25/07/2025
Criminal vs. Civil Cases in South Sudan: The Misuse of Criminal Sanctions in Civil Disputes over Loans, Bridewealth, and Land
Abstract:
This article critically analyses the legal distinction between criminal and civil cases in the context of South Sudan, where citizens are often arrested and detained for civil matters such as unpaid loans, unresolved bridewealth disputes, and land disagreements. It investigates the factors contributing to this phenomenon, including weak legal infrastructure, the influence of customary law, and lack of legal literacy. The paper also evaluates the human rights implications of such practices and offers recommendations for judicial reform and public legal education.
1. Introduction
South Sudanâs legal system is a hybrid structure that incorporates statutory law, customary law, and remnants of colonial jurisprudence. In theory, the distinction between criminal and civil law is recognised: criminal cases involve offenses against the state and carry punitive sanctions, while civil cases involve private disputes, typically resolved through compensation or restitution. In practice, however, this distinction is frequently blurred. Citizens in South Sudan are routinely arrested, detained, and even imprisoned for civil disputesâespecially those involving personal loans, bridewealth disagreements, and land ownership conflicts.
This misuse of criminal law to resolve civil issues raises serious concerns about due process, legal fairness, and the protection of human rights under South Sudanese law.
2. The Legal Framework in South Sudan
2.1 Civil and Criminal Law Defined
⢠Criminal law in South Sudan is governed by the Penal Code Act, 2008 and related criminal procedure legislation. It deals with offenses such as theft, assault, murder, and public disorder, which are prosecuted by the state and punishable by fines, imprisonment, or both.
⢠Civil law, on the other hand, includes disputes over contracts, family matters, property, torts, and personal obligations. These are adjudicated under the Civil Procedure Act and customary law, especially in rural and traditional courts.
2.2 Constitutional Guarantees
Article 19 of the Transitional Constitution of South Sudan, 2011 (as amended) guarantees the presumption of innocence and protection against arbitrary arrest. Article 14 provides for equal protection under the law. These provisions theoretically shield citizens from being jailed over civil liabilities.
3. Civil Disputes Leading to Arrest in South Sudan
Despite constitutional and statutory protections, individuals in South Sudan are regularly arrested for civil matters. This is facilitated by multiple actors: police, local chiefs, traditional courts, and even state judges who improperly issue arrest warrants in civil contexts.
3.1 Loan Disputes
Borrowing and lending are common in both urban and rural South Sudan, often with or without written contracts. When borrowers default, lenders frequently bypass civil remedies and instead lodge criminal complaints such as:
⢠Obtaining money by false pretences (Section 316, Penal Code Act)
⢠Breach of trust or fraudulent misrepresentation
Police officersâoften unfamiliar with civil law or motivated by informal paymentsârespond by arresting the debtor. In many instances, the debtor is detained not for committing a crime, but to coerce repayment. This constitutes debt imprisonment, which is illegal under international law and unconstitutional in South Sudan.
3.2 Bridewealth Disputes
Bridewealth (known locally as cattle dowry) is deeply embedded in South Sudanese culture. When marriages break down, disputes arise over the return of bridewealth, especially when the woman seeks to remarry or the families disagree on the terms of separation.
Though such disputes are civil in nature and should be resolved by family negotiation or customary arbitration, it is common for one family to report the other to the police. Men are often arrested for "refusing to return cows" or "spoiling another man's marriage," even when the dispute is unresolved or under negotiation.
These arrests are often carried out without criminal charges, and suspects may be detained indefinitely until the families settle the matterâblurring the legal boundary between criminal punishment and civil enforcement.
3.3 Land Disputes
Land ownership in South Sudan is governed by a mix of customary tenure systems and statutory land law (Land Act, 2009). As land is central to identity, agriculture, and inheritance, disputes are commonâespecially in areas where land records are unclear or where returnees and internally displaced persons (IDPs) reclaim ancestral land.
Though land disputes are civil matters, they are frequently criminalized. Individuals accused of "trespassing," "stealing crops," or "constructing without permission" are arrested before any civil ruling is made. Police or soldiers are sometimes used to evict one party on the basis of power, wealth, or clan connections.
In many cases, criminal complaints are used as a strategy to pre-empt or influence civil proceedingsâundermining the principle of impartial adjudication.
