Unraveling an Intricate Legal System: A Strategic Review of the Duality of Customary and Statutory Laws in South Sudan

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In adopting legal pluralism, the South Sudanese legal system has witnessed severe gaps and challenges in the application of both customary and statutory laws. The disparity between customary law-legal practices and formal legal provisions is glaring and the plurality has had a sad effect on the efficiency of the law to meet its basic purpose – justice dispensation. The application of customary law in the traditional courts and the application of statutory law in the formal courts is a parallel process, which has inadvertently left two competing versions of justice, with that sought from customary courts repressing the rights of litigants almost constantly. The duality of laws has converged to constantly challenge the legitimacy of both systems. While the state has remained the gravity of reforming the confusion, a classical theme of conflicting positions remains visible, especially with regards to subject matter jurisdiction. The duality of the two legal systems remains unresolved and efforts to harmonize the system are still in their formative stages and have hardly improved the functionality of each system. The confusion of the two legal systems might be traced back to the start of the second civil war (1983-2005), but most importantly, the side by side existence has been extremely troubled, and always pitting the statutory courts against the customary justice. Reformers have supported both customary and the formal legal systems, however the newly adopted common law and the customary law systems are at a very nascent stage, requiring much more support. While initiatives such as the developing a customary law strategy in 2009, customary law conferences, rule of law forums and the recent ascertainment conducted by the United Nations Development Programme (UNDP) have been implemented for over a decade, there has been minimal results and the current legal system still requires support in order for South Sudan to arrive at a more acceptable and highly functional legal system. Should legal pluralism continue to be the desired legal system, then workable approaches of disentangling the duality must be explored.