Oregon State Bar Bulletin JANUARY 2013
Eleven-thousand miles is a long ways to go to work, but as a consultant who works with courts in developing countries I just couldn’t pass up the opportunity.
In December last year I received an email from a friend of mine who was running an internationally funded program assisting the courts, the ministry of justice and the committee developing the permanent constitution for the world’s newest country, South Sudan. She told me that the supreme court wanted someone to help them begin the development of uniform court rules for each of the various levels of courts in the country and I was the only judge she knew … and she knew I was always looking for a new adventure. She wanted me come for 90 days. She had me.
When I got to South Sudan I found myself immersed in the most fascinating legal environment in which I have ever worked. To set the stage for understanding something of the challenges faced in South Sudan, I need to share some geography, demographics and history with you.
The Republic of Sudan lies immediately south of Egypt. The new country of South Sudan is comprised of what was roughly the southernmost one-quarter of the Republic of Sudan. Situated in the heart of East Africa, immediately west of Ethiopia and north of Uganda and Kenya, the country is the size of France with a population of somewhere between 7.5 and 10 million people. The vast majority of the black African population is scattered throughout the countryside in little towns and tiny villages.
There are only about 200 miles of paved road in South Sudan and almost all of the unpaved roads become impassable during the several months of the rainy season from May through September or so. There are only three all-weather airports in the country.
The capital city, Juba, where I was working, has fewer than a dozen paved streets — this in a city of at least 250,000 inhabitants. There is neither a central sewer system nor water supply. There is a tiny central electrical grid that is very undependable. Almost all electricity is supplied by individual generators, ranging in size from tiny to gigantic.
There are more than 60 indigenous languages spoken throughout the country as well as a fair amount of Arabic and a small amount of English. In many places the local language is really a mixture of local language and Arabic.
The religion is largely animist, with a significant Christian population and some Muslims as well.
The country’s main source of revenue is from oil, but it is no Saudi Arabia. Most people subsist on various types of farming and cattle-raising.
In 1898 all of Sudan came under the combined control of Egypt and Great Britain. The “brown and dry” north and “wet and green” south were administered separately with the north being predominantly Arab and Muslim, strongly influenced by Egypt; and the south being black African, totally under the control of the British and rather rigidly protected from influence from the north. In the south, the British established a system of British governorships and introduced English as the language of government. The basic legal system put in place was modeled on the traditional British common law system. Needless to say, the local elite learned to speak some English.
By 1946 the British and Egyptians began transitioning Sudan to being a unified, independent country. In line with that movement the decision was made that all of Sudan would be governed from Khartoum in the north. The south was quickly overwhelmed by the northern governance which included the introduction of a civil law system with Sharia law as its overriding base and Arabic as the official language. Resistance in the south to these changes was immediate, violent and continuing. Sudan became a fully independent country in 1956 and a more or less constant state of war between north and south has gone on since that time, killing and displacing millions. Finally, in July of 2011, after a five-year transition period, South Sudan became an independent country.
As part of the transition to independence the new government of South Sudan did the following: returned the country to a common law legal system; made Sharia Law applicable only to those who practice the Muslim faith; integrated “customary law” into the formal legal system; and declared that English was the official language of the government. The legal system in South Sudan has come pretty much full circle back to 1898.
While the shift to a system based in common law and the designation of English as the official language has its roots in history, there was also another driver for these changes. South Sudan wants to become a member of the East Africa Community, the regional intergovernmental organization comprised of the Republics of Kenya, Uganda, the United Republic of Tanzania, the Republic of Rwanda and the Republic of Burundi. As well as returning the south to its “roots,” these changes brought the South Sudanese into alignment with the other countries of the EAC.
To fully appreciate the impact of the changes in the South Sudan legal system on judges and attorneys it is necessary to understand that for the last 56 years, the official language of all of Sudan has been Arabic. The only law schools in Sudan were in Khartoum in the north, and they all taught only in Arabic. What this meant of course was that all attorneys and judges — whether working in the north or south —were trained in the law in the Arabic language and practiced law and conducted court proceedings in that language, or more often, in the local language of the region. They had all learned and applied Sharia Law. They were only trained to practice law in a civil law jurisdiction.
