In Search
of a Working
SYSTEM OF Justice
for a New Nation
THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO (Otuho), LANGO
AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
Series 1, Volume 1. Report on the Ascertainment of the Customary Laws
of 14 Communities in South Sudan
2
In Search of a Working SYSTEM OF Justice for a New Nation
Empowered lives.
Resilient nations.
Commissioned by Ministry of Justice (Government of South Sudan), Local
Government Board (Government of South Sudan) and UNDP South Sudan
William Tate Olenasha (International Consultant), Tim Monybuny Williams
(National Consultant), Majok Deng (National Consultant) and Nyuon Ruai
(National Consultant)
2/15/2012
Reviewed by:
Dr. Rowland Cole
Chief Technical Advisor, Ministry of Justice
Amanda Serumaga
Deputy Country Director (Programmes)
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
Table of Contents
LIST OF ACRONYMS
05
FOREWORDS
06
CHAPTER ONE
INTRODUCTION08
CHAPTER TWO
THE CUSTOMARY LAWS OF THE TOPOSA
39
1 FAMILY LAW
41
2 THE LAW OF WRONGS AND OBLIGATIONS
45
3 LAW OF INHERITANCE AND SUCCESSION
49
4 LAND LAW
50
5 PROTECTION OF THE ENVIRONMENT
50
6 AREAS FOR REFORM51
CHAPTER THREE
THE CUSTOMARY LAWS OF THE LOTUKO (Otuho)
1 FAMILY LAW
2 THE LAW OF WRONGS AND OBLIGATIONS
3 LAW OF INHERITANCE AND SUCCESSION
4 LAND LAW
5 ENVIRONMENTAL LAW
6 AREAS FOR REFORM
53
56
58
61
62
62
63
CHAPTER FOUR
THE CUSTOMARY LAWS OF THE LANGO
1 FAMILY LAW
2 THE LAW OF WRONGS AND OBLIGATIONS
3 LAW OF INHERITANCE AND SUCCESSION
4 LAND LAW
5 AREAS FOR REFORM
64
65
68
71
71
72
CHAPTER FIVE
THE CUSTOMARY LAWS OF THE LOPIT
1 FAMILY LAW
2 THE LAW OF WRONGS AND OBLIGATIONS
3 LAW OF INHERITANCE AND SUCCESSION
4 LAND LAW
5 ENVIRONMENTAL LAW
74
75
77
80
80
80
VALIDATION CERTIFICATES
81
BIBLIOGRAPHY
93
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In Search of a Working SYSTEM OF Justice for a New Nation
List of Acronyms
CLC
Customary Law Centre
CLCs
Customary Law Councils
CLSC
Customary Law Steering Committee
COTALs
Council of Traditional Leaders
CPA
Comprehensive Peace Agreement
IDPs
Internally Displaced Persons
LGB
Local Government Board
MOLACD
Ministry of Legal Affairs and Constitutional Development
MoJ
Ministry of Justice
SOLA
SPLM Secretariat for Legal Affairs and Constitutional Development
SPLM
Sudan People’s Liberation Movement
UNDP
United Nations Development Programme
WVSS
World Vision South Sudan
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
FOREWORD FOR ASCERTAINMENT
OF CUSTOMARY LAWS
Anthropological research shows that customary law changes as the culture on which
customary law is founded evolves. While customary law has survived through oral tradition
for centuries, modern societies increasingly prefer to ascertain customary law in order to
foster easy access to such law by those who are not members of the respective communities
or lack knowledge of it for any other reason. Further, traditional communities are no longer
homogeneous due to years of interaction with other communities. Previously, basically
everybody knew what the law of the community was. This is no longer the case. There is a
growing understanding that the legal complexities experienced by urbanization where
various customary laws interact, needs attention. It is against this background that the
Ministry of Justice resolved that all the communities of South Sudan should embark on
projects of ascertaining their respective customary laws.
The documentation of customary law will contribute to the strengthening of the principle of
the rule of law in South Sudan, assist the courts in their application of customary law, and
contribute towards the efforts by the communities themselves to continue in their
commitment to serve as custodians of customary law. It is crucial to our current legal system,
where appeals may lie from the customary courts to the statutory courts. In such a setting, the
verdict of a chief does not necessarily represent the last word. Dissatisfied parties may take
the chief’s verdict on appeal to a statutory court whose judges will not necessarily be familiar
with the customary law of the community from which the case emanated.
The approach used in the ascertainment study is what has come to be known as the selfstatement of customary law. Self-statement of customary law refers to a process of ascertaining
customary law by the owners of the customs to be ascertained, namely the people and the
traditional leaders as the custodians of customary law. The most important element of selfstating is that the end result is a product that the community is required to follow and apply.
The ascertainment study is crucial in light of the fact that the Transitional Constitution of
South Sudan 2011, recognizes customary law as a source of legislation. In this regard,
customary law is relevant not only to customary courts, but also to the statutory courts where
questions of customary law arise. The study will assist the statutory courts in surmounting the
ascertainment of customary law during litigation. Questions surrounding the status of
customary law, whether the courts may take judicial notice of customary law or whether it
should be proved and on what basis, may become unnecessary. This reduces the time spent
on litigation which is a significant progress in our legal system. While this series of
ascertainment study relates to a fraction of the communities in South Sudan, the Ministry of
Justice, in partnership with UNDP, intends to conduct further studies to cover more
communities across the country.
Honourable Jeremiah Swaka Moses Wani
Undersecretary, Ministry of Justice
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In Search of a Working SYSTEM OF Justice for a New Nation
FOREWORD FOR ASCERTAINMENT
OF CUSTOMARY LAWS
South Sudan operates a dual legal system wherein a formal legal system operates side by side
with the customary legal institutions. While South Sudan strives to build a common law legal
system, the customs and traditions of the people remain compellingly relevant. Following the
signing of the Comprehensive Peace Agreement in 2005, the people of South Sudan have
pursued efforts to build legal institutions and a justice system that are founded on the values,
traditions and identity of the South Sudanese people. The importance of customary law is
reflected in the founding documents and laws of South Sudan. The Interim Constitution of
Southern Sudan identified customary law as law and a source of legislation, and this
recognition was preserved by the Transitional Constitution of South Sudan. In addition, several
statutes including the Local Government Act of 2009, the Judiciary of Southern Sudan Act of
2008, the Ministry of Legal Affairs and Constitutional Development Act of 2008 and the Codes
of Civil and Criminal Procedure, lay out a framework for the operation of customary courts and
how they complement the statutory justice system.
Traditional leadership plays a pivotal and vital role in relation to the administration of justice
and is part of the cultural heritage of the people. Customary law has existed since time
immemorial and a large number of people who live in traditional communities subscribe to
the principles of customary law. The personal lives of the majority of South Sudanese is
governed by customary law, whether be it in the area of crime, marriage, land tenure and
transaction, marriage or inheritance. Having emerged from decades of civil war and the
concurrent dislocation of the various tribes through the militarization of communities and
forced displacement among other things, it is important that the substantive content of our
customary law be reinforced. There is no better way of doing so other than by the
ascertainment of the customs and traditions of the various tribes of South Sudan. Therefore,
this ascertainment study could not have come at a better time.
Honourable David Koak Guok
Chairperson, Local Government Board
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
CHAPTER ONE
1
INTRODUCTION
8
In Search of a Working SYSTEM OF Justice for a New Nation
1 BACKGROUND
South Sudan, the world’s youngest nation, attained independence on the 9th July 2011.
Independence came after a long period of struggle by the people of South Sudan, who fought
for more than twenty years to protect their identity, culture, freedom and dignity. They finally
triumphed over attempts to impose Islamic law and religion and Arab culture on them. Like all
wars of this nature, freedom did not come without a price. Precious lives were sacrificed,
people were displaced, valuable properties were lost and critical State functions were brought
to a standstill. The post-independence period, therefore, presents an uphill task for the people
of South Sudan and the international community in relation to post-war reconstruction and
the building of a functional State apparatus capable of ensuring lasting peace, democracy
and prosperity.
Machineries of State and law enforcement were rendered ineffective by the war. However, the
long established customary laws of South Sudan withstood the challenges posed by the war.
During the war, customary law was crucial in resolving several disputes. Presently, customary
law regimes handle the vast majority of disputes in the country. The development of modern
law institutions and other systems of governance are still at their infancy.
The international community, including various organizations of the United Nations, has been
engaged in assisting the young nation to deliver basic services to its citizens. Such assistance
includes establishing effective and efficient systems at all levels of Government. Significantly,
the United Nations Development Programme (UNDP) assists the new Ministry of Justice (MoJ)
to put in place the relevant institutional framework for ensuring timely justice for all. In
recognizing the vital role that customary law plays in the dispensation of justice, UNDP
supported the MoJ to develop a customary law strategy that was approved by MoJ in 2009.
Closely connected with this, is the development of a customary law centre (CLC) which will,
among other things, serve as a repository for the vast knowledge and information of the
customary laws of the different communities in South Sudan.
The ascertainment of customary law represents an important part of the support provided by
UNDP to MoJ and the Local Government Board (LGB) through its Access to Justice and Rule of
Law Project.
1.1Objectives
The Ascertainment of Customary Law Project will consist of a series of ascertainment studies
of the various communities in South Sudan. It has three broad objectives which are closely
interlinked:
◆◆ T o document current customary law practices which may have changed or
adapted over time given the decades of conflict and the displacement of
communities due to the civil war that has plagued South Sudan and its
population.
◆◆ T o harmonize the different customary laws of various communities so as to
ultimately have in place a coherent customary law regime in South Sudan.
◆◆ T o propose and recommend reforms necessary for achieving a customary law
regime which is in line and resonates with internationally recognized
standards of justice, the rule of law and human rights.
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
This is the first of a series of ascertainment studies that the UNDP intends to support. The
study relates to the ascertainment of the customary laws of 14 communities and is reported in
3 volumes. The communities covered are the Azande, Toposa, Lopit, Lango, Lotuko, Jur-bel,
Avukaya, Moru, Ndogo, Mundari, Wadi, Balanda Bivri, Baka and Bongo. Of the three volumes in
this series, this volume relates to communities covered in Eastern Equatoria state. The second
and third volumes relate to selected communities found in Western Bahr el Ghazal state, Lakes
state, Central Equatoria state and Western Equatoria state.
2 THEORETICAL ANALYSIS
To understand the context in which the ascertainment of customary law has been undertaken,
it is necessary to preface the inquiry with a theoretical analysis of some important concepts
about customary law. Consequently, concepts like customary law and ascertainment of
customary law will be defined. The advantages of customary law vis-à-vis statutory law will
also be presented. Finally, the theoretical analysis will interrogate an important debate
surrounding the pitfalls and advantages of ascertaining customary law.
2.1
What is Customary Law?
There is little controversy in relation to the definition or description of customary law. That
having been said, there are several definitions of customary law.
The word ‘custom’ is important to any definition since customary law originates from custom.
Customary law is an embodiment of rules originating from the customs and traditions of a
given group of people who have willingly accepted those rules to guide their conduct. This
position is captured succinctly by T.W. Bennet as follows:
‘Customary law can be regarded as a set of norms which the actors in a social
situation abstract from practice and which they invest with binding authority.’
(Bennet, 1991:5).
The above definition shares the same substance with a more recent definition by Justice Aleu
Akechak Jok and others who note that:
‘…the term “customary law” as it applies to Africa in general and Sudan in particular
refers to the body of traditions, social conventions and rules that through long
usage and widespread acceptance direct and govern traditional African society.
Customary “law” therefore is as much social convention as it is legal protocol.’
(World Vision, 2004:11).
Customary law is also often defined in relation to statutory law and common law. The British
system of indirect rule resulted in a dual legal system, wherein customary law operated side
by side with the received law in so far as it did not interfere with the colonial project, or run
contrary to the British sense of justice. In this vein, customary laws were allowed to operate
only in so far as they were not ‘repugnant to natural justice, equity or good conscience.’ (Allot,
1957:245). This approach was applied to the Anglo-Egyptian condominium in Sudan, where in
respect of customary law, the Civil Justice Ordinance of 1929 was clear that:
10
In Search of a Working SYSTEM OF Justice for a New Nation
‘The Chiefs’ Court shall administer the Native Law and Customs prevailing in the
area over which such Court exercises its jurisdiction provided that such Native Law
and Custom is not contrary to justice, morality or order.’ (Section 7 of the
Ordinance). Cited in (World Vision, 2004: 14).
The British imposed their culture, traditions and laws on their colonial subjects. In what can
only be seen as a civilizing mission, it becomes clear that it was assumed that the British legal
and cultural norms were superior. Therefore, customary practices could only be recognized as
law, if they were not repugnant to British standards of good conscience and morality.
(Pimentel, 2010a:2). This attitude is vividly demonstrated by the Privy Council’s dictum in Re
Southern Rhodesia, (D M Trukek 1972 Wis. L.R. 730) when the court stated that:
‘Some tribes are so low in the scale of social organization that their usages and
conceptions of rights and duties are not to be reconciled with the institutions or the
legal ideas of civilized society.’
Somehow, post-colonial legislation in Africa has retained British standards of customary law,
opting to remove the more provocative words, and substituting them with more friendly
ones. The Customary Law Act (Act 51, 1969) of Botswana defines customary law in relation to
any particular tribe or tribal community as ‘the customary law of that tribe or community so
far as it is not incompatible with the provisions of any written law or contrary to morality,
humanity or natural justice.’ (Section 2, Customary Law Act of Botswana).
The post-colonial situation in Africa was generally dominated by attempts to reconcile
customary law with the statutory or general legal system. In the 1970s, several African
countries passed legislation regulating customary law with the general law.
In some contexts, the assertion of customary law appears to be stronger. This is especially so in
countries that went through long periods of struggle against imposed laws and cultures. The
situation in the newly independent South Sudan is a good example of this. In South Sudan,
customary law and its assertion, has symbolic values. It is more than just law. The assertion of
customary law is the restoration of the people’s pride in African culture and traditions. It stands
as testimony to what the people of South Sudan fought for. According to Ambrose Thiik:
‘Customary Law is a manifestation of our customs, social norms, beliefs and
practices. It embodies much of what we have fought for these past twenty years. It is
self-evident that Customary Law will underpin our society, its legal institutions and
laws in the future.’ (Cited in World Vision, 2004:7).
2.2
What is Ascertainment of Customary Law?
Ascertainment comes from the verb to ‘ascertain’ which means to determine, establish,
discover, find out, learn or make certain. The use of the word acquires a different meaning
when used in a legal context.
In the legal context, ascertainment of customary law is a process by which the existence of
customary law is given formal legal recognition. In the British colonial courts, the
ascertainment of customary law was a process whereby the courts required the verification of
the existence of the customary laws of the people of its colonies. The customary laws of these
communities were not treated as law in British courts, but rather, as factual evidence which
must be proved like any other facts in a court of law. The rule was to the effect that, in England,
11
THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
‘any local custom at variance with the law of the land should be proved by the party alleging
that it is fair and reasonable; and similar considerations might be seen as relevant in Africa,
since customary law derogates from the general law as applied by courts...’ (Allot, 1957:246).
In short, the ascertainment of customary law in the legal sense, deals with matters of evidence
for a party who alleges the existence of a customary law and wants a court or tribunal to take it
into consideration when making a decision. So, in a strict legal sense, ascertainment of customary
law does not necessarily mean recording or putting customary law into writing. Ascertainment
can be done orally. A better summary of this is presented by Professor Manfred Hinz:
‘...As useful as records...may be and as much as they may potentially contribute to
the ascertainment as evidence a court may or may not rely on, they remain mere
aids to a possible subsequent ascertainment...in the legal sense.’ (Hinz, 2010:5).
2.3How is Customary Law Ascertained?
The manner of ascertainment of customary law, though not contested, is usually prone to
confusion. This is mostly due to the fact that ascertainment is often confused with codification
or putting customary law into written form.
The ascertainment of customary law traces its origins to British colonial rule. Having
recognized that their subjects were mainly governed by customary law, the next task was to
decipher, from a system of unwritten norms, which customary practices had achieved binding
status for the purposes of the colonial courts. This was not an easy task since the customary
laws of the subjects was foreign and alien to British judges. The difficulty was also compounded
by the fluid nature of customary law and the fact that it was mostly transmitted orally and not
available in written form. A few other factors compounded the difficulty, as observed by a
respected English jurist:
‘...the difficulty experienced by a court in finding out, and then applying, the
customary law applicable to a case before it flows partly from the multiplicity of
different tribal laws (varying widely from tribe to tribe), partly from the uncertainty
regarding the limits of operation of customary law in competition or conflict with
English law or, where prevalent, Islamic law, and partly from the fluid nature of
customary law itself. The rules of customary law were, in the past, generally not as
certain as the courts would now like them to be; the object of many customary legal
proceedings was negotiation leading to compromise and reconciliation of parties
rather than the rigid application of rules to facts...’ (Allot, 1957:244-5).
English courts struggled for years to find a way of ascertaining customary law. Consequently,
two methods were developed and became the recognized practice. The first method was laid
down in the former Gold Coast (now Ghana) case of Bonsi v Adjena, ((1940) 6 W.A.C.A. 241) by
the then West African Court of Appeal, which adopted the provisions of the rules of the
Supreme Court of the Gold Coast, which provided to the effect that:
‘In all cases in which the party pleading relies upon a native law or custom, the
native law or custom relied upon shall be stated in the pleading with sufficient
particulars to show the nature and effect of the native law or custom in question
and the geographical area of the tribe or tribes to which it relates.’ (Supreme Court
(Civil Procedure) Rules, Ord, 19 r. 31).
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In Search of a Working SYSTEM OF Justice for a New Nation
The second method of ascertaining customary law was by the calling of witnesses to court to
verify the existence of alleged customs. This method was enunciated in the famous Gold Coast
case of Angu v Atta, ((1916) Gold Coast Privy Council Judgments, (1874-1928), 43) where their
Lordships at the Privy Council stated that:
‘As is the case with all customary laws, it has to be proved in the first instance by
calling witnesses acquainted with the native customs until the particular customs
have, by frequent proof in the courts, become so notorious that the courts will take
judicial notice of them.’ (Ibid, :44).
English jurisprudence on ascertainment of customary law, especially as developed through
case law, has managed to find its way into the Acts of Parliament of various independent
African States. The best example in this regard, is the Customary Law Act of Namibia (Act 51 of
1969) which provides the following in respect of the ascertainment of customary law:
‘If any court entertains any doubt as to the existence of or content of a rule of
customary law relevant to any proceedings, after having considered such
submissions thereon as may be made by or on behalf of the parties, it may consult
reported cases, textbooks and other sources, and may receive opinions either orally
or in writing to arrive at a decision in the matter:
Provided that i.
T he decision as to the person whose opinions are to be consulted shall be
one for the court, after hearing such submissions thereon as may be made
by or on behalf of the parties;
ii. A
ny cases, text books, sources and opinions consulted by the courts shall be
made available to the parties;
iii. A
ny such oral opinion shall be given to the court in the same manner as oral
evidence’ (Section 11 of the Act).
