Institutions, laws and services - Saferworld

REPOR T

Institutions, laws and services Exploring justice sector reform in South Sudan

October 2011

Institutions, laws and services Exploring justice sector reform in South Sudan

SAFERWORLD Oct ober 201 1

Acknowledgements This report was written by Annie Barbara Chikwanha and Lauren Hutton (Project Co-ordinator, Saferworld), reviewed and edited by Eirin Mobekk (Saferworld). Saferworld is grateful for the funding provided to its South Sudan programme by the UK Department for International Development (DfID) through its South Sudan Peace Fund and the Canadian Department of Foreign Affairs and International Trade (DFAIT) through its Global Peace and Security Fund.

© Saferworld, October 2011. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise without full attribution. Saferworld welcomes and encourages the utilisation and dissemination of the material included in this publication.

Contents

1. Introduction

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2. Context

3

3. Efforts to reform the formal justice sector

5

Infrastructure and equipment

5

Policy, planning and legislation

6

Capacity building

7

Service delivery

8

4. Gaps in institutional reform programmes

11

The judiciary

11

The Ministry of Legal Affairs and Constitutional Development

12

Cross-cutting gaps

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5. Challenges

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6. Recommendations for programming

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7. Conclusion

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1 Introduction emerging from decades of civil war, extensive statebuilding and post-conflict reconstruction efforts are underway. South Sudan requires capacity building and support to develop institutions, structures and processes to enable the equitable and effective delivery of basic services, including security and justice. Improved security and justice service delivery is fundamental to reducing violent conflict and creating an environment conducive to development. For the new South Sudanese state, security and justice service delivery are key tasks to establish stability, development and sustainable human security.

in south sudan ,

This report analyses the justice sector in South Sudan and focuses on the following issues:

i a review of the current status of the justice sector and access to justice in South Sudan

ii an assessment of the intervention efforts in the sector that takes into account the

international and national efforts to reform the justice sector since 2005

iii the identification of priorities and programming requirements for improved support

to the justice sector.

The intention is to identify the gaps in emerging priorities in the sector with the aim of highlighting areas that require strengthening. It is important to emphasise that South Sudan is engaged in several transformative and developmental processes of which judicial reforms are a component. The list of needs for the new republic is long, and there is an understandable difficulty in prioritising what needs to be done when. Within the justice sector, as with most other parts of the public service, the need to prioritise and to balance short-term needs within long-term requirements is a challenge to programming for international partners and the government. This report serves to inform the process of developing a clear and comprehensive agenda for judicial reform in South Sudan. ‘Judicial reform’ is used throughout this report to refer to policies, interventions, and activities that aim to build or support the justice and legal systems, including the re-drafting of the legal frameworks governing society as well as institutional development of the ministry responsible for the administration of the legal system and the judiciary. The concept of institutions as used here does not refer just to justice sector structures, but also to the ways in which the sector conducts business. The focus is thus on institutions and the infrastructure that is required, as well as on the ability of these institutions and actors to deliver justice services to the people of South Sudan. The justice sector can be defined to include all the institutions involved in the delivery of civil and criminal justice, including the police, prisons, prosecutors, courts, judges, bar associations, and relevant civil society actors, as well as traditional mechanisms of justice. This report adopts a narrow approach to the justice sector and focuses

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institutions , laws and services : exploring justice sector reform in south sudan

on formal institutions related to justice service delivery, not including the police and prison sectors. This is for purposes of focus and prioritisation and should not be seen to detract from the need for more comprehensive and systematic justice sector interventions. The first part of this report provides some background information on the context that is informing the reform of the justice sector in South Sudan. The report next turns to current reform initiatives and challenges. The final part addresses some areas of prioritisation and further development. This review aims to contribute to the debate on justice sector development in South Sudan, but does not claim to be extensive or comprehensive. It seeks to be informative and exploratory in nature. The methodology for the study included primary data collection and interviews conducted in South Sudan, but on a limited scale. This primary data was supplemented by consulting secondary resources and desk research. As such, this report seeks only to inform the debate and pose a series of questions for consideration by actors involved in designing and implementing justice sector reform initiatives in South Sudan.

2 Context on gaining independence on 9 July 2011, South Sudan joined the global society of sovereign states. Decades of civil war has left an imprint on all aspects of social, economic and political life. Occupying the lowest rungs of most human development indices, South Sudan faces extreme under-development, the highest maternal mortality rate in the world and very high illiteracy rates. The economy is dependent on aid and oil revenue, with most basic food and non-food items imported from neighbouring states in East Africa. The formal economic sector is in its infancy, and the combination of lack of education and poor infrastructure challenge private sector development. The provision of all government services, from education to health care to security and justice, is starting from a very low level of capacity with limited expertise and experience and a dire lack of basic facilities, buildings, roads, electricity and equipment.

