

61

Figure 15 : Was Your Household Member Imprisoned for Debt?

Figure 16 : Debt Dispute Rates by County

The highest rates of imprisonment for debt were found in Budi and Akobo, followed by
Pibor and Nasir (see Figure 17 ). To the extent that these disputes relate to incomplete
bridewealth payments, the large populations of pastoralists in these counties may partially
explain the prevalence of problems relating to debt.

Figure 17 : Imprisonment for Debt by County

10.4%
20.5%
14.6%
30.0%
21.7%
8.7%
0%
10%
20%
30%
Renk Nasir Akobo Pibor Budi Ikotos
44%
0%
46%
35% 35%
8%
56%
100%
54%
64% 65%
92%
0%
20%
40%
60%
80%
100%
Budi Ikotos Akobo Pibor Nasir Renk
Yes No

62

When asked whether people who are unable to pay back debts they owe to someone else
should be punished, 77.1 percent of respond ents (n = 1159) said, ‘Yes’ (see Figure 18 ).

Figure 18 : Should Debtors be Punished?

The most preferred punishment for unpaid debt was rather self -explanatory and
consistent with a civil remedy . Forty -three percent of respondents felt as though the
debtor should be made to compensate (or repay) his or her creditor (see Figure 19 ).
However, a quarter of r espondents thought that the debtor should be imprisoned. The fact
that so many people were comfortable with applying criminal sanctions in these
circumstances shows the thin line between civil and criminal matters in local justice
systems.

Figure 19 : Pref erred Punishments for Unpaid Debt
* Individual respondents were asked whether they thought someone who was unable to pay a debt should be punished. Those who answered ‘yes’ were then asked how they thought the individual should be punished. The respondent was allowed to respond openly and the enumerators selected the response that best matched the open answer from a list of coded responses.

The excessive use of criminal sanctions such as im prisonment and fines exacerbates other
inequities in local justice systems. Imprisonment for debt disproportionately affects the
poorest , many of whom are women, in local societies and those without access to social
protection mechanisms. Widows, orphans, divorcees and the elderly are most likely to be
42.8%
20.1%
25.4%
3.7%
0.2%
0.2%
7.3%
0.2%
0% 10% 20% 30% 40% 50%
Made to pay compensation
Fined
Prison sentence
Corporal punishment
Death sentence imposed by court
Execution by individual or mob
Other
Don’t know

63

impacted. If local justice systems were able to administer alternative sentences, such as
mandatory community service, behavioral health programs, suspended sentences and
delayed adjudications, it could save costs and lead to more sustainable and reformative
outcomes for individuals who enter the system. These types of programs require close
coordination between judges, chiefs and other justice service providers, and could be
incorporated into existing legal a id programs in South Sudan. In determining whether
alternative sanctions are appropriate, justice service providers should examine such
factors as the type and severity of the crime, the age of the defendant, the defendant’s
criminal history, the impact of the crime on victims and the sincerity of the defendant’s
remorse.

64

Chapter Four
User Choices and Perceptions

The choices that people make in navigating local justice systems and their perceptions of
what constitutes ‘justice’ shed further light on the challenges of accountability discussed
in the preceding chapter. The survey data demonstrates that complaint mech anisms for
marital disputes and sexual crimes are accessible in most cases while there is an absence
of effective justice options for disputes associated with inter -communal violence and
trans -boundary crime. Respondents tended to use informal complaint me chanisms for
marita l disputes and sexual crimes while referring homicide, theft and physical assault
cases to more formal mechanisms . Chiefs play a role in trying to resol ve almost every
type of dispute and may play the role of adjudicator, mediator, witne ss or advisor,
depending on the specific circumstances in question .

4.1 Accountability Gaps and the Accessibility of Complaint Mechanisms

The accountability gaps discussed in this report arise in two main forms: either the
existing complaint mechanisms are unable to investigate , prosecute and enforce decisions
related to the crimes , or else the local justice system is able to process the dispute but the
manner in which the dispute is reso lved imposes unfair or discriminatory decisions on
third parties. Despite these serious shortcomings , survey findings suggest that local
justice systems receive and resolve a range of disputes . According to respondents,
households that experienced marital disputes and sexual crimes were more likely to
complain to someone about the incident than households that experienced theft, physical
assault, homicide or abduction (see Figure 20 ).

Figure 20 : Ability to Access Complaint Mechanisms
*This question simp ly asked whether or not the household members that experienced the problem in question complained to anyone about the incident , i.e. whether or not they accessed a complaint mechanism . This question did not address whether people were able to access justice via a particular complaint mechanism. The reasons for not complaining to anyone could be linked to either t he unavailability of complaint mechanisms or the ineffectiveness of availabl e complaint mechanisms. These issues were addressed in a follow -up question.

People ’s experience s in accessing complaint mechanisms vary depending on the type of
dispute, the identity of the perpetrator and the perceived effectiveness of specific justice
75%
35% 38%
47% 43%
70% 63%
25%
63% 59%
49% 56%
25% 30%
0% 2% 3% 4% 2% 6% 7%
0%
20%
40%
60%
80%
Spousal
neglect
Theft Physical
assault
Abduction Homicide Adultery Rape
Yes
No
Don’t know

65

mechanisms . In relation to marital disputes and sexual crimes, for example, the
wrongdoers are more likely to be people that the vict ims know and with whom they have
regular interactions. It is therefore easier to identify the opposing party and ensure that he
or she appears at the court hearing or mediation. In family disputes, the parties may also
have a mutual interest in resolving t heir differences.

Government representatives and traditional authorities consistently identify disputes
relating to theft, physical assault, abduction or homicide to be the most difficult to
resolve. V ictims or their families are less likely to know the identity of the perpetrator , a
household member may be killed by unknown assailants, a child may go missing without
his or her family knowing who is responsible and successful thieves do not get caught. In
these circumstances, the household may not know wh o to complain to since the
perpetrator was never identified. People may also choose to not complain to anyone about
these incidents because they do not have confidence in the ability of local justice actors to
investigate and prosecute the perpetrators.

The most cited reason household members did not complain to anyone about their legal
problems was that, ‘There was no one who could resolve it .’ The second most cited
reason was that the complainant ‘Did not know who to go to.’ For rural populations
confro nted with certain types of disputes there is often no accessible and effective justice
option.

The inaccessibility of complaint mechanisms for disputes relating to inter -communal
homicide, trans -boundary theft and abduction was especially apparent at the county -level.
For example, the majority of complainants in Akobo did not complain to anyone about
their homicide, theft o r abduction cases (see Figure 21 ).

Figure 21 : Access to Complaint Mechanisms for Homicide, Theft and Abduction at the County Level

54%
30%
79%
50%
46% 47%
0%
20%
40%
60%
80%
Budi Ikotos Akobo Pibor Nasir Renk
Homicide
Yes
No
Don’t Know

66

Respondents in Akobo overwhelmingly said that their household members did not
complain to anyone about their experiences because, ‘There was no one who could
resolve it .’124 This response was even more pronounced for instances in which the
perpetra tor was identified as ‘Individual(s) from another village’ ( see Figure 22 ). In
relation to each of the three types of disputes, respondents indicated that their household
members were less likely to complain to anyone when the perpetrator was, ‘Individual(s)
from other village’.

124 Seventy -four percent of respondent households in Akobo who did not complain to anyone about their
household member being killed, 60 percent of households that did not complain about their household
member being abducted, and 71 percent of households that did not complain about their experiences with
the ft, said that their reason for not complaining was that, ‘There was no one who could resolve it’.
56%
42%
23%
36% 35%
44% 42%
58%
77%
45%
65%
56%
0%
20%
40%
60%
80%
Budi Ikotos Akobo Pibor Nasir Renk
Theft

Yes
No
Don’t know
82% 75%
28%
61%
45%
80%
18% 25%
72%
22%
55%
20%
0%
20%
40%
60%
80%
Budi Ikotos Akobo Pibor Nasir Renk
Abduction
Yes
No
Don’t know

67

Figure 22 : Access to Complaint Mechanism by Types of Perpetrator for Homicide, Theft, and
Ab du ction

* Respondents that were not able to identify the perpetrator or who did not answer the question were not inclu ded among the perpetrators identified as ‘Other’ in these figures.

One outlier was adultery .125 Qualitative interviews demonstrate a wide range of
perce ptions of what constitutes adultery . While the penal code defines adultery to include
any instance in which a married person has sex with someone other than their spouse(s),
many customary legal systems do not view adultery committed by married men and
125 Interviewers asked whether any married member of the household had sex with someone other than their
spouse in the last two years and whether any member of the household complained about the incident . Th e
data does not identify which household member complained about the adultery.
36%
52%
63%
44%
0%
20%
40%
60%
80%
Individual(s)
from other
village
Other
Homicide
Yes
No
Don’t Know
30%
43%
70%
53%
0%
20%
40%
60%
80%
Individual(s) from other village Other
Theft
Yes
No
Don’t know
39%
69% 61%
26%
0%
20%
40%
60%
80%
Individual(s) from other village Other
Abduction
Yes
No
Don’t know

68

unmarried women as an offense , particula rly since it can eventually lead to marriage in
polygamous societies.

Although 70 percent of households complained to someone about their experiences with
adultery, the top two reasons for not complaining were , ‘Don’t know’ and ‘Other’. To the
extent that married women do not complain about adultery committed by their husbands,
it may be because they are not aware that it is a crime under the penal code or are
discouraged from doing so by local norms. Nonetheless, t he fact that respondents did not
point to an absence of justice services as the reason why their household member did not
complain to anyone suggests that respondents believe that forums exist where they may
raise issues related to adultery .

Distinguishing Access to Complaint Mechanisms from A ccess to Justice

While a considerable number of households complain ed to someone about their legal
problems, simply being able to access a complaint mechanism does not guarantee a just
outcome. In domestic disputes, t he maintenance of the family unit is u sually a high
priority in determining appropriate settlements in both formal and informal complaint
mechanisms . W omen are sometimes coerced to remain in unhappy and violent marriages
due to pressure exerted by local justice systems and kinship networks . Ot her women
grapple with their own sense of obligation to abide by customary practices.

The lack of clear appeal processes between customary courts and statutory courts also
gives rise to certain miscarriages of justice that disproportionately affect femal es.
Because complainants can bring the same case in different forums, women often find
themselves subject to multiple courts and authorities for the same case . For example ,
cases have been documented in which after a woman’s application for divorce ha s been
granted by one court, her former husband or family member has appeal ed to a second
court . These second courts do not always recognize divorce s granted in other courts ,
leaving women in precarious situation s. Another tactic divorced husbands have used is to
file complaints of adultery against their ex -wives to invalidate divorces that have been
approved in other courts. In these circumstances, women who believed they were
embarking upon new, legitimate relationships were suddenly subject to trials for adultery
and the time and expense of further court proceedings .126

126 SIHA, FALLING THROUGH THE CRACKS , supra note 84 , xvi.

69

Inheritance Under Customary Law and the Downside of Forum Shopping 127

Sarah had three children with her husband, an SPLA captain. 128 He was killed before completing the bridewealth
payment to Sarah’s family. After his death, Sarah’s in -laws told her she must go live with her brother -in-law in a
neighboring country. This is a common practice in South Sudan known as widow inheritance or levirate marriage.
However, when Sarah arrived in the neighboring country, her brother -in-law refused to take her into his house, saying
that if he were to do so, his current wife would leave him. Sarah then returned to South Sudan, where she remarried and
had another two children.

In 2002, Sarah’s brother -in-law opened a case at the head chief’s court (a payam -level court), demanding custody of all
five of Sarah’s children. Since her marriage to her first husband had never been formally terminated, the br other -in-law
argued that all five of Sarah’s children belonged to the family of her deceased husband. The chief ruled that he would
not give custody of the two children Sarah had with her current husband to the brother -in-law. However, the chief said
that if the brother -in-law paid the remainder of the bridewealth within one month he could claim custody over the
children Sarah had with her deceased husband, otherwise any claim that he had to the children would expire.

The brother -in-law did not pay the rem aining bridewealth, losing his claim to the children. In the intervening years,
Sarah’s oldest daughter gained a reputation as one of the most beautiful girls in the county. She had almost reached
secondary school and had a bright future ahead of her. In 2 011, the brother -in-law again attempted to win custody of the
children, hoping to capitalize on the sizeable bridewealth payment the family would receive when she eventually got
married.

This time the brother -in-law brought the case to the paramount chie f’s court (a county -level court), which overturned the
earlier decision and decided in favor of the brother -in-law. The chief ruled that Sarah must give custody of all five of her
children and a shop built during her first marriage to her brother -in-law. S arah contested the decision, asserting that it
was she who raised the children and paid their school fees and that the brother had refused her when she first went to
him at his home in the neighboring country.

At great expense to herself, and with the as sistance of a legal aid attorney, Sarah appealed the decision at the county
court in the state capital. After hearing the parties’ arguments, the judge declared that if the brother -in-law were to pay
the outstanding bridewealth in a reasonable amount of ti me, he could lay claim to the three children Sarah had with her
deceased husband in accordance with customary law. The shop, however, was to remain with Sarah as she built and
operated it, thus it was her own personal property. The brother in law did not p ay the remaining bridewealth and Sarah
retained custody of her children.

While Sarah managed to maintain custody of her children and ownership of her property, it was a costly and mixed
victory. During the court hearings, no reference was made to Child Ac t, which requires the ‘best interests of the child’ to
be the primary factor in determining child custody disputes, or the Transitional Constitution, which states, “Women shall
have the right to own property and share in the estates of their deceased husba nds together with any surviving legal heir
of the deceased.” 129 No one, except Sarah, argued that the customary rules that were dispositive of the case were against
justice, equity or good conscience. Instead, discriminatory customs were allowed to trump Sar ah’s statutory and
constitutional rights, and, if Sarah’s brother -in-law had paid the remaining bridewealth, she may very well have lost
custody of her children.

