Most afternoons in Greater Gogrial, as the heat starts to wane, chiefs’ courts gather under the largest trees. Much of the chiefs’ daily labours and exercise of authority is through these courts. When chiefs were ordered to gather at the 2018 Ajiep Peace Conference, they were quick to highlight the histories of a judicial model of peace in Gogrial.
When we were children, whenever something needed resolution, they said this would be solved under the court of Buk Alok. If not, it would be solved in the court of Giir Thiik. If not, it would be solved in the Court of Angui. If not, the court of Ngot Maperdit. So, for you Manut Ngot, we want this to be ended right here in Ajiep today. Ajiep is place of law. During the colonial time; the Jur-Luel war, in Abiem, was solved right here in Ajiep.
1 Elder from Kuac, Ajiep, 20 April 2018.This chief explicitly referenced the law, the chiefs’ courts, of chiefs like Giir Thiik (discussed in Chapter 3) and histories of law-making peace. As previous chapters have discussed, on both sides of the Bilnyang River system, contestations and collaborations over peace since the early twentieth century between hakuma, chiefs and divine authorities had entrenched a law-based, compensation-based model of peace. Peace had become fundamentally judicial. The version of this judicial model included compensation exchange preceding the final acts of peace-making. This judicial model of peace required a powerful leadership – whether hakuma or prophet – that could enforce judgements and uphold sanctions. This model of peace embodied a direct relationship between the governed and the governing. The power of this judicial model of peace was in its ability to reduce conflicts to judicial affairs.
Wunlit had challenged the judicial model of peace. Other economic shifts were also challenging the this. For example, elites with large herds could give compensation without hurting, and escalating bride-prices meant that blood wealth was often not enough to secure a good wife for the dead.
2 Naomi Pendle, ‘“The Dead Are Just to Drink From”: Recycling Ideas of Revenge among the Western Dinka, South Sudan’. Africa 88:1 (2018): 99–121.Peace meetings were used as a chance to lament the judicial model of peace. The accumulative nature of peace meetings and the details of their resolutions resulted in a political model of peace.
3 For an interesting related discussion, see Baczko’s discussion of political and judicial modes of governance in Afghanistan: Adam Baczko, ‘Legal Rule and Tribal Politics: The US Army and the Taliban in Afghanistan (2001–13)’, in Christian Lund and Michael Eilenberg (eds), Rule and Rupture: State Formation Through the Production of Property and Citizenship (Wiley, 2017): 213–234; Pendle, ‘“The Dead are Just to Drink From”’.Lamenting judicial peace
Repeatedly, discussions in the peace meetings in Gogrial since 2005 referenced the need for justice and a law-governed peace. This was sometimes through instigating future courts to hear future cases, and at other times installing courts to retrospectively hold people accountable for the recent violence.
At Mayen Rual, President Kiir was very explicit that the peace made should form a continuity and not a rupture with historic practices. He referenced how chiefs’ meetings had long histories in Gogrial and Tonj. As discussed in Chapter 3, these chiefs’ meetings, historically, often acted as courts and offered a judicial model of peace. Kiir also explicitly said that peace should not bring amnesty as this was not the model of peace used in Gogrial. ‘In many peace treaties there is general amnesty granted but with our peace there is nothing of the kind’.
4 Speech by Salva Kiir, Mayen Rual Peace Conference 2005, page 4.As above, chiefs highlighted the benefits of judicial peace. One chief’s speech referred to Abyei as having been peaceful since the 1940s because all grievances and claims were taken through the law.
5 Chief, opening speech Ajiep Peace Conference, 21 April 2018. Some politicians requested special courts and the empowerment of chiefs to hold trials ‘as in the days of the SPLA’.
6 MP for Twic in the South Sudan National Assembly, opening speech Ajiep Peace Conference, 21 April 2018. Law of the government
In Mayen Rual in 2005, governing SPLM/A leaders who attended the meeting presented the solution in terms of the reinstating of judicial redress of grievances. Peace was understood as requiring a return to the rule of law and peace was discussed in judicial terms. There was a lack of consensus on which judicial model of peace would be used. For example, at the 2005 Mayen Rual meeting, a
bany e bith at the meeting explicitly argued that the government itself should be made to compensate cattle lost.
