Political and legal implications of exclusion of Abyei in the
Constitution of Republic of South Sudan 2011
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By Dhieu Mathok Diing Wol
In examining documents inked by the NCP since 2005, a lay person in
the discipline of law can easily reach a conclusion that Abyei would
have been part of Bahr el Ghazal if its referendum was carried out
simultaneously with the Southern Sudan referendum on the 9th January
2011. In looking and analyzing the Comprehensive Peace Agreement
(CPA), the Interim National Constitution of Sudan (INCS), Interim
Constitution of Southern Sudan (ICSS) and Permanent Court of
Arbitration, Abyei Tribunal Award (PCA/ATA) a person could immediately
begin to a belief Mr. Abel Alier on what he wrote in his book “Too
Many Agreements Dishonoured”, if he/she were doubtful about
credibility of the story.
Maybe what are important to be known by the readers are different
positions of the parties during negotiations before the final document
was produced and signed in Kenya. It is the hypocrisy of that stage
hindering the implementation process. In Naivasha the NCP totally
refused to discuss issues that are beyond 1/1/1956 South- North Sudan
borders. They said these issues were not provided for by Mashokos
basic principles document. Meanwhile, the SPLM was advocating
retransfer of Abyei to Bahr el Ghazal through an administrative order
from the Presidency. Their logic was that, since the area was
transferred to Kordofan by the colonel regime administratively the
government in Khartoum must revise that decision by issuing another
administrative order. The moderators who were facilitating the
process, headed by USA came up with the middle position which
compromised both positions of the SPLM and NCP, arguing them to accept
the proposal as a win-win situation.
It is worth mentioning that, the silence of Machakos Agreement, the
guiding document on the peace process, about the status of the three
regions of Abyei, Nuba Mountains and Blue Nile, cemented the position
of the NCP delegation and gave it a kind of legitimacy to maneuver
around issues of the three areas.
After the SPLM delegation accepted the position paper of the mediators
presented by US, the NCP requested further consultation with its
quarters in Khartoum before giving in their final opinion. The
delegation traveled to Khartoum and conducted a lengthy discussion in
the Party’s Leadership Office from 8:00 pm to 3:00 am on the other
day. The resolution was passed as proposed by a member from South
Sudan in the meeting that the issue of Abyei should be referred to
Southerners who are holding different positions in the regime various
institutions to come out with the resolution which will be used as
party’s position in Niavasha. Everybody in the meeting excited for
this amicable suggestion from Southerners, because the NCP was looking
for an excuse to hang on the blame, and if this scapegoat could be a
Southerner, it would serve the purpose to the maximum. Unfortunately,
the matter failed as many Southerners refused to involve themselves in
this crucial matter. There was no other alternative for the NCP rather
than accepting American document despite their reservations with the
aim of going around it during the implementation processes.
The placing of Abyei under the presidency with dual citizenship from
both the Bahr el Ghazal and Kordofan regions in the interim period was
a way of harmonizing different positions until its referendum is
carried out.
Notwithstanding, the Abyei Protocol is the most document, among the
rest highly affected by many violations and negligence in terms of
implementation percentages. The formation of administration that
governs the area took three years to be constituted. The area has been
denied its 2% ratio of its oil revenues. The NCP militia and Sudan
Armed Forces (SAF) elements frequently attacked the Abyei and murdered
innocent civil population, roads leading to the area were continuously
blocked to obstruct the repatriation process to Abyei and the list of
violations is long.
The thunderstorm made by Bashir’s recent speech in South Kordofan when
he said, they would not recognize independent of South Sudan if its
Constitution includes Abyei, should be considered as a statement
without political and legal ground that had driven by elections’ fever
and believed to be motivated by eventualities on ground that his
party’s candidate for the gubernatorial position in Kadogeli Ahmed
Huron was facing a serious isolation and expected to lose the seat in
favor of the SPLM candidate Gen. A/Aziz el Helo, hence needs strong
support by sending messages, including to threaten of going back to
war.
