By Dr James Okuk
I – BACKGROUND OF THE PROBLEM
September 1, 2010 (SSNA) -- Right from its independence from the European colonialists who were assisted by some Africans themselves, the Sudan have been in search of defining itself. (By “the Sudan” here I mean the land and its resources, the people and their cultures, and the government and its systems or regimes). The Sudanese – I don’t care here where they originate from – who got the opportunity to be handed with the Sudan’s independence valuables like power and wealth, did not hesitate to try shaping the country in their own image. Let me recall what an ancient Greek philosopher said that if animals get a chance to draw a god they will do it in their own shape as the humans do.
Obviously, those privileged Sudanese before and during the independence, tried to portray the country as Arabized and Islamized in different settings. However, this one-sided drawing did not pass peacefully without a protest from the Sudanese who do not want to comply with the imposed dual identity. In fact, the thing turned into a crisis in Southern Sudan and fragments of crises in the Western, Eastern and Central Sudan. Even those who have no problem with Islamic identity like the Darfuris, became rebels to Arabization project because they found it hard to let go their Furi, Zaghawi and other African identities despite the fact that they are faithful Muslims.
Of course, internal marginalization in terms of power and wealth dividends in the independent Sudan became another complicating factor for the identity crisis. But luckily enough, and through the benefits of globalization where national crisis affect international interests, the Sudanese major rebels groups in the name of the Sudan People’s Liberation Movement/Army (SPLM/A) who were controlling the bushes and some towns and villages in Southern Sudan set together on peace negotiation tables with the Islamic and Arabized National Congress Party (NCP). The end result of the talks was a compile of protocols and agreements called Comprehensive Peace Agreement (CPA) that was later signed in Nairobi’s Nyayo stadium on 9th January 2005 amidst a colourful celebration by the Sudanese and their friends in Kenya, and in presence of international and regional dignitaries as well as representatives of non-governmental, faith-based and civil society organizations.
The best hope heard from the long speech of Dr John Garang the Mabior (who was the most outstanding favourite in the whole deal) was that no more bombs shall rain down from the sky but blessings with joyful women’s ululation and happy children’s giggling. That is, no more war; it is time for peace where Southern Sudan that lacked a tarmac high way since the time of biblical creationism shall start to have ones as a result of the CPA’s full and joint implementation advantage. Also the Sudanese President, Omer Hassan Ahmed Al-Bashir, in his short speech re-iterated (as he said in Naivashe in 2004) that the signed CPA marks the real independence of the Sudan because peace has never thrived since the exit of the Turko-Anglo-Egyptian Colonialists.
Nonetheless, the best fear was sent out by the Ugandan President, Yoweri Kaguta Museveni, who wondered how the feathers, horns and turbans worn in the different parts of the Sudan could be boiled in a one port without perpetual conflicts. Even the US State Department Secretary, Mr Collin Powel couldn’t afford to hide his pessimism as he said that celebrating the CPA is a very easy task for all but implementing it is the real challenge, especially for the two partners who negotiated the deal through the Kenyan army general, Mr Lazarus Sumbeiywo, the Chief mediator for Intergovernmental Authority on Development (IGAD)’s Secretariat on Peace in the Sudan, and the general who have made Africans but the world’s army generals proud of becoming renowned as peace-makers instead of war mongers. Dr Garang himself entertained some fears as he kept emphasizing that the CPA is going to be different from any other peace agreement signed in the Sudan because it is guaranteed internationally in addition to its ownership by the Sudanese people themselves who values it. Here, comes the onus of my article and its analytical flavour.
II- POSSIBILITY OF REFERENDUM COLLAPSE
Why I am I tempted to think that the agreed referendum for self-determination of the people of Southern Sudan in the CPA could collapse if mishandled?
Because implementing an agreement signed out of tactics from an intelligent ruling clique could proof futile at the end of the journey. The Arabized Sudanese who have been in control of power and wealth are not immune from Machiavellianism as the experience with some dishonoured previous peace agreements have proven. They are very experienced professionals in playing the political games of delay-tactics for frustrating the opponents near the goal posts so that they are pushed back to square one of defence. Also most of the SPLM leaders have not learnt to become independent strategists without hiring think-tank mercenaries as their consultants and back-ups. They have failed to grasp that mercenaries are mercenaries because their strength is directed by where their interests lie, and thus, they could play a double standards role depending on who grants them the interests most.
