I. Women’s and Girls’ Rights in South Sudan, Government Efforts to Protect Them

South Sudan has adopted an impressive array of measures to promote and protect women’s and girl’s rights since it gained regional autonomy in 2005 following 22 years of civil war, and independence in July 2011, after a referendum on self-determination.[1]

These initiatives include establishing institutions and positions to spearhead gender equality and women’s empowerment in national development programs and policies, such as a parliamentary gender committee, a presidential adviser on gender and human rights, and the Ministry of Gender, Child and Social Welfare.[2]

The government has also pledged to make gender equality a cornerstone of the country’s development agenda,[3] identifying gender equality in the three-year post-independence development plan as one of seven crucial cross-cutting issues.[4] President Salva Kiir Mayardit has called for women’s participation in all spheres of life, and the elimination of harmful traditions that limit their progress.

The 2011 Transitional Constitution recognizes that “[A]ll persons are equal before the law and are entitled to the equal protection of the law without discrimination as to race, ethnic origin, colour, sex, language, religious creed, political opinion, birth, locality or social status.”[5] Other provisions call for “all levels of government [to] enact laws to combat harmful customs and traditions which undermine the dignity and status of women;”[6] and for the recognition of women’s “right to equal pay for equal work and other related benefits with men.”[7]  The constitution also establishes a 25 percent quota for female representation in all national and state executive and legislative organs of government.

These initiatives have helped to produce some encouraging change. For example, women have become more visible in public and political life and hold a number of political offices: 33.5 percent of members of the national legislative assembly are women[8] and there is a female paramount chief in Eastern Equatoria State.[9]  Women have begun to engage in politics (many voted in the referendum), and civil society groups are gaining strength. A new, albeit fragile, movement to support women’s equality has been growing steadily.

However, despite these encouraging signs, the rights of girls and women in South Sudan remain significantly curtailed. The following sections detail four of the most significant areas in which these limitations are felt: marriage and divorce; education; reproductive, maternal and child health; and physical safety.

Marriage and Divorce

Marriage shapes South Sudanese women’s experiences, status, and security, and is at the center of many violations of their rights.[10] Women are traditionally subservient to their husbands and other men in their family, where gender roles and positions are clearly defined and strictly enforced.[11] Women have very few rights in marriage which is governed by the customary laws of ethnic groups in the absence of statutory family legislation governing marriage, separation, divorce, and other aspects of family life.[12]

Families reach marriage agreements between themselves and choose marriage partners without the consent or even knowledge of girls. They have an interest in marrying off their girls as early as possible, and to the highest bidder, since dowry, unlike in many other countries, is paid by the groom and his family to the girl’s family and can include cattle, money and other gifts.

Dowry also makes divorce and separation more difficult for women. Many women forfeit all their belongings if they separate or divorce. [13]  Under many South Sudanese customary law systems, divorce is not widely accepted and only possible when the dowry is repaid to the husband’s family—a requirement that can create tensions, especially since the dowry is often shared amongst the bride’s extended family. [14] As a result, families have a financial incentive to ensure that marriages remain intact even if the girl faces abuse, and women who face violence in their marriages, may face pressure to reconcile despite risks to their safety and wellbeing. [15] Alek P., who fled from her husband and his other wife who beat her, said,

My uncles tell me, ‘We can’t find the cows to pay back your husband so you have to return to him.’ My uncles and cousins watch me all the time.... If I go somewhere and they find out, they beat me and threaten to take my mother to prison.[16]

A woman who leaves her husband without obtaining a divorce, and any man with whom she subsequently has a relationship, can be accused of adultery [17] —an offence under South Sudan’s penal code punishable by customary compensation awards, court fines, and/or up to two years’ imprisonment. [18] Women are disproportionately affected by adultery charges, even though they can be brought against both men and women. [19]

Where divorce does occur, children generally stay with the father and his family. [20] Custody decisions are mostly made by customary courts that rule in accordance with their customs, even though they are supposed to be governed by the Child Act and the child’s best interests. [21] Some women opt to stay in abusive marriages rather than lose custody of their children. [22]

Limited Access to Education

As a result of decades of civil war, most adults and children in South Sudan have not attended school. The 2008 Child Act and Transitional Constitution (articles 14 and 29) provide for the right to free and compulsory primary education. South Sudan has an Alternative Education System that offers individuals, including pregnant girls and mothers, who have not had access to formal education, the opportunity to go to school.[23]  In 2011, close to 70,000 female learners participated in this scheme.[24] The Child Act also explicitly states that no girl can be expelled from school due to pregnancy and young mothers must be allowed to continue their education (article 26.3).