As mentioned above, the CPA provisions especially that pertaining
Abyei Protocol, articulated clearly that the referendum in Abyei
should be carried out concurrently with Southern Sudan referendum to
know options of the Nine Chiefdoms of Ngok Dinka and other Sudanese
residence of Abyei, whether they remain in Kordofan or go back to Bahr
el Ghazal. During the negotiations in Naivasha, the critical question
which came up on the table was what the territorial entity that was
transferred from Bahr el Ghazal to Kordofan by the Colonel
administration in 1905? In an attempt to answer this question, the
Abyei Boundary Commission (ABC) was formed and given the task of
identifying Abyei territory transferred to Kordofan in 1905.
The Term of Reference (TOR) was made for its smooth functioning and
its membership drawn out of 15 members representing SPLM, NCP and
experts from the mediating countries on equal bases, with each group
having five members. The most important article in the TOR was that
the findings and reports of ABC are compulsory and final to the
parties. When the Commission submitted its reports to the leadership
of the two parties, the NCP refused the reports on ground that the ABC
violated its mandate in identifying the territory of Abyei area by
stating in its reports that the Commission had not found exactly the
area which was transferred from Bahr el Ghazal to Kordofan in 1905.
The argument of the NCP was that the ABC should have seized continuing
in rendering irrelevant reports, which violate its mandate since it
failed to identify the contested area. According to their opinion, it
was a total breach of its TOR.
The issue of eligibility for the voting which currently becomes a
central problem was not believed to a serious matter during the
negotiations, so the question that who will and will not vote in the
referendum was not paid much attention and even escaped schedules and
matrixes of the implementation modalities. The overwhelming opinion
within negotiating groups was that the problem of Abyei was more
associated with boundaries rather than voting eligibility, hence the
matter was geared towards solving that particular problem and
subsequently taken to The Hague for the arbitration as a consequence
of continuous failure to reach a solution after long engagement.
In The Hague, the Court identified clearly, the boundary of the Dinka
Ngok Nine Chiefdoms regarding northern borders with Kordofan as
requested by the parties when presenting their position papers to the
Court. Each party assured the tribunal and audience of their
compliance with the Court ruling, whatever would be the result. The
NCP accepted the ruling of PCA in the first place with ululations and
acclamations, by shouting God is great, God is great, indicating that
they won the case because ten kilometers were recovered from ABC
reports and annexed to Kordofan by the Court decision. Celebrations
were carried on in Khartoum, Fulla, Mujeld and Miaram. They admitted
publicly that God of Mohammed the messenger of Allah didn’t lead them
down by proving them right against the position of the ABC. To
disappointment of every person concerned, the NCP leadership exactly
did it in a manner they had done it during the commissioning of ABC
when they expressed their readiness to respect the outcomes of ABC
reports and later declined from its declared position.
Within few months and after careful studies, the NCP found that the
ruling of the Court was not up to their expectations and the area
which was annexed to Kordofan by the decision of the Court has only
one significant oilfield (well). The remaining part has a bulk
quantity of petroleum, which made the NCP changed their minds and
started creating other strategies to escape the implementation of
Abyei Protocol, including involvement of Messieria nomads in the new
strategies and scenarios.
It was clear that the problem has nothing to do with grazing areas for
Messieria tribes, because the PCA gave the nomads’ grazing rights in
Abyei and beyond. In addition, all regions bordering the North like
Northern Bahr el Ghazal, Unity, Upper Nile and Warrap welcomed the
decision of the leadership in the South allowing pastorals from Arab
nomads in South Kordofan, South Darfur, White Nile and Blue Nile to
using their grazing lands. This negates the NCP allegations that the
problem is connected with communal grazing rights.
People are totally confused on direction chosen by the NCP, although
the matter is different completely from what they are engaging the
South and has nothing to do with Messieria nomads but believed to be
connected with the oil in the area. It was reported that in one of the
meetings of the technical committee a senior NCP boss came up with an
idea of giving them a certain percentage in the oil produced in the
South after the independence such that they allow Abyei to go to the
South. The SPLM asked them to submit a written position on this matter
and put in the agenda to be discussed in the next meeting. However, to
surprise of the Committee the NCP representatives declined their
position and again went back for more camouflaging, which made people
to question their seriousness about peace in the area. This indicates
clearly that Abyei is a victim of known motive, which turned to be
unknown by the NCP.
