The evolution of the traditional authorities is South Sudan has a similar pattern and trend as in other African countries. These authorities have gone through a series of changes, particularly during pre-colonial period, colonial period, the post- independence Sudan and the post-independence South Sudan.
The most important and relevant civilization to the context of South Sudan is Kush Kingdom that emerged around 1070 B.C. and established around the confluences of rivers Blue Nile, White Nile and Atbara in what is now known as northern Sudan (Leclant, 2004). Uniquely, the Kush Kingdom established a strong monarchic and centralized system of government with Nubian religion and language. The system of government was highly centralized and ruled by “god-kings”. The administration of justice was entrusted to priests. Whether Kush civilization is linked to South Sudan or not, the most important focus is on the role of traditional system of government in maintaining rule of law, peace and stability in the pre-colonial period.
The Turco-Egyptian and Mahdiyya Regimes (1821-1881)
The new regime imposed a militaristic and centralized unitary system of government as the most effective way of mobilizing slaves and ivory. This new system of government had a profound impact on the African ethnic groups and their traditional systems of government along south-north border of Sudan and changed the local balance of power in favour of Arab ethnic groups. During this period, the Turco-Egyptian authorities and private traders undertook slave raids on a considerable scale into what is today South Sudan. These slave raids by the Turco- Egyptian regime and Arab nomads had profoundly affected the prevailing system of traditional authorities in South Sudan.
The Anglo-Egyptian Regime (1898-1956)
The arrival of Anglo-Egyptian regime was resisted by many ethnic groups in South Sudan and that contributed later on to the adoption of various ordinances related to customary authorities, which culminated into the “Southern Sudan Policy” in 1930. As early as 1921 and before the formulation of Southern Sudan Policy, the system of government in southern Sudan had been based on the principles of “native administration”. In 1922, the Anglo-Egyptian regime enacted the Passport and Permits Ordinance that declared the entire South Sudan ‘closed districts’ and made it increasingly reserved to the native community and insulated from the world around it.
As the experience with the native administration was relatively successful in maintaining rule of law, peace and stability, the British rule formulated the “Southern Sudan Policy 1930”. Its memorandum stated that: “The policy of the Government in the southern Sudan is to build up a series of self-contained racial or tribal units with structures and organization based, to whatever extent to the requirements of equity and good governance permit, upon indigenous customs, traditional usage and beliefs”. This policy contributed to restoring and protecting the systems and institutions of traditional authorities.
The Post-Independence Sudan Period (1956-)
The post-independence regime adopted an intermittently military or democratic centralized unitary system with the aim of establishing an Arab-Islamic state. It focused on dismantling the 1930 Southern Sudan Policy that was based on traditional system of government and replacing it with an Arabization and Islamization policy of Southern Sudan. Despite this policy, the post-independence Sudanese central government legislature reaffirmed the Chiefs’ Courts Ordinance and recognized the status of customary law in Southern Sudan.
The 2005 Comprehensive Peace Agreement (CPA) did not explicitly recognize the customary authorities but put the local government and traditional and customary law under the exclusive powers of the state government. The 2005 Interim Constitution recognized not only the customs and traditions of the people of South Sudan as one of the sources of legislation, but it also affirmed traditional authorities and their role. The 2011 Transitional Constitution affirms all the provisions related to traditional authorities, customs and traditions of the people of South Sudan.
The customary authorities sometimes refer to traditional authorities and sometimes termed as chiefs are critical for understanding how the communities of South Sudan govern themselves through their customs, traditions, values and norms. The institution of customary authority is almost in all African countries but in different forms with its structures commonly framed around the institution of traditional leadership that involves a hierarchical structure of rulers like kings, chiefs, headmen, and village heads, with power and authority varying across different systems and evolving over time due to colonization and modernization (de Visser and Chiguata, 2022).
The Post-Independence South Sudan (2005-)
Definition and legality
In South Sudan, the traditional authority is defined as “the traditional community body with definite traditional administrative jurisdiction within which customary powers are exercised by traditional leaders on behalf of the community” (Republic of South Sudan, 2009: 4). In addition, there is a recognition in the Transitional Constitution of South Sudan, 2011 of the traditional authority and the customs as one of the primary sources of the legislation (Republic of South Sudan, 2011). Although the structures of traditional authorities vary from one community to another, they ‘range from the institutions of chiefs, conflict resolution mechanisms, customary law, practices and beliefs’ (Mbugua, 2012: 17). Also, the traditional authority consists of diverse hierarchies of tribal chiefs and their assistants, elders and opinion leaders in communities (Wassera, 2007: 6). It is recognized in South Sudan that customary authority is characterized by plurality as it encompasses a wide range of institutions and actors such as family heads, elders and the collective leadership of generational age-sets, cattle camps or councils of elders, individual spiritual and ritual authorities and the hierarchical structures of chiefs and headmen (Leonardi, 2019).