Even against this bleak backdrop, the opportunity for growth and development remains high. With independence came access to more oil revenue, which will provide increased capital for development. International efforts which have until 2011 been focused on humanitarian crisis response, implementation of the peace agreement and stabilisation activities now can move more concretely into the terrain of post-conflict reconstruction, with a focus on state-building, infrastructure development and sustainable economic growth. However, the newly formed government struggles to overcome the service delivery deficits of the past and to live up to the high expectations of citizens in Africa’s youngest state, while also trying to consolidate its power and legitimacy in the face of armed insurgency movements, inter-communal violence and malicious criminal activity. The Sudan People’s Liberation Movement (SPLM)-led government also faces internal challenges as the majority party transitions from its status as a liberation movement with a guerilla army to a democratically based political party with a national army in service of the state. These shifting power dynamics, combined with ethnic divergences and a strong liberation tradition, create a complex political and governance environment. The development of formal state structures is emerging not only from a post-conflict and liberation background, but also in an environment influenced by strong ethnic identities. Notions of ethnic identity are tied in many ways to the existence of a second or shadow state. With the state’s lack of capacity (and lack of willingness, especially during the civil war) to deliver basic services, communities have filled the service delivery vacuum with a combination of non-state service providers. From international aid associations providing basic food items and medical services to traditional structures for dispute resolution, people have accessed health, education, security and justice services from a myriad of alternative providers. Traditional structures for dispute resolution have retained a position of importance for a number of cultural and practical purposes. This tapestry of non-state authorities continues

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to influence service delivery in the independent state, with formal and informal mechanisms for security and justice service delivery existing and developing alongside each other. It is an arena of fragmented and diffused power and authority in which traditional and formal systems exist not as a dichotomy but as a continuum of interwoven relationships. In the formal justice sector there is a lack of basic infrastructure, from court houses to office buildings, desks, chairs and stationery, and a lack of human resources, from judges to paralegals to defence attorneys and public prosecutors. There are 117 judges in South Sudan who are meant to serve the Supreme Court in Juba, the three courts of appeal in Juba, Malakal and Rumbek, the ten high courts located at state capitals and 79 county courts.1 The Judiciary Act of 2008 makes provision for courts to be located at the payam (district) level, but there is not sufficient capacity to meet formal justice service delivery requirements at that level. There is a shortage of qualified legal professionals throughout the justice sector which hampers efforts to provide increased access to the formal justice sector. As a consequence, citizens rely on alternative means for dispute resolution including through traditional justice actors. Service delivery through the formal justice sector is further compromised by the lack of a coherent legal framework. The judiciary was operating under the authority of Khartoum for many years and was required to implement the form of Islamic law practised by Sudan. After achieving semi-autonomy in 2005, South Sudan began to build its own legal framework. With independence, these initial tentative steps will need to be developed into a robust system of laws that can form the framework for stable, predictable and reasonable relations. This is an immense challenge that serves to define the rules whereby the newly independent society will exist and the boundaries within which power and influence can be exercised. With a firm focus on building a sustainable South Sudanese state, a myriad of international actors have been supporting the development of the justice sector. Rule of law and access to justice are central pillars of the peacebuilding and statebuilding agenda and are positioned as key contributors to improved governance, stability and economic development. In South Sudan, this focus has been both on the traditional and formal structures for the delivery of justice services. The focus on both avenues for justice service delivery will continue, as the formal justice sector will not be able to deliver equitable and effective justice services to the entire population while also building the necessary infrastructure, crafting laws and developing the requisite human resource capacity. The traditional justice sector will remain an important source of justice services, as these actors are generally more accessible (in terms of language and geography) as long as the legitimacy of traditional authorities is retained.

1 United Nations Mission in Sudan (UNMIS), Southern Sudan Justice Sector Interim Review (UNMIS, 2011), p 9.

3 Efforts to reform the formal justice sector national government and state capacity to deliver justice is severely hampered by deficiencies in infrastructure, trained personnel, policy development and service delivery. These are key ingredients for an effective justice sector, and significant gaps in this regard contribute to the inability of citizens to access dispute resolution services from formal justice institutions. International partners have been providing various types of support to the government to enhance the delivery of justice services. Although some of these efforts pre-date the 2005 peace agreement, there has been increased attention to building state capacity to deliver services since 2005, and this period will be the focus of this discussion.

Infrastructure and equipment

One of the gravest challenges for the newly independent South Sudanese state is developing the infrastructure to enable governance, service delivery and economic growth. The shortage of infrastructure includes roads, buildings, electricity and water supply. For the justice sector, this infrastructure shortage manifests itself as a lack of sufficient office buildings, court houses and residences, especially for staff based outside of the national or state capital; a lack of vehicles and passable roads to enable legal staff to access rural payams; and insufficient communications and electronic equipment, including telephones, computers and printers. Since 2006, the European Union (EU) has supported the development of infrastructure for the justice sector at state level in Bor, Torit and Kwajok.2 The construction of houses and offices is due to be completed in 2012.3 There are also projects underway to rehabilitate judicial facilities, including in Wau, Yambio and Malakal, supported by the United Nations Development Programme (UNDP).4 However, even taking into consideration these and other efforts, the need remains great. There have been significant delays in construction due to delays in procurement procedures (particularly with the UNDP projects), the lack of infrastructure and the need to import most materials. The issue of infrastructure will be a priority area for many years to come. Interestingly, given the scale of the infrastructure challenge, there are not many international actors mobilising resources to support the building of offices or court houses or to provide basic office equipment. This is an area that

2 Interview with EU consultant in Juba, 13 May 2011. 3 Ibid. 4 Interview with senior judge in Juba, 12 May 2011.

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requires investment, and given that there exists a gap in terms of international support, increased national revenue could be allocated to support infrastructure projects.