In analyzing legal framework of Abyei, since the parties to the Peace
Agreement agreed that Abyei is governed through the presidency with
dual citizenship in the North and the South, prior to the referendum
in the area, it becomes an obligation that necessitated constitutional
provisions, both in the national and Southern Sudan levels such that
this status is regulated by the two constitutions, so Abyei appeared
in article 183 of INCS and in article 176 of ICSS and the two versions
were identical and a photocopy of one another. The independence in
South Sudan necessitates reviewing of constitutions in the two
entities to comply with emerging situation, Khartoum proceeded
Southern Sudan in amending its constitution without bringing the issue
into the forum of the joint political committee to recommend away on
how sections, articles and provisions concerning Abyei, are to be
treated since the Presidency will not be there on the 9th July 2011.
Furthermore, the US Presidential Envoy in Sudan and African Wise Men
Committee chairperson Mr. Thombo Mbeki the former President of South
Africa, failed to bring the matter into attention of the Presidency in
their regular meetings, since they couldn’t resolve the issue before
July the 9th 2011. NCP decides to keep Abyei in its constitution on
the same condition that the area will be administered under the
presidency. Nobody has a concrete answer on type and formation of the
presidency in Khartoum after the 9th July 2011 except NCP. Will the
President Basher appoint a son of Abyei among SPLM members to be the
First Vice President (FVP) before the referendum takes place in the
area?
Because H.E Salva Kiir Mayerdit whom Abyei citizens have a trust upon
him will not be there, and definitely going to be a President of his
own in a newly emerging state of the Republic of South Sudan. So what
type of the presidency that Abyei continues to be governed under it?
This is an important question that needs convenient answer from the
NCP leadership before Abyei continued to be part of the North after
secession of South Sudan.
The inclusion of Abyei in the constitution of the North without
consulting SPLM leadership and the joint political committee of peace
partners made South Sudan to act on the same footing by including
Abyei in their constitution. It was unfortunately that the very words
used by the President Basher in the public rally at Mujeld that he
will not recognize the independence of South Sudan if its constitution
includes Abyei, was stated in a form it came up in the meetings of the
Constitutional Review Committee (CRC) by one of the members. How this
statement reached out NCP and Basher is an issue of integrity and
credibility from members of the Committee, who were supposed to keep
their deliberation secret and in the context of the Committee. If the
leaking-out came from the NCP member- which I personally believed not
to be the case- then it was a great treason from that member because
what has been prepared to be a constitution of South Sudan, which has
no connection with the North. When the North prepared their
constitution in which Abyei was included, the South was not informed.
Therefore, why should we involve the North on our affairs? The NCP
declared early in February that they have effected disconnection with
Southern membership. In this case, our brothers shouldn’t be continued
reporting affairs of South Sudan to Khartoum? I believe, the NCP
members from the South are not required to make briefings to Basher
and his party about the process of the constitution in South Sudan.
In ICSS, the article 176 tackled the issue of Abyei in the same manner
the INCS prescribed it. The CRC decided to bring this article forward
with modifications as part of article 1 in the constitution, the
definition of territory of the Republic of South Sudan, which should
be defended by any Southerner throughout external aggression and maybe
is what made Basher to be defiant in Kordofan. The latest news was
that those parties who reserved inclusion of Abyei in the constitution
have come back to their sense and accepted the CRC position. The
document was passed by All Political Parties Forums (APPF) and the
Council of Ministers (CoM) with few changes, and now it is before the
SSLA. The amendments proposed by the CoM was that the sub-article on
composition of National Assembly (NA) was added as subsection 3 to
give the President powers to appoint- beside the membership of current
SSLA and those coming from National Assembly in Khartoum- additional
66 members to NA to represent political parties, Martyrs’ families,
War Wounded, War veterans, Fait-based Groups and Civil Society
Organizations.
It was believed that the meetings of APPF would have concentrated on
the issues of decentralization, distribution of powers and allocation
of resources to different levels of the government, rule of law,
independence of Judiciary, cluster of freedoms, democratic process of
governance and the process leading to the formulation of the Permanent
Constitution. This was not the case; instead, the leaders concentrated
their concern on the formula of participation in the Transitional
Government and deletion of Abyei from the Constitution. It was
reported that some political parties were using the issue of Abyei as
a card to nail SPLM such that it could accept their conditions and
make compromises on certain issues. One of the participants from these
political parties went as far calling for implementation of Sharia
laws and creation of Islamic courts in South Sudan?
