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2012 | D. Clancy (SIHA) - Falling through the cracks. Reflections on customary law and the imprisonment of women in South Sudan

With the Transitional Constitution the government of South Sudan wanted to express allegiance to custom and tradition as well as to legislative democracy, as influenced by international human rights law. As a result, the Transitional Constitution identifies both ‘the customs and traditions of the people’ and ‘the Constitution’ (containing an extensive Bill of Rights) as sources of law. It is anticipated that customary law and practices will be subject to codification in an effort to intermesh the two systems currently operating in fraught co-existence.  In the meantime, the law enforcers of the new State (police, prisons) continue to enforce various different versions of the customary law, such that contradictory principles are being forced into a ‘disconsolate confusion.’

For women and children it is difficult to negotiate the fault lines. In this article the author states (p. 60-64) that reparatory mechanisms for rape depend on the age of the victim, her social standing and the marriage value she represents. In customary courts rape demands social reparation, rather than justice. The study shows that woman before a court are given limited opportunity to set out their case and establish events (p. 43-45).

On page 80 the author mentions that South Sudan has become a member of The Pact on Security, Stability and Development in the Great Lakes Region, which makes the Protocol on the Prevention and Suppression of Sexual Violence against Women and Children legally binding. This protocol contains a detailed set of measures aimed at tackling the phenomenon of sexual violence. Until South Sudan has developed a national legal framework the protocol might be a useful tool and a starting point for discussion (p. 80).

At the end of her article the author proposes a few ideas for an Agenda for Action, these include encouraging the evolution of the customary system based on the recognition of a new social and economic context that enhances the capacity and rights of the women of South Sudan, implementation of South Sudanese legislation (for instance the Child Act and Penal Code) that protect the bodily integrity of women, examination of the conceptual approach within customary law that challenge the basic assumption of human rights integrated in the South Sudanese legislation, engaging with traditional authorities, participating in the reform of legislative with the core objective women’s rights (for instance in family law and the draft legislation of the Protocol on Sex and Gender Based Violence within the Great Lakes Pact). The author also encourages the South Sudanese government to ratify regional and international human rights mechanisms such as the African Charter on Human and Peoples’ Rights, the Protocol to the ACHPR on the Rights of Women in Africa and the Great Lakes Pact.