127 Forum shopping is when a complainant attempts to have his or her action tried in a court or jurisdiction
where he or she expects to receive the most favorable judgment. 128 This story use s a pseudonym in order to protect the identity of the woman involved. 129 TCRSS , pt. II, Art. 16(5).

70

4.2 Trends in the Use of Formal and Informal Complaint Mechanisms

The complainants’ choice of forum also affects the manner in which accountability gaps
manifest for different types of disputes. Unlike other countries, where most criminal acts
are considered crimes against the state and prosecutions can proceed even in the absence
of com plaining parties, criminal prosecutions in South Sudan are not possible unless a
complainant is present. This gives the complaining party an advantage in terms of forum
selection. Generally speaking, complainants tended to use more informal complaint
mecha nisms for dealing with their marital disputes and sexual crimes and more formal
complaint mechanisms for dealing with instances of homicide, theft, abduction and
physical assault. When more than one forum was used, most cases progressed from more
informal complaint mechanisms to more formal complaint mechanisms.

Spousal Neglect, Rape and Adultery

Most people used more informal complaint mechanisms to resolve their marital disputes
and sexual crimes. T he preferred complaint mechanisms for spousal neglect and rape
were ‘other family, friends, neighbors ’ and the ‘chief’ . Similarly, for adultery the most
preferred complaint mechanism was the ‘chief’ ( see Figure 23 ). While informal
complaint mechanisms are generally more accessible for marital disputes and sex ual
crimes, customary law is usually the basis for a ruling in these cases and women can
sometimes be pressured into accepting unfair or discriminatory settlements.

Figure 23 : Preferred Complaint Mechanisms for Spousal Neglect, Rape and Adultery

25.3%
15.7%
15.3%
11.1%
10.7%
8.0%
6.5%
3.1%
2.3%
1.9%
0% 10% 20% 30%
Other family/friends/neighbors
Chief
Clan headman
Local government official
Spouse
Police
Civil society
Statutory court judge
Other
Legal adviser
Spousal Neglect

71

*The existing complaint mechanisms across the six counties are not as uniform as the coded responses suggest. For example, am ong the Murle in Pibor, age -sets play an important role in resolving certain types of grievances. The list of 21 complaint mecha nisms that we included in the questionnaire tried to balance the diversity of complaint mechanisms in the six counties against the need to use a common vocabulary in each county.

These findings were also reflected in the dispute trajectories (i.e. the for ums people went
to first, second, third, and so on for addressing their complaints). According to
respondents, the vast majority of household members (17 percent, n = 17) only
complained to ‘other family, friends and neighbors’ about their problems with sp ousal
neglect ( see Table 8).

19.0%
19.0%
17.7%
16.5%
8.9%
6.3%
5.1%
3.8%
2.5%
1.3%
0% 5% 10% 15% 20% 25% 30%
Chief
Other family/friends/neighbors
Police
Local government official
Clan headman
Civil society
Statutory court judge
Legal adviser
The perpetrator
Prosecutor
Rape
25.1%
19.2%
14.8%
9.9%
8.9%
8.9%
7.4%
2.5%
2.0%
1.0%
0.5%
0% 10% 20% 30%
Chief
Police
Local government official
Clan headman
Other family/friends/neighbors
Civil society
Spouse
Statutory court judge
Legal adviser
Prosecutor
Other
Adultery

72

Table 8: Dispute Trajectories for Spousal Neglect
Dispute Trajectory Pct. No.
Family/friends/neighbors 17.4 % 17
Spouse 4.1 % 4
Spouse  Family/friends/neighbors  Clan
headman
3.1 % 3
Family/friends/neighbors  Clan headman 3.1 % 3
Police 3.1 % 3
* These tables list the percentage and number of households that used the specified complaint mechanisms in the specified ord er when trying to resolve their disputes. The percentages represent the percentage of the households that complained to someone abo ut their problems and not the percentage of the households that experienced the problem.

Similar to dispute trajectories for spousal neglect, the most common response for
households in which one or more people had been raped in the last two years was to
complain to ‘other family, friends, or neighbors’ (28 percent, n = 10) (see Table 9).

Table 9: Dispute Trajectories for Rape
Dispute Trajectory Pct. No.
Family/friends/neighbors 27.8% 10
Police 11.2% 4
Chief 8.4% 3

The dispute trajectories for incidents of adultery centered on the more informal complaint
mechanisms, although the police played more of a pronounced role in processing adultery
cases than spousal neglect cases. Police acted either as final arbiters or places to which
people submitted complaints prior to adjudications in customary courts (see Table 10).

Table 10 : Dispute Trajectories for Adultery
Dispute Trajectory Pct. No.
Chief Police 12.2% 10
Chief 9.8% 8
Don’t know 7.3% 6
Family/friends/neighbors 4.9% 4
Police 3.7% 3

Bias towards the Complainant and Discrimination against Women

Aside from overtly discriminatory customary practices, the tendency of customary courts
to decide in favor of the complainant also has implications for women’s ability to access
justice . By ruling in favor of a complainant, chiefs are able to secure payments in the
form of fines against the accused in addition to court fees . If the chief rules in favor of the
accused, they are only able t o obtain payments in form of court fees. This system gives
chiefs a financial interest in ruling in favor of complainants. When coupled with the
advantages that complainants have in terms of selecting the forum that most suits their

73

purposes, local justice systems can be biased against defendant parties. This partiality
towards the complainant often results in women being given a lengthy imprisonment, a
hefty fine, or both , and in some cases results in women having to return to their
marriages. 130 Given the barriers women face in bringing complaints – the pressure to
resolve cases within the family, lack of funds for court fees, and, in some cases, being
unable to present a case without a male relative – complainant bias represents another
form of discrimination against women .

Local justice systems also have other ways of pressuring women to remain in unhappy
marriages. One woman interviewed described her attempts to resolve her marital
problems. The woman’s complaints were based on her husband failing to give h er money
to buy food for the family. These accusations angered the husband and he would
regularly beat the woman. The woman’s first attempt to resolve her problem was to ask
her friends and neighbors to sit down and talk to the man. According to the woman, the
neighbors came several times to try to talk things through with the couple, but still the
man failed to provide food for the family. After one particularly bad beating, the woman
submitted a complaint to the police, but the police sent her back home t o resolve the issue
with her husband. When again the husband beat the woman, this time threatening to kill
her, the woman returned to the police, who this time referred her to the executive chief’s
court. According to the woman:

Woman : When we went to cou rt, the chiefs said, “Right now, we cannot do anything to your
husband. You go back home, let him prepare what you need, and if he fails to understand we will
talk to him. If he still also fail s to understand , you call the father and the relatives so that they
come to solve the problem.”

Interviewer : So did the chiefs demand that he give you food? What was the decision from the
court?

Woman : They did not even give anything.

Interviewer : And how satisfied are you with the decision from the court?

Woman : I held my words. The chief advised me to go back home and stay with my family.

In a separate case in an executive chief’s court (payam -level), a woman brought a
complaint because her husband was regularly getting drunk and beating her. According to
the wo man, he once even woke up in the night and urinated on their children. The man
had not yet completed the bridewealth payments and the woman asked for a divorce, but
the chiefs did not grant her request. The chiefs spent several days trying to convince the
woman to go back to her husband and when the woman refused, the chiefs referred the
case to the police, presumably in an attempt to intimidate the woman into dropping her
request. 131 The police said this was not a matter for them to resolve and sent the woma n
back to court. The executive chief then ruled that the matter was outside of his
jurisdiction and referred the case to the paramount chief’s court.
130 SIHA, FALLING THROUGH THE CRACKS , supra note 84 , xiv. 131 SIHA documented cases in which incarceration was used as a tool to coerce women to change their
mind and deter them from seeking a divorce. Id. , xiv.

74

The final outcome in these two cases is not yet known, but the manner in which the local
justice system pressured these women to resolve their disputes with their husbands,
without any sanctions for their husbands’ violence, demonstrates the permissive attitude
towards domestic violence in South Sudan and the importance that local justice systems
often attac h to maintaining the family unit at all costs.

Homicide, Theft, Abduction and Physical Assault

Unlike marital disputes and sexual crimes, people who have been victimized by
homicide, theft, abduction and physical assault, tended to seek out more formal complaint
mechanisms , such as local government officials and police ( see Figure 24 ).

Figure 24 : Preferred Complaint Mechanisms for Homicide, Abduction, Theft and Physical Assault

25.2%
19.4%
14.8%
9.9%
7.2%
7.0%
4.3%
4.1%
4.1%
1.7%
1.2%
1.2%
0% 10% 20% 30%
Local government official
Chief
Police
Clan headman
Other family/friends/neighbors
Civil society
Self-help
Legal adviser
Statutory court judge
Other
Prosecutor
Don’t know
Homicide
32.4%
20.0%
18.6%
10.3%
6.9%
6.2%
2.8%
1.4%
0.7%
0.7%
0% 5% 10% 15% 20% 25% 30% 35%
Local government official
Chief
Police
Civil society
Other family/friends/neighbors
Clan headman
Statutory court judge
Prosecutor
Legal adviser
Other
Abduction

75

*The term legal adviser is used when the household member complained to either a prosecutor or advocate.

The three most common dispute trajectories for households that experienced one or more
homicides in the last two years were to either complain to the chief (8 percent, n = 10),
pursue se lf-help solutions against the per petra tor directly (4 percent, n = 5) or to
complain to the police (4 percent, n = 5) (see Table 11 ).

Table 11 : Dispute Trajectories for Homicide
Dispute Trajectory Pct. No.
Chief 7.9% 10
Self -help 4.0% 5
Police 4.0% 5
Police  Other 3.2% 4
22.9%
19.2%
18.7%
10.1%
9.6%
8.9%
4.5%
2.4%
1.2%
1.0%
1.0%
0.5%
0% 5% 10% 15% 20% 25%
Local government offiial
Chief
Police
Clan headman
Civil society
Other family/friends/neighbors
Legal adviser
Statutory court judge
Other
The perpetrator
Prosecutor
Don’t know
Theft
19.9%
18.3%
12.9%
12.7%
9.2%
9.2%
6.7%
5.4%
3.8%
1.8%
0.2%
0% 2% 4% 6% 8% 10% 12% 14% 16% 18% 20%
Local government official
Chief
Police
Other family/friends/neighbors
Clan headman
Civil society
Self-help
Legal adviser
Statutory court judge
Other
Don’t know
Physical Assault

76

Similarly, police play a far more prominent role in addressing cases of theft than in
marital disputes or sexual crimes. Most disputes relating to theft began and ended with
the ‘police’ (8 percent, n = 16), the ‘chief’ (6 percent, n = 11) or ‘family, frie nds and
neighbors’ (5 percent, n = 9) (see Table 12 ).

Table 12 : Dispute Trajectories for Theft
Dispute Trajectory Pct. No.
Police 7.9% 16
Chief 5.5% 11
Family/friends/neighbors 4.5% 9
* Due to the large diversity of dispute trajectories for theft, we only listed those dispute trajectories that were used by three or more households.

Many respondents characterized the places to where their household members
complained about abduction as ‘Other’ ( see Table Table 13 13 ). The list of possible
complaint mechanisms included more than 20 possible responses and should have
covered most actors at the local level. Findings such as this suggest more research is
needed into the precise dynamics of abductions at the local level.

Table 13 : Dispute Trajectories for Abduction
Dispute Trajectory Pct. No.
Other 14.3% 7
Local government official  Chief  Police 8.2% 4
Chief 8.2% 4
Family/friends/neighbors  Chief  Police  Other 4.1% 2
Family/friends/neighbors  Clan headman  Chief 
Police
4.1% 2

The dispute trajectories for physical assault show a diverse range of actors (see Table 14 ).
This is due in part to the many different circumstances in which physical assaults arise,
including fights between individuals, domestic violence and large -scale inter -communal
violence.

Table 14 : Dispute Trajectories for Physical Assault
Dispute Trajectory Pct. No.
Family/friends/neighbors 9.3% 15
Chief  Police 5.5% 9
Self -help 4.3% 7
Other 3.1% 5
Self -help  Family/friends/neighbors 3.7% 6

77

For all seven dispute types surveyed — spousal neglect, rape, adultery, homicide, theft,
abduction and physical assault — the most common dispute trajectories showed a
progression from more informal complain t mechanisms towards more formal ones. For
example, complaints to friends, family and nei ghbors were often followed by complaints
to clan headman or chief, which in turn were followed by complaints to police or
statutory court judges. However, in some dispute trajectories police played a role at the
beginning, often investigating and documenti ng incidents before referring the parties to
the customary courts. What is striking about these findings is how rarely complainants
appealed to statutory courts to resolve their problems compared to the significant role
chiefs play in mediating and adjudic ating in almost all disputes. This highlights the
danger of restricting the chiefs’ jurisdiction in situations where statutory courts would be
unable to fill the result ant justice gap.

4.3 Hypothetical Disputes and Preferred Complaint Mechanisms

The surv ey generated a set of comparative hypothetical data in order to better understand
the validity of responses, test different research methodologies, and control for elements
of cultural bias in the questionnaire. Respondents were asked to who m they would br ing
their complaint in the context of four hypothetical disputes:

(i) Your brother is beaten by a group of youths;
(ii) A female friend of yours is beaten badly by her husband and requests your
assistance;
(iii) Your spouse is having sex with someone outside of the ma rriage; and
(iv) Your spouse is murdered.

