Gama Hassan Oscas
In recent years, a contentious practice has emerged in Juba, South Sudan, where traditional chiefs from customary courts have been issuing arrest warrants that are subsequently endorsed by statutory courts and executed by the police. This trend has ignited a critical legal debate surrounding the legality of these arrest warrants under customary law. While the application of customary law has deep cultural roots in South Sudan, the issuance of arrest warrants by traditional chiefs has raised serious concerns about the legality, jurisdiction, and procedural fairness of these warrants. This opinion piece aims to scrutinize the legal basis for issuing arrest warrants under customary law, especially in the absence of explicit provisions for such in South Sudan’s largely unwritten customary legal systems.
Legal Vacuum in Customary Law:
It is undeniable that the customary legal systems of South Sudan play a significant role in shaping the social fabric of the nation. However, the assertion that arrest warrants can be issued by traditional chiefs and subsequently executed by the police lacks a solid foundation within the customary law itself. Most of the customary laws in South Sudan are largely unwritten, with the exception of the Dinka and perhaps the Nuer customary laws. This raises the fundamental question of whether the issuance of arrest warrants and their subsequent execution aligns with the true spirit and intent of customary law.
Upon careful examination of the customary laws in South Sudan, one stark observation emerges: the absence of any explicit provisions pertaining to arrest warrants and the manner of arrests. Unlike statutory laws such as the Code of Criminal Procedure Act, 2008, which provides clear guidelines on arrest procedures, the customary laws do not contain provisions that describe how arrests should be carried out under customary law. This absence of guidelines raises serious concerns about the legitimacy of the practice of issuing and executing arrest warrants under the aegis of customary law.
One of the most pressing issues that arise from this practice is the jurisdictional confusion between customary courts, statutory courts, and the police. While traditional chiefs wield influence and authority within their communities, the police and statutory courts operate within a different legal framework that encompasses broader legal principles. The question then arises: can customary courts issue arrest warrants that are endorsed by statutory courts and executed by the police without undermining the fundamental principles of the legal system as a whole?
Another critical factor to consider is the fact that customary laws in South Sudan do not explicitly address imprisonment or detention facilities. This further underscores the absence of a legal foundation for issuing arrest warrants under customary law. Without clear provisions regarding imprisonment, it becomes difficult to justify the practice of arrest and detention in the context of customary legal systems. This raises concerns about the arbitrary nature of arrests made under such conditions.
One must also consider the hierarchical relationship between customary courts, statutory courts, and the police. Statutory courts and the police operate within the framework of established legal statutes and regulations, whereas customary courts are predominantly focused on conciliatory and compensatory functions within their communities. The question then arises: do customary courts possess the authority to issue arrest warrants, thereby impinging on the jurisdiction of statutory courts and the police?
In conclusion, the issuance of arrest warrants by traditional chiefs in Juba, South Sudan, as endorsed by statutory courts and executed by the police, raises serious legal concerns. The absence of explicit provisions for arrest warrants and the manner of arrests within the largely unwritten customary legal systems of South Sudan calls into question the legality and legitimacy of this practice. The jurisdictional confusion between customary courts, statutory courts, and the police further complicates the matter, challenging the harmonious functioning of the legal system as a whole. The undeniable fact remains that the customary laws of South Sudan do not encompass provisions for arrests, detention, or imprisonment, rendering the practice of issuing and executing arrest warrants unfounded and, arguably, illegal within the bounds of customary law. As South Sudan navigates its legal landscape, it is imperative to reevaluate the relationship between customary law, statutory law, and the role of various legal institutions to ensure a just and equitable legal system for all its citizens.
The author of this article is an advocate and can be reached on email at: oscarsgama@gmail.com