Emerging Rule of Law Priorities for a Post-Conflict South Sudan

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In 2005, the government of Sudan and the Sudan People’s Liberation Army (SPLA), the armed forces of South Sudan, adopted the Comprehensive Peace Agreement, ending twenty-one years of civil war. In a popular vote held in January 2011, 98 percent of South Sudanese voted for secession, which took place on July 9, 2011. After decades of conflict, the government faced substantial human, economic, and institutional development challenges. In 2011, per-capita GDP was $3,505, and life expectancy at birth was fifty-four years.[1] Only 37 percent of the population above the age of six had ever attended school, and 83 percent of the population lived in rural areas.[2] The South Sudanese government’s challenges were compounded in 2012, when border conflicts led the government of Sudan to shut down the only oil pipeline out of South Sudan. That action effectively cut off government revenue, and led to a 45 percent drop in GDP from 2012 to 2013.[3] With the outbreak of the current conflict in December 2013, South Sudan has earned the tragic distinction of ranking first in The Fund for Peace’s Failed States Index in both 2014 and 2015.[4]

Four years after independence, South Sudan is still struggling to establish a new political system. A transitional constitution came into force at independence in 2011; created by the Constitutional Drafting Committee, and ratified by the Legislative Assembly. The transitional constitution remains in force, as the South Sudan National Constitutional Review Commission continues drafting a final, permanent constitution. At independence, the country also transitioned from Sharia law to a common law system. South Sudan also adopted English as its official language, replacing the Arabic-dominated Sudanese justice system that had served as both a tool and symbol of Sudanese repression. These sea changes have required a complete overhaul of South Sudan’s judicial processes, and present substantial capacity challenges.[5] The continuing development of political institutions is just one of the many obstacles to establishing the rule of law in South Sudan.

Background to the Current Conflict

South Sudan is a presidential republic, whose top post is currently occupied by Salva Kiir. President Kiir’s political party, the Sudan People’s Liberation Movement (SPLM), controls 251 of 332 seats in the National Assembly.[6] As the political side of the South Sudanese revolutionary movement, SPLM’s dominance makes intra-party divisions key to the national political scene. President Kiir, an ethnic Dinka, dismissed his cabinet in July 2013, including former Vice President Riek Machar, an ethnic Nuer. This event fractured the SPLM into factions established during the twenty-two year civil war. The factions were generally divided along ethnic lines, and headed by Kiir and Machar. After a contentious meeting of the SPLM National Liberation Council on December 14, 2013, Machar and other politicians boycotted the next day’s meeting. According to Human Rights Watch interviews, several Nuer soldiers were disarmed, as high tensions led to fighting on the night of December 15. The next day, there were more than sixty reports of Dinka members of government security forces killing citizens in Juba. The victims were primarily Nuer men.[7] As much as 75 percent of the military defected shortly after the outbreak of violence, from individuals to entire divisions. The civil war has continued for more than a year.[8]

Despite the identity-based division between the government and the Sudan People’s Liberation Movement-in-Opposition (SPLM-IO), this iteration of hostility is a political, not an ethnic conflict; it has grown out of historical divisions and political struggles within the SPLM.

displaced

As of mid-March 2015, two million people have been displaced (see map above),[9] and more than ten thousand people have been killed.[10] After the outbreak of violence, there has been severe displacement, targeting of civilians, and numerous rights violations, and both the government and SPLM-IO have acted without accountability. There are accounts of extrajudicial killings by Dinka security forces in Gudele, a residential neighborhood in Juba, and of unlawful detentions in and around Juba during the days after the crisis began. Expanding beyond the capital, there have been continued attacks by both sides throughout the country. For example, SPLM-IO reportedly targeted civilians in multiple engagements, including killing Dinka while retaking and holding Bor, Jonglei State in January 2014. In April 2014, Dinka men, some in government uniforms, attacked the UN Mission in South Sudan (UNMISS) compound near Bor. killing at least fifty-three people. The government has failed to hold members of its security forces accountable for repeated targeting of civilians and Nuer, and the opposition has also failed to impose any accountability measures. The Intergovernmental Authority on Development (IGAD) has been leading negotiations between the two sides, though ceasefires and tentative power-sharing agreements have disintegrated quickly.[11]

While negotiations are ongoing to resolve the current conflict, it is important for South Sudanese and international experts to look toward the future and consider how to rebuild the country once peace returns. This article outlines potential approaches and priorities for building the rule of law following the resolution of the current conflict in South Sudan. After reaching a peace agreement, the international community must provide sustained and strategic resources for developing a rule-of-law culture in South Sudan. This is a critical goal to help the world’s newest state attain long-term stability and prosperity.

