Chiefs’ Courts and Peacebuilding in South Sudan: Bridging Tradition and Modernity

Abstract

In response to the shortcomings of liberal peacebuilding, contemporary peacebuilding literature calls for localised approaches to conflict prevention in postconflict countries. Chiefs’ courts in South Sudan are one example of a localised approach that has been instrumental to traditional peacebuilding, addressing disputes and food shortages during famines. This article argues that greater incorporation of chiefs’ courts into a comprehensive, place-based approach presents significant opportunities for strengthening peace in South Sudan. However, the article also argues that there is a need for further critical analysis of ways in which chiefs’ courts align with contemporary peacebuilding standards and practices. Examining the effectiveness and challenges of this Indigenous peacebuilding mechanism, this article calls for a more nuanced and community-driven peacebuilding approach in South Sudan that recognises and leverages the agency and expertise of local actors, alongside international partners, to promote sustainable peace.

Keywords

Chiefs' courts peacebuilding South Sudan bridging tradition and modernity

Introduction

South Sudan is plagued by enduring conflict and unending war. Violence has had a devastating impact on the country, with the 2013–2014 conflict alone causing nearly 400,000 deaths and forcing 2.3 million refugees to seek safety in neighboring countries (Blanchard, 2018; OCHA, 2023). The roots of South Sudan's struggle with violence extend far back in history, pre-dating independence, including slavery, colonialism, and previous north–south civil wars (Rolandsen & Daly, 2016). In the contemporary period, these historical roots have become compounded by factors such as kleptocracy, political manipulation, poor governance, and botched military integration (De Waal, 2023; Roach & Hudson, 2019; Warner, 2023).

To date, many existing government peacebuilding efforts, including the signing and implementation of the 2018 Revitalised Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS) (Stamnes & Cedric, 2022), report of the Committee for National Healing Peace and Reconciliation (CNHPR, 2016), and the final report of the National Dialogue (ND) (Deng, 2020), have demonstrated limited success. Similarly, the involvement of the international community—while providing increased access to essential services, strengthening governmental capacity, and offering social protections and livelihood assistance (Maxwell et al., 2018; Wolff, 2012)—has also fallen short of achieving enduring peace in South Sudan. Consequently, there is an urgent need to consider alternative peacebuilding strategies.

In 2009, the then Government of Southern Sudan (GoSS) enacted the Local Government Act (LGA), stipulating, among other things, types of traditional authority, the establishment of chiefdoms, types and composition of decentralised chiefdoms, criteria for the establishment of chiefdoms, the election or selection of chiefs, the immunity of kings and chiefs, and the council of traditional authority leaders (South Sudan NGO Forum, 2009). The Act only mandated chiefs’ courts (also known as customary law courts), which fall under the traditional authority, to hear customary cases. Through the Southern Sudan Council of Traditional Authority Leaders (COTAL), the Act allows chiefs to apply customary and traditional conflict resolution mechanisms to resolve intertribal conflict and to promote peacebuilding and resolution of conflicts through mediation and other conciliatory methods. However, by 2011 when South Sudan gained independence from Sudan, the LGA, which is the basis of chiefs’ courts, had still not been implemented. Expectedly, Chiefs in South Sudan became critical of the implementation delays, calling for the operationalisation process to be sped up so that judges could hear cases mandated by the Act, rather than still hearing criminal cases over which they have no jurisdiction because they are not permitted by the Act (UNMISS, 2013a). When violent conflict broke out in December 2013, it further frustrated ongoing calls for implementation.

This article considers the ways in which chiefs’ courts align with, and fall short of, contemporary peacebuilding standards in South Sudan by analysing its modern principles of conflict resolution and areas where traditional practices may not meet the expectations of the contemporary peacebuilding framework. It is divided into four sections, each addressing a specific aspect of chiefs’ courts and peacebuilding in South Sudan. The first section provides a literature review of South Sudan's contemporary peacebuilding trajectory, highlighting the need for a bottom-up approach represented by chiefs’ courts in contrast to ineffective top-down approaches. The second section examines broader literature on chiefs’ courts as a localised peacebuilding approach used in various countries, with specific examples from countries such as Botswana, Vanuatu, Ghana, and Malawi. Both successful and unsuccessful stories are explored. The third section focuses on chiefs’ courts in South Sudan, highlighting their effectiveness in promoting enduring peace at the grassroots level. Finally, the fourth section discusses the need for greater alignment of chiefs’ courts with contemporary peacebuilding standards. It addresses chiefs’ courts alignment with the inclusion and participation of all groups, their emphasis on peaceful conflict resolution and mediation, and the need for training on human rights and the rule of law to bridge the gap between traditional and modern peacebuilding practices. The conclusions drawn from the literature are presented in the sixth and final section.

