Secession is not given independence

By James Okuk

QUOTE: “Nations need dreams, goals they seek in common, within which the smaller dreams of individuals can guide their personal lives.”(Ford Foundation, 1991).

May 31, 2010 — What is “Secession”? It is a formal withdrawal from an organization, state, or alliance. For example, the withdrawal from the Union of 11 Southern States in 1860 – 1861 that led to the formation of the Confederacy and the beginning of the Civil War in the USA until resolved by a federalist constitution that gave supreme power to the union of American people rather than to the state (See Encarta Dictionary).

And what is “Independence”? It is freedom from dependence on or control by another person, organization, or state. For example, after 30 years of Eritrean War of Independence (1 September 1961 – 24 May 1991) the Eritrean People’s Liberation Front (EPLF) defeated the Ethiopian forces and then declared their independence by referendum that took place thereafter in April 1993 (See Wikipedia).

I. How do these apply to the case of Southern Sudan in the context of the Comprehensive Peace Agreement (CPA) of 2005? It applies trickily because of Machiavellianism played by the Sudan People’s Liberation Movement/Army (SPLM/A) commanders with their rival politicians of the Umma Party (UP), the Democratic Unionist Party (DUP), and the National Congress Party (NCP) who changed guards at the Gordon Republican Palace in Khartoum during the eruption of civil war in the South and the resultant peace-talks.

Where is then the trick hereafter? It is in the confusion of the use of the terms “Secession” and “Independence” when mingled in both common and legal jargons. Legally “Independence” is a ‘closed-case’ accompanied by national sovereignty and international diplomatic recognition, while “Secession” is an ‘open-case’ susceptible to different manipulations of what can be interpreted and made out of it.

After declaration of any “Secession”, the following practical question comes up: Now that you have decided to secede, what kind of rule do you want for your seceded territorial jurisdiction? This implies that “Secession” usually ends up in “Federation” or “Confederation” or new “War-of-Independence” that uses fresh tactics of military victory, accompanied with politico-diplomatic negotiations for a new strategic deal of full autonomy and sovereignty. World History is rich of such kind of options (e.g., the USA experience, etc.).

The option of “War-of-Independence” out of “Secession” is what Southern Sudan might end up with, comes 2011. Despite the deceptive and malicious or ignorant songs of ‘peace-and-freedom’ chanted by both the SPLM/A and NCP/NIF leaders daily, weekly, monthly and yearly, the full revelation of truth will come up at the CPA ‘end-road’. That is, the “Secession” of Southern Sudan through a referendum might not end up with peaceful “Independence”. Please remember this projectional hypothesis even if I might not live to see the light of the dignified South Sudan in near or far future!

Why am I tempted to predict this option and create an alertive tone for it? Because the law does not have mercy on fools or ignorant people who act outside or in defiance to what has been codified and stipulated in constitutions, acts, statutes and precedents for obligatory execution. Reading and reflecting critically on The Interim National Constitution of the Republic of the Sudan (2005) – including CPA text), The Interim Constitution of Southern Sudan (2005) and The Southern Sudan Referendum Act (2009), I can sense the shock that shall be encountered at 11:59 hour when conformation comes up that the referendum for self-determination of the people of Southern Sudan has nothing to do with “Independence”. It shall be confirmed that the (YES) or (NO) questionnaire circles in the referendum ballot papers should only have “Unity” and “Secession” terminologies as the offered options.

Thus the circumstance shall be different from the Eritrean case (I will detail this below). Even President Isaias Afewerki has called on Southerners to remain united with the North! (See his message when he attended the inauguration ceremony of President Al-Basir, 27/05/2010). But why did he do this? May be because of spree of corruption and injustice in the Government of Southern Sudan (GoSS) and in the SPLM/A, or perhaps he knows that the “Secession” mentioned in the CPA and other legal documents does not necessarily qualifies for “Independence” of South Sudan as a result of the 2011 referendum. You can also deduce some suspicion in the way Southern Sudan political parties were refused registration in the Sudan Political Parties Affairs Council (PPAC) and certification from the Sudan National Elections Commission (NEC), pending amendments of phrase “Independence of South Sudan” mentioned in their mission statements.