2.4Codification and Ascertainment
Ascertainment of customary law is often confused with codification. This is because both
concepts tend towards reducing customary law into writing. While this is the case, the end
product of both codification and ascertainment is different. Ascertainment merely reduces
customary law into writing and does not involve law making. Conversely, codification is a law
making process wherein customary law is written and passed into law by a competent
authority. According to Hinz, codification transforms customary law into an Act of Parliament
hence segregating it from local communities. (Hinz, 2010:5). In reality though, codification,
being a law making process is, besides Parliament, a preserve of a multiplicity of actors. If
Parliament is interpreted more broadly to include other law making bodies, then the
secondary legislation of local governments and traditional authorities, could, in a way, amount
to codification. (Horn, 2011:134).
Customary law is normally codified because of a general perception that law becomes more
law when it is written. In Africa, the tendency of reducing customary laws into writing seems
to have been influenced by the advent of colonial rule that witnessed the introduction of
modern day legislative practices which involve the enactment of laws in written form. This
practice is, however, not justified because writing does not make law more law or even
superior law. According to Hinz:
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
‘African customary law systems have survived thousands of years as orally
transmitted systems of law. They will not become “more” law or law-like by being
codified. Common law has survived history and remained a highly valued system of
law without being codified. Why, then argue as lawyers do, that African law must be
codified?’ (Hinz, 2010:4).
2.5Restatement of Customary Law
Any reduction of customary law into writing, which is different from codification, has come to
be associated with restatement of customary law. This aspect should not be confused with
proving the existence of customary law for evidentiary purposes in court, which is the original
meaning of the term ascertainment. Due to this possible confusion, another term has come to
the fore - restatement of customary law. Restatement is defined as follows:
‘Restatements were authoritative, comprehensive, careful and systematic
statements of common law rules in such fields as torts, contracts and property.
Necessarily cast in semi codified form, they were still not codes, as they lacked the
force of legislated law. Instead they were the most accurate and precise statements
of what those producing them had concluded were the main principles and rules as
evolved by the courts, and as such, courts and practitioners alike could turn to them
as guides.’ (Hinz, 2010:6).
Restatement projects were common in Africa in the 1970’s, when African countries took
immediate measures to record their customary laws. Restatement of customary law is to some
extent, related to codification and the ascertainment of customary law. This is because,
through restatement, customary law is reduced into writing, in a format that is close to
codification but short of any legislative force. At the same time, restatement provides the best
reference and evidence of the existence of customary law.
2.6
Self-Statement of Customary Law
Closely related to ascertainment is self-statement of customary law, a situation where, it is the
communities themselves that take the task of recording or writing their customary laws. Hinz
is clear on this when he states as follows:
‘Self-stating customary law refers to a process of ascertaining customary law by the
owners of the law to be ascertained: the people, the community, the traditional
leaders as the custodians of customary law...’ (Hinz, 2010:6).
The most important element of self-statement of customary law is the fact that it is the
communities that take both the decision to put their law into writing and the actual task of
doing it. According to this methodology, local communities have the freedom to choose which
areas of their laws should be put into writing and which areas should be left out. They also have
the privilege of amending their recorded laws whenever they deem it necessary to do so. (Hinz,
2010:7). Since it is the communities that select the methodology as well as the actual recording
of their laws, the product may not match the technical elegance of modern day legal drafting,
but the product remains law nonetheless. Hinz sums this up very eloquently:
‘Legislative drafting has developed into a very sophisticated art in modern
jurisdictions. However, the reader of the self-stated laws should not expect that
14
In Search of a Working SYSTEM OF Justice for a New Nation
these laws follow the sophisticated techniques of modern legislative drafting. In
many instances, the self-stated customary laws give educative explanations or even
state rather than [provide] general societal aspirations - a fact which will be a
challenge to interpretation! As the self-stated laws are owned by the community,
the community has authority to amend it. Self-statement may be seen as
approximating codification, but self-statement is certainly not the codification by
organs of the state. Such community – effected codification – if someone wants to
call it codification is subject to amendments by the community and does not replace
unwritten living law.’ (Hinz, 2010:7).
Self-statement of customary law has recently been undertaken in 17 communities in the
north, central and north eastern parts of Namibia.
The approach used for the ascertainment of customary law in South Sudan draws from the
Namibian experience. This can be explained by the fact that the author of the Customary Law
Strategy for South Sudan, Hinz, was the facilitator of the ascertainment study in some
communities in Namibia. According to the Customary Law Strategy for South Sudan, selfstatement is the preferred approach of ascertainment.
2.7Advantages and Disadvantages of Customary
Law vis-a-vis Statutory Law
Customary law is often discussed in comparison with statutory law.
Advantages of Customary Law
First, customary law and its institutions make justice affordable to many poor people who
would otherwise not be able to access formal law. In modern judicial institutions, laws are
often-times beyond the reach of the common man, to the extent that they have to hire experts
to speak for them. In traditional justice mechanisms, everybody is an expert and can defend
and represent himself/herself in a customary court. (Kane et al., 2005). Besides, customary law
institutions are normally situated where the majority of the people are (in rural areas) and
hence do not need to incur expenses to travel over long distances to access justice in modern
law institutions, which are located mainly in urban areas and centers of administration.
Furthermore, customary courts provide affordable justice to the poor and are expedient since
its procedures are simple unlike formal courts which have complex procedures, thereby
making them inaccessible. This reality is no less true in South Sudan. As Pimentel observes:
‘Access to justice is also good. Filing fees, when charged at all, are very low. A bailiff
may collect a minimal fee from litigants immediately before they make their case.
The system operates without lawyers, and transportation is not an issue as the
customary courts are located in [the] communities they serve.’ (Pimentel, 2010:15).
Second, customary law institutions are more easily accessible for the parties, as the language
used is often that of the local community which is understood by everybody. In the formal
judiciary, language is often a barrier to accessibility. Moreover, statutory law is normally
captured in technical language and in a format which cannot easily be accessed by nonlawyers. Owing to intricate and formalized procedures in modern courts, litigants are usually
terrified when they appear in such courts. A Tanzanian Judge, the late Justice Mapigano, had a
better way of capturing this scenario:
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
‘A full blown judicial trial takes a long period to come to an end. It is attended by
substantial expenses which many a litigants cannot afford. It is also costly to the
judiciary. The decision to the dispute is imposed by a stranger, the judge or the
magistrate. In the case of the judge, he appears to the parties and the witnesses to
be unusually garbed, impassive and distant in more than one sense. The range of
reliefs the judge or magistrate can give in a particular situation is by law restricted.
Ordinarily, the proceedings are held in open court where the atmosphere can be stiff
and charged. The language is sometimes unintelligible to the common man. Little
wonder that many a litigant become ill at ease, bewildered or utterly upset. It is not
surprising therefore that a woman in the witness box would forget the name of her
husband.’ (Mapigano, 1998:4).
Third, customary law ensures speedy access to justice. The rules of procedure, evidence and
pleadings are often relaxed and hence the parties are saved enormous amounts of time that
they would have had to bear in formal judicial proceedings.
Fourth, the law that is applied in customary law courts is normally relevant to the particular
situation of the litigants. Formal law is often derived from foreign law, mostly the result of
colonialism and hence the receivers relate negatively to what is seen as the law of the oppressors.
Many African countries, including South Sudan, have inherited the laws of their former colonial
masters. Statutory law is often irrelevant to the litigants and often times ‘old’ and ‘obsolete’. An
extreme example of this is the case of Sierra Leone, where ‘...English laws dating back as far as
1677 are still applicable in Sierra Leone despite the fact that even in England many such laws
have either been updated or struck off the statute books.’ (Kane et al., 2005:11).
Fifth, customary law and institutions are resilient and can withstand conflicts, wars, disasters,
and political tremors. This is because the internal logic and spirit of customary law lies with
the people bearing the said custom. Formal legal systems of law are often vulnerable to
shocks and instability and often cease to function the moment the State fails to discharge its
legal functions or ceases to exist altogether. In South Sudan, customary law and its institutions
withstood more than 20 years of civil war. Customary law is the major source of justice in
South Sudan and up to 90% of all disputes are instituted and settled in customary law courts.
(World Vision, 2004:4; Chivusia & Gordon, 2006:9).
Sixth, customary law is flexible in character. This gives customary law an edge over statutory
law. In customary courts, flexibility is used by the ‘judges’ to arrive at decisions which are
desirable and affordable to the litigants. The goal posts will always be shifted to accommodate
positions which are desirable to the parties. Thus, whereas statutory law is rule based,
customary law is situation specific and forms the basis for negotiated justice.
Finally, the biggest strength of customary law is its restorative and peace-making functions. In
contrast to formal law which is mostly characterized by adversarial elements, customary law
tends to encourage consensus building which is important to sustain amicable relations
between members of local communities. A report sums this in a very telling way:
‘African dispute resolution has been described as placing a premium on improving
relations on the basis of equity, good conscience and fair play, rather than the strict
legality often associated with western justice.’ (World Vision, 2004:17).
In post-conflict jurisdictions like South Sudan, peace-building is a very important function of
the legal system. The customary law system is relevant due to its non-adversarial and nonconfrontational character.
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In Search of a Working SYSTEM OF Justice for a New Nation
Disadvantages of Customary Law
Besides the obvious advantages, customary law and its institutions suffer intrinsic limitations.
The first limitation arises from the flexibility of customary law systems. Flexibility means that
the outcomes of customary law processes are unpredictable. Since they are not based on any
objective criteria, it is difficult to say what the law is and what the law is not. This flexibility
makes customary law particularly prone to abuse, misdirection and elite capture. Flexibility
also has the disadvantage of making it difficult to know when corruption has played its way
into the flexible decision of a customary law tribunal. While communities have faith in
customary law courts, there is nothing inherently pure about them to warrant incorruptibility
in a world that is largely characterized by corruption in all walks of life.
A major setback of customary law systems is their non-alignment to human rights. Customary
law is often seen to be in utter disregard of a variety of human rights that are provided in
international and regional human rights instruments. A common theme running through the
arguments of those making the observation is that customary law systems perpetuate the
dominance of patriarchal regimes which subordinate women to a lower status in the society.
(Pimentel, 2010:9). Besides women, customary law is also said to disregard the rights of other
vulnerable members of the community like children and minorities.
Customary law and custom are generally seen by the international human rights community
as the leading cause of human rights violations against women. Accordingly:
‘The Human Rights Committee (HRC) notes that inequality in the enjoyment of
rights by women is often deeply embedded in tradition, cultures and religion, so that
many frequently occurring violations of women’s human rights have their origin in
social custom, belief or practice rather than (or as well as) state law, and are
perpetrated by individuals and social groups rather than the state...’ (Danish
Institute of Human Rights, 2010:134).
A brief perusal of some of the customary laws of the communities of South Sudan will bear
testimony to the overwhelming degree to which they can depart from human rights law,
especially in respect of the rights of women. Wife beating, for example, which has been
condemned globally as one of the worst practices against women, is still tolerated and
sanctioned by the customary law regimes of South Sudan. In a recent case, a customary law
court ruled that in Dinka customary law, wife beating is allowed. A summary of this case is
reproduced here for ease of reference:
‘Case 2
Date: 4/2/08; Malual Bap Customary Court, Rumbek Central County. On this day there were 63
men and 4 women at the court. Two cases were heard one was GBV. In this case a wife, 26 years
old, brought a case against her husband, 40 years old, for beating her. Both are Dinka. The
woman refused to cook food for the husband and told him to “go find his own water.” The man
was insulted and beat her with a stick. He stated to the court, “when you beat her properly she
will listen to you.” The chiefs found that Dinka customary law supports beating your wife if she
threatens you. The chiefs ordered a punishment of thirty lashes to the woman in order to respect
her husband. The woman did not agree with the court’s decision’. (In Mennen, 2010:232).
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
Another typical example of the anti-human rights provisions of the customary laws of South
Sudan is in relation to the currency of compensation in customary law disputes. In many
communities of Eastern Equatoria for example, the girl child is often used as a currency of
compensation in murder cases. The family of the offender in a murder case will often be
required to ‘pay’ a girl child to that of the deceased family as a means of settling the dispute.
This practice, much as it is good in settling disputes peacefully, is a serious affront to the
human rights of the girl child who is reduced to a mere object of dispute resolution more or
less like animals or money which are used for the same purposes.
Another significant weakness of customary law is its discriminatory tendencies. Customary
law tends to favour the old and the male gender. This is not surprising because the custodians
of the customary law are mostly elderly men. In South Sudan, it is very rare to find chiefs who
are women and even when this does happen, they are not accorded the same respect by the
society as their male counterparts. A typical example of this is given from Sierra Leone, a
country that is similar to South Sudan in more ways than one, given the fact that it has just
emerged from a civil war:
‘...Customary law tribunals and their procedures and processes remain
discriminatory. They are gerontocratic, or tend to favour the disputant who is older,
which greatly alienates youths from its adjudicating processes. In criminal cases, the
majority of accused persons are youth and most of the cases against them involve
“woman damage”- with husbands (mostly elders) demanding compensation from
alleged lovers (mostly younger males) of their wives. The systems are also patriarchal
or tend to favour male disputants. This is especially the case with marital disputes.
These disputes are mostly settled in ways that would make a husband “not lose
face,” even where he is openly wrong, a consideration that is rarely accorded to
women. It is interpreted as better for a woman rather than her husband to “lose
face.” Thus, whilst a woman may be reprimanded in front of her husband, the reverse
is exceedingly rare.’ (Kane et al., 2005:14).
A further disadvantage of customary law relates to the right of appeal for parties that are
aggrieved by decisions of customary law tribunals. As decisions are not recorded, appeals may
be a very daunting task. A litigant who intends to appeal against the decision of a customary
court is faced with the fact that there are no records on which to base his/her appeal. Similarly,
in the absence of records, an appellate court will be forced to second-guess the proceedings
of a subordinate tribunal. (Kane et al., 2005:3).
The lack of written records presents further difficulties. This makes it frustratingly difficult to
monitor the decisions of customary law tribunals. It is also difficult to establish the consistency
of the decisions of customary law courts. (Kane et al., 2005:13).
2.8
Is Ascertainment of Customary Law Desirable?
Another matter that has attracted comment and debate is whether it is desirable to ascertain
customary law in South Sudan. Authors are divided between those who think that ascertainment
is desirable for the development of customary law and those who are strongly opposed to it,
saying among other things, that it will stifle its development and natural applicability.
Those who support ascertainment do so mostly on the grounds that reducing customary law
into writing will make it easy for the laws to be known not just by the community using it, but
also for outsiders who may from time to time be required to abide by them in ordinary social
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In Search of a Working SYSTEM OF Justice for a New Nation
interaction. It is one of the cardinal principles of the rule of law that all laws must be certain, as
uncertainty easily leads to arbitrariness. Hinz sums up this position very well when he states:
‘The rule of law – of the fundamental constitutional principles upon which Namibia
is founded as a state – demands, amongst other things, that law should be certain
and be ascertained in advance by the persons to whom it relates so as to be
predictable and allow them to regulate their affairs in conformity therewith.
Without books or other written instruments recording the customary law applicable
to the different traditional communities in Namibia, their tenets remain locked in
the minds and pronouncements of those who claim to know...’ (Hinz, 2010:i).
Besides, for courts (other than customary tribunals) to adjudicate on matters of customary law
through appeals, they must know and have at their disposal the customary laws in some certain
form. Closely connected with this argument, is the fact that customary law needs to change and
be re-aligned to conform to universally accepted standards of law, human rights and principles
of natural justice. This requires the articulation of customary law in written form.
Those who argue against ascertainment, do so on the basis that it will destroy the flexible
characteristic of customary law. The recording and ascertainment of customary law has the
potential of limiting the flexibility of courts while adjudicating matters brought to them.
(Leonardi et al., 2010:73). Flexibility is what actually defines customary law and this stands to
be shaken when it is reduced to some fixed rules on paper. Unwritten customary law rules
often lead to negotiated justice whereas written rules tend to reduce the possibility of
negotiations since it is the existing facts which are related with the rules and decisions given
on the preponderance thereof. As one expert has put it, rules might be the language on which
disputes are argued, but they do not determine their outcome. (Oomen, 2005:2010). A good
example of this applies to remedies provided in customary law, which on the face of it may
appear to be fixed, but in reality, are just indicative of possible remedies. In practice, remedies
provided will depend on the negotiation that will take place in court. This point is ably
illustrated by Allot as follows:
‘...the object of many customary law legal proceedings was negotiation leading to
compromise and reconciliation of the parties, rather than the rigid application of
rules to facts. The “rules” of customary law - e.g., that a wound should be
compensated by the payment of so many cattle, often set a standard or provided a
talking point...’ (Allot, 1957:245).
Those who espouse this position argue further that, putting customary law into writing
actually transforms customary law into something else. Thus, the moment it is put into writing;
it ceases to be customary law. Leonardi and others capture this paradox in no uncertain terms:
‘The paradox that the nature of customary law creates for the general idea of
ascertainment should be apparent. If customary justice is based on the flexible
negotiation of laws and principles in the individual context of each case, how can
its essential nature be captured in written form? The justification for ascertainment
is premised on the need for certainty, consistency and predictability. Yet this is
actually the reverse of what defines customary law as currently practiced in local
courts.’ (Leonardi et al., 2010).
Two sets of authors have distinguished themselves for either supporting or opposing
ascertainment of customary law. These are the writers of the World Vision report of 2004 and
Leonardi et al. A summary of both positions is given in the following box.
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
ARGUMENTS FOR ASCERTAINMENT
(World Vision Report)
ARGUMENTS AGAINST ASCERTAINMENT
(Leonardi et al.)
»» The huge population shift both out of
and within the regions of South Sudan
has brought peoples of different customs
and practices in close contact with each
other (this trend is set to increase as
refugees return from abroad). The
consequence has been a marked increase
in conflict between differing customary
law systems. The lack of formal written
codes of law has both increased the
complexity of the courts’ tasks and made
the process of reconciliation amongst
parties, who more often than not, are
ignorant of their respective customary
laws, more difficult.
»» If customary law is to continue to thrive
in South Sudan it must be included
within the domain of the judiciary.
Judges at every level must have at least
equal access to, and knowledge of the
body of a particular customary law code
as they do to domestic statutory law or
any other body of law. It is hard to
imagine how this can be achieved unless
it is in an easily accessible and written
form.
»» It is clear that the customary law systems
of South Sudan will, in the future, have to
be reconciled on a frequent basis with
other bodies of law, particularly: domestic
statutory law, Sharia law, international
humanitarian law and, at least in the
short term, military law. All these bodies
of law are to be found in written form. A
written form of customary law would be
better understood by external
organizations and enable a closer
harmony between the various bodies of
law.
»» The appeals court process already has the
effect of causing individual customary
laws to be reduced to writing when
higher court judges make decisions.
Rationalizing precedent law with
customary law would be much more
effective where bodies of law are already
written.
»» Current justice reform strategies to create
more clarity and uniformity, at least on
paper, through stricter jurisdictional
limitations and the ascertainment of
customary law, may reduce litigants’
abilities to achieve justice.
