Competing Legal Magic

-- By LindaMuzere - 17 Feb 2012 - 21 May 2012

Introduction

Last year was an unusual year; my family celebrated Independence Day on July 9th. The occasion was decades in the making. Nearly a million lives were lost in pursuit of liberty and many more displaced as collateral. Unfortunately, I count members of my own family as victims in both regards. But the struggle that spanned generations came to an official end last summer when South Sudan became an independent nation.

But what is the future of a country that has survived vicious civil wars and now faces the challenges of autonomy? How is a nation built on land that has been disemboweled by combat, out of a population continuously scattered by internal conflict and tenaciously segregated by tribal culture?

I first considered these issues nearly 10 years ago, during the earliest signs of impending sovereignty. For so long I cynically believed there was no hope for democracy unless South Sudan renounced the tribal frameworks that function in opposition of unified progress. This was my attitude until Eben’s course, at which point I began to fully understand the futility of using law to combat social structures. So what now?

South Sudan will never share a national vision void of tribal distinctions. Furthermore, the government’s reliance on law to influence these social structures is obviously misguided. When I thought about my parents and other survivors of tribal conflicts and civil wars, I noticed that their life philosophies are structured around avoiding consequences. After experiencing the realities of war, they are motivated by an immediate fear for survival. The most promising path to a successful nation will require leaders to placate their people’s common fears of war and instability while being cognizant of tribal differences.

The Problem

Laws are useless without unity and stability. More importantly, laws cannot be used to create these conditions. Tribalism is the biggest internal threat to South Sudan, as continued clashes between ethnic groups complicate political and economic progress. To date, the government’s response has been more legislation and brutal rule. This is ineffective and destroys the government's legitimacy. A nation that does not resolve its internal conflicts first is fated for collapse.

Survival

My parents’ generation was born into the first civil war. Growing up in a small village in Southern Sudan they were surrounded by constant threats to their personal security and future. The fear of a lifetime of insecurity for themselves and their family motivated all their decisions. My parents’ solution to guaranteeing a chance at a stable, productive life was to aggressively pursue education. Unfortunately, the course for too many others involves theft, massacre, and genocide.

This immediate fear for survival is pervasive throughout Africa. Everyone is afraid and the threats of war, poverty, famine, or insecurity can be motivators for change. To create a stable nation leaders must find solutions to allay these fears within the tribal framework and provide options other than war.

A Solution for the Future

Law is a weak form of social control. South Sudan’s government presupposes that order will follow legislation and has become increasingly authoritative. The interim constitution is a boilerplate template used by western democracies. It does not address the necessities of a nation fractured by the lingering fear of a Dinka majority government, tribal clashes, and the persistent failure of unity amongst ethnic groups. Each tribe has its own rules, hierarchy, economy, and conception of justice. A generic constitution cannot compete with these social forces. The sooner the government realizes this, the sooner they can stop their wasteful, destructive path towards a brutal dictatorship and more war.

But despite having different rationalizations regarding law, society, and justice, all citizens would come to the same conclusion regarding the future of South Sudan; the horrific experience and social consequences of civil war should be avoided by all means. Anything is preferable to war. Effective governance must be focused on preventing catastrophic results.

In Sudan, legislation should be structured with regard to consequences and the social and political implications on the tribal climate of the region. This means mitigating tribal tension by staying faithful to a representative democracy, recognizing multiple minor national languages, and ensuring ethnic minorities have fair access to social programs, government jobs, and guaranteed legal protection. Fears for survival can only be lessened by an immediate awareness of opportunity and security.

Additionally, a majority of tribal conflict stems from theft of cattle or battles over farm land. Since tribes have their own ideals for justice, a civil law or common law system would be inappropriate for resolving these disputes. The government must focus on establishing a comprehensive arbitration system that is locally controlled but allows the same benefits as international arbitration. While this will not erase the long history of tribal violence, it would at least encourage unique solutions that are tailored to the satisfaction of multiple tribal justice systems.

Conclusion

There is no immunity if and when unity and stability have been achieved. Good leadership is essential to these goals and, unfortunately, corruption poses the biggest threat to any nation’s future. The reality is that South Sudan must continue to defend itself from environmental disasters, regional instability, and threats from neighbors. But at the very least the country has full control over the ideals that structure the nation, and the gravity of this task requires international attention, scrutiny, and support.

I do not intend to understate or oversimplify the problems and externalities that plague South Sudan and other African countries. Nor do I intend to provide the magic formula for autonomy and democracy. But if law can be effective in Sudan there need to be changes in its conceptualization.

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