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SPLM Secretariat for Legal affairs and Constitutional Development ...

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SPLM Secretariat for Legal affairs and Constitutional Development ...SPLM,and,for,AND,And,splm

    SPLM Secretariat for Legal affairs and Constitutional

    Development(SOLA)

    Customary Law Steering Committee (CLSC)

     _______________________________________

     First Customary Law Work Plan Workshop thth Held at Nairobi (14 16 December 2004.)

    Workshop Report

    December,2004

I. Background

    Customary Law and practice is a vital element of Southern Sudanese life. It is the basis of all social organizations and the means to guide the regulation of relationships. There are many CL regimes in south Sudan and these vary from place to place but covers the whole region.It is these CL regimes that are most understood by the people and their importance comes from their development in societies formed long before foreigners arrived in the area and the modern state emerged. The many CL systems in Sudan therefore have a long history and hold a deep attachment for the people. Given this attachment and the way they have been affected by the war but the crucial role they will play post war, CL is a theme that needs particular attention and investment.

    During the Legal Institutions and Law Enforcement Agencies Conference held at Himan New Kush in April 1999 it was recommended that a centre on Customary Law issues should be established. The issue arose again in late 2003 during the Justice and Security Sector workshop held at Rumbek. More recently, during the Joint assessment Mission (JAM) it was agreed under Cluster II workshop held at Rumbek in October 2004, that Customary Law was a crosscutting issue affecting various departments of the New Sudan. It was therefore agreed that a steering committee on Customary Law should be formed under the Secretariat of Legal affairs and Constitutional Development. (A copy of the establishment document is attched to this report)

    Once established, the Customary Law Steering Committee (CLSC) organised a consultative workshop with the following objectives:

    1. Bringing together key stakeholders involved in the research and documentation of

    Customary Law in the South Sudan to share information and experiences. 2. Identifying and prioritising the planning phases for the ascertainment of Customary Law

    regimes in South Sudan.

    3. Developing strategies for the collection, storage and use of existing research materials on

    Customary Law

    4. Identifying and agreeing upon the resources that are required to implement the

    outcomes of the workshop

The workshop was organised around the following themes:

    1. Historical development of Customary Law

    2. Information and experience sharing

    3. Ascertainment and Documentation of Customary Law

    4. Institutional support and development for the CLSC

II. Historical Development

    Customary Law regimes in South Sudan have a long history that predates the advent of foreigners to the region. CL has faced many challenges in the course of this history. The Arab-Turko invasion of early 1800s succeeded by the Anglo-Egyptian condominium was a critical challenge to the development of Customary Law. The imposition of Sharia law (both in personal and criminal matters) to the whole of Sudan was yet another threat to Customary Law and was one of the major causes of the resumption of the war in 1983. The war itself

    with its own demands and with its goal for a revolutionary government further indirectly negatively affected the status of Customary Law.

    The workshop learnt that in spite of these challenges, there were efforts to apply Customary Law in the Sudan in general and in South Sudan in particular. First in the late 1920s and early 1930s, the Anglo-Egyptian condominium made efforts to use Customary Law and traditional structures as instruments of governance. An example was also given of the efforts made in the 1970s, to ascertain, document, and harmonise certain aspects of the Dinka Customary Law through what is now known as the Wanh-Alel Code.

    The challenge facing the CLSC is to ascertain, record, review, and where possible, harmonise the Customary Law of the various communities living in south Sudan given this history.

III. Information and Experience Sharing

    Participants shared information on what they have previously done and their current undertakings in the area of customary law.

1. Norwegian Peoples Aid

    NPA is involved in researching and documenting Customary Law on land tenure systems. Land is highlighted as an important resource in the peace protocols. It is identified as one of the root causes of conflict. For example, pastures and forests, water points, cultivation lands, communal land and matters to do with inheritance. NPA hopes to produce a report for use by the Secretariat of Legal affairs. The research covers the whole of South Sudan.