Understanding Rule of Law

The South Sudanese government and rebel SPLM-IO must sign and respect a durable peace agreement in order for recovery and development to begin to bolster the fragile post-conflict state. Despite the other significant human security challenges—providing health care and education, building infrastructure, and more—this work must include development of the rule of law. Rule of law denotes several concepts: the supremacy of and accountability to law, including over the government and all individuals; equality and fairness before the law; predictability of law; and accessibility of law and justice.[12] Rule of law correlates strongly with levels of development and the protection of human rights, making it a critical long-term undertaking to drive policy and programming in post-conflict South Sudan.

However, the broader and ultimate goal is to achieve a socio-political shift and to build a rule-of-law culture within society and government. To forge a rule-of-law culture would be to be to establish a reinforcing network of expectations, norms, behaviors, and institutions that make rule of law self-perpetuating. Such a shift would require a change in both society and government, and in how they relate to one another. It would also need the structures, formal institutions, and informal norms to reinforce these changes. Rachel Kleinfeld, Senior Associate at the Carnegie Endowment for International Peace, explains:

Until power structures and professional and popular culture support the rule of law, politically powerful individuals can ignore laws, and institutions will continue to malfunction. Therefore, laws and institutions are rarely the place to begin rule-of-law reforms unless they are being leveraged tactically to achieve more fundamental reforms to power structure and culture.[13]

Given the history of elite-based conflict and a culture of impunity surrounding recent abuses in South Sudan, supporting this cultural shift is critical to building a stable and accountable state. While international actors may help build the capacity of institutions, provide incentives for actions of integrity, or threaten sanctions, they themselves cannot change culture. Acknowledging international agencies’ limits does not mean that international actors have no substantive role to play in promoting rule of law. They must, however, act strategically.

A Goal-Oriented Approach to Promoting Rule of Law[14]

Given the expansiveness of the rule-of-law concept, it is necessary to identify particular focus areas based on the legacy of a given conflict, existing national capabilities, and the needs and desires of the population. These focuses may include constitutional development, legislative strengthening, security sector reform, criminal code reform, or customary law, among many other priorities. Although all these areas relate to and reinforce one another, identifying priorities in a given context provides strategic direction for national and international resources. Looking to the world of programming can help rule-of-law promoters identify rule-of-law priorities for post-conflict South Sudan in a goal-oriented, strategic way. Drawing on design methodology as described by Cheyanne Church and Mark M. Rogers, this article outlines a method for outside actors to establish priorities for promoting rule of law in South Sudan.

Accounting for the national or local needs, priorities, and realities in setting goals increases the likelihood that an intervention will be relevant and successful. Most critically, policymakers must conduct a needs assessment with the beneficiary population: the citizens of South Sudan. This needs assessments will identify the current state of rule of law in South Sudan while outlining what the goals of rule-of-law work should be in the South Sudanese context.

Despite the time pressure and demand for immediate results often found in countries recovering from a conflict, a needs assessment enables outside actors to identify and prioritize challenges before proposing solutions. The needs assessment should determine citizens’ rule-of-law priorities and reach out to both social “winners” (such as local leaders and civil society groups) as well as historically marginalized communities. The needs assessment increases the likelihood of building on support for future work, legitimizes an intervention, and begins to establish a norm of accountability and responsiveness that is often lacking in countries without rule of law.

International actors must negotiate between competing national and local views, international norms, and individuals’ personal beliefs. Among South Sudanese, identity may influence people’s views of the mechanisms and goals of transitional justice.[15] Support for particular goals or methods of promoting rule of law might vary widely throughout the population, and may differ along existing ethno-political divides, given the current conflict. It is important to seek out and respect local opinions, and to explicitly negotiate among competing priorities to make conscious choices, rather than operate on assumptions.

