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Human Rights in Southern Sudan

Rule of Law

Implementation of the CPA is occurring in a difficult human rights context in Southern Sudan. As noted above, the CPA does not provide accountability for the gross abuses and war crimes that were committed during the more than two decades of war, in which an estimated two million died and four million were forcibly displaced.³⁹

The SPLM did not advocate any accountability provisions, perhaps in part because other southern rebel factions accused not just government forces but the SPLA of committing abuses against southerners. CPA mediators have said that during the negotiations the Sudanese government and the SPLM wanted to grant themselves and each other amnesty, but were persuaded against it.⁴⁰

Southern Sudan faces a difficult task in establishing the rule of law, after more than two decades of war and with no tradition of respect for fundamental rights as articulated in international human rights and humanitarian law. The SPLM/A leader, Dr. John Garang, consistently downplayed the need for human rights respect by his troops, while claiming that southerners were victims of genocide at government hands. The establishment of proper modern institutions in Southern Sudan will be a long and complicated process.

The interim national and Southern Sudan constitutions both enshrine a number of internationally recognized human rights norms. But there is significant lack of capable Sudanese judges and lawyers, particularly in the southern system, to ensure that these constitutional and international rights are respected. Encouraging trained lawyers from the diaspora to return is essential, but many are hesitant to return to Southern Sudan, an area with few functioning institutions and a scarcity of social services, especially educational services. Access to education for their children is very important to educated southerners currently in the diaspora and in Khartoum.⁴¹

In addition, there is a paucity of jurisprudence from which to work, and many southern communities still rely on traditional forms of justice, administered by tribal chiefs. Elements of customary law, such as the Nilotic system of dowry, often clash with modern legal norms regarding women’s and children’s rights. The southern educated elite is willing to contemplate changes for the most part, but the task of overhauling a dowry system in which all Nilotic families, especially men, have strong economic interests will take more than willingness on the part of the educated elite, as this will require significant political, community educational and other action.

Equally challenging will be ensuring timely and effective justice through the courts, because of the lack of police and the absence of training for the new cadres. The capacity of the Southern Sudanese government for conducting investigations, handling suspected criminals, and providing public security is extremely limited. Human Rights Watch gathered information on several cases that are indicative of how the rule of law functions in Rumbek and nearby areas in Bahr El Ghazal (Rumbek was the capital of the SPLM for several years and was for a time the place where international and other agencies had their southern headquarters).

Problems arise typically in the context of cattle clashes, traffic deaths, and dowry in the Rumbek area; in these respects, there is no “typical” southern practice although Nilotic-speakers usually share similar practices and customs regarding cattle and marriage. When there have been ethnic clashes between two sections or clans of Dinka arising from an argument over cattle in the Rumbek area, the risk of violence escalates. At times, the police may be able to contain the situation when the first incident or two occurs. If not, the revenge clashes may escalate to the point where they cannot be controlled by the police because large numbers of armed civilians (not in the SPLA) may join in and the police lack the capacity and numbers to respond effectively. According to the police commissioner in Rumbek, regarding a then on-going dispute over cattle between the Agar Dinka of Rumbek and the Atwot Dinka of east Rumbek in 2005:

These people are well armed, so no arrests could be made. The police have to join [with] the army [SPLA] to make arrests and one of the army majors was killed when they tried to separate them [Agar and Atwot Dinka]. The police cannot be police unless they have facilities, uniforms, arms, communications and training. Accountability can be difficult without these.⁴²

It took Dr. John Garang and the SPLA to intervene to settle this dispute. While several killings occurred during the clashes, those responsible were apparently not held to account. ⁴³

Another case involved a Ugandan driver who accidentally killed a pedestrian in a car accident in Rumbek: death by mob violence in Rumbek is the too-frequent punishment for drivers in such accidents, and this was no exception. The driver was arrested and brought to police headquarters (for his safety), but at night the family of the dead man went to the police station, overpowered the police on duty, and killed the driver immediately. A police official told Human Rights Watch:

A lot of people came at night to the police headquarters with guns. Only a few police were on night duty. The police told them that [the driver] was in the main prison, but the crowd rushed in, took the driver and shot him. Police were also injured and some looting took place.⁴⁴

The leader of the revenge killing was apparently arrested, tried and convicted, but he was released after having served very little time in jail for his crime. According to the police official, his release was secured because he “said something for the soul of the driver” and paid the driver’s widow thirty-one head of cattle—compensation being a customary form of accountability for murder.

Finally, the extent of coordination between the institutions involved in maintaining law and order (judiciary, police, prisons) is sometimes lacking. Proper procedures are not universally known, nor applied. It is often unclear whether proper procedures for incarcerating an individual have been followed, as illustrated below in the section on women’s rights.