Two research methods were used in developing this article. The first was content analysis, which involved analysing the content of existing local peacebuilding literature on chiefs’ courts to identify patterns, gaps, and appropriate ways of integrating chiefs’ courts into a place-based local peacebuilding approach and assessing their alignment with contemporary peacebuilding standards and practices. Databases utilised in literature search include Google Scholar, JSTOR, and Scopus. Searched keywords include “chiefs’ courts South Sudan,” “customary law and peacebuilding,” and “hybrid justice systems.” The analysis used gray literature, academic literature, policy documents, and international nongovernmental organisation (iNGO) reports. Sources were organised by subject significance, including peacebuilding effectiveness, chiefs’ courts roles, and human rights issues. The second method involved drawing on lived experiences as a witness to chiefs’ courts in the late 1990s, providing context for interpreting the literature and forming a foundation for future empirical research. For example, the method draws from the case of Magalatoria, an Internally Displaced Persons (IDP) camp in Central Equatoria State, where chiefs’ courts served as the primary mechanism for resolving intratribal conflicts. The chiefs resolved local disputes brought to them by local police or complainants in open, transparent, and accountable communal gatherings held under a tree. The resolutions of the chiefs’ courts were final and strictly adhered to by the disputants. This grassroots approach through chiefs’ courts allowed peace to flourish.

The chiefs resolved local disputes brought to them by local police or complainants in open, transparent, and accountable communal gatherings held under a tree.

Likewise, chiefs’ courts in South Sudan have been instrumental in local and traditional peacebuilding, addressing local disputes and mitigating food shortages during hunger (Newton et al., 2021), foster resilience, consistency, and confidence in places impacted by war, all of which contribute to human security (Ibreck & Pendle, 2017), and resolving interethnic crimes for sustainable peace (Bedigen, 2020). Internationally, the effectiveness of chiefs’ courts as a peacebuilding infrastructure has been demonstrated across multiple countries, including Botswana (Sharma, 2005), Vanuatu (Paul, 2010), and Namibia (Miyamoto, 2022).

South Sudan's Peacebuilding Trajectory

State-led peacebuilding efforts in South Sudan have primarily focused on military integration, fostering solidarity among political and military elites from various factions. For example, in 2006, President Salva Kiir managed to secure peace agreements with former militias, integrating them into the military or civilian forces. The Juba Declaration with the late militia leader General Paulino Matip of the South Sudan Defence Forces (SSDF) and the general post-election amnesty extended to rebels like the late George Athor of the South Sudan Democratic Movement/Army (SSDM/A) were intended to acknowledge that South Sudan was inclusive and accommodating for all its citizens (Garang, 2013). This military integration, referred to as a “big tent policy” by De Waal (2023), aimed to control internal conflicts, as well as to prevent foreign interference, primarily from Khartoum, making it difficult for anyone to sabotage South Sudan's independence. The integration of different groups of militias, especially non-SPLM factions, was instrumental in preventing further civil conflict, as it facilitated the Southern Sudanese referendum without outbreak of fully blown out violent conflict, as well as paving the way for independence (Warner, 2023).

Unfortunately, South Sudan has yet to achieve justice and accountability, highlighting the glaring gap that needs to be addressed for effective and enduring peacebuilding.

However, for all its merits, peacebuilding also later proved to be elitist and flawed, as witnessed by the outbreak of violent conflict in 2013. Scholars like Jok (2021) have pointed out that postwar reconstruction efforts in South Sudan neglected the importance of rebuilding the social fabric and interpersonal connections among the people. The focus on military integration overshadowed the need to address the trauma individuals experienced, rebuild family bonds, and reinstate the social structures necessary for stability. According to Jok, lasting peacebuilding will require the prioritisation of justice and accountability for crimes committed during the war. Unfortunately, South Sudan has yet to achieve justice and accountability, highlighting the glaring gap that needs to be addressed for effective and enduring peacebuilding. While state-led peacebuilding efforts have focused narrowly on maintaining fragile peace through short-term military accommodation in South Sudan, the international community's peacebuilding efforts have taken a diametrically different approach, focusing primarily on improving human security.

International Peacebuilding Efforts

International actors have implemented a range of top-down peacebuilding approaches and mechanisms in South Sudan. These efforts have had their successes but have not led to an environment of lasting, stable peace.

The unsuccessful military accommodation policy in South Sudan only resulted in the integration of various armed groups into the government to prevent internal conflict and foster solidarity among the political and military elite, despite issues of corruption and inefficiency_. On top of this are the various, top-down, international peacebuilding efforts, which played a crucial role in maintaining a fragile peace. They included negotiated political settlement of conflicts, the international provision of essential services, initiatives to strengthen governance, peacekeeping missions focused on protecting civilians and maintaining stability, and the promotion of human security to prevent atrocities. These approaches prioritised top-down peacebuilding, emphasising elite political negotiations and structural reforms to foster peace and stability.