I came across some expert reports written by International Crisis Group, United States Institute for Peace and others in regard to the situation of the Sudan within the perceived context of the referendum for Southern Sudan. Nonetheless, and as far as I acknowledge some valid points scored by these experts, I am still sceptical of what they said. They are groups whose aim is thriving on crises because without these they may not have lucrative work. Thus, their reports must be treated with caution due to some exaggeration of the perceived or actual situations they draw.
The enemies of South Sudan independence are not sleeping and will not sleep until they see the unity of the Sudan in a coffin with the last nail hit on it by the SPLM converted separatists and with applause from the original separatists. But the SPLM itself is ambivalent on the issue of separation of South Sudan. The Sudanese Vice President, Ali Osman Mohamed Taha, have already vowed that he and the unionists shall never give up on unity of the country even after the de facto independence of South Sudan. That is, they will not abandon their suited interests from South Sudan; comes hot sun or cold rain. They will try all means and any available opportunity to paralyze the separatists and bring them back on a wheel chair under the pretext of political strategy of building a secure, peaceful, just, democratic, civilized, advanced and developed country that is united on a free will of its dignified citizens, or push them off the cliff if they resist. Time will tell soon as long as the earth moves around the sun with subsequent recurrent of sunrise and sunset within its own axis!!
According to the Referendum Act, at least 60% of all the registered voters should go polling in the referendum in order to legitimately recognize the outcome of the exercise. Also, 50%+1 of the referendum votes – minus spoiled votes - shall be required to declare either continuation of unity of the Sudan or secession of the South from the North. With the high level of illiteracy in Southern Sudan, there is no guarantee that many votes could not get spoiled. Also the unionists may encourage many Southerners to register for the referendum but with the aim to discourage most of them to vote so that the required quorum for declaring the independence is not reached. Part of the discouragement tactics could be displacement of the eligible voters from their constituencies using insecurity method where the people may prefer to run for their dear lives rather than stay for referendum vote. It pains me when the SPLA helps in this. Also any failure to meet the quorum may lead to second round of polling in 60 days time, and the second round could be difficult and complicated because it may generate uncomfortable debate and harmful quarrels.
That is why the separatist GoSS Vice President, Dr Riek Machar, is concerned that the eligible Southerners who feel they may not vote during the referendum should not register in the first place because that would harm the needed turnout. However, it seems that Dr Machar is not telling the people of what can be done to survive the insecurity by the SPLA and their rivals (militias or NCP weak hearts or etc.,) that occurs in Southern Sudan when the polling date approaches nearly. It seems only that he is smelling one rat that the referendum may not be like April 2010 elections where ballot papers were ticked and boxes stuffed by the SPLM on behalf of the people; he has not talking about other smelly rats that may sneak into the process to utilize the rush hour.
No doubt, the scrutiny is going to be very tough for the referendum in regard to transparency, freedom and fairness of the process. The Sudanese Chief law-maker, Hon Speaker Ahmed Ibrahim Al-Tahir, and other unionists have been heard publicly accusing the SPLM of trying to control all southerners both in the north and south in order “to obstruct and hinder the referendum in a non-transparent and underhanded manner by overstepping the law.” It should be noted that during the briefing visit of SPLM Secretary-General, Mr Pagan Amum, to the UN Headquarters in New York, and in reaction to the hearing of the briefing on 14th June 2010 by the Chairman of the AU High Implementation Panel (AUHIP), Mr Thabo Mbeki, and also by the chief of the UN Mission in the Sudan (UNMIS), Mr. Ibrahim Gambari, the Security Council members reiterated their commitment to the resolution No 1919 but cautioned that the SPLM, the NCP and all the Sudanese concerned political leaders should ensure credibility of the referendum and its aftermath so that the UN gets no qualm to recognize any declared result of the process; unity or secession.
III - THREE SCENARIOS SURROUNDING THE REFERENDUM
What are the most compelling scenarios of the unionists on the referendum exercise that could affect and complicate its final outcome at the end of six-year interim period?
