F. Deng (2010). Customary Law in the Cross Fire of Sudan's War of Identities
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Th e Comprehensive Peace Agreement (CPA), concluded between the government of Sudan and the Southern- based Sudan People’s Liberation Movement and Army (SPLM/A) on January 9, 2005, appears to reinforce the revivalist perspective. Customary law is projected not only as a central element of the Southern identity that the people fought for, but also as an important source of legislation, constitutionalism, and the rule of law for the government of Southern Sudan. Although the Southern Sudanese policymakers recognize the shortcomings of customary law, the general tendency is to idealize the cultural values behind it even as a basis for promoting and realizing the principles of the universal human rights regime. There is, however, a gap between the positive rhetoric and practical mea sures for using customary law. Th is dilemma challenges those responsible for the functioning of the legal system to turn aspirations into practical programs and strategies.
Th e second section of this chapter relates the po liti cal history of the Sudan leading up to the CPA, examining how a well- functioning legal system bequeathed by the British has fallen into disarray and explaining how customary law has become a central part of the clash of identities that fueled the war between the Arab- Muslim North and the African South.
It is not possible to understand customary law apart from the cultural values underpinning it. Th e third section, therefore, outlines the key cultural concepts of traditional society and their implications for confl ict resolution methods, court procedures, and the selection of judges and leaders. Th e situation remains open ended, which means that despite the uncertainties involved, there is potential for legal reconstruction and reform.
What direction law reform will take depends on whether the country remains united or is divided by southern secession. In the former case, the constructive management of three diverse sources of law— received Western
law, Islamic law, and African customary law— will require much creativity. Th is is the subject of the fourth section, which traces the complex historical interplay of these three divisions of law in Sudan.