One notable example of international peacebuilding efforts is the Japan International Cooperation Agency's (JICA) human security approach (Tana, 2021). Human security prioritises the safeguarding and welfare of individuals and communities, going beyond the traditional focus on state security. In the specific context of South Sudan, human security has served as a comprehensive framework for various peacebuilding endeavors, development aid initiatives, and conflict resolution strategies. This approach has enabled JICA to effectively address the prevailing humanitarian crisis, shield civilians from harm, and foster stability within the region. By placing a strong emphasis on human security, JICA has made significant contributions toward consolidating peace, supporting the establishment of a functioning state, and tackling the interconnected human security issues. Ultimately, the concept of human security has played an instrumental role in assisting Japan in fulfilling its international responsibilities and attaining its foreign policy objectives within the context of South Sudan. However, according to Tana (2021), JICA's approach has encountered limitations due to the stark dissonance between Japan's liberal orientation and the realities of South Sudan's socio-political landscape. South Sudan is a predominantly conservative country whose political history continues to be challenged by instability amid JICA's implementation of a liberal human security policy framework. Overall, the imposition of liberal ideals in a predominantly conservative environment has proved ineffective, underscoring the imperative for peacebuilding policies tailored to local conditions to mitigate external interference and competition.

Overall, the imposition of liberal ideals in a predominantly conservative environment has proved ineffective, underscoring the imperative for peacebuilding policies tailored to local conditions to mitigate external interference and competition.

Regional collaboration has played a crucial role in peacebuilding in South Sudan. The Intergovernmental Authority on Development (IGAD), a regional organisation in East Africa, has been a central leader in providing capacity building in South Sudan. In 2011, the “Initiative for Capacity Enhancement in South Sudan” was established through a collaboration between IGAD, the Government of Southern Sudan (GoSS), and the United Nations Development Programme (UNDP) to improve governance capacity by deploying coaches and mentors from Ethiopia, Kenya, and Uganda to support civil servants. This initiative addresses existing gaps in governance and emphasises the importance of culturally and technically appropriate capacity-building methods, local ownership, and regional cooperation to ensure long-term effectiveness and sustainability (Tarp & Rosén, 2011). In addition to capacity-building work, IGAD has facilitated South Sudan's peace negotiations and signing of peace agreements. Since the inception of the conflict in 2013, the organisation has taken the lead in mediating and overseeing the peace process including the signing of the Khartoum Declaration Agreement in August 2018, which addressed outstanding issues concerning governance and security arrangements among the warring parties. IGAD's proactive involvement and mediation efforts contributed to the achievement of peace and stability in South Sudan. The lead role of IGAD in South Sudan peace matters was evidenced by the reduction in violence and the integration of the country into the regional architecture of peacebuilding (Gebru, 2020).

The successful role of IGAD exemplifies the power of regional collaboration to bring about regional peace as lack of such may increase conflict and cause a domino effect that could destabilise the region. However, as with other international peacebuilding efforts, IGAD has faced its own share of problems in facilitating peace efforts in the region. IGAD's peacebuilding role has been hindered by a lack of robust institutional leadership capable of ensuring regional peace and security (Agwanda et al., 2021). The prolonged conflict in South Sudan and the conflict resolution procedures deployed continue to cast a shadow on IGAD's operational and organisational capabilities. South Africa has been supporting South Sudan in peacebuilding matters, emphasising the centrality of atrocity prevention in the Responsibility to Protect (R2P) framework to justify its resistance to military interventions for humanitarian reasons (Nganje, 2017). This strengthens JICA's human security assistance and ongoing peacebuilding efforts by IGAD to build the capacity of South Sudan's government to fulfill its critical human security role. South Africa's difficulty is in aligning its R2P rhetoric with consistent strategies and tangible measures to avert mass atrocities within its influence (ibid). In fact, peacebuilding needs tangible partnerships to thrive and prevent relapse to conflict.

One exception to much of the top-down approaches deployed by international actors has been the activities undertaken by the United Nations Mission in South Sudan (UNMISS), which has shifted towards local peacebuilding to address challenges and enhance inclusive, grassroots conflict resolution efforts. UNMISS has comprehensive mandates covering a wide range of issues including the rule of law, gender, human rights, and security sector reform (Da Costa & Karlsrud, 2012). The UNMISS's change of strategic focus from top-down to bottom-up peacebuilding in protecting civilians and continuous contribution to building durable peace in South Sudan has been a game changer. The UNMISS's shift in strategic direction was a pivotal development as it indicated a departure from the focus on state-building and a renewed emphasis on safeguarding civilians. This change was prompted by the recognition that the government posed a significant threat to the populace of South Sudan. It has shouldered neglected sovereign responsibility that should have been carried out by the government without international intervention.