1) Dishonouring the referendum exercise so that South Sudan does not part ways with the North. This could easily be done by violating the CPA in totality and pushing the SPLM and Southern separatist groups or individuals back to the easy option of war. However, the practicality of this scenario at the moment seems to be futile, especially when the CPA partners (SPLM & NCP) have learnt the benefits of dialoguing out the differences and difficulties, and in fear of lost of the power that both of them are in enjoying liberally in a Khartoum and Juba. Both the SPLM and NCP may not be willing to revisit the war option because their experiences in the past have shown that none of them could get defeated and crashed militarily out of the Sudan surface.
2) Delaying the conduct of the referendum by using legal means so that South Sudan does not become an independent state asap. This tactic could take two directions: a) the Using the Southern Sudan Referendum Act (2009) because some provisions there shall require the mentioned 9th January 2011 date of declaration of the plebiscite polling to be amended as the previous procedures and set dates to it lag behind the stipulated schedule. For example, the finalization of the registration of the eligible voters requires five months and up to now this has not kicked off when October 2010 has dawned and Referendum Countdown is running out of time flux. That is, some additional months shall be needed to suit what is required in the Referendum Act. As long as the registration kick off is delayed, the more the needed additional months push further to squeeze the set final date. We are not even sure the geographical terrain in Southern Sudan in the rainy season will be favourable for doing the work successfully in time, especially when there are no enough helicopters to transport the Southern Sudan Referendum Commission (SSRC)’s staff and their logistics to the registration centres. Nevertheless, the law-makers in the Sudan Legislative Assembly still have the power to adjust the set timing in the Referendum Act so the SSRC could get a new mandate to carry put their duties and enjoy their rights within the law.
Funding could be another reason to slow down the process though some well-wishers who are pro-South Sudan independence worldwide have expressed willingness to offer some fund. The Government of Southern Sudan (GoSS) has also pledged to set aside some fund for the referendum. The Sudan government also have the obligation to fund the activities of the SSRC because it is part and parcel of government institutions. But who knows, may be some members in the SSRC could intentionally execute corruption dealings on the referendum fund so that nothing moves a head in time as the very Commission itself get entrapped into internal squabbles. This scenario had seemed to be likely but now its authors may disown it slowly. Let’s keep the benefit of doubt here.
3) Allowing a rushed and disorganized conduct of the referendum so that a valid legal case could be generated out of it while ensuring that the judges who shall adjudicate the objections are going to be partial as far as unity of the Sudan is concerned. It has been bitterly experiences by the opposition political parties and independent candidates in the last April 2010 elections how the Sudanese judges are highly politicized by the ruling parties. This bitterness could be repeated as well in the referendum process. If it happened, the separatist may opt to take the issue to an international judicial arbitration. Notwithstanding, this would mean endorsing the delay of the judgment whether South Sudan deserves to become an independent state recognizable worldwide. It is a known fact that international justice requires much patience because its procedures and standards are very long and tedious. It could be remembered here how long the Permanent Court of Arbitration (PCA) took to pronounce a judgment on the Abyei Area’s boundary law suit. Also it may be considered here that the international justice may demand a fresh re-conduct of the referendum under supervision (not observation this time) of some credible international bodies like the United Nations (UN) so that whatever they endorse becomes the final declared result of the plebiscite.
Also the African Union (AU) may find it uncomfortable to recognize quickly the emergence of a new state in Africa called the Republic of South Sudan, especially as the independence recognition cases of Somaliland and Western Sahara remain pending and thorny. However, the AU may resort to treat this as a case-by-case perspective because it is a witness signatory to the CPA document through Mr. Alpha Oumar Konare. This signatory and other AU commitments on peace and security in the Sudan pose unavoidable obligation to accept the exception of the independence case of South Sudan even if it leads to redrawing in the African continent geo-political maps.