2. Marx Planck Institute for International Law

    The Max Planck Institute is not carrying out any project on Customary Law in South Sudan at the moment. It however recognises the importance of Customary Law and the study of it. It views the study of Customary Law as important both to the South as well as to the North and underscored the value of comparative studies on other countries. Max Planck has applied for funds from the European Commission and the German Ministry of Foreign Affairs for programmes on Customary Law. But such programmes are yet to be fully developed.

3. World Vision International

    World Vision believes that Customary Law has huge potential for conflict resolution. It commissioned a general report in 2003 to look at the number of Customary Law regimes, to explore the tensions between customary laws and other laws, and to identify broad challenges to the development of Customary Law. This report, which gives a general over view, is now available.

    WVI is interested in the issues of women and children and especially their location in Customary Law. It has applied for funds from the European commission. In the meantime it develops its program on Customary Law.

    4. Christian Aid is very much interested in supporting the development of customary law especially as it relates to conflict resolution.

5. Sudanese Women Association in Nairobi (SWAN)

    SWAN as a network has representatives from 23 ethnic groups and 11 linguistic groups. It has developed a document that sets out the minimum content of the proposed Constitution that is acceptable to the women of South Sudan. The Southern Sudanese women are concerned about the constitution and especially the need to have their participation in the making of it.

    Early this year IGAD and UNIFEM came up with women’s development programmes. SWAN has been monitoring development issues specifically through the Women’s Development Centre in Bahr el Ghazal.

    6. South Sudan Law Society underscored the importance of Customary Law and its study. The Society has materials available to the CLSC.

    7. FAO together with NRC and UNHCR has recently undertaken a study on arbitration in South Sudan. However the report has not yet been released. More details will be available early in 2005.

IV. CL Ascertainment

    The workshop recognised the importance of ascertainment of Customary Law. It acknowledged 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 revitalised and reconciled to modern developments before it is ascertained.. Once this is done then the process of review, reform, and harmonisation, where possible, can take place. The workshop therefore developed and proposed the following programme of ascertainment. (A detailed paper on ascertainment is annexed to this report)

1. Scope of Programme

1.1 Territory

    The programme shall cover the whole of South Sudan and marginalized areas (Nuba Mountains and Southern Blue Nile). The complex political reality in the marginalized areas was recognised and it was therefore agreed that the programme should initially cover south Sudan.

1.2 Subject

    All the Customary Law regimes shall be mapped, ascertained and recorded.

2. Priorities

    The priorities were established as follows:

    2.1 Mapping (or identification) of all the Customary Law regimes

    2.2 Ascertainment,recording/documentation of Customary Laws of various ethnic groups, starting with the completely unwritten ones.

    2.3 Updating of documented Customary Law regimes;e.g,Wanh-alel and Fangak. .

2.4 Review, reform, and where possible, harmonisation of different Customary Law regimes.

3. Research Fields and Teams

    The research fields were divided into three regions corresponding to Bahr el Ghazal,

    Equatoria and Upper Nile respectively. Further Bahr el Ghazal as a research field will have 4

    research teams, Equitoria 6, and Upper Nile 4. The composition of the research teams for

    each research field is set out in the tables below.

1. Bahr el Ghazal

    Bahr el Ghazal

    Supervised by 1 Member of the Steering Committee

    Research Sub-Communities No. of No. No.

