ISSN 2330-717X

Huda Seif: South Sudan after the Referendum

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[Editor’s note: We’re pleased to feature another special contribution from Huda Seif-Gerard, a scholar and human rights activist currently based in Brussels. Between January 2008 and February 2010, she served as Political Advisor for the European Union Special Representative (EUSR) for Sudan. In 2006-2007, she also served as Governance and Gender Advisor with UNDP’s Rule of Law in Sudan. Previously she taught at George Mason University and University of Mary Washington in Virginia, USA and worked with the UN in Afghanistan, Yemen, Somalia and Zimbabwe.]

By Huda Seif-Gerard

Now that the referendum process in South Sudan has been concluded and the United Nations has endorsed the legality of the “Yes” vote for independence from the North, it is timely to address some key political realities and human rights concerns, both of which are relevant under international law. The international community needs to be cognizant of these issues and ready to tackle their ramifications when they emerge as post-referendum challenges to 1) peace and security issues in the region and 2) economically viable co-existence between the two Sudanese states.

Sudan
Sudan

By ensuring the people of South Sudan the right to self determination hence a complete separation for Khartoum by mid 2011, the January 2011 Referendum represented one of the major rudiments of the 2005 Comprehensive Peace Agreement (CPA) signed between the Sudanese Government and the Sudanese People’s Liberation Movement/Army.

The CPA was realized under the tutelage of the international community, and therefore its implementation during the last five years has enjoyed the highest possible scrutiny through an independent joint commission known as the CPA Commission with a plethora of Sub-Commissions that deal with specific issues. In addition to the two parties to the peace, the CPA Commission involved the UN, the EU, AU, and the Arab League, as well as individual countries such as the USA, GB, Italy, and Norway, each with its own vested political and economic interests in the region. The CPA was significant at least in two major ways. First, it stipulated the establishment of a new constitution for the new Government of National Unity, thereby radically defining the new Sudan as a society with multiple ethnic groups and plural religions. In the political history of Sudan and for the first time in Khartoum’s long history of Islamist/Arabist political monopoly, such departure and declaration can not be underestimated. The CPA was also significant because it had ended one of the longest civil wars in Africa’s largest country.

Having voted “Yes” to independence last January, South Sudan will achieve its sovereignty from the North by July 2011. As such the South Sudan referendum represents the second dislodging of “colonial borders” in post-colonial Africa under the sanctioning of the international community. Considering the political turmoil and trajectories of the past five years and the far than perfect implementation of the CPA agreement, South Sudan’s decision for independence from Khartoum does not come as a surprise.

Despite the name, the Comprehensive Peace Agreement did not tackle nor resolve all of Sudan’s political tensions. The unresolved crises of the conflict in the Darfur region and the perilous political tension that continues to linger in eastern Sudan (although specific peace agreements to these regions were later signed) attest to this claim. The CPA stipulated a new National Government of Unity for Sudan and an autonomous government for South Sudan. According to a Power Sharing agreement that is stipulated within the CPA, the SPLA/M was proportionately represented in the Government of National Unity (based on estimate of its population size) . In this capacity the SPLM had a shared political responsibility with the NCP in resolving both the Darfur and the Eastern political crises. Many rebel members from Darfur and Eastern regions bitterly believe that the SPLM, once coming to power, have abandoned the causes of these two regions.

For the international community, the CPA (with its guidelines for democratic and legal reforms on the one hand and clear power and wealth sharing measures on the other) represented an opportunity for the North to render unity an attractive venture for the Southern population. Yet this was a time when the South’s SPLM/A had hardly evolved from a freedom fighter movement to a mature political party ready to match Khartoum’s seasoned NCP and expertise in undemocratic maneuvering and totalitarian tendencies.

This lack of equal opportunity was coupled with the South’s acute consciousness of long histories of northern prejudices against South Sudanese people and its collective memories of northern ideologies of ethnic Arab supremacist and vestiges of domination.
Considering these histories and collective memories as well as Khartoum’s recent political mischief that lead to critical political events since the signing of the CPA, the referendum results will again hardly leave any room for surprises.

