An expression of the control of the law by the
hakuma was the standardisation of the law and compensation payments. By the 1940s, standardisation of compensation payments became a big part of the government’s intervention through the courts. While chiefs’ courts made a lack of peace a breach of the law within chiefdoms, chiefs’ meetings became a key method for government to assert peace between chiefdoms or ‘tribes’. Government officials ‘constituted meetings as opportunities for the elites of the local state, particularly chiefs, to question, debate, and at times challenge government policies’.
1 Cherry Leonardi, ‘Points of Order? Local Government Meetings as Negotiation Tables in South Sudanese History’, Journal of East African Studies 9:4 (2015), page 665. These meetings absorbed these judicial notions of governance and peace; they would often spend a considerable amount of time amending the details of common laws, as well as applying these laws to specifically problematic cases. Therefore, the government enforced a clear, judicial logic of peace.
The Sudan government’s authority across much larger geographic areas than pre-Condominium authority figures did create new opportunities for peace-making. For instance, by the 1940s in the western Dinka and Nuer, the Sudan government had formalised various cross-ethnic border courts and annual chiefs’ meetings.
2 Douglas Johnson, ‘Judicial Regulation and Administrative Control: Customary Law and the Nuer, 1898–1954’, The Journal of African History 27:1 (1986): 59–78; Interview with man in his twenties, Greater Rumbek, May 2012 (in Dinka); Interview with Town Chief, Panyijar, May 2012 (in Nuer). Similar policies in Upper Nile allowed Nuer to speak of their relationship with the Dinka as only an intermittent ‘
ter’ (feud) as opposed to a ‘
kor’ (war).
3 Douglas Johnson, The Root Causes of Sudan’s Civil Wars: Peace or Truce (James Currey, 2003), page 171.In the 1930s and 1940s, a persistent puzzle for government officials was how to deal with cases between ‘tribes’.
4 ‘Correlation of Customary Compensation Payments as between Different Tribal Divisions’, SSNA UNP 66.G.3. Government attempts to standardise compensation rates within a district often meant that they ended up varying with compensation rates of other districts.
5 Report on Tribal Meeting Held At Fangak Between 27.8.41 and 3.9.41, SSNA UNP 66.G.3. Some District Commissioners were vocal about the realities that relations and compensation rates were often more similar with groups from other districts than within the districts.
6 Letter from D. C. Western Nuer to Governor UNP, 12.3.42, S. S. Metemis, SSNA UNP 66.G.3.12. So standardising rates within the district increased inter-district differences and complexities in building peace. At the same time, government officials tended not to blame government action but a lack of pre-government peaceful conflict resolution mechanisms for inter-ethnic divisions.
7 ‘Correlation of Customary Compensation Payments’.The government perceived problems in different cattle compensation being used for different purposes. For example, letters were exchanged between District Commissioners in Upper Nile over a case in the 1930s of a Nuer killing a Dinka man and then running to his
kuaar muon. At the time, the Nuer gave twenty cattle as blood money including one cow for the
kuaar muon and one for the chief for collecting the compensation. The Dinka exchanged twenty cattle, but an additional cow was given to the
bany e bith for collecting the compensation and an additional bull was slaughtered at the final peace ceremony. The decision was made to compensate according to the identity of the aggrieved.
8 Letter from District Commissioner of Zeraf to Governor of Upper Nile Province, Zeraf District, 9 March 1940, SSNA 66.G.3.By the 1940s, the government was starting to standardise customary law across wider areas. This was to stop conflict and build peace. The governor of Upper Nile (B.A. Lewis) at the time hoped he could also use the harmonisation of the customary laws to make a Nuer-wide confederation and political identity, securing the Nuer a louder voice in Sudanese politics.
9 Johnson, ‘Judicial Regulation and Administrative Control’, page 76. Speaking at a meeting of District Commissioners and chiefs in 1947, Lewis said: ‘I told you two years ago at Fangak that it was necessary for the Nuer to work together and speak with one voice. Since then there has been much talk in Khartoum about starting one Council for the whole Sudan. The Nuer must be represented in any such Council’.
10 Nuer District Commissioners and Chiefs Meeting, July 1947, SAD.767/6/3.Unifying the court system in the Nuerlands and creating a common Nuer customary law was seen as the efficient, affordable ‘machinery’ for forming this confederation.