Policy, planning and legislation

South Sudan Development Plan

After the referendum process of January and February 2011, in preparation for the establishment of an independent state and the assumption of the full range of state authorities and responsibilities for service delivery, the Government of Southern Sudan (GoSS) undertook a process to develop a three-year development plan. The South Sudan Development Plan (SSDP) was developed by GoSS and development counterparts, with the UNDP playing a central partnership role. The SSDP was designed to serve two primary purposes: first, to enable the prioritisation, planning and costing of development activities across state departments and second, to enable the presentation of a comprehensive, reconstruction plan to the international community to facilitate the allocation of development and assistance funding. Security and rule of law are addressed in the Conflict Prevention and Security Pillar of the SSDP, which defines the objective of rule-of-law development as “to strengthen the Rule of Law in South Sudan by enforcing and maintaining law and order, providing equitable access to justice and a functioning criminal justice system, increasing security in communities and promoting and protecting human rights for all”.5 However, the judiciary did not participate in the SSDP process, and neither the needs nor the role of the judiciary in realising this objective is incorporated into the plan. Indeed, even the actors that were involved in the SSDP process have been critical of this approach. In a public meeting on the SSDP in Juba in May 2011, the chairperson of the Law Reform Commission (LRC) remarked that justice had been done an injustice in the SSDP by including it as part of conflict prevention and not as a stand-alone issue. This opinion was echoed by other actors who found the inclusion of justice under security problematic.6 The chairperson of the LRC further criticised the process for its lack of consultation and inclusivity, which has hindered the development of a comprehensive and coherent plan that is accepted across all arms of the government and by civil society. The rule of law sector within the SSDP focuses on the Ministry of Legal Affairs and Constitutional Development (MoLACD7), police, prisons, immigration, customs and the fire brigade, as well as the Bureau for Community Security and Arms Control and the Human Rights Commission. The focus of the justice sector actors falls on the MoLACD and the LRC. The following priority areas are highlighted: ■■ Drafting and disseminating new legislation for priority areas (MoLACD) ■■ Preparatory legal work for accession to treaties, international agreements and

conventions (MoLACD)

■■ Establishing Legal Affairs offices at county level across all states (which includes

infrastructure and training) (MoLACD)

■■ Implementing a customary law strategy and the ascertainment customary law and

practices (MoLACD)

■■ Building the human resource and infrastructure capacity of the LRC ■■ Review and map existing legislation and prioritisation of legislative gaps (LRC) ■■ LRC to draft bills to fill legislative gaps and transmit to legislature with appropriate

advocacy and lobbying.

5 Government of South Sudan, South Sudan Development Plan: Conflict Prevention and Security Pillar (August 2011), p 111. 6 Opinions expressed by civil society representatives and senior official in the MoLACD during interviews in Juba, 9–13 May 2011. 7 At the time of writing and in many of the documents consulted, the Ministry was called the Ministry for Legal Affairs and

Constitutional Development. Post-independence and with the formation of the government of an independent South Sudan, the Ministry was renamed the Ministry of Justice in September 2011. For consistency, MoLACD is used throughout this paper as this has been the most commonly used name for the Ministry in 2011. The concerns and observations raised and recommendations apply to the Ministry of Justice.

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Unfortunately, the SSDP development process did not deliver a plan that is accepted across government departments (government officials involved in the process are critical of the manner in which it was conducted8), and does not provide a coherent and comprehensive strategic framework to enable priorisation and co-ordination of reform efforts for the justice sector. The shortcomings of the SSDP process mean that there remains a requirement for an overarching strategic framework to inform justice sector development. Legislative framework

The legal system for the administration of justice in South Sudan is comprised of legal traditions inherited first from the British colonial administration and second from the Khartoum regime. There is no inherently South Sudanese formal legal tradition. With the transition to sovereign statehood came the need to reform the legal framework to ensure agreement with the constitution and the values of the new state. In addition to the review of existing legislation’s applicability to a fundamentally different political and social context, there is a need to develop a clear and comprehensive legal framework to proscribe criminal activity and to ensure civil order. Central to this task is the LRC, which has been established to deal with the revision of the legal framework for South Sudan. This process is being supported by international partners, including the EU, which has supplied technical advisors to the MoLACD and the LRC. Support from the United Nations Mission in Sudan (UNMIS) for justice sector development also included a focus on legal drafting, including tracking the development of laws and analysis of laws with specific reference to international practices and precedents.9 However, the analysis was generally not shared outside of the mission and was used primarily to guide internal operations and to identify areas of intervention by the mission. UNMIS also tracked court cases to identify instances in which there is a need for reform of laws.10 The mission provided the judiciary and the MoLACD with comparative analyses of legal systems and practices,11 although these also generally were not shared with civil society or NGO actors. UNMIS was replaced by the United Nations Mission in South Sudan (UNMISS) on 9 July 2011. At the time of writing, the Rule of Law unit within the new mission did not yet have a new strategy. However, the new mandate sets out support to justice sector development.12 This may include a focus on: arbitrary and illegal detention; criminal justice law reform; support to the military justice system; harmonisation of laws (military and civilian); capacity building of justice institutions; embedding senior advisers; co-location of staff at the state level; and measuring progress in judicial reform and co-ordination.13 According to an official from the LRC, one of the biggest challenges is ensuring that citizens and public officials are bound by the law.14 Having the legal framework is only one side of the equation, and there is an identified problem with the enforcement of the legal framework.15