Over the last five years major factors have culminated to suggest a dubious state of North-South union and the inevitability of separation. For Instance 1) decisive and unresolved political clashes within the Government of National Unity over power sharing and distribution of national oil revenues, 2) tense border conditions and sever clashes during the last three years between the separate armies of the NCP and SPLA in and around the 2,100 Km North-South borderline , 3) violent ethnic clashes between the Arabized Messeriyah and the African Ngok Dinka pastoralists around the strategically important but still common region of Abyeie and 4) the destruction of Abyeie town by the northern NCP army. These serious political tensions have succeeded in creating an atmosphere of mistrust and have all been alluding to dissatisfaction in South Sudan and a count down towards secession.

In addition to the above political and security concerns, the rights of non-Muslims in the northern region (although guaranteed under the new constitution of the unity Government), were never completely observed in Khartoum. Prisons in the northern regions hold a large number of non-Muslim southerners whose crimes are crimes specifically prohibited only under the Sharia codes which govern Muslim ways of living.

These include activities such as consumption, possession and distribution of locally brewed alcoholic beverages, all of which are religiously prohibited for Muslims under Sharia codes but not so non-Muslims. Furthermore, a great number of South Sudanese women are in jail in the northern regions, especially Khartoum, for breaching cultural comportments and behaviors only prohibited to women under Sharia codes. These violations of the cultural and human rights of non-Muslims in Sudan attest to Khartoum’s lip service adherences to religious plurality and tolerance for cultural diversity for a unified Sudan.

The above factors provide vignettes that show Khartoum have failed to promote North-South unity as a promising venture to an already weary individual South Sudanese.

On the international level, fights over power and revenue sharing in Khartoum and security concerns over border issues and clashes during the last three years have absorbed the bulk of the international community’s political attention. Subsequently diplomatic maneuver at Khartoum and Juba levels and peacekeeping efforts in border areas have drained major shares of the international attention and resources, most of which have yielded no results. Attending to humanitarian crises and new civilian casualties due to heavy clashes between North and South troops in Abyei area have also created new roles for the international community and a delay in an already unsuccessful program of voluntary returns for displaced southern populations. Indeed efforts for preventing premature separation and full blown war have consistently shifted attention away from critically needed socio-economic and political development in South Sudan.

On a sideline, unpredicted international focus on peacekeeping activities and on North-South political relations have allowed a detrimental oversight of the South’s internal mischief regarding the misappropriation of hefty international aid resources and oil revenues and the subsequent failure to provide adequate public services in South Sudan. Crimes and lack of public security due to soaring poverty and unemployment rates and failed programs of disarming and reintegration of ex militia have all undermined public safety and overall security in the South and especially Juba where aid workers and representatives of the international community became preoccupied only with its own safety.

Indeed, the political events and distractions of the last five years have denied South Sudan a genuine opportunity for recovery, reconstruction and development. In particular, they have curtailed much needed opportunities for establishing solid new state institutions and administrative capacities that the South critically needs not only for its total independence from Khartoum after July 2011 but also for the next critical six months for finalizing separation.

With these concerns in mind, and cognizant of the inevitability of imminent sovereignty for the people of South Sudan, the challenge for the international community is enormous. What can and should the international community do to assist South Sudan in the coming critical months before its complete independence from Khartoum? How can the international community capitalize on the noble legacy of the late SPLM leader, John Garang, in maintaining not only a peaceful separation but also a peaceful co-existence and productive cooperation between North and independent South Sudan?

In a region where industrialization and agricultural development are virtually non-existent, oil revenues represent a hefty portion of South Sudan’s national wealth hence a factor in achieving economic stability in the immediate critical future. Yet, the existing venue for exportation is through Port Sudan of the eastern region, which after separation will fall under the Khartoum. In this setting, South Sudan will have to strike a deal with Khartoum, at least for the next decade (and until a new route is established). In addition, some of the oil producing areas still remains contested and without sustainable border demarcations. Viable means for achieving sustainable wealth sharing formula concerning oil revenues from contested areas are yet to be achieved. The international community needs to tackle this problem by rekindling and maintaining the spirits of North-South cooperation that was inherent in the CPA in order to achieve not only a peaceful separation but also a sustainable economic cooperation subject to international law.

Although the European Union’s Catherine Ashton has already announced that the CPA is now over, she and others in power, however, need to ensure that the spirit of the agreement be utilized as a guiding source for peaceful economic coexistence in the future. As in the case of the CPA, any other future agreements between North-South will have to be sponsored and supervised by the international community through new and post separation commissions.

