This is the final instalment of a two-part interview on the background to his interest and research in women and South Sudanese citizenship law.
BBKLR: South Sudan often makes the news in the UK, but rarely is that news positive. However, your article paints South Sudan as progressive – at least in the realm of women’s citizenship. Would you say this progressive nature is reflected in other legal areas as well?
NA: I would say this is true of some other legal areas of South Sudanese laws that I am familiar with such as constitutional law and passport and immigration law, while it is not of some others—I cannot speak to all the other legal areas, as there of course are many laws in South Sudan.
The Passport and Immigration Act of 2011, which I had the honour of reading when it was a draft is now as progressive as the nationality law. The Transitional Constitution of 2011 does clearly reflect a variety of progressive aspects of any modern constitution in that it does not adopt a single identity for the new nation—the National Constitutional Review Commission looked into the constitutional experiences of some states such as South Africa and probably India.
Modern state constitutions are based on citizenship, not on ethnic, religious, or cultural identities, although they contain provisions whose objective is to organize and protect these identities. In addition, the Transitional Constitution, respecting multiculturalism, adopts in Article 2(1) all the indigenous languages of South Sudan as national languages.
This recognition and adoption would certainly advance and elevate the status of these languages and contribute to promoting and developing them in the end. The adoption in Article 6(2) of the English language (a neutral language in the context of South Sudan) as the official language and the of language instruction at all levels of education, prevents South Sudan from adopting a language that would culturally put one ethnic group or culture in an advantageous position.
The new nation (like all linguistically and culturally diverse nations) had three options in this regard: the adoption of all vernacular languages as official languages and the languages of instruction, the adoption of the language of the largest ethnic group (i.e. the Dinka language), or the adoption of an ethnically or culturally neutral language as the official language. It opted for the third option.
However, as we very well know, the adoption of progressive or good laws, although a huge step forward, does not alone guarantee stability, harmony, and progressiveness of a nation and its legal and political systems. It is good and important to have progressive laws on the books—but equally important is to ensure that they are respected and implemented. Application of such laws by citizens who are committed to constitutionalism, justice, equality, impartiality, and fighting corruption and nepotism through strong governance institutions is a sine qua none of peace, stability, and advancement. South Sudan is unfortunately tragically missing such institutions. Unless this major challenge and the politicization of ethnicity are properly addressed, South Sudan (and arguably Sudan) will continue to be a source of negative news. I hope this will not continue to be the case.
In addition to this discrepancy between law in theory and law in practice, South Sudan has laws that contain some unprogressive provisions. A clear example in this respect is the existence of capital punishment in the Penal Code of 2008 (Section 64 on treason, for example), so South Sudan has not been progressive on the death penalty.
BBKLR: The BBC and other Western journalists describe legal institutions in South Sudan as ‘weak’. Is this your experience too?
NA: In fact, I have not had direct practical experience with South Sudanese legal institutions. However, the experiences of many of my South Sudanese friends or colleagues who lived and worked in South Sudan demonstrate that legal institutions are weak in South Sudan.
These institutions are nascent and the government of South Sudan has not had the time, the willingness, the expertise, and often financial resources to strengthen them since the nation gained independence in 2011.
The country has had a very rocky start and experienced major ongoing conflicts in its first five years. This has unsurprisingly led to the deterioration of the fledgling legal institutions in the country.
The breakout of the civil war in December 2013 and ensuing brutality of civilians and loss of confidence in the government has prevented donors and the operations of several international organizations, which were initially enthusiastic and committed to assist the government of South Sudan to build and strengthen its institutions.
BBKLR: Do you think that the recent civil war will affect the citizenship laws in South Sudan or is there general consensus around these?
NA: Fortunately, I do not think the recent civil war and ongoing conflict will ultimately affect the citizenship law in South Sudan. The citizenship law was adopted when the two parties (headed by the currently competing President Salva Kiir and former Vice President, Dr. Riek Machar) were in relative agreement.
At the recent peace negotiations, neither of the two warring parties demanded that the citizenship law be amended to give women fewer rights. It is my hope that this will remain the case. South Sudan continues to experience a very dynamic political and security situation.
The composition of the National Constitutional Review Commission and the future of the permanent Constitution are under consideration, which may affect the direction of some other progressive laws.
Despite the current uncertainty regarding some progressive laws, I remain optimistic in terms of the progressive aspects of the citizenship law.
BBKLR: Thanks very much for your time. We've really enjoyed learning more about this new and fascinating area.