An Overview of the Legal System and Legal Research in the Republic of South Sudan

By Paul Mertenskoetter and Dong Samuel Luak

Paul Mertenskoetter is a Juris Doctor candidate at the New York University School of Law. Dong Samuel Luak is the Secretary-General of the South Sudan Law Society.

Published November/December 2012

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1. Historical Introduction

The Republic of South Sudan became a sovereign nation on July 9, 2011. The date marked the end of a long fight for independence, which spanned two civil wars (1955-1972, 1983-2005), the signing of a Comprehensive Peace Agreement (CPA) in 2005, and ultimately a referendum on self-determination in January 2011.

The new country is home to roughly 11 million people (2012) [1] and covers the landmass of Texas or Germany, Belgium, Holland and Portugal combined. The nation is organized according to a principle of decentralization (some doubt about its implementation exists) and is divided into ten states.

The model of government, and the role of law played therein, has varied throughout the country’s history. A British colony since the defeat of Napoleon in Egypt in 1804 and the extension of the mandate to Sudan, the end of colonialism in 1955 and the subsequent independence of Sudan also brought with them a reform of legal system.[2] The British system of laws and regulations is still partly used in decisions and adjudications today.

The founding of the new country of South Sudan resulted from successful armed resistance. Many South Sudanese fought in the war, but the most visible organization was the Sudanese People’s Liberation Movement (SPLM) and its army – the SPLA. Following South Sudan’s independence, the SPLM became the most prominent political party in South Sudan, with party members occupying the vast majority of elected mandates and executive posts in government.[3] To understand the legal system of South Sudan, resolutions passed at the SPLM Convention of 1994, which later evolved into the charter of the movement, are also significant.[4]

During the civil war, the SPLM/A developed a set of laws and regulations to govern the territory in controlled.[5] At first, the SPLM/A developed military regulations but later also turned to the administration of the civilian population, the main tenants of which were developed at the 1994 SPLM convention mentioned above. The SPLM/A initiated a Punitive Law “to regulate and govern the conduct of the armed forces.”[6] One year later the Penal and Discipline Law of the SPLA was passed and remained in force until 1994 when it was repealed by the SPLA Act. The 2003 SPLA Act again overhauled and added laws.

Concurrently with the signing of the CPA in 2005, the SPLM/A enacted the Interim Constitution of Southern Sudan. The CPA granted Southern Sudan regional autonomy, in the form of the Government of Southern Sudan. The president of Southern Sudan was made the first vice-president of the Republic of Sudan, and a share of national wealth was given to the southern region. The CPA stipulated that after a six-year interim period, the south would vote in a referendum on self-determination to decide whether to remain united or become independent.

In January 2011, the people of Southern Sudan voted overwhelmingly for independence. At independence, the Interim Constitution was substituted with the Transitional Constitution of the Republic of South Sudan of 2011. In accordance with the Transitional Constitution, in January 2012, South Sudan initiated a constitutional review process, which will culminate in the adoption of a permanent constitution.

South Sudan presents interesting questions of international law relating to territorial disputes with the neighboring Republic of the Sudan and the succession and accession to international treaties.[7]

The South Sudanese legal system is built on the combination of statutory and customary laws. South Sudan has enacted dozens of laws since 2005, but their use in legal disputes and courts is limited. [8] Poor dissemination of laws, little experience with the new statutory provisions, the difficulty of many legal staff in understanding English [9] and lack of access to statutory courts limit the relevance of the new laws.

The Transitional Constitution structures the government according to the principle of separation of powers between the executive, legislature and the judiciary. South Sudan is divided into ten states, which are to manage affairs according to a principle of “decentralized government” and “devolution of powers.”[10] The highest state-level executive authority is the Governor. State legislative assemblies pass legislation in accordance with and subject to the supremacy of national laws, in case of conflict.[11] The states do not have their own judiciaries, but each state contains a high court.

The government’s judiciary is centralized in administration, and all appointments are made by national government officials. [12] South Sudan’s pluralist legal system grants customary courts concurrent jurisdiction, and they often operate alongside statutory courts.

3. The Transitional Constitution of 2011

3.1 Interim Constitution of Southern Sudan 2005

The Interim Constitution of Southern Sudan was mandated by the CPA and entered into force in 2005, concurrently with an Interim National Constitution. It set out the government’s organizational structure. The differences between the Interim Constitution and the Transitional Constitution reflect ongoing internal negotiations about the “right model” for South Sudan.

3.2 Constitutional Model

South Sudan’s constitutional model is Presidential, in so far as the President is elected directly and forms the head of the executive. Functional analysis confirms the President’s broad power.