Given the goals identified through the needs assessment, the next step should be to conduct a stakeholder analysis. The goal of reform is to change power structures in some way, and every change creates winners and losers. Understanding who stands to gain or lose from an advance in rule of law is important for identifying partners and potential spoilers. For example, a crackdown on police corruption in Juba would deprive some officers of a previous source of income and power. The preparation of a thorough stakeholder analysis on reform winners, losers, potential partners, and critical leaders, and the identification of stakeholders’ strengths, weaknesses, and capabilities would allow for a better prediction of program success and more efficient allocation of resources. This analysis should also include institutions as stakeholders with their own interests and priorities. Further analysis of systems of institutions, rather than looking at institutions as distinct entities, would reveal institutional relationships, possible points of entry or change, and potential areas of resistance or conflict (whether passive or active) when designing a policy. Just as individuals have interests, so do institutions.

The subsequent step should be to determine the best approach to implement reforms. Rachel Kleinfeld identifies two primary approaches for international actors to promote rule of law.[16] The top-down approach focuses on providing resources to the government, such as training for parliamentarians or technical assistance to public authorities. By contrast, the bottom-up approach provides resources to civil society to effect reform, such as training a non-governmental organization on effective election monitoring, or providing a women’s group the tools to advocate for change.[17]

A reformer’s choice of approach depends entirely on the challenge being confronted. Top-down approaches are most effective when capacity (human or institutional) is the primary barrier to change, or when the goal is to change professional norms within government institutions. Bottom-up approaches make civil society groups the levers of change, intending to give existing constituencies the tools to affect the power structure and create sustainable reform.[18] In South Sudan, both top-down and bottom-up strategies are necessary. The country has a stunning lack of legal professionals, which severely limits access to justice and demands top-down capacity-building initiatives. However, as the country must also build a culture of accountability and rule of law, bottom-up efforts are necessary to provide a check on violent elite competition, and to create domestic incentives for political change.

Further challenges remain for international reformers: choosing local partners, identifying funding methods, and ensuring sustained engagement. Though discussed linearly, defining the appropriate priorities and strategies to improve rule of law should be an iterative process, and significant changes may take time to achieve. If a desired change appears highly unlikely in the current context, or a key institution appears unlikely to support a given reform, resources may be better used on another priority.

External rule-of-law reformers should also consider the following question: is an outsider the best actor to effect this change? Normatively, reformers should consider both national sovereignty and the limits of external influence, particularly if not aligned to national or local desires. In practice, local reform is more likely to be sustainable and effective. Institutionally, international actors may not have the will, capacity, or legitimacy to contribute to creating rule-of-law priorities.

South Sudan must build the capacity for and culture of rule of law, and international actors must work to support both. This may include public education efforts surrounding the new justice system and the final constitution, training judges and lawyers in the common law system, reforming the security sector, and addressing endemic corruption. All efforts, however, must focus on supporting the rule-of-law goals of accountability, equality, predictability, and accessibility. Despite the ongoing conflict, the United Nations Development Program (UNDP) provides rule-of-law support. The UNDP has the legitimacy and perceived neutrality associated with the UN system[19], but it must respect the host country government’s programming priorities, which limits the UNDP’s ability to affect fundamental power structures in South Sudan.

UNDP priorities in South Sudan align with needs, and focus areas include judicial reform[20] and increasing citizens’ voices in the peace process.[21] Programming success, however, is measured based on outputs—lawyers trained, schools built—rather than the larger goals of reform. Some top-down strategies are appropriate, including the reconstruction of the University of Juba’s College of Law to address the dearth of legal professionals, train paralegals, and hold transitional justice workshops with judges.[22] Some other top-down measures are less strategically employed. In 2013, the Access to Justice and Rule of Law program established Forensic Investigation Units, and thirty-nine police personnel received fingerprint training.[23] With the extraordinary challenges that South Sudan faces, the international community should refocus its efforts on goals that are both significant and achievable. The focus on outputs, rather than on the creation of socio-political change around a rule-of-law culture, misses an opportunity to foster development that is truly sustainable.