II. What am I trying to make out of this alert? I want to emphasize on the point that if the victory of the 2011 referendum ended up with confirmation of “Unity” of the Sudan, then there shall never be much tedious legal post-referendum battles. The unionists, at the top of which sits the Government of National Unity, shall say with utmost joy: Bravo and congratulations to Southerners for accepting “unity of government” with the Northerners!!!

Nevertheless, if the result became “Secession”, there the separatists shall stand straight and worried, while rolling up their sleeves for demonstrating tough fists of anger from the last minutes shock from red-cards lifted up by the gentlemen who knew the hidden unity’s tricks of the CPA in Machakos/Naivasha’s negotiation halls. The ‘Square-One’ that the CPA partners have been avoiding to jump in, might become the easiest short-cut to resort to. But under whose leadership shall the “War-of-Independence” takes place? Will it be Mr Salva Kiir, Dr Riek Machar, Mr Wani Igga, Mr Pagan Amum or Mrs Rebecca Nyandeng? A nightmarish to Southerners; indeed!

Already the chief law-maker of the Sudan, Mr. Ahmed Ibrahim Al-Tahir, on his re-election speech as the Speaker, vowed that his National Legislative Assembly (with about 75% of the NCP legislators) shall never be neutral on “Independence” of South Sudan because the country must remain united whether by thick or thin. Also President Omer Ahmed Hassan Al-Bashir pledged in his swearing-in ceremony that he shall ensure that the referendum for Southern Sudan takes place within the scheduled time (Inshallah- by God’s Will?) but with unity of the Sudan as the only desirable outcome. Not only this, but also one of the think-tanks of the NCP/NIF and a national legislator, Dr. Ghutbi El-Mahdi, hinted in the Sudan-TV discussion forum that the referendum shall only be about “Secession” and “Unity” options but not “Independence” of Southern Sudan. What a revelation!

A critical question poses itself here: What is the utility of “Secession” if it is only for “Unity” of the Sudan in different colours (be it “Confederation” as proposed by SPLM Deputy Chairman and Mr. Governor, Malik Agar with his 100% stand with unity, or “Federation” as proposed by Dr. Hassan Al-Turabi in 1998 before he parted ways with President Al-Bashir and his NCP)? Are Southerners fit to secede so that they remain united with the North by proxy? This is very funny but it portrays how comical the CPA show is. No wonder! That is why you see the SPLM/A and NCP/NIF quarreling and re-negotiating the CPA from time to time, and creating sideline deals to pass time.

III. Let’s state what the laws says exactly about the referendum for self-determination, but indicating the loopholes dug by the SPLM/A and NCP/NIF Machiavellians to let the separatists fell off the tipping cliff of CPA’s pending troubles, especially when the force of time expose the duplicity.

1. Articles 219, 222 & 220 of the Interim National Constitution: The people of Southern Sudan have the right to self-determination through a referendum to determine their future status (Article 219). A Southern Sudan Referendum Act shall be promulgated by the National Legislature at the beginning of the third year of the Interim Period [Article (220)(1)]. The Presidency of the Republic of the Sudan shall, as soon as the Southern Sudan Referendum Act is issued, establish the Southern Sudan Referendum Commission [Article (220)(2)]. Six months before the end of the six-year interim period, there shall be an internationally monitored referendum, for the people of Southern Sudan organized by Southern Sudan Referendum Commission in cooperation with National Government and Government of Southern Sudan [Article (222)(1)]. The people of Southern Sudan shall either:- (a) confirm unity of the Sudan by voting to sustain the system of government established under the Comprehensive Peace Agreement and this Constitution, or (b) vote for secession [Article (222)(2)]. This is excellent but…!

Evaluation #1: The sub-articles No (2) and (b) above are vague and fit the general criterion that requires the constitutions to be written in a vague language so that the constitutional judges and lawyers can have a work to do; the interpretation and verdicts. But what work will the Sudanese constitutional judges do here? Shall it be a dirty work or a clean one in regard to interpretation and verdict on “Secession” of Southern Sudan, for example? Evaluate what those judges did regarding the objections raised during April 2010 elections process and you can tell which work they will do? Any way, don’t worry about this! I will later tell you why you shouldn’t.

The sub-articles No (a) says it in a legal slyness that the referendum vote shall only be about sustaining the system of government established by virtue of the CPA and the constitutional dictates, the consequence of which shall be unity of the Sudan. The sub-articles No (b) remains silent on what follows if the majority choice becomes “Secession”. It is not even indicated that the “Secession” will be from what? We may just assume it as “Secession” from Northern Sudan but the law we have consulted does not say so decisively. Remember the cliché: Be Legal; Be Safe!

