Customary Law and Authority in a State under Construction: The Case of South Sudan

Abstract

Abstract Customary law in South Sudan is a powerful symbol of emancipation from two centuries of external domination, and paradoxically, also the product of such external domination. Most citizens of the world’s newest state rely more on customary laws and local authorities to regulate their conflicts than on other civilian state institutions and statutory law. At the current juncture, influential decision-makers in and outside the government are pushing to develop Sudan’s customary laws into a Common Law for South Sudan. However, the legacy of the armed conflict, including patterns of militarization, and the ongoing modernization of society, pose challenges for customary systems. Furthermore, customary systems exhibit certain human rights deficits and, therefore, need to be made compatible with the constitutional framework of South Sudan. The recognition of customary authority and law as an essential part of the governance structure, coupled with targeted engagement and reform, are indispensable elements of state and peace building in South Sudan. The government and its external partners must walk a tightrope to integrate the local capacity offered by the customary system into their wider efforts without inadvertently stifling its potential to reform from within or undermining democratically elected institutions.