A critical assessment of the UNMISS’ work in South Sudan shows that it has played a relatively minor, facilitating, or indirectly influential role in the overall development of the country (Day et al., 2019). Yet, in some instances, it is perceived as a crucial player in providing much-needed protection. After the re-eruption of violent conflict in 2013, UNMISS shifted efforts from its core peacekeeping role to providing physical protection, space, and services at the Protection of Civilians sites (PoC), which saved many lives (Donais & Solomon, 2021). While UNMISS worked to alleviate the suffering of citizens and maintain normalcy, South Sudan continued to face administrative challenges that hampered UNMISS's work, including forced displacement of civilians, hindrances in accessing vulnerable populations, obstruction of humanitarian aid delivery, and restrictions on the freedom of movement for both UNMISS and its partners. Some of South Sudan's administration problems include its established opposition to modern development in state building, coupled with preying on its resources and political interference by regional powers (Day et al., 2019). Uganda interfered militarily in the conflict by supporting the government side (Ylönen, 2014), thereby creating mistrust in the IGAD mediation process due to one of its members participating in the conflict.

The failure of various peacebuilding programs in South Sudan, including military integration, the R-ARCSS, CNHPR, ND, and regional and international efforts, underscores the country's underlying and profound challenges. In fact, South Sudan faces a multitude of issues, including infrastructural shortages and governance deficits (Winn et al., 2015), which are further compounded by security threats, political instability, ethnic tensions, and economic difficulties (Wolff, 2012). These challenges accentuate the futility of imposing liberal paradigms on a society grappling with its own unique complexities and highlight the need for contextually appropriate approaches to foster sustainable peace and development.

Chiefs’ Courts

While most international peacebuilding mechanisms in South Sudan have operated at the national scale, there are also numerous local-scale mechanisms, one of which is the chiefs’ courts. Chiefs’ courts are a traditional, locally-based justice mechanism for the administration of local justice (Miyamoto, 2022; Newton et al., 2021, p. 13). Common across the African region, chiefs’ courts are also present in some countries in the Pacific region. Chiefs’ courts follow a traditional structure, handling cases within the local context, and promoting the idea that local solutions to local problems must come from within rather than being imposed from the outside (Deng, 2018). As such, there is no universal standard for the composition of chiefs’ courts. In some instances, women have been included in these courts based on their demonstrated logical skills and eloquence, although this is not common (Leonardi et al., 2011). The patriarchal composition of chiefs’ courts demonstrates the lack of inclusive participation, a problem that contemporary international peacebuilding is attempting to resolve through partnership, awareness, and making chiefs’ courts nonpatriarchal (IOM, 2021; UNMISS, 2013b).

While having been in operation for over a century, chiefs’ courts are not originally native to all the communities that employ them. Rather, they were introduced during colonial times as part of the indirect rule system based on local intermediaries and representatives appointed as chiefs and headmen (Leonardi, 2013). Throughout the years, chiefs’ courts have gained traditional legitimacy and have become entrenched as customary institutions within their respective areas of jurisdiction. Their jurisprudence differs from that of mainstream formal legal institutions, focusing primarily on traditional legal matters and relying on direct oral testimony to establish the truth (Matson, 1958).

Throughout the years, chiefs’ courts have gained traditional legitimacy and have become entrenched as customary institutions within their respective areas of jurisdiction.

Chiefs’ courts are effective and versatile grassroots legal institutions that complement the formal legal system. The oral nature of chiefs’ courts makes them particularly accessible to enthusiasts of oral tradition who may struggle with the complexities and legal jargon associated with formal legal systems (Matson, 1958). Presided over in local languages, chiefs’ courts encourage local ownership, versatility, and timely administration of justice in an open, transparent, and accountable process that includes all members of the community.

In Botswana, for instance, chiefs’ courts coexist with modern courts and are established on tradition and legislation to provide rural communities with understandable, affordable, prompt, and nontechnical justice. These legally recognised courts uphold both statutory and customary law, deriving their authority from both traditional leadership and legislation (Sharma, 2005). According to Botswana's Chieftainship Act, a Chief is an individual who has been designated as a Chief in accordance with customary law by his tribe in a Kgotla; and has been recognised as a Chief by the Minister of Local Government. Kgotla meetings provide easy accessibility for members to participate in decision-making processes and promote open communication. Chiefs bear the responsibility of promoting the welfare of tribe members and addressing their individual needs. They also ensure that the community is well-informed about development projects. Kgotla meetings serve as a platform for tribe members to offer advice and engage in discussions on important issues (Sharma, 2005). If a chief violates the law, the minister may decide that it is necessary and beneficial for maintaining peace, order, and good governance to remove or suspend the chief for a maximum of five years. Botswana stands out as a rare case in Africa that has not experienced civil war or political unrest throughout its history (Molomo, 2009). The peace and tranquility in Botswana may be attributed to strong local peacebuilding structures like chiefs’ courts that prevent, resolve, and uphold peace at the grassroots level. According to Lederach (2005), the country's leadership has mastered the art of relationship building, which continuously sustains local peacebuilding structures.

