South Sudan the Wild West of Africa
By Steve Paterno
February 26, 2012 — South Sudan has just made its debut into statehood. However, the country has to start from the scratch, developing from the ashes of devastating decades of war. The country is in a poor state, where basic physical infrastructures, governing institutions, and systematic rules are virtually absent. In an attempt to lure investors into the country, one minister who was on official foreign trip in the USA, set the tone of what would eventually reverberate throughout to describe South Sudan in its pure state of nature in a real sense that the 17th century English philosopher Thomas Hobbes can see it. The minister asked his attentive foreign audience, “what are you waiting for…,” and declared that South Sudan is a “Wild West,” where opportunities are abound to be exploited. The mentioned of the “Wild West” is in a reference to the American western frontier during gold rush era in the later half of 19th century, a period that presented opportunity for riches and characterized by chaos, lawlessness and thuggish attitudes.
In some similar fashions, the emergence of South Sudan into statehood parallels that of the American Wild West era as exemplified by the honorable minister. For example, of late, South Sudan becomes the the target of large scale land grab by foreign investors and exploiters. Phil Heilberg, a former Wall Street investor, who alleges to have secured a lease of one million acres of land in South Sudan brags about his potential to strike it rich out of the ensuing chaos in the newly emerging nation. For investors with a knack of Heilberg, “a period of chaos isn’t a bad thing” after all. That is where they bet on. “It’s the Wild West…, you’ve got to go to the guns,” in order to impose your dominion, Heilberg confessed in an interview with the Rolling Stone magazine. He went on to describe that “the whole place is like one big mafia. I’m like a mafia head. That’s the way it works.”
The theme of South Sudan being a Wild West keeps manifesting itself and echoing over and over, in many ways and circles. That is why my recent conversations with an American lawyer friend, who specializes in rule of law in developing countries and with interest in South Sudan, logically led to the very theme of South Sudan exhibiting the emblematicism of Wild West nature. Due to the content of our conversations, this lawyer friend, recommended that I read a law review article co-authored by Michael B. Kent Jr. and Lance McMillian, both of Atlanta’s John Marshall Law School. The article is entitle, “The World of Deadwood: Property Rights and the Search for Human Identity.”
This law review article is base on HBO’s highly acclaimed drama Deadwood, a Western genre film. From 2004, through 2006, the channel ran a total of 36 episodes of the series in the span of three seasons. The plot is set in Deadwood, located in current state of South Dakota. In his own words, the series creator David Milch said, “Deadwood is a show about order arises out of the mud,” a drama to explore how order can naturally arise from chaos.
According to the co-authors of this law review article, Deadwood evolution from wilderness into civilization can be divided into three critical transformative periods: (1) the world without law; (2) the rumor of law; and finally (3) the birth of law.
The narrative of Deadwood begins in earnest in 1876, when the the camp just arisen from the mud and without governing laws. Drawn to the camp are people of different backgrounds, but with one goal in mind: striking it rich with the availability of the the gold. Even though at the first glance the people of Deadwood were contented with their lives, since community norms and functioning market took precedent in the absences of governing laws, they soon discovered that their new found autonomy and wealth will not last long as these are all threatened by both internal forces as well as by external ones. These fears led to the need of establishing some semblances of law and order, which is the second critical evolutionary period of Deadwood into civilization. This period is marred by rumors of the law coming to the camp. Different characters played their roles in spreading the rumors that suited well with their interests. Eventually, an agreement was reached for the establishment of a governing body, which started with first ever elections in Deadwood, hence, the emergence of Deadwood from a mere mud camp into stable prosperous town, with socio-economic structures.
It is under this backdrop that Michael B. Kent Jr. and Lance McMillian put their knowledge of law in an article in an attempt to analyze and explore the “role property rights play in the guaranty of freedom.” The authors select some long held jurisprudence and theories found in the narratives of Deadwood to help explain: (1) the origins and proper definition of ‘property’ and the rights it encompasses; (2) property’s relationship to social and political structures; and (3) property’s relationship to personhood and community. Some of the questions the article analyzes and tries to answer are as follows:
“How are claims to property established in the absence of government? How does the future “threat” of law affect the functioning of the organic property system that arises in law’s vacuum? When law inevitably arrives, what standards should be employed to determine the validity of the initial, non-legal claims? What stakeholders should be allowed to decide what these standards are? From where does law’s legitimacy to authoritatively settle these nascent property divisions derive? Is this legitimacy just? How do property and the standards by which it is defined shape identity, both with regard to individuals and the community in which they take part?”