»» Attempts to reduce customary law to a
written set of rules and sanctions run the
risks of:
»» Undermining the essence and perceived
fairness of customary justice by curtailing
its flexible negotiation of laws and
principles in the context of individual
cases, which is a constitutive feature of
the existing system and has kept
customary law apace with South Sudan’s
rapidly changing social and economic
environment;
»» Politicizing ethnic difference by
encouraging the idea that each ethnic
group should have its own legal system
and defend it against others;
»» Privileging certain informants and elites
in the process of ascertaining a
community’s laws; their version of the law
is then enshrined and perpetuated,
diminishing the voice of women and
youth, who can at present more
effectively contest customary law in court
than in formal community meetings.
»» It is impossible to capture living
customary law in writing, because it is
negotiated, relational, situational, and
context-specific. All that can be recorded
is (certain) peoples’ ideas as to what their
laws are, were, or should be.
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In Search of a Working SYSTEM OF Justice for a New Nation
3 CONTEXTUAL ANALYSIS
To be able to appreciate the context in which the ascertainment of customary law was
undertaken, it is important to establish the legal context (in historical and contemporary
perspectives) in which it operates as well as to trace the history of other ascertainment
projects which have a bearing on customary law in South Sudan.
Historical Background to the Legal Framework of Customary
Law in South Sudan
The legal framework of customary law in South Sudan has evolved with the history of the
country. Throughout its history, the country has undergone several phases of political control
with each phase having a distinctive legal framework which impacted on customary law. The
different historical epochs have helped to shape the nature of customary law today. The
customary laws of communities in South Sudan have interacted with the official government
laws of different periods which have influenced what constitutes customary law today.
Therefore, the present customary laws of South Sudan are not in their pure form. They have
been influenced by statutory law and Islamic law which were applied in South Sudan during
various eras in the country’s history. Consequently, the present court system is a reflection of a
blend of customary, Islamic and statutory laws. Leonardi et al., sum up this situation succinctly.
In their words:
‘At the local level, the boundaries between customary chief’s courts and Government
courts – and between customary and statutory law are blurred. A legacy of colonial
and post-colonial government policies, the local government system functions as a
loosely governed unitary system, which incorporates legal principles and practices
from both statutory and customary law. It is characterized by hybridity, mutability,
by an amalgamation of principles and procedures rather than a clear distinction
between separate legal spheres.’ (Leonardi et al., 2010:5).
The following table summarizes the different legislative developments which have impacted
on the development of customary law.
3.1The Evolution of Customary Law Related Legislation
in South Sudan
Historical Period
Milestone Developments
Pre-1820
Customary laws of different communities were in force and intact.
1820
Egyptians invade Sudan, starting to exert influence on customary law,
thereby marking the beginning of the ‘adulteration’ of customary law.
1902
The Mohammedan Law Courts Ordinance was passed and made
applicable to Sudan (including then Southern Sudan) on a range of
personal matters, including, marriage, divorce, wakf, succession, wills,
etc.
Continued next page…
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
Historical Period
Milestone Developments
1929
The passing of the Civil Justice Ordinance 1929 marked the beginning
of the official recognition of customary law and customary law
institutions.
1931
The Chiefs Courts’ Ordinance was enacted. It recognized the jurisdiction
of chiefs to determine matters according to customary law.
1977
The People’s Local Courts Act 1977 repealed the Colonial Chiefs Courts
Ordinance but without altering in any great detail, the recognition of
the jurisdiction of chiefs over customary law.
1983
The famous ‘September Laws’ of 1983 introduced and made sharia law
applicable in the whole country and further subordinated customary
law to external law. This ignited the second liberation movement in
South Sudan.
1984
The Sudan People’s Liberation Movement (SPLM) enacts a code of
procedures and penal code of general application. These codes were
different from the ones that were applicable to the army. These laws
also recognized the applicability of customary law in liberated areas.
1994
The SPLM repeals the 1984 laws.
2003
The laws of the New Sudan were enacted in 2003. These laws included
the Civil Procedure Act, the Code of Criminal Procedure and the Penal
Code. All these contained specific provisions which recognized
customary laws.
2005
The Comprehensive Peace Agreement (CPA) is signed ushering a new
era of recognition of customary law.
2005
The Interim Constitution of South Sudan is passed recognizing
customary law among the sources of law.
2008
The Judiciary Act is promulgated, establishing the Payam Courts as part
of the judiciary. Judges in the newly established Payam Courts are
supposed to be law graduates.
2009
Local Government Act is passed and it recognizes customary law as one
of the sources of law. The Act further establishes customary law courts
at the levels of the boma, payam and county.
2011
South Sudan gets its independence. The Transitional Constitution of
South Sudan is passed, reaffirming customary law as one of the sources
of law of the country.
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In Search of a Working SYSTEM OF Justice for a New Nation
3.2The Operation of Customary Law Courts: Between Law and
Practice
The Local Government Act provides the legal framework for the operation of customary law
courts.
Establishment of Customary Law Courts
The Local Government Act establishes customary law courts with different jurisdictions as
provided in the table below:
Customary Law Court
Material Jurisdiction
Geographical Jurisdiction
‘C’ Court - the Paramount
Chiefs Court
»» Appeals against decisions
of ‘B’ Courts
»» Cross cultural civil suits
»» Criminal cases of a
customary nature that are
referred to it
County
‘B’ Court - Chiefs Courts
or Regional Courts
»» Determine appeals from
‘A’ chiefs’ courts
»» First court of instance
when it comes to major
customary law disputes
»» Suits of marriage
»» Divorce, adultery
»» Inheritance
»» Children rights
»» Women rights
»» Customary land disputes
Payam
‘A’ - Chiefs Courts or
Executive Chiefs Courts
»» Family disputes
»» Traditional feuds
»» Marriage suits
»» Local Government
Boma
Town Courts
»» Same jurisdiction and
level with ‘A’ chiefs Courts
»» Administrative cases
»» Customary civil suits
Town Councils
23
THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
The hierarchy of customary courts is presented in the diagram below.
‘C’ Courts or
Paramount Chiefs
Courts
‘B’ Courts or
Regional Courts
‘A’ Courts or
Executive Chiefs
Courts/Town
Bench Courts
Disparities between Law and Practice in Relation to Jurisdiction
According to the Local Government Act, customary courts have judicial competence to
adjudicate on customary disputes and make judgments in accordance with the customs and
traditions of the different communities of South Sudan. It is also clear from the Act that
customary courts have no jurisdiction to adjudicate on criminal law matters except where
cases have a customary law interface that are referred to them by formal courts. While the law
is very clear on the jurisdiction of these courts, the reality on the ground as observed in the
course of this ascertainment study is that, customary courts continue to entertain criminal
matters. This is logical given that the formal courts that are mandated to adjudicate on
criminal law matters are not yet in place in many parts of the country. In three counties of the
greater Kapoeta (Kapoeta North, Kapoeta East and Kapoeta South), for example, there is only
one county judge with criminal jurisdiction. The same applies to the other counties like Ikotos,
Lopa/Lafon which do not have competent judges to entertain criminal matters. In North
Kapoeta, cases of murder will normally be entertained by the Paramount Chief who takes
evidence, but also explores the possibilities of settling the matter among the parties under
customary law. Cases are only referred to the county court in Kapoeta, when they cannot be
resolved by the Paramount Chief. The county judge will not adjudicate the matter by calling
witnesses, but will merely proceed to pronounce judgment based on the verdict that was
passed by the Paramount Chief. In some cases, there is no investigative machinery to collect
evidence in criminal cases. In these cases, customary law courts will help to investigate the
matter and later forward the matter to the police for prosecution. In matters where death is
suspected to have resulted from witchcraft, the cases are often dealt with by the chiefs’ courts
instead of being referred to the county judge.
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In Search of a Working SYSTEM OF Justice for a New Nation
Election of Chiefs
The Local Government Act provides for the election of chiefs. The Paramount Chiefs are
elected by Head Chiefs and Chiefs, while Head Chiefs are elected by Chiefs and Sub-chiefs. The
procedure for election of chiefs to serve in customary law courts, stands to conflict with
traditional procedures relating to accession of chieftaincy. In many communities of Western
Equatoria for example, chiefs are not elected. Rather, chieftaincy is inherited through lineage.
The election of chiefs, therefore, is contrary to customary practice, and places the legitimacy
of the chieftaincy at risk. In any case, the practice of electing chiefs at the moment is different
from the provisions of the law. In Torit county, for example, the Paramount Chief is not elected
by the Head Chiefs and Chiefs but rather by all adults in the county.
Establishment of the Customary Law Council
The Local Government Act establishes the Customary Law Council (CLCs) as the highest
customary law authority at county level. With the establishment of this Council, it becomes
clear that traditional authorities will have to be subjected to this new organ, consequently
eroding their powers and independence. The functions and powers of the Council is also a
source of potential confusion. While one of the functions of the Council is to protect and
preserve the traditions, customs, cultures and values of the people of South Sudan, it is also
tasked with ensuring that the freedoms and rights enshrined in the Constitution are upheld
and respected by customary law courts. In reality, the task of the Council may prove to be
daunting in an environment where several customs and traditions are openly in violation of
the rights and freedoms stipulated in the Constitution.
Independence of Customary Law Courts
Another matter that is bound to create confusion is the independence of customary law
courts. In the normal understanding of judicial independence, courts are supposed to operate
without interference from the executive or other organs of government. The Local Government
Act provides very clearly that the chairpersons and members of customary law courts enjoy
independence in their operations. The independence of these courts stand to be interfered
with, since the Paramount Chief who is supposed to be the chairperson of the ‘C’ Court, the
highest customary law court, is answerable to the county court judge.
The Interface between Modern Courts and Customary
Law Courts
The Judiciary Act has created a parallel system of justice which operates side by side with
customary law courts. In terms of the Local Government Act, customary courts have very
limited jurisdiction in respect of criminal cases. Customary courts have jurisdiction only over
minor criminal cases such as cases relating to public order offences, or cases with a customary
interface that are referred to customary courts by the formal courts. However, due to the
absence of formal courts at county and payam levels, several serious criminal cases are heard
in the customary courts. Further, it is not always easy to differentiate civil matters from matters
of a criminal nature under customary law. Such distinctions are often blurred in customary
law. Thus, there are bound to be confusions as to which cases fall within the realm of the
formal courts and customary courts.
25
THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
The Status of Ascertainment of Customary Law in South Sudan
Despite many years of civil war, South Sudan falls among the very few countries in Africa that
have engaged in the ascertainment of customary laws. According to Professor Hinz, (a consultant
contracted by the MoJ/UNDP to draft a customary law strategy for South Sudan), it would seem
that only South Sudan and South Africa (with regard to the Zulu customary laws of Kwazulu
Natal) have ascertained some of their customary laws. (Hinz, 2010:5). To that list we can now
comfortably add Namibia, which has recently ascertained some of her customary laws.
There are more than 50 ethnic groups with different customary law regimes in South Sudan.
The exact number of ethnic groups in South Sudan is not known for certain. One account
estimates that they are 56 ethnic groups with about 600 subgroups while another account
puts the number at more than 60. (Stefanska, 2011:1). Another account, however, gives a
radically different number of 151. (Hinz, 2009:72). Despite the many ethnic groups, it appears
from the different researches that there are a lot of similarities between the customary laws of
the different groups. According to the World Vision report:
‘The customary law systems of the fifty or so tribes...have much more in common
than they have differences. Differences tend to be ones of style rather than
substance; mostly related to differing value systems and in particular the basis of
community wealth. Where communities are cattle herders the currency of the courts
is cattle. In agriculturalist communities it can vary from tools, weapons and beads
to contemporary money...’ (Cited in Hinz, 2009:72).
In line with the above observation, Leonardi et al., who undertook a study of the customary
laws of three counties in three different states, were quick to remark that while the scope of
the study is too limited so as to make a realistic conclusion in relation to the entire country,
many similarities were witnessed in the customary laws of the communities they visited:
‘Three sites can never be representative of the great variation across Southern
Sudan, but they can at least indicate the extent of local differences, and perhaps
more importantly, the areas of considerable similarity in judicial culture and
concerns of local people.’ (Leonardi et al., 2010:13).
The substance of customary law in South Sudan, shows striking similarities among the many
customary law regimes. Virtually all customary law regimes deal with matters related to
property, personal law, social obligations and torts. What normally differs is the currency of
payment of fines imposed by customary law courts which could range from cattle to spears.
The medium of executing customary law obligations will also, to a large extent, depend on
the economy practiced by different communities. For pastoralists, the currency is usually
cattle, for agriculturalists it can range from crops to farm implements. Money is also
increasingly becoming the currency in essentially all customary law regimes. The fact that
many customary laws are not in written form makes it almost impossible to come up with an
exhaustive list of all the issues that are dealt with by the customary laws of the communities in
South Sudan. For the customary laws that have been codified, ascertained or recorded, the
substance of the law is not so difficult to know, but are not exhaustive nonetheless. The World
Vision report which is frequently cited in this literature has identified a broad array of matters
that form the substance of the customary law of the Dinka and Nuer:
◆◆ Marriage - including the scope of union, successive marriages, procreation,
sexual cohabitation, marriage payments and ceremonies.
◆◆ Adultery - including penalties.
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In Search of a Working SYSTEM OF Justice for a New Nation
◆◆ Divorce - including marriage nullification criteria, consent issues and bride
wealth.
◆◆ Child custody - including choice of law in property distribution.
◆◆ Property - including transfer of title, tracing, testate and intestate succession
and inheritance, land law, personal property, resource rights (including
minerals, water and animals) and loss of title.
◆◆ ‘Social’ obligations - including contractual undertakings, tort liabilities for
homicide and liability for injury caused by animals.
◆◆ P
rocedural laws - including foundational principles of customary case
management.
It would appear from existing literature that only a few communities have had their customary
laws ascertained or recorded in South Sudan. These ascertainment projects are presented
briefly below.
The Bahr el Ghazal Project
This project which was undertaken in 1983-1984, ascertained the customary laws of the Dinka,
the Luo and the Fertit of the then Bahr el Ghazal region. The project was undertaken due to
the efforts and enthusiasm of the former President of the Supreme Court of Sudan, Justice
John Wuol Makec who was then the Speaker of Bahr el Ghazal People’s Regional Assembly.
(World Vision, 2004:23). This ascertainment work led to the adoption of the Restatement of
Bahr el Ghazal Regional Customary Law Amendment Act, 1984 which repealed and replaced
the Bahr el Ghazal Regional Order of 1975. (World Vision, 2004:23). This new Act contained
enormous detail about the customary laws of the Dinka and Luo in respect of personal law,
property law and torts. Only property and personal laws were covered in respect of the Fertit.
Equatoria Project
The Equatoria project was more of a codification project. This was carried out under the
auspices of the SPLM, and resulted in the production of the Code of Customary Laws of the
Kakwa, Kuku, Pajulu, Kaliko and Luguara ethnic groups of Yei/Kajo-Keji counties of Equatoria
Region. The Code contains a range of customary laws in respect of issues such as marriage,
divorce, guardianship and custody of minors, legitimacy, legitimizing and adoption of
children, adultery and other sexual wrongs, indecent and evil acts, death and social status of a
widow, family properties and succession, compensation for personal injury, accidental
homicide, homicide by poisoning and blood compensation, abortion, causing damage to a
foetus, concealing of birth and exposing minors to danger. (Hinz, 2009:53). The ‘ascertained
laws’ are said to be very unpopular among local communities in Central Equatoria partly
because they provide fixed rates of penalties which reduces the flexibility available in
unwritten customary laws. According to Leonardi et al., a certain chief had to resign due to his
community’s resistance to the inflexible fines of the Code. The said chief is quoted to have
uttered thus:
‘I worked as sub-chief and acting chief and was not bad. But some regulations were
formulated for customary law, exactly defining the penalties. When I carried these
out, people said I was a bad judge. So when I became unpopular I had to step down.’
(Interview by Leonardi with elders and chiefs, Lasu payam, Yei County, in
Leonardi et al., 2010:82-83).
27
THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
The Upper Nile Project
This is the most recent of the ascertainment projects. The project resulted in what is called the
re-statement of Dinka Padang of Baliet customary law (Böl) 1998 Ngok and Dongjol. (Hinz,
2009:53). The customary laws ascertained covered a range of issues related to personal law,
wrongs and personal injuries and the law of property especially cattle tracing. The document
carries an introduction by the former Chief Justice of South Sudan the Honourable Justice
Wuol Makec, who among other things observes that the ascertained customary laws are very
similar to those in the Bahr el Ghazal Act, something that is expected since both projects
covered aspects of the Dinka ethnic group.
Other Less Certain Ascertainment Projects
Besides, the three ascertainment projects that have been presented above, it appears that
there are a number of other projects whose outcomes and scope are less certain. The first
of these is the 1984 recording of the customary laws of the Dinka, Nuer and Shilluk at
Wanhalel in Toni county. (World Vision, 2004:23). According to the World Vision report,
‘the Dinka and Nuer customary law codes are available and extant, though the Nuer Code
is in need of revision and elaboration. The Shilluk code is not easily found in written form.’
(World Vision, 2004:23).
The second project relates to information that was given to the researchers of the World
Vision report by a District Commissioner to the extent that sometime in 2003, a conference
was called to record the laws of the Toposa. (World Vision, 2004:23). Information is given
afterwards to the effect that, ‘a final written draft is still awaited.’ (That is, as at 2004 when
the report was written).
While admitting that ascertainment of customary laws have taken place in the past, it is
important to underline the fact that the customary laws of many communities in South Sudan
have not been touched by these ascertainment initiatives. The tendency has, however, been
to ascertain the customary laws of dominant groups such as the Dinka and the Nuer, or
document the laws of those communities that are easy to reach from the capital Juba, such as
the Bari speaking communities of Central Equatoria. Minorities and less dominant groups
tend to be left out in these processes.
More Recent Projects Having a Bearing on Customary Law in
South Sudan
Besides the above attempts to ascertain customary law, there have been other subsequent
initiatives which sought to put some aspects of customary law into writing, or at least
document important aspects of customary law regimes in South Sudan. Many of these
projects were done immediately before and after the signing of the CPA in 2005. An account
of these projects will follow.
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In Search of a Working SYSTEM OF Justice for a New Nation
4 A STUDY OF CUSTOMARY LAW IN
CONTEMPORARY SOUTHERN SUDAN,
2004
World Vision International and South Sudan Secretariat of Legal Affairs commissioned a
study in 2004 to appraise the current status of customary law with a view of making
recommendations for the proper functioning of customary law systems in South Sudan. The
report of this study is perhaps the most exhaustive document with regards to various
aspects of customary law in South Sudan. The report offers generous details on a myriad of
issues of relevance to the discourse of customary law, including the following:
◆◆ Contextual analysis and history of customary law in South Sudan.
◆◆ An elaborate treatise of the major systems of customary law.
◆◆ A
detailed discussion of the present facets of customary law and the forces of
change influencing the dynamics of customary law.
◆◆ A
clear insight into the court system of the New Sudan and the space
occupied by customary law.
◆◆ A
good summary of the debate surrounding the customary law and
international human rights standards in the administration of justice.
The study provides a detailed historical account of different ascertainment projects. As to
whether ascertainment of customary law is the preferred way forward for many South
Sudanese, the answer according to the report is in the affirmative. The report acknowledges
that despite the fact that in the past South Sudanese were disinterested in the recording of
customary laws, increasingly, there is growing opinion that customary laws should be
recorded, widely disseminated and where appropriate, a curriculum developed for teaching
the same. The report concludes that ‘…There are a number of customary law systems, which
lend themselves to being reduced into writing; the task should be undertaken in the near
future.’ (World Vision, 2004:53).