These hypotheticals provided data regarding dispute trajectories and preferred complaint
mechanisms for the entire sample population, not just that subset of the population that
actually experienced the dispute in qu estion. The responses to the hypotheticals were
largel y in accordance with what household members use d in practice. They reflect the
diversity of local justice systems in South Sudan, people’s preferences for different
complaint mechanisms in relation to d ifferent types of disputes, and the involvement of
the institution of the chief in almost all types of disputes. However, certain noteworthy
differences are apparent.

Physical Assault

For the hypothetical involving the beating of someone’s brother by a g roup of youths,
respondents expressed preferences for complaint mechanisms that largely matched users’
actual choices when seeking justice for physical assault . Most respondents said that they
would first complain to the clan headman if they were to experi ence such a dispute (see
Table 15 ).

78

Table 15 : First Assistance Preference for Physical Assault Hypo thetical
Complaint Mechanism Pct. No.
Clan headman 33.2% 326
Solve it myself 23.5% 231
Chief 20.9% 205

The chief was also the most preferred complaint mechanism overall , whether or not
followed by police and clan headman (see Figure 25 ).132

Figure 25 : Preferred Complaint Mechanisms for Physical Assault Hypo thetical

The choices did not differ significantly when disaggregated by gender; chiefs, police and
clan headmen were the top choices for both men and women. However, at the county
level, in Renk the third most preferred complaint mechanism was statutory court judges .
This likely reflect s the greater accessibility of statutory court judges in Renk and may
also be related to attempts by statutory courts in Renk to limit the jurisdiction of
customary courts as discussed in Section 2.5 (see Figure 26 ).

132 Local government was the fourth most preferred mechanism in the hypothetical but the mo st preferred
mechanism in relation to actual fights. This may be explained by the fact that many of the actual disputes
were perpetrated by ‘Individual( s) from other villages’ and the hypothetical did not stipulate whether the
assault is related to inter -tribal or inter -clan conflict .
23.9%
22.8%
13.9%
10.0%
7.1%
7.0%
4.8%
4.1%
2.3%
1.9%
1.5%
0.6%
0.1%
-5% 5% 15% 25%
Chief
Police
Clan headman
Local government official
Solve it myself
Family/friends/neighbors
Statutory court judge
Civil society
Legal adviser
Do nothing
Prosecutor
Other
Don’t know

79

Figure 26 : Preferred Complaint Mechanis ms for Physical Assault Hypo thetical in Renk

The most common dispute trajectory went from the clan headman to the chief to the
police (see Table 16 ). This progression towards more formal complaint mechanisms was
also seen in the dispute trajectories for the actual disputes discussed in section 4.2.
However, in this hypothetical, people said they would submit complaints in statutory
courts far more often than they did in practice. This finding suggest s that respondents
might appeal to sta tutory courts more often if they were more accessible to populations in
rural areas. Respondents to the hypotheticals also may not be familiar with the difficulties
associated with prosecuting crimes in far away urban areas or the difficulty of arranging
he arings in locally based statutory courts when the judges do not maintain a sustained
presence in the county. The dispute trajectories also display the dual role of chiefs as
gatekeepers, deciding which cases may proceed to adjudication in customary and
sta tutory courts, and as final arbiters of criminal matters.

Table 16 : Dispute Trajectories for Physical Assault Hypo thetical
Dispute Trajectory Pct. No.
Clan headman Chief  Police 10. 2% 154
Police  Chief  Don’t know 2.8% 42
Police  Chief  Statutory court 2.8% 42
Police  Clan headman  Chief 2.7 % 41
Chief  Police  Statutory court 2.6% 39
* In each of these hypotheticals, we asked respondent to whom they would first bring their complaint, if that person was unsuccessful at resolving the disp ute, to whom they would go next and , if that second person was unsuccessful, to whom would they go third.

28.6%
25.5%
13.6%
7.7%
7.3%
6.8%
2.6%
2.2%
1.7%
1.2%
1.2%
1.1%
0.4%
0% 5% 10% 15% 20% 25% 30%
Police
Chief
Statutory court judge
Solve it myself
Family/friends/neighbors
Clan headman
Local government official
Do nothing
Prosecutor
Civil society
Legal adviser
Other
Don’t know

80

Domestic Violence

The preferred complaint mechanisms for the hypothetical case in which a f emale friend is
experiencing spousal abuse reflect the reality that marital disputes, no matter how violent,
tend to be primarily mediated by complaint mechanisms that are closer to the household
level. 133 Most respondents said that if they were confronted w ith this situation, they
would first try to resolve the issue themselves (see Table 17).

Table 17 : First Assistance Preference for Domestic Violence Hypo thetical
Complaint Mechanism Pct. No.
Solve it myself 44.2% 429
Clan headman 15.1% 146
Chief 14.4% 140

Overall, t he three most preferred compl aint mechanisms were: the chief, ‘family, friends
and neighbors’ and the clan headman ( see Figure 27 ). Both men and women indicated
similar preferences .

Figure 12 : Preferred Complaint Mechanisms for Domestic Violence Hypo thetical

The data at the county level further supports the view that marital disputes are primarily
mediated within the context of close social networks or not at all. Many respondents in
Budi (23 percent), Ikotos (16 percent) and Akobo (16 percent) said they would try to
133 There was no exact corollary to spousal abuse in the data about actual disputes. We instructed
enumerators to treat domestic violence as fights in which the fight was with a ‘Family member(s)’. Spousal
neglect covered such i ssues: as a husband’s failure to provide for the family, a wife’s refusal to cook for her
husband, and other forms of non -violent mistreatment.
17.4%
16.4%
13.0%
12.4%
12.3%
7.7%
7.2%
7.1%
2.8%
1.5%
1.1%
0.7%
0.3%
0% 2% 4% 6% 8% 10% 12% 14% 16% 18% 20%
Chief
Family/friends/neighbors
Clan headman
Solve it myself
Police
Civil society
Local government official
Do nothing
Statutory court judge
Legal adviser
Prosecutor
Other
Don’t know

81

resolve the problem themselves , while the most popular response in Renk (20 percent)
was to ‘Do nothing’.

The perception that domestic violence is not a crime for which police are typically
involved was apparent in the dispute trajectories as wel l ( see Table 18 ). The fourth most
common response was to ‘Do nothing’ if a female friend is beaten badly by her husband
and requests assistance.

Table 18 : Dispute Trajectories for Domestic Violence Hypo thetical
Dispute Trajectory Pct. No.
Family/friends/neighbors  Clan headman  Chief 5.2 % 79
Solve it myself  Family/friends/neighbors  Chief 4.9 % 74
Solve it myself  Family/friends/neighbors  Clan headman 4.8 % 72
Do nothing  Do nothing  Do nothing 3.8 % 58

Adultery

The issue of adultery is an exception to the rule that marital disputes are handled by
complaint mechanisms that are close to the family unit. Most respondents said that if
their spouse were sleeping with someone outside of the marriage, they would first bring
their complaint to the chief ( see Table 19 ).

Table 19 : First Assistance Preference for Adultery Hypo thetical
Complaint Mechanism Pct. No.
Chief 32.8% 310
Clan headman 28.0% 265
Solve it myself 16.3% 154

The chief was also the most preferred complaint mechanism overall, but 17 percent of
respondents (n = 736) said that they would bring their complaint to the police (see Figure
28 ).134

134 Male and female respondents voiced identical preferences for complaint mechanisms in relation to
adultery.

82

Figure 28 : Preferred Complaint Mechanisms for Adultery Hypo thetical

Other noteworthy findings at the county level are the preferences that people in Renk
expressed for statutory courts (18 percent), again reflecting the accessibility of statutory
courts in Renk compared to other counties. Family, friends and neighbors were also
highly preferred complaint mechanisms for adultery in Budi (12 percent) and Ikotos (17
percent).

Unlike attitudes towards domestic violence, the criminalization of adultery under South
Sudanese statutory and customary law is apparent in the dispute trajectories, in which
respondents expressed greater willingness to pursue their claims in more formal forums,
such as police and statutory courts (see Table 20 ).

Table 20 : Dispute Trajectories for Adultery Hypo thetical
Dispute Trajectory Pct. No.
Chief  Police  Statutory court 7.0% 106
Family/friends/neighbors  Clan headman  Chief 5.7% 87
Clan headman  Chief  Police 4.0% 60
No response  No response  No response 3.0% 45
Police  Chief  Statutory court 2.8% 43

Murder

The main dispute for which people have a general preference for adjudication by state
authorities is homicide. When asked to whom they would complain if their spouse was
murdered, 25 percent of respondents said they would complain to the police, 13 percent
of respondents said they would complain to statutory courts, and 12 percent of
respondents said they would complain to local government officials (see Figure 29 ).
23.0%
17.5%
12.6%
9.1%
7.7%
7.3%
6.0%
3.8%
3.7%
3.2%
2.9%
2.8%
0.4%
0% 5% 10% 15% 20% 25%
Chief
Police
Clan headman
Family/friends/neighbors
Statutory court judge
Local government official
Solve it myself
Legal adviser
Do nothing
Other
Prosecutor
Civil society
Don’t know

83

Figure 29 : Preferred Complaint Mechanisms for Murder Hypo thetical

Statutory courts were the preferred final arbiters of homicide disputes (see Table 21).

Table 21 : Dispute Trajectories for Murder Hypo thetical
Dispute Trajectory Pct. No.
Chief  Police  Statutory court 7.8% 118
Police  Chief  Statutory court 6.8 % 103
Clan headman  Chief  Police 3.6 % 55
Police  Chief  Local government official 3.0 % 46

However, chiefs and clan headmen also figure prominently as the initial place to which
people stated they would submit their complaints (see Table 22 ).

Table 22 : First Assistance Preference for Murder Hypo thetical
Complaint Mechanism Pct. No.
Chief 44.6% 353
Clan headman 22.3% 176
Local government
official
14.3% 113

This highlights the important role that traditional authorities play in resolving the civil
aspects of homicide and the danger of completely removing these matters from their
jurisdiction .

24.9%
21.5%
13.3%
12.0%
7.5%
5.5%
4.9%
3.1%
2.7%
1.6%
1.5%
1.4%
0.1%
0% 10% 20% 30%
Police
Chief
Statutory court judge
Local government official
Clan headman
Prosecutor
Legal adviser
Solve it myself
Family/friends/neighbors
Other
Civil society
Do nothing
Don’t know

84

4.4 User Perceptions of Procedural Fairness and Outcome Satisfacti on

Survey data shows that r esidents of the six counties view their local justice systems to be
reasonably fair in terms of both the process and the outcome, though the perceptions of
fairness with the process were significantly more ambivalent in relation to rape cases, in
which 37. 5 percent of respondents thought the process was either very unfair or
somewhat unfair (see Figure 30 ).

Figure 30 : Perceived Fairness of Process

Those respondents whose cases had concluded perceiv ed the final decision to be fair er
than the process might have suggested. Once again, respondents whose household
members were rape d voiced the highest levels of dissatisfaction with the outcome.
Twenty -eight percent of respondents said they were either ‘Very dissatisfied’ or
‘Somewhat dis satisfied’ with the final decision in their rape cases (see Figure 31 ).

Figure 31 : Satisfaction with Outcome

In order to cross -check respondent answers regarding their perceptions of the process and
outcome, respondents were asked if they would return to the same forum if confronted
with a similar problem in the future. Similar to the results regarding the perceived
fairness of the process, these results point to higher levels of dissatisfaction with the
manner in which local justi ce systems treat rape and homicide cases .135 These results are
affected by the shortage of justice services in many rural areas . C omplainants have
135 Sixty -seven percent of respondents said they would return to the same forum for theft cases and 63
percent of respondents said they would return to the same forum for physical assaults, whereas only 50
percent of respondents said they would return to the s ame forum for homicide and 56 percent of
respondents said they would return to the same forum for rape.

85

limited options when it comes to forum selection , especially in their ability to achieve an
enforceable outcome .

Satisfaction with How Local Institutions Manage Violence

Survey data suggests that r espondents have fairly high levels of satisfaction with how
local justice institutions managed both local violence and non -local violence (see Figure
32 and Figure 33 ). To a certain extent, the high levels of satisfaction may point to
improvements in local justice systems since the signing of the CPA in 2005. Much of
rural South Sudan had little or no formal governance str ucture at the local level during
the war. Chiefs and traditional authorities were left to negotiate relationships between
various warring factions and heavily armed groups within their own communities without
the support of state institutions and continue to play a significant role in local and non –
local dispute resolution . The relatively high levels of satisfaction may therefore be a
byproduct of positive changes that people have perceived since the end of the war.

Qualitative interviews , however, demonstrated much more nuanced views on how local
institutions manage violence . Residents of the six counties rais ed questions about both
the capacity of local institutions and their methods of violence management. This
discrepancy suggests that th e survey question may be flawed in gauging perceptions in
the context of rural South Sudan. In other countries transitioning from authoritarian
governance structures, researchers found a tendency for the interviewer to be treated as a
representative of a state agency and part of the dominant power system . Respond ents in
such circumstances a re often afraid to reveal any opinions that might in some way
incriminate them or lead to retribution from the state. 136 The survey question may also be
somewhat simplistic in that it may not adequately address the complex real iti es of
violence in South Sudan and a more nuanced set of questions may be a more effective
methodology .