Capacity building

The capacity of the formal justice sector to deliver services is hampered by a general lack of human resources, which are spread unevenly across states and between rural and urban centres. For example, at the time of writing, in Jonglei state there was only

8 9 10 11 12 13 14 15

Interviews with senior officials and representatives at the SSDP meeting in Juba, May 2011. Interview with UNMIS Rule of Law representative in Juba, 11 May 2011 Ibid. Ibid. S/RES/1996, 8 July 2011. Information provided during an interview with UNMISS Rule of Law representative in Juba, 8 October 2011. Chairperson of the LRC at a public meeting on the SSDP in Juba, 19 May 2011. Ibid.

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one judge, located in Bor, and only five legal counsels deployed to serve 11 counties.16 This lack of judges contributes to backlogs throughout the justice sector, seen most commonly in the number of detainees that are awaiting trial. For example, in Western Bar-el Ghazal as of June 2011 there were 526 persons remanded to prison, of whom 258 were awaiting trial and 17 awaiting investigation.17 This backlog of cases being processed through the system is also related to a lack of prosecutors and the inability of prosecutors in some areas to keep up with the caseload.18 Language is a big issue, as most of the judges are working in Arabic and dealing with laws that were written in Arabic. With independence has come a shift towards embracing English as the primary language of the legal system, with local orders, state and national laws being drafted in English. Of the 15 legal counsels in Western Bar-el Ghazal, for example, only one speaks English.19 The British Council and European Union are supporting the delivery of English language training. The International Development Law Organization (IDLO) provides training to judges on various aspects of legal practice, from substantive law to judicial drafting and docket management skills.20 By the start of 2011, IDLO had trained more than half of the judiciary.21 However, some other actors expressed concerns about the manner in which training is conducted for the judges, because training usually takes place in Juba and judges are brought from all around South Sudan for a lengthy training programme (ten weeks). One civil society representative interviewed expressed concern that this system of training further exacerbated the backlog of cases, as with the judges away at training, the courts in some areas are unable to function for periods of time.22 Through programmes supported by the UNDP, training has also been provided to prosecutors and to senior officials within MoLACD.23 Training for senior officials has focused on management, finance and public administration.24 RCN Justice & Démocratie has also conducted various training programmes, including prosecutor training, support staff training programmes, and train-the-trainer programmes. In order to overcome some of the training deficits amongst legal professionals, the UNDP Rule of Law programme is also assisting with the relocation of the Juba College of Law from Khartoum to Juba University (this includes curriculum development and infrastructure). There are also plans to establish a Legal Training Centre in Juba to cater for a broad spectrum of training needs associated with legal affairs, including paralegal training. The Training Centre is due to be established within three years; this will enable a more strategic and co-ordinated approach to training. The UNDP also provides technical assistance and support to MoLACD at the Juba level and has co-located rule of law advisors at the state level to enhance capacity. These advisors have been working with the legal affairs and internal affairs departments at state capital level; such positions are often manned by United Nations Volunteers.25

Service delivery

Justice service delivery discussions are focused on both the traditional and formal systems for the government and international partners. Regarding traditional justice,

16 17 18 19 20 21 22 23 24 25

Legal Affairs representative from Jonglei in strategic planning meeting held in Juba, June 2011. Legal Affairs representative from Western Bar-el Ghazal in strategic planning meeting in Juba, June 2011. Interview with senior official from the MoLACD in Juba, 10 May 2011. Legal Affairs representative from Western Bar-el Ghazal in strategic planning meeting in Juba, June 2011. United Nations Mission in Sudan (UNMIS), Southern Sudan Justice Sector Interim Review (UNMIS, 2011), p 10. Ibid. Interview with civil society representative in Juba, 12 May 2011. Interview with UNDP representative in Juba, 12 May 2011. Ibid. UN Volunteers (UNVs) are usually deployed on one year contracts and are not permanent UN employees. The system was designed to bring a diverse range of skills into the UN system. UNVs have diverse skills and experience, some being new graduates and others being experienced professionals.