When the transition began toward independence, numerous attorneys and judges from the north who were originally from the south went “home.” They all spoke Arabic. The good news for the judiciary is that there were a relatively small number of judges and attorneys from the north who came “home” to the south who were somewhat proficient in English. The shining example of the “English-ready” judge who returned from the north is the current Chief Justice of the Supreme Court Chan Reec Madut. Besides having graduated from one of the law schools in Khartoum, he is also a Harvard Law School graduate. One of the funniest things that happened in my time in South Sudan was sitting and listening to the chief justice and a couple of other Supreme Court justices laughing and telling stories about how the three of them consistently got the best grades in the classes in Sharia law, even though they were all Christians.
To its credit, the South Sudan judiciary has really led the way in addressing the myriad of challenges presented by the massive changes in the legal system. They are being assisted in their efforts mainly by an international organization aptly named, International Development Law Organization (IDLO).
To begin to address the challenges presented by the switch from a civil law to a common law jurisdiction there have been several initiatives. First, new civil and criminal procedure codes have been enacted by the legislative assembly. These procedure codes, while still continuing some vestiges of the civil law inquisitional role for judges, largely shift toward the more adversarial nature of proceedings found in common law countries.
To assist the bench and bar in practicing under these new codes IDLO has worked with the Supreme Court to produce “bench books” explaining the application of the provisions of the civil and criminal procedure codes and presenting practice suggestions as applicable. These are about to be published and distributed. The trial judges are eagerly awaiting their arrival: I assume the attorneys are also.
In addition to producing the bench books, IDLO has assisted the judiciary by holding month-long, intensive workshops for virtually all of the judges in the country — presently only 116 — to train them in the application of the new procedure codes as well as substantive law. These training sessions include moot court sessions so that judges can begin to practice their new roles.
A very basic challenge confronting the courts in shifting to a common law based system is that … they have no common law. Since South Sudan, before becoming independent, had been operating under a civil law system, there had been no attempt made to collect or publish decisions of the Supreme Court. The Court has now undertaken a systematic review of its prior opinions with the intent of collecting those of important precedential value and publishing them in bound volumes. The courts also look to decisions from Kenya and Uganda for guidance as the law in these two countries is strikingly similar in many respects to the laws of South Sudan.
Without a doubt, the biggest challenge for the courts, attorneys and the public as a whole is the shift to the use of English as the working language. As pointed out above, virtually all of the judges and attorneys received their legal training in Arabic and have practiced in that language or one or more of the native languages.
To begin to address the issue of lack of English language competence in the judiciary, IDLO and the Supreme Court have begun a rather unique series of training sessions for the trial judges. The training combines courses on substantive and procedural law as mentioned above, as well as developing English language skills. The first two such sessions revealed that there is such a marked variation in competency levels in English, ranging from no English spoken or understood to those who have a basic ability to understand and speak English but little ability to read or write it, that future training sessions will be broken down by English language competency with those with the least ability receiving six weeks of training and those with greater skills receiving four. Even though four weeks of training may not appear to be much when it comes to learning English, the trainers have consistently reported substantial improvement by all participants including bringing those who had no English language skills at all to the point of being able to carry on basic level conversations.
I found myself swept up into the English training when I was approached by the instructor with an interesting request. Seems that the training group had told the instructor that one of the problems they faced was that none of them had much knowledge of the English names for body parts. The instructor asked if I would assist in this teaching. She thought the judges would love it if I taught body parts. Always being ready to serve the judiciary in whatever way I can, I got on the sometimes painfully slow Internet and found a couple of anatomically correct renderings of the male and female body. I put these on a couple of PowerPoint slides and spent about an hour labeling parts with their English names. Then we spent about an hour with me pointing to the part, pronouncing the name and having the judges, in unison repeat what I had said.