Ethnicity, Discrimination, and Civil Service Appointments in Southern Sudan

The new Southern Sudan government faces a potentially staggering burden that would consume the best-case oil income: a “civil service” inherited from Khartoum’s occupation of a few garrison towns in the south—149,000 persons in all are on its civil service rolls in the south, Khartoum claims. The SPLM has its own civil service to provide for: those 55,000 people who had been working in the “liberated” areas under its control in Southern Sudan.⁴⁵

While these more than 200,000 employees will be “harmonized” (and, in the terms used by southern politicians, “ghosts” and “time-servers” weeded out), this poses problems for the new regional government The issue is which ethnic groups of the more than 200 in Southern Sudan will be perceived as being short-changed.⁴⁶ As the government is traditionally seen throughout Sudan as the premier and most prestigious employer, and the private economy is grossly underdeveloped, cutting the government employment rolls will be a political minefield.

Tribal or ethnic origin continues to be a major issue in the south, as it does elsewhere in Sudan. The Southern Sudan government is already being criticized from many quarters as engaging in ethnic discrimination. A petition from the Nuer members of the Southern Sudan assembly was sent to President Salva Kiir on October 26, 2005. It lists the numbers of Dinka and others in the new southern government appointed by President Salva Kiir, and declares that the Nuer have been underrepresented.⁴⁷ Salva Kiir has said that qualifications matter greatly. He also said that each region was represented in the cabinet, and that the membership of the cabinet was not fixed but could be changed in six months or a year.

During the two-decades’ long civil war, the government-supported militias in the south were mostly Nuer,⁴⁸ and were excluded by the government and the SPLM from the Naivasha peace talks that led to the CPA.⁴⁹ It is in the interest of future southern stability (including the holding of elections and the referendum on time) that the SPLM has been urged to make agreements with these militias. To leave them under Khartoum’s supervision and funding would be to leave a historically powerful destabilization weapon in the hands of Khartoum.

When he became president of Southern Sudan, Salva Kiir appointed as his vice-president the highest-profile Nuer leader, Riek Machar, a separatist and the commander, at least in name, of these Nuer militias before he defected from the government in 2000 and re-joined the SPLM in 2001. After Garang’s death, Salva Kiir pursued talks with government-backed Nuer militia leaders. He entered into an agreement with one of the most important, Brig. Gen. Paulino Matiep of Western Upper Nile (see above), to give Matiep some military and political positions in the southern government. This situation has led, however, to a great deal of dissatisfaction in the areas Matiep influences, from Bentiu to Mankien and Leer, as his appointees tend to be his close relatives and associates and his human rights record leaves many concerns.⁵⁰

Several Equatorian groups also have complained about their lack of participation. One Equatorian writer even castigates another Equatorian group, the Bari, for holding a disproportionate number of jobs in the new administration.⁵¹

The most frequently-blamed group is the Dinka, the most numerous group in Southern Sudan with perhaps three million members; the Dinka may be the most numerous ethnic group in all of Sudan, but by no means close to even 10 percent of the total population. Within the Dinka, the Bor Dinka most often are the objects of antagonism and even hatred. Many of the south’s leaders including John Garang have been Bor Dinka.⁵² The Dinka, with some exceptions, were strong SPLM/A supporters and Dinka volunteers provided the bulk of the SPLA officer corps and large numbers of soldiers. Their representation in Southern Sudan’s government is traceable in part to their long-term participation in the SPLM/A.⁵³

Women’s Rights in Southern Sudan

The CPA contains few provisions that promote and protect women’s rights.⁵⁴ There is in the Southern Sudan constitution, however, an affirmative action clause guaranteeing women 25 percent of public offices.

Many violations of women’s human rights in Southern Sudan result from the application of traditional practices that limit the choices available to women in their personal lives, particularly involving underage marriage and marriage at any age without the bride’s consent. Most women and girls found in jail in Rumbek were there for “crimes” related to the dowry system, which denies basic rights to choose a marriage partner.

Progressive Measures

Notwithstanding the Southern Sudan constitutional provision for 25 percent representation by women in public offices, some qualified women in Southern Sudan have been hesitant to fill these posts, which consequently have been filled by men.⁵⁵ Much more remains to be done to achieve this progressive goal.

Lack of education is one but not the only reason why women are not filling these positions. According to one worker with a nongovernmental organization (NGO), husbands often will not give wives permission to attend training or take a job away from home, as they fear the women will neglect their heavy household tasks.⁵⁶

Illegal Arrests and Jailing of Women

Often, women are jailed as a means to bring pressure in a dowry dispute, where the women and girls are used as bargaining tools by one family against another. In other cases, women linger in jail for “adultery” when their male partners are freed by payment of fines, because women do not have the right to own property and thus lack the means to pay the fines. The cases discussed below involve discrimination against women, failure to enforce laws against assault by husbands, lack of fair trial rights, and underage forced marriage.