Recommendations for Building Rule of Law in Post-Conflict South Sudan

South Sudan has a long path toward building the institutions and culture that uphold rule of law, protect human rights, and support development. Taken together, the priorities outlined below reflect both the severity of rule-of-law violations in South Sudan, and also the process of social healing and reconstruction that must occur to build a stable and prosperous state. Given the strength of executive powers and demonstrated willingness and capacity of state institutions to perpetrate rule-of-law violations, these priorities should avoid directly strengthening the capacity of the security apparatus. Otherwise, developing state capacity may only increase the repressive power of the regime.

For the immediate post-conflict phase, the international community must focus on: 1) expanding the constitutional development and approval process; 2) prioritizing and mainstreaming anti-corruption initiatives; 3) establishing a transitional justice process; and 4) strengthening the judicial system. The international community must not shy away from the political work that is required to encourage a shift away from kleptocracy and conflict, and toward a rule-of-law based political system.

These priorities are illustrative and were chosen based on context, but without a full national needs assessment. After the resolution of the conflict in South Sudan, it will be critical to conduct a more focused needs assessment and national consultation on identified international priorities.

1. Address the Constitutional Development Process and Develop the Final Constitution

As noted earlier, law-focused interventions are necessary but not sufficient to meet rule-of-law goals. Still, constitutions are critical, as rule of law requires a stable set of governing norms, and constitutions establish the most fundamental principles that guide rule of law. The drafting process for South Sudan’s final constitution has been ongoing since independence in 2011. With members of the constitutional committee appointed by the president, the process is politicized, and lacks substantial efforts to engage the public. Furthermore, there is currently no requirement for popular ratification of the final constitution. The international community has the resources, expertise, and potential political leverage to broaden citizen access to the constitutional development process.

The process of constitutional development represents an opportunity to involve and educate citizens, which has both normative and instrumental benefits. With a normative emphasis on citizen participation, the international community will view the process and product as more legitimate with a participatory component, including, at a minimum, a popular vote for ratification. Instrumentally, participation improves citizen ownership of the constitution. By involving more people in the process of constitutional development, the final document is more likely to align with constituent priorities, and citizens are more likely to adhere to norms they helped develop.[24] South Africa’s history offers some potential lessons for South Sudan’s constitutional development and approval process.

1. A Legitimate Process Legitimates the Product

The constitutional development process must be open to all parties, as neither the government nor the opposition in South Sudan will accept a process or constitution that does not incorporate their perspective and needs. South Africa employed a two-phase process to build a bridge between the Apartheid regime and the new democratic state. Phase I included elites agreeing to principles, such as the protection of minority rights and a balance between national and local powers. It also established the process for creating and approving the new constitution, while an interim constitution came into force. Phase II included drafting the final constitution, broad public participation, and final approval by both the Constitutional Court and general public.[25]

2. Incorporate Opportunities for Broad Participation Throughout the Process, with a Focus on Including Historically Marginalized Groups

In South Sudan, given the background of widespread human rights abuses and identity-based targeting by both government and opposition forces, broad participation would assist in constructing a national identity. Working against the divisive legacy of Apartheid, South Africa intentionally made its process inclusive, accessible, and transparent, in order to build domestic legitimacy and trust. Before producing a draft, the constitutional committees reached out to civil society groups and the public through radio, TV, and a phone-in line. Having distributed copies of the initial draft, the committees requested further feedback. The methods for public involvement included channels to send in specific comments and opportunities to participate in meetings; many meetings took place in rural areas, to enable widespread participation. After the committee received 250,000 comments on the draft, it addressed the feedback explicitly and transparently. South Africa’s participatory process was a signal to citizens and the international community of changing norms that focused on rule-of-law ends, such as accountability and equality.[26] South Sudan may draw on the South African approach and experience to involving its population in the constitutional development process.