The relationship between the national government in Juba and the state governments of the ten states is unclear. Given that the states have their own constitution and independent elections of Governor and state legislative assemblies, the structure appears federal. However, functional analysis and empiric study shows that the national government’s income and resources are much stronger than those of states, and that states often effectively lack the capacity to enact their own laws. The states receive their revenue largely from the central government and all subterranean natural resources belong to the central government. [13] Until early 2012 oil, was the source of over 95% of government income. [14]

The National Constitutional Review Commission (NCRC) is given the task to draft the final constitution, which will then be presented to parliament and enacted into law.[15] As of August 2012, the NCRC was still in the process of passing its Rules of Procedure and deciding on a Plan of Action. It is unclear whether the constitutional deadline of January 2013, for it to present a draft text will be respected. At the highest level of government, disagreement about the constitutional model to be chosen is evident. On the one hand, there is a push for real decentralization of powers and devolution of law making authority to the state level. [16] Once a final draft of the constitution is presented to the President, he can call for the Constitutional Conference to meet and approve the draft text. In a last step, the National Legislature has to adopt the draft text of the constitution for it to become effective law. [17]

3.3 The Bill of Rights

The Transitional Constitution includes a Bill of Rights, which forms “the cornerstone of social justice, equality and democracy.”[18] The Bill is powerful as it is justiciable between the people and the state as well as between private individuals.[19] The constitution further makes reference to international human rights treaties, the ones adopted by South Sudan becoming “an integral part” of the Bill of Rights,[20] and creates a Human Rights Commission to ensure the respect of these fundamental rights.[ [21]

4. The Executive Power

The head of the executive is the President of the Republic of South Sudan. The President is also the commander-in-chief of the SPLA. [22] Election of the President is direct and the term of office is five years.

The President is given a strong institutional position, due to a long list of functions, which grant oversight and influence over the legislature (by way of convening parliament and submitting bills to be enacted), and the judiciary (by way of unchecked appointment powers).[23] The President can also unilaterally declare a state of emergency to be approved by the legislature within thirty (30) days.[24] The Transitional Constitution also explicitly provides for the legislature to delegate creation of rules and regulations to the executive branch.[25] At this writing, a lot of law is still made through executive orders from the president and the ministries.[26]

Generally, it can be said that limited capacity in the legislature leads to the executive power being extensive and without a meaningful counterweight.

5. The Legislative Power

The National Legislature of the Republic of South Sudan consists of the National Legislative Assembly and the Council of States. The National Legislative Assembly is elected in a national general election from the constituencies as defined by the National Election Law. In elections, there is a separate women’s-list to fulfill the constitutional requirement of having at least twenty-five percent (25%) female members of parliament (this also applies to state elections). [27]

The Council of States is comprised of representatives from their respective state legislative assemblies. The exact number of representatives is to be determined by the National Election Law.

The function of the National Legislature is primarily law making. Additionally, it serves a supervisory function with respect to the executive.[28] Individually, the National Legislative Assembly and the Council of States are given specific functions.[29] The Council of States is a body comprising representatives from state assemblies and is to initiate legislation in the interest of states and the principle of decentralization.[30]

6. The Judiciary

The Judiciary in South Sudan is a complex structure consisting of constitutionally established government courts, which base their adjudication on statutes, and customary courts, which are presided over by traditional authorities and rule according to the customary laws of their respective ethnic groups. Given that a customary court’s decisions can be appealed to a statutory court, two different legal systems may be applied to a single dispute. The effects of this duality on practice are still unclear and vary.[31] In most instances, appealed customary cases are reviewed de novo and no deference is given to the customary court, nor are the cases remanded when faced with an incomplete factual record.

The main legal texts establishing the judiciary and defining its jurisdiction and procedures are the Transitional Constitution of 2011, the Judiciary Act of 2008, the Code of Civil Procedure Act of 2007, the Code of Criminal Procedure Act of 2008, and the Local Government Act of 2009.

6.1 Statutory Courts

6.1.1 The Supreme Court (National)

The Supreme Court, located in Juba, is the highest organ of the judiciary. It consists of seven judges (called Justices), one of whom is the Chief Justice of the Supreme Court and one the Deputy President. [32] The Court can form three different panels: the Constitutional Panel, the Criminal Panel and the Civil Panel. [33] The first consists of all justices, the latter of three justices. Decisions are majoritarian. [34] Most of the time the Supreme Court decides cases on the record but it can call litigants for oral argument if needed.