Things were going wonderfully and everyone was having a great time. When we finished I asked for questions. Big mistake! One judge raised his hand, pointed to a particular part of my anatomically correct male and said, “Why did you call that the rectum? On TV it is called asshole.” We then had a short discussion about the polite and vulgar forms of language.
As impressive as the English language training results have been, when judges return to their courts in small towns scattered throughout the country they face an interesting conundrum: All of the new case law and all legislation is in English, so the judge must maintain and undoubtedly increase his or her knowledge of that language. At the same time, among the general population, the day-to-day language — including that spoken by attorneys and court staff — is one or more of the 60 or so tribal languages, Arabic, or often a combination of both. So what is a judge to do? After intensive English training he or she returns to the courtroom with a legal mandate to conduct proceedings and keep records in English, a language that court staff, attorneys and litigants do not read, write, speak or understand. Of course the answer is obvious. Despite what the law says, English in the day-to-day work of the court is going to have to wait — maybe a very long time.
While there are numerous other challenges facing the courts in South Sudan there are two that are so different from the experience of Oregon attorneys and judges it seems well to note them. The issues are the role that tribal customs and Sharia Law play under the new legal system.
Section 6 of the Civil Procedure Code for South Sudan provides:
Where a suit or other proceeding in a Civil Court raises a question regarding succession, inheritance, legacies, gifts, marriage, divorce, or family relations, the rule for decision of such question shall be:
(a) any custom applicable to the parties concerned; provided that, it is not contrary to justice, equity or good conscience and has not been by this, or any other enactment, altered or abolished or has not been declared void by the decision of a competent Court; or,
(b) the Sharia Law in cases where the parties are Muslims except so far as it has been modified by such custom as is above referred to.
Thus, in what might be generally styled “family” issue cases, the courts are faced with the chore of sorting out what tribal customs may be applicable under the circumstances; whether, if the litigants are Muslim, the applicable customs have effectively modified Sharia Law; whether legislative law has in some fashion altered or abolished the applicable customs; and finally whether the applicable customs are “contrary to justice, equity or good conscience,” and if so, need to be ignored. I don’t know how long such analysis takes in the courts in South Sudan but I do have a general idea how long this process of analysis might engage the judges and attorneys in Oregon…
Lest anyone should think that this whole issue of integrating customary law into the formal legal system is somehow a minor matter, customary law and its role in the legal system comprises four days of the training programs for judges currently being conducted and is taught by the highly revered former Chief Justice of the Supreme Court. The emphasis is not only on understanding customary law but great emphasis is placed on not applying it blindly but carefully evaluating customs to ensure that they are not “contrary to justice, equity and good conscience.”
Surmounting the challenges the courts of South Sudan face in developing a common law legal system, integrating customary law into the formal court system and making English the operational language for court proceedings will be a long, slow process. To achieve these goals, will not only take near Herculean efforts by the judiciary but will also require like efforts on the part of attorneys as well. However, even with supreme dedication by the judiciary and the bar these efforts will be for naught unless the government of South Sudan embarks upon a massive educational effort, which results in the country’s citizens becoming proficient in the English language. If people can’t use their courts because they don’t speak the proper language, all other changes within the judicial system will be meaningless. In a country with approximately 60 different tribal languages being spoken and a literacy rate hovering around 20 percent, this is going to be a very long, slow transition.
As for writing court rules on this adventure, it turned out that the court system was so preoccupied with other more pressing issues they did not make much progress on rules. On the other hand, I made great progress understanding the courts in South Sudan.
ABOUT THE AUTHOR
In 2002, Senior Circuit Judge Jim Hargreaves formed Amicus Curiae Consulting, which works with courts in developing countries. His main areas of emphasis are timely case flow, court management, introduction of appropriate technology and change management. Reach him at firstname.lastname@example.org. To view photos of his trip, see https:// picasaweb.google.com/jrhdks/SouthSudan2012.
© 2013 Jim Hargreaves