South Sudan's Injustice System

Law and Activism on the Frontline

Rachel Ibreck

• Publisher: Zed Books
• Year: 2019
• ISBN:
  9781786993427
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Civil Rights in Politics
• Index: Politics & International Relations

Coming into existence amid a wave of optimism in 2011, South Sudan has since slid into violence and conflict. Even in the face of escalating civil war, however, the people of the country continue to fight for justice, despite a widespread culture of corruption and impunity. Drawing on extensive new research, Rachel Ibreck examines people's lived experiences as they navigate South Sudan's fledgling justice system, as well as the courageous efforts of lawyers, activists, and ordinary citizens to assert their rights and hold the government to account. In doing so, the author reveals how justice plays out in a variety of settings, from displacement camps to chiefs' courts, and in cases ranging from communal land disputes to the country's turbulent peace process. Based on a collaborative research project carried out with South Sudanese activists and legal practitioners, the book also demonstrates the value of conducting researching with, rather than simply about those affected by conflict. At heart, this is a people's story of South Sudan - what works in this troubled country is what people do for themselves.

Chapter 1

LAW AND ACTIVISM IN CONFLICT

In June 2016, the New York Times published a letter under the names of President Salva Kiir and Vice President Riek Machar which made the case that ‘South Sudan needs truth not trials’.¹ The purpose of the letter was to head off international attempts to set up a court to bring alleged war criminals to justice. At the time, both Kiir and Machar, protagonists in the post-2013 civil war, were temporarily united in the Transitional Government of National Unity by a peace deal, the ARCISS.² The letter spoke of the need for dialogue and reconciliation and warned that: ‘disciplinary justice – even if delivered under international law – would destabilize efforts to unite our nation by keeping alive anger and hatred’. The missive was in some ways predictable, given that both the leaders were commanders of opposing armies that had been accused of atrocity crimes and neither would want to face trial.³ However, it soon emerged that the letter had been devised by presidential advisers and a US-based foreign public relations firm, and Machar insisted that he did not sign off on it. Just days later, Machar’s spokesperson James Gatdet issued a correction: the SPLM-IO party was committed to ‘justice and accountability’ according to the provisions in the August 2015 peace agreement, which included a ‘hybrid court’.⁴

The letter was a work of subterfuge and public relations – a blatant attempt to ensure the impunity of political elites accused of wartime atrocities. Less obviously, both the letter and the debacle surrounding it indicated that warring parties could not simply ignore demands for justice. Indeed, each of them claimed, in one way or another, to be committed to the administration of justice, and invoked the law within their political stratagems. A vivid case in point was when President Kiir broke off his alliance with the former army chief of staff Lieutenant-General Paul Malong in 2017, blaming the general for the ‘breakdown of rule of law’.⁵ Malong promptly responded by setting up a new political movement promising to reverse the ‘total impunity’ of the Kiir regime. He shamelessly pledged to establish ‘democracy, development, equal citizenry and justice’ – regardless of the fact that the international community had placed him under UN sanctions for violating international human rights and humanitarian law.⁶

Politicians repeatedly shrugged off such ironies and made competing claims of legality before and during the war. They referenced, and selected from, a plethora of historically familiar procedures, authorities and rules. It helped that they were operating in a complex legal environment, where both the official laws ‘on the books’ and unwritten ‘customary’ rules could apply. Legal pluralism and political hybridity have flourished to a bewildering degree in South Sudan, and the politicians have puzzled over, profited from and contributed to this maelstrom.