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as seen in the SSDP, there is a push towards the ascertainment26 of customary law. A Customary Law Centre has been established in Rumbek in order to host a library and archive, formal academic exchanges and partnerships, education and training and processes towards ascertainment.27 The Customary Law Centre will be operated by the MoLACD and is being supported by the international non-governmental organisation (NGO) Pact as well as the UNDP. There are mixed understandings as to what ascertainment of customary law will entail in South Sudan. Some see it as a first move towards codification and the harmonisation of the formal and informal systems so that notions of retribution and punishment are equitable between the two systems. However, given that a fundamental division between the formal and informal systems of practice centres on notions of crime and punishment and that one of the key strengths of traditional systems is its flexibility and evolutionary nature, formalisation and harmonisation could be to the detriment of justice service delivery. Others view ascertainment more as just recording decisions of traditional courts to create a body of ‘case law’ and precedent.28 Discussions on the interfaces between the formal and traditional justice systems in South Sudan are highly political exchanges and any reform efforts in this regard are navigating highly complex social and political currents. A key component of the service delivery aspect of justice sector development is in the provision of legal aid. There is currently no legal framework to enable the provision of legal aid services, but the UNDP provided a consultant in June 2011 to work for six months on the development thereof. Once the framework for delivery of legal aid is in place, there will be a need for increased recruitment and training of personnel as well as public awareness campaigns.29 The UNDP has two other programmes that focus on improving the capacity of the justice sector to provide services to citizens. The first is the Joint Justice Programme, which is operated in conjunction with UNMIS and the UN Police contingent.30 This programme has focused on two key areas of instability – Pibor and Akobo in Jonglei State – and on providing a centre for access to dispute resolution, negotiation and community mediation services. The second access to justice initiative by the UNDP is the Justice and Confidence Centres, which have been established in three sites: Juba, Bor and Yambio31. These are legal aid centres managed by civil society organisations to provide information and primary legal services and advice.32 However, there have been problems with sustainability due to limited capacity and experience among civil society organisations in South Sudan in running this type of project. Support to the ability of the judiciary to deliver fair and predictable legal services has been focused on training of judges and the establishment of a library of case law and legal precedent. The UNDP has provided support for the development of an electronic library for the judges. How effective this has been is questionable, due to the lack of computers (and computer literacy), language constraints and unstable electricity supply even at the headquarters of the judiciary in Juba.33 Even when the system is fully operational, maintaining an electronic library is going to be difficult due to shortages of skills among support staff and of computer and Internet equipment across the court system.

26 To ascertain is to know with certainty. In relation to traditional justice, ascertainment can refer to a range of initiatives, from

27 28 29

30 31 32 33

examination in order to better understand traditional justice processes to the capturing and cataloguing of decisions with a view to making traditional justice more definitive and standardised. Interview with representatives from an international NGO in Juba, 11 May 2011. Interview with representatives from an international NGO in Juba, 11 May 2011. Senior official from the Directorate for Human Rights and Legal Aid, MoLACD at strategic planning meeting in Juba, June 2011. Interview with UNDP representative in Juba, 12 May 2011. Ibid. Ibid. Interview with senior justice in Juba, 12 May 2011.

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Support to the functioning of the court systems has also been provided by the Canadian Government through the deployment of court liaison officers, who focus on following cases through the system, thus contributing to reducing the backlog of prisoners awaiting trial.34 There have also been recent initiatives to work within the prisons with mobile court systems to try to ease the backlog of detainees awaiting trial and to improve the pace of service delivery.35

34 Interview with representative from the Joint Donor Team in Juba, 11 May 2011. 35 Interview with international NGO representatives in Juba, 11 May 2011.

4 Gaps in institutional reform programmes of infrastructure, skills, equipment and institutions means that regardless of the positive impact that some programming has had to date, the scale of need remains great. Justice sector development is very much a work in progress, and all critiques should recognise the scale of the challenge and the effort and good intentions of programmes that have been pursued. The identification of gaps overlaps in some instances with projects that are being implemented and serves to highlight areas that require continued engagement rather than areas that are being totally ignored in reform interventions.

the start from a low level

The judiciary

In January 2011, UNMIS presented a review of the justice sector in South Sudan which noted the following issues in the effective functioning of the judiciary:36 ■■ Shortage of qualified staff ■■ High incidence of corruption ■■ Lack of security for justice personnel ■■ Nepotism ■■ Ineffective accountability and oversight mechanisms ■■ No access to libraries, legal texts and precedents ■■ Limited capacity to record decisions ■■ Inefficient court management systems ■■ Poor infrastructure, transportation and communication facilities

Many of the people interviewed for this research echoed these points. In particular, there remain significant language problems and a lack of personnel, infrastructure and a comprehensive record keeping facility. There were efforts by the UNDP to develop and implement an electronic court management system but these have not, according to one respondent in the judiciary, been viewed as having been successful;37 the lack of judicial records remains a significant shortcoming in the system. Similarly, even

36 United Nations Mission in Sudan (UNMIS), Southern Sudan Justice Sector Interim Review (UNMIS, 2011), p 12. 37 Interview with senior justice in Juba, 12 May 2011.

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though there has been some investment in developing infrastructure for the judiciary, this remains a clear priority area going forward.38 One significant area of concern at the time of writing was the absence of concrete programming relating to the area of accountability. There are perceptions of corruption and nepotism within the judiciary, and concerns that judicial fairness can be compromised further, threatening the legitimacy of the formal justice system and denying citizens access to impartial adjudication. Improved access to justice services will only be sustainable and effective as part of a democratic governance system if the services offered by the system are equitable and fair. The Anti-Corruption Commission is not adequate to deal effectively with transgressions in the judicial system, and an effective judicial oversight and accountability mechanism should be established. This could take the form of a judicial ombudsman and/or a judicial service commission.