The third scenario is the most likely now because unionist politicians’ voices seem to be echoing this these days. Even those NCP leaders who were saying that the referendum may not be allowed to take place in the agreed time if the borders between the South and North are not demarcated, seems to have taken horse U-turn now and are becoming vocal with the SPLM leaders’ position that says there is no direct connection between the referendum and borders. Nonetheless, people need to be cautious a bit here because it is said when the diverging Machiavellian politicians come out to converge certainly on an issue of contention, then some mysterious dealing amongst them might have taken place in the dark. What is the SPLM secret dealing with the NCP here? I think power sweetness should not be overruled. It is here that the honest separatists should triple their efforts to see to it that the final result of the delay of the referendum process remains in the best interest of the independent Republic of South Sudan; not unity of the Sudan.
IV – CHALLENGE OF RECOGNITION OF SOUTH SUDAN REPUBLIC
International community is not a fixed entity because its survival is connected to change adaptability capacity. As an ancient Greek philosopher said that everything is in a constant flux in the world except the change itself, and as Charles Darwin hypothesized that the biological species that fail to adapt to the emerging changes will not survive the forces of the circumstances, I have no doubt that the international and regional communities will be compelled to recognize the emerging independence strive of Southern Sudanese. It is a hard fact that in the human world new states are created while some old ones fade away. New governments come into being within states in a manner contrary to declared constitutions whether or not accompanied by force. These circumstances and others have obliged countries to decide whether or not to recognize one another in international arena. In most cases the decision depends more upon political considerations than exclusively legal factors because human beings do not live on laws alone.
In the international law, there are basically two theories of how countries recognize each other. The first is the constitutive theory, which maintains that it is the act of recognition by other states that creates a new state and endows it with legal personality, but not the process by which it actually obtained independence. Thus, new states are established in the international community as fully fledged subjects of international law by virtue of the will and consent of already existing states. The second is the declaratory theory, which adopts the opposite approach of the constitutive theory and maintains that recognition is merely an acceptance by states of an already existing situation. That is, a new state acquires capacity in international law not by virtue of the consent of others but of a particular factual situation. A new state will be legally constituted by its own efforts and circumstances and will not have to wait for the procedures of recognition by other states. Thus, for the constitutive theorists, the unrecognized states have no rights or obligations in the international community. And for the declarative theorists, what matter is the factual situation and not how other states confer legal personality on a new state.
However, actual practice leads to middle position between the two extremes: the act of recognition by states to each others indicates that they regard one another as having conformity with the basic requirements of international law and mutual beneficial interests in each others. Hence, there could be many different ways and factors in which recognition can occur.
Putting all those theories and practices of the act of recognition into consideration, I could say that the separatists of South Sudan need not to worry much about who will not recognize the emergence of a new state in Africa but should exert much efforts to garner gains from the countries that are going to recognize them and start establishing robust bilateral and multilateral diplomatic, economic, political and other links with them. South Sudan is not going to be an easy country to ignore because of the resources and other potentials it has.
The encouraging factor now is that the semi-autonomous transitional government and resources available in Southern Sudan are already recognized by a number of countries, NGOS, international banks, regional blocs, international community and others because many of them have disbursed direct or indirect representative actors to the region. That is, South Sudan is already recognized worldwide de facto and de juri expressly or tacitly. It is just a matter of time to formalize this. And since recognition is fundamentally a political act reserved to the executive branch of the government in collaboration with the legislative, this would mean that the internal judiciary in the Sudan (both at the national and regional levels) should accept the discretion of the joint executive-legislative and give effect to its decision to declare South Sudan as an independent state sooner than later.
V – CHALLENGE OF DECLARING INDEPENDENCE WITHOUT TERRITORY
In international law, the sovereignty itself with its retinue of legal rights and duties or jurisdiction, is founded upon the fact of territory (or demarcated borders). If a state cannot exercise exclusive power over its defined territory, then it could not be regarded as viable state fundamentally. That is without territory a legal person cannot be a state. However, the international community has traditionally approached the problems of new states in terms of recognition, rather than in terms of acquisition of title to territory. There has been relatively little discussion in the international laws of the method by which states acquire legal rights to their territorial lands (above, on the surface and underneath). The stress has instead been on compliance with factual requirements as to the statehood coupled with acceptance of this by other states. The reason could be that many countries that constitute the power element of the international community have acquired their territorial lands in unjust manner questionable in many aspects.