In addition to the above economic issues, there are human rights and political concerns, which will have wider regional and international implications, and therefore must be addressed by the international community. Concerning human rights, north Sudan in post separation era will continue to host significant non-Muslim communities from different parts of Southern Sudan. Many of this population are established in the northern region and may choose to remain so for different reasons. On the hand the voluntary repatriation program has been disappointingly very slow and ineffective in terms of providing incentives for return to the South. This is especially so in Khartoum, where a great majority of displaced southern populations have settled in IDP camps such as Mayo Camp and Jabal Awlia for more than two decades. While the human conditions in these two camps are horrendous, they have become established shanty towns with its own community leadership and social mechanisms of cohesion. Better economic alternatives and secure conditions in the South are yet to be established. Residents of these shanty towns (along with displaced Darfurians provide the bulk of exploited manual laborers for Khartoum’s booming real state construction activities. For various reasons, therefore, there will be many Christian and animist southerners who will remain in the northern region after separation. They will constitute minorities that will face particular human rights challenges.

While the CPA and the Constitution of the Government of National Unity of the last five years had guaranteed (under the rubric of religious plurality and ethnic diversity) the full rights of non-Muslims in the northern region where Islamic laws are applied, such guarantee and acceptance are already disappearing in its entirety. Khartoum and the NCP, although affirmed a full respect for a southern choice for separation, have also declared the application of complete Sharia codes in the northern region after separation.

Under these circumstances, the social and economic rights of none Muslims under a Sharia state will be severely challenged. In particular rights to citizenship for those many non-Muslim South Sudanese who will remain in the North under Khartoum are likely to be challenged severely. Any direct challenges to citizenship will have direction implications on the right to remain in the north, the right to work, access to public education, right to own a property, and the right to equal protection under the law. Loosing citizenship rights or limitations in this regard will lead to further social marginalization and economic exploitation of thousands of southerners who will choose to remain in northern Sudan.

The international community needs to raise these concerns in any negotiations between Juba and Khartoum and must be willing to legally tackle them before a full separation takes place in mid 2011.

The international community must also be prepared for unforeseen collective violence and backlashes against minorities on the part of the public (on both sides) for the period immediately following the separation. It must warn against such actions and ensure that legal measures and institutional protection are in place before two Sudanese states is declared.

On the political dimension, Khartoum may continue to destabilize Juba through various means. The unresolved conflict of the Darfur crisis will continue to add pressure on the South’s post independent fragile political and economic status. Due to the proximity, Juba is a safe base for several members from the Darfur rebel groups While the Eastern Sudan region may seem far from Juba, any conflict there will interrupt the flow of oil revenue that is crucial to South Sudan’s economy.

In a time of widespread political uncertainties across the whole of Africa where persistent lack of human security, massive crimes against humanity and increasing civilian displacement are all part of the everyday realities, one can not avoid pessimism when pondering the future of South Sudan. The new Juba government may not succeed to immediately overcome all the tribulations it inherited from a long history of underdevelopment and marginalization under Khartoum. But if it allows itself to benefit from the mistakes of other African countries, it may spare its people some of the pitfalls of post-independence trajectories. Juba can become its own worst enemy if it does not attend immediately to its internal problems. The international community has so far been focusing on North-South relations at the detrimental expenses of the South’s internal problems. Massive corruption and laundering of public money (from international aid and oil revenues), violent ethnic clashes, and weak administrative institutions under mini dictatorial government officials have all been recognized as acute problems in the South. Tackling the grievances of some of the South’s numerous ethnic groups will require the immediate adoption of some form of transitional justice before it erupts into a catastrophic post-independent violence. Similarly, the immediate adoption of good governance, the rule of law, and inclusive democracy should bring equitable power sharing and faire distribution of national resources within the South.

There is always the ominous possibility that Khartoum and the LRA of the neighboring Uganda will remain in varying degrees external sources of political instability. But if it immediately adopts good governance, the rule of law, and inclusive democracy that manages with justice internal ethnic divisions, power dynamics, and conflicts, Juba may certainly spare its population some of the pandemic trappings of demented post-independence nationalism and its related atrocities of dictatorship, totalitarianism, bad governance all of which have become a post colonial realities that characterize contemporary Africa.

Robert Amsterdam

Robert Amsterdam

Robert Amsterdam is an international lawyer and founding partner of the law firm Amsterdam & Peroff.

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