While chiefs’ courts play a crucial role in resolving local conflicts, they also uphold Indigenous rights. In Vanuatu's Penama Province, for example, there is a council of Chiefs called the Lakalakabulu Area Council of Chiefs that play a significant role in settling conflicts and upholding traditional values by preserving and upholding the rights and general welfare of Indigenous people, defends, and promotes traditional values, and resolves conflicts and disagreements in accordance with local customs (Paul, 2010). Since its inception in March 1996, the Lakalakabulu Area Council of Chiefs has addressed various issues, including those related to land, families, and minor crimes such as theft, trespassing, violence, and property damage. By hearing and resolving these cases, the chiefs’ courts have maintained and restored harmony and order. The council serves as a robust example of the infrastructure for peace advocated by Lederach (1997), within the framework of traditional law. In Ghana, the Houses of Chiefs is enshrined in the constitution, making them a critical component of the country's legal landscape, navigating the intersection of traditional authority and modern legal frameworks (Anamzoya, 2014). In Malawi, traditional authority known as mafumu (chiefs) preside over bwalos, which are open communal gatherings attended by community members and opinion leaders. This forum provides possibilities for conflict avoidance and resolution, as well as initiatives grounded on Indigenous ideas and knowledge. The bwalo encompasses conciliation, negotiation, mediation, arbitration, and adjudication (Hussein, 2011). These peacebuilding functions of various chiefs’ courts demonstrate that they are infrastructure for peacebuilding.

Despite notable successes in building and promoting enduring peace at the grassroots level, chiefs’ courts face significant challenges worldwide. The non-universality of these courts presents different obstacles in various countries. In Ghana, for example, the Houses of Chiefs do not neatly fit into either statutory or customary systems, which complicates the identification of the official standing of administrative staff employed within them (Anamzoya, 2014). This shows the system-based incompatibility of traditions with modernity, thus presenting a challenge in bridging the gap in contemporary peacebuilding. Chiefs have also been subject to elite capture, where their traditional roles have been redirected to areas where they lack experience and wisdom while being excluded from areas where they could advocate more effectively for their people. This problem can be seen in Malawi where elite capture in rural areas has been observed, with chiefs being co-opted to address resettlement programs but excluded from designing food insecurity response programs (Kita, 2019), an area they would contribute sufficiently. According to Kita, the state should prioritise the cultural and political aspects of rural life when developing programs for climate change adaptation and disaster risk reduction. Addressing these challenges requires thoughtful consideration of local contexts and a concerted effort to empower chiefs’ courts to fulfill their traditional roles effectively within a comprehensive, context-specific peacebuilding approach.

Chiefs’ Courts in South Sudan

South Sudan's chiefs’ courts have a foundation in the Southern Policy of the 1930s which established the Native Administration Act (Leonardi, 2013). With time, the chiefs’ court developed into an avenue for the resolution of claims to property and persons. Chiefs were used by the British colonial government for tax collection and to resolve local disputes, a role they continued to play during the north–south civil wars and after independence (Idris, 2017). The colonial crafting of the chiefs’ court has been corroborated by Wassara (2007), who suggests that the method needs to be modernised to conform to human rights as enshrined in the national and state constitutions of South Sudan.

The practice of customary law through chiefs’ courts in South Sudan is an indispensable part of the justice system. The majority of the population depends on this traditional law and the local authority of chiefs to fill a gap where the state justice system is lacking and is more trusted in managing local conflicts compared to formal civilian institutions and statutory law (Hessbruegge, 2012). The chiefs are experienced local adjudicators trusted by the people, thus increasing the legitimacy of the process. The scope of local government administration in South Sudan includes counties, Payams, and Bomas (Idris, 2017). Chiefs’ courts operate at four levels in South Sudan: Court C (at the county level), Court B (at the Payam level), Town Bench courts (at the town level), and A courts (at the Boma level), primarily handling family and marital issues. Court C represents the highest courts at the county level and has the authority to hear appeals from the lower-level B courts at the Payam level. Court C serves as the highest appellate court, where parties can appeal decisions made by lower courts when there is disagreement (Ministry of Justice and Constitutional Affairs, 2024). These chiefs’ courts are accepted judicial systems that are used at multiple levels of local government.

Chiefs’ courts complement the formal legal system by creating a harmonious hybrid legal order that offers people more choices. This harmonious hybrid order was evident during the displacement of South Sudanese people caused by the Sudanese Second Civil War. Even in internally displaced camps, people maintained their chiefs’ courts. After South Sudan's independence, efforts to replace chiefs’ courts with statutory courts failed, and both systems continued to operate peacefully together (Justin & Verkoren, 2021). This coexistence demonstrated pragmatism and the influence of power in institutional development. According to Verkoren, an actor's formal position is not the most crucial factor. Instead, informal sources of power, such as armed supporters and political connections, play a significant role in shaping institutional developments according to the preferences of influential actors. The survival of chiefs’ courts from other ethnic groups in Yei River County shows these factors at play.