One major relevant factor here is the crucial importance of the doctrine of domestic jurisdiction. This constitutes the legal prohibition on interference within the internal mechanisms of an entity and emphasises the supremacy of a state within its own frontiers. Many of the factual and legal processes leading up to the emergence of a new state are therefore barred from international legal scrutiny and have proved a deterrent to the search for a precise method by which a new entity obtains title to the territory in question.
There are basically two methods by which a new entity may gain its independence as a new state: by constitutional means, i.e., by agreement with the former controlling administration in an orderly devolution of power, or by non-constitutional means, usually by force, against the will of the previous sovereign. The granting of independence according to the constitutional provisions of the former power and may be achieved either by agreement between the former power and the accepted authorities of the emerging state, or by a purely internal piece of legislation by the previous sovereign. However, in many cases a combination of both procedures is adopted.
In the case that involves devolution or transfer of sovereignty from one power to another, the title to the territory will accordingly pass from previous sovereign to the new administration in a conscious act of transference. But in the case where a new entity gains its independence contrary to the wishes of the previous authority, whether by secession or revolution, the disposed sovereign may ultimately make an agreement with the new state recognizing its new status, but in the meantime the new state might well be regarded by other states as a valid state under international law.
In the case of the emerging circumstance of South Sudan, the people and government in the region are already in control of some parcel of land though the fact of sovereignty de juri is not yet established despite its de facto in the form of an independent army – the Sudan People’s Liberation Army, the secularized banks and other characteristics. Here parts of the lands that is supposed to be belonging to the territory of South Sudan by virtue of the CPA’s provision of demarcation of the borders in accordance to the maps of 1st January, 1956. Hence, the constitutive theory of the international law could be applied while dialoguing for the declarative theory as well, in parts, in accordance with the article 31 and 32 of the Vienna Convention on the Law of Treaties (1969) but interpreted in “good faith.” For example, in the Eritrea/Ethiopia case, the Boundary Commission referred to the principle of contemporaneity, by which it meant that a treaty should be interpreted by reference to the circumstances prevailing when the treaty was concluded.
Boundary awards may also constitute roots or sources of legal title to territory. A decision by the International Court or arbitral tribunal allocating title to particular territory or determining the boundary line between two states will constitute establishment or confirmation of title that will be binding upon the parties themselves and for all practical purpose upon the parties themselves and for all practical purposes upon all states in the absent of maintained protest. It is also possible that boundary allocation decisions that do not constitute international judicial or arbitral awards may be binding, provided that it can be shown that parties consented to the initial decision.
VI – CONCLUSION
The best of the useful hints to avoid the South Sudan referendum collapse is for the separatists to consider seriously the possible troubles I have highlighted ahead and them work hard to defuse them. For example, if the unionists are dragging them to the trap of rushed and disorganized referendum for a spoil, the separatists should work oppositely by trying to adopt a traffic police attitude of reducing the speed and slowing down for safety sake. It is the highest time for the South Sudan separatists to get totally convinced that it is their time from now to the future. The unionists have already enjoyed their time. Thus, let the separatists not be provoked by the unionists and join them blindly in acts that could spoil this rare and valuable opportunity in history of human kind. If the separatists take it “slow and sure” like a tortoise, and defusing all the unfavourable tactics of the enemies of the independence, then they will certainly be there with utmost pride of dignity.
The separatists need to lobby hardest with the IGAD as well as the AU, which already is mandated by the founding Organization of African Union (OAU) charter to favour unionists in Africa. They have heard it several times from the very mouth of the executive chief of the AU, Mr Jean Ping, that the bloc does not support separatists de juri. They can only recognize the separatist de facto and only when a lesser evil imposes itself for a greater good. Not to forget that the UN Security Council has already taken a stand on the referendum that they will be with the choice of the people of Southern Sudan and not of the politicians or political parties. With such a strong lobby backed by pressure from the South Sudan separatists’ youth, and with Christian churches praying for Moses to cross Southerners out of the Sinai desert despite the obstacles, there shall be a cape of good hope that South Sudan shall become an independent African state like Eritrea with the AU admitting it as a new comer to add number 54 in the membership composition of the Union. Even if the delay occurred that fire of hope shall never fade away. Surely, independence is coming!!!
Dr James Okuk is a Concerned Southerner reachable at