Even though the narratives of Deadwood is fictitious and for the most part dramatized, the plot provides realistic human conditions that mirror the state of affairs in the emerging nation of South Sudan, and these conditions offer for serious case study in the role of rule of law or absence of thereof, in relation to rights for property ownership and how that shapes socio-political structures in particular and the existence of state as a whole.
The reverberation of South Sudan as a Wild West is not in anyway an exaggeration. The country presents all the adrenaline rush and the temptations for riches just as in Deadwood, with many allures in sight, ranging from oil extraction, mineral exploitations, agriculture, providing of services, and many more wealth making potentials, which attract venturers into the country to play their respective roles. Nonetheless, all these opportunities are being pursued under anarchical conditions, which in Deadwood speak, “a world without law.” The way it works, as Heilberg will prefer: a scramble for the free-for-all, where the strong come up on top to assert the claim and impose dominion.
For example, the oil industry, which is the major source for the boom in South Sudan has no governing rules or at least it has outdated contractual agreements among the consortium of the companies and stakeholders involved in the business, making the entire business susceptible for cheating and manipulation. Up until recently, the government of South Sudan, which claims ownership of the oil is oblivious of how many oil wells are operational or the volume of oil being extracted. Such absence of rules and regulations are in part responsible for the crippling of the oil industry in South Sudan. Just like in Deadwood, “the rumor of law” coming is in the air as South Sudan government vows to reform the oil industry.
Mini road blocks manned by individuals are erected for the purpose of taxation, due to absence of unified tax codes. Briberies and kickbacks are the order of business, just as they did it in Deadwood. While in Deadwood transactions are sealed through handshakes or with the spit on the hand or without it, in South Sudan, contractual agreements and counter agreements characterized the confusing nature of business transactions.
With respect to land grab, according to the studies by the Center for Human Rights and Global Justice (CHRGJ) at New York University School of Law, the large scale land deals in South Sudan are secured under ambitious legal framework and volatile political environment, which further complicate the risk for host communities and investors alike. So, in other words, no any land deal is safe or beneficial to either sides of he parties involved.
There is no effective supreme body that act as an arbiter to settle disputes. Although the government is capable of punishing the wrong doers, no effort is being exerted to go after the criminals for fear of unwarranted consequences. This is similar to the case of the Deadwood characters, when a murderer by the name Jack McCall was set free, because there were no laws to be used against him in the first place, and even if an attempt was made to try him, it will draw unwarranted wrath that will wreck the very relative stability that Deadwood seemed to enjoy. In South Sudan, if at all there is anything that resembles justice to pursue, the dispute is left entirely among the feuding parties to settle it the ancient style by battling it out, where “to the victor belong the spoils.” The recent spikes of ethnic violences and lawlessness in the country clearly illustrate this point.
Unlike Deadwood though, which transformed naturally from wilderness into civilization out of necessity dictated by by realism to sustain stability, the case of South Sudan is different, because the destiny of South Sudan is written in the history through sacrificial blood to liberate and achieve peace and prosperity to all the people of South Sudan. The current state of nature is contrary to the intention as to why South Sudan is founded in the first place. The conditions are not conducive to all, even to those who at the moment are rising on the top through wealth and power, because there are no legitimacy to protect one’s entitlements, claims, and position of power under this current status quo. The situation instead will lead to what Heilberg prefers the most, a “free-for-all” war. South Sudan, with the will and sense of future can easily transform in establishing the rule of law and move out of the Wild West status. As Kent Jr. and McMillian warn, “the world without law cannot long last. Either law will arrive, or lawlessness will collapse on itself.” Therefore, the law must arrive in South Sudan before the lawlessness collapse on itself.
Steve Paterno is the author of The Rev. Fr. Saturnino Lohure, A Romain Catholic Priest Turned Rebel. He can be reached at [email protected]