The payment of dowry or bride wealth in the form of cattle by the groom’s family to the family of the bride (for distribution to her father and his male relatives) is common among the Dinka and Nuer. Sometimes the cost of dowry can be very high: according to one aid worker in Rumbek, a dowry can reach up to 400 head of cattle, but high prices are mostly in the 80 to 150 head range. Often, rival families bid up the price of the bride wealth if the woman is particularly beautiful or comes from a rich family.⁵⁷

Should a woman later wish to divorce a man (when the man mistreats the woman or neglects her and her children, for example), in some cases the woman’s family resorts to pressuring her by having her put in jail until she changes her mind. This is done so that the woman’s family will not have to repay the dowry (cattle) to the husband’s family. If the marriage has lasted a few years, these cattle may already have been “spent” to buy wives for the woman’s father or brothers, thus making the family even more reluctant to repay the bride price.

Human Rights Watch interviewed a fourteen-year-old girl who was pregnant by her fiancé; she gave birth in jail where her father (a traditional judge with several daughters) caused her to be placed for “illegal pregnancy.” He was angry that she had had relations with her fiancé while the fathers were still negotiating over the bride price; her pregnancy would lower the ultimate price. According to the girl, her family was paid only eleven cows and her father was insisting that a further nine cows be paid. She told us, “From the beginning they did not talk about cows. When I got pregnant, my fiancé paid eleven cows until the baby is born, then the marriage will take place. Then they went back and discussed the issue of twenty cows.”⁵⁸ She did not know whether her fiancé’s family would pay the remaining cows.

This case also contradicts an assurance Human Rights Watch was given that all women in Rumbek prison are there legally. Matthew Jit Abol, a former prison officer who left the government and joined the SPLA in 1986 and who has been director or Rumbek prison since 1992, said, “We don’t receive anyone [into the prison] unless it is from the judiciary. Charges are brought to the police, then the police submit them to the judge, and then the judge sends people to jail.”⁵⁹ But the fourteen-year-old had not been charged with any crime by the police and no court had passed sentence on her.

One married woman interviewed by Human Rights Watch in Rumbek Prison had been sentenced to four months in prison for committing adultery. She and her husband had four children, but two, both girls, fell sick and died at ages three and five. She blamed her husband for not taking care of the children and not trying to find work to buy medicine when they were sick. They argued and the husband beat her regularly: “He hit me eleven times with sticks on my head, and here on my side. I could only wait for people to come and stop him, but after a while, it would start again.”⁶⁰ He took a second, younger wife.

She went with another man whom she hoped to marry after her divorce. Her family is not opposed to her divorce (they were only paid a dowry of five cows), but she cannot pay the 40,000 Sudanese pounds (U.S.$150) fine for committing adultery and therefore remains in prison, despite giving birth, while incarcerated, to a baby girl. The baby is in prison with the mother.

Spousal physical abuse, as experienced by this woman, is not a crime that is punished or condemned in most parts of Sudan, north or south.

Women in many aspects of traditional life are considered inferior, and as a result suffer tremendous denial of basic rights. Some traditional practices such as bridewealth have institutionalized the denial of rights. It is difficult to undo the complicated web of relationships they consolidate in order to bring women into a position of equality—particularly because the economic self-interest of families would be harmed if the practice were stopped.

Efforts to reduce the influence of customary law on the rights of women have had limited effect. Michael Makuei, now Minister of Justice of the government of Southern Sudan and formerly attorney general of the SPLM, in 2005 wrote a letter to tribal leaders in charge of customary courts in Bahr el Ghazal province, requesting them to refrain from the practice of incarcerating women seeking divorce. He suggested that the formation of mediation committees to settle disputes or negotiate divorces between families would eliminate the need to put women in jail. While the initial request was well received, it did not get applied outside of Rumbek county, and it is unclear that it is consistently applied even there.

There were also attempts by SPLA commanders to limit the size of the dowry in some locations in Southern Sudan during the war, with mixed results. In Bor, where the average dowry is lower than in Rumbek, the initiative did not take hold. Bor suffered on account of the SPLA split and ethnic raiding it unleashed in 1991, when hundreds of thousands of heads of cattle were looted and perhaps as many as 2,000 people killed, mostly Bor Dinka killed by Nuer raiders.⁶¹ Several years later, Bor elders reported that they had been able to recoup their losses and replenish their herds—through marrying off their daughters for cattle.

One judicial officer in Rumbek told Human Rights Watch:

We must leave the customary law for the time being; you cannot impose something from outside. You cannot expect this to happen overnight. But alternatives to cattle should be explored and some states may experiment with dowry limits. Even some are using pigs and goats.⁶²

There are a number of local women’s NGOs that have been active in promoting the rights of women. The Bahr El Ghazal Women and Development Program has been running a legal aid clinic to assist women with legal troubles related to adultery and divorce. It opposes incarceration for adultery, and conducts workshops to raise awareness among women of their rights.⁶³ The Equatoria Women’s Association based in Yei provides adult literacy training and promotes the rights of victims of HIV/AIDS.