7 Speech by spear master, Mayen Rual Peace Conference 2005, page 21. In contrast, the government attempted to introduce a judicial model of peace that would limit
hakuma accountability and help to construct their impunity for war and death.
Some
hakuma used peace as an opportunity to assert a radically new vision of ‘judicial’ and, through this, to build their authority. The 2005 creation of the Government of Southern Sudan prompted a flurry of legislative drafting that described a hierarchy of legal and statutory authorities from the court of appeal and high courts to the chiefs’ courts.
8 Cherry Leonardi, Leben Moro, Martina Santschi and Deborah Isser, Local Justice in South Sudan (Rift Valley Institute, 2010). Statutory courts were incredibly limited in the staffing, skill and resources, and initiatives focused on Juba.
9 Nicki Kindersley, ‘Rule of Whose Law? The Geography of Authority in Juba, South Sudan’, The Journal of Modern African Studies 57:1 (2019): 61–83. Plus, they would create significant ambiguity and legal uncertainty in Southern Sudan as they contested nearly a century of chiefs’ courts’
de facto supremacy in adjudicating law. Leaders in the new Southern Sudan judiciary needed to establish their authority and relevance by having cases and grievances to solve. The intra-Gogrial conflict provided this opportunity. At the 2005 Mayen Rual meeting, Daniel Awet (senior SPLA commander and politician) claimed that hundreds of Southern lawyers would now return to work in South Sudan.
10 Speech by Daniel Awet, Mayen Rual Peace Conference 2005, page 5. Chief Justice Ambrose also presented the cause of the conflict as being the lack of judges in the ‘New Sudan’ – only thirty at the time.
11 Speech by Chief Justice Ambrose, Mayen Rual Peace Conference 2005, page 6.In 2006, the government installed a court in the village of Pan Acier to resolve the conflict. The final, written resolutions of the Mayen Rual Conference formed two committees that were headed by SPLA commanders and were to be directly accountable to the SPLA 3rd Front Command, and ultimately the SPLA hierarchies. These committees were given powers to arrest, punish and seize property. They were given powers to seize the cattle of chiefs who participated in attacks. Soldiers needed to apply such force were to be fed by collecting a hundred cattle from each of the six counties.
For the court hearing, which lasted from 2006 until 2007, the government brought in trained, English-speaking lawyers and applied statutory law. Marking a rupture from common practice, chiefs and other local leaders were only involved as witnesses. The court case also took place in English, preventing most people and leaders in Gogrial from understanding proceedings. The court was a mysterious, foreign, incomprehensible imposition that, in effect, asserted the community’s ignorance of the ways of government, while also asserting the power of the latter to intervene in community affairs. The government’s remaking of itself as foreign, to the extent it could understand and weld foreign laws, set it apart and helped justify its power.
The Pan Acier Court did uphold the judicial norms that compensation was to be paid in order for justice to be done and the law to be enforced. However, it also ruptured and created new ambiguities about who was responsible for the payment of compensation. The chiefs had, previously, consistently demanded blood wealth from the clan of the killer. Even in cases with multiple communities and chiefdoms involved, the blood wealth could be expected from the clan itself and not a wider community defined by administrative boundaries. The continuity of this norm of the chiefs’ courts even in peace meetings helped transform the problems of conflict to a judicial matter.
The Mayen Rual resolutions themselves had stated:
All Chiefs of sections involved in the looting of cattle of other sections are to be detained under open arrest by the respective Committees while their cows are seized and kept in the dairy by the Committees so that their respective subjects who looted the cattle are to bring those cows to the Committee for return to the owners. Failure after 30 days of the seizure of their cows, the Committees can compensate the looted cows with those cows of the Chiefs. Cows of the identified accused are also to be seized and handed over after 30 days in compensation for the cows they looted.
12 Mayen Rual Peace Conference 2005, page 32. Governments had occasionally demanded cattle payments from the whole chiefdom. This was done in order to force the chief to enforce the compensation payment from the family of the killer. As the chief had the power to collect cattle, the threat of taking cattle from the chief was used by governments to force the chiefs to collect the compensation cattle. At Pan Acier, the judges asserted that the Apuk Dinka were collectively responsible for paying the compensation. This reasserted the legal significance of the Apuk Dinka identity – an identity constructed from the territories of the historic Giir Thiik chiefdom which were now the territories of Gogrial East, and not a clan identity. They justified this by saying that it was difficult to ascertain which individuals were responsible for which deaths.
