Excellences; State Minister of Justice, Public Prosecution Attorney General, Bor County Commissioner, UNHCR Representatives, Bor County Chiefs, my Colleagues-Lecturers and law students at Dr. John Garang Memorial University, Distinguished Guests, Ladies and Gentlemen. Protocol observed.
I convey my sincere greetings to all of you.
I am very happy to address you on "Customary Justice in South Sudan". To treat this subject, we have to ask ourselves; what is customary justice system? And from where has it come? And what is its purpose? I shall discuss briefly about the topic because it is only an introductory phase to "Customary Justice Workshop". It will be dealt with under the following institutions: marriage, divorce, Succession, or inheritance, protection of life and property.
To begin with, customary law originates from the lifestyle of any ethnic group. It consists of social rules which regulate the ways of life of a given community. These rules have a force of law to prohibit any criminal conduct such as the killing of a human being, causing personal injuries, stealing cows or any property, committing sexual offences (adultery, rape and incest), causing damage to property and so forth. Thus, any evil deed that violates the social rules is punishable by inflicting compensation.
It is evident that these social rules which have been observed for decades make up the customary law. The law has a unique characteristic. It has no written structure (jus non scriptum), with sections like the modern law. This customary law has been transmitted orally from one generation to another. The community members learn the law and apply it in customary courts to settle social conflicts, disputes and to impose payment of compensation against law-breakers. However, the customary court decisions may differ from one ethnic group to another. In an area occupied by a tribe in South Sudan, the application of the native law becomes prevalent. Customary law is recognized on condition that it is not contrary to justice, equity, morality, public order and good conscience. It is therefore axiomatic that South Sudan has got a dichotomy of legal systems; these are customary and national legal systems which operate side by side. However, the national legal system may override the customary one.
Ladies and gentlemen, for us to understand the customary justice we have to refer to some institutions like marriage. It is universally an acceptable definition that marriage is a union between a man and a woman. Hitherto, customary marriage carries the same meaning. In the context of South Sudan tribes, marriage requires a societal participation. Although there is a diversity of procedures in marriage, there is a similarity in payment of bride price. Both parental parties discuss about the amount of money or the number of cows to be offered as bride price. This stage is called "luel ruai" in Dinka; the taller the bride or girl the more cows are needed (50 -100 head of cattle). In Otuho tribe (Latuka), the bride price may consist of goats and cows (120 goats and 15 cows). Whereas the Bari tribe maintains that, among other things, "kiteng ko tore", i.e. a cow and a calf must be included to validate the marriage. The Balanda tribe puts more emphasis on offering a hoe to the bride's parents. It is an indispensable instrument to make a valid marriage; the man must give a hoe to the parents-in-law.
In all considerations, it must be stressed that the payment of the bride price is of paramount importance in customary marriage for the following reasons: 1) it makes the marriage stable and the woman is bound to her husband; 2) the husband has power and legitimacy over the woman and offspring born from that union; and 3) the husband has the right to claim for compensation if another man commits adultery with the woman.
Generally speaking, customary marriage has been criticized and interpreted by others as "wife purchase", and that girls are a source of wealth.
Ladies and gentlemen, many a man disagrees with the above interpretation of customary marriage. They do not share the criticism for the following reasons; 1) it is impossible to fix a sale price for a human being; 2) marrying away a daughter is a great loss for the paternal family; and 3) in marriage there is a transfer of female reproductive organs to another family; because the children born from that union will belong to the husband's family and clan. This underscores the practice of patrilinealism; a system whereby the descendants follow the male line. Hitherto, the existence and offering of bride price for marriage is justified.
Other types of marriages
Ladies and gentlemen, there are also other kinds of customary marriages. Although marriage is not obligatory, it depends mainly on the aggregate of wealth that a man possesses. A rich man is likely to marry several women. This is the practice of polygamy and there is no prohibition from the part of the national law. Therefore there is tolerance and permissibility to the practice of polygamy for the purpose of family aggrandizement.
Ladies and gentlemen, this kind of marriage does not require the presence of the bridegroom. It is a proxy-marriage known as ghost marriage. It is practiced by two tribes in South Sudan; the Dinka and Nuer. When a young man dies before getting married, the marriage will be arranged for him. The father of the late will approach another family with intent to marry their daughter for his late son. The bride price, in the form of cows, is paid and the girl will be offered to the new family.
A man, from the male descent (brother or cousin) of the deceased, will be invited to fulfill physically the duties and obligations of a husband. The children born from this union will be called the sons or daughters of the deceased.
The practice of ghost marriage is based on the belief of both peoples that any born male has the right to form a family. It is self-evident that the purpose of ghost marriage is to enable the continuation of the family line; and to protect the family property (e.g. livestock).