These reservations aside, the data does shed light on cert ain differences between local
justice actors and among the counties. Respondents expressed the highest levels of
satisfaction with the manner in which local chiefs and elders managed violence between
individuals in their village. Seventy -one percent of res pondents were very satisfied with
their chief and elders in this regard (see Figure 32 ). There was less satisfaction with local
government officials, perhaps because local government officials in many of these
counties are far removed from rural populations or are not viewed as impartial .

136 Matt Henn, Opinion Polling in Central and Eastern Europe under Communism, 33 JOURNAL OF
CONTEMPORARY HISTORY 229 -40 , 237 (1998).

86

Figure 32 : Satisfaction with How Local Institutions Manage Local Violence
Figure 33 : Satisfaction with How Local Institutions Manage Non -local Violence

The results were somewhat more varied at the county level. For example, respondents in
Budi expressed high levels of dissatisfaction with how the SPLA managed violence
between individuals in their village . Thirty -three percent of respondents were ‘V ery
dissatisfied’ with the SPLA in this rega rd. These responses are not surprising as there is a
long history of conflict between local populations in Budi and the SPLA. Respondents in
Budi and Pibor also expressed some ambivalence regarding the performance of local
police (see Figure 34 and Figure 35 ).

71%
43% 46%
56%
51% 54%
20%
36%
29%
22%
27%
18%
5%
15% 14% 11% 11% 8%
3% 3% 7% 8% 8%
13%
0%
20%
40%
60%
80%
Local chiefs
and elders
Boma
administrators
Payam
administrators
County
administrators
Local police SPLA
Very satisfied
Somewhat satisfied
Somewhat dissatisfied
Very dissatisfied
Don’t know
60%
47% 48%
61%
51%
59%
27% 31% 27%
18%
30%
19%
8%
16% 15% 9% 8% 7% 4% 4% 7% 8% 8% 10%
0%
20%
40%
60%
80%
Local chiefs and elders Boma administrators Payam administrators County administrators Local police SPLA
Very satisfied
Somewhat satisfied
Somewhat dissatisfied
Very dissatisfied
Don’t know

87

Figure 34 : Satisfaction with Local Police Managing Local Violence
Figure 35 : Satisfaction with Local Police for Non -local Violence

14%
43% 41%
35%
56%
87%
45%
19% 26%
40%
32%
7%
19%
13% 14%
7% 9% 5% 22%
12% 14% 3% 3% 0% 0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
Budi Ikotos Akobo Pibor Nasir Renk
Very satisfied
Somewhat satisfied
Somewhat dissatisfied
Very dissatisfied
Don’t know
15%
48%
40%
27%
57%
88%
54%
17%
29%
53%
34%
8% 11% 12% 12%
6% 7%
1%
19%
9%
15%
4% 2% 0%
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Budi Ikotos Akobo Pibor Nasir Renk
Very satisfied
Somewhat satisfied
Somewhat dissatisfied
Very dissatisfied
Don’t know

88

Chapter Five
A S ystem in Flux

South Sudan has undergone major changes in recent years and the justice system remains
in a state of flux. This chapter focuses on the justice system’s treatment of capital
punishment and adultery and citizens’ views and preferences with respect to capital
punishment and adultery. These issues are important in their own right and also serve as
examples of areas in which the justice system has struggled to come to terms with
cultur al change and the legacy of war.

5.1 Blood Compensation and Capital Punishment in Murder Cases

Since the colonial authority first introduced capital punishment in the early part of the
twentieth century, the practice has been associated with government power and
legitimacy in Sudan. 137 In addition to its use as a deterrent to violent crime, t he right to
sentence a murderer to death was seen as a demonstration of sovereignty for the national
government and many of the armed groups that proliferated during the war .138

Executions in South Sudan were of ten public events. As the paramount chief in Budi
recalled : “During the time of the SPLA, when you were caught killing a man, a firing
squad was carried out. This was a very good system. It stopped a lot of crime.” To a
certain extent, this acceptance of c apital punishment and the belief in its deterrent effect
ha s carried over into the postwar period. A prosecutor in Eastern Equatoria state
explained why he thought the death penalty was still a necessary deterrent in the postwar
context:

You know, it is t oo early to abolish [the death penalty]. I remember one day I was with a colleague
discussing this issue. He was telling me that during the colonial era, around the area of Yirol, those
of the Aliap and the Atuot , the people were very wild. Any small thing and you were killed. And it
became very difficult for the British to control this situation. What they did was to say, “Now,
anybody who commits murder in first degree, they will be hanged in public.” And they kept doing
that for a number of years. Nowadays, these areas are very quiet, by the way. If there are killings
happening there, they are specific cases, but not like the big cases happening here [in Eastern
Equatoria]. You know, I am of a human rights background. So fo r me, [the death penalty] is very
inhuman e. It is very bad. But then when you see people , they don’t understand, because it is not in
the ir mentality, there is no other choice.
137 As Sharon Hutchinson observed in relation to the Nuer of Greater Upper Nile region: “Ever since the
imposition of British colonial rule, the “government” had claimed the “right” to impose “capital
punishment” or otherwise eliminate individuals who serious ly challenged its monopolistic claims on the
legitimate use of force. And increasingly this “right” was acknowledged by Nuer themselves.”
HUTCHINSON , NUER DILEMMAS , supra note 7, 108. 138 According to Monyluak Alor Kuol, an advocate in Juba who served as a j udge in SPLM/A controlled
areas during the war, the reckless use of arms in homicides and the harsh punishments of military justice
fueled the practice of capital punishment during the war. Kuol reports two cases in which the killing of
chiefs resulted in a sentence of death by firing squad . MONYLUAK ALOR KUOL , THE ANTHROPOLOGY OF
LAW AND ISSUES OF JUSTICE IN SOUTHERN SUDAN TODAY (2000), cited in DENG , CUSTOMARY LAW , supra
note 4, 136.

89

While the death penalty continues to enjoy the support of a vocal segment of South
Sudanese society, a number of voices in opposition to the practice have surfaced in recent
years. In 2012, the Comboni missionaries in South Sudan wrote a letter to the Sudan
Catholic Bishops’ Conference (SCBC) petitioning the bishops of the two Sudan s to take
concrete steps towards the abolition of the death penalty in the South . They asked the
bishops to write to the president requesting that he put in place a moratorium on capital
punishment , and to request that the Constitutional Review Committee a bolish the practice
in the forthcoming Permanent Constitution. 139

Other individuals and groups have argued that the death penalty is incompatible with the
customs and traditions of the people of South Sudan. The death penalty does not exist in
customary law . As noted in Section 2.4, the customary remedy for homicide involves the
payment of blood compensation to the family of the deceased. Blood compensation is a
remedy designed to restore relationships and limit the potential for revenge killings,
rather tha n to exact retribution and maximize deterrence by taking the wrongdoer’s life.
According to Michael Makuei, who at the time was serving as Attorney General in the
Government of Southern Sudan:

There is a strong cultural bias against capital punishment … In our customs, c apital punishment
never existed … To avoid vengeance, it was decided that people should be compensated… With the
introduction of statutory laws came the idea of sentencing the offender to death. 140

Opponents of capital punishment have receiv ed international support from countries
concerned that the execution of people who have not had access to legal representation
constitutes a violation of international human rights law. On October 10, 2012, the World
Day Against the Death Penalty, the Gove rnment of France and the EU echoed the
Comboni Missionaries’ call for a moratorium on the death penalty:

France recognizes the South Sudanese historical and social context which will make the abolition of
the death penalty challenging. Such a decision wil l require great leadership and significant public
advocacy. In the interim, given the widely recognized challenges of ensuring the right to a fair trial
in South Sudan, France calls for an immediate moratorium on the death penalty in South Sudan. 141

This p ressure from South Sudanese civil society and the government’s international
partners led to a key victory for opponents of capital punishment in South Sudan . On
December 20, 2012, the Government of South Sudan, along with 110 other nations, voted
in favor of a United Nations General Assembly resolution calling on countries that use
capital punishment to place a moratorium on judicial executions with a view to
abolishing the death penalty. 142 The resolution call ed on countries to respect international
139 South Sudan – Capital Injustice , CHURCHES , Nov. 2012, available at
http://www.southworld.net/newtest/index.php/component/k2/item/324 -south -sudan -capital -injustice . 140 DENG , CUSTOMARY LAW , supra note 4, 136. 141 Letter from the European Union to th e Government of South Sudan via the French Embassy in Juba,
Today is World Day Against the Death Penalty , Oct. 12, 2012, available at
http://w ww.sudantribune.com/spip.php?article44188 . 142 South Sudan: Heed Global Call to End Death Penalty , HUMAN RIGHTS WATCH , Dec. 20, 2012,
available at http://www.hr w.org/news/2012/12/20/south -sudan -heed -global -call -end -death -penalty

90

standard s regarding fair trial rights and to make available relevant information about their
use of the death penalty to contribute to informed and transparent debates. This was a
welcome step forward and brings the country that much closer to a complete abolition of
the death penalty. However, since the signing of the resolution, government officials have
not yet made any public statement on how it will change the manner in which capital
punishment is currently being administered in South Sudan. 143

Procedural Aspec ts of Judicial Executions in South Sudanese Law

As noted in Chapter Two, high courts have exclusive jurisdiction over capital offenses.
After the court finds an individual guilty of murder, the relatives of the deceased are
given the option to choose whet her they would prefer to have the perpetrator put to death
or to accept blood compensation. If blood compensation is accepted, the judge sentences
the perpetrator to a prison sentence of no more than ten years. 144 According to the acting
police commissioner in Nasir:

Acting Police Commissioner : If the family of the deceased says no compensation th en this man
can be killed [hanged] automatically. If compensation is paid, we can still keep him for three or
four years.

Interviewer : So if the family refuses then the sentence is automatically a death penalty?

Acting Police Commissioner : Yes, this is a way we can stop people doing this sort of revenge
killing. But, some chiefs can deal with it by compensation.

People convicted of murder in the high court have two weeks in which to appeal their
death sentence to the one of the three regional courts of appeals. In practice, given the
under -developed justice institutions in rural areas and the logistical difficulties associated
with t ravel from rural areas to the regional courts of appeals, judges are often flexible on
the time period for appeal and will accept appeals submitted after the time period has
expired if the attorney gives a sufficient reason for the delay.

If the court of appeals reaffirms the death sentence or if the individuals fail to file an
appeal on time, the matter proceeds to the Supreme Court for confirmation. According to
an official in the Ministry of Justice, the Supreme Court subjects death sentences that
come directly from the high courts to a high degree of scrutiny, whereas sentences that
pass through the courts of appeals are almost always confirmed. If the Supreme Court
confirms the death sentence, the sentence then proceeds to the President for approval. I f
the President endorses the death warrant, the sentence is carried out at a gallows in one of
the three regional centers of Juba, Wau and Malakal.

There are a number of concerns with the manner in which judicial executions are
administered in South Sudan . The first concerns the lack of legal aid in the country.
143 See David Deng and Elizabeth Ashamu, Potential Paths Towards Ending Capital Punishment in South
Sudan , SUDAN TRIB ., Sep. 14, 2012 (discussing various options for pursuing a moratorium and abolition of
the death penalty in South Sudan), available at http://www.sudantribune.com/spip.php?article43895 . 144 Penal Code Act, ch. XVI, § 206 .

91

Although a Directorate of Human Rights and Legal Aid has been established in the
Ministry of Justice, it is poorly financed and only seeks to provide legal representation in
the most serious of cap ital offenses. Since being established in 2005, the Directorate has
only provided legal aid in six cases. The Directorate only provides legal aid when a judge
or accused appeal to the Ministry for a legal aid attorney; the vast majority of South
Sudanese a re unaware they have this right. Almost no one on death row is able to afford a
private attorney or is provided legal aid by the state. Without legal counsel, they are often
unable to challenge evidence, to call and prepare witnesses and to file appeals. M any
convictions are also secured through confessions. Given the prevalence of torture and
corruption in the police and prison services, the legal validity of many of these
confessions could be contested if the accused had access to legal representation.

Equally concerning is the lack of transparency in the judicial sector. The justice
institutions involved with the administration of capital punishment, including the
Judiciary, the Ministry of Justice and the Ministry of the Interior, are either unwilling o r
unable to provide statistics on the numbers of people on death row and the numbers of
people executed. 145 The Judiciary still does not have a functioning court reporting system
so outside observers cannot even determine the circumstances in which the death penalty
is being applied. UNMISS personnel monitor prisons and maintain statistics about the
numbers of people on death row and the frequency with which they file appeals, however
their data is often inaccurate and, due in part to the political risks invo lved, they are often
reluctant to share this information with third parties. This lack of transparency makes it
very difficult to evaluate the manner in which the government administers judicial
executions.

The Myth of a Retributive Society in South Sudan

Despite the anecdotal evidence that South Sudanese view capital punishment as a
necessary deterrent in the postwar context, survey data suggests that opinions among
populations residing in rural areas are mixed on this issue. When asked whether they
supp ort the use of the death penalty for people who have been convicted of intentional
murder , 54.8 percent of respondents (n = 832) said ‘No’ (see Figure 36 ).146 To offer some
comparison, in the United States, one of the few industrialized countries that regula rly
administer judicial executions, a majority of people support the death penalty — as much
as 60 percent, according to some pol ls.147

145 According to estimates, approximately 200 prisoners were on death row as of September 2012 and at
least eight people were executed in the f irst 13 months of independence in Juba and Wau. There is no
publicly available information on the number of people w ho have been executed in Upper Nile. See Deng
and Ashamu, Potential Paths , supra note 143 . 146 Women were more opposed to capital punishment than men. Sixty percent of women and 52 percent of
men said that they did not support the use of the death penalty fo r serious crimes such as intentional
murder. 147 Lydia Saad, U.S. Death Penalty Support Stable at 63% , GALLUP POLITICS , Jan. 9, 2013 (stating that
Americans’ support for the death penalty as punishment for murder has plateaued in the low 60s in recent
years, after several years in which support was diminishing) , available at
www.gallup.com/poll/159770/ death -penalty -support -stable.aspx .