3. Use the Constitutional Approval Process to Establish Norms of Vertical and Horizontal Accountability

The significant power of the executive branch in South Sudan makes creating horizontal accountability via the judiciary critical to ensuring the state and all citizens are accountable to the law. To adopt the final constitution, the South African process required both approval from the Constitutional Court and also a popular vote. First, the Constitutional Court was required to determine whether the constitution was in line with guiding principles agreed upon by all parties before drafting began. After requiring two rounds of revisions from the constitutional committee, the court approved the final document, which was then put to a popular vote.[27] This system quickly affirmed the importance and influence of the courts in determining legality (horizontal accountability), and also reinforced the public’s right to participate in governance (vertical accountability). Such accountability is important in preventing and prosecuting future rule-of-law abuses, and for establishing new norms within the government and between the state and citizens.

International actors should work to support the constitutional development process in South Sudan by providing resources for a long and intense participatory process. Outside advisors may serve as a source of information, particularly on international human rights standards, but an institutional arrangement is more stable if negotiated and agreed to by the parties it would purport to govern.

2. Prioritize and Mainstream Anti-Corruption Initiatives

In 2014, Transparency International’s Corruption Perceptions Index ranked South Sudan as 171st out of the 175 countries assessed. Sudan and South Sudan expert Alex de Waal describes the country as a “kleptocracy,” where “the functioning of the organs of authority is determined by the mechanisms of supply and demand rather than the laws and regulations.”[28] Such systemic corruption is inherently unequal, violating the rule of law by basing access to justice and subservience to law on wealth rather than citizenship.

Corruption in South Sudan is highly pervasive, infiltrating formal institutions but based on flexible informal networks. This makes national ownership indispensable to successful anti-corruption work. International actors can use bottom-up strategies, assisting the media and civil society in their efforts to structure incentives against corruption within the government, but no actor can change the norm of corruption without a strong constituency for reform.

Previous interventions in other countries offer lessons for how to reduce corruption. The goal of an anti-corruption intervention should be to change perceptions about the acceptability, risks, and rewards of corruption, thereby creating a social norm against corruption and building a virtuous circle.[29] An example of successful international anti-corruption work is the Governance and Economic Management Assistance Program (GEMAP) in Liberia, a program in which international actors stepped in to manage government finances. GEMAP reduced opportunities for corruption, and was a strong demonstration of anti-corruption priorities, though only an extreme lack of capacity justifies violating state sovereignty.[30] In South Sudan, international actors can set a positive example of new anti-corruption norms in their work, visibly seeking out and addressing instances of corruption that would otherwise delegitimize the anti-corruption agenda. The development of an independent judiciary and social pressure for change are sustainable ways to ensure negative consequences for corrupt officials and institutions.

3. Transitional Justice

Human Rights Watch published evidence that both government and opposition forces in South Sudan have committed war crimes and potential crimes against humanity.[31] The frequency and scale of these human rights and rule-of-law violations will demand a response and transitional justice, a process of addressing human rights violations.[32] The purpose of transitional justice in promoting rule of law is to demonstrate the influence of institutions, build trust between individuals, the state, and society after conflict, and establish a norm of accountability through recognition.

Two primary questions should guide the choice of transitional justice processes and potential sanctions for violators of human rights. First, in light of limited domestic judicial and security system capacities, what is the ability of potential spoilers to upset the peace if they are concerned about international or national prosecution?[33] For powerful actors facing allegations of abuses, setting the precedence of prosecution may deter future abuses and demonstrate the importance of law rather than personal influence. However, this must be weighed against the need to secure buy-in from actors and continued adherence to any peace agreement.

Secondly, what are local preferences for the means and ends of transitional justice? The international community should solicit feedback from the population about the forum and goals of post-conflict justice, putting citizen preferences on the agenda. By discussing transitional justice goals and options with citizens,[34] the international community can educate the population and demonstrate the importance of popular participation in decision-making.[35] Soliciting local opinions will also illustrate how views may differ between identity groups. International actors will likely have to negotiate between competing interests: those of winners and losers, of national leaders and local populations, and of international and national expectations. Understanding these differences creates the opportunity to explicitly negotiate among choices, rather than allowing winners or elites to control transitional justice mechanisms.

4. Judicial System Reform

A well-functioning judiciary ensures freedom from arbitrariness, protects equality, provides access to justice, and addresses rule-of-law violations between individuals or between state and society. In the South Sudanese context, where there may have been war crimes or crimes against humanity, it is critical to establish a functional judicial system to enable and enforce rule of law at all levels.