2. Article 9, 10 & 11 of the Interim Constitution of Southern Sudan: [Article (9)(1)] reads exactly like article (219) of the Interim National Constitution. Any Southern Sudanese who has attained the age of eighteen shall have the right to vote in the referendum [Article (9)(2)]. For purposes of the referendum in sub-Article (1) above, a Southern Sudanese is: (a) any person whose either parent or grandparent is or was a member of any of the indigenous communities existing in Southern Sudan before or on January 1, 1956; or whose ancestry can be traced through agnatic or male line to any one of the ethnic communities of Southern Sudan as in Schedule G herein; or (b) any person who has been permanently residing or whose mother and/or father or any grandparent have been permanently residing in Southern Sudan as of January 1, 1956 [Article (9)(3)]. Articles 10(1), (10)(2) & (11)(1) read exactly like articles (220)(1) & (220)(2) of the Interim National Constitution except for the term “issued” changed with the term “promulgated”. The people of Southern Sudan, voting on a single ballot and by majority vote, shall either:- (a) confirm unity of the Sudan by voting to adopt the system of government established under the Comprehensive Peace Agreement; or (b) vote for secession[Article (11)(2)].

Evaluation #2: At least the Interim Constitution of Southern Sudan tried to break the criteria of vagueness by shipping in some specific details, especially on who shall be qualified to vote in the referendum and how. But it is still hooked-up by the trick of ambivalence of “Secession” terminology. The constitutional judges and lawyers might refer to some of the details mentioned in this sub-constitution but they may not be obliged to do so because they could argue, as well, that the National Interim Constitution should be the only supreme reference in case of clash of interpretations.

3. Articles (4), (5), (6), (7), (8) & (9) of The Southern Sudan Referendum Act: The people of Southern Sudan shall exercise their right to self-determination through the referendum to determine their future status in accordance with the provisions of the Comprehensive Peace Agreement, the Constitution and the present Act (Article 4). The referendum, provided for in Section 4 above, shall be conducted in Southern Sudan and any other locations on 9 January 2011 and shall be organized by the Commission, in cooperation with the Government of National Unity and the Government of Southern Sudan and under international observation (Article 5). While exercising the right to self-determination through voting in the referendum, the people of Southern Sudan shall cast vote for either: i- Confirmation of the unity of the Sudan by sustaining the form of government established by the Comprehensive Peace Agreement and the Constitution, or ii- Secession (Article 6). To ensure the free will of the people of Southern Sudan to express their views, in accordance with Section 6 above, the different levels of governance shall commit to creating an environment favourable to conduct the referendum through the following:

a) Appropriate environment and security conditions in order to prepare and organize the free exercise of the right to self-determination.
b) Freedom of expression for all the people of Sudan in general and the people of Southern Sudan in particular to enable them to dispense their views on the referendum through mass media or any other means.
c) Freedom of assembly and movement to all people of Southern Sudan in accordance with the provisions of the Constitution and the present Act.
d) Ensuring the presence of IGAD member states and partners, representatives of the United Nations, the European Union, African Union and other international signatory bodies as witnesses to the Comprehensive Peace Agreement to engage in the observation on the referendum.
e) Ensuring the presence of national, regional and international Civil Society Organizations to observe all the procedures pertinent to the referendum-related awareness campaign
f) Ensuring that, in accordance with the Political Parties Act 2007, the registered political parties, organizations and gatherings adhering to the Comprehensive Peace Agreement are given equal opportunities in voicing their views on the referendum options, if they are willing to do so.
g) Educating and registering the voters, safeguard and guarantee their right to secret voting without fear or intimidation (Article 7).

The Commission headquarters shall be based in Khartoum and shall have a Southern Sudan Referendum Bureau in Juba [Article (8)(2)]. The structure of the Commission comprises the following: a) Commission Headquarters, b) Southern Sudan Referendum Bureau, C) Secretariat General, d) Referendum High Committees in the States of Southern Sudan, e) Referendum Sub-Committees in the counties, and f) Referendum Centers [Article (8)(3)]. The Commission shall be financially, administratively and technically independent and shall perform all its duties and powers as provided for by this Act with the utmost degree of independence, impartiality, transparency and integrity, and no one shall interfere in its affairs, duties, competences or limit its powers (Article 9).