They justified their demand by saying; the North will not recognize
our independence if Abyei is part of the constitution. However, the
reality of the matter is that they failed to realize the South does
not need recognition from North Sudan to declare its independence; it
could be a privilege but not a necessity. President Bashir already
accepted the will of people of South Sudan on the 7th January 2011
when he received results of the referendum from Southern Sudan
Referendum Commission (SSRC) and gave statement in many occasions that
he, his party and the government recognize the separation of Southern
Sudan. Khartoum nominates Ambassador Mahaweya el Tom as its
representative in Juba which means they recognized sovereign state of
the Republic of South Sudan. Basher may call back Ambassador el Tom to
exemplify the dissatisfaction of Khartoum on how issues of the
bilateral affairs are going in Juba. It can go up to military
confrontation between the two countries if the degree of difference is
severe; like what happened between Ethiopia and Eretria. Anything
after the President Basher declared his satisfaction with the results
of the referendum should be considered as diplomatic crisis which can
be sorted out bilaterally by the governments in the two States.
Therefore, the future of South Sudan is not on hands of Bahir anymore.
Khartoum may decide to reserve about the independence of South Sudan
but cannot stop it. It is the Khartoum to suffer in the events of
unrest diplomatic relations between the two governments, because the
South has nothing to lose, instead it is the North to lose revenues
extracted from cost of hiring pipelines, land and port fees. The NCP
leadership in Khartoum has developed wrong presumption that South
Sudan is weak. They have two things in mind:
Firstly, they think that the South is depending on oil in its budget
by 99%, upon which its management and marketing are done in Khartoum.
The best way to address this chronic problem is by constructing
pipelines to Mombasa or Djibouti, which will not take time to be on
ground. This should constitute an alternative plan to put an end the
issue of trading in petroleum with Khartoum. The construction of
pipelines should be awarded to those multi-international companies
that are ready to borrow monies against reserve oil to run its affairs
for two or three years before pipelines are finished and started
commercial production.
Secondly, they believed mistakenly that the Militia loyal to Khartoum
will overrun South Sudan.
This elusion in minds of the NCP leaders about insecurity in South
Sudan created by Militia loyal to Khartoum must be falsified. The NCP
has a belief that this group will destabilize the South and draw
attention of the new government to forget about post referendum
issues, which are being discussed currently; for example, demarcation
of South-North boundaries, oil, citizenship, debts, national assets,
water and Abyei. The NCP thought it would be better to replace the
government of the SPLM by bringing on board those political and
military forces loyal to Khartoum to take over in Juba.
Political analysts believe the NCP has taken lessons from their direct
involvements in Uganda by support LRA in 1990s, and in Eretria by
supporting rebels in 2000s and recently with Chad’s rebels. All these
attempts to change governments in these countries back fired Khartoum
until they came back to their sense and now trying to establish
diplomatic relations with those countries based on principles of non
interference.
Inclusion the GOSS is in a better position as far as the issue of
Abyei concerned and doesn’t to exclude Abyei from its constitution,
since the North included already in its Constitution. The Abyei
Protocol as a principal document preserves rights of Ngok Dinka to
that piece of land. In addition, the Ruling of the PCA, which resolved
the issue of Abyei Boundaries, is another privilege. These two
documents rallied up the international and regional communities behind
the South and the meeting of UNSC proposed to take place in Abyei will
bring the matter to an end. I personally don’t think war is the best
solution, so it is advisable to drive back NCP politically and
legally, including going back to The Hague if necessary. Any attempt
to exclude Abyei from the Constitution of the Republic of South Sudan
is a political crime and treason to our martyrs who died in Abyei in
thousands.
Dr. Dhieu Mathok is author of Politics of Ethnic Discrimination in
Sudan: A Justification for the Secession of South Sudan and
Chairperson of the Editorial Board of al Masier Arabic Newspaper
published in Juba. He can be reached at [email protected].
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