Generally, the Local Government Act, 2009 in its section 112 defines the status of traditional authority to be a semi-autonomous institution at the state and county levels and to administer customary law and justice in the customary courts and to exercise deconcentrated powers in the performance of the executive powers at local government levels within their perspective jurisdiction. The Act also in its section 113 recognizes two types of traditional authority:
Roles, structures, and challenges
The Local Government Act of 2009 provides in its section 119 the establishment of South Sudan Council of Traditional Authorities Leaders and a State Council of Traditional Authorities
Leaders with the following functions and duties:
Advise all levels of government on matters of traditions and customs of the people of South Sudan.
Generally, the role of customary authority in the provision of security, justice and safety and disputes and conflicts resolution at the level of communities is well documented and institutionalized by law in South Sudan. It is recognized that chiefs do engage in a number of different activities such as settlement of disputes in chiefs’ courts, engaging in peace processes and conflict resolution, collection of taxes, allocating food aid, acting as intermediaries between the government and the community and mobilizing community members for community projects (Santschi, 2014: 46). Besides the recognition of customary law as the predominant source of law in South Sudan, almost 90% of everyday criminal and civil cases are dealt with and executed under customary law and by traditional chiefs and leaders (UNDP, 2010: 21). As customary authority is exercised at the level of communities and local government, the local authority becomes hybrid and the dividing line between state and non-state actors becomes blurred (Leonardi, 2019). This hybridity is shown in the fact that chiefs act as both customary authorities and local government personnel.
Despite the recognition of the positive role played by traditional authorities, they face a number of challenges. On the top of these challenges, the recurrent civil wars in South Sudan have persistently undermined traditional authorities; particularly by the warring parties either by appointing their own chiefs or entrusting the traditional role of chiefs to military officers, particularly during the prolonged second civil war in Sudan (Idris, 2017). In addition, the continuous and large-scale forced displacement of the communities as a result of violent conflicts has weakened the link between chiefs and their communities as well as their influence and legitimacy (Hoehne, 2008: 17). In their displaced camps and refugees camps, the displaced communities set up their own traditional forms of governance similar to traditional structures of their communities of origin (Wassera, 2007: 6). With the signing of the Sudan Comprehensive Peace Agreement in 2005, most of the IDPs and refugees returned back to their villages but with their new chiefs and that caused tension between IDP/refugee chiefs and those who held these positions prior to the second civil war (Idris, 2017). These parallel traditional leadership structures persist and aggravated further by the first and second civil wars in South Sudan and undermined further the chiefly authority.
Another challenge is the lack of definition and clarity about the roles of traditional authorities, particularly the precise position and role of chiefs, as it becomes a source of misunderstanding and conflict. In particular, there is lack of clarity of the exact level of authority granted to different types of chief (Schomerus and Aalen, 2016: 14). In addition, the Local Government Act gives chiefs the authority on land regulation but limits their power to the resolution of non-criminal conflicts within their jurisdictions. There is a conflict over land administration between chiefs appointed during the war by the SPLM/A, and those who claim legitimacy on the basis that their forebears were appointed by the colonial authority prior to independence (Schomerus and Aalen, 2016). There is also a conflict between the customary law systems and the Transitional Constitution, 2011 and international human rights laws over the rights of women and children (UNDP, 2010: 22). This conflict contributes to conflict and disruption of social order at the community level (Wassera, 2007: 6).
In addition, the role of traditional authorities in the field of conflict resolution has been eroded with the surge of other “competitors” in this field such as the local government, NGOs, UN and civil society organisations including faith-based groups (Wassera, 2007). Although most of legal cases in South Sudan are administered by chiefs’ courts, the capacity of chiefs to enforce court decisions and resolve local conflicts is limited without government support. Given their increasing reliance on governments in recognising their intermediary role and making their authority effective, the chiefs have not simply become increasingly semi-civil servants but have continued to be recognised as customary authorities (Leonardi, 2019).