The Ministry of Legal Affairs and Constitutional Development

According to the review of the justice sector conducted by UNMIS, the key gaps affecting the functioning of the MoLACD include:39 ■■ A shortage of qualified personnel ■■ A lack of resources and training to adequately prosecute the high number of criminal

cases

■■ A lack of personnel and resources to provide legal aid services ■■ A lack of an independent bar association with regulatory responsibilities for the legal

profession

■■ An incomplete legal framework ■■ Major challenges in the dissemination and translation of new laws40 ■■ A shortage of qualified lawyers, including a shortage of lawyers with English language

skills and trained in Commonwealth legal systems.

The Ministry, with the support of IDLO, is currently engaged in a process to develop a strategic plan, which should be completed in the latter half of 2011. In June 2011, representatives from all the states gathered in Juba to put forward their needs and to draft the framework within which the further development of legal affairs and the services that they offer can be achieved. According to officials at the meeting, this was the first time that representatives from all the states and national level had met to plan together. Increased communication between Juba and the states will be essential to achieving a unified vision of improved legal service delivery. The problems identified in the UNMIS review were echoed by many of the representatives at the strategic planning meeting, who were primarily concerned with the lack of infrastructure and equipment (including offices, furniture, equipment and vehicles), lack of personnel, and skills shortages (mostly in relation to English language skills). There is also a shortage of adequately trained support staff to assist with administration, financial management and record keeping. It is estimated that fewer than five percent of non-legal staff are university graduates.41 Most training programmes have been focused on legal professionals and judges, with inadequate attention provided to support staff skill requirements. Similarly, there is a need for increased training for the police in investigative techniques and laws and legal procedures.42

38 Ibid. 39 United Nations Mission in Sudan (UNMIS), Southern Sudan Justice Sector Interim Review (UNMIS, 2011), p 14. 40 The US Department of State supplied a printing press for the MoLACD to enable the printing and dissemination of laws, but

there has been problems with the effective functioning thereof. It is not known whether this is due to lack of technical skills to operate and repair the printing press or due to more serious technical problems with the machine itself. 41 Senior official Directorate of Administration and Finance at the strategic planning meeting in Juba, June 2011. 42 Legal Affairs representatives from several states echoed this problem at a meeting in Juba, June 2011.

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Internal procedures remain an area requiring further development. There have been international efforts to develop regulations for public service employees, but there is a seeming gap with the legal services, as staff of MoLACD are not bound by the same public service regulations.43 There is a need for a performance management system to enable improved human resource management and for clearer procedures for recruitment, promotion and disciplinary processes.44 Similarly, there is a need for improved management and record keeping to know who is deployed where, with what equipment, skills, etc.

Cross-cutting gaps

The sections above have pointed out some shortcomings in programmes specifically for the judiciary and MoLACD. However, there are also some gaps that are experienced within both institutions. One of these relates to the need for improved human resource management systems to keep track of trainings conducted as well as training needs and placement of trained personnel. There have been efforts by the EU to develop such a system specifically focused on training, but there have been problems with the continued maintenance of the information system and updating data.45 There is a lot of technical support being provided to both the judiciary and MoLACD, but this is currently being done in the absence of a broader strategic framework. Although as mentioned above, under MoLACD and now being taken forward under the post-independence Ministry of Justice, there is a process underway to develop a strategic plan that will be completed in the latter part of 2011. At the time of writing, this process had included consultations with state and national level officials, and a draft document was expected to be circulated in the last quarter of the year. Although this strategic plan will form an integral part of planning for further judicial reform, there remains a need for further strategic planning that integrates multiple components of the justice sector, including links with the judiciary, police and prison services. There are significant gaps in the development of the legal framework, including an absence of legislation on small arms control and a lack of promulgation of domestic violence and inheritance laws.46 There is the perception that domestic and family issues are handled in the community and that there is no urgency for the formal justice sector to develop regulations and hear such cases.47 Similarly, economic development requires a legal framework to enable predictable and reasonable relations, clear framework for ownership of assets; more focus also needs to be given to administrative and contract law. Another area which requires increased support and focus is that of minimising the gap between the formal justice service providers and citizens. There is the perception that people do not access services from the formal justice sector due to a lack of information about the systems and processes and about how to use the justice sector as a means to ensure and protect rights.48 There also is a perceived lack of knowledge about formal laws both within the justice sector and in communities.49 This is exacerbated by the lack of dissemination of laws (due to problems with the printing press in Juba and the level of illiteracy) and the lack of understanding of the laws. This is closely linked with the limited understanding and dissemination of laws to the South Sudan Police Service (SSPS).

43 44 45 46 47 48 49

Senior official in the Office of the Prosecutor General at strategic planning meeting in Juba, June 2011. Ibid. Interview with EU consultant in Juba, 13 May 2011. Interview with civil society representative in Juba, 12 May 2011. Ibid. Ibid. Interview with representative from the Joint Donor Team in Juba, 11 May 2011.