Evaluation #3: The Southern Sudan Referendum Act was drafted and billed late by two-years of the agreed schedule. The National Legislature, being controlled by ‘unionists’, lacked the political will to do so, perhaps out of fear of NCP and other Northern political parties and even the unionists within the SPLM. However, at last, Mr. Speaker Al-Tahir signed the bill on 28/12/2009 after its ratification by National Legislature. Also President Al-Bashir signed it on 31/12/2009, making it to become a late-awaited law.

Notwithstanding, the question of who is going to head that commission and who will be the deputy, members and staff remains eye-brows’ affair to Southern separatist, especially after what have been encountered with Mr. Abel Alier and his deputy in the National Elections Commission (NEC) who compromised the rigging and other irregularities in the April 2010 general elections.

Although it is spelt out clearly that the Commission shall be independent, yet this shall be impractical under NCP/SPLM control and influence. The security demand and the bill of rights mentioned in the Referendum Act shall never be respected by the rivaling sides of the process as we witnessed it in last elections.

Although the Referendum Act is an excellent document with written checks as you can see from its articles, still, the end result of all these shall never be a finished case if it was not confirmation of “Unity” of the Sudan. Even rigging this referendum in favour of “Secession” shall never be a decisive solution for dignity of Southerners. Thus, whether carried out freely and transparently or not, the only gainers of this referendum shall be the unionists because all the law has blocked the “Independence” of Southern Sudan de jure.

Hence, the Referendum Act shall remain helpless even if it managed to regulate the process in the best way possible: From formation of the commission, registration of eligible voters and issuance of IDs, preparation of ballots and polling centers, invitation of national and international observers, voter high turn-out, sorting and counting of votes, declaration of results, to appeals and final court verdict.

We might have exalted Dr. Riek Machar and others in the SPLM for being Champions of the success of the referendum process, but at the end of the whole show, we would realize that they were only champions of unfinished comedy of the CPA implementation. The SPLM shall have proven itself to Southerners and the world by then that it was a champion without trophy. Other tournament shall be required by then to get the trophy!

4. All the above-mentioned legal stipulates were extracted from the CPA original text in the section of Machakos Protocol of July 20, 2002: That the people of Southern Sudan have the right to self-determination, inter alia, through a referendum to determine their future status (Article 1.3). At the end of the six (6) year Interim Period there shall be an internationally monitored referendum, organized jointly by the GOS and the SPLM/A, for the people of Southern Sudan to: confirm the unity of the Sudan by voting to adopt the system of government established under the Peace Agreement; or to vote for secession (Article 2.5).

But prior to these CPA articles it is stated clearly in the beginning of the text: That the unity of the Sudan, based on the free will of its people democratic governance, accountability, equality, respect, and justice for all citizens of the Sudan is and shall be the priority of the parties and that it is possible to redress the grievances of the people of Southern Sudan and to meet their aspirations within such a framework (Article 1.1).

It is also clearly indicated at the end of the text that: The Parties shall refrain from any form of unilateral revocation or abrogation of the Peace Agreement (Article 2.6).

Evaluation #4: The loophole of using the term “Secession” instead of “Independence” of Southern Sudan originated from the CPA text. Not only this, but also the agreement strictly warns the signatory parties of any tendency of violation and dishonoring of its articles. This means, if the SPLM overwhelming majority legislators at the Southern Sudan Legislative Assembly (SSLA) get tempted to declare the independence of South Sudan unilaterally from inside the parliament in Juba, this shall be considered immediately as abrogation of the CPA.

Nonetheless, it has never been agreed that the CPA shall continue to be in force or obligation after the end of the interim period (9th July, 2011). May be by then the South could declare its “War-of-Independence” and convince the North to recognize it by force like the case of Eritrea with Ethiopia. But will the SPLM/A garner a military victory by might of the gun, comes that time? I doubt if there will not be external mercenaries to help the SPLM/A new separatists by then? Perhaps, it would be kind of President Obama’s Administration to use The LRA Disarmament and Northern Uganda Recovery Act, passed by the USA Congress on 12th May 2010, to assist Southern Sudan (under SPLM mess) to defend the circumstance of the “War-of-Independence”. But again, will Obama be ready to anger the Arab and Muslim World by defending Christians in Southern Sudan? May be the USA pressure and lobby groups would influence him to act.