In typically statist, authoritarian manoeuvres, the Kiir government exploited legal instruments to silence political opponents, even reaching into neighbouring countries to extract Machar’s spokesperson, James Gatdet, from Kenya. Gatdet was accused of treason, tried, convicted and sentenced to death by hanging in a Juba court, and was only released following a new peace deal signed in Khartoum (Revitalised Agreement on the Resolution of the Conflict in South Sudan – R-ARCISS) in 2018.⁷ Meanwhile some opponents, including Peter Biar Ajak, an academic, and founder of the South Sudan Young Leaders’ Forum (SSYLF), remained in prison at the time of writing.⁸ Simultaneously, in seeming contrast, political leaders recognised the judicial authority and social legitimacy of chiefs and sought to cultivate and benefit from ‘custom’.⁹ They deferred to, or sought to meddle with, customary laws in accordance with political interests. Indeed, Lieutenant General Malong was a fervent practitioner and advocate of polygamous marriage and a generous contributor to bridewealth payments during the second Sudanese civil war. He gained political status partly through his attentiveness to these customary prescriptions, as explained by scholar Clémence Pinaud: ‘he dominated the local war economy and used its proceeds to cement strategic allegiances … through the practice of large-scale polygamy and by godfathering his supporters’ marriages’.¹⁰

South Sudan’s leaders are adept at converting their access to the symbolic power of both the ‘juridical state’¹¹ and custom into political capital, and are capable of switching between distinctive legal cultures and repertoires at will. Their machinations in pursuit of power were surely implicated in destabilising law and detaching it from justice. However, the clique of political elites at the helm of South Sudan are players within a complex system, and not the architects of disorder. They are, at most, agile negotiators in a political marketplace at the global periphery; governed as well as governing. They wield forms of power that are relational and heavily reliant on fast-paced bargaining; monetised patronage; a command of identity politics; and fostering fear and threats to bring the price of loyalty down. The responses of state elites to the systemic condition of ‘turbulence’ usually perpetuates the problem; we know this because regimes have come and gone with reforms and revolutions, but there are many puzzling continuities and recurrent patterns over time.¹² As such, South Sudan’s politics is best explained as reflective of a logic of practice rooted in ‘accumulated history’, adopting the insights of the eminent sociologist Pierre Bourdieu, and adapting them to this very different context.¹³ In other words, the politicians competing to control the state are themselves held in the sway of culturally embedded habits and ‘dispositions’, and enmeshed in the recursive constitution of plural legalities.

This chapter provides the necessary conceptual tools and historical grounding to explain the power of the law, its relationship to conflict and its potential to contribute to political transformation in South Sudan. It establishes the place of law in government as a hegemonic force, one that opens up channels for resistance even as it permeates society, shaping ideas and identities and sustaining political order. It then considers why law fails to stabilise and regulate power in the case at hand. It shows that South Sudan inherited an intricate muddle of laws and legal authorities and that its previous rulers specialised in using legal mechanisms to pursue political objectives. Since the colonial era, law has been deployed in combination with violence to enable a small elite to govern a host of marginalised but recalcitrant communities. Customary and religious law, including family law, have provided firm mechanisms for regulating society, but have generally lacked jurisdiction over the political conduct of state elites. Meanwhile, statutory law has been regularly rewritten by political and military victors to serve political interests. Yet there have also been occasional but important contrary instances, in which law has been put to the service of humane and civic interests through legal activism from below.

The power of law

It is standard practice for political actors, from warlords to democrats to dictators, to turn to law to justify their government.¹⁴ Each may have different perceptions of what it means and why it is useful, but they usually recognise the relationship between law and legitimacy and want to signal that their authority has a custodian other than the barrel of a gun. Very evidently, the modern nation-state was founded upon legalities¹⁵ which are on display in concepts of legal sovereignty, territorial jurisdiction and legitimate violence.¹⁶ But even imperial and colonial projects,¹⁷ and the diverse public authorities that govern communities and territories in so-called ‘fragile states’, have also deployed the language of law.¹⁸ In many different regimes law has been used to justify coercive measures and violence in order to repress political opposition and social dissent. But this authoritarian ‘rule by law’ generally also relies heavily on military violence and policing.¹⁹ In contrast, the power of law, and its political utility, is defined by its capacity to persuade populations to comply with political authority. Law is a hegemonic force because it creates arenas and mechanisms for people to try to regulate each other and to provide a check on political authorities. It has ‘two edges’: it is a tool for power and a constraint on power.²⁰