Beyond support for transitional justice, building the capacity, influence, and independence of the judicial system should be a priority in post-conflict South Sudan for three reasons. First, given the identity-based nature of many crimes in South Sudan’s conflict, tensions between identity groups are likely to be high after the conflict ends. Demonstrating that the judicial system is capable of fairly resolving disagreements would make future recourse to violence perceived as less necessary. Secondly, access to justice is critical to building a rule-of-law culture with a constitutionally-established, unified legal system. This system projects the power and responsibilities of the state by demonstrating its ability to administer justice for its citizens.

Finally, with the preponderance of presidential power in the transitional constitution,[36] the judiciary could act as an important counterweight to the executive. The courts are necessary to protect horizontal accountability and to protect citizens from abuses, as “through the application of judicial or constitutional review, judges cannot only mediate conflicts between political actors but also prevent the arbitrary exercise of government power. In fulfilling this role, the courts become powerful actors in maintaining the submission of the state to the law.”[37] Under the broad umbrella of judicial system reform, some initial needs for post-conflict South Sudan are likely to include the following:

1. Building Institutional Capacity

South Sudan lacks basic institutional and personnel capacity; these gaps were exacerbated by the long civil war with Sudan and the 2011 decision to establish a common law system. During the nomination process for judges in 2006, only half of the seats could be filled, initially due to a lack of trained personnel. Though all judicial posts were eventually filled, the process limited the number of legal professionals available to represent citizens in the courts.[38] There is also a significant urban-rural divide in access to legal representation, as 85 percent of lawyers live in Juba, but 80 percent of South Sudanese live in rural areas.[39]

2. Unifying Formal, Sharia, and Customary Law

The transitional constitution recognizes the authority of both state and customary law, but also states that customary law must be in line with constitutional principles.[40] The continued local use of Sharia and customary law provides broader access to justice and is locally legitimate, but there must be a process to ensure equal access to constitutional rights. There should be an established and popularly understood process for citizens to pursue justice through either customary or state law. Formal courts must be able to resolve conflicts between different customary systems, and between customary and formal law in a consistent way. This resolution must occur even during the early days of the transition, in order to establish precedence in the new common law system.

Given these challenges, there are some general approaches that would enable international actors to strengthen the judicial system in post-conflict South Sudan. Classic top-down training to increase the capacity of judicial institutions would create a more efficient and effective system. International actors can provide the funding and expertise; assistance might include training paralegals with concrete skills, and assisting lawyers and judges in their adjustment to the common law system. As outsiders, international actors may be better able to recognize systemic challenges that affect access to the judicial system, including corruption in the judiciary, urban/rural divisions, dominance by the executive, and biases of personnel in terms of language, gender, or ethnicity.[41] External actors may be a source of advice for the resolution of conflicts between customary, Sharia, and formal law. Overall, however, external actors must assist the South Sudanese in developing a legal system appropriate to the context.

Conclusions on Promoting Rule of Law in Post-Conflict South Sudan

This article laid out a strategy for developing interventions to achieve substantive rule of law goals by analyzing the context, national capacities, and needs and desires of the population. Through processes like a needs assessment and stakeholder analysis, international actors can help the South Sudanese achieve significant socio-political changes. The suggestions of potential focus areas in this article should be combined with national and local input for the design of an intervention.

Looking at South Sudan’s post-conflict prospects, one is reminded why rule of law is so important and why post-conflict societies are most in need of rule-of-law assistance. Preexisting development challenges and the crimes committed by both the government and opposition in the most recent conflict make addressing rule of law indispensable to building a stable and prosperous South Sudan. Rule of law is the foundation of human rights protection and economic development. Moreover, without a system for resolving conflict at all levels—whether in remote villages or between government officials—conflict is more likely to erupt again in South Sudan.