First Customary Law Work Plan Workshop, 14th–16th December
2004, Nairobi
The name of this workshop suggests that it is the first to have systematically planned for the
ascertainment of customary of law in South Sudan. The workshop, which was organized by
the Customary Law Steering Committee (CLSC) of the SPLM Secretariat for Legal Affairs and
Constitutional Development (SOLA), discussed the importance and historical development of
customary law in South Sudan as well putting in place a detailed plan on the ascertainment of
the customary laws of different groups in the country.
The meeting resolved that ascertainment was very important in the development of
customary law, which according to the report, has been undermined for many years. The
meeting noted that:
‘...Customary Law has been undermined by various influences in the last two
hundred years. Moreover, life in the modern world continues to undergo tremendous
change. Customary law cannot be revitalized and reconciled to modern
developments before it is ascertained. Once this is done then the process of review,
reform, and harmonization, where possible, can take place...’ (SOLA, 2004:5).
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
During the meeting, it was decided that ascertainment should be undertaken in the whole of
South Sudan, including the marginalized areas. (Nuba Mountains and Southern Blue Nile),
(SOLA, 2004:5). In the planning session that ensued, the following were identified as priority
components of the process:
◆◆ Mapping (or identification) of all the customary law regimes.
◆◆ A
scertainment, recording/documentation of customary laws of various
ethnic groups, starting with the completely unwritten ones.
◆◆ Updating of documented customary law regimes; e.g,Wanh-alel and Fangak.
◆◆ R
eview, reform, and where possible, harmonization of different customary
law regimes.
The SOLA ascertainment project did not seem to have gone to the next level of implementation,
but, surely, the logic and intentions therein have been significant in shaping the thinking and
methodology in subsequent ascertainment projects, including the ongoing UNDP/MoJ/LGB
ascertainment process.
Contemporary Azande Customary Law: Framework of Research
Findings from Western Equatoria State, 2006
Another relevant process for the ascertainment of customary law in South Sudan is a recent
project which sought to record the laws of the Azande of Western Equatoria in 2006 courtesy
of a joint effort of World Vision South Sudan (WVSS) and MoJ. The actual work of recording the
said customary laws was done by two consultants – Suzanne Shatikha Chivusia and Sophie
Gordon – with the assistance of volunteers and community facilitators.
The authors of the report, having encountered opposition to the reduction of the customary
laws of communities in South Sudan into writing, were quick to explain their position, lest
they risk getting blamed for embarking on an unpopular project. They noted:
‘The primary aim of this work is to provide a handbook for reference but not to freeze
Azande customary law into some form of codification or deny it the flexibility that is
such a prominent feature of African customary law. It is noteworthy that though
this text preserves Azande law through the act of recording, it has not transformed
its character in any way and herein lays an authentic account that also responds to
the traditions, attitudes, organization and goals of the Azande with no external
imposition. It is further expected that this systemic account will provide a vital tool
and aid in efforts for proper administration of justice by courts which will be called
upon to apply these laws. This is an important contribution when taking into
account the fact that customary law forms the bottom two levels of courts in the
southern Sudanese legal system and is used in the adjudication of an estimated
90% or more of both criminal and civil cases…’ (Chivusia & Gordon, 2006:9).
The report records various aspects of Azande customary law ranging from the substance of
their laws, procedural matters related to the application of those laws, to the institutions that
are mandated with administering justice. The value of a project of this nature cannot be
gainsaid. It will certainly be of enormous assistance to the courts and all those adjudicating
and administering justice using Azande customary law.
30
In Search of a Working SYSTEM OF Justice for a New Nation
The enormous importance of this work, notwithstanding, it is necessary to mention that this is
a re-statement of the customary laws of the Azande, done by outsiders in good faith. This is
dissimilar from the MoJ/UNDP/LGB ascertainment of customary law project which is selfstatement, which allows communities to record their own laws. While both projects will
probably produce the same results, the processes are certainly different.
The Women’s Positive Customary Rights Among the Customary
Laws of the Kakwa, Pojulu, Nyamgbara, Baka, Mundu and
Avukaya Communities of Central Equatoria State (Southern
Sudan), 2009
Sometime in 2009, the Institute for Promotion of Civil Society and MoJ commissioned Godfrey
Maliamungu of NEPM Consultancy in Kampala to study the customary laws of a few selected
Bari speaking communities (Kakwa, Pojulu, Nyamgbara, Baka, Mundu and Avukaya) in Central
Equatoria state. The aim of the study was to record elements of customary law which are
aligned to the welfare and rights of women and children. The research simply involved visiting
these communities and conducting interviews on the different aspects of their customary
laws that impact on women and children. After collecting data on the different laws, a further
exercise was subsequently carried out to classify these laws into separate categories, those
considered to be positive or favourable and those considered as negative or unfavourable.
In what can only be a striking and unique feature of this project, the positive elements were
‘passed’ into ‘law’. The so-called positive elements were allegedly endorsed into law through
an ‘instrument’ drafted by the consultant and signed by a representative of the chiefs of
Central Equatoria, a judge of the high court, an acting Undersecretary of the Ministry of
Legal Affairs and Constitutional Development (now MoJ) representing government and a
representative of the chiefs in the study area. It is not disclosed from the document whether
the so-called representatives actually obtained prior consent from their institutions before
endorsing the document. The endorsement document is reproduced verbatim in the box on
the following page for ease of reference.
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
Box II: Endorsement of Positive Customary Laws in Central
Equatoria
THE WOMEN’s POSITIVE CUSTOMARY LAWS IN THE CENTRAL EQUATORIA STATE,
SOUTHERN SUDAN IS ENDORSED THIS 5TH DAY OF FEBRUARY 2010.
1. The representative of the Chiefs Central Equatoria State,
Southern Sudan
Hon
ALEX TABAN ENOSA LOABA
Signature
2. The representative of the Government of Southern Sudan
(GoSS)
Hon
FILBERTO MAYUOT MARENG-AG/UNDERSECRETARY, MoJ
Signature
3. The representative of the High Court of Southern Sudan
(Central Equatoria)
Justice:/Judge:
ANJOYE PERPTUA PAYEI
Signature
4. The representative of the Chiefs from the study community
Hon
ANTHON AMEDE M
Signature
Wherefore, upon endorsement of this document, it shall from its first day of endorsement
take effect as a working Customary Law in respect of Women’s and Children’s Right to Guide
the Chiefs in Customary Courts in Central Equatoria State-Southern Sudan.
This document is extracted from Maliamungu, (see Maliamungu, 2009: 113). The document
was actually signed by the various signatories on 5th Feb 2010. It is interesting to note that
the so-called endorsed customary laws were to be applicable to the whole of Central
Equatoria state with more ethnic groups (possibly exercising different customary laws) than
the six communities where the study took place. The laws were to guide the chiefs in
customary courts who were perhaps new to the so-called positive laws.
32
In Search of a Working SYSTEM OF Justice for a New Nation
From the endorsed document, it is explicit that only the laws identified to be favourable were
intended to be applicable laws in respect of matters related to women and children in Central
Equatoria from the date of their endorsement, 5th February 2010. By necessary implication,
the customary laws that were found to be unfavourable to the interests and position of
women and children were to cease to apply in Central Equatoria from the date of endorsement.
The place of this project in the development of customary law in South Sudan is critical as it
was the first to have taken a radical move to actually force customary law to conform to
human rights standards. The exact position of these ‘new customary laws’ is very suspect, and
doubt can be raised regarding their legitimacy and legality.
Local Justice in South Sudan: A Joint Project of the United
States Institute of Peace and the Rift Valley Institute, 2009/2010
This project on local justice in South Sudan was not aimed at recording or ascertaining any
customary laws of the communities in South Sudan (Leonardi et al., 2010). It was rather
interested in studying the actual application of customary laws in courts with a view to
recommending appropriate policy reforms. The research was conducted at three different
counties of three different states - Wau in Western Bahr el Ghazal, Aweil East in Western Bahr el
Ghazal and Kajokeji in Central Equatoria. The study also involved securing the opinions and
feelings of the local people about the processes and substance of customary law systems of
justice. This report is also very useful in many other respects. The authors provide a very
elaborate presentation about the present court structure in South Sudan and the apparent
overlap between state and customary law courts.
The fact that the objectives of the project did not relate to ascertainment, did not prevent the
authors from giving their opinion on ascertainment, sometimes in greater detail than would
have ordinarily been the case. The authors of the report use their experience in the three
counties to advance serious criticisms in relation to the ascertainment of customary law. For
them, ascertaining customary law is not only inappropriate but also dangerous for the survival
of a system that is operating well at the moment.
Instead of ascertainment or codification as a solution to local justice in South Sudan, Leonardi
et al., offer other proposals. Instead of reducing customary law into writing for the benefit of
those applying them (especially judges), they are of the opinion that attempts should be
made to encourage a healthy interaction between modern legal practitioners and customary
law institutions so that the former can appreciate how customary law operates and appreciate
why customary law tribunals make decisions in the manner they do. They are very
straightforward in their recommendations:
‘Guidance for government judges should be produced through research into the
socioeconomic systems and norms in each county, using anthropological methods
rather than legal ascertainment. Instead of producing a set of written customary
laws for judges to apply, the aim would be to inform them of local social and
economic systems so that they could understand the roots of the principles applied
in the chiefs’ courts. Most judges already learn these things when they first start
working in a particular county, and it might be more feasible to simply support and
encourage informative discussion with local chiefs and people when a judge is
transferred to a new area.’ (Leonardi et al., 2010:88).
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
5 THE CUSTOMARY LAW ASCERTAINMENT
STRATEGY – MOJ/UNDP
The ascertainment of customary law in South Sudan is just a single element of a five step
model that was developed by Hinz. Hinz has vast experience in dealing with matters related
to the development of customary law in other jurisdictions, most notably, his outstanding
work on the recent ascertainment of the customary laws of local communities in Namibia. The
Customary Law Strategy borrows substantially from the work in Namibia, while leaving room
for modification to suit local conditions in South Sudan. The Strategy was approved by a multistakeholder workshop that was organized by MoJ in 2009. The said approval is captured very
succinctly by the words of Undersecretary to the Ministry, Hon. Peter Gatkuoth in his opening
speech when he said:
‘...At this point, the need for a customary law strategy comes in. A strategy, which
will assist my Ministry to comply with its objective to ensure justice; a strategy which
will also assist other governmental and non-governmental stakeholders whose
mandate are close to the mandate of my Ministry. I had the pleasure to read
through, what the author calls his draft final report on a customary law strategy for
Southern Sudan. The report is final, as it has, indeed, explored a broad variety of
issues relevant to traditional authority and customary law. The report is still a draft,
as our deliberations of today will certainly produce thoughts for the integration into
the really final version of the report...’
The approved Customary Law Strategy has five components as elaborated below.
Ascertainment of Customary Law
The Strategy proposes the ascertainment of all the customary laws of the communities of
South Sudan by using a proposed ten step model which can always be modified to suit the
specific realities of the country. The proposed ten steps are listed below:
◆◆ Identify the target community(ies).
◆◆ Do legal background research with respect to the community(ies).
◆◆ Draft policy on ascertainment of customary law.
◆◆ Develop a comprehensive enquiry guide.
◆◆ Agree with communities on the ascertainment process and structure.
◆◆ Recruit and train ascertainment assistants.
◆◆ Conduct and supervise the ascertainment project.
◆◆ Conduct complementary research in identified community(ies).
◆◆ Promote the compilation of the ascertainment texts.
◆◆ Prepare publications in, at least, two languages, the vernacular language and English.
Promotion of Changes and Developments of Customary Law
Recognizing the dynamics of customary law, the Strategy recommends that there should be
deliberate attempts to encourage the development of customary law from within, through
the work of the Council of Traditional Leaders (COTALs) and the CLCs as well as using the
potential of the Customary Law Centre (CLC) which was constructed in Rumbek with the
34
In Search of a Working SYSTEM OF Justice for a New Nation
assistance of UNDP. Besides development from within, the Strategy recommends that
deliberate interventions be taken to institute legislative reforms in the areas of customary law
of marriage and customary law of inheritance.
Strengthening Legal and Social Environment for Customary
Law to Operate
The Strategy recommends measures to improve the environment through which customary
law operates. The following areas are recommended for strengthening:
◆◆ The regulation of traditional authorities.
◆◆ The regulation of traditional courts.
◆◆ The need to provide infrastructure for traditional authorities and traditional courts.
◆◆ The provision of training and education to sustain traditional authorities and courts.
Research to Reinforce the Customary Law Strategy
The Strategy also recommends various projects which are deemed necessary to reinforce its
implementation. These projects include:
◆◆ P
roject on the legal foundation of traditional courts since the Chiefs’ Courts
Ordinance of 1931.
◆◆ P
roject on the application and interpretation of customary law by state and
traditional courts.
◆◆ Project on the philosophical foundation of customary law.
◆◆ Project to assist the mapping of local courts.
◆◆ Project to map traditional communities.
◆◆ P
roject to evaluate the application and the changes of customary law in areas
where customary law was ascertained.
◆◆ Project of case observation and evaluation in selected areas.
Coordination of the Different Activities
The Strategy proposes an institutional framework for the better execution of various activities.
A CLC is proposed to be given the overall mandate of overseeing the implementation of the
different components of the Strategy. The following actions are recommended as the roadmap
for the CLC to be able to competently discharge its functions:
◆◆ T he CLC Feasibility Study should be commissioned as soon as possible, so
that the establishment of the Centre can commence.
◆◆ T he work on the said feasibility study will enhance consultations on the
Customary Law Centre Act.
◆◆ T he CLC feasibility study will, inter alia, suggest what core personnel will be
needed to operate the CLC.
◆◆ It will also be the task of the feasibility study to develop the financial
framework for the CLC.
◆◆ F urther consultations are to commence with UNDP and other donor agents
to satisfy the financial needs in a sustainable manner.
35
THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
6 METHODOLOGY
The ascertainment project employs a variety of approaches and methodologies in order to
achieve the expected outputs. The methodology varies across the different project
components. The ascertainment of the customary laws of the communities covered was
essentially the task of local communities themselves. The task of the consultants was
relegated to that of facilitators. The ascertainment process was essentially a community led
process, and the consultants avoided imposing any methodological issues on the
communities. However, realizing that customary law regimes face challenges in respect of
inclusivity in their decision-making processes, deliberate attempts were made to ensure
that women and youth were effectively involved at the different stages of the study. This
said, the following are generally some of the approaches and methodological issues
employed in the ascertainment project components.
◆◆ P
rimary data (both quantitative and qualitative) was collected. Secondary
sources were used where primary data was unavailable. Best use was made
of the available information. The project did not reinvent the wheel; attempts
were made to gather and make use of any information that was already
available. Information and data was collected from similar projects on
customary law. This was important to avoid duplication of efforts while
attempting to forge synergy between different actors.
◆◆ D
ata gathering techniques included semi-structured interviews, focused
group discussions, court observation and participant observation in
community daily activities.
◆◆ W
here collective consultation did not yield expected results for members of
the community like women and youth, separate interview sessions were
organized.
◆◆ Interviews targeted important customary law institutions like chiefs, rain
priests, land lords and respected elders. Women and youth groups were also
targeted. Where occasion allowed, local government authorities at the state
level were interviewed.
Besides data collection techniques, the ascertainment exercise to a large extent, followed the
steps provided by the Customary Law Strategy, with necessary modifications to suit the
timeframe within which the present project was supposed to take place. The following steps
were followed to arrive at this report.
Step I: Project Inception
The project inception is among the deliverables that the project’s team submitted to UNDP
and MoJ. The report covered the following:
◆◆ A
review of the existing literature which is relevant to the ascertainment
of customary law in South Sudan.
◆◆ Interpretation of the TOR and consultancy actions.
◆◆ Methodology and approaches necessary for achieving the expected outputs.
◆◆ A timeline and work plan which is in line with key benchmarks for results.
Besides the above, the inception period was also used to recruit the project’s team.
36
In Search of a Working SYSTEM OF Justice for a New Nation
Step 2: Anthropological Research
This step preoccupied itself with the task of collecting legal anthropological data to be used in
subsequent ascertainment processes. Information was gathered in respect of the social and
political organization of local communities.
Step 3: Development of a Comprehensive Inquiry Guide
Having undertaken important legal and anthropological data, the next step was to develop
tools to guide the project team in the ascertainment process. The inquiry guide, among other
things, tried to capture important elements of customary law - the substance of the laws
(which aspects do the customary laws of the communities deal with), procedural aspects (how
are trials and litigations processed in customary law courts) and the institutions (what
institutions are mandated to administer justice in customary law regimes).
The inquiry guide also sought to test some of the elements of customary law which may be in
direct contravention of human rights law and the bill of rights in the Transitional Constitution
of South Sudan. The inquiry guide therefore contains provisions to solicit the opinion of
communities on these aspects.
Step 4: The Ascertainment Process
The ascertainment was conducted by the local communities themselves, and without
any interference or influence from the project team. Having said this, the project team
helped communities prepare for the ascertainment process, by taking them through the
inquiry guide and making sure that they understood the meaning of the questionnaires
and their content.
Step 5: Complementary Research
Complementary research was also undertaken in communities. This included cross-checking
the anthropological data collected, and where appropriate, revising same in view of the new
findings. Court observation was a very critical methodology in this process.
37
THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
7 THIS REPORT
This report presents the customary laws of 14 communities in South Sudan as they were told
by the communities themselves, and is divided into 3 separate volumes. The report cannot
pretend to be an exhaustive account of the customary laws of these communities. The corpus
of customary law can be too wide to be covered by one ascertainment exercise, and in any
case, customary laws are in a permanent state of flux. In the context of South Sudan, the
situation is made complex by the dynamics of war and the displacement of persons.
Areas of Inquiry
The report highlights the substance and practices of customary laws in the following areas.
Family Law: This area provides the biggest substance of the customary laws that were
ascertained. The section deals with the different methods of contracting marriage, obligations
and duties of spouses, divorce, division of matrimonial assets upon divorce, pregnancy outside
wedlock and elopement.
The Law of Wrongs and Obligations: This section interrogates issues of sexual offenses, (rape,
adultery, fornication/sex with unmarried girl/woman/seduction, incest) their definition and
resolution within the realm of the customary law. It highlights the law dealing with offenses
related to bodily harm (murder, bodily injury and grievous bodily harm, wife beating) and
laws dealing with property-related offenses (robbery, theft, arson, destruction of property,
cattle raids and lost animals). In some cases, the laws dealing with insult and defamation are
treated under this section.
Law of Inheritance and Succession: This section interrogates the customary law applicable to
succession and the administration and distribution of the estates of deceased persons, and
succession to chieftaincy.
Land Law: This section deals with the acquisition, disposition and use of land by the different
customary law regimes interrogated.
Environmental Law: This section details the customary laws that relate to the protection of
the environment as well as applicable penalties and fines for their breach. Not every
community dealt with this area.