In addition, the government is trying to advance the rights of girls to education and to protect them from abuse and violations of their rights through a number of other initiatives:

• A curriculum for a “Life Skills Program”—currently being developed by the Ministry of General Education[25]—which will include components on human rights, gender and gender-based violence, and reproductive health.[26]  The program will be an important opportunity to educate and inform girls about their human rights and child marriage.
• A “Girls’ Education Strategy,” also developed by the Ministry of General Education to increase access to education for girls;
• The General Education Bill, pending before the legislature, which prohibits sex between students and teachers and provides for dismissing and decertifying any educator who impregnates a student. [27] A draft teachers’ code of conduct has not yet been finalized;
• Encouraging women’s access to higher education via the Ministry of Higher Education in order to increase the supply of secondary school teachers, and encouraging, via the Ministry of General Education, more women to become primary school teachers through the development of an affirmative action policy.[28]

Despite the efforts described above, and an increase in the enrollment of girls in school since 2009, government statistics for 2011 show that only 39 percent of primary school students and 30 percent of secondary students are female.[29] Girls face several barriers to accessing education, and may be withdrawn from school to marry, to help with household chores or care for smaller children, which is viewed as training for their future roles as wives and mothers. Despite lack of accurate statistics, it is also believed that teenage pregnancy and sexual harassment by teachers and the community affects girls’ ability to stay in school.[30]

Reproductive, Maternal, and Child Health

South Sudan has some of the worst health indicators in the world:

• Some 33 percent of children are moderately to severely underweight.[31]
• Only 3.5 percent of women use any form of contraception.[32]
• Some 41 percent of women do not receive any antenatal care.[33]
• Only 10 percent of women are attended by skilled health personnel during delivery.[34]
• Just 13.6 percent of births occur in health facilities.[35]
• About 5,000 girls and women are affected by obstetric fistula each year.[36]

Maternal mortality is recognized as a key health concern in South Sudan, which has one of the highest maternal mortality ratios (MMR) in the world (around 2,054 deaths per 100,000 live births).[37]  In 2012, the Ministry of Health completed a health sector development plan that prioritizes maternal and child health, under the slogan, “One maternal death is one too many.”[38]

The ministry, with significant donor support, has expended a great deal of effort to improve the quality and availability of health services generally. However, many services—including for reproductive and maternal health—remain limited, and often of poor quality or not timely when available due to a dearth of qualified health personnel, equipment, and supplies.

According to a Comprehensive Gender Assessment, the ministry “lacks adequate capacity to mainstream gender in the available health plans in order to achieve gender equality in service distribution and utilization.”[39]

Awareness about the importance of reproductive health care is low, resulting in a high risk of death and disability for pregnant women, especially young women and girls.[40] The ministry has developed a Sexual and Reproductive Health Strategic Plan, a Reproductive Health Policy, and a Family Planning Policy.  All of these identify early and forced marriage as a contributing factor to high maternal mortality rates. The Sexual and Reproductive Health Plan undertakes to respond to the reproductive needs of youth and adolescents through the development of a National Youth and Adolescent Reproductive Health Strategy. The strategy will pay special attention to the needs of adolescents in marriage, and will include advocacy for enacting a law to limit the age of marriage for boys and girls.[41]

Violence against Girls and Women

Anecdotal evidence from researchers and organizations working with women suggests that violence against women is pervasive.[42] Domestic violence is seen as normal by both men and women. Common forms include physical and verbal abuse, sexual violence, early and forced marriage, and economic deprivation.[43]

Although exacerbated by years of conflict, these forms of abuse are also based on long-standing patriarchal systems, making them even harder to eliminate. Most violence against women occurs in the home, within the family unit.[44] But it also happens within communities, and at the hands of militia groups and government security forces. Ongoing internal conflict and insecurity make women particularly vulnerable to such abuses.[45]

There is no specific law on violence against women in South Sudan. The penal code criminalizes assault and rape, but does not criminalize marital rape.[46]

Meanwhile, statutory and customary justice systems fail to provide redress for survivors of violence, whose security and access to justice is often compromised by family and customary courts prioritizing family reconciliation. Some girls and women are forced to marry their rapists, an option that families and communities often prefer as it prevents men from going to jail and supposedly maintains a woman’s or girl’s dignity within the community, while the dowry compensates her family.[47]

Survivors of violence who seek help via the formal justice system, for example by bringing criminal charges against perpetrators of violence, mostly fail as police and the courts are ill-equipped to respond effectively.[48] Most survivors also do not have access to services, such as health care, counseling, and safe recovery spaces.[49]  

The Police Service, with support from various UN agencies, has developed Special Protection Units (SPUs). These specialized units, which are situated at police stations, are staffed by officers trained to investigate and prosecute cases involving women and children, and to ensure provision of legal aid, protection, medical care, and psychosocial support. The utility of these units has been undermined by a shortage of trained personnel and by the transfer of trained officers to police stations without SPUs. They currently remain largely ineffective and unavailable outside of major urban centers.[50]

The Ministry of Gender finalized a national Gender Policy in 2012 that prioritizes sexual and gender-based violence. According to the policy, a National Plan of Action will be developed, along with new laws, to eradicate sexual and gender-based violence. The policy also calls for the development and implementation of standard operating procedures for prevention and response to sexual and gender-based violence and the establishment of ‘safe centers’ for the trauma counseling of victims.[51] Concrete progress in these areas has not yet been achieved.

Currently, a small number of UN agencies, international, and national NGOs are trying to respond to violence against women, but resources are scarce.[52] Some local organizations and government officials say they are trying to address child marriage, although their efforts are limited by lack of a comprehensive action plan. According to one local NGO executive director, “We’ve been talking about the issue of early marriage for a long time, but there hasn’t been any structured or systematic lobbying or advocacy strategy.”[53]