The Supreme Court is the highest appellate court in the country and takes appeals from the Court of Appeals.[35] For matters of constitutional law, the court is given original jurisdiction.[36] The Court has to confirm any death penalty conviction.[37] South Sudan allows for judicial execution for capital offenses, where executions are carried out by hanging. The original jurisdiction for capital offenses involving a death penalty charge is given to the High Courts. [38]

6.1.2 The Court of Appeals (Regional)

The three regional Courts of Appeals (based in Juba, Rumbek and Malakal, for the Greater Equatoria, Greater Bahr-el-Ghazal and Greater Upper Nile regions, respectively) are intermediary appellate courts that hear cases from the states’ high courts.[39] They further fulfill an administrative (and possibly harmonizing CHECK) function over the High Courts in their jurisdiction.[40] Three judges sit on the bench, with one judge being the President as appointed by the Chief Justice of the Supreme Court.

6.1.3 High Court (State)

Ten High Courts (one in each state capital) are the highest courts in South Sudan with original jurisdiction. Their jurisdiction, in some cases exclusive, is determined by the Civil Procedure Act 2007, and Criminal Procedure Act 2008. [41] The High Court hears appeals from all the lower courts. There is no internal appellate hierarchy among the lower courts.

6.1.4 First Class Magistrate Court (County)

The First Class Magistrate Courts are courts of original jurisdiction that are responsible for a specific county within a state. In criminal cases, they can pass prison sentences up to seven years and fines up to 5000 SSP.[42]

It should be noted that these lower levels of statutory courts are not fully in place, due in part to a lack of sufficient judges. To compensate for this shortcoming, the judiciary plans to deploy mobile courts.

6.1.5 Second Class Magistrate Court (County / Payam)

The Second Class Magistrate Court is similar to the First Class Magistrate Court, but is more limited in its authority to pass prison sentences (maximum of three years) and fines (maximum of 2500 SSP).

6.1.6 Third Class / Payam Court

The Third Class or Payam Court is the lowest government court. They are not allowed to pass fines over 300 SSP. These courts, even though provided for in the Judiciary Act, have not yet been established in reality.

6.2 Customary Courts

The Local Government Act of 2009 codifies the recognition of customary law courts in South Sudan. These courts are to decide cases within their jurisdiction based on “the customs, traditions, norms and ethics of the communities.”[43] The Act prescribes principles for decision making in these courts, including general principles like non-discrimination, non-delay, compensation, possible mediation, and a focus on substantive justice.[44]

Statutory courts are inaccessible for many people, because of their prohibitive cost, their unfamiliar procedures, and their use of languages that people do not know. As a consequence, customary courts are the preferred option, and an estimated 90% of disputes in South Sudan are handled by them.

Customary law courts do not have jurisdiction to hear criminal cases unless they have a “customary interface” and have been referred to the customary law court by a statutory court.[45] Given that many cases in South Sudan involve familial disputes and sexual transgressions, a some suggest that the “customary interface” requirement is often met.[46]In practice, it is often unclear whether the dispute qualifies as customary, and chiefs often adjudicate matters that are clearly outside their jurisdiction, such as homicide or theft.[47]

The customary court structure in South Sudan was put in place during the colonial period, as part of the British method of “indirect rule”. [48] The courts were a cheap and undisruptive way for gradual change, which was to be achieved through installing “more enlightened local administrators” that could change the substance of customary law.[49] The basic tenant of this approach, reform through existing institutions, is still visible today. Chiefs are a “hybrid” actor between state and community, receiving salaries from the government but having their authority based in the community’s acceptance. [50]

Procedures among customary courts vary. In urban areas, an adaptation to formalistic proceedings of statutory courts is discernible. [51] The educational level of the chief and, if available, court clerk also determine formalization of procedure. [52]

The laws used for adjudication in customary courts are a mix of traditional practice, the discretion of the chief, statutory provisions known to the chief and negotiation between the parties.

Traditional practice is mostly passed down orally, but principles of binding precedent (like stare decisis in a common law system) do not generally apply. The personal disposition of the chief, i.e. conception of the court proceeding as educational, restorative or punitive, can influence the verdict. Moreover, the inclusion of characteristics that would be regarded irrelevant or inadmissible in European or U.S. courts, i.e. the punishment demanded by family members, leads to cases being distinguishable. As a consequence, the principle to “treat like cases a like” would be likely to find less application in South Sudan and the realm of binding precedent would shrink. Some customary courts refer to statutory provisions, especially of the Penal Code, to make their decision. [53] Customary courts often serve as a forum for negotiation and arbitration as much as adjudication. [54]

The customary courts are generally organized in two levels, where the lower level B court exists in every Payam and only has jurisdiction up to a maximum penalty whereas the higher level C court is for each county.[55] Some Bomas have A courts and more urban areas often have town bench courts.