It is critical to remember the limits of external reformers to promote rule of law. For any change to be sustainable, it must come from within the society, affecting behaviors, norms, and power structures. In building a culture of rule of law, international actors must acknowledge that the work is inherently long-term and political. Such efforts, and a fundamental restructuring of the relationships between a legal system, government, and citizens requires deep change that will undoubtedly create losers—particularly, elites who see their power constrained by the legal system. Nonetheless, promoting rule of law in post-conflict countries such as South Sudan is critical to building stable, prosperous, and secure states, and the international community must take an active role in bringing about such changes.

About the Author

Stephanie L. Schmidt is a 2015 MA graduate of The Fletcher School of Law and Diplomacy, where her studies focused on democratization and human security. She completed her BA in Political Science at the University of Wisconsin - Madison in Political Science and History.

[1] World Bank, “World Development Indicators: South Sudan,” GDP Per Capita, PPP (constant 2011 international $), accessed June 19, 2014, http://databank.worldbank.org/data/views/reports/tableview.aspx.

[2] National Bureau of Statistics, Key Indicators for South Sudan, 2012, ssnbs.org/storage/2012_Key%20Indicators.pdf.

[3] World Bank, “World Development Indicators: South Sudan.”

[4] The Fund for Peace, “Fragile States Index,” accessed June 19, 2015, http://fsi.fundforpeace.org/.

[5] David Pimentel, “Prospects for the Rule of Law in South Sudan,” Jurist, January 29, 2014, http://jurist.org/forum/2014/01/david-pimentel-south-sudan.php.

[6] “CIA World Factbook: South Sudan,” accessed December 6, 2014, https://www.cia.gov/library/publications/the-world-factbook/geos/od.html.

[7] Skye Wheeler, South Sudan’s New War: Abuses by Government and Opposition Forces (Human Rights Watch, 2014).

[8] Ibid., 20.

[9] Graphic courtesy of UNOCHA South Sudan, South Sudan Crisis Situation Report No. 78 (as of March 12, 2015), March 12, 2015, http://reliefweb.int/report/south-sudan/south-sudan-crisis-situation-report-no78-12-march-2015.

[10] Carl Odera, “Fighting Flares Up in South Sudan After Rains Recede,” Reuters, December 4, 2014, http://www.reuters.com/article/2014/12/04/us-southsudan-fighting-idUSKCN0JI26420141204.

[11] Wheeler, South Sudan’s New War: Abuses by Government and Opposition Forces; AFP, “South Sudan President Rules Out Power-Sharing,” Yahoo News, March 18, 2015, http://news.yahoo.com/south-sudan-president-rules-power-sharing-132347300.html?soc_src=copy.

[12] See, for example, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (Secretary General of the United Nations, August 23, 2004), 4.

[13] Rachel Kleinfeld, Advancing the Rule of Law Abroad: Next Generation Reform (Washington, D.C.: Carnegie Endowment for International Peace, 2012), 213.

[14] This section draws on design concepts and processes as laid out in Cheyanne Church and Mark M. Rogers, Designing for Results: Integrating Monitoring and Evaluation in Conflict Transformation Programs (Search for Common Ground, 2006).

[15] Harvey Weinstein et al., “Stay the Hand of Justice: Whose Priorities Take Priority?” in Localizing Transitional Justice: Interventions and Priorities After Mass Violence, ed. Rosalind Shaw and Lars Waldorf (Stanford University Press, 2010), 43.

[16] In Chapter 5 of Advancing the Rule of Law Abroad, Kleinfeld also describes two additional methods that operate by applying social or political pressure, diplomacy and enmeshment. While these methods are useful tools for state relations, these tools are not readily available to most rule-of-law promoters, though they may and should be used as secondary tools to support reforms, when possible.

[17] Drawn from Kleinfeld, Advancing the Rule of Law Abroad: Next Generation Reform, 111–124.

[18] Ibid., Chapter 5.

[19] UNDP’s mandate stems from the United Nations’ policy of impartiality, which recognizes that, “while democracy can and should be assimilated by all cultures and traditions, it is not for the United Nations to offer a model of democratization or democracy or to promote democracy in a specific case…. [The United Nations’] role in favour of democratization in a particular State is understood and carried out as one of assistance and advice.” (from Boutros Boutros-Ghali, An Agenda for Democratization (United Nations, 1996), 4.