Some problems may face a woman after the death of her husband. Customary law provides guidance for her life. When a married man dies, his wife will be inherited by a close relative, such as brother, cousin or any man from the deceased's clan. In fact, the widow has little choice; she must marry a man related to her late husband by descent. As a matter of fact, the woman is bound by marriage to her husband's family. However, to inherit the widow is not automatic. It must be done by engagement. All the men who satisfy the requirements according to tradition may contest for the widow. And the winner will inherit her.
This marriage is known as widow-inheritance. The children born from the marriage will bear the name of the late man. The purpose of this kind of marriage is to assist the widow in the upbringing of the children; and to keep the continuation of the family line.
Duties and obligations deriving from marriage
Customary law imposes upon husband and wife the sharing of a family life in cohesion. In order to lead a happy life, the following conditions are necessary:
1) The wife must be faithful to her husband . . . and not vice versa; 2) the man must maintain the family; and 3) both husband and wife must be responsible for custody and education of children.
Causes of separation and divorce
Under certain situations, customary law may permit the dissolution of marriage. Cruelty of the husband directed towards the wife by battering her constitutes a good reason to separate. Even abandonment of matrimonial home and failure to provide livelihood for the family may lead to an unhappy life.
There are also other causes which may bring about separation and divorce, such as adultery committed due to the woman's misconduct, impotence of the man and barrenness of the woman. In the majority of cases, if the couple is unable to produce offspring the marriage may not last forever. This confirms to the fact that the capacity to produce children is the prime motive of African traditional marriage.
Separation status and divorce
Ladies and gentlemen, Separation status is a temporary measure whereby husband and wife stay separately. The wife may stay in a separate home or may return to her parents. At this stage, sexual relation is suspended. The husband is not obliged to maintain her but for the sake of children he may provide alimony. As long as the misunderstanding is protracted, the two partners may remain separate.
However, the civil status of married persons remains valid. At any time they may return to live together when the dispute or cause of misunderstanding is settled by reconciliation. This is a separation status; the wife is still bound to the husband. If another man has sexual intercourse with the woman, that man commits adultery. The legitimate husband has the right to claim compensation. In case of adulterine child, the husband may claim the child as his own because the woman is still his wife.
It is a total breakdown of marriage. The spouses terminate their relationship as husband and wife. They are put apart as divorce' and divorcee. In traditional divorce the bride wealth ought to be returned to the ex-husband. If there are children, these may follow their mother. The maternal uncle may take care of them and include them in the clan. This system of divorce is practiced in Otuho tribe and in many other ethnic communities of South Sudan. In that case, divorce liberates a woman from the husband's bond. She gains then her freedom to marry another man.
However, the custody of children is a controversial issue when divorce takes place. Some tribes entrust the children to their natural father who generated them. For instance, a Dinka man prefers to leave five cows with the ex-parents-in-law so that he takes his son. If the child is a girl then six cows would be paid. This rule applies also to the Nuer tribe. And some other tribes entrust the children to the custody of their mother because there has been no official marriage. But the child may be given to the natural father if some money or a herd of cattle is paid to the maternal uncle.
The effects of divorce are as follows;
1) Husband and wife remain apart; 2) bride wealth must be returned; 3) children may follow their mother or their father if some cows have been paid or left with the ex-parents-in-law; and 4) finally the woman is free to re-marry.
Succession or inheritance
As a result of death, the family members have to succeed the deceased. According to tradition, the eldest son replaces the father. He inherits property, including cattle and land. Being the heir, he is responsible for management of the family property. Succession is a right given to males.
Traditionally, female succession has not been encouraged by many ethnic groups of South Sudan. They fear that the females may transfer the property to another family when married. It is therefore a sacrosanct right for the male heir to keep the property for marriage purposes in order to maintain the continuation of the family lineage.
Protection of life and property
Ladies and gentlemen, we have come to the final institution, and that is the protection of rights. It is the manner that customary law imposes compensation for any violation of the social rules. I hereby wish to treat briefly this argument in connection with the following offences; homicide, sexual offences, and some offences against property.
The customary court decisions may differ from one community to another; in quantity or quality. In all ethnic groups, the elders (doyen) exercise the functions of judges. They are knowledgeable about customs and traditions. There are no public prosecution attorneys. Every person that is offended or aggrieved has the right to present his or her complaint before the community elders; i.e. to seek justice.
Decision on homicide or murder
In customary law, civil and criminal cases are decided in the same court. It is similar to the tort law where cases can be tried either in civil or criminal courts. The killing of a human being is punishable. And the case is tried at customary court by elders. It does not matter whether the offence of homicide was committed intentionally or accidentally; the same penalty of compensation is applicable. Many communities impose payment of herds of cattle, goats or sheep to repair the wrong. The purpose of paying compensation is to appease the family members of the victim. It is a necessary provision of customary law to prevent vengeance.