38
In Search of a Working SYSTEM OF Justice for a New Nation
Participants at the validation workshop of
the ascertainment study pose for a photo
2
THE CUSTOMARY
LAWS OF THE TOPOSA
39
THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
THE PROFILE
The people
The Toposa (also known as the Topotha, Taposa, Ngikar and Kar) inhabit the greater Kapoeta
region (comprised of the counties of Kapoeta South, Kapoeta North and Kapoeta East) in the
south eastern part of South Sudan. They speak a language known as Ngatoposa (or Akara,
Kare, Kumi, Toposa and Tapotha). The Toposa are one of the biggest ethnic groups in South
Sudan with a population currently estimated at between 700,000-1,000,000. They are part of a
larger group known as the Ateker cluster which comprises of the Jiye and Nyangatom (of
South Sudan), the Jie (Ngojie in Uganda), Dodoth (Dodos), the Karamajong (of Uganda) and
the Turkana (of Kenya).
Political and social organization
The political structure of the Toposa is headed by an organization called the nyakitoi. The
society is also organized into patriarchal clans where the family is the lowest unit. The society
is further organized into age-sets where roles and duties are distributed according to age and
sex. The youth are expected to use their physical strength to protect the community against
external and internal woes and threats. The youth are also expected to respect the elders and
failure to do so will invite sanctions.
The Toposa are an egalitarian society where major decisions are passed through
consensus. Important decisions are arrived at in open meetings that are supposed to be
attended by all adult males and everybody is given an opportunity to speak and give their
opinion without hindrance. Women and children are however sometimes excluded from
attending these meetings and, hence, excluded from participating in important decision
making processes. Major decisions are set in motion in the very early hours of the
morning. Despite being an egalitarian society, the chiefs, elders, fortune tellers, medicinemen and witch-doctors wield enormous powers in the areas of their respective
capabilities. Interestingly and unlike many communities of South Sudan, the Toposa do
not have rainmakers. They believe that God is the most supreme being, and that the spirits
of the departed ancestors reside in the spiritual realm.
The Customary Laws of the Toposa
Like all communities of South Sudan, customary law forms the basis of dispute resolution in
virtually all kinds of conflict in the society. Modern courts and formal systems of justice are
barely in shape in many of the payams, leaving customary law as the only source of law. Chiefs’
courts handle essentially all matters, including the gravest of offences like murder. In relation
to murder and rape, the tendency is for the chiefs’ courts to take evidence, hear the testimonies
of witnesses, and where possible, resolve the matter according to the principles of customary
law depending on the wishes of the parties. Where the parties do not agree to settle their
dispute according to customary law, the Paramount Chief will have no option but to send the
culprit to the County Judge for trial.
40
In Search of a Working SYSTEM OF Justice for a New Nation
1 FAMILY LAW
1.1Marriage
◆◆ Marriage is a very important institution among the Toposa.
◆◆ M
arriage arrangements start with courtship between the man and the
woman. Courtship usually results in sexual intercourse, even though this is
discouraged.
◆◆ T he man and woman will discuss between themselves and decide to get
married.
◆◆ W
hen an agreement has been reached, the man will inform his parents of his
intention to marry the woman.
◆◆ T he man’s parents may agree or disagree depending on their opinion of the
family of the woman. In other words, whereas the man has the freedom to
choose his spouse, that freedom is limited to the extent of the approval by
his parents. The background of the woman’s family is important in making a
decision as to whether to endorse the marriage or not.
◆◆ O
ccasionally, the illicit sexual intercourse between lovers may result in
pregnancy. When this is brought to the attention of the woman’s family, the
man will be beaten and a fine of 7 cows imposed on him. One of the 7 heads
of cattle must be a bull which will be speared for a cleansing rite. In this ritual,
the stomach and intestines of the animal are smeared all over the body of the
man and the woman to prevent misfortunes and diseases from befalling their
children when they eventually get married. The fines will be paid to the elder
brother of the woman and not her father.
◆◆ Impregnating a girl does not automatically lead to marriage. Both families
must accept the marriage. In the event that the proposed marriage is
declined, the child from the pregnancy will be taken to the family of the
woman and she may marry someone else depending on the choice of her
family.
◆◆ B
esides a formal betrothal arrangement, marriage can also arise from
elopement. A man and a woman may elope, and subsequently inform their
parents, seeking their consent to marry. The parents may either decline or
allow them to get married.
◆◆ A
father usually selects the first wife of his first born son. The father also
bears all expenses relating to the wedding ceremony and bride price. This is
done in appreciation of the importance and blessing that the first son
brings to the family. The son bears the expenses relating to the marriage of
his subsequent wives.
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
◆◆ I n the Toposa culture, the parents force their daughters to marry men of their
choice. Should a woman reject the choice of her parents, she will be beaten
until she accepts. It is often the case that families will force their girls to get
married to persons from rich families, sometimes old enough to be their
grandfathers.
◆◆ W
hen the consent to the marriage is ultimately obtained from the two
families, the bride price will have to be paid in hundreds of cattle depending
on the number of paternal uncles and step mothers that the bride may have.
In the allocation of cows to be paid as bride price, provision is made for at
least 10 step mothers and 10 paternal uncles of the girl. The following table
represents a typical bride price arrangement.
Relative of the Girl
Amount of Cows to be Paid
The Father
10
The Mother
10
Step Mother 1
10
Step Mother 2
9
Step Mother 3
8
Step Mother 4
7
Step Mother 5
6
Step Mother 6
5
Step Mother 7
4
Step Mother 8
3
Step Mother 9
2
Step Mother 10
1
Paternal Uncle 1
3
Paternal Uncle 2
2
Paternal Uncle 3
1
Paternal Uncle 4
1
Paternal Uncle 5
1
Paternal Uncle 6
1
Paternal Uncle 7
1
Paternal Uncle 8
1
Paternal Uncle 9
1
Paternal Uncle 10
1
Total
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In Search of a Working SYSTEM OF Justice for a New Nation
88
Obligations for spouses in marriage
Each spouse has clearly defined roles. These roles are normally spelt out to them at the time of
marriage. Deviation from these roles and responsibilities normally result in marital crisis. The
different roles are provided in summary in the table below.
HUSBAND
WIFE
»» Taking care of the
animals.
»» Providing for the
family.
»» Providing security for
the family.
»» Fathering children.
»» Taking care of the
farm and tilling the
land.
»» Building a house.
»» Cook and provide food
for the family.
»» Fetching water.
»» Bearing children.
»» Milking the cattle.
1.2Divorce
Divorce is very rare among the Toposa. The following are some of the causes that can warrant
a divorce.
WIFE
HUSBAND
»» Excessive drinking by
the husband and
neglect of the family.
»» Wife beating without
good reason.
»» Inability on the part of
the husband to father
children.
»» Repeated and willful
disobedience of the
lawful orders of the
husband.
»» Excessive drinking by
the wife and failure to
discharge her duties
as required by
customary law.
»» Inability by the wife to
bear children.
»» Failure to take care of
the family (e.g. failure
to cook food and fetch
water etc.).
»» Repeated acts of
adultery.
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
Division of matrimonial assets in case of divorce
◆◆ C
ertain procedures are followed in relation to divorce. The procedure
followed depends on the circumstances of the case.
◆◆ W
here the husband wishes to divorce the wife, he merely has to chase the
wife from his home. If the husband takes the wife back to her parents, he will
be told to deal with her as he wishes.
◆◆ W
here the wife wishes to divorce the husband, she will simply walk away
from the home and loiter, as she is not easily welcomed back in her parents’
home.
◆◆ T he wife is not entitled to any properties except a few household goods like
beddings and cooking utensils.
◆◆ No bride price is paid back to the man.
◆◆ W
here the children of the wife are grown up, they will usually go and bring
their mother back home.
◆◆ W
here a woman whose parents are divorced gets married, her mother
receives her share of the bride price, notwithstanding her absence from the
family.
◆◆ T echnically speaking, divorce does not exist among the Toposa. The spouses
merely separate and the woman may return home when she so chooses.
Further, a man whose wife is separated from him often visits her at the home
of her parents during the course of the separation. This is because marriage is
viewed as a permanent union between the two families and not merely
between the husband and wife.
Wife inheritance
◆◆ W
ife inheritance does not exist among the Toposa since a woman is married
to her husband forever.
◆◆ W
hen the husband dies, the wife can co-habit and bear children with one of
the brothers of the deceased husband provided she is not forced to co-habit
with any of them. The wife selects a man from amongst the brothers of the
deceased husband to co-habit with and to ‘produce’ children. The wife will
remain, however, married to her deceased husband in absentia. The children
born out of this arrangement will belong to the late husband.
◆◆ I f the widow has a poor relationship with the brothers in-law, she will look for
a man outside the family, or even outside the tribe, with whom to co-habit
and have children. However, any man who impregnates the widow will be
fined 7 cows. Due to these restrictions, widows are often compelled to cohabit with and bear children with the brothers of their deceased husbands.
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In Search of a Working SYSTEM OF Justice for a New Nation
2 THE LAW OF WRONGS AND OBLIGATIONS
2.1
Sexual Offences
2.1.1Rape
◆◆ R
ape occurs when a man forces a woman to have sexual intercourse with him
without her consent.
◆◆ R
ape is prohibited and is considered a violation of the highest magnitude to
the victim and her family.
◆◆ 3
cows will be paid to the family of the victim as compensation by the
perpetrator.
◆◆ In addition, the perpetrator must provide a goat for cleansing purposes.
◆◆ R
ape cases may be settled under the customary law system. The Paramount
Chief considers the evidence and determines whether the parties can resolve
the case by customary law. Where the parties are unable to settle the matter
under the customary law system, the matter is referred to the formal courts.
◆◆ M
arital rape does not exist in Toposa customary law. While forceful sexual
intercourse is discouraged when the wife is tired, this does not attract any
penalties since it does not amount to rape.
◆◆ I f pregnancy results from rape, a fine of 7 cows will be paid to the husband of
the victim. One of the 7 cows must be a bull which is killed with a spear as a
cleansing ritual.
◆◆ W
here the victim is a girl, 3 cows are paid and a bull is killed with a spear as a
cleansing ritual.
2.1.2Adultery
◆◆ A
dultery is defined as the act of having sexual intercourse with another
person’s wife.
◆◆ A
dultery is considered a violation against the husband who has paid bride
price for the wife.
◆◆ W
hen adultery occurs, the perpetrator will be fined and required to undergo
a cleansing ritual to rid the family of the abomination.
◆◆ In the past, the adulterer will be beaten and required to pay 7 cows to the
husband of the woman. One of the 7 cows must be a bull which is to be killed
with a spear as part of a cleansing ceremony. The stomach and intestines of
the bull are smeared over the entire body of the perpetrator and the woman.
It is also smeared on the bodies of the children of the family, to cleanse and
protect them from disease and misfortunes. This procedure is also applied to
the husband.
◆◆ Presently, no beating is done but the perpetrator is required to pay 7 cows.
◆◆ Any child born out of the adulterous relationship belongs to the husband.
◆◆ A
dultery is applicable only to a wife. It is unheard of for a wife to catch her
husband in the act of committing adultery.
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
◆◆ H
owever, if a husband brings another woman to the house of his wife and
has sexual intercourse with her there, it is believed that this will bring
misfortune and sickness to the children and family. Therefore, a goat is
slaughtered to cleanse the family from this misfortune.
2.1.3Incest
◆◆ Sexual intercourse and marriage are strictly prohibited among close relatives.
◆◆ W
hen incest occurs, a bull is killed by a spear as a cleansing ritual. During the
cleansing ritual, the man is told in very strong terms that he can never take
his close relative as a wife.
◆◆ C
hildren resulting from an incestuous relationship are generally considered
to be cursed and destined for short lives. In the event that they do survive (as
they sometimes do), they will belong to the family of the woman and never
to the man who participated in the act.
2.2Offences Related to Bodily Harm
2.2.1Killing
◆◆ There are two types of killing: unintentional killing and intentional killing.
◆◆ If a person is killed unintentionally, the perpetrator must pay 32 cows (both
male and female) to the family of the deceased. A goat is also provided for
the purposes of a cleansing ritual.
◆◆ W
here the killing is intentional, the offender will be killed by a member of the
family of the victim. The question of intent is settled by the evidence of
witnesses. After the offender has been killed, a goat will be brought to the
two families and the bones will be broken as a cleansing ritual.
◆◆ If somebody who has killed runs away, the family will pay 32 heads of cattle
as if the killing was accidental.
2.2.2Bodily Injuries and Grievous Bodily Harm
◆◆ I f a person unintentionally hurts another person, there may be an agreement
that the offender will pay for the medical treatment of the victim. If the case
goes to court, the offender will be sentenced to pay a fine where his actions
were intentional. Severe injuries (such as broken bones) result in the fine of 5
or 6 cows. Minor injuries (no broken bones but bloodshed) result in a fine of 1
goat. The cost of medical treatment will also be paid by the offender. In
determining the cost of treatment, reference will be made to the doctor or
herbalist treating the injury who will be required to describe the seriousness
of the treatment required.
◆◆ N
o cleansing rituals are associated with bodily injuries unless someone is
beaten unconscious, wherein the perpetrator will be required to bring a goat
for the purposes of a cleansing ritual. Where the perpetrator denies having
intentionally harmed the victim, the perpetrator will still be required to pay
the fines and in addition, perform a ritual that involves the cutting of the ears
of a goat and throwing ash away while denying the crime. Where the
perpetrator’s denials are false, it is believed that he will subsequently become
sick. When this occurs, the perpetrator will request a healing ritual. The ritual
requires the participation of the victim.
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In Search of a Working SYSTEM OF Justice for a New Nation
2.2.3
Wife Beating
◆◆ W
ife beating is tolerated by Toposa customary law and husbands are allowed
to discipline their wives by beating them. Wife beating occurs when the wife
is not discharging her duties properly.
◆◆ T he beating of a wife without any reason is not permitted. Where a husband
continuously beats the wife, both sides of the family will be summoned to a
meeting to discuss the matter.
◆◆ T he method of beating a wife is also monitored and the use of weapons and
heavy sticks are not permitted.
2.3
Property Related Offences
2.3.1
Stealing and Theft
◆◆ There are two methods of dealing with stealing.
◆◆ F irst, where the offender is known to the victim, he will be required to pay
back the stolen item in double measure. For instance, where goats are stolen,
he will return twice the number of the stolen goats to the owner.
◆◆ S econd, where the theft is perpetrated by a group, the victims may defend
themselves and kill the thieves. Where the thieves are killed, no further
compensation or responsibilities arise. This situation is now changing as
Commissioners in different counties intervene and try to reconcile these
matters with the assistance of the chiefs.
◆◆ T he issue of armed banditry on the roads falls within the jurisdiction of the
Government functionaries.
2.3.2Arson
◆◆ W
here a house is burnt down unintentionally (for example while someone is
burning garbage), the person whose house is burnt will kill a goat as a
cleansing ritual because it is believed that the incident occurred due to bad
luck on his part.
◆◆ W
here the arson was intentional, the perpetrator will be required to pay for
the house and its entire contents. Witnesses will be called to present evidence
in relation to the offence. The accused cannot be held liable in the absence of
the evidence of witnesses.
2.3.3
Destruction of Property
◆◆ D
estruction of other people’s property is not tolerated under Toposa
customary law.
◆◆ W
here the destruction of property is unintentional, the issue will be resolved
amicably by the parties involved. The victim may forgive the offender where
the matter is not very serious, (for instance, where a child lets a cow to graze
onto a vegetable patch). However, the victim will request compensation from
the perpetrator where the damage caused is substantial.
◆◆ T he perpetrator will be made to pay compensation in the form of cows (1
cow and 1 bull), or greens. The amount of the greens payable depends on the
harvest of the perpetrator.
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
2.3.4Cattle Raids and Lost Animals
◆◆ C
attle raids are common between the Toposa and their neighbours. People
whose cows are stolen will search for them by tracing their footprints. Where
the cows are found, they will simply be returned. However, if people are killed
by the raiders while rounding up the cattle, the victims’ communities will go
and avenge the exact same number of killings. These days the Government
will step in to prevent revenge raids by bringing the perpetrators to justice.
◆◆ T raditionally, inter-ethnic cattle raids are resolved by the elders of each side
by summoning the youths and admonishing them to accept a peaceful
settlement and to desist from further acts of cattle raiding.
◆◆ W
hen a peaceful settlement is agreed, a white bull is slaughtered and the
blood and intestines poured and smeared on the warring sides. Both sides
will also be told to drink water from the same cup as a sign of reconciliation.
◆◆ A
s a further sign of ending the conflict, spears will be buried. These days,
since guns are used in cattle raids, the practice has changed from burying
spears to burying bullets.
◆◆ T he elders will thereafter ‘curse’ the youth never to go raiding again. It is
believed that those who disobey will die.
◆◆ P
resently, the youth do not listen to the advice of the elders and will go on further
raids, the curses notwithstanding. For this reason, cattle raids are now dealt with
by the Government and the police and not according to customary law.
◆◆ W
here an animal is lost and the owner is known, any person who finds it must
return it to the owner. Where the owner is unknown, the person may keep
the animal until the owner claims it.
2.4
Witchcraft and Cursing
2.4.1Bad Eyes and Bad Feet
◆◆ T he Toposa believe that some people have been given certain powers in their
eyes to the extent that they can cause harm by looking at something with
their eyes. Such persons are believed to cause harm to children and animals
by looking into their eyes.
◆◆ B
esides ‘bad eyes’, the Toposa believe that some people have ‘bad feet’. When
such persons walk across another person’s field, it is believed that the crops
will be affected or destroyed.
◆◆ T he two categories of persons mentioned above, do not necessarily intend to
commit evil with their inborn capacities. Therefore, they are not given severe
punishments. When they are caught, they are lashed and warned not to cross
peoples’ fields or project their eyes onto other people’s properties and
children.
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In Search of a Working SYSTEM OF Justice for a New Nation
2.4.2Witchcraft
◆◆ Witchcraft is considered an extreme evil and vice.
◆◆ T he Toposa believe that wizards go around people’s homes at night causing
problems and evil.
◆◆ Such persons are punished by death. The person is killed by inserting
a sharp stick or object into the anus.
2.5
Insult and Defamation
◆◆ Insulting other people, especially the elderly, is prohibited.
◆◆ The elderly usually curse young people who insult them.
◆◆ Telling lies and defaming people is highly discouraged among the Toposa.
◆◆ I nsulting the in-laws attracts penalties. When a man insults his mother in-law,
he will be required to pay a female goat. When he insults his father in-law, he
will have to pay a male goat. Repeated acts of insults to the in-laws may lead
to a breakdown of the marriage. No bride price will be paid back since the inlaws or their daughter was not at fault.
3 LAW OF INHERITANCE AND SUCCESSION
◆◆ T he properties of a married man will be inherited by his sons. Distribution of
property does not really arise because in his lifetime all his cows would have
been distributed to his wives and their sons.
◆◆ The properties of an unmarried man will be inherited by his elder brother.
◆◆ T he properties of a married woman will be inherited by her sons. If she has no
sons, her properties, including her animals, will be inherited by her co-wives.
◆◆ The properties of an unmarried woman will be inherited by her brothers.
◆◆ W
ills (written or oral) should not interfere with customary law principles of
inheritance and succession.