92

Figure 36 : Do You Support the Death Penalty?

While overall, the majority of South Sudanese surveyed were opposed to capital
punishment, o pinions were considerably more varied at the county level. In Budi and
Akobo, two counties that have experienced high levels of insecurity and inter -communal
conflict in recent years, the majority of respondents were in favor of the de ath penalty
(see Figure 37 ). Sixty -seven percent of the population in Akobo and 65 percent of t he
population in Budi supported the use of the death penalty for people convicted of murder.
The high support for capital punishment in these areas may reflect f rustrations associated
with the dilemmas of accountability discussed in Chapter Three, in that r esidents of these
areas may view harsher criminal punishments as a means of curtailing inter -communal
violence, cattle theft and abductions .

However, in Pibor, another county that has experienced high levels of conflict, 84 percent
of respondents said that they did not support the death penalty (see Figure 37 ). There may
be several reasons for this sharp difference. First, the Murle are a minority ethnic group
with far less political power than some of their neighbors. Frustration with their current
political situation , coupled with historic al grievances, such as the SPL A’s executio n of
Murle leaders in Ethiopia and the massacre of Murle civilians during the early years of
the war, give s rise to a very real fear of persecution among many Murle. Their opposition
to the death penalty may therefore be attributed, at least in part, to a distrust of the state.
However, as mentioned above, Pibor is also among the most remote of the six counties
and their opposition to the death penalty may also point to the important role that
tradition and custom continue to play in Murle life, in that cap ital punishment is not
traditionally sanctioned under customary law and may still be viewed as contrary to the
Murle value system .

93

Figure 37 : Support for the Death Penalty by County

Disaggregating the data by ethnicity confirms many of the observation s above. The most
support for the death penalty can be seen among the Nuer, Buya and Didinga ethnic
groups, whereas the other ethnic groups seem more evenly divided (see Figure 38 ).148

Figure 38 : Support for the Death Penalty by Ethnicity

The data also suggests that younger people are more likely to oppose the death penalty,
which may point to shifting attitudes on this issue in the postwar generation (see Figure
39 ).

148 Only nine respondents identified as Jie and 12 identified as Anyuak, so these results should not be
considered representative of these ethnic groups as a whole.
65%
39%
67%
12%
42% 42% 35%
61%
33%
84%
57% 57%
0%
20%
40%
60%
80%
100%
Budi Ikotos Akobo Pibor Nasir Renk
Yes
No
Don’t know
31%
53%
12%
50%
0%
71%
64%
48%
38%
51%
69%
47%
84%
50%
100%
29%
36%
51% 62%
47%
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Dinka Nuer Murle Anuak Jie Buya Didinga Shilluk Lango Other
Yes
No
Don’t know

94

Figure 39 : Support for the Death Penalty by Age Range

Compensation versus Execution

In order to determine respondent preferences for compensation versus punitive sanctions
in relation to homicide, respondent s were asked the following hypothetical question: ‘If
someone murdered your family member and you were given the opportunity to choose
between compensation and having the person executed, which would you most likely
choose?’ 149 Fifty -eight percent of respondents (n = 88 2) said they would choose
compensation and only 38.5 percent of respondents (n = 584) said they would choose
execu tion (see Figure 40 ). These results held at the county level as well, where a sizeable
majority of respondents in every county except for Akob o said they would choose
compensation rather than execution. 150 This corroborates the overall findings that the
majority of rural South Sudanese living in these areas prefer compensation to capital
punishment .

Figure 40 : Preferred Remedy for Murder

149 Enumerators were told not to read the list of possible responses. Rather they allowed the resp ondent to
answer freely and coded their response according to a list that was provided in the questionnaire. 150 In Akobo, 51 percent of respondents said they would choose execution and 49 percent of respondents
said they would choose compensation.
39.9%
48.9% 48.1%
58.9%
50.9% 51.9%
1.2% 0.2% 0.0% 0%
20%
40%
60%
80%
18-33 34-53 >53
Age ranges (years)
Yes
No
Don’t know

95

For those respondents who said they would choose execution, the most often cited
rationale was deterrence . Fifty -three percent of respondents said they would choose
execution because, ‘It will deter others from committing crimes’ (see Figure 41 ). The
secon d and third most frequent responses are more closely aligned with the goals of
revenge and retribution . Twenty -four percent of respondents said they would choose
execution because , ‘It will make me feel better’ and 14 percent said they would choose
executi on because, ‘Murderers should be dealt with harshly’. 151 These findings reflect the
high levels of frustration that many South Sudanese feel with the lack of accountability
for homicides committed in rural areas and the harsh retributive sentiments that took root
in many local societies during the war.

Figure 41 : Reasons for Choosing Execution

For those who said they would choose compensation, their reasoning tended to be a bit
more nuanced. The first and the third most often cited reasons were fairly
str aightforward . Twenty -seven percent of respondents said they would choose
compensation because the person could have a productive use in society and 2 3 percent
of respondents said they would choose compensation because, ‘It is wron g to kill people.’
However , the second most often cited response was that they would choose compensation
because, ‘[They] want to marry in the deceased’s name’ ( see Figure 42 ). This finding
highlights the continuing importance of customary law in shaping people’s attitudes
towards justice. As mentioned above, the customary law remedy of compensation is
designed so that one of the deceased’s relatives can marry a woman and have c hildren in
his name.

151 Similar ly, at the county level, deterrence was the most often cited rationale, except in Pibor and Ikotos
where the revenge rationale, i.e. ‘It will make me feel better’, was the most frequent response .
14.0%
53.3%
24.3%
3.1%
3.9%
1.4%
0% 20% 40% 60%
Murders should be dealt with harshly
It will deter others from committing crimes
It will make me feel better
The person may not have money to pay compensation
Other
Don’t know

96

Figure 42 : Reasons for Choosing Compensation

The most appropriate remedy for homicide in rural areas probably combines some
aspects of the customary remedies and criminal sanctions. As mentioned in the previous
chapter, chiefs are able to begin negotiating blood compensation fairly quickly, which
can help to reduce the likelihood of revenge killings, but the state also has an interest in
seeing perpetrators held accountable through criminal sanctions. Effective and consistent
crimin al sanction is frequently lacking in current approaches to addressing homicide in
rural areas.

5.2 Attitudes on Adultery and an Approach to Reform

The manner in which people view the crime of adultery also reflects certain
discriminatory attitudes that pervade South Sudanese society. The 2008 Penal Code
criminalizes adultery for both married men and married women. It states:

Whoever has consensual sexual intercourse with a man or woman who is and whom he or she has
reason to believe to be the spouse of another person, commits the offence of adultery, and shall be
addressed in accordance with the customs and traditions of the aggrieved party and in lieu of that
and upon conviction, shall be sentenced to imprisonment for a term not exceeding two years or
with a fine or with both. 152

In practice, however, married men who have sex with women outside marriage are rarely,
if ever, charged with adultery. This may reflect the fact that relationships between
married men and unmarried women can be legitimized throu gh marriage in polygamous
societies.

In the past, customary law viewed adultery as an offense committed by men who sleep
with other men’s wives. The men would be required to pay compensation to the husband,
but the women were not punished. 153 This percepti on of adultery as a male offense has
changed somewhat in recent times, perhaps due to the influence of Islamic shari’a law,
which views adultery as a crime committed by both married women and the men with
152 Penal Code Act, ch. XIX, § 266. 153 DENG , CUSTOMARY LAW , sup ra note 4, 44.
26.9%
15.3%
22.6%
24.8%
4.2%
2.6%
3.6%
0% 10% 20% 30%
Person could have productive use
Execution does not benefit me
It is wrong to kill people
Want to marry in the deceased’s name
Execution is not part of our culture
Other (specify)
Don’t know

97

whom they have sex. 154 Female adulterers in South Sud an are now increasingly being
punished with criminal sanctions, including imprisonment and corporal punishment.

Survey findings illustrate these changing beliefs and practices. Ninety -six percent of
respondents thought that men who sleep with other men’s spouses should be punished,
whereas only 76 percent of respondents thought that married women who sleep with
some one other than their spouses should be punished (see Figure 43 and Figure 44 ).
Disaggregating responses by gender does not show any significant differences in
opinions on this issue. 155

Figure 43 : Opinions on Punishing Male Adulterers

Figure 44 : Opinions on Punishing Female Adulterers

At the county level, the most opposition to the idea of punishing female adulterers was
found in Pibor. Forty -four percent of respondents in Pibor said that female adulterers
154 For example, Islamic hudud penalties, which are included in Sudanese criminal law though rarely
enforced, allow the statute to amputate people’s hands for theft, stone people to death for co mmitting
adultery and flog people for distributing or consuming alcohol. See id. , 10. 155 Ninety -six percent of men and woman thought that men who sleep with other men’s spouses should be
punished. Twenty -one percent of men and 24 percent of women thought that married women who sleep
with someone other than their spouse should be punished.

98

should not be punished (see Figure 4 6). Perhaps due to the relative isolation of much of
Pibor County, Murle customary laws on adultery may have been less affected by external
influences.

Figure 45 : Opinions on Punishing Male Adulterers by County

Figure 46 : Opinions on Punishing Female Adulterers by County

The preferred punishments for adultery also reflect the customary rule that requires male
offenders to pay compensation to the husband, as well as the increasing use of criminal
sanctions against female offenders. Customary courts t raditionally obtain evidence of
adultery by forcing women to confess to the crime. If they do not do so willingly, women
can be coerced through threats of violence or corporal punishment. Men are not asked to
confess. According to the late Peter Nyot Kok, a South Sudanese lawyer and academic,
women have begun to protest against this approach to obtaining evidence:

And they put the case on the basis of equality. They want that rule also applied to men. Let the
men be asked to confess, “Have you slept with o ther women? ” Of course, it was not applied on the
men. Women took that as a case of discrimination, “Look what is required of us, while the same
thing is not required of men. ” In Rumbek, it was actually abolished. So people no longer require
women to confe ss. 156
156 DENG , CUSTOMARY LAW , supra note 4, 44.
99% 91% 99% 90% 99% 96%
1% 9% 1% 9% 1% 2%
0%
20%
40%
60%
80%
100%
Budi Ikotos Akobo Pibor Nasir Renk
Yes
No
Don’t know
70%
94%
76%
54%
87%
74%
30%
6%
24%
44%
13% 19%
0%
20%
40%
60%
80%
100%
Budi Ikotos Akobo Pibor Nasir Renk
Yes
No
Don’t know

99

Despite these calls for reform from some parts of the country, survey data suggested that
populations in the six counties were comfortable with civil remedies being applied to
male adulterers and criminal sanctions being applied to female adulterers. Forty -seven
percent of respondents thought that male adulterers should be ‘made to pay
compensation’ to the aggrieved husband ( see Figure 47 ), 37 percent of respondents
thought that female adulterers should be subject to corporal punishment, and 25 percent
of r espondent thought that female adulterers should be given a prison sentence (see
Figure 48 ).

Figure 47 : Preferred Punishments for Male Adultery

Figure 48 : Preferred Punishments for Female Adultery

47%
23%
20%
6%
2%
1%
2%
0%
0% 5% 10% 15% 20% 25% 30% 35% 40% 45% 50%
Made to pay compensation
Fined
Prison sentence
Corporal punishment
Death sentence imposed by court
Execution by individual or mob
Other
Don’t know
13%
13%
25%
37%
1%
0%
10%
1%
0% 10% 20% 30% 40%
Made to pay compensation
Fined
Prison sentence
Corporal punishment
Death sentence imposed by court
Execution by individual or mob
Other
Don’t know

100

Though there are calls for the reform of discriminatory customary practices from
women’s groups and customary institutions, there is also a countervailing position that
says any changes to customary law must be gradual and must come from within local
socie ties. The tensions between these two positions have led to some controversy over the
appropriate approach to the reform of discriminatory customary norms. According to
Aleu Akechak Jok et al. :

There is no doubt the current status and role of women and chi ldren in southern Sudanese society
must and will change. There are however, considerable questions concerning how best to bring
these changes about. Much of southern Sudanese customary law has evolved to deal with personal
issues of family, marriage , child ren 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 ern Suda nese tribal societies. The consensus amongst southern Sudanese leaders is change
must come from within and at a pace that does not threaten to destabilize a society already under
pressure from a myriad of external and internal sources. 157

While reforms must be carefully designed so as not to further destabilize customary
systems, an approach that is overly cautious risks inaction. Cultural change is a dynamic
process in which contestations for power among various groups in society often giv e rise
to a degree of social instability and, at the same time, often lead to progress that benefits
all members of society . Culture is not static in South Sudan and to silence the voices of
South Sudanese women who are suffering at the hands of a justice system dominated by
patriarchal interests could strangle the reform process , to the detriment of both South
Sudanese men and women . Stifling reform also has implications for social cohesion, in
that subjecting such a large segment of the population to unfa ir and discriminatory
practices can undermine the strength of social bonds throughout society. In the words of
the former Deputy Chief Justice of the Supreme Court, Bullen Paancol:

Women are known to have suffered in the past, even in Europe and America. Now, women are
claiming their rights … We Sudanese must recognize that women must be brought up to equality
with men. This should be the position of the law in my view. We should abrogate, modernize, or
otherwise reform those areas of the law that seem to discriminate against women. 158

It is only through the steady application of principles of non -discrimination backed by
state power that the Government of South Sudan and its citizens can gradually change
customary norms that subjugate women. While in the sh ort -term such an initiative may
provoke resistance from certain segments of society that benefit from the status quo, in
the long -term it will result in stronger families and healthier relationships.