4. Why Civil Matters Lead to Arrest in South Sudan
Several systemic, social, and legal factors contribute to the misuse of criminal law in civil contexts:
4.1 Legal Illiteracy and Misunderstanding
Both citizens and law enforcement officers often fail to distinguish between civil liability and criminal conduct. The public may equate failure to fulfill an obligation (e.g., debt or bridewealth) with criminal wrongdoing.
4.2 Weak Civil Justice Infrastructure
Civil courts in South Sudan are under-resourced, especially in rural areas. Traditional courts dominate dispute resolution, and many do not follow proper legal procedure or recognize the difference between civil compensation and criminal punishment.
4.3 Corruption and Informal Payments
Complainants often bribe police officers to arrest civil defendants, turning civil disagreements into tools of coercion. This allows wealthier or more powerful individuals to misuse the criminal process to intimidate poorer parties.
4.4 Customary Norms and Hybrid Justice
South Sudan's plural legal system blends statutory and customary law. Many chiefs and elders have authority to order detentions for civil disagreements under customary norms, even when such actions violate national laws or constitutional protections.
5. Legal and Human Rights Implications
Arresting and jailing individuals for civil matters in South Sudan raises several legal and human rights concerns:
⢠Violation of the Constitution (Article 19: No person shall be deprived of liberty arbitrarily)
⢠Violation of international law (Article 11 of the International Covenant on Civil and Political Rights prohibits imprisonment for mere failure to fulfill a contractual obligation)
⢠Erosion of trust in legal institutions
⢠Perpetuation of injustice, particularly against the poor, women, and marginalized ethnic groups
⢠Prison overcrowding, as jails hold individuals who have committed no crime
6. Recommendations for Reform
To address these challenges, the following measures are necessary:
6.1 Strengthen Civil Dispute Resolution Mechanisms
⢠Expand access to civil courts and provide mobile court systems for rural areas.
⢠Promote Alternative Dispute Resolution (ADR) mechanisms, especially for land and family disputes.
6.2 Train Police, Chiefs, and Magistrates
⢠Conduct legal education programs to clarify the differences between civil and criminal matters.
⢠Penalize misuse of arrest powers in civil cases.
6.3 Public Legal Awareness Campaigns
⢠Educate communities on their legal rights under the constitution and statutory laws.
⢠Encourage communities to resolve civil disputes through lawful means.
6.4 Legislative Oversight and Accountability
⢠Establish oversight mechanisms for police and chiefs who violate procedural rules.
⢠Encourage judicial independence to prevent political and clan interference in civil matters.
7. Conclusion
South Sudanâs fragile legal system continues to suffer from procedural confusion, underdevelopment, and deep entanglement with customary practices. As a result, citizens are often arrested and detained for civil matters such as unpaid loans, bridewealth conflicts, and land disputes. These practices undermine the rule of law and violate basic human rights.
Meaningful reform must include strengthening civil justice institutions, improving legal literacy among both the public and officials, and enforcing constitutional protections. Only through such reforms can South Sudan fully uphold the legal distinction between civil and criminal law and protect its citizens from arbitrary arrest and detention.
References:
⢠The Transitional Constitution of the Republic of South Sudan, 2011 (as amended)
⢠Penal Code Act, 2008
⢠Land Act, 2009
⢠International Covenant on Civil and Political Rights (ICCPR), Article 11
⢠Deng, F.M. (2010). Customary Law in the Crossfire of Sudanâs Civil War. United States Institute of Peace.
⢠Justice Africa (2018). Customary Justice and Access to Law in South Sudan.
⢠UNMISS (2021). Rule of Law and Human Rights in South Sudan: Annual Review
Disclaimer
The views and opinions expressed in this publication are solely those of Dr. Buol Garang Anyieth Juuk and do not necessarily reflect the official policy, position, or views of any affiliated institutions, organisations, or government bodies. All content, analysis, and interpretations are based on the author's academic research, professional experience, and personal perspectives.
While every effort has been made to ensure the accuracy and reliability of the information presented, the author accepts no liability for any errors, omissions, or outcomes resulting from the use of this material. Readers are encouraged to engage critically with the content and consult additional sources where appropriate.
Dr. Buol Garang Anyieth Juuk holds a Bachelor of Justice and Society, a Master of Laws, and a Doctor of Philosophy (PhD), all from Flinders University, South Australia.