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
4 LAND LAW
◆◆ L and is owned collectively but priority of use lies with the clan and family
members. Grazing land is communal and everybody has access to such land
subject to negotiations between different clans. However, land is also
available for individual use such as for cultivation and construction of
homesteads.
◆◆ T raditionally, land may not be sold. However, the Government has recently
introduced commercial transactions in land especially around urban areas.
◆◆ L and may be allocated to outsiders such as IDPs. The land to be allocated is
determined by the community elders.
◆◆ A
person may dispose of land to his friend. Disposal of the land requires the
consent of the elders. Many IDPs receive land in this way.
◆◆ W
hen land is allocated to an outsider, the property owner will perform a
ritual to hand over the land otherwise the land will not be productive.
5 PROTECTION OF THE ENVIRONMENT
◆◆ T here is no specific grazing land. There are specific trees that cannot be cut
down, called ‘nyakirit’.
◆◆ It is forbidden to destroy trees that bear fruit. Grass cannot be burnt as it is
used for animals.
◆◆ P
ersons who break these laws are punished. First offenders are warned.
Second offenders are beaten and chased away.
◆◆ S ome watering holes are protected and reserved for use during the dry
season. Any person who uses them during the rainy season commits an
offence.
◆◆ E veryone is aware of, and responsible for ensuring the protection of these
areas.
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In Search of a Working SYSTEM OF Justice for a New Nation
6 AREAS FOR REFORM
During interviews with the Toposa community, the following areas were identified as areas
that need to be reformed, to ensure conformity with human rights as provided in the
Transitional Constitution of South Sudan and other regional and international human rights
instruments. It was however agreed that these reforms should not be forced and imposed on
the communities. However, some unwanted practices will disappear over time with human
rights education and awareness creation.
6.1
Wife Beating
Wife beating, which is still very prominent among the Toposa was identified as a cruel practice
that violates the rights of women. It was observed that the beating of women leads to death
and grave physical injury in some instances. The practice also discriminates against women, as
men are not subjected to the same kind of treatment. This aspect of the customary laws of the
Toposa should be reformed.
6.2
bride price
Customary law practices dealing with bride price is another area that was pointed out as
requiring reform. The fact that bride price is very high among the Toposa is a source of many
other violations of human rights against women. The fact that many cows are paid in
exchange for a woman’s hand in marriage, means that a woman is treated more or less like
property that a man can deal with as he pleases. Women who are mistreated by their
husbands often have nowhere to run to as their parents or relatives do not accept them.
Bride price has also weakened the status of women in the marriage since they are expected
to obey their husbands.
Besides having a negative effect on women, bride price was also seen by many as the major
source of deadly conflicts between the Toposa and their neighbours. This is because the youth
usually engage in cattle raids as a means of getting cows to repay the bride price.
6.3Forced Marriages
There was a consensus that the area of forced or arranged marriages needs to be reformed. It
is not unusual for parents to select husbands for their daughters. Parents usually prefer
wealthy elderly men. It was recommended that girls be given the opportunity to choose the
person to whom they wish to get married.
Closely connected to forced marriages is the issue of early marriages among girls. It was
recommended that the legal age of marriage for girls should be at least 14 years.
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
6.4Ownership of Property by Women
The issue of ownership of property by women was a big area of concern for women and NGOs.
Toposa customary laws that did not give ownership rights over domesticated animals and
land to women were found to be discriminatory and in violation of the rights of women. It was
recommended that the entire corpus of the customary laws as it relates to ownership of
property should be reviewed so that women can have the same rights in the ownership of
property as men.
6.5Children as ‘Currency’ in Dispute Settlement
The customary law of the Toposa, which allows young girls to be ‘paid’ as compensation in
homicide cases, was viewed as an outdated practice that must be abolished. It was found that
it violates the right and dignity of the girl child who is forced to be separated from her family
and taken to another and often hostile family for actions for which she bears no liability. It was
also contended that this practice reduces the child to a mere object used in the settling of
disputes.
Participants at the validation workshop of
the ascertainment study pose for a photo
Participants at the validation workshop of the
ascertainment study engage in discussion
52
In Search of a Working SYSTEM OF Justice for a New Nation
Participants at the validation workshop of
the ascertainment study pose for a photo
3
THE CUSTOMARY LAWS
OF THE LOTUKO (OTUHO)
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
PROFILE
The people
The Lotuko (otherwise known as the Otuho, Otuko and Latuko) are an agro-pastoralist
group found in Torit county in the Eastern Equatoria state of South Sudan. They speak a
language known as Otuho which is shared with other groups like the Imotong, Dongotono
and the Horiok. The Otuho are divided into four major regions in the Greater Torit of Eastern
Equatoria state. The regions are mainly divided according to the particular clans and they are:
Otuho Hide – Otuho Hide are found in the area of Hyala, Chalamini, Ilieu, Oming, Tuhubak,
Obira, Burung, Iloli, offi, Huma and Oguruny.
Otuho Wor (Wajak) – Otuho Wor are found in the area of Tirrangoare, Haforiere, Mura
Hatiha, Hidonge Ifura, Hidonge Malangit, Oriaju, Ongelet, Oronyo, ohiri, Abalwa, Torit, Ibalany,
Oudo and Ohila.
Otuho Horiok – Otuho Horiok are found in the area of Ifwotu, Imurok, Iyire, Ofiriha,
Angario and Ngabara (lokio) Obule, and Ido.
Otuho Donge – Otuhu Donge are found in the area of Hilieu, Otose, Huma, Imotong,
Itohomo, Ogire, Otele, Imilia and Hatire.
Political and social organization
The Lotuko (Otuho) do not have a centralized system of political organization. Decisionmaking is undertaken at Monyomiji level, but rarely at the tribal level for lack of a central
authority. Each territorial group is divided into clans (nawayo) and they are the Igago, Oudo
and Omini. There are rainmakers (masculine - Hobu, feminine - Nobu) who hail from either
Hang Igago or Hang Oudo. The rainmakers are sometimes referred to Sultans (in Arabic
language). Each clan is supposed to have a totem, usually an animal. Members of the clan are
believed to turn into that animal upon death.
Despite lack of a central authority, political and social powers are scattered around different
institutions that wield power in their respective areas of competence and specialization.
Important institutions in this regard are chiefs, Monyomiji (ruling class), rainmakers and
landlords. These institutions are very central to the making and enforcement of customary law
with each occupying a distinct but occasionally overlapping role in terms of the enforcement
of customary law.
Rainmakers (the Kobu)
The rainmakers have the prime function of making rain. They also exert political power. The
power of rain making is inherited. The power of making rain is not limited to the men of the
rainmaking lineage; it also extends to women. A man so qualified to become a rainmaker will
succeed the office of rainmaking upon the death of his father or brother. In relation to women
rain priests, a woman born of rainmaking parents cannot perform rainmaking ceremonies
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In Search of a Working SYSTEM OF Justice for a New Nation
until she is married to another rainmaker. In the discharge of their functions, the rainmakers
are assisted by the Abolok (singular, Aboloni) from each drum house.
Rainmakers are a very privileged class among the Lotuko. Rainmakers get the best parts of the
meat during hunting or fishing expeditions. They also get the first fruit of every harvest with
everybody contributing part of their dura (grain). The Monyomiji, who are the ruling class, are
also expected to contribute part of their harvest to the rainmakers.
Due to the significance of rainmaking, rainmakers are very much valued among the Lotuko
tribe and will almost certainly be consulted in all important decision-making processes of the
society, including those that are not related to rainmaking such as waging wars on enemies.
The Monyomiji
The Monyomiji are the warriors, as well as the ruling class. The Lotuko follow an age system
whereby a new group of warriors is initiated into warrior-hood after every 22 years in a ceremony
known as the efirapira. The Monyomiji is the strongest political institution among the Lotuko. They
are the custodians of customary law and are the ones who are entrusted with the responsibility of
enforcing compliance as well as punishing those who break the rules of customary law. They
exercise general oversight over other social and political institutions like rainmakers, chiefs and
landlords. In some cases, they even have powers to declare war. The Monyomiji are also the soldiers
of the Lotuko and will protect the society from internal and external threats.
Lemonyemiji (fathers of the land)
These are the fathers of the land, commonly known as the landlords. They are called the
fathers of the land because they are believed to have been the first people to occupy a
designated territory and to have introduced cultivation to the society. Because of this, they
are believed to wield special powers in relation to the productivity and the sanctity of the
land. They are literally the owners of the land, and no land may be given away without their
consent and blessing. The landlords are also believed to have a special connection with the
land and possess powers to make the land productive or unproductive.
The Ibwoni (Neibwoni) fortune tellers
Fortune tellers occupy a privileged position in the spiritual and medicinal realm. They take
care of the sick by administering herbs as well as acting as soothsayers who can predict the
occurrence of misfortunes and fortunes. They also have powers to drive away evil spirits and
misfortunes. The powers and influence of fortune tellers have substantially been reduced by
the introduction of christianity.
The Chiefs
In the past, the position of the landlord was combined with that of the chief. With the
introduction of modern systems of government, the chief is now an elected position and the
roles have been greatly altered. According to the new system, there is a chief at each level of
government. There are chiefs from the county level to the village level. Chiefs adjudicate
disputes using customary law in their respective areas of jurisdiction.
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
1 FAMILY LAW
1.1Marriage
◆◆ A
ccording to Lotuko customary law, marriage may be contracted in three
ways. These are elopement, abduction and forced or arranged marriages.
◆◆ I n respect of elopement, a woman and a man who have been dating for some
time will decide to get married. The two lovers will thereafter elope. This is
seen as an indication to their parents that they love each other and wish to
get married. Prior to this, their love affair will not be known to the parents of
the woman as it is considered very inappropriate for an unmarried woman to
engage in premarital sex.
◆◆ I mmediately after the elopement, the man will send a mediator to the parents
of the woman, informing them of the whereabouts of the woman and of his
marriage intentions. This is normally done not later than three days after the
elopement has taken place. Any delay in informing the woman’s parents may
lead to the man being beaten and his parents and other close relatives
mistreated as a form of retaliation. The longer the delay in informing the
parents, the greater the chances of the two families being drawn into a
difficult confrontation.
◆◆ Though elopement is tolerated as one of the methods of contracting
marriage, the perpetrators are required to pay Kasarubet (fine) which is about
6 to 8 goats or 1 bull if one does not have goats.
◆◆ S hort of sending a mediator, when the man is caught with the woman, the
relatives of the woman will each place a padlock on the door of the house
where the man and woman are found. The man will be required to pay SSP
500 to unlock each padlock.
◆◆ If in the course of the elopement or continued dating a man impregnates a
woman, he must pay a fine of 1 cow to the parents of the woman.
◆◆ A
nother method of marriage occurs by the selection of a husband by a family
for their daughter. A rich elderly man is normally selected. The woman is not
expected to defy the decision of her parents.
◆◆ T he third method of contracting marriage is by abduction. The man will
normally abduct his female lover if she hesitates to elope with him.
◆◆ A
ll the different methods of contracting marriage (elopement, abduction and
arranged marriages) are formalized and institutionalized by the payment of
bride price. Bride price can vary in amount from one village or community to
another. The following table illustrates some of the differences in the
payment of bride price:
Clan
Bride Price Required
Horiok
SSP 5000 and 50 goats, and 7 years
of gardening or 35 goats.
The Ilieu
20 cows and 6 bulls.
People of Hiyala
16 cows and 80 goats.
Torit, Abalwa, Mura hatiha, oronyong etc.
13 cows and 120 goats.
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In Search of a Working SYSTEM OF Justice for a New Nation
◆◆ T he bride price may also be paid by installments which may be paid over a
period of a life time.
◆◆ I n addition to the payment of bride price, some clans require the prospective
husband to farm and build a house for the in-laws. This practice is very
common in Hiyala, Ilieu and Tuhuba. This requirement is, however, not
prevalent among the Imurok, Iyire and Himodongo villages.
◆◆ T he wedding day is a very happy moment for the Lotuko and it will normally
be celebrated by the slaughtering of an animal, serving of drinks and an
accompanying dance for everybody’s entertainment.
1.2Divorce
Divorce is not a very common practice among the Lotuko and it is generally discouraged as it
interferes with family bonds that have been created by the institution of marriage. Divorce
occurs for the following reasons:
◆◆ Impotence of the man.
◆◆ Barrenness of the woman.
◆◆ E xcessive drinking by the woman rendering her incapable of discharging her
duties as a mother and a wife.
◆◆ W
here the husband does not treat and provide for the wives equally. If one of
the wives is of the opinion that the husband is not giving her equal treatment
with the others, she may opt for a divorce.
◆◆ Inability of the man to provide for his family for any reason, including
excessive drinking, running away from his family, laziness or any other form
of irresponsibility.
Responsibilities of spouses in marriage
The roles of spouses in marriage are explained to them by their parents during the marriage
ceremony. The spouses have the following responsibilities:
HUSBAND
WIFE
»» Take care of the property of the family
including the livestock and construct a
house for the family.
»» Respect their in-laws, the clan elders and
other members of the clan.
»» Duty to raise their children to become
responsible members of the community
who know how to live according to the
culture and the customary laws of the
Lotuko.
»» The wife has the obligation of performing
domestic chores such as fetching
firewood, water and preparing food for
the family.
»» Respect their in-laws, the clan elders and
other members of the clan.
»» Duty to raise their children to become
responsible members of the community
who know how to live according to the
culture and the customary laws of the
Lotuko.
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
Distribution of property after divorce
◆◆ H
ousehold goods like furniture, utensils and food are shared equally between
the woman and the man.
◆◆ T he children will normally remain with the father, or with the mother while
they are still young.
◆◆ The cattle will remain with the man and no cattle will go to the woman.
◆◆ W
here a woman managed to acquire cattle or goats with her money during
the duration of the marriage, she will be allowed to retain them.
◆◆ T he bride price will not be returned to the husband except if the woman
remarries. The said repayment will, however, be borne by the new husband.
◆◆ L and will remain with the husband since it is clan land which cannot be given
to outsiders. The woman can only claim rights to land while she is married
and considered part of the clan.
2 THE LAW OF WRONGS AND OBLIGATIONS
2.1
Sexual Offences
2.1.1Rape
◆◆ R
ape is common among the Lotuko but it is considered a serious violation of
the victim and her family. Rape is normally equated with death.
◆◆ T he offender will normally be required to pay a fine which varies from one
area to another. The fine may range from 1 to 13 goats, or 2 cows, to be paid
to the husband or family of the victim as the case may be. The Mwonyomiji
will also force the offender to provide a goat for a cleansing ritual.
◆◆ W
here the rape leads to death, the guilty person will be required to pay the
bride price to the husband or father of the victim as the case may be, as well
as for her funeral expenses.
◆◆ I n some cases, more especially where the guilty person does not have cows, a
girl child is provided as compensation for the death of the victim. This will,
however, depend on the negotiations between the parties involved.
◆◆ T hese days it is very common for rape cases to be referred to the formal court
system (to the first grade judge). A conviction usually results in a sentence of
7 years imprisonment.
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In Search of a Working SYSTEM OF Justice for a New Nation
2.1.2Adultery
◆◆ A
dultery is an offence of the highest order and is not tolerated in Lotuko
customary law. Since the man has paid bride price and taken on hard work to
get his spouse home, any person who commits adultery with her would have
caused one of the biggest of violations. In some instances, adultery causes
fights which may even lead to the death of the perpetrator.
◆◆ A
ny man who commits adultery with somebody’s wife will be required to pay
2 cows or the monetary equivalent of SSP 1000 or SSP 1500 to the aggrieved
husband.
◆◆ A
goat must be slaughtered to cleanse the family of the woman who may
suffer misfortunes as a result of the act of adultery. The goat is provided by
the man involved in the adultery. As part of the cleansing ceremony, the
stomach and intestines of the goat is smeared over the entire body of the
wife and her children. The adulterous man is warned not to repeat the crime.
◆◆ W
here the adulterous relationship results in pregnancy, the adulterous man
is required to pay a fine of 2 cows.
◆◆ A child born out of the adulterous relationship will belong to the husband.
◆◆ T he adulterous parties may also be killed. Such killing is accepted in Lotuko
customary law.
2.1.3Incest
◆◆ Sexual activity is prohibited among persons who are related by blood.
◆◆ A person who commits incest is considered to be a wizard.
◆◆ When incest occurs, a goat will be slaughtered for cleansing.
◆◆ N
o marriage will proceed from an incestuous relationship. The man involved
in the incestuous relationship is told clearly that marriage will not be
accepted between him and the woman.
2.2Offences Related to Bodily Harm
2.2.1Murder
◆◆ K
illing a human being is the gravest of offences in the customary laws of the
Lotuko.
◆◆ Killing may be intentional or accidental.
◆◆ W
here the killing is intentional, the perpetrator may be killed in retaliation by
the relatives of the deceased. Murder is increasingly being dealt with by
modern courts.
◆◆ W
here the killing is accidental, the perpetrator will be required to give a girl
child to the family of the deceased as compensation. The girl may later be
married into the family of the deceased or given to another family in
exchange for bride price.
◆◆ I f the family of the offender does not have a girl to provide as compensation,
they will be required to pay 18-20 cows.
◆◆ A
person who commits accidental killing will also be required to meet all the
funeral costs of the deceased.
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
2.2.2Bodily Injuries and Grievous Bodily Harm
◆◆ It is an offence to inflict bodily injuries to another person according to the
customary laws of the Lotuko. There is no distinction between intentional
and unintentional bodily harm in terms of compensation since both have the
same effect.
◆◆ C
ausing serious bodily harm and injuries is regarded as ‘killing the victim
half-way’ and must therefore, be compensated by a deserving number of
animals. Injuries and bodily harm are compensated in the following manner:
◆◆ W
here the injury is caused by a domesticated animal, the owner of the animal
is required to pay compensation to the injured party.
◆◆ W
here a domesticated animal kills a person, the owner of the animal is
required to compensate the family of the deceased as if the killing was done
by a person.
◆◆ N
o compensation will be paid to a person who is injured or killed by a
domesticated animal while he/she was trying to steal or harm it.
Type of Bodily Harm/Injury
Type/Amount of Compensation
Causing permanent damage to another
person’s eye.
6 cows.
Removal of front teeth.
1 male cow.
Broken or seriously injured leg or arm.
6 cows.
Damage to or removal of the ear.
3 cows and 30 goats.
Injured or deformed nose.
6 cows.
2.2.3
Wife Beating
◆◆ W
ife beating is allowed where a woman disobeys the lawful orders of her
husband.
◆◆ No compensation is payable for injuries sustained by a wife in the process.
◆◆ W
ife beating is, however, becoming less popular these days as compared to
the past.
2.3
Property Related Offences
2.3.1Robbery/Stealing/Theft/Stealing of Animals
◆◆ R
obbery is defined in Lotuko customary law as the forceful taking of
somebody’s property.
◆◆ W
here someone steals a cow or a goat, he is required to return the stolen
animal. In addition, the offender is required to pay an extra cow or goat as
the case may be, as a fine.
◆◆ W
here the stolen animal is not recovered, the offender is required to pay 2
animals in the place of the one that was stolen.
◆◆ W
here the stolen animal has been slaughtered, the culprit is required to pay
6 animals as compensation and a fine in addition.
