South Sudan: Consultant

Jan 16, 2016 | UNDP
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UNDP through its Access to Justice and Rule of Law Project provides institutional support to the Ministry of Justice (MoJ) through a capacity development strategy, and support to infrastructure to achieve MoJ’s short-term objectives while facilitating strategic planning for the achievement of its medium and long-term objectives. Through this Project UNDP has been providing support to MoJ in three areas, namely: technical advice, capacity building and service delivery. Both national and international consultants with functional expertise and experience in comparative jurisdictions have been engaged and seconded to the MoJ to provide technical support. Ultimately, the strategy is aimed at enabling the MoJ to achieve its mission of creating a strong foundation for a united, peaceful and prosperous society based on justice, equality, respect for human rights and the rule of law. MoJ provides legal advice to the Government of the Republic of South Sudan (GRSS). More particularly, the Ministry is responsible to: advise all levels of GRSS on legal matters; represent all levels of GRSS in public prosecution, litigation and adjudication; draft legislation for all levels of the GRSS; any other functions and duties that may be assigned to it by law, the GRSS or any other level of Government in South Sudan; and establish legal administrations for each of the ten states in South Sudan.

South Sudan gained independence from Sudan in 2011. The nascent nation has a vastly diverse population with many ethnic groups that continue to rely on the use of customary law and traditional authorities to resolve disputes. There are more than 60 ethnic groups that practice their own customary laws. The statutory and traditional legal systems have coexisted and interacted for over a century in the region. Customary law is an integral component of the justice system in the country, with customary law recognized as a source of legislation in the Transitional Constitution of South Sudan. Customary law remains a vibrant and legitimate mechanism for resolving conflict in communities and should be strengthened and aligned with constitutional and human rights standards.  The majority of disputes are handled at the customary level and there is an urgent need to harmonize customary mechanisms with the statutory system. Traditional responses have played a historic part in the resolution of inter-tribal conflicts and remain relevant to the resolution of the on-going conflict in the country if properly synthesized. This requires the ascertainment, recording, analyzing, comparing and synthesizing of the customary laws of the various ethnic groups in South Sudan to inform the process for harmonization, reform, and institutionalization of the role for customary law and local dispute resolution mechanisms that promote sustainable peace, the rule of law, and respect for human rights.

The Project has worked closely with the MoJ to establish a customary law centre and undertake research and ascertainment of customary laws in an attempt to harmonize customary structures with those provided in the new constitutional dispensation of South Sudan.

Though customary laws are viewed as important mechanisms for adjudication and conflict management by a large segment of the population, there is a lack of clarity of what the current state of the laws are and how they conform to the legal framework, particularly constitutional guarantees found in the bill of rights. Likewise, traditional authorities have operated under an oral-based tradition for application of customary law that is juxtaposed with the statutory-based system of governance that overwhelmingly favours formal literacy over oral traditions. This transition and socio-political phenomenon poses a danger of further weakening the customary system and favouring statutory-based, largely adversarial legal frameworks over those traditions  many communities have relied on to resolve disputes through consensus or restorative principles. Without a proper understanding of the possible impact of the two legal systems on local disputes, community conflicts could be exacerbated resulting in instability and violence. Further, the 15 December 2013 crisis has raised questions regarding the use of traditional transitional justice mechanisms, and the role of traditional authorities in maintaining peace and fostering reconciliation in a post conflict South Sudan.

The Ascertainment Project

In 2011, the UNDP supported MoJ in conducting the first of what was intended to be a series of ascertainment studies of customary law. This study was a result a customary law strategy which was developed to set out options for strengthening the customary institutions as per the provisions of the Transitional Constitution and Local Government Act for which customary law has been recognized as a vitally important aspect of community identity and governance. The impact of customary law on the rule of law are numerous and implicate issues such as criminal behaviour, marriage and family concerns, inheritance, property ownership, rights over grazing routes and natural resources, and human rights.

The customary law strategy was developed by a customary law consultant through a broad consultative process that examined a number of issues involved in fashioning an effective approach to this area of the law. The strategy also outlined recommendations for an integrated response to strengthening the rule of law sector and access to justice for individuals and communities. The strategy was accepted at a stakeholders’ workshop in Juba in October 2009 as the foundation of subsequent undertakings in strengthening the customary law of South Sudan.