The following sections deal with the individual courts and their relationships as laid out in the law. Practice varies widely across South Sudan, and much of the discrepancies depend on whether a particular area was controlled by the Khartoum government or by SPLM/A during the civil war.

6.2.1 C Court: county paramount chief (County)

According to the Local Government Act, the C courts take criminal cases referred to them by the statutory government courts and often also hear cases involving intercultural disputes. The head chiefs from the county’s payams are members. The court is supervised by the county commissioner. [56]

Furthermore, the C courts are the highest appellate body among the customary courts. The decision of the C court can be appealed to the statutory Magistrate courts.

6.2.2 B (regional) court: head chief (Payam)

The B courts have original jurisdiction over suits that involve large fines and prison sentences and are presided over by the payam’s head chief. They are supervised by the county’s paramount chief.

Furthermore, the B courts hear appeals from the A court. The decision of the B court can be appealed to the C court.

6.2.3 A (chief) court: executive chief (Boma)

The A courts have original jurisdiction over family and marriage cases, minor disputes and local administrative cases. The courts are supervised by the payam’s head chief.

7. Legal Research in South Sudan

As of June 2012, South Sudan did not yet have a functioning gazette collecting and updating the valid laws of the country. The mandate for this sits with the Ministry of Justice. To obtain the latest laws, the author requested a complete set of laws from the Directorate of Legislation at the Ministry of Justice. [57]

As of June 2012, there was no system publishing the decisions of the statutory courts. In some instances, it was possible to get hold of an opinion by contacting the court directly.

8. Laws of South Sudan as of November 2012

This section provides links to the official texts of Acts passed by the government of South Sudan. This list does not claim to be exhaustive and some of the Acts might have been amended. The authors will do their best to keep the list up to date.

Even though the Geneva Convention and Refugee legislation are only termed provisional orders in the provided documents, the authors are confident that they have since been passed with the exact language and are now Acts.

The authors also know that the legislature passed the following additional acts in its session that ended in September 2012. Unfortunately, no original copies of the legislation are in the authors’ possession. These acts are: The Appropriation Act, the Taxation (Amendment) Act, the Refugee Act, the Geneva Convention Act, the Legal Training Institute Act, the National Communication Act, the Anti-Money Laundering and Counter-Terrorist Financing Act, the Banking Act, the Foreign Exchange Business Act, the Peace and Reconciliation Commission Act and the General Education Act.

Links to official texts of the Acts of the Republic of South Sudan:

[1] CIA World Fact Book, South Sudan. These numbers are contested with the Government of South Sudan claiming higher numbers. The South Sudan Census of 2008 states the population at 8.26 Million. South Sudan Statistical Yearbook 2011, 7.

[2] Francis Mading Deng, War of Visions: Conflict of Identities in the Sudan (1995)

[3] The South Sudan Legislative Assembly for the period 2011-2015 (after independence) has 167 filled seats 156 of which (93 percent) are occupied by the SPLM. South Sudan Statistical Yearbook 2011, Number of Seats in the South Sudan Legislative Assembly (2011), 102.

[4] Dong Samuel Luak, The Laws of South Sudan in Gurtong (last visited June 18, 2012), available at http://www.gurtong.net/Governance/ConstitutionLaws/LawsofSouthSudan/tabid/342/Default.aspx . The SPLM Secretariat in Juba did not have a copy of the SPLM convention.

[5] Francis Deng, Customary Law in the Crossfire of Sudan’s War of Identities, 2006, 39-42. For the SPLA’s self-understanding and its view of civil administration, see Douglas H. Johnson, The Root Causes of Sudan’s Civil Wars – Peace or Truce (2011) 107-109.

[6] Id.

[7] On July 9, 2011, in his speech on the occasion of South Sudan’s independence, the president of South Sudan, Salva Kiir Mayardit, promised that the government of South Sudan would move quickly to ratify the core international human rights treaties that proscribe the minimum standards by which states may treat their citizens. It is unclear what weight this statement carries for South Sudan’s (customary) international law obligations.

[8] Among the laws, used most widely are the Penal Code Act 2008, the Code of Criminal Procedure Act 2008 and the Land Act 2009.

[9] Many of South Sudan’s judges were trained in Arabic when studying in Sudan. Since English is the official language of South Sudan, the Ministry of Justice laws are not translated into Arabic.

[10] Transitional Constitution, Art. 47-49.

[11] Transitional Constitution, Schedule E.

[12] Judiciary Act 2008, Sec. 20-27.a

[13] Transitional Constitution, Art. 171(4). South Sudan Statistical Yearbook 2011, GoSS Revenue and Expenditure 2005-2011, 91 (In 2010 97.6 percent of the governments revenue was from oil). Interview with Deputy Governor Eastern Equatoria State, Jerome Gama Surur, July 2012.