In modern Europe, the rule of law emerged from intricate, historical processes of negotiation of the meaning of state and citizenship, which produced the conviction that government must be subject to the people: ‘a good law-maker, adheres to the law’.²¹ In contrast, colonised societies experienced the conqueror’s tyrannous ‘rule by law’. The same law-making that generated the Westphalian state in Europe also legitimised the imperial seizure and settlement of colonial territories.²² The act of colonial conquest forcibly separated sovereign power from local legitimacy and thereby created a legal dualism, in which indigenous legal mechanisms were decapitated – left to deal with social order and unable to engage with political power. Despite these alien origins, colonial lawfare has proved tenacious. In Africa, colonisers forged a legal distinction between racially privileged settlers, with access to civil law and citizens’ rights, and African ‘native’ subjects, administered by forms of indirect rule under customary authority. As Mahmood Mamdani explains, they ‘justified the subordination of subjects to a fused [local] power as the continuation of customary law’.²³ These arrangements, and the violence that often accompanied them, contributed to a sense of the public political realm as being distant from the moral codes that regulated people’s social and cultural life.²⁴ And yet even in colonial settings people tried to use the law to secure rights. As legal anthropologist John Comaroff argues: ‘To the degree that law appears to be imbricated in the empowered construction of reality, it also presents itself as the ground on which to unravel the workings of power, to disable and reconstruct received realities.’²⁵

Both the hegemonic power of the law and its potential to invigorate resistance can be explained by the extent to which law operates in society, reaching beyond legal statutes and courts and permeating the ‘fabric of social life’.²⁶ It relies on a ‘legal consciousness’ embedded in social norms and expressed in ‘commonplace transactions and relationships’.²⁷ Law only becomes meaningful through action and interaction – people observe, practise, interpret or contest it – bringing cases to court and arguing, defending or judging them. One way in which this is obvious is in categorical thinking about differences between people: ‘the imprint of law’ carries over into ‘social roles and statuses’,²⁸ such as ‘citizens’ and ‘migrants’. But the law and legal categories are open to interpretation:²⁹ political and social actors contest them, either within society, in legal forums including courts, or through social mobilisations or covert forms of resistance. People draw upon experiences of other fields, including education, religion or commerce, and upon ‘social networks, organisational resources, and local cultures’, as well as legal principles and reasoning³⁰ in their interpretations of law.

Well-elaborated insights into law in society have produced the potentially empowering recognition that law is always ‘in-the-making’ and we are all legal agents actively engaged in ‘making law’.³¹ They also reveal the symbolic power of the law, and its potential to be harnessed as a resource, a form of ‘capital’ in political struggles.³² However, in postcolonial countries in Africa this making of law and the ways that people engage with it have been profoundly influenced by the impacts of colonial interventions and more recently by global governance projects. In war-torn countries law-making is an intense, decentralised, opaque and heavily contested activity, taking place amid conditions of fragmented sovereignty and in ‘distinct political spaces’.³³ The results include ‘assorted and diverse rule systems and institutions – some public, some private, some hybrid’ – that are not necessarily subordinate to the state³⁴ and that are perpetually ‘waxing and waning’ in their authority.³⁵

Conflict-affected societies have also been locations for experimentation in international intervention aimed at promoting the ‘rule of law’ and transitional justice. Since the 1990s, they have included support for strengthening formal ‘statutory’ legal systems and related initiatives aimed at making informal or customary processes ‘legible and palatable’,³⁶ including through human rights promotion. They mostly took the Weberian view that the most stable political orders are founded on legal-rational legitimacy³⁷ and placed the ‘rule of law’ at the centre of ‘state-building’ policies. But the rationale and impetus for these programmes arose from neoliberal concerns about property regimes and contract law, and development donors’ promotion of foreign investment and the domestic private sector.³⁸ The programmes did not, however, engender a social contract between states and citizens, or promote human rights and justice, in the ways that some o...

Table of contents

• Cover
• About the author
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• List of acronyms
• Map of South Sudan
• Preface: law from below
• Introduction
• 1. Law and activism in conflict
• 2. Inside the justice system: domination and resistance
• 3. Makeshift courts
• 4. Legal contestations at the margins
• 5. Citizens for justice
• 6. Brokering survival
• Conclusion
• Appendix: A note on methods
• Notes
• References
• Index