laying the groundwork for the rule of law in southern sudan

LAYING THE GROUNDWORK FOR THE RULE OF LAW in Southern Sudan

Prof. William E. Kosar

©2007 Deloitte Touch Tohmatsu

Key Elements of Rule of Law

• The orderly operation of a legal system in any modern, democratic country, plays an important role in society

• The courts facilitate the interpretation of those rules by providing a system to resolve disputes between individuals or individuals and the government

• The courts also function in our society, as well as others, as the chief interpreters of the constitution

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Definition of Rule of Law

• Lots of academic disagreement but certain concepts universally accepted:

Constitutionalism Law Governs The Government Law Must Be Fairly & Consistently Applied Law Is Transparent & Accessible Application Of The Law Is Efficient & Timely (Due Process) Property Rights Are Protected Human Rights Are Protected The Law Is Capable Of Change Independent Judiciary

©2007 Deloitte Touch Tohmatsu

Key Elements of Rule of Law

1. Procedural regularity (due process)

2. Efficacy of law

3. Substantive fairness of law

4. Accessibility of legal institutions

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Background

©2007 Deloitte Touch Tohmatsu

Background

•Sudan - largest country in Africa

•Population approx. 39 million

•1 country - 2 systems

•Government of National Unity - Khartoum

•Government of Southern Sudan (“GoSS”)- Juba

•Population of Southern Sudan - approx. 8.26 million

©2007 Deloitte Touch Tohmatsu

Background

•Southern Sudan has been almost continually at war since before independence from the Anglo-Egyptian condominium on January 1, 1956

•The most recent conflict lasting 23 years ended with the signing of the CPA on January 9, 2005

•Ongoing conflict in Darfur

©2007 Deloitte Touch Tohmatsu

Background

•Shari’a imposed in 1983

• ICC indictment against President Omar al-Bashir on March 14, 2009

•Post-CPA—English & Arabic official languages

•Common Law

•Referendum on independence scheduled for January 2011

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Sources of Law in Southern Sudan

Sources of Law

CustomaryLaw

CPA/INC/ICSS

Common Law

Statutes

Regulations

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Constitutions

• Constitutions in Southern Sudan1. Interim National Constitution

2. Interim Constitution of Southern Sudan

3. State Constitutions

• All derived from the CPA

• Where there is a conflict between a provision in a Constitution & the CPA, the CPA governs

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Hierarchy of Norms

•Constitutions (CPA/INC/ICSS/State)•Customary Law •Treaties•Codes/Laws•Regulations•Circulars/Decrees/Orders

–Presidential–Ministerial–UnderSecretary

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Challenges•hot, humid tropical weather •disease •Events frequently cancelled due to perceived or actual security threats.

•often locked down in our camps•Meetings never begin on time, if at all•organizing an event is never easy –frequently cancelled because of competing events

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Back to Law School

•Many legal counsels were trained in Arabic and learned Shari’a

•For many this course was their first introduction to both the Common Law and legal training conducted in English

•novel to the students is the use of case studies and “mini-trials” as a method of learning

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Petroleum

• divided up its oil fields into Blocks.

• Production Sharing Agreements (“PSAs”) with IOCs whereby the state, either directly or through a state-owned oil company, receives % in the proceeds of E & P

• negotiated with each IOC and varies between countries and indeed between oil fields.

• Nile Petroleum Corporation (“Nile Pet”) Limited to commercialize the South’s extensive petroleum assets—10%

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Prognosis

•Return of the Diaspora

•Elections: April 11-13, 2010

•Referendum on Independence—January 2011

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Questions?

Prof. William E. Kosar

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©2007 Deloitte Touch Tohmatsu

©2007 Deloitte Touch Tohmatsu

©2007 Deloitte Touch Tohmatsu

©2007 Deloitte Touch Tohmatsu

©2007 Deloitte Touch Tohmatsu

©2007 Deloitte Touch Tohmatsu

©2007 Deloitte Touch Tohmatsu

©2007 Deloitte Touch Tohmatsu

©2007 Deloitte Touch Tohmatsu

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