11 Howell, 1943, SAD.68/4/1-36. District Commissioners did not agree on whether ‘pockets of variant law’ should be allowed to remain.
12 Ibid. It was concluded that standardisation should not be enforced
13 Memorandum of Nuer Laws and Customary Payments Discussed by Chiefs. SAD.767/2/31. but that there should be a standardisation of general principles.
14 Howell, Manual of Nuer Law, page 1. Standardisation of Nuer customary law also provided opportunity for government review and change of the law based on its own ideas of equity
15 Memorandum of Nuer Laws and Customary Payments Discussed by Chiefs, SAD.767/2/31., despite the ongoing rhetoric of preservation of tradition.
As with the Nuer laws of Fangak, Wathalel was presented as a static, bound body of law that hoped to conjure a new imaginary of a common Dinka moral and legal community, and to increase conflict resolution between groups. The laws reflected a common government sentiment at the time that each ethnic group should be subject to its own laws. One District Commissioner explained in 1946:
The most important thing about any new warrant is that it should give legal recognition to the universal Dinka feeling that Dinka law, though liable to minor local variations, is essentially one and that as a corollary a Dinka judge’s opinion is legally valid anywhere in Dinkaland and not only in his own court area.
16 A Court Warrant, February 1946, SAD.767/8/45.Dinka judges had the ability to sit on different courts in different Dinka districts due to the commonality of the law, emphasising the common legal standards and moral community of the Dinka. Yet, Wathalel was never ‘simply a set of rules and sanctions, but a contextually defined process, involving flexibility, negotiation and reinterpretation of a dynamic body of knowledge’.
17 Leonardi et al., Local Justice in South Sudan, page 5.Local memory attributes Wathalel to a specific incident of government pressure for conflict resolution. Elopement between the Dinka of Tonj and Dinka of Agar had prompted violent conflict. Variance in compensation between these groups prevented ease of judicial redress for elopement. Wathalel constructed a common code and levels of compensation between these groups. In the context of chiefs’ meetings in the 1940s, the content of the common Dinka law was agreed in a dialogue between the government and the chiefs. The chiefs’ courts continued to apply varied rates in practice, but their reference to Wathalel became a recognition of government and court authority over conflict.
In the Bilnyang, as other parts of South Sudan, social interactions had never been ethnically bounded. In the early 1940s, the governor of Upper Nile was still pushing for District Commissioners to standardise rates within their districts.
18 Letter from C. G. Davies (Governor Upper Nile) to District Commissioner of Western Nuer, 13 April 1942, SNA 66.G.3.13. Elsewhere in Southern Sudan, the solution posited by the District Commissioners was often to standardise customary payments across an even wider area.
19 Report on Tribal Meeting Held at Fangak between 27.8.41 and 3.9.41, SSNA UNP 66.G.3; ‘Correlation of Customary Compensation Payments as between Different Tribal Divisions’, SSNA UNP 66.G.3. Yet, standardising Nuer-Dinka rates between Bahr el Ghazal and Upper Nile was not posited. Instead, District Commissioners in Bentiu and Gogrial agreed that the aggressor had to pay compensation at the rate current in the complainant’s section. These different compensation rates between communities made these communities into different legal communities. As peace was increasing through legal channels and institutions, the lack of flexibility in compensation that would allow case-by-case legal unity made it harder for peace to be realised.
At the time, blood money among the Dinka was thirty cattle and among the Nuer, forty to fifty cattle.
20 Letter from D. C. Western Nuer to Governor UNP, 12.3.42, S. S. Metemis, SSNA UNP 66.G.3.12. This meant that, if a Dinka was killed, only thirty cattle were owed in compensation, and if a Nuer was killed, fifty cattle were owed. To ‘stop Nuer from rating Dinka life cheaper than their own’ the government also enforced a fine of ten or twenty cattle when a Dinka was killed by a Nuer.
21 Ibid. This also ensured a significant financial benefit for the government. At other times, the government reduced compensation rates. For example, in Nuer areas, they claimed to have reduced it from forty to twenty head of cattle.
22 ‘Correlation of Customary Compensation Payments as between Different Tribal Divisions’, SSNA UNP 66.G.3.