Chiefs’ courts complement the formal legal system by creating a harmonious hybrid legal order that offers people more choices.

In addition to their judicial functions, chiefs’ courts in South Sudan are also used as a mechanism to render assistance during emergencies, including the identification and management of hunger during periods of extreme food insecurity. Chiefs’ courts do this in a unique way, due to sustained years of experience. Families facing food shortages gather at chiefs’ courts to claim food from relatives who have food due to the traditional kinship obligation to be rendered assistance. In scenarios where there is no adequate food from relatives to distribute to the food-insecure people, community resources are mobilised to support the hunger-stricken families (Newton et al., 2021). This positive role of chiefs’ courts has been strengthened by its inherent characteristics of being accessible to everyone. Easy accessibility has enabled the interest of the vulnerable and poor local people to be served more quickly and flexibly by the chiefs’ court, although there is a gap between state legal strategy and the local traditional litigation in South Sudan, where resource exploitation in advancing cases is rampant (Leonardi et al., 2011).

However, chiefs’ courts in South Sudan act as a centripetal force in local governance, bringing people together and using tribal norms and rules to resolve disputes (Musila, 2018). For example, within the Protection of Civilians Sites (PoCs), chiefs’ courts have enhanced human safety by fostering confidence, reliability, and adaptability (Ibreck & Pendle, 2017). Their success in these unconventional legal environments demonstrates their flexibility and ability to meet the emergency legal needs of the people. This pragmatic approach aligns with the idea that improving human security should focus on facilitating relationships (Lawrence, 2017). The innovative legal methods employed by chiefs’ courts have effectively built peace in the PoCs, a previously unheard-of achievement.

Chiefs’ courts face substantial challenges in South Sudan. In a country that has experienced political instability, the role of chiefs in the legal system has been subject to continuous debate. One of the main challenges is the frequent outbreaks of civil war (Santschi, 2014). Conflict creates an environment of instability and insecurity, making it difficult for chiefs’ courts to operate effectively. The volatile nature of these conflicts often results in the displacement of communities and the breakdown of legal systems, further impeding the ability of chiefs’ courts to administer justice. According to Santschi (2014), the uncertainty surrounding the governance role of chiefs in South Sudan adds to the challenges faced by chiefs’ courts. This uncertainty not only undermines the authority and legitimacy of chiefs’ courts but also leads to a lack of confidence among community members regarding their ability to access justice through these courts in times of political uncertainty. Nonetheless, UN agencies have provided support to chiefs’ courts through training (UNMISS, 2013b, 2013c), although the impact of these efforts has been limited.

Conflict creates an environment of instability and insecurity, making it difficult for chiefs’ courts to operate effectively.

A second challenge faced by chiefs’ courts relates to the potential infringement on the human rights of women resulting from decisions made within the courts. In most cases, women are not part of the country's chief's courts. This is further exacerbated by the undue influence exerted by economic, military, and political elites who seek to manipulate the outcomes of these courts (Ibreck et al., 2017). The adverse effects of this interference can undermine the fairness and impartiality of chiefs’ courts and lead to the normalisation of the violation of the rights of vulnerable groups within society.

Another challenge to chiefs’ courts is the lack of a clear link between statutory courts and customary law courts. This issue contributes to the opacity of the judicial system and hampers the establishment of a unified and coherent legal framework (Diehl et al., 2015). The absence of a clear connection between these court systems generates legal uncertainty and gaps within the existing legal structure, impeding efficient interaction and coordination. As a result, potential conflicts and difficulties in decision-making and enforcement may arise. Chiefs’ courts may often face challenges in upholding their traditional authority and reconciling state interests with the needs of the local population.

Other challenges faced by chiefs’ courts in South Sudan include power monopolies, weak institutions, a culture of violence, widespread distrust in official bodies, and significant military involvement in public affairs and justice delivery (Musila, 2018). These factors contribute to an environment where the authority of chiefs’ courts may be undermined or manipulated by powerful actors who wield significant influence. Consequently, the principles of justice, fairness, and impartiality that should guide the functioning of these courts may be compromised, leading to a loss of public trust in their ability to deliver justice.

To address these challenges, comprehensive legal reforms are necessary to ensure the alignment of the traditional justice system with contemporary human rights standards while promoting inclusivity and fairness. Collaborative efforts are vital to develop and implement a framework that respects both the diverse ethnic communities’ traditional legal systems and universal principles of justice and human rights.

