Customary law and authority in a State under construction: The case of South Sudan.

Source: (2012) African Journal of Legal Studies. 5:295-311.

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 ofsociety, 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. (excerpt)