Lessons from German Rule of Law Support in Sudan and South Sudan

07 May 2019   ·   Noha Ibrahim Abdelgabar, Pall Davidson

Establishing access to justice for all in fragile states requires looking into practical realities and understanding where people actually seek justice. Experiences from Sudan and South Sudan show that Germany should (1) support more informal justice providers; and (2) more women at the community level; and (3) combine rule of law promotion with the fight against inequality and discrimination.

With its ambition to leave no one behind, Goal 16 of the United Nations 2030 Agenda for Sustainable Development recognizes the importance of access to justice for all and of building effective, accountable institutions at all levels. Germany and other international rule of law actors have sought to meet that goal through a Westphalian approach: to enhance the capacity of state institutions– notably the police, courts and corrections– to deliver justice. The idea is that through this support, state authority can be gradually extended over the whole population.

The challenge – as expressed in several other articles on this blog – is that in fragile states, governmental institutions can lack the capacity, the reach, and even the legitimacy and willingness to deliver justice to all. In such circumstances, it is the poor, marginalized groups – notably women, minorities and those living in remote areas – who have least access to formal justice institutions. Meeting SDG 16 requires taking this reality into account and expanding from a state centric approach to a more pluralistic approach encompassing other justice providers, including tribal and other informal justice mechanisms. It requires looking into practical realities and understanding from where people actually seek justice in fragile states.

In this respect, lessons can be learned from international efforts to promote the rule of law in Sudan and South Sudan. Germany’s rule of law assistance in these countries has been technically driven and has overlooked the importance of involving a diverse range of stakeholders, such as civil society and informal justice providers. Such a narrowing comes at the expenses of political dialogue, engagement with diverse members of society, and does not effectively increase access to justice. It reflects longstanding donor modalities rather than realities on the ground. Given these limitations, what should the German Government do to improve its assistance to the rule of law? 

Rule of Law in Sudan and South Sudan after the end of civil war in 2005

When the Comprehensive Peace Agreement of 2005 ended the civil war between Northern and Southern Sudan, support from Germany and other international actors was valuable to improve the rule of law. Efforts included new legal frameworks which adhered to ideals of the rule of law and training of legal professionals. However, these efforts had limited impact because they tended to be uncoordinated, and had limited political engagement.

In today’s Sudan, where government is highly centralized, the efforts of international rule of law actors need to be comprehensive and enjoy political buy-in to produce structural change. This requires engaging with the public administration at all levels and with local constituencies to understand domestic needs and power dynamics. Working with champions within government institutions can yield some successes where there is lack of governmental engagement in general. For instance, UNICEF Sudan has been able to advance its justice for children programme in Sudan by working with officials who understand the importance of and are particularly in favor of protecting children.

Sudan may now be undergoing an important transition with the relatively peaceful removal of President Omar al-Bashir. This transition may open a window of opportunity to strengthen the rule of law as means to enhance accountability and reduce corruption, as called for by the public protests that led to the president’s removal. Germany and other rule of law actors should be ready to support legitimate authorities and other justice providers on this path. 

Following the independence of the southern territories from Sudan, a constitutional review process was initiated in the newly created state South Sudan. However, law reforms were haphazard. This was partly because of limited engagement by political elites and partly because individuals, civil society and communities only had limited engagement with the justice system and thus were constrained in the way they were able to contribute to fostering the rule of law. Progress in strengthening the rule of law was reversed due to the resumption of violent conflict in 2013. South Sudan presents a difficult question of how best to engage in a context of ongoing conflict and virtual absence of a legitimate state: It shows that programs must be flexible in their aims because of the complexity, turbulence and unpredictability of the environment in fragile states.

Enhancing dialogue between formal and informal justice providers

Recurring estimates suggest that informal justice actors address 80 to 90 percent of the legal disputes in fragile states, as these mechanisms tend to be favored for their speed, accessibility and perceived efficiency. Therefore, it is vital to enhance the capacity and human rights compliance of informal justice actors and to connect them with the formal justice system. Through a bottom-up approach and interventions including training, a degree of formalization and targeted support, the capacity of informal justice actors to provide fair and equitable justice could be strengthened. 

In Sudan, the United Nations Development Programme (UNDP) supported the establishment of criminal justice chains as platforms that convene actors from the entire (formal and informal) justice system – including lawyers, police officers, traditional leaders, and civil society actors – to strengthen local ownership and law reform. These platforms created space for continuous dialogue between formal and informal justice providers, allowing joint identification of justice problems and solutions. Germany could learn from this and similar experiences in supporting informal justice providers.

Supporting women as justice providers and analyzing their impact

Moreover, Germany should consider providing strategic support to women at the community level not only as rights holders but also as justice providers. There have been notable successes in expanding women’s role in conflict resolution and mediation. In some contexts, a mix of local capacity development and community dialogue on conflict resolution with a specific focus on women’s empowerment have had positive results. In Libya, for example, development partners – notably Germany – supported the integration of women in local peace structures, comprised of tribal leaders and local administrators, to identify the causes of conflicts. The intervention enhanced women’s role in mediating and resolving disputes between communities. It also empowered women to challenge the interpretation and application of discriminatory customary norms. Another successful method is enhancing legal awareness of women to increase their voice and social standing. In Sudan, UNDP organized a series of legal awareness to engage women in conflict affected areas such as Darfur to enable them to seek justice.

However, much remains to be done. Despite the disproportionate impact of conflict on women, rule of law programs continue to do little in increasing the role of women in justice. There are challenges to overcome: for example, some contexts and cultures may discourage the engagement of women in conflict resolution and justice, and little is known about the role of women in traditional and informal justice institutions or the impact of making women more engaged in these structures. Addressing these challenges requires conducting research into these issues and supporting long-term processes of socio-economic transformation.

Linking livelihood opportunities with rule of law promotion

Finally, Germany should mainstream rule of law support within other livelihood opportunities. Inequalities and discrimination that isolate communities and persons from formal justice also leave them on the margins of informal systems. Successful interventions must therefore address exclusion, discrimination and poverty as well. Linking livelihood opportunities and the strengthening of the rule of law is mutually beneficial: In Libya, the UN and international partners support resilience and stabilization efforts, providing basic services and creating livelihood opportunities (as most of the rehabilitation work is done by local companies). This enhances social cohesion, whilst giving people the opportunity to earn an income. To complete these efforts, rule of law and security activities were initiated to address the immediate security needs of the communities.

English Partner Frauen Rechtsstaatsförderung

Noha Ibrahim Abdelgabar

Noha Ibrahim Abdelgabar has served as a human rights expert for UN agencies, national human rights institutions, NGOs and research institutes. She has published widely in the field of constitutional law, law reform and human rights law.

Pall Davidson

Pall Davidson currently serves as the Rule of Law Desk coordinator for Transition International. He has managed major capacity building programs for justice and security institutions in fragile settings for the UN and frequently gives lectures on the topic.