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In Search of a Working SYSTEM OF Justice for a New Nation
2.3.2Arson
◆◆ It is not acceptable to destroy a person’s property by fire.
◆◆ C
ompensation for loss resulting from destruction by fire remains the same
regardless of whether the fire was accidental or intentional. It is the effect of
the destruction and not the intent of the offender that matters.
◆◆ A
ny person, who destroys a house by fire, is required to pay for the properties
that are destroyed in the house, including replacing any domesticated
animals that may have perished in the process.
◆◆ T he offender is also required to construct another house to replace the
damaged one.
2.4Insult
◆◆ Insult and disrespect to other people is generally not acceptable by the
Lotuko.
◆◆ A
n insult to the in-laws must be compensated by a fine. A he-goat must be
paid to the insulted father in-law and a she-goat to the insulted mother inlaw.
◆◆ A
ny young person who insults an elder will be cursed by the elder and if
nothing is done to repair the curse, the cursed person may die or experience
other misfortunes in life. To repair the curse, the offender will have to call
upon an intermediary to resolve the dispute. The young person will have to
ask for forgiveness, and swear that he will not repeat the misconduct. The
elder will then bless the young person as a sign of forgiveness.
3 LAW OF INHERITANCE AND SUCCESSION
◆◆ W
here a married man dies, his properties (cattle, garden and land) are
inherited by his first son. In many cases, cattle would have already been
distributed to the wife and sons during the life time of the man.
◆◆ W
here a married man dies without children, his estate is inherited by his
wife/wives.
◆◆ T he wife of the deceased will normally be given the opportunity to choose to
have children with any of the brothers of the deceased. The widow is not
compelled to make a selection from among the brothers of the deceased
husband. She may select any other man as long as he hails from the clan of
her deceased husband. Any children born out of the new relationship belong
to the deceased husband. The ‘new husband’ will not inherit the properties of
the deceased nor will he acquire any rights over the properties of the widow.
◆◆ W
here an unmarried man dies, his properties are inherited by his brothers. If
he has no brothers, his properties are inherited by his father and mother.
◆◆ W
here an unmarried woman dies, her properties are inherited by her
brothers. Her father and mother will inherit her properties where she has no
brothers.
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
4 LAND LAW
◆◆ A
ll land belongs to the entire community but remains under the custody and
protection of the landlords, the chiefs and mwenyemiji. Land is, however,
distributed amongst the different clans who have priority rights in their
locations over other Lotuko clans and non-Lotuko. Besides communal land,
land is also available for private use such as for farming and family use.
◆◆ G
razing land is communal and every member of the tribe is allowed to graze
through a priority of rights arrangement. The consent of the clan occupying
the piece of land is required to secure grazing rights. The landlord must
perform rituals for the new occupants or users. In the absence of such ritual,
it is believed that diseases will befall the animals and people on the land.
◆◆ N
on-Lotuko, including IDPs may acquire Lotuko land by special arrangement.
Outsiders wishing to acquire Lotuko land must initially pass through a friend
who will introduce him/her to the chief of the area. The chief will then consult
with the Monyomiji, the clan elders and the landlord about the application.
Where the application is successful, the land will be shown to the applicant
by the Monyomiji. These days the county government must be consulted
prior to the allocation of land to outsiders. The landlord will have to perform
the necessary rituals before occupation takes place so that the land may be
productive and not harmful to the new occupier. This is done by blessing the
house with water and charcoal.
◆◆ T he daughters of the Lotuko may be given land for building houses and
farming purposes. However, they may not pass on such land to their children
or husbands. This is because land belongs to the clan and cannot be given to
outsiders without following the proper procedure.
5 ENVIRONMENTAL LAW
◆◆ T he environment is a very important aspect of Lotuko customary law. The
water, pastures and fruit trees are the daily fountain on which life thrives and
should therefore be respected.
◆◆ T he cutting down of fruit trees and edible plants such as coconuts, tamarind,
passion fruits, mangoes and avocados is prohibited. Any person who cuts
down an edible tree is liable to a fine of 1 cow by the Monyomiji.
◆◆ A
ny person who destroys or contaminates a water source will be liable to pay
a fine of 1 cow to the Monyomiji. Where the contamination is a minor one,
the perpetrator will be required to pay 1 goat. In all cases, a warning is given
to the offender not to repeat the offence.
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In Search of a Working SYSTEM OF Justice for a New Nation
6 AREAS FOR REFORM
During interviews, a few areas of Lotuko customary law were earmarked for reform. While the
greatest concern and suggestions for reform related to the non-conformity of aspects of
customary law with human rights and justice, a few other areas were recommended for
reforms because they have overstepped the limits of customary law.
6.1Girl Child Compensation
The act of paying away children as compensation in murder is the worst form of abuse of a
young girl. The young girl will be deprived of the love and care of her parents. Such girls are
sometimes tortured by the new family, as her mere presence invokes memories of the
deceased person she was brought in to replace. Reforms are therefore required to rescue
young children from this atrocity. One recommendation was made to the effect that the
young girl should not be taken to the home of the deceased and that she remains in the
custody of her parents. However, when she gets married whatever is paid as bride price should
be handed to the relatives of the deceased as compensation.
6.2Beating People in the Course of Elopement
The practice of beating boys as punishment for elopement was recommended for reform.
Among other reasons, this is regarded as cruel, inhuman and degrading treatment, and
amounts to a direct interference with the privacy and choice of the boy and the girl to choose
their partners in marriage. Moreover, the practice has potential negative impacts on the future
wife who will often be beaten by her husband in retaliation for his punishment for elopement.
6.3Forced Marriage
In Lotuko customary law, parents often encourage and direct their girls as to whom they
should marry. Parents often prefer rich men. This amounts to forcing the girl to marry a person
who may not be her choice. This is another area that should be reformed.
6.4High Rates of Bride price
The institution of marriage among the Lotuko has become prohibitively expensive and has
departed from customary law practices of the past. The fact that it is common for school fees
to be charged as part of the bride price (sometimes SSP 50,000 or more) coupled with the
practice of locking the house of the eloper (with one padlock costing about SSP 500 to
unlock), is exorbitant. Besides, nowadays, even a payment of SSP 5,000 for the dress of the
lady is imposed.
In the past, the expenses were uniform and consistent. Everybody paid between 10-15 cows.
Currently, no such uniformity exists. Presently, marriage expenses vary according to the
material wealth of the parties involved. It is recommended that these prohibitive bride price
expenses be harmonized, as was the case in the past.
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
Members of the Lango community pose for photo
after validation workshop of the ascertainment study
4
THE CUSTOMARY
LAWS OF THE LANGO
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In Search of a Working SYSTEM OF Justice for a New Nation
THE PROFILE
The people
The Lango live in the Ikotos county of Eastern Equatoria state of South Sudan. Ikotos is located
at the border with Uganda and is the seat of the Imatong Mountain with the highest peak in
South Sudan - Mount Kinyeti. Lango is the name given to a larger group which is composed of
six sub-tribes - the Lokwa, Dongotono, Katebo, Logir, Lorwama and the Imatong. The Lotuko
and the Acholi also live in the Ikotos, as do many recently returned IDPs. The Lango speak the
Lotuko dialect.
Political and social organization
The Lango are agro-pastoralists rearing different species of animals as well as practicing
cultivation. Cattle and other animals are important for customary law obligations and
functions. No wonder why the Lango always quarrel over cattle raids.
The Lango community is an egalitarian society where everybody participates in the decisionmaking processes under the leadership of respected elders, clan elders, rain-priests, landlords
and other traditional institutions. The highest political institution is known as the amangat (a
sort of parliament).
1 FAMILY LAW
◆◆ The different sub-ethnic groups that make up the Lango have slight
differences regarding their laws of marriage. Major variations are to be found
in the bride price payable. Overall, the principles applicable to family law are
the same in substance.
1.1Marriage
◆◆ I n all groups of the Lango cluster, the entry point into marriage is a love affair
between the man and the woman. There are, however, significant differences
between the different ethnic groups in relation to marriage.
◆◆ M
arriage by kidnapping and elopement is practiced by all Lango sub-tribes
except the Ketebo sub-tribe.
Marriage among the Lokwa sub-tribe
The following are the normal procedures which must be followed before a marriage is
conclusively contracted among the Lokwa.
◆◆ T he woman and man commence the relationship by dating, and consequently
decide to marry.
◆◆ The man then informs his father that he intends to marry the girl of his choice.
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THE ASCERTAINMENT OF CUSTOMARY LAWS OF THE TOPOSA, LOKUTO, LANGO AND LOPIT COMMUNITIES OF THE EASTERN EQUATORIA STATE OF SOUTH SUDAN
◆◆ I f the father of the man agrees, the next move will be to approach the parents
of the woman to seek their consent to the marriage of their daughter to his
son. This is normally done by the father of the man.
◆◆ If the application is accepted, the family of the man will have to pay a bride
price of 22 heads of cattle.
◆◆ T he man will further have to stay with his in-laws for a period of 3 years,
during which he will be involved in farming for the in-laws. This is a
probationary period during which the in-laws will have the opportunity to
determine whether the prospective son in-law will be able to take care of
their daughter. He will also be required to build a house for the mother in-law
and a granary for the family.
◆◆ T he mother in-law will also be given a bull as a sign of respect for the labour
pains and difficulties she endured while giving birth to the bride. This is
known as ‘Neduku’ in Lango language.
Marriage among the Dongotono sub-tribe
◆◆ T he Dongotono procedures and requirements for marriage are the same as
those of the Lokwa except that among the Dongotono, besides the normal
bride price of 22 heads of cattle, a goat known as the ‘edaton’ must be given
to the mother of the bride.
Marriage among the Logir sub-tribe
◆◆ B
ride price among the Logir may vary from one family to another ranging
from 26-30 heads of cattle. In practice, however, bride price can be more than
that, sometimes even up to 100 heads of cattle.
◆◆ W
hen the matter of bride price is taken to court, the customary 22 heads of
cattle is normally imposed.
◆◆ W
hen the woman gives birth to her first child, the husband will have to pay
10 heads of cattle to the first uncle of the wife. When she gives birth to her
second born, the second uncle of the wife will be paid 6 heads of cattle. When
she gives birth to third child, 3 heads of cattle will be paid to the first uncle
and 2 heads of cattle to all the other uncles of the wife.
◆◆ T he man will also have to give 1 cow to the mother in-law as costs of seeds to
be planted in the farm of the in-laws.
Marriage among the Katebo sub-tribe
◆◆ A
spear, hoe, tobacco and a goat are paid to commence marriage
negotiations. This may vary from family to family.
◆◆ B
ride price is set at 25 cows but additional goats may be offered. The man
must also cultivate a farm for the in-laws for 3 years. He may build a granary
where he is unable to cultivate.
Marriage among the Imotong sub-tribe
◆◆ Among the Imotong, the bride price is 15 heads of cattle and 5 goats.
◆◆ T he son in-law will also be required to cultivate the farm of the in-laws for
3 years.
◆◆ The son in-law will also have to build a house for the in-laws.
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In Search of a Working SYSTEM OF Justice for a New Nation
Marriage among the Lorwama sub-tribe
◆◆ A hoe, a spear and tobacco are paid to commence marriage negotiations.
◆◆ Bride price is set at 22 cows.
◆◆ 5 goats are paid to the maternal uncle of the bride.
◆◆ 1 goat is paid to the maternal aunt of the bride.
◆◆ T he groom is required to cultivate for the bride’s family for a period of 3 years.
Where he is unable to cultivate, he is required to pay 3 cows to cover the
costs of labour.
◆◆ T he groom is required to build a house for his in-laws or provide them with a
cow where he is unable to do so.
◆◆ A goat is provided for the purposes of blessing the marriage.
◆◆ A
ll payments are made in full or by installments, in accordance with the
agreement between the parties.
Marriage among the Lotuko sub-tribe
◆◆ A bride price of 22 heads of cattle is paid to the parents of the bride.
◆◆ T he man pays another 8 cows for the first child produced by the wife, 7 cows
for the second child, 6 cows for the third child, and 5 cows for the fourth child
and so on. The man must also build a house and cultivate a farm.
◆◆ No cattle will be paid to the uncles if the woman gives birth to boys only.
However, if one of the boys is killed, a certain amount of cattle should be paid as
blood compensation to the uncles of their mother.
1.2Divorce
The reasons for divorce are similar among the different sub-groups of the Lango group. The
following are the recognized grounds for divorce:
◆◆ E xcessive drinking by the woman to the extent that she is not capable of
attending to her duties in the house and to her family.
◆◆ Excessive cruelty by the husband towards his wife, including beating,
violence and any other act which will make the marriage unbearable for the
wife.
◆◆ I nability of the woman to have children. The husband may decide to keep the
wife and marry another wife to bear children. Where the husband initiates
divorce due to inability of the wife to have children, the bride price will not
be paid back because the wife has done nothing wrong.
◆◆ W
hen the husband does not respect the in-laws, the latter may decide to
recall their daughter thus bringing the marriage to an end.
◆◆ U
nfaithfulness on the part of the woman. Repeated incidences of adultery
will warrant a divorce by the husband. Unfaithfulness on the part of the
husband will not lead to divorce.
◆◆ W
hen the woman is lazy, disrespectful to her husband and disobeys his
commands.
◆◆ Where the wife is a thief thereby discrediting her husband and his family.
◆◆ Impotence of the husband may lead his wife to demand a divorce. In many
cases, the wife will simply get her children from other men, sometimes with
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the full knowledge of the husband. However, the children will belong to the
husband.
◆◆ W
hen the husband is a loiterer, irresponsible and does not take care of the
children and his family.
◆◆ I n a polygamous marriage, failure to treat the wives equally provides grounds
for the wife affected by the unequal treatment to seek a divorce.
◆◆ Frequent death of children.
◆◆ Poverty.
◆◆ Practice of witchcraft or wizardry.
Division of matrimonial assets in divorce
◆◆ T he Dongotono: The husband takes everything in the house. Where the
husband takes the children the bride price will not be reimbursed.
◆◆ T he Lokwa: The wife may take the children. Where the relationship is still
amicable she may be given some sorghum. The wife takes her clothes and
the cooking utensils. The husband retains the house.
◆◆ T he Katebo: The children stay with the husband. The bride price is not
returned if the woman produced children. The woman gets the house.
◆◆ T
he Lorwama: The wife retains the household items. The husband retains
the children, house and the cows.
2 THE LAW OF WRONGS AND OBLIGATIONS
2.1
Sexual Offences
2.1.1Rape
◆◆ R
ape is a serious offence under the customary laws of all the Lango groups.
There are, however, slight variations in the punishments and fines that are
imposed on the culprits. In some cases, no punishment is imposed. A
cleansing rite is performed instead.
◆◆ A
mong the Lokwa, rape is compensated by paying 1 cow to the family of the
victim. In cases of attempted rape, 2 goats are paid as a fine.
◆◆ I f a man rapes a married woman the punishment in the formal courts of law is
7 years imprisonment, but the chiefs sometimes imprison the perpetrators
for 2 years only. The man must also pay the woman 3 cows and a goat for a
cleansing ritual.
◆◆ I f a woman falls pregnant as the result of rape, the man must pay an additional
15 goats plus 1 goat for the cleansing ritual. The child will belong to the
husband.
◆◆ W
here rape results in the death of a woman the man must pay 12 cows to her
husband, a goat for the cleansing ritual, and the cost of the funeral.
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◆◆ A
man cannot rape his wife as marriage includes consent to sexual
intercourse.
◆◆ There is no provision in the law relating to the rape of men by women.
2.1.2Adultery
◆◆ A
dultery is a serious intrusion into the family of another person and can lead
to deadly fights between the perpetrator and the husband of the woman.
Cases of adultery are normally referred to the chief. The man involved in the
adultery will be imprisoned for a year while the woman will be imprisoned
for 6 months. The guilty man is supposed to provide cows as compensation
to the husband of the wife, as well as a goat for cleansing purposes.
◆◆ P
ayment of compensation varies among the various sub-tribes. These are,
Lotuko (a cow and a bull), Lorwama (2 cows), Imotong (1 cow), Katebo (4
cows), Logir (2 cows), Dongotono (1 cow) and Lokwa (1 cow).
2.1.3Incest
◆◆ S exual activity is prohibited among persons who are closely related by blood.
Incest may be intentional or accidental.
◆◆ W
hen two persons commit incest without knowledge that they are related,
no punishment will be imposed. However, a goat will be sacrificed to cleanse
them from possible misfortunes that may befall them and their offspring.
◆◆ A
ny person who commits incest knowingly, will be lashed and warned not to
repeat the offence.
2.1.4
Pregnancy Outside Marriage
◆◆ P
regnancy outside wedlock is not accepted under the laws of the Lango.
Different Lango groupings have different ways of dealing with this.
◆◆ K atebo: Fine of 1 cow or 15 goats, and 1 goat for a cleansing ritual.
The child goes to the husband. The wife also goes back to her husband.
◆◆ Lotuko: Fine of 1 cow or 15 goats, and 1 goat for a cleansing ritual.
The child goes to the husband, and the woman and husband are separated.
◆◆ D ogontono: 4 cows and a goat. A bull is also required for the uncles of
the woman.
◆◆ O
ne way of proving that a married woman was impregnated by a person
other than the husband is if she falls pregnant while her husband is away.
◆◆ If a man impregnates another woman, the wife has no cause of action since
the husband had paid bride price. A married woman is regarded as the
property of the husband and she is ‘voiceless because of the cows’.
2.2Offences Related to Bodily Harm
2.2.1Murder
◆◆ M
urder is the gravest of all offences amongst all Lango groups and is,
therefore, punished severely.
◆◆ Murder can be divided into deliberate and accidental murder.
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◆◆ D
eliberate murder is punished by the offender paying the funeral expenses
and compensation of 22 heads of cattle.
◆◆ If the offender cannot afford 22 heads of cattle, he is required to provide the
family of the deceased with a girl as compensation for the death of the
deceased.
◆◆ A
ny person who causes accidental murder will be required to pay for the
funeral expenses as well as a compensation of 22 heads of cattle. This number
has been reduced to 12 heads of cattle.
2.2.2Bodily Injuries and Grievous Bodily Harm
◆◆ L ango customary law makes a distinction between bodily injuries that are
caused by domesticated animals (dogs, cows, sheep, cats and donkeys) and
those caused by human beings.
◆◆ A
person who causes injuries to another leading to the loss of a leg, eye, arm
or limb, is required to pay 6 cows to the victim as compensation. 1 cow will
be paid as compensation for the loss of ears, fingers and the infliction of cuts.
◆◆ A
person whose domesticated animals causes injury to another person,
causing the loss of arms, legs or limbs, will be required to pay compensation
of 6 cows to the victim and 1 cow for other injuries such as loss of the ear,
finger and normal cuts.
◆◆ N
o compensation will be paid for bodily injuries caused to a person by a
human being or animals while in the course of committing a crime.
2.3
Property Related Offences
2.3.1Robbery
◆◆ R
obbery according to the customary laws of the Lango is defined as the
forceful taking of somebody’s property.
◆◆ W
hen a robber is caught, he may be killed or severely beaten. Where the
stolen property is recovered from the robber by persons other than the
owner, the owner is required to provide food for the persons who retrieved
the stolen property.