Aligning Chiefs’ Courts With Contemporary Peacebuilding Standards

Aligning chiefs’ courts with contemporary peacebuilding standards is important for localised peacebuilding mechanisms to meet the needs of modernising society. This section discusses gender equality, inclusive participation, mediation, skills training, and international human rights priorities as means of aligning chiefs’ courts with contemporary international peacebuilding standards and best practices.

One positive stride made in aligning chiefs’ courts to international standards is the increased gender inclusion and participation in South Sudan's Abyei region. In 2021, the International Organisation of Migration (IOM) assisted the nine chiefdoms of Abyei in reviewing customary laws by bringing together local administration, traditional leaders, women, and youth leaders to discuss the alignment of Abyei's customary laws to international standards. These discussions saw the alignment of chiefs’ courts in Abyei to international norms and standards through the formation of the Customary Law Advisory Council, the elevation of the first woman chief, and the appointment of 16 female representatives (IOM, 2021). The positive step taken in Abyei to align chiefs’ courts to international norms and standard is a testament to the present of the will to reform. However, the lack of inclusive participation of women in the rest of South Sudan's states is a testament to a will to retain tradition. The failure to implement the 2009 Local Government Act (UNMISS, 2013a) could also be a contributing factor to the lack of concerted alignment of chiefs’ courts to international standards in South Sudan. There is a need for the South Sudanese government to incorporate chiefs’ courts into a comprehensive, place-based bottom-up peacebuilding architecture to prevent and resolve conflicts instead of a fragmented approach where communities decide their reforms.

The positive step taken in Abyei to align chiefs’ courts to international norms and standard is a testament to the present of the will to reform.

Chiefs’ courts in South Sudan can also be enhanced through establishing local assemblies. These assemblies can mimic Botswana's tribal assembly called Kgotla. The Kgotla plays a crucial role in resolving conflicts and determining matters related to tribal membership, fostering peace and harmony. Chiefs also organise Kgotla ceremonies and uphold cultural traditions to preserve the community's cultural heritage. They work to deter offenses and promote lawfulness and orderliness within the community (Sharma, 2005).

Even though advisory groups like the Customary Law Advisory Council in Abyei can be a voice of the local assemblies, it does not delve deep into the community to gauge individual views in relation to the work of chiefs’ courts. By involving local assemblies in chiefs’ courts, in a consultative manner, inclusive participation can be achieved, leading to a more informed and equitable dispensation of grassroots justice essential for local peacebuilding. In addition to establishing local assemblies, chiefs’ courts should also prioritise capacity-building programs at local assemblies for people to understand local, national, and international laws and how they are dispensed and aligned. At present, capacity-building programs are only short training on statutory, customary, and human rights to chiefs by the UNMISS, which is not enough. Extending capacity-building programs to local assemblies can equip individuals with the necessary skills and knowledge to engage meaningfully in court proceedings and review processes. Training sessions can be utilised to cover various topics, including legal rights, complaint processes, and advocacy, all interpreted and translated into local languages. By empowering people at the grassroots through local assemblies, chiefs’ courts in South Sudan can foster a more inclusive and participatory justice system that can detect, prevent, and resolve local conflicts.

Contemporary peacebuilding highlights the importance of transforming conflict by prioritising peaceful conflict resolution through mediation (Lederach, 1997). Chiefs’ courts, as a key institution within local communities, have been resolving local conflicts for decades in South Sudan (Prendergast, 1997). However, the traditional nature of conflict resolutions varies greatly compared to contemporary peacebuilding standards. Local communities, through chiefs’ courts, prefer restorative justice where compensation is paid to the family of the victim when death or adultery is involved (Pendle, 2018). Others require an exchange of a girl, given to the family of the murdered person (Wassara, 2007). These practices are as legitimate as they are to local communities. However, they fall short of aligning with international norms and standards which require justice applied to the person who committed the crime instead of a punitive punishment that is shouldered by another person and ultimately violates their individual human rights. Aligning chiefs’ courts with contemporary peacebuilding standards assists in resolving this problem.

As mentioned earlier, the decisions of chiefs’ courts infringe on the rights of women and youth (Ibreck et al., 2017). Considering this infringement on individual human rights, South Sudan through UNMISS has been making progress in aligning chiefs’ courts to contemporary peacebuilding standards that focus on respecting human rights. In March 2015, for example, a workshop was organised by the UNMISS in Kajo-Keji County, Central Equatoria State, and was attended by customary court chiefs. The chiefs were trained by UNMISS human rights officials to observe and follow South Sudanese laws that protect human rights, highlighting the prevalence of mob justice cases and the banishing of suspects of witchcraft as key challenges in addressing human rights issues. Government officials such as the County Commissioner supported the training for chiefs to respect statutory laws and urged UNMISS to extend workshops to villages. The UNMISS noted widespread inconsistency with various laws in South Sudan, attributing this inconsistency to the chiefs’ lack of knowledge about their responsibilities. At the end of the workshop, the chiefs pledged to rectify their weaknesses and fully respect and implement the laws of South Sudan (UNMISS, 2015). While trainings like this are essential in maintaining human rights, they are inadequate as they are once off. To ensure that chiefs’ courts uphold human rights, it is crucial for chiefs to receive mandatory constant training on human rights principles.