5 Challenges the broader international community has been developing a field of expertise and learning with regard to security and justice sector reform. Lessons have been derived from various contexts and incorporated into good practice texts, epitomised by the OECD-DAC Handbook on Security and Justice Sector Reform. Key issues raised by experience in security and justice sector programming have created a new focus on local ownership, donor co-ordination and the importance of strategic and comprehensive planning and programming. These lessons have been complemented in recent years by increasing acknowledgment of the importance of the political context during reform programmes, the need to better incorporate non-state actors, and the need to focus on linkages between security service providers.50

since the mid - 1990 s ,

Unfortunately, these lessons are easy to articulate on paper and very difficult to replicate in practice. Experience with justice sector reform in South Sudan bears witness to this, as many international actors continue to adopt an ad hoc approach to reform, with multiple projects being implemented outside of any larger co-ordinated strategic plan. There is a lack of coherence in approach – for example, some actors are advocating for the ascertainment of customary law while others are implementing programmes to codify customary law. This, however, is a decision for the government to make. There also is a lack of co-ordination, with various international actors providing training and technical assistance which is neither focused nor strategic. There is a high turnover of foreign staff in South Sudan and justice sector partners are constantly dealing with new faces, new people and new experts who fail to pick up from where the last deployed staffer left off.51 Questions also have been raised about the quality of international advisers that are deployed into departments. Such work often attracts young and relatively inexperienced persons (sometimes without the relevant educational background) who are then deployed as technical experts to assist senior officials. It is often viewed as offensive to have someone with limited or no government experience and who is vastly younger in the position of dictating in some ways what needs to be done and how.52 There is also inconsistency as mostly Westerntrained experts are deployed as technical advisors whose advice relies on knowledge from legal practices of their home nation. A number of national partners expressed the view that the international community appears to be operating with arrogance and not taking the priorities of the government seriously.53

50 See for example Piron, Laure-Helene, ‘Donor assistance to justice sector reform in Africa: living up to the new agenda?’

51 Interview with senior official from the MoLACD in Juba, 10 May 2011. 52 Interviews with senior officials at the MoLACD and the Judiciary in Juba, 10 and 12 May 2011. 53 Ibid.

www.odi.org.uk/resources/download/1557.pdf

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Some of the other challenges which continue to obstruct justice sector programming in South Sudan include: 1 Co-ordination – the UNDP is positioned as a leader on justice reform issues in

South Sudan, with some donors funding justice sector development by channeling funds through strategic partnership agreements with the UNDP. The UNDP has also taken the lead in establishing co-ordinating mechanisms, in particular the Rule of Law Forums, which operate at the national and state levels. Some concerns have been expressed about the functioning of the Forums.54 At national level, there is criticism of a lack of buy-in from all actors into the co-ordination meetings; some have also observed that the meetings are poorly organised and provide little feedback.55 At state level, regular meetings are only occurring in about half of the states.56 Some international actors claim that the lack of co-ordination is also a result of a lack of capacity in government to co-ordinate the activities and intentions of international actors.57 National partners bemoan the lack of co-ordination in the international community as a strain on their time and resources, and recommend the implementation of a lead actor approach within the justice sector.58

2 There are also some co-ordination challenges that result from a lack of communication

between the various arms of the justice sector. Both the judiciary and the MoLACD have indicated an interest in establishing a high-level committee or co-ordination council to lead policy-making and justice sector planning processes.59

3 Lack of communication – between government institutions, as well as within the

donor community and between international supporting partners and the state.

4 Local ownership – there is a gap between the needs of the actors in the justice sector

and what international assistance providers will give.

5 Absorption capacity and overload – there are many donors, international

organisations and NGO actors seeking to engage different parts of the justice sector, and this demand has a negative effect on the capacity which exists. One view is that this has led to senior officials being kept occupied with meetings and report writing, detracting from their ability to run their departments or units.60 Furthermore, there is a lot of attention at the Juba level, with fewer resources available at state level. The challenge of justice sector development programming in South Sudan is that this new state, emerging from conflict and years of oppressive rule, faces the task of creating laws, building facilities, providing professional and trained staff and delivering services all at the same time. Old institutions need to be reformed and new institutions and behaviours crafted. This requires time, commitment and resources. On the side of the international community, this calls for a long-term approach to programming which has not been possible up to now in the South Sudan context, dominated as it was by deadlines and dates determined by the peace agreement. With independence, that chapter is concluded and the transition to more comprehensive planning and programming can take place. On the side of the government, the issues of time, commitment and resources create other programming tensions. There is immense pressure on the government to deliver, and both citizens and international partners require visible improvements. However, time to develop systems and process and to allow for the evolution of practice is a luxury that the government is not being allowed. The unfortunate reality is that the government has neither sufficient human nor sufficient financial resources to meet

54 55 56 57 58 59 60

Interviews with MoLACD and international NGO representatives in Juba, 10 and 12 May 2011. Interview with international NGO representative in Juba, 12 May 2011. United Nations Mission in Sudan (UNMIS), Southern Sudan Justice Sector Interim Review (UNMIS, 2011), p 17. Interview with UNDP representative in Juba, 12 May 2011. Interviews with senior officials at the MoLACD and the Judiciary in Juba, 10 and 12 May 2011. United Nations Mission in Sudan (UNMIS), Southern Sudan Justice Sector Interim Review (UNMIS, 2011), p 17. Interview with senior official from the MoLACD in Juba, 10 May 2011.