Ascertainment is meant to document current customary practices that may have changed or adapted over time given the decades of conflict and displacement due to the decades of civil war that has plagued South Sudan and its populations. Ascertainment will also inform decisions on whether certain practices should be preserved as inherently valuable for promoting social coherence and dispute resolution. Not only have customary law mechanisms been useful to resolve interpersonal conflicts or inter-ethnic conflicts, such mechanisms have been used for centuries to promote alliances and resolution of inter-tribal disputes. Such disputes have resulted from several factors including absence of the rule of law, clashes over natural resources, disintegration of traditional agreements on migrations and pastoral land use, traditional marriage practices and exchange of cattle for dowry. The ascertainment study is expected to cover a number of thematic areas including family law, succession and inheritance, wrongs and obligation, land and environment, conflict resolution and possibilities for reforming customary law.
The customary law strategy provides a methodology for the ascertainment process. The ascertainment of customary law in South Sudan will primarily be the task of the various communities themselves. However, the consultant will be required to commence with legal anthropological research about and in the targeted communities. Existing research has to be retrieved and analyzed. Additional research may be needed to establish information on the political structure of the communities; the structure and operation of their courts; and the existence of court records. This type of background research will not only avoid doing things that have been already done, but also sharpen the skills needed in drafting the instruments in preparation for  the ascertainment proper.

The ascertainment project has to be announced to the community, to enable the community to prepare itself. The purpose of the ascertainment project and the meaning of relevant questionnaires should be explained beforehand. Groups of elders and, generally, groups of knowledgeable persons will be identified and encouraged to participate in the ascertainment study.

Simultaneous complementary research is to be conducted in the identified communities. This research will assess previous anthropological research.  Court observation will be a useful tool for this research. These observations will give insight into the interpretation of the law, which the communities would have ascertained as their customary laws.

The communities will select aspects of their laws to be ascertained.  The consultant may make suggestions. This should drive the process to provide knowledge that is relevant to resolution of the current crisis such as inter and intra communal dispute resolution mechanisms. The consultant may respond to requests to assist the communities but must ensure that the community leaders employ their model of community participation. The consultant will hire research assistants and translators to conduct the process.

The consultant will prepare the publication of the self-codified laws in, at least, two languages, the vernacular language and English. The ascertained version of the customary law will be recorded in the language spoken in the community.

Objective

The Ascertainment of Customary Law Project is part of a series of ascertainment studies of the ethnic groups in South Sudan. It has the following objectives:

• To document current customary law practices which may have changed or adapted over time given the decades of conflict and displacement due to the decades of civil war that has plagued South Sudan and its population;
• To harmonize the different customary laws of various communities, which will ultimately inform a coherent customary law regime in South Sudan;
• To propose and recommend reforms necessary for achieving a customary law regime which is at tandem and resonates with internationally recognized standards of justice, the rule of law and human rights;
• To discern traditional methods of conflict resolution among the communities.

The consultant will finalize a working scheme in collaboration with UNDP, MoJ, state governments and local government boards. This will be followed by the drafting and development of a comprehensive enquiry guide.
 

The consultant will guide and supervise the implementation of the ascertainment in and by the communities in close cooperation with the communities. The consultant will supervise community-compiled texts and ensure that they are available for publication, and be of publishable quality in English and the vernacular languages. The consultant will recruit local research assistants and translators to provide support.
 

While proceeding as described, the consultant should:

• Work in close coordination with all relevant stakeholders specifically MoJ, the Judiciary of South Sudan, the Local Government Board, Ministries of Local Government and Law Enforcement at state level and Councils of Chiefs;
• Provide professional advice to MoJ and UNDP to improve the implementation of the customary law ascertainment project;
• Address stakeholder meetings as the ascertainment project progresses;
• Prepare and submit the ascertainment reports to UNDP and MoJ and address their comments;
• Provide weekly documented debriefing, on progress on the ascertainment studies, to the UNDP Chief Technical Advisor/Project Manager, representatives of MoJ and Local Government Board.

Deliverables:

Deliverable Duty station Days allocated:

• Methodology and literature review:   In country 3 days;
• Ascertainment of customary laws of 3 communities and submission of draft report: In country 21 days;
• Finalization and submission of ascertainment report in publishable quality: Home based 16 days.

Total 40 days

Methodology and Literature Review: 

To be prepared within 3 days of the assignment

• Literature review that defines and analyses the ascertainment of customary law from a comparative perspective, including a comprehensive account of previous ascertainment studies in South Sudan and anthropological research on the communities whose customary laws are to be ascertained;
• Proposed methodology to achieve the expected outputs, including development of an inquiry guide;
• Comprehensive enquiry guide;
• Finalization of timeline with key benchmarks for results;
• Recruitment of local assistants and interpreters;
• Presentation of the methodology and literature review to UNDP and MoJ for inputs and improvement.

Ascertainment of Customary Laws:

• As per the workplan, the consultant will travel to three communities within 21 days to ascertain to conduct the customary laws of each community;
• The ascertainment report shall cover gender, human rights and conflict resolution in substantive detail and proposals for reform as articulated by the communities.

Final report:

• The ascertained versions of customary law of three communities will be completed and compiled in publishable form and quality, and submitted in soft and hard copies.