There is a single tribe that decides the case of homicide by applying a penalty with human indemnity. Otuho tribe prefers to pay compensation by offering a maiden to the family of the late person. The maiden will be offered as a wife to one of the sons of the late man. The probable reason of offering a female is to produce children to replace the deceased. In the absence of a young girl, head of cattle will be offered, equivalent to the number of cows used for marriage purposes.
However, customary law decriminalizes homicide which is committed against a close relative. For instance, in wife killing, the husband will be ordered only to complete the payment of the bride price balance. Whereas other offences related to the killing of relatives, such as mother, father, brother and sister, are condoned. The reason may be that since penalty is based on compensation, then to whom would the compensation be paid?
Adjudication for sexual offences
As it is known, adultery is a sexual offence committed by having sexual intercourse with a married woman. This offence is more serious than fornication. The latter is an offence committed by having sex with an unmarried woman. There is a difference in compensation.
For these sexual offences, the entire family members are offended. In the absence of the woman's husband, her brother-in-law may raise the complaint before the elders. Customary law allows a man to represent or obtain compensation for adultery on behalf of his aggrieved brother. Customary law does not distinguish rape from adultery. It is obvious that the use of force to obtain sex without the woman's consent constitutes the rape offence. It's more serious than adultery, yet both are compensated equally.
In Dinka tribe, adultery is punishable with payment of seven cows. Other communities pay less than that. The offence of fornication in Otuho tribe is punishable with payment of six goats only; even forcible rape of a girl is paid in the same way. For the offence of incest, there is no punishment. The offence is considered to be committed under the influence of some kind of misfortune. It should not happen at all. The elders recommend usually a ritual or ceremonial cleansing.
Theft and damage to property
The offence of cattle theft or cattle-raid is regarded a serious crime. And cattle rustling are equivalent to armed robbery. In fact, it is the taking of property of another person, in his presence, with the use of firearms. Such strife for possession of herds of cattle causes usually inter-tribal conflicts. The nature of this type of battle is internecine. The culprits may be captured or killed at the battle field without legal process.
The destruction of domestic animals or crops is also sanctioned under customary law. For instance, the killing of someone's bull may result in compensation with a heifer. All these offences are proportionally punishable by payment of adequate compensation. In our observation, we notice that all punishments in customary justice system are based on payment of compensation. There is no infliction of death sentence, and no imprisonment for the offenders.
Customary law is recognized and it operates within the national legal system. Its application in South Sudan has been permitted to preserve culture and traditions. But the scope to promote customary justice system is not properly supported. The modern criminal justice system is already in conflict with the principles of customary law. In fact, the law does not meet the requirements of modern legal system.
Sexual offences such as incest, rape and adultery have not been adequately penalized under customary justice system. Due to the complexity of these crimes, the court cannot decide them summarily. They have been transferred to the Higher Courts. So, incest and rape are punishable with imprisonment. The offence of adultery is punishable with both compensation and imprisonment. It is the aggrieved husband only, not any other person, who can initiate a court action against the adulterer.
Furthermore, the customary justice system does not provide enough legal protection for human life; especially the killing of a relative by an akin, i.e. patricide, matricide, fratricide and so forth. Thus, the offences of murder, wife killing, cattle rustling or armed robbery cannot be decided summarily. The offences fall under the competence or jurisdiction of the High Court. Given the seriousness of these crimes, the customary courts prove incompetent to try them. The use of firearms in the commission of these heinous crimes requires well trained legal personnel and professionalism in dealing with the cases. Moreover, customary justice system does not bother to prove the element of a guilty mind, i.e. the intent or voluntariness by which a crime is perpetrated. The court exacts the penalty in accordance with the intentional act by which an offence is committed. It must be emphasized that the law in force provides protection of property, human life and dignity of any person. In addition to that, cases of divorce and disputes over ownership of land are tried at a special section in the High Court.
In customary law, the equality of all persons before the law is totally inexistent. Women are discriminated in the institution of succession or inheritance. Instead, the modern law enshrines the right of every individual to own property. Nowadays, women are no longer discriminated in succession. They have the right to own and inherit land. It is a constitutional right that ordains the equality of all persons before the law. Hitherto, the females have the same right to participate in succession with male legal heirs of the deceased.
In certain customary marriages, the right of a woman to marry a man of her own choice is not fully respected. That is done in violation of the liberty of a person to choose his or her partner in marriage. Forced marriages ought to stop because they are celebrated in violation of the law.
Ladies and gentlemen, it is crystal clear that the judicial powers which were exercised by customary courts have been transferred to the payam and higher courts. The phenomenon of redundancy is created at customary courts. I hereby conclude that the survival of customary justice system will depend on its integration with the national legal system.
Thanks for your attention. God bless you all.
Prof. Camillo Odwa Haswani Oya, Lawyer; contact: email@example.com