What customary law is in South Sudan
Customary law is the body of rules each community has applied to marriage, cattle, land, injury and death for generations: the law of the Dinka, Nuer, Bari, Zande, Shilluk and the country's other peoples. It is unwritten, it varies from one community to the next, and it is law. The Transitional Constitution of 2011 names the customs and traditions of the people among the sources of legislation, and the Local Government Act of 2009 gives customary law courts the power to decide disputes under it.
Who decides customary cases
Customary law courts sit in the payams and counties under the authority of chiefs, from the chief's court at the lowest level up to the county. They hear the great majority of cases ordinary people bring: disputes over bridewealth, divorce, custody, grazing, boundaries, debts, assault and compensation for injury and death. Their decisions can be appealed to the statutory County Court and from there up the judicial hierarchy, so a case that begins under a tree before a chief can end before the Supreme Court. Statutory judges also apply customary law themselves where the parties' dispute is governed by it.
Blood compensation and the Penal Code
The sharpest collision between the two systems is over killing. Under customary law a death is settled between families: the killer's family pays compensation in cattle to the family of the dead, and the payment, called apok or cot among the Dinka, restores peace between the clans. Prof. Jok's 2023 article in the International Annals of Criminology puts the figure at 51 cattle. Under the Penal Code Act of 2008 the same death is murder or culpable homicide, punishable by imprisonment or death, and the state prosecutes it. In practice the courts often do both: a sentence of imprisonment and an order for compensation, because without the cattle the dead person's clan may take its own revenge.
That is why Prof. Jok has argued that any court set up to try the crimes of the war that began in December 2013 must build customary compensation into its sentences. Amnesty, he writes, threatens peace rather than securing it, because customary law does not recognise amnesty: a death that is not compensated is a death that is still owed. His proposal is a hybrid court that applies the principle of complementarity and fixes prison terms alongside apok, in place of life imprisonment or the death penalty. The article is summarised here.
Where customary law reaches people abroad
South Sudanese living in Uganda, Kenya, Finland and elsewhere meet customary law whenever a matter at home comes up: a marriage to be proved, bridewealth to be returned after a divorce, a dispute over who inherits cattle or a plot, or a relative held responsible for a death. Foreign courts and immigration authorities regularly need to know what the customary rule is and whether it was followed, and that is one of the questions on which Prof. Jok writes legal opinions.
Questions people ask
Is customary law binding in South Sudan?
Yes. The Transitional Constitution of 2011 recognises the customs and traditions of the people as a source of law, and customary law courts established under the Local Government Act of 2009 decide cases under it, with appeal to the statutory courts.
Can a chief's court decision be appealed?
Yes. Decisions of customary law courts can be taken to the statutory County Court and from there to the High Court, the Court of Appeal and the Supreme Court.
Does paying blood compensation end a criminal case?
No. Compensation settles the matter between the families under customary law, but the Penal Code Act of 2008 still treats the killing as a crime that the state prosecutes. Courts frequently order imprisonment and compensation together.
