- Martin Lado, who was a captain in the former rebel movement in southern Sudan, looks at the pockmarked ruins of a prison he now runs and remarks, "It's as if we are still in the bush living under the mango trees."
Only two buildings at Yei River prison survived two decades of civil war between the southern Sudan People's Liberation Movement/Army and the government in Khartoum, which ended with the signing of a peace agreement in January 2005. At night, male inmates are crammed inside one of the buildings to sleep; women prisoners are locked into the other.
The war may have won the southerners some autonomy from the northern-based government, but it also destroyed what little infrastructure existed, leaving one of Africa's poorest countries devoid of properly functioning civil institutions. Nowhere is this more evident than in Sudan’s criminal-justice system.
Traditionally, justice in the war-scarred south was based upon martial or tribal law and meted out by a commander or a local chief. Now that the war has ended, the task of building a formal justice system from scratch will be an arduous one. A new generation of legal professionals, a new canon of law incorporating new concepts of human rights must be established against a background of rising crime, scant funding and wholesale government reorganisation.
Speak to the prisoners at Yei, the commercial hub of the south, and they will tell you that the justice system that put them behind bars is every bit as piecemeal and dilapidated as the tumbledown buildings in which they live. People are incarcerated on the whim of tribal chiefs; suspects are kept on extended remand; women are jailed for adultery and children are imprisoned alongside adults.
No juvenile justice
Lodeli Morris, a lively boy whom the authorities believe to be 12, races around the prison grounds happily teasing the women and translating the stories of other prisoners. "If Lodeli were in school, he would be a very clever boy," he says mischievously, echoing the words of everyone, including the prison governor. But Lodeli, a former cobbler, is not in school. Three months ago he was remanded until February 2007 for murder.
Lodeli killed an older boy - who had bullied him, beaten him and knocked him to the ground - by stabbing him with a sharp needle used to sew leather. "I was not clear in my head. It was just an accident," he said. Every evening, he files in with the adult male prisoners to sleep on the floor of one of the surviving outbuildings.
Akur Ajuoi, a lawyer working with the Sudanese government to introduce new child-protection measures, said authorities frequently disregard the 10-year minimum age of criminal responsibility. Children are kept in custody for long periods and often jailed in lieu of ‘dia’, or financial compensation. "Children are detained for 'social offences' that are not stipulated under penal law, like falling pregnant out of wedlock," she said. "If they refuse to marry a suitor, they can be sent to prison to 'rethink' their decision."
However, there is a desire across government to take action. The Children's Act, presently working its way through parliament, will establish a new juvenile-justice system, spell out authorities' responsibilities for child welfare and create an independent commission to monitor violations. ‘Buma’, or child-justice committees headed by local chiefs, will be set up to resolve disputes that do not require referral to the formal courts.
Customary law
Customary law - the law of the community as opposed to that of the court - has always played an important role in south Sudanese society. The challenge, according to Harriet Kuyang of the South Sudan Law Society, is to make clear the jurisdictions of customary and statutory law and ensure that customary law is implemented without prejudice. "The implementation of customary law is a very big concern," she said.
Many ethnic groups have traditionally resolved serious criminal cases, such as murder, through the payment of compensation rather than imprisonment. Kuyang maintained that justice would be better served if the state took over the prosecution from the victim or victim's family in such cases. "The first thing the family is thinking is, are we going to get money for the person's death?" she said. "But we should have an interest in justice. We need the state, rather than the injured party, to prosecute."
Traditional law, too, often views women as property and fails to safeguard their interests, Kuyang said. "Customarily, there is a lot of discrimination against women. If the man feels that the woman has committed adultery, then she will stay in prison until the man wants her released - but it is not so strict on the man in a polygamous society."
With their hands on the purse strings and the cattle tethers, men can also afford to pay fines, which women - who have no access to property - cannot. Nancy Noka, 19, is serving a 14-day sentence for what she called "taking a second husband", in a country more used to men taking many wives. "My first husband is an old man, and he was cruel to me, beating me whenever he wanted. I couldn't love him. Then I met a younger man. He showed me love, and so we married," she said, looking into the deep of the prison well. "Why must I be in here for that? It's too painful."
Women returning to Sudan from exile in more liberal East African countries were being jailed for wearing jeans until peacekeepers intervened. "When we first arrived here, it was prohibited for women to wear suggestive clothing," said Lloyd Jones, a Jamaican police officer serving in the UN mission in Yei. "We asked the commissioner what exactly was meant by 'suggestive', and he agreed it was too difficult to define. So he lifted the ban."
Justice of the powerful
Others end up in jail for clashing with the powerful. "My chief said I went to the devil spirit to kill people. It’s completely absurd," said 18-year-old Emmanuel Batali, who had argued with a local chief over business. "I have been in prison for three months, but I have not seen a magistrate. The law is not good."
In the absence of a functioning state, it is the big man who dictates the rules. With civilian institutions in their infancy, village and military chiefs continue to hold sway. Prison governor Lado said he has little choice but to conform. "A chief can send a person directly to prison without knowing what wrong the man has done, but we have to receive them," he said. "We have no choice."
Thirty-year-old Joyce Ataya found herself thrown into prison in September 2005 - not for anything she had done, but for what her husband was suspected of doing: murdering a member of south Sudan's largest and well-connected Dinka community. At first, she appreciated the protection of the prison, but before long, she realised people outside were pulling strings to keep her there. "Here, there is no law," she said bitterly. "If you know someone big in government or the army, then you can do what you like."
According to the Law Society's Kuyang, brothers or wives being imprisoned in place of relatives is "very common" in the south. "The judge knows it is wrong," she said, "but when he is put under pressure by a soldier, he conforms."
Ataya was finally released after district commissioner Col David Lokonga intervened on International Women's Day. Lokonga said he is determined to see arbitrary imprisonment end. "It is very important that if a person is in prison it is by the will of the judge, because he is following the laws," he said.
The Sudanese government plans to train 600 new magistrates and judges in neighbouring Uganda. "There is training for war and training for peace," Lokonga added. "Many of the judges [in Sudan] have been part of the war effort, and now they need to be retrained - not only in their old skills, but also in new developments. Whilst we have been at war, the world has changed: there are human rights, and so we have new challenges, too."
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