[20] See, for example: United Nations Development Programme, “Efficient Judiciary Is Most Important in the Creation of a State Governed by Rule of Law,” June 17, 2014, http://www.ss.undp.org/content/south_sudan/en/home/presscenter/pressreleases/2014/06/17/-efficient-judiciary-is-most-important-in-the-creation-of-a-state-governed-by-rule-of-law-/ or ; United Nations Development Programme, “Paralegals Bring Justice to Women in South Sudan,” accessed December 6, 2014, http://www.undp.org/content/undp/en/home/ourwork/democraticgovernance/successstories/paralegals-bring-justice-to-women-in-south-sudan.html.

[21] See United Nations Development Programme, “National Platform for Peace and Reconciliation Launched,” April 8, 2014, http://www.ss.undp.org/content/south_sudan/en/home/presscenter/articles/2014/04/08/national-platform-for-peace-and-reconciliation-launched-/.

[22] United Nations Development Programme, “Support to Access to Justice and Rule of Law Programme Description,” accessed December 6, 2014, http://www.ss.undp.org/content/south_sudan/en/home/operations/projects/rule-of-law/access_to_justice.html; United Nations Development Programme, “Paralegals Bring Justice to Women in South Sudan”; United Nations Development Programme, “Efficient Judiciary Is Most Important in the Creation of a State Governed by Rule of Law.”

[23] United Nations Development Programme, “Support to Access to Justice and Rule of Law Programme Description.”

[24] Vivien Hart, Democratic Constitution Making (United States Institute of Peace, July 2003).

[25] For more details on the two-phase approach, see Hassen Ebrahim and Laurel E. Miller, “Creating the Birth Certificate of a New South Africa: Constitution Making after Apartheid,” in Framing the State in Times of Transition, 2010, 121–125, http://www.usip.org/online-chapters-framing-the-state#Part_2.

[26] Ebrahim and Miller, “Creating the Birth Certificate of a New South Africa: Constitution Making after Apartheid.”

[27] Ibid.

[28] Stanislav Andreski, The African Predicament: A Study in the Pathology of Modernisation (New York, NY: Atherton Press, 1968), 108–109; as quoted in Alex de Waal, “When Kleptocracy Becomes Insolvent: Brute Causes of the Civil War in South Sudan,” African Affairs 113, no. 452 (July 2014): 348.

[29] Summarized from, in particular, Chapter 11 in Bertram Spector, Negotiating Peace and Confronting Corruption: Challnges for Postconflict Societies (Washington, DC: United States Institute of Peace Press, 2011).

[30] Ibid., Chapter 8.

[31] Wheeler, South Sudan’s New War: Abuses by Government and Opposition Forces.

[32] Tricia Olsen, Leigh Payne, and Andrew Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (Washington, DC: United States Institute of Peace Press, 2011), Chapter 11.

[33] Ibid., Chapter 9.

[34] Ibid., Chapter 1.

[35] Jane Stromseth, “Accountability for Past Atrocities: Moving Forward by Looking Backward,” in Can Might Make Rights: Building the Rule of Law After Military Interventions (Cambridge, MA: Cambridge University Press, 2006).

[36] For example, the executive is empowered to dismiss state governors and appoint all judges. See Transitional Constitution of South Sudan, 2011, 11/16/2014.

[37] Christopher Larkins, “Judicial Independence and Democratization,” American Journal of Comparative Law 44, no. 4 (1996): 606.

[38] Pimentel, “Prospects for the Rule of Law in South Sudan.”

[39] Hannah McNeish, “South Sudan Fights to Implement Rule of Law,” Africa News Service, November 2, 2014, http://go.galegroup.com/ps/i.do?id=GALE%7CA347695343&v=2.1&u=mlin_m_tufts&it=r&p=ITOF&sw=w&asid=581c351949e3f93f10425144ffad2c0a.

[40] https://www.constituteproject.org/constitution/South_Sudan_2011.pdf, Section 166.

[41] Louis Aucon, “Judicial Reform and the Rule of Law” (Lecture, The Fletcher School of Law and Diplomacy, Medford, MA, October 1, 2014).

 

Edited by Sophia Berhie, Senior Editor for Articles and Miriam Juan-Torres González, Editor for Articles.

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