To ensure that chiefs’ courts uphold human rights, it is crucial for chiefs to receive mandatory constant training on human rights principles.

In Botswana, courts (including customary courts) must align their interpretation of domestic law with international treaties and the knowledge of relevant rights in these treaties (Cailleba & Kumar, 2010). Partnership between the UNDP and chiefs’ courts in South Sudan has worked well as a means of aligning to contemporary peacebuilding standards. In November 2014, the UNDP organised a five-day training workshop in Aweil to help the chiefs, women, and youth leaders understand how justice is dispensed using both traditional and statutory law systems. The training aimed to strengthen the justice system and promote a better understanding of the traditional dispute court system (UNMISS, 2014). Workshops are an important part of aligning chiefs’ court to contemporary peacebuilding standards. They equip stakeholders with the knowledge to understand their jurisdiction. However, workshops alone are not enough. To effectively fulfill this role, chiefs should receive adequate training in broad conflict resolution skills, not just depending on their traditional methods, and be equipped with the necessary tools to facilitate peaceful conflict resolution, to understand the dynamics of conflicts, and to develop effective cross-cultural communication techniques. By acquiring these skills, chiefs can create an environment that encourages open dialogue across South Sudan, where conflicting parties feel safe to voice their concerns and work towards finding mutually acceptable solutions.

Conclusion

We have discussed the importance of aligning chiefs’ courts in South Sudan with modern peacebuilding standards to improve conflict resolution. The article contributes to the integration of chiefs’ courts to international human rights standards while valuing local cultures. The article highlights the ineffectiveness of liberal values in conservative environments, suggesting that such measures might undermine local administration and reflect imperialistic inclinations if not carried out with caution. This criticism is in line with existing peacebuilding literature (Lederach, 1997, 2005).

Chiefs’ courts in South Sudan are an essential part of the justice system, offering a harmonious hybrid legal order that provides people with more choices. Their trustworthiness, legitimacy, and adaptability make them efficient in resolving local conflict, assisting during emergencies, and promoting peace. Considering the positive role of the chiefs’ court, all indicators point to the need to strengthen and expand it at local levels to assist in building enduring peace. To do this, it is crucial to align these courts with contemporary peacebuilding practices to achieve sustainable peace in the country. While there are currently no comprehensive government-led examples of aligning chiefs’ courts with contemporary peacebuilding in South Sudan, progress is being made through initiatives such as the inclusion of women in these courts, providing training on local laws and human rights standards, and promoting equity in the justice system. These efforts are important for building trust and confidence in the courts, which are essential for lasting peace at both the community and national levels.

Chiefs’ courts must promote inclusivity and participation, incorporating all essential stakeholders, especially women, youth, and marginalised groups in their operations. Conflict mediation should be prioritised to promote peaceful dispute resolution at the grassroots. Training chiefs in human rights principles and legal procedures is critical to ensure fair trials and protect individual rights. Additionally, addressing challenges such as civil wars, elite influence, and establishing clear links with statutory courts is essential for enhancing the effectiveness of chiefs’ courts. A comprehensive and context-specific approach is necessary to empower these courts and promote enduring peace at the grassroots level. By incorporating chiefs’ courts into South Sudan's overall peacebuilding strategy and aligning them with contemporary standards, they can effectively contribute to fostering lasting peace in the country. Development partners play a crucial role in supporting capacity building and training for chiefs’ courts to align with contemporary peacebuilding practices. This partnership is commendable and should be maintained. Going forward, this article has sought to demonstrate that effective implementation of the above approaches can bridge the gap between traditional and modern justice systems for effective local peacebuilding. However, it is uncertain if they can resolve issues such as neglect, ambiguity, elite capture, and the legal limitations of the powers of traditional authority in Botswana, Ghana, Malawi, and Vanuatu. Future studies should investigate the role of chiefs’ courts in peacebuilding using empirical data to reduce reliance on secondary sources.

Footnotes

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Kuol Garang

Author Biographies

Kuol Garang, PhD candidate at the Cairns Institute, James Cook University, Cairns, Queensland, Australia. His research is on building peace in South Sudan, with a particular focus on the effectiveness of local and traditional peacebuilding mechanisms.

Kearrin Sims, Adjunct Professor at James Cook University, Cairns, Queensland, Australia. He has extensive experience in teaching, research, and publication in development studies. He is also the Director of Impact at Infuse Travel, a company specialising in experiential learning.

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