◆◆ More recently, robbery cases are dealt with by the police.
2.3.2Theft
◆◆ Theft is the taking of a person’s property without the person’s permission.
◆◆ It is an offence for someone to take somebody’s property without his or her
permission.
◆◆ A
person who steals someone’s property will be required to pay double the
amount of what was stolen in cash or in kind.
◆◆ W
here the offender kills the stolen animal, he is required to repay twice the
value of the animal.
◆◆ W
here the stolen animal is recovered alive, the offender is required to return
the stolen animal and a fine of 1 extra animal is imposed on him.
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2.3.3Cattle Raids and Tracing of Stolen Animals
◆◆ When cattle are traced and found, they are returned to the owner.
◆◆ W
here a cattle raider is killed by those engaged in its recovery, no
compensation or payment is due to his or her family.
◆◆ W
here the owner of the stolen animal is killed during a cattle raid, the raiders
are required to pay 24 heads of cattle to his family.
2.3.4Arson
◆◆ A
ccording to Lango customary law, arson can be divided into accidental and
intentional burning of a house.
◆◆ It is an offence for someone to burn somebody’s house, intentionally.
◆◆ A
person who accidentally burns a house will be required to pay
compensation amounting to the monetary value of the house and also
provide a goat to be slaughtered for a cleansing ritual.
◆◆ A
person who intentionally burns down a house will be required to
compensate the victim in monetary terms the value of the house and the
properties that have been destroyed.
◆◆ In addition to compensation, the guilty person is required to provide the
victim with accommodation. The offender is also subjected to corporal
punishment.
3 LAW OF INHERITANCE AND SUCCESSION
◆◆ W
here a married man dies, his brothers will inherit his properties. Where he
has no brothers, his properties are inherited by his son.
◆◆ T he cows/bride price will be placed under the responsibility of the father and
brothers of the deceased husband.
◆◆ T he wife is inherited by a close relative. This is done with the consent of the
wife.
◆◆ T he brother of the deceased takes full responsibility of the widow and her
children.
◆◆ U
pon the death of an unmarried man, his properties are inherited by his
parents.
◆◆ U
pon the death of a married woman, her husband inherits her property.
If her children are young, they are raised by their grandmothers.
◆◆ A married woman may not make a will. If she does, it will not be followed.
◆◆ The properties of an unmarried woman are inherited by her parents.
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4 LAND LAW
◆◆ Land belongs to the community who settle in specific areas.
◆◆ Land includes vegetation, and minerals.
◆◆ The land belongs to the landlords.
◆◆ Land is acquired by consultation with the landlords.
◆◆ I DPs can acquire land temporarily. The process of allocation involves the local
authorities and the community.
◆◆ There is no law regulating the purchase and sale of land.
◆◆ Women and widows can own land under the supervision of their relatives.
◆◆ Land is given free of charge to any relative.
◆◆ Land is inherited through family lines or through a friend.
◆◆ Land is divided according to the clans.
◆◆ Land is designated for communal use such as for grazing and agriculture.
◆◆ Land is available for individual purposes.
◆◆ S acred land is available for spiritual and cultural purposes e.g. shrines, forests,
mountains, caves, rivers and huge trees.
◆◆ T he ownership of land can be proved through long occupation, graves, crops,
trees, permanent structures and fixtures.
◆◆ B
oundaries are demarcated by big trees, piling stones, pegs of ebony woods,
and by planting perennial trees at the boundaries.
◆◆ The ancestral rules are used for the inheritance and the use of land.
5 AREAS FOR REFORM
There are a few areas of the customary law of the Lango that the communities felt are in need
of reform because they violate human rights and the Transitional Constitution of South Sudan.
Areas in need of reform include:
5.1Girl Child Compensation
The customary law practice of many Lango groups that require the ‘paying’ of a girl child as
compensation in murder related offences was seen by many as an area that should be
reformed. Giving a child away as a form of compensation violates the rights of the child who
is reduced to a mere object of exchange. Besides, the family of the deceased will often
mistreat the girl since she reminds them of their dead relative. To this end, two
recommendations were given:
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The practice of girl child compensation should be abolished completely.
In the alternative, instead of giving the child as compensation, the said child could still remain
with her parents and when she is old enough for marriage, the relatives of the deceased could
receive the bride price from the person who marries the girl.
5.2Locking Doors During Elopement
The practice whereby the family of the girl who elopes locks the doors of the house of the
culprit should be abolished. This is because it was not originally part of Lango culture.
Moreover, it is a bad practice that interferes with the freedom of the girl to choose her own
spouse. The practice is also bad because there is no limit as to the amount to be paid to open
the doors. It is a purely commercial arrangement which further undermines the status of
women.
5.3
Impregnation by Teachers
At the moment, there is no law that deals with teachers who impregnate school children.
Since this is becoming a very notorious practice, legislation should be enacted to deal with
teachers who impregnate school girls.
5.4Beating or Killing of Wizards
The practice of beating, which often leads to the killing of people suspected of being wizards,
violates the due process rights of the person who may be killed just on mere suspicion.
5.5Ownership of Land
The post conflict situation has led to several IDPs settling on Ikotos land. Some of these IDPs
belong to other communities like the Dinka and the Acholi. Due to these dynamics, it is no
longer feasible to have the land of the Lango people being held and controlled under the clan
arrangement. Land should belong to the entire community.
5.6Refunding of School Fees During Marriage
The practice of parents demanding compensation for the expenses borne by them for
educating their girls should be abolished. This is because it is the responsibility of the parents
to take their children to school. Therefore, they should not be compensated for performing
their duty. It is also a bad practice because it reduces the dignity of women and equates them
with material things whose prices can be negotiated.
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Members of the Lopit community pose for a photo
after validation workshop of the ascertainment study
5
THE CUSTOMARY
LAWS OF THE LOPIT
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THE PROFILE
The People
The Lopit are a Nilotic group which inhabit the Lopit Hills of Lopa/Lafon county, Eastern
Equatoria state of South Sudan. Their main settlements are Lohotok, Olongo, Otuho and
Lomiaha in the south of Lopit, Ngotira in central Lopit Dorrik, Ngaboli and Tennet Mehejek.
The Lopit speak a language that is closer to the one spoken by the Lotuko and Dongotono of
South Sudan and the Maasai of Kenya and Tanzania. The Lopit are agro-pastoralists, rearing
cattle, goats and sheep as well as farming a variety of crops. The immediate neighbours of the
Lopit are the Pari, Lotuko, Boya and Toposa with whom they share a bitter history of conflict.
The fact that the name of the county has two names, Lopa and Lafon is a living example of this
animosity. The Pari prefer to call the county Lafon while the Lopit prefer to call it Lopa.
Political and social organization
The Lopit have no centralized system of political organization but rather a system of
decentralized political organization. Political authority is divided among different institutions
with each having its different duties and responsibilities. The elders are the advisors of the
community and they serve as a check on the powers and decisions of the ‘ruling class’ the
Monyomiji who are in turn expected to respect the elders. The Inyarhalo are a group of young
boys whose leader reports to the landlords and the rainmakers. The landlords are in charge of
the land and the animals. They are also in charge of the food and deal with sickness and
diseases. The rainmakers are in charge of rain and their sole task is to provide rain. Each clan
has its respected elders who make important decisions in their respective clans. Decisions are
made in meetings which are attended by all adult men and everybody is provided with an
opportunity to give his opinion on matters under discussion. Women are not allowed to
attend these meetings and do not participate in important forums that make societal or clan
decisions. The different institutions above play a part in enforcing compliance with rules of
customary law.
1 FAMILY LAW
1.1Marriage
◆◆ M
arriage arrangements commence with the man and woman. Upon deciding
to get married, they may decide to elope. The man will inform his parents of
the elopement and his marriage intentions afterwards. The man will
thereafter send a messenger to the parents of the woman, confirming to
them that he has eloped with their daughter.
◆◆ T he family of the man and woman will then convene to agree on a bride
price. Among the Lopit, the amount of animals to be paid for the bride may
differ from place to place. In Otuho, the bride price is 22 cows, 30 goats, 60
spears and a bull. In Lolongo, the bride price is 20 cows, 30 goats and 30
spears. In Lotuhok it is 20 cows, 40 goats and 6 spears. In Lomiaha it is 26
cows, 40 goats, 20 spears and 6 bulls. In Ihmejek it is 16 cows, 30 goats, 100
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spears and 1 bull. In Ibohi/Omeha it is 18 cows, 40 goats, 100 spears and 1
bull. In Dorrik and Ngotira it is 16 cows, 30 goats and 100 spears.
◆◆ In north Lopit 6 cows are given to the maternal uncle. In south Lopit and
central Lopit, the maternal uncle receives 8 and 7 cows respectively.
◆◆ T he said animals may be paid all at once or by installments depending on the
agreement of the two families. Part of the bride price may be paid at a later
stage, usually when the wife gives birth to a girl child.
◆◆ B
efore the man is allowed to take the wife home, he must work in the
compound of the in-laws for a period of 2-3 years, cultivating the family’s
farm and building a house for them.
◆◆ T here are no forced marriages among the Lopit even though this practice
existed in the past.
1.2Divorce
◆◆ D
ivorce occurs when one of the spouses fail to discharge the functions
expected of him or her under customary law. Divorce is a very undesirable
occurrence and efforts are usually made by the elders and relatives to resolve
misunderstandings among couples. However, where efforts to reconcile the
couples fail, the marriage will be dissolved. The possible causes of divorce
appear in the following table.
Reasons to be Advanced by the Wife
Reasons to be Advanced by the Husband
»» Impotence.
»» Inability to provide for the family.
»» Excessive drinking and violence.
»» Lack of respect for the in-laws.
»» Influence of the parents.
»» Laziness.
»» Barrenness.
»» Excessive drinking.
»» Jealousy of the co-wives.
»» Inability to discharge house hold duties.
»» Repeated acts of adultery.
»» Influence of the parents.
»» Laziness.
Division of matrimonial assets in divorce
◆◆ T he wife retains custody of the children where the divorce was initiated by
the husband. In this vein, the bride price must be refunded to the husband.
◆◆ If the cause of the divorce is barrenness, the bride price will be refunded to
the husband.
◆◆ T he garden or farm will be divided equally between the husband and wife.
The household goods and implements will also be shared.
◆◆ W
here divorce is initiated by the husband, he is required to give each child a
bull and a cow. The children are given the cows because they will need to
start a living without the assistance of their father. The children will remain in
the custody of their mother. The bride price is returned to the husband.
◆◆ F urniture and harvested crops are divided equally. The land is retained by the
husband since a woman cannot own clan land.
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2 THE LAW OF WRONGS AND OBLIGATIONS
2.1
Sexual Offences
2.1.1Rape
◆◆ R
ape is a serious abomination among the Lopit, and is equated to killing in
terms of seriousness. It therefore attracts a very serious punishment.
◆◆ T he rapist is required to pay 4 cows to the family of the woman. The amount
can be higher, ranging from between 5 to 10 cows depending on the clan,
and the gravity and effect of the crime on the family.
◆◆ S ometimes, a rapist is killed outright by the relatives of the victim. Such
killing does not amount to an offence since rape is equivalent to killing.
◆◆ No marriage is allowed to proceed from a rape case.
◆◆ T he rapist will not be allowed to marry from the clan or area of the victim as
no woman will agree to be married by a rapist.
◆◆ A
goat will be slaughtered for a cleansing rite at the site where the rape took
place. The stomach and intestines will be poured at the site of the rape. If this
is not done, it is believed that the future children of the rapist and the victim
may experience abnormalities and misfortunes.
2.1.2Adultery
◆◆ Adultery is a serious crime in Lopit customary law.
◆◆ A
ny person who commits adultery with another person’s wife is required to
pay 1 female cow to the aggrieved husband. Where the adulterous
relationship results in pregnancy, a bull is paid in addition. A bull is paid to
the parents of the woman.
◆◆ A
woman who commits adultery is not punished since it is the man who
made the criminal advances towards her.
◆◆ A
child born of an adulterous relationship will remain with the family of the
woman.
2.1.3Incest
◆◆ Sexual intercourse between people related by blood is prohibited.
◆◆ N
o punishment is imposed for incest. However, the culprit must slaughter a
goat whose bowels must be opened and poured in the area where this
abomination took place. The meat of the goat should not be eaten but
rather thrown away. If this ritual is not performed, the parties involved in
the incest risk producing children who will be afflicted by abnormalities or
failures in life.
◆◆ A
ny person who commits intentional incest will be banished and excommunicated from the family and the community.
◆◆ No marriage will be allowed to proceed from an incestuous relationship.
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2.1.4Fornication
◆◆ Fornication is a serious offence according to the customary laws of the Lopit.
◆◆ Sexual intercourse outside marriage is not common among the Lopit.
However, should this occur, the guilty party must be seriously punished.
◆◆ T he guilty man must pay a bull to the family of the woman. The man will have
the choice of marrying the woman after following all the necessary marriage
rites.
2.2Offences Related to Bodily Harm
2.2.1Murder
◆◆ Murder is the gravest of all offences under Lopit customary law.
◆◆ Murder may be accidental or intentional.
◆◆ A
ny person who commits intentional murder is punished by death.
Vengeance will normally be done immediately by a close relative of the
deceased. Such killing is perfectly acceptable.
◆◆ T he killer will also normally plead with the community through the landlords
to be pardoned and if the community agrees to his plea, the killer will be
required to pay blood compensation, by giving a young girl to the family of
the deceased as compensation. However, this practice is no longer
encouraged and 22 cows may be paid instead. The offender is also required
to pay for the funeral expenses of the deceased in the form of 5 cows.
◆◆ If the killing is accidental, the offender is required to pay for the funeral
expenses of the deceased. As compensation for the life of the deceased, the
person who committed the accidental killing is required to pay 12 heads of
cattle to the family of the deceased. Where the killer does not have cattle, he
or she will have the option of paying a girl child instead of the cattle. However,
this practice is no longer encouraged.
◆◆ The two affected families will bring 2 goats to be slaughtered for the
cleansing ceremony. This signifies reconciliation between the two families.
◆◆ W
here the killing is intentional, a cleansing ceremony must be performed at
the house of the offender to prevent abnormalities and other undesirable
consequences from afflicting his children.
2.2.2Bodily Injuries and Grievous Bodily Harm
◆◆ C
ausing bodily injuries to another person with intent is prohibited. The
perpetrator of such harm is required to pay compensation, depending on the
gravity of the injury.
◆◆ A
ny person who breaks another person’s arm, rendering him disabled, is
required to pay a compensation of 6 heads of cattle.
◆◆ No compensation is payable for injuries that are caused accidentally.
◆◆ W
here a goat, sheep or donkey causes serious bodily injury to a person, the
animal causing such injury should be given to the injured person.
◆◆ No compensation shall be given for injuries that are caused by dogs and cats.
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2.3
Property Related Offences
2.3.1Robbery and Theft
◆◆ Robbery is defined as the forceful taking of a person’s property.
◆◆ W
here a person steals 1 cow or goat, he is required to return the stolen
animal. In addition, the offender is required to pay a fine of a cow or a goat.
◆◆ W
here the stolen animal is not recovered, the culprit is required to pay 2
animals in the place of the stolen one.
◆◆ W
here the stolen animal has been slaughtered, the offender will be required
to pay 6 animals as compensation as well as a fine.
2.3.2Arson
◆◆ The destruction of a person’s property by fire is prohibited.
◆◆ C
ompensation for losses resulting from destruction by fire remains the same,
regardless of whether the fire was accidental or intentional. It is the effect of
the harm and not necessarily the intent of the offender that counts.
◆◆ A
ny person who destroys a house by fire, is required to pay for the properties
that were destroyed in the house, including replacing any domesticated
animal that may have perished in the fire.
◆◆ B
esides paying for the objects that were destroyed, the offender is required
to construct another house to replace the one that was destroyed.
2.4Other Offences
2.4.1Insult
◆◆ Insults are prohibited by Lopit customary law. Insulting of the in-laws is
particularly discouraged as spouses are particularly expected to accord
respect to their in-laws.
◆◆ Insults to persons other than the in-laws will not necessarily attract a fine
even though it is highly discouraged.
◆◆ A
ny person who insults his mother in-law will be required to pay a fine of a
female goat and ask for forgiveness from the mother in-law, swearing never
to repeat the insult.
◆◆ A
nyone who insults his father in-law will be required to pay a fine of a male
goat and swear in his presence, never to repeat the insult.
◆◆ R
epetitive insults of the in-laws may lead to a breakdown of the family
relationship thereby causing divorce.
◆◆ O
ne is not allowed to greet the mother in-law by a hand shake. This can only
be done after a special ritual has been performed.
2.4.2Witchcraft
◆◆ W
itchcraft is absolutely not tolerated. A person practicing witchcraft may
suffer death at the hands of the community.
◆◆ A
person suspected of practicing witchcraft will be cursed by the landlords
until he/she agrees that he/she is a witch.
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3 LAW OF INHERITANCE AND SUCCESSION
◆◆ U
pon the death of a husband, his properties will be inherited by his eldest
son. Where he has no sons, the wife will inherit the properties.
◆◆ U
pon the death of a wife, the properties will be inherited by the husband. If
she is a widow, her properties will be inherited by the eldest son.
◆◆ G
irls generally do not inherit the property of the family as they will eventually
be married by another family to which they cannot take the property of their
parents.
◆◆ W
hen an unmarried woman dies, any property she may have accumulated
will go to her brothers.
◆◆ When an unmarried man dies, his properties are inherited by his brothers.
4 LAND LAW
◆◆ All land belongs to the community.
◆◆ Territories are further subdivided into clan land. Notwithstanding this
subdivision, every Lopit has a right to use any part of Lopit land for grazing,
subject to the principles of priority of rights and reciprocity.
◆◆ IDPs and outsiders wishing to get land among the Lopit must obtain the
consent of the chiefs, landlords, Monyomji and clan elders. However, they
must initially pass through a Lopit who is willing to give them land. The
landlord must, however, perform the necessary rituals so that the land
becomes productive and harmless to the new comer.
◆◆ A
t the start of the planting season, every member of the community must
take their seeds to the landlord to perform certain rituals, to ensure the
productivity of the land and an abundant harvest.
5 ENVIRONMENTAL LAW
◆◆ The Lopit are natural conservators and take every care to protect the
environment.
◆◆ T o protect the environment, Lopit customary law prohibits the unnecessary
felling of some trees especially the very large ones. For example, it is an
offence to fell and cut the tamarind tree.
◆◆ W
hen one cuts a tamarind tree, he/she must report immediately to the
landlord of the area where the tree is located.
◆◆ A
ny person who cuts down a tamarind tree or any other large tree that is
protected, shall pay a fine of 1 goat to the landlord for each tree that is cut
down.
◆◆ It is an offence to destroy water sources.
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Certificates of Validation
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CONSTITUTIONS
The Interim Constitution of South Sudan,
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Legislation
Civil Justice Ordinance, 1929.
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Cases
Angu v Attah (1916) Gold Coast Privy Council
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Bonsi v Adjena (1940) W.A.C.A., 241.
Re Southern Rhodesia DM Truket (1972)
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Empowered lives.
Resilient nations.