157 ALEU AKECHAK JOK ET AL ., A STUDY OF CUSTOMARY LAW , supra note 10 , 8. 158 DENG , CUSTOMARY LAW , supra note 4, 44.

101

Conclu ding Remarks

Eight years after the end of the war and two years since independence, governance
structures in South Sudan remain in a state of flux. Ambiguities in the relationships
between institutions at the central, state and local levels continue to present fundamental
challenges to building go od governance and the rule of law, but the current transitional
period also offers a number of opportunities. Power has not yet fully consolidated,
bureaucracies have not become fully entrenched and people are open to new and
innovative approaches. Policy -makers can take advantage of this opportunity to enact
targeted and evidence -based reforms that bring benefits to populations that are otherwise
marginalized and without access to social protection mechanisms. Among the public
sectors most in need of urgen t attention is the justice sector.

In county headquarters and surrounding payams, rural populations have access to an
array of complaint mechanisms, ranging from mediation by friends, families and
neighbors to adjudication in customary and statutory court s. These complaint
mechanisms are able to process disputes at low cost and without significant
administrative burden . However, in remote parts of the county far away from the relative
security of the county seat, complaint mechanisms are much less accessib le. C hronic
insecurity at the payam and boma levels of government undermines local justice systems
and renders chiefs susceptible to intimidation and assault by unruly parties. Areas where
local residents are well armed and the police presence is thin have particularly weak local
justice system s. As a result, lawlessness and conflict often go unchecked in remote areas.

The accountability gaps that arise in local justice systems can also cause people to adopt
expedient solutions to difficult criminal law problems. One example can be seen in the
manner in which customary courts allow homicides to be resolved at the local level
through mediated solutions among willing parties. On the one hand, this appro ach can be
seen as an efficient means of minimizing the potential for revenge killings and outbreaks
of violence. On the other hand, resolving homicides as though they are purely civil
matters contributes to an atmosphere of impunity , since perpetrators ar e left to go free
without criminal sanction. The practice of girl child compensation is one example of how
mediated solutions can place disproportionate burdens on the poor and vulnerable in
society.

Justice sector reform in South Sudan must overcome a ho st of challenges. T here are a
number of disputes that neither the formal state justice system nor the more informal
local justice system is able to resolve. Since the end of the war in 2005, large -scale inter –
communal violence has proliferated in South Sud an . T he perpetrators of th is violence are
able to kill, rape, abduct and loot with impunity. The existing complaint mechanisms are
not able to p rovide justice for victims and their families . This causes individuals and
groups to take matters into their own hands to punish the wrongdoers through reprisal
attacks. C ycles of revenge killings have led to escalating violence in some rural areas .

Criminal investigations and prosecutions become even more difficult w hen the
perpetrators have access to soft intern ational borders and internal administrative

102

boundaries . Not only can they escape across borders to avoid capture by security
personnel, but armed groups can also use cross -border trade to generate revenue and buy
weapons and supplies. More effective coordi nation among local administrators across
internal and external boundaries is necessary to address this justice gap.

Historical grievances associated with events that took place during the war are an
ongoing source of instability in many rural areas. Blood feuds can last for decades among
groups in South Sudan, and people’s desire for revenge and retribution contributes to the
volatility of many contemporary conflicts. Some local leaders have begun experimenting
with isolated initiatives to settle these pas t grievances, and the government and its
international partners should draw lessons from these attempts, but until people’s
historical grievances are addressed in a more visible and meaningful manner, they will
continue to be sources of instability and con flict.

In addition to impunity for perpetrators of violent crime, there are a number of injustices
that pervade the justice system itself. Customary courts are able to process many types of
marital disputes and sexual crimes, but the manner in which they resolve these issues
often serves to reinforce patriarchal power structures and does not adequately protect the
rights of marginalized populations . Gender discrimination is a key concern in customary
courts. Causes of action for crimes such as forced marri age, adultery and rape sometimes
allow families to use the courts to force girls into unwanted marriages, enable dom estic
abuse and sexual violence and reinforce men’s control over family wealth and property in
contravention of statutory and constitutional law.

M any of these systems and principles are deeply embedded within social, political and
economic processes in South Sudan, but the state should not shirk its responsibility to its
citizens by channeling marital disputes and sexual crimes into male -dominated customary
courts without providing access to a statutorily -based alternative. In this respect, the
process of developing a family law that proscri bes applicable standards for priority
issues — such as the circumstances under which divorces may be granted in customary
and statutory courts, the right of widows and their children to inherit property from their
deceased husbands and the mandatory prosecut ion of perpetrators of domestic violence —
should be expedited.

There is a n urgent need for more specialized and focused research in order to better
understand how local justice systems handle specific types of disputes and to explore the
most appropriate a pproaches to reform. Some of the outstanding questions include :

 How can the government reform local justice systems to bring them in line with
international human rights standards, while at the same time strengthening their
enforcement capacity and increasing the types of remedies that are at their
disposal?
 How do po licy -makers balance the low cost and efficiency of customary courts
against the lack of procedural safeguards and the discriminatory application of
criminal punishments against those with less negotiating power in local societies?

103

 The Judiciary has not ma de public a single judicial opinion since it was
established in 2005; how can the government and its international partners
improve information flow and transparency in the justice system?
 What reforms are needed to strengthen the ability of local justice systems to seek
accountability against criminal actors that wield political or military power?
 What are the implications of the increasing number of counties and the drawing of
administrative boundaries on local justice systems?
 What are the different mechanisms by which historical grievances manifest in
contemporary conflicts?
 What are the different ways in which illicit cross -border trade in the informal
market affects conflict dynamics?

The challenges of accountability described in this report prese nt obstacles to the creation
of a fair and efficient justice system. A number of civil society organizations have begun
to explore different models of legal aid in rural areas of South Sudan, but these efforts
alone are not sufficient to address the myriad of concerns in local justice systems.
Overcoming the obstacles to justice will require the sustained effort of the government
and citizens of South Sudan as well as international partners.

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Annex I – Description of Project Areas

The six counties covered in this assessment may not necessarily be representative of the
country as a whole, but they nonetheless demonstrate the diversity of rural areas in South
Sudan . They include some of the most developed rural areas, and some of the least
developed areas; groups that are on the political margins and groups that wield
considerable power in government; peoples that are highly influenced by Arab -Islamic
culture and peoples that have been largely isolated from external cultural inf luences.

There are also a number of common factors across the six counties . First, most of the
counties, with the possible exception of Renk, have experienced large amounts of inter –
communal violence in recent years, much of it crossing county administrative boundaries.
As the findings show, the existing justice services are unable to manage these types of
conflict -related crimes and the prevailing solutions are often short -term and political in
nature. 159

Second, all six counties lie on international borders . Budi and Ikotos share a border with
Uganda; Akobo, Nasir and Pibor share a border with Ethiopia; and Renk shares a border
with Sudan. Many of these can be described as ‘soft’ borders, wh ich allow for the free
movement of people and goods. These are also borders which neither South Sudan nor
neighboring countries are able to effectively police. 160 The ease with which people move
across internal and external boundaries generates a number of c ross -border dynamics that
are relevant to people’s ability to access justice, such as the escape of criminals and
armed groups across international borders , the control of cross -border trade and the
advantages that it offers to armed groups , arms smuggling and the implications of
international conflict with Sudan. The government’s ability to manage these issues will
be central in efforts to extend sovereignty to rural areas.

Lastly, all six counties are struggling with historical grievances that often hav e their roots
in the wartime context. The foundational documents of South Sudan, including the CPA,
Interim Constitution and Transitional Constitution, all highlight the importance of peace
and reconciliation in the postwar period, but conversations about a national strategy to
pursue accountability for atrocities committed during the war have proven to be deeply
political and subject to a host of challenges .161 In lieu of decisive action by the central
159 In a report on inter -communal conflict in Jonglei, the United Nations Mission in South Sudan
(UNMISS) found: “While reconciliation processes and mediation may be an essential part of peace efforts
to resolve inter -communal violence, the absence of any acc ountability mechanism has undoubtedly
contributed to the increasingly brutal cycles of violence.” UNMISS, INCIDENTS OF INTER -COMMUNAL
VIOLENCE , supra note 29 , 28. 160 See generally , DOUGLAS JOHNSON , RIFT VALLEY INSTITUTE (RVI), WHEN BOUNDARIES BECOME
BORDERS : THE IMPACT OF BOUNDAR Y-MAKING IN SOUTHERN SUDAN ’S FRONTIER ZONES (2010) [hereinafter
JOHNSON , WHEN BOUNDARIES BECOME BORDERS ]. 161 Comprehensive Peace Agreement, ch. II, pt. I, § 1.7 (2005) (stating that the “Parties agree to initiate a
comprehensive proce ss of national reconciliation and healing throughout the country as part of the peace
building process); Interim Const itution of Southern Sudan , pt. III, ch. I, § 39(2)(b) (2011); Transitional
Constitution of the Republic of South Sudan, pt. 3, ch. 1, § 36 (2)(b) (stating that “All levels of government
shall… initiate a comprehensive process of national reconciliation and healing that shall promote national

105

government, various local actors have begun to experimen t with different approaches to
resolving these issue s on their own. In that sense, counties can act as ‘laboratories of
experimentation ,’ from which the government may gain insights into the opportunities
and challenges associated with transitional justice in the South Sudanese context, as well
as the problems that can arise when historical grievances are left unresolved.

Budi County, Eastern Equatoria State

Budi lies along the Ugandan border, close to the border with Kenya. 162 It has been a
strategic base for the Sudan People’s Liberation Movement and Army (SPLM/A) ever
since the Sudan Armed Forces (SAF) chased the rebel movement away from Torit in
1992. 163 The mountainous terrain of the Didinga Hills provided protection for the
SPL M/A and its proximity to the border allowed easy access to incoming relief aid from
the Kenyan supply town of Lokichoggio . The location also enabled SPLA officers and
civilians to generate income through cross -border trade in various commodities,
including cows, gold and small arms. 164

The heavy military presence in Budi during the war generated friction between the SPLA
and the local Buya and Didinga communities. According to Anne Walrae t, some of the
resentment can be traced to the SPLA’s forceful takeove r of the cross -border trade. 165
Many Didinga who served in the SPLA also complained of what they saw as the Dinka –
domination of the army. Local grievances reached a climax in 1999, when one of the top
Didinga officers, Peter Lorot, missed a promotion that wa s given to a rival Dinka. Lorot
responded by killing his rival and seeking refuge in the mountains. Approximately 16,000
Didinga civilians joined him. 166 The Didinga forces harassed the SPLA until 2006, when
they were reintegrated into the SPLA.

In addition to the tensions with the SPLA, inter -communal violence is also common
among the various groups residing in Budi and the neighboring areas. A particularly
egregious incident occurred in 2007, when a group of heavily armed Toposa attacked a

harmony, unity and peaceful co -existence among all people in Southern Sudan”). The government recent ly
announced plans to begin a national reconciliation process, though it has led to considerable political
tension . See South Sudan’s Kiir withdraws executive powers from VP Machar , SUDAN TRIB ., Apr . 1 5,
2013, available at http://www.sudantribune.com/spip.php?iframe&page=imprimable&id_article=46237 . 162 The county takes its name from the two main ethnic groups residing in the area: the Buya and Didinga
(hence the name Bu -Di). 163 The SPLM/A held two important conferences in Budi during the war: the first national convention in
Chukudum in 1994, where , for the first time , the movement officially recognized the need for civilian
governance s truc tures independent from the SPLA and the 1996 conference in New Cush along the
Ugandan border, in which the SPLM/A established the Civil Authority for the New Sudan (CANS),
reaffirming its commitment to establish a decentralized civilian governance syst em. Despite these
promising first steps, the SPLM/A has been largely unsuccessful at implementing the policies of
decentralization endorsed in Chukudum and New Cush. See DOUGLAS JOHNSON , THE ROOT CAUSES OF
SUDAN ’S CIVIL WARS , INTERNATIONAL AFRICAN INSTITUTE , INDIANA UNIVERSITY PRESS (2003) . 164 Walraet, Governance, violence and the struggle for economic regulation , supra note 67 , 56. 165 Id. , 56, 58. 166 Id. , 57.

106

Dindinga village called Lauro. 167 The Toposa massacred 54 Didinga — 48 of them women
and children — and stole 400 goats and 400 heads of cattle. 168 A 2008 report from the
Small Arms Survey (SAS) suggested that the attacks might have been an attempt to
displace the Didinga and gain access to local pastures and gold fields, or else to punish
the Didinga for their refusal to join a new political allianc e between the Toposa and
Buya. 169 An official investigation into the incident found that members of the SPLA and
the Government of Southern Sudan may have benefited from the cattle thefts and used
their influence to undermine efforts to prosecute the perpetr ators. 170 Reports at the time
also pointed to possible involvement by Khartoum. 171

The ‘Lauro Massacre ,’ a s it became known, marked a period of increased tensions
between the Buya and Didinga. In recent years, the Buya have even begun to lobby for
their own county, separate from the Didinga. 172 The combination of fierce rivalries and
heavily armed communities present an extremely complex political landscape for local
justice institutions.