IV. What can we learn from Eritrea Referendum For Self-determination? The Eritrea method run as follows: capture your territory by military force first and then perform the referendum for self-determination later to baptize the de facto independence with democracy ritual for the sake of seeking regional and international diplomatic recognition. The smart thing with the Eritrean liberation leaders was their clarity on the status their people desired in determining their destiny with “Independence” not “Secession”.

The Eritrean War of Independence was a conflict fought between the Ethiopian government and Eritrean separatists, both before and during the Ethiopian Civil War. The war went on for 30 years until 1991 when the Eritrean People’s Liberation Front (EPLF), having defeated the Ethiopian forces in Eritrea, took control of the territory. Given the power of victory, the EPLF held talks with the Ethiopian new transitional government regarding relationship between the two territories. The outcome of those talks was an agreement in which the Ethiopians recognized the right of the Eritreans to hold a referendum on independence of their ‘circumstantial country’. The EPLF was also granted an observer status in the United Nations headquarters in New York.

In April 1993, in a referendum supported by Ethiopia, the Eritrean people voted almost unanimously in favour of independence under verification by the United Nations (UNOVER). The question used in the referendum ballot cards was: Do you approve Eritrea to become an independent sovereign state? Under this question were two circles of choice between (Yes) or (No). The result of the counted (Yes) box was 99.79% and that of the (No) box was 0.17% and the spoiled votes was 0.04% out of 1,062,410 registered referendum voters inside and outside the country. On May 28, 1993, the United Nations formally admitted Eritrea to its membership (See Wikipedia).

Is there a similarity between this scenario and the SPLM/A case in Southern Sudan? No! The SPLM/A has been vague and ambivalent with what it wanted for Southern Sudan. The SPLM/A fought for the ‘war-of-marginalization’ in the whole Sudan that it intended to transform into ‘New Sudan’. Nevertheless, during the peace negotiations under pressure and fatigue, the SPLM/A adopted the issue of the “right of self-determination” for the people of Southern Sudan through a referendum.

Will the SPLM/A manage to liberate the South so that it can become an independent new state in Africa like Eritrea? Yes, but only if it improves its leadership efficacy and work jointly, sincerely and selflessly with communities of Southern Sudan without discrimination or selfish preference.

“Without a governing vision people will lapse, as hey have in recent years, into a narrow selfishness” (Thomas E. Patternson, 1996).

V. Recommendations on What to Do:

1. Let Southerners prepare themselves to accept the referendum for the “Secession” of Southern Sudan (for the time being) by going out to register to get referendum identity cards once the Referendum Commission is formed and mandated to carry on with its agreed and legalized duties. Let them not worry about the outcome when they shall go to the poling stations to cast their votes, because the process shall only be a means for going for “War-of-Independence” after “Secession”.

2. Let Southerners swallow the bitterness of the past elections and unite to make the referendum a success. But they should never be fooled that the “Secession” should end in confirmation of “Federation” or adaptation of “Confederation”; it should confirm declaration of “Independence” of sovereign ‘Republic of South Sudan’.

3. Let Southerners forget that the SPLM/A may bring them “Independence” of South Sudan on a golden plate like the CPA, because this movement, is marred by leadership crisis and internal conflicts of visions and directions between its unionist and separatists. Even if the SPLM/A rigged the referendum in favor of “Secession”; this shall still remain incomplete victory to qualify the region for “Independence”.

4. Let Southerners not be hoodwinked that the SPLM/A shall ever be in control of Southern Sudan without support and cooperation from all Southern communities and their leaders. They need to recall that the SPLM/A did not capture the whole of Southern Sudan by force of gun, neither did the NCP/NIF crush the SPLM/A and other Southern rebel movements by military or any other force.

5. Let Southerners know it well that for the “Declaration of Independence” of the Republic of South Sudan to be successful like the Eritrean one, it shall need recognition of Khartoum (implicitly or explicitly) and the blessing of regional and international communities. Thus, intensive lobby for influence must be carried on to garner more international and regional support of South Sudan Independence, by thick or thin.

Dr. James Okuk is holder of PhD of Political Philosophy at University of Nairobi-Kenya. You can reach him at [email protected].