This blanket obligation forced contributions from clans and sections of the Apuk who had not been involved in the fighting. They had not been mobilised to war. Yet now the court was enforcing their inclusion in an Apuk-size social unit of their making, with shared obligations for compensation. As compensation is linked to obligations for revenge, this also contributed to making the Apuk a social unit with a mutual obligation to revenge for each other. Elite hakuma had the potential to benefit from larger social units. This increased the land over which they could claim authority as sons of the soil, as well as the young men from whom they could demand militarised labour.
This broad responsibility for compensation further distanced the payment of compensation from those in the
hakuma who had mobilised violence. They now shared the obligation with the poorest in the community as if they were an equal member of the Apuk and equally responsible for the violence. Since the Condominium era, Southern Sudanese who had joined the
hakuma had been subject to the laws of the chiefs’ courts
. While this could be an opportunity to hold the government to account, it was also an opportunity for them to avoid accountability.
In this case in Pan Acier, the government elite effectively used this norm to claim impunity for mobilising people to war and killing.
13 Tinega Ong’ondi and Simon Simonse, ‘Conflict in the Greater Gogrial: Report of the Fact Finding Mission to Assess the Possibility of a Church led Mediation Process’ (Unpublished, 2008), page 8. Therefore, through the judicial model at Pan Acier, the elite gained an impunity to kill through their membership of the community
. In anger at the Pan Acier ruling, chiefs from Gogrial East pushed back against the government. They did collectively pay the demanded compensation, but they paid it with poor quality cattle. This was a clear statement of their disapproval of the ruling. At the same time, as the cattle were given to compensate those killed, it was interpreted by those from Gogrial West as an insult to the dead. In response, the governor doubled the quantity of cows to be handed over by the chiefs of Gogrial East.
14 Interview with politician, Luonyaker, August 2012. The SPLA were also charged with delivering the cattle. Yet, some cattle went missing during the SPLA’s delivery. Chiefs from Gogrial East walked out of the court and violent conflict resumed before the case had even ended.
15 Leaders of Alek North Payam, group discussion, Lietnhom, May 2012. Furthermore, the court case took more than half a year. The length of the Pan Acier case prevented people from Gogrial West from gaining access to the
toc in the dry months of 2007–08, further increasing hostilities. Within a few weeks, the conflict had attained an unprecedented level of violence. By early April 2008, within a month of the court’s decision, more than 1,500 houses had been burnt, more than 15,500 people had been internally displaced and local government headquarters and NGO compounds had been destroyed.
16 Interview with politician, Luonyaker, August 2012.A negotiated peace
Ultimately, it was the proliferation of peace agreements that shifted peace to being political and not judicial, and made space for the
hakuma to arbitrarily demand peace (or war). Each peace agreement was framed as a rupture; they claimed to end conflict and bring peace. Peace was new and, therefore, could be presented as needing new moral and social frameworks and new political hierarchies. However, what this meant in reality was that every peace was agreed with the anticipation that its terms would be short-lived because another peace agreement would soon be made which could overturn what was previously agreed. While peace agreements were frequent, they were not regular. They happened at the behest, or at least with the consent, of the
hakuma. The
hakuma chose when to make peace and when to revise rules and hierarchies through peace. The arbitrary nature of peace concentrated more power in the hands of the
hakuma. Arbitrary peace-making, like arbitrary power generally,
17 Rebecca Tapscott, Arbitrary States (Oxford University Press, 2021). was a way to strengthen the government.
There shouldn’t be many peace talks. It should be one … what happened again after the peace talk in Abuokdie. That we finally made peace there and sacrifices were made for peace. Why have we left this behind until people were again shot dead in their sleep?
18 Chief, speech at Ajiep Peace Conference, 20 April 2018.Peace agreements’ constant claims of rupture resulted in a logic of authority based on negotiation and not the consistency of the rule of law. So, while the individual peace meetings created a continuity and certainty that past agreements would not be enforced and, therefore, were partly fictious, overall they did create a rupture with previous logics of governance that had privileged the rule of law and a judicial model of peace. What the hakuma did was no longer bound by norms of peace, and could arbitrarily demand peace.