Ikotos County, Eastern Equatoria State

Ikotos lies to the southwest of Budi. It was part of Torit until 2004, when it was made
into a separate county. 173 The main ethnic group residing in the area is the Lango. 174
Ikotos saw relatively little fighting during the civil war, but when the SPLA entered the
area in the mid -1980s, many Lango civilians were displaced to internally displaced
person (IDP) camps in Torit, Juba and Khartoum , and refugee camps in Uganda and
Kenya. 175 During the war, Ikotos hosted a flourishing blackmarket trade in small arms
and ammunition. The trade was center ed in Loguru market on the Ugandan border, just
19 kilometers from Ikotos town. 176 Loguru market was officially closed by the SPLM/A
in 2003. 177
167 The Toposas used a 12.7mm heavy machine gun, PKM general -purpose machine guns, Kalashnikovs ,
and G3 rifles, suggesting outside support. CLAIRE MCEVOY AND RYAN MURRAY , SMALL ARMS SURVEY
(SAS), GAUGING FEAR AND INSECURITY : PERSPECTIVES ON ARMED VIOLENCE IN EASTERN EQUATORIA AND
TURKANA NORTH 37 (2008) [hereinafter MCEVOY AND MURRAY , GAUGING FEAR ]. 168 MAREIKE SCHOMERUS , SMALL ARMS SURVEY (SAS), VIOLENT LEGACIES : INSECURITY IN SUDAN ’S
CENTRAL AND EASTERN EQUATORIA 37 -38 (2008) [hereinafter SCHOMERUS , VIOLENT LEGACIES ]. 169 MCEVOY AND MURRAY , GAUGING FEAR , supra note 167 , 24. 170 SCHOMERUS , VIOLENT LEGACIES , supra note 168 , 33. 171 Walraet, Governance, violence and the struggle for economic regulation , supra note 67 , 66. 172 Id. , 64. The proliferation of counties and other administrative units in recent years will also affect
customary court systems and new positions will open up for chiefs and other local government officials.
However, to the extent that these new administrative units are based on ethnic identity, the drawing of new
territories could serve to reify identities and widen the gulf between g roups. It also fails to take into the
account the dynamics of migration and changes in identity that take place over time. This criticism is
sometimes attached to the decision to adopt the colonial administrative boundaries after Sudan’s
independence in 19 56. See ROLANDSEN , GUERILLA GOVERNMENT , supra note 8, 22. 173 OCHAN , RESPONDING TO VIOLENCE IN IKOTOS , supra note 52 , 6. 174 The Lango are comprised of six distinct sub -tribes: Lokwa, Do ngotona, Ketebo, Logir, Lorwama and
Imatong. 175 OCHAN , RESPONDING TO VIOLEN CE IN IKOTOS , supra note 52, 6. 176 SCHOMERUS , VIOLENT LEGACIES , supra note 168 , 50. 177 SAS, SYMPTOMS AND CAUSES , supra note 33, 7.

107

Like Budi, Ikotos suffers from banditry, cattle -raiding and chronic violence. Large
numbers of small arms in the c ivilian population contribute to the insecurity. According
to a 2009 household survey by the Small Arms Survey (SAS) , 63 percent of households
admitted to owning at least one gun and one -third of respondents reported an incident of
crime or armed violence against one of their household members in the last year — 47
percent of these crimes were reported as killings. 178

Though the security situation has improved somewhat in recent years, Ikotos had a
reputation as an insecure location for much of the interim pe riod. Some of this violence
had political overtones. On August 20, 2007, for example, an estimated 48 people were
killed in fighting between the Dongotono and the Logir sub -clans in Chorokol village.
Five hundred nineteen heads of cattle were reportedly dr iven away, a number of children
were killed, and 19 women were raped. 179 A parliamentary investigation at the t ime
criticized the Ikotos County Commissioner , un der the direction of the state G overnor, for
downplaying the conflict in Chorokol and not deployin g military force quickly enough to
arrest the perpetrators . “Our leaders at present are the integral part of the problem,” the
report stated. “Until we begin to see Governorship as a stewardship bestowed by the
people and consider leadership as a privilege , not a right, Eastern Equatoria state’s
nightmare continues.” 180

Akobo County, Jonglei State

Akobo , which is primarily comprised of Lou Nuer and Anyuak, was among the first rural
councils established by the British colonial authorities. The location of th e county
headquarters has a strategic advantage in that it lies on high ground and is within walking
distance of the Ethiopian border .

A general distinction can be drawn between Akobo East where the county headquarters
are located and Akobo West, which b orders the neighboring counties of Pibor and Uror.
The two administrative centers are located about 180 kilometers from one another and all
correspondence with Akobo West is done through satellite phones and radio
communication. Local governance institutio ns in Akobo West are also less developed
than those in Akobo East. As a result, the major security threats are usually encountered
among populations residing in the west.

Justice issues in Akobo revolve around chronic fighting among the clans of Lou Nuer and
between the Lou Nuer and surrounding groups, including the Murle of Pibor and the
Jikany Nuer of Nasir. The inter -communal violence among these groups often crosses
county administrative lines and has escalated dramatically since the signing of the CP A
in 2005. Some analysts trace the increased violence to a series of coercive civilian
disarmament campaigns that the SPLA administered between 2005 and 2008. The first
178 Interviews conducted by SAS suggested that at least every male community member over 20 years of
age owned a gun in Ikotos, with some households having as many as eight to nine guns. Id. 6. 179 MCEVOY AND MURRAY , GAUGING FEAR , supra note 167 , 24. 180 Id. , 25 .

108

campaign met with stiff resistance from heavily armed Lou Nuer youth. By the end of the
campaign, 3,000 guns had been collected and 1,600 Lou Nuer and SPLA soldiers were
killed — approximately one death for every two weapons seized. 181

These disarmament campaigns did little to reduce levels of violence in Akobo . According
to a report on inter -communal violence in Jonglei state by UNMISS, local populations
were able to rearm with little difficulty by looting stores of weapons that had been
collected in the disarmament exercise . They were also able to access the armories of the
Joint Integrated Units (JIU) in neighbo ring Upper Nile s tate during periods of insecurity
in Malakal in 2008. 182 A series of raids and retaliatory attacks began soon thereafter,
culminating in August 2011, when Murle raids on the Nuer re portedly resulted in the
death of 640 people, kidnapping of 208 children, and displacement of 26,800 people, in
just a matter of days. The August 2011 attacks were in retaliation for Dinka and Nuer
raids on the Murle in June 2011, in which more than 400 pe ople were killed and
thousands of heads of cattle were stolen .183

In March 2012, while this assessment was being conducted, the SPLA began another
disarmament campaign in Akobo. This time, a concurrent campaign was carried out in
Pibor. Although local and international organizations documented a number of human
rights abuses in relation to the disarmament exercise in Pibor , people in Akobo were
largely satisfied with the manner in which the disarmament was conducted. 184 However,
the security situation in Akob o has deteriorated in recent months. In February 2013,
Murle militias under the command of a former politician -turned -rebel named David Yau
Yau attacked a village located about 100 kilometers northwest of the county
headquarters, killing more than 100 civi lians, abducting an unspecified number of
children and stealing thousands of heads of cattle. 185 Akobo residents complained that the
disarmament process left them vulnerable to attack and blamed the government for
failing to protect its citizens. 186

Pibor County, Jonglei State

With a land area of 33,273 square kilometers, Pibor is among the largest counties in
South Sudan. 187 It is also among the most remote areas of the country. During the eight –
month rainy season, travel by road to Pibor is virtually impos sible. As a result, customary
181 RICHARD GARFIELD , SMALL ARMS SURVEY (SAS), VIOLENCE AND VICTIMIZATION AFTER CIVILIAN
DISARMAMENT : THE CASE OF JONGLEI (2007). 182 UNMISS, INCIDENTS OF INTER -COMMUNAL VIOLENCE , supra note 29 , 6. 183 Josh Kron, Death Toll Passes 600 from Raid in South Sudan , N.Y. TIMES , Aug. 22, 2011, available at
http://www.nytimes.com/2011/08/23/world/africa/23sudan.html . 184 According to the executive director, the disarmament process redu ced levels of violence in Akobo to the
extent that during the first three months of the process not a single homicide was reported to the county
seat. 185 Jonglei: Hundreds feared dead or missing in Akobo county attack , SUDAN TRIB ., Feb. 10, 2013,
available at http://www.sudantribune.com/spip.php?article45461 . 186 Lou -Nuer chief criticise Juba for not protecting civilians , SUDAN TRIB ., Feb. 19, 2013, available at
http://www.sudantribune.com/spip.php?article45574 . 187 GoSS, Statistical Yearbook, supra note 17, 12.

109

institutions provide most of the justice services for local populations without much
support from formal state institutions.

The three main ethnic groups that reside in Pibor are the Murle, Jie, and Suri , the Murle
being the largest of the three. 188 The Murle are an acephalous society that do not have
any clear hierarchy of leadership. According to Jo nathan Ar ens en, the main cohesive
factor holding Murle society together is a highly functional age -set system , comprised of
well -defined groups of men based on age .189 Men rise to prominent positions in age sets
based on their popularity and ability. Arensen says that the most important position is that
of a talented fighter whom the Murle call, eet ci oronto (“the man who owns the war”). 190

In the past, Murle chiefs had some influence over the age set system through their
perceived power to bless and curse. This influence is thought to be waning in recent
years. The lack of effective social controls over the a ge set system may be a factor in the
dramatic increase of inter -communal violence between the Murle, Lou Nuer and Dinka.
In December 2012, in the aftermath of a series of escalating raids and counter raids
between the Murle and the Lou , an army of six to e ight thousand Lou Nuer launched an
organized attack on Pibor town. 191 Local officials claim that more than 3,000 people
were killed, including a disproportionate number of women, children and the elderly , but
UNMISS investigations were only able to verify a fraction of those deaths. 192 To date,
there has been little or no accountability for the perpetrators of these atrocities.

In an effort to contain the violence in this part of Jonglei, the SPLA began a forceful
disarmament campaign in Pibor in March 2012. A mnesty International and Human
Rights Watch documented a range of human rights abuses associated with this
disarmament campaign, including incidents of soldiers shooting at civilians, subjecting
them to beatings, tying them up with rope, and submerging the ir heads in water to extract
information about the location of weapons .193 The security situation deteriorated further
188 Most Murle are pastoralists, but the highland Murle living near the Ethiopian border are primarily
agriculturalists. According t o Jonathan Arensen, the Murle were the last tribe pacified by the British in
1912. ARENSEN , CONTEMPORARY ISSUES FACING THE MURLE , supra note 82. 189 ARENSEN , MURLE POLITICAL SYSTEMS AND AGE -SETS , supra note 6. 190 Id. 191 A Nuer prophet named Dak Kueth Deng took a leading role in mobilizing the Lou Nuer youths in these
attacks. Dak Kueth and his followers have had several deadly encounters with SPLA forces, but they have
largely avoided capture and disarmament by crossing into Ethiopia. See SPLA attack tribal leader on
Ethiopian border, five soldiers killed , SUDAN TRIB ., Dec. 19, 2012, available at
http://www.sudantribune.com/spip.php?article44914 ; Jonglei “m agician” influential in inter -ethnic
conflict , SUDAN TRIB ., Apr. 10, 2012, available at http://www.sudantribune.com/spip.php?article42180 ; S.
Sudan’s Machar calls on Jonglei spiritual leader to peacefully disarm , SUDAN TRIB ., Mar. 24, 2012,
available at http://www.sudantribune.com/spip.php?article42006 . 192 UNMISS investigations found that at least 612 Murle had been killed, inc luding at least 88 women and
88 children. Eyewitnesses reported a further 294 deaths of non -family members. In addition, more than 370
people were unaccounted for after the attacks, including at least 42 children, some of whom were believed
to have been ab ducted. Local officials dispute UNMISS’ death toll and assert thousands were killed in the
attacks and that UNMISS failed to undertake its investigation in a timely manner. UNMISS, INCIDENTS OF
INTER -COMMUNAL VIOLENCE , supra note 29, 12. 193 South Sudan: End Abuses by Disarmament Forces in Jonglei , HUMAN RIGHTS WATCH , Aug. 23, 2012,
available at http://www.hrw.org/news/2012/08/23/south -sudan -end -abuses -disarma ment -forces -jonglei ;

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in April 2012, when David Yau Yau, a former rebel who had previously signed a peace
deal with the government, again took to the bush to lea d an insurgency in Pibor. Yau Yau
launched his initial rebellion in 2010, when he lost an election campaign to represent
Gumuruk -Boma constituency in the Jonglei State Legislative Assembly. 194 He was then
granted an amnesty by P resident Salva Kiir and rejoin ed the SPLM/A. Yau Yau again
rebelled in April 2012 following the reports of abuses committed in the context of the
disarmament campaign. 195

This sequence of amnesties followed by rebellions followed by amnesties has been
repeated time and again in postwar South Sudanese politics. While political
appeasements have provided short -term solutions in terms of bringing potential spoilers
into the pe ace -building process, in the long -term the lack of accountability serves to
incentivize politically motivated violence.

Nasir County, Upper Nile State

Nasir lies along the Sobat River and is mostly occupied by the Jikany Nuer. With a
population of 210,0 00, Nasir is the most populous of the six counties studied .196 During
the war, Nasir was a key hub for Operation Lifeline Sudan (OLS), a major humanitarian
effort coordinated by the United Nations that delivered services to the South from 1989 to
1997. It is also a prominent transit point for goods and services coming into South Sudan
from Ethiopia.

