The Role of Customary Courts in Resolving Land Disputes: A Case Study of Munuki Payam, Juba City, South Sudan

Abstract

Customary courts have historically played a vital role in resolving land disputes in South Sudan, since statutory courts are not easily accessible. However, admissibility of evidence, fairness in procedures, and institutional issues that have been challenging to their work. In Munuki Payam, land disputes are handled by the customary courts, but, there is inconsistency in the decisions made, corruption allegations and lack of mechanisms to enforce the decisions passed. This study sought to establish the kind of evidence that customary courts employ, citizens’ satisfaction with the decisions made by the customary courts, and difficulties experienced by the customary courts in handling land issues. The objectives of the study were to identify the type of evidence accepted in the customary courts, establish the satisfaction level of the citizens on the decisions made by customary courts and establish the factors that hinder the efficiency of the courts. Both quantitative data from the survey and qualitative data from the interviews was used. Three hundred and twenty-one questionnaires were retrieved from the respondents, with a response rate of 99 percent; four interview guides were conducted, and the response rate was 100 percent. Data was analyzed using the Microsoft Excel 2016, IBM SPSS version 24, and MAXQDA for thematic analysis. The study showed that the customary courts relied on oral evidence, lineage and memory and not documents thus resulting in irregularity and legal ambiguity. Regarding the admissibility and logic of the evidence used in the customary courts, only 9% of the respondents strongly agreed while 64% disagreed or strongly disagreed (weighted mean = 2.4). A paltry 8% strongly agreed that trials were fair while 64% disagreed or strongly disagreed with the same (weighted mean = 2.3) regarding citizen satisfaction with customary court rulings. Most of the respondents complained of inadequate implementation, influence of the elites, and procedural bias. Corruption and nepotism were rated high, 47% strongly agreed and 29% agreed that favoritism influenced the court decisions (Weighted mean = 4.0). Thematic findings highlighted that women and displaced persons received unfair determination of the land disputes since male inheritance prevailed over statutory laws. The study indicated that despite the important role played by the customary courts in resolving land disputes, they are hampered by low standards of evidence, corruption and political influence. The findings confirmed the Legal Pluralism Theory, since customary courts worked with statutory courts but were not part of them, thus creating legal duality. Partially, the Participatory Justice Theory was supported, as people’s involvement did not guarantee procedural justice. This theory was applicable to the study since most customary courts lacked legal training, resources and accountability structures thus limiting their capacity to deliver justice. This study recommended that customary courts should be formalized to become part of the formal legal framework, training of officials, and fight against corruption to enhance procedural justice. Future research should examine ways of enhancing the compliance with customary court decisions, gender balance on the land dispute decisions and possibilities of the emergence of an appellate jurisdiction over customary courts.