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service delivery requirements, making them dependent (at least in the interim) on international support. This creates a tension, and experience from other contexts shows how quickly these relationships can deteriorate. There is an obvious link between lack of resources and deficiencies in the justice sector. For example, there are often links between poor pay and corruption, and between lack of resources and the ability to meet minimum standards of detention. The whole resource dynamic is set to change for South Sudan, as in the years to come the sovereign government will have more responsibility for the distribution of oil revenues. This capital influx has the potential to spur development in all sectors and to change the dynamic with donors. However, as the government will be challenged to meet the scale of the need, international actors will still have a sizeable input into defining and catering for service delivery needs in the justice sector as much as in other parts of the public service. For the formal justice sector, there is an additional challenge relating to legitimacy and accessibility. Citizens should be able to make informed decisions about what mechanisms to access for dispute resolution and where to turn for redress in criminal cases. The formal justice sector is challenged to meet certain legitimacy requirements as a service provider, primarily due to a lack of accessibility because of: ■■ Lack of physical presence at the payam level ■■ Changes in language and tradition (first Arabic and based on laws from Khartoum,

now English and a developing common law system)

■■ Operations and procedures, which can be more lengthy and costly than those of the

traditional justice system.

There are also very practical challenges for the formal justice service providers, including the lack of vehicles and personnel to travel to areas outside of county headquarters, the continued insecurity in some areas which prevents travel, and a lack of offices, furniture, stationery and equipment. Some of these shortfalls should be met through state efforts, as the increase in revenue mentioned above should result in increased government expenditure.

6 Recommendations for programming it is clear that time , commitment and resources are required to undertake the

scale of reform required in South Sudan. But reforms will also require comprehensive strategic planning, improved co-ordination and clear leadership from local actors. Recommendations for justice sector development programming include:

1 An overall strategy for the development of the justice sector needs to be developed.

2 There needs to be increased co-ordination amongst international actors, including

more integrated projects and more streamlined approaches. International actors should streamline systems for procurement to avoid delays that compromise working relationships. Additionally, donors should consider ways in which to streamline reporting requirements.

3 The drafting of legislation needs to focus on administrative law, land, inheritance,

property and commercial law as a basis for enabling economic development and as the basis of an effective system for dispute resolution. Land and administrative legal issues are common conflict triggers and traditional arenas of dispute in South Sudan. Similarly, laws that will enable policing responses to sources of insecurity should also be prioritised, including on weapons possession and the regulation of small arms and light weapons, domestic violence, abduction and child rights.

4 There needs to be a more sustainable approach to language learning, with more

opportunities for language skills development closer to where staff are deployed to reduce impact on service delivery. It is unsustainable to take staff out of their positions for extended periods of time to attend language courses. Language courses for the next generation of professionals and leaders should be incorporated into education curricula being developed for schools and university.

5 Internal management systems are required to enable more effective management

and development of human resources and more appropriate and accountable use of financial resources.

6 There is a need for greater reliance on existing local expertise, and a greater turn

towards African experts, organisations and governments.

7 Non-legal and support staff need to be included in training, especially relating to

record keeping, administration, basic accounting and secretarial services.

8 Both MoLACD and the judiciary require information management systems to record

legal decisions and to have readily available laws, regulations, case law and precedents.

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9 Laws should be made more accessible through widely disseminated briefing or

guidance notes in various languages, short training programmes on individual laws for personnel in the criminal justice sector, and the preparation of more easily accessible versions of the laws available. Discussions on laws and seeking redress through the formal legal system should be held at community level or through community media.

10 There is a strong need to get civil society actors involved in debates about the justice

sector. International actors, government representatives and judges all expressed strong (and sometimes differing) opinions about justice service delivery. However, there has not been much space for ordinary citizens to have input into the type of justice system that would be most suitable for them. This is especially crucial when considering the roles of the traditional and formal justice sectors.

11 There is a need to establish an effective judicial oversight and accountability

mechanism in the form of a judicial ombudsman and/or a judicial service commission.

7 Conclusion for south sudan to evolve into a stable and prosperous state, it is essential that it develops a clear and coherent legal framework that is enforced impartially. All central issues in maintaining the rule of law, including the police, courts, and prisons, need to be strengthened to maintain public order, manage crime and minimise ethnic tensions. The justice sector needs to be founded on appropriate norms that advance access to fair, equitable and predictable dispute resolution, promoting social justice and respect for human rights. At the core of any reform agenda should be a focus on improving the ability of people to access such fair, equitable and predictable services from the justice sector. Achieving this will require concerted efforts from national and international actors operating in pursuit of a common agenda.

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