From the early 1990s until the end of the civil war in 2005, the Jikany Nuer and the Lou
Nuer were in regular conflict with one another. The root causes of the conflict were
varied, and included food insecurity, the increased return of Nuer populations from
Ethiopia to South Sudan, and disputes over land and other natural resources. Lou Nuer
youths seasonally migrate into Jikany territories to access pasture and water for their
livestock, where they come into conflict with Jikany residents. The violence was
exacerbated by the deprivations of war and certain political fractures that the SPLA went
through in the early -1990s. A cross -border land dispute that involved Nuer populations in
Ethiopia was also an on -going source of tension. 197

After the signing of the CPA in 2005, the relationship between the Jikany and the Lou

AMNESTY INT ’L, LETHAL DISARMAMENT : ABUSES RELATED TO CIVILIAN DISARMAMENT IN PIBOR COUNTY ,
JONGLEI STATE (2012), available at http://www.cmi.no/file/2144 -AI -South -Sudan -Lethal –
Disarmament.pdf . 194 SMALL ARMS SURVEY (SAS), HUMAN BASELINE SECURITY ASSESSMENT , DAVID YAUYAU REBELLION ,
JONGLEI STATE (Feb. 2011), available at http://www.sudantribune.com/IMG/pdf/HSBA -Armed -Groups –
Yauyau.pdf . 195 South Sudan David Yau Yau defects for the second time , SUDAN TRIB ., Apr. 9, 2012, available at
http://www.sudantribune.com/South -Sudan -David -Yau -Yau -defects,42170 . 196 GoSS, Statistical Yearbook, supra note 17, 11. 197 INT ’L CRISIS GROUP (ICG), JONGLEI ’S TRIBAL CONFLICTS : COUNTERING INSECURITY IN SOUTH SUDAN
(Dec. 23, 2009) [hereinafter ICG, JONGLEI ’S TRIBAL CONFLICTS ], available at
http://www.crisisgroup.org/~/media/Files/africa /horn -of-
africa/sudan/Jongleis%20Tribal%20Conflicts%20Countering%20Insecurity%20in%20South%20Sudan.pdf
.

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temporarily improved, before deteriorating again in 2009. 198 A longstanding land dispute
between the Jikany and Lou was at the heart of the initial skirmishes. A group of Lou had
reportedly occupied an area called Wanding payam during the war. In January 2009, after
a series of consultations, the administration of Wanding was transferred from Jonglei to
Upper Nile and many of the Lou were asked to leave. Later that year, a group of Lou
Nuer staged a n attack on a village called Torkeij in Nasir , allegedly as revenge for
violence associated the land dispute and other crimes perpetrated between the two
groups .199 Seventy -one people were killed and more than 50 injured, many of them
women and children. The violence culminated in a June 2009 Jikany attack on a World
Food Program (WFP) convoy that was reportedly taking food to at -risk Lou groups in
Akobo. 200 An estimated 119 people were killed , including 30 Jikany Nuer and 89 SPLA
soldiers. Sixteen boats were looted, and five destroyed.

Renk County, Upper Nile State

Renk lies along the Nile River on the border between Sudan and South Sudan and is the
most developed of the six counties in the project area. Although Renk town is a diverse
urban area and has residents from a number of South Sudanese ethnic groups as well as a
rather large number of Sudanese, the payams outside of town are almost entirely
occupied by the Dinka Abialang. 201 As historian Douglas Johnson writes in When
Boundaries Become Borders :

Renk …has long been an intersection of northern -based commerce a nd northern -financed pump
irrigation agricultural schemes along the Nile. There has thus been a long period of interaction
between the Abialang Dinka and Northern Sudanese merchants and administrators. Many (if not
most) of the Abialang are bilingual in Di nka and Arabic; many are also Muslim. 202

Another distinguishing factor of Renk are the large -scale mechanized farming schemes
that expanded into parts of Upper Nile State in the 1970s. There are currently nearly
500,000 hectares of mechanized farming scheme s that have been established in Renk,
Manyo and Melut counties. 203

These farms have been the scene of a simmering international conflict between Sudan
and South Sudan in recent months. In August 2012, SPLA spokesperson Phillip Aguer
198 Violent conflict killed an estimated 2,500 people and displaced 350,000 people in 2009 . For a time, the
death toll in South Sudan surpassed that of Darfur. Id. 199 According to the ICG, in the months preceding the attack on Torkeij there were a series of cattle thefts
between the Jikany and the Lou, a Jika ny trader was murdered in Akobo and abductions of Lou children
were reported. ICG, JONGLEI ’S TRIBAL CONFLICTS , supra note 197 , 7. 200 There were also rumors that the boats were carrying weapons and supplies to the Lou Nuer youth. See
ICG, JONGLEI ’S TRIBAL CONFLICTS , supra note 197 . 201 The Ab ialang occupy the northernmost point of the Padang Dinka belt, which stretches westwards to
Abyei and southwards into Upper Nile and Jonglei states. 202 JOHNSON , WHEN BOUNDARIES BECOME BORDERS , supra note 160 , 69 -70. 203 DAVID K. DENG , NORWEGIAN PEOPLE ’S AID (NPA), THE NEW FRONTIER : A BASELINE SURVEY OF
LARGE -SCALE LAND -BASED INVESTMENT IN SOUTH SUDAN 18 (2011), available at
http://www.commercialpressuresonland.org/research -papers/new -frontier -baseline -survey -large -scale –
investment -southern -sudan .

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reported that a group of 80 mercenaries accompanied by Sudan Armed Forces (SAF)
occupied a farm in Renk, about 20 kilometers south of the border with Sudan. 204 This
occupation followed on the heels of other attack that killed several civilians and SPLA
soldiers. According to Aguer, the SPLA did not respond militarily after the initial battles.
On December 3, 2012, the Sudan Armed Forces (SAF) reportedly attacke d Um -Dolwic h
agricultural scheme in Renk. G overnment representatives said that four SPLA soldiers
were killed, one was missing in action and another was taken prisoner. 205 These
skirmishes reflect the heightened tensions between the two governments in the wa ke of
South Sudan’s independence. Renk’s border with Sudan is also one of several border
areas that are in dispute between the governments of Sudan and South Sudan. 206

204 Elizabeth Janaina, Sudanese mercenaries occupy Renk farm , SUDAN CATHOLIC RADIO , Aug. 30, 2012
available at http://www.mail -archive.com/southsudankob@googlegroups.com/msg06333.html ; S. Sudan
Governor: warmongering Sudan attacked Upper Nile agricultural project, SUDAN TRIB ., Aug. 19, 2012,
ava ilable at http://www.sudantribune.com/spip.php?article43624 . 205 Letter dated 8 December 2011 from the Acting Permanent Representative of the Republic of South
Sudan to the United Nations add ressed to the President of the Security Council, U.N. Doc. S/2011/763,
available at http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B -6D27 -4E9C -8CD3 –
CF6E4FF96FF9%7D/Sudan%20S%202011%20763.pdf . 206 JOHNSON , WHEN BOUNDARIES BECOME BORDERS , supra note 160 , 68 -74.

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Annex II – GLOSSARY

Abduction Forcible taking of a person against their will.
Covers a range of practices, including human
trafficking for the purposes of economic or sexual
exploitation, the abduction of women and children
in order to expand family size and generate income
through bridewealth payments, kidnapping, and the
taking of captive s during war. In some areas of
South Sudan abduction is associated with large
scale inter -communal violence.

Access to justice Ability of a complainant to have his or her
complaint or dispute addressed by a third -party with
a minimum degree of fairness an d efficiency in
process, outcome, and enforcement.

Accountability gap A systemic failure to punish wrongdoers for their
wrongs and obtain redress for victims.

Adultery For survey purposes, adultery occurs when a
married woman has sexual relations with someone
other than her husband. Adultery is a crime in South
Sudan. Married men who have sex with unmarried
woman are rarely charged with adultery, in part
because the relationship can lead to marriage in
South Sudan’s polygamous society. However, they
are often required to marry the woman or make a
payment to the woman’s family in compensation for
woman’s family’s loss of potential bridewealth not
for the crime of adultery.

Ad hoc complaint mechanisms Justice services that are created to address a
particu lar issue of concern. Examples include
special courts and mobile courts or government
officials visiting rural areas for the purpose of
resolving certain disputes.

Assistance preference For survey purposes, assistance preferences refer to
people’s preferences for the type of third -party
dispute resolution they prefer. The survey looked at
both people’s actual choices and the choices that
they think they would make if confronted with a
particular type of dispute.

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Blood compensation A practice under customary law by which the
family or relations of a person accused of
committing homicide pay compensation, often in
cattle and occasionally in girl children, to the family
of the deceased.

Capital punishment Death by hanging for committing capital offen ses,
such as murder or treason.

Civil remedy Legal action designed to address a civil wrong, such
as a breach of contract or a harm caused by
negligence, by providing a remedy to the victim.
Examples of civil remedies include compensation,
damages, or injunctions.

Complaint mechanisms Formal and informal dispute resolution processes
and institutions.

Criminal penalty Punishment designed to sanction people convicted
of a crime , via a penalty administered by the state .
Examples include fines, prison sen tences, and the
death penalty.

Customary law A body of mostly unwritten rules and practices that
through long usage and general acceptance are used
to structure social relations within and between
communities. Customary law varies throughout
South Sudan.

Customary courts A system of courts at the local level that are
presided over by chiefs or other traditional
authorities. Disputes brought to customary courts
are mediated and adjudicated primarily by that
community’s customary laws. This includes
customa ry courts at the county, payam, and boma
levels as well as town bench courts.

Debt Obligation owed from one party (debtor) to another
party (creditor) by virtue of assets that the creditor
granted to the debtor. Debts in South Sudan
typically come in the form of money, cattle, or other
livestock
Dispute incidence For survey purposes, the number of times that a
household member experienced a particular crime
or dispute in the last two years.

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Dispute trajectory The sequence in which people utilize differ ent
dispute resolution processes (courts, mediation by
family, etc .) when seeking justice for perceived
wrongs.

Enforcement gap A systemic obstacle to the enforcement of decisions
from rule of law and governance institution.

Enumeration areas Relatively small geographical subunits in South
Sudan that the National Bureau of Statistics (NBS)
uses to organize the national census and other data
collection activities.

Extra -judicial settlement Resolution to a dispute that is reached outside of
customary or statutory courts.

Forced marriage Coercing a male or female, often a younger person,
to marry someone against their will. Often
accompanied by violence, threats of violence, or
threats to expel the unwilling, and often underage,
party from the household.

Forum shopping Attempts by a complainant to have his or her
dispute tried in a particular court or jurisdiction
where he or she expects to receive the most
favorable judgment. In South Sudan this includes
the decision to take disputes to courts that wou ld
rely on customary law or a court that may rely on
statutory law.

Girl child compensation Customary practice by which a person who has
committed a homicide transfers custody over a girl
relative to the family of the deceased to compensate
them for their lost family member.

Homicide Act of a human killing another human, whether
intentionally or unintentionally.

Household member A person who regularly lives and eats at a particular
residence.

Magistrate Alternate term for a judge in a county -level
statu tory court.

Mobile judges Statutory court judges that are deployed to areas
where statutory courts are weak or non -existent to

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adjudicate disputes, remaining in a particular area
for a limited period of time.

Murder Crime in which a human intentionally and
unlawfully kills another human with premeditation.

Legal pluralism Existence of multiple and overlapping systems of
law within the same legal order.

Local justice systems Diverse array of formal and informal dispute
resolution processe s that exist at the local level.
Includes both statutory and customary courts and
informal mediation and other non -institutional
mechanisms.

Physical assault For survey purposes, physical assault is
synonymous with fighting, and may or may not
include a w eapon.

Premarital sex For survey purposes, covers problems relating to
sex before marriage. Some customary law systems
criminalize premarital sex, particularly if a
pregnancy ensues.

Rape (forcible) Act of forcing someone to engage in sexual
intercourse against her or his will.

Rape (marital) Act of forcing a marital partner to engage in sexual
intercourse against her or his will. Marital rape is
not a crime under South Sudan’s 2008 Penal Code
Act.

Rape (statutory) Sex in which one person is below the s tatutorily
prescribed age required to legally consent to the
behavior. In South Sudan, minors below age 18 are
not considered to have the legal capacity to consent
to sexual intercourse. The 2008 Penal Code Act
exempts married couples from this restriction .

Special courts Courts established by the President of the Supreme
Court to address particular issues of concern in a
particular area. Judges may be legal professionals or
traditional authorities. Special courts have been
established to adjudicate cattle raiding incidents in
Lakes State and a land dispute in Jonglei.

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Spousal neglect For survey purposes , spousal neglect include s
marital disputes that did not necessarily involve
violent assaults. Examples of spousal neglect claims
that often arise in customary courts include men
who do not support their wives and children or
women who refuse to cook for their husbands.

Statutory law Rules and principles that are derived from the
Transitional Constitution and legislation passed by
the National Legislat ive Assembly as well as other
past legislative bodies.

Theft Unlawful taking of another person’s property
without that person’s consent. The main forms of
theft in South Sudan are petty theft and cattle theft.

Time to resolution For survey purposes, time to resolution reflects the
amount of time that it took for a particular forum to
mediate, adjudicate or otherwise process a
particular dispute. It does not necessarily mean that
the dispute was ultimately resolved by that forum;
some disputes were le ft unresolved while others
were brought to different forums.

Town bench court Customary court typically based in the county
administrative headquarters. Tends to handle a more
complicated class of cases than that which are
addressed in customary courts at the payam and
boma levels. In some areas they are colloquially
referred to as a High Court.

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