[14] National Bureau of Statistics, South Sudan Statistical Yearbook 2011, 91. In early 2012 a dispute between the Republic of Sudan and South Sudan over appropriate pipeline transportation fees resulted in the halting of oil exports.

[15] A Constitutional Review Conference held in different parts of the country provides opportunity for civil society and interested citizens to get involved. The results from the conference will be communicated to the Review Commission.

[16] During a discussion of the legal system of South Sudan, the Vice-President Dr. Riek Machar Teny supported an independent state judiciary and state law (i.e. individual penal codes) to account for the “multi-racial, multi-ethnic, multi-lingual, multi-religious” nature of the State. The Minister of Interior, Alison Magaya and a judge of the Court of Appeals, Steven Simon, on the other side supported a centralized judiciary with ultimate control over all courts, including the customary courts at county level. Panel Discussion, Juba, August 6 2012. (notes on file with author)

[17] Transitional Constitution, Art. 203.

[18] Transitional Constitution, Art. 9-34.

[19] Transitional Constitution, Art. 9(1).

[20] Transitional Constitution, Art. 9(3).

[21] Transitional Constitution, Art. 145-46.

[22] Transitional Constitution, Art. 97(3).

[23] Transitional Constitution, Art. 101(c), (f), (g).

[24] Transitional Constitution, Art. 189-91.

[25] Transitional Constitution, Art. 92.

[26] E.g., the Presidential Decree establishing the required internal procedures for South Sudan to verify and decide on the signature and ratification of international treaties. Interview on July 6 with Samson Taban, Ministry of Justice. Critical voices have called for an increasing decentralization and devolution of power both between national and state government and within the national structure.

[27] Transitional Constitution, Art. 163. The women requirement has not been met in recent national and state elections.

[28] Transitional Constitution, Art.55.

[29] Transitional Constitution, Art. 57, 59. The two bodies can roughly be analogized to the German Bundestag and Bundesrat.

[30] Transitional Constitution, Art. 59.

[31] If the appeals process worked and were socially accepted, it would seem that the government courts would swallow the customary courts, as the government courts would always have the last decision.

[32] Judiciary Act 2008, Art. 10.

[33] Judiciary Act 2008, Art. 11(1).

[34] Judiciary Act 2008, Art. 11(4).

[35] Judiciary Act 2008, Art. 11.

[36] Id.

[37] See attached verdict by Supreme Court overturning death penalty conviction. (ATTACH)

[38] Code of Criminal Procedure Act 2008, Sec. 12.

[39] Judiciary Act 2008, Art. 12-13.

[40] Judiciary Act 2008, Art. 13(4).

[41] Code of Civil Procedure Act, 2007, Sec. 20. Code of Criminal Procedure Act, 2008, Sec. 12 (exclusive jurisdiction for offenses punishable by death).

[42] Code of Criminal Procedure Act, 2008, Sec. 13(2).

[43] Local Government Act 2009, Art. 98(1).

[44] Local Government Act 2009, Sec. 98(3).

[45] Local Government Act 2009, Sec. 98(2).

[46] Tiernan Mennen, Lessons from Yambio: Legal Pluralism and Customary Justice Reform in Southern Sudan, Note, Hague Journal on the Rule of Law, 2:218-252, 2010

[47] This is clear from surveys done by the South Sudan Law Society about perceptions and accessibility of the justice system (on file with author).

[48] Douglas Johnson, Judicial Regulation and Administrative Control: Customary Law and the Nuer, 67-68 cf. Francis Deng, Customary Law in the Crossfire of Sudan’s War of Identities, 2006, 29.

[49] Francis Deng, Customary Law in the Crossfire of Sudan’s War of Identities, 2006, 28

[50] The author is indebted to David Deng for this formulation.

[51] USIP 32-33.

[52] Id.

[53] USIP 35 (Suggesting that customary courts in urban settings would be more likely to reference statutes).

[54] The reasons for this resort to alternative dispute resolution are widely discussed. A limit of the chief’s executive enforcement power often creates the chief’s need to generate an outcome that is compatible with the power distribution between the parties and between the “guilty” party and the chief. The monopoly of the legitimate use of force necessary for adjudication in the European or U.S. sense does not exist.

[55] USIP 34

[56] As a member of the executive, this, on the face of things, creates a breach of the separation of powers.

[57] At time of writing, the Counsel General of the Directorate of Legislation was Hon. Laku Loggale Legge, who could be reached at loluwe.lokidden@yahoo.co.uk.