    Teams Teams Data National International

    Collectors Consultants Consultants

Dinka North Awiel, Gogrial, 4 1 1

    Twic, Abyei

    Central Rumbek, Tonj, 4

    Yirol

    Fertit 4 1 1

    Luo Luo (Jur-Chol), 4 1 1

    Balanda-Boro

    Sudanic Bongo, Bele 4 1 1

    Speaking

    Group

2. Equatoria

    Equatoria

    Supervised by 1 Member of the Steering Committee

    Research Teams Communities No. of No. of No. of

    Data National International

    Collectors Consultants Consultants Bantu Zande, Baka, Balanda 4 1 1

    Adio, Mundu

    Bari Speaking Kakwa, Kuku, Fajulu, 4 1 1

    Group Nyangwara, Mundari, Bari,

    Lulobo, Lugbara

    Lotuho Speaking Lotuho, Lokoya, Lopit 4 1 1

    Group

    Tophosa Speaking Tophosa, Murle, Didinga, 4 1 1

    Group Boya

Sudanic Group Muro, Madi, Kaliko, 6 1 1

    Lugbara, Bele Avukaya,

    Lugbara

    Luo Acholi, Pari 3 1 1

    3. Upper Nile

    Upper Nile

    Supervised by 1 Member of the Steering Committee

    Research Sub Teams Communities No. of Data No. of No. of

    Teams Collectors Nationinternati

     al onal

    ConsulConsult

    tants ants

    Nuer Eastern 7 1 1

    Western

    Dinka Northern 7 1 1

    Southern

    Shilluk Shilluk, Anyuak 3 1 1

    Maban(Burun) Maban(Burun), 2 1 1

    Liri

4. Research Methodology

    It was agreed that an appropriate research methodology should be developed with the assistance of experts. However, the methodology should be alive to the desire of the South Sudanese to be in the driving seat of the whole process; the need for inclusion of both genders in the process of ascertainment; the need to recruit data collectors who are knowledgeable of the customs and language of the specific community they will collect data from; and alertness to the physical realities of the South Sudan.

5. Time Frame

    It was agreed that the implementation of the programme is urgent and should commence as soon as possible in the New Year. Specific Items were given the following tentative time periods:

Phase I Preparatory: 2 months

    Development and testing of methodology, development and testing of research tools, identification, recruitment and training of researchers

Phase II Data Collection: 6 months

    Field activities in collection of data from all the Customary Law regimes

Phase III Data Analysis and Report Writing: 1 month.

Phase IV Validation of Findings ( To be carried out in second year ).

6. Research Management

    The Customary Law Steering Committee shall direct the research on ascertainment of Customary Law. A member of the Steering Committee shall be in charge of each of the research fields namely; Bahr el Ghazel, Equatoria, and Upper Nile. A Programme Manager experienced in development work shall overall support the Steering Committee. With regard to the programme of ascertainment, an international expert and a national expert shall support the Steering Committee in leading each of the research teams.

    The Steering Committee is answerable to the SPLM Commissioner responsible for the Secretariat of Legal affairs and Constitutional Development and hopefully the GoSS Ministry of Justice.

7. Research Needs

    ; 3 Vehicles, one for each region or field research area.

    ; Communication Equipment

    ; Training requirements for data collectors

    ; Stationery

    (See annexed budget)

V. Archiving

    The workshop emphasized the need for a comprehensive survey of documents and research materials on Customary Law in South Sudan. A bibliography was presented containing some of the existing literature. (A copy of the bibliography is attached to this report.) It was recommended that the bibliography should be indexed and circulated widely for updating. The Steering Committee was urged to develop a programme on archiving materials that will comprise the procurement of relevant materials, their storage and retrieval.

VI. Other Activities

    The participants appreciated the fact that different individuals and organisations had specific research interests. The Steering Committee is to co-ordinate and unify these activities. It was observed that specific themes of research were of interest to different stakeholders. These themes include:

Gender Rights

    ; Right to own property

    ; Freedom of choice to enter into marriage

    ; Payment of dowry bride wealth

    ; Wife inheritance

    ; Ghost marriages

Child Rights and Duties

    ; Child labour

    ; Choice of education

    ; Rights to own property

    ; Right to care and protection

Land Issues

    ; Grazing lands as a source of conflicts

    ; Different land tenure systems: community, individual, public, corporate ownerships

    ; Forest protection and preservation

    The Steering Committee will work with interested parties in researching these and other specialised areas.

VII. Budget

    In carrying out and administratively supervise and manage these programmes, the CL Steering Committee needs institutional support and development. An initial budget has been worked out and is annexed to this report.

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