Whither Upper Nile?

“And the truth shall set you free” (John 8: 32)

 A Paper presented at the workshop of the Upper Nile Religious Initiative for Peace and Reconciliation, 9 – 10 December 2021, Juba.

By Dr Lam Akol

Introduction

The current division and schism in Upper Nile State on tribal basis was a creation of political actors who manipulated natural differences between some communities in the State to serve parochial interests that are harmful not only to Upper Nile State but to the whole country. At a time when our nascent nation-state should be devoting its energies toward nation-building and state-formation, our leaders are busy shredding us apart on tribal basis. If such a scheme were to succeed – and God forbid- we shall find ourselves as more than 64 non-viable entities.

Prior to Independence, the Upper Nile region was well known for its accommodation, tolerance and peaceful coexistence of its tribes to the extent that its capital Malakal was a real melting pot where it was not uncommon for its residents to speak not less than three local languages. What went wrong?

Boundary disputes are a common phenomenon amongst our communities even within the same community, and some of these disputes, history tells us, have led to conflicts. However, they were eventually settled not through the use of state power in favour of one among the contestants but by following the path of dialogue and reconciliation among the parties involved. Traditional wisdom was the key. This was how we came this far as neighbouring communities living side by side and marrying among themselves.  This golden rule was violated on 2 October 2015 when the President issued a decree dubbed “Establishment Order No. 36/2015”¹ that redivided South Sudan into 28 States. The decree introduced nothing progressive in terms of governance and powers of the States vis-à-vis the national government.  The only discernable aspect, and a disturbing one at that, was the gerrymandering of boundaries in the States of Upper Nile region in favour of the Dinka neighbouring Chollo (in Upper Nile and Jonglei States) and Nuer (in Unity State). The Dinka in northern Jonglei State were detached from that State and annexed to a new huge State extending from the borders with Sudan to Jonglei State south of Sobat river so as to create a Dinka majority in it. The Chollo whose ancestral homes are located east of the White Nile were pushed out of their land using the SPLA and local militia and were told to go to the western bank of the White Nile. Most of them voted with their feet and took sanctuary in the UN-protected “Protection of Civilians Sites” (POCs) and Refugees Camps in Sudan.  Chollo land was occupied by the Dinka who are still there at the time of writing. So, it wasn’t only land grabbing but ethnic forced displacement par excellence. This huge State comprising seven counties, when there were single county States in the same decree such as Gok State, was named “East Nile State” to underscore the point that the boundary between Chollo and Dinka was the White Nile; a point belied not only by historical facts but also by the very recent extant situation prior to the issuance of the infamous decree. On 1 February 2016, East Nile State Secretary-General issued an order laying off all Chollo and Nuer civil servants in the new State. Thus, the ethnicization of the civil service was complete.

This grabbing of Chollo land was resisted by Chollo people and some of their youth took up arms to get their land back. They joined hands with other South Sudanese that were fighting the Juba government for their own reasons. To bring the war to an end, the Intergovernmental Authority on Development (IGAD) undertook in 2017 a mediation between the South Sudanese warring parties that culminated in September 2018 in the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS). The issue of grabbed land was central during the negotiations and persisted until after the signing of the Agreement as reflected in the Independent Boundaries Commission and the Technical Boundary Committee (TBC). The reports of the two bodies and the subsequent discussions on the number and boundaries of States in South Sudan developed a consensus among the South Sudanese as well as among the mediators to revert to the ten States. It was only the regime in Juba that held out. On 15 February 2020, the President issued a decree reverting to the ten States thus closing a dark chapter in our history, or was it?  It was clear from the text of the decree that the decision was to reestablish the intra and inter States boundaries prior to 2 October 2015, the day the Establishment Order was issued. Indeed, this understanding was confirmed by the joint committee of the four political Parties to the Agreement that was charged with the establishment of the transitional government on both the national and sub-national levels. The 79 counties that comprised South Sudan with their known boundaries were adopted. In particular, the Upper Nile counties were not in dispute².

There was a lot of haggling on the allocation of Governors of the States to the various Parties to the Agreement. The bone of contention was none other than Upper Nile State. This went on for four months. Eventually, it went to the SPLM-IO. Then another issue sprang up. Contrary to the provisions of R-ARCSS, the President rejected the nominee of SPLM-IO for Governor of Upper Nile State and demanded from the SPLM-IO Chairman who doubles as the First Vice President to nominate a replacement. In the meantime, the State went without a Governor while insecurity was on the rise. The wrangling went on for six months resulting in the President having his way and the Chairman of the SPLM-IO nominated a replacement who was received with alacrity by the President. According to him, he had to rush to issue the decree appointing him “lest Dr Riek Machar may change his mind”³. In the allocation of responsibility sharing in the ten states, the position of the Deputy Governor in Upper Nile State had gone to SSOA⁴. The President demanded the position from his SSOA allies and got it. He appointed someone from the Padang Dinka who later became for all practical purposes a Co-Governor sometimes with veto power. Nothing the Governor could do without his sanction. Two heads were and still are running the State. Little wonder things got stuck.

The Upper Nile State Conference

 During the wrangling over the position of Governor of Upper Nile State between the two principals in the Agreement, the Presidency held its 4^th meeting on 9 December 2020. One of the resolutions taken in that meeting was:

“That the Revitalized Government of National Unity holds a conference in

       Juba for all the Communities of Upper Nile State to discuss ways and   

       means of resolving any tribal or communal differences and to engender

       harmony in the State prior to a final decision on the appoint (sic) of the

       Governor of the State”⁵.

Thus, the appointment of the Governor became contingent on holding the Upper Nile State Conference and “resolving any tribal or communal differences and to engender harmony in the State”. This decision was contrary to the letter and spirit of the Agreement⁶ which mandates the Parties and not the communities, not even the Presidency, to appoint transitional Governors. In fact, the other nine Governors were appointed by the Parties not through recommendations from the communities in their States. This rider was also more likely to turn the conference into another forum for political deadlock than “resolving any tribal or communal differences”. It was the spanner in the works and the noble idea of holding the conference was thrown into doubt right from the word go.

Following that resolution by the Presidency and based on it, two conferences were proposed by the top leaders in the government. The first proposal for an Upper Nile State Conference came in a press statement issued by the First Vice President dated 13 December 2020⁷ in which he announced the convening of an Upper Nile State Conference under the patronage of the President and chairmanship of the First Vice President. The conference was to take place on 16 – 19 December 2020 with the objective to: provide a platform for the people of Upper Nile to dialogue among themselves and address their grievances; enhance the process of peace, reconciliation, healing and unity among the affected communities; restore the destroyed social fabric and peaceful co-existence; and encourage the return and resettlement of the internally displaced persons, refugees and POCs residents in Malakal and elsewhere into their homes. The participants were to come from inside South Sudan and neighbouring countries. Each county was to be represented by only five persons and the POCs in Malakal by thirty persons making just over 20% of the total conference membership representing the people who were resident in the State.

The conference was met with difficulties from the very start. The Padang Dinka issued a statement the same day condemning the move as ‘unilaterally (sic) move’ by Dr Riek Machar and decided not to attend the conference⁸. The group argued that “Dr Riek Machar decision to hold a meeting in Juba is contrary to Presidency press release, which stated that it is the President who should issue a decree for preparation of the reconciliation conferences for the communities of Upper Nile State”. Curiously, another reason given for boycotting the conference was that “Dr Riek Machar as chairman of SPLM-IO is the cause of destruction and killing of innocent civilians in Padang areas and his forces are still occupying Padang areas”. Other quarters also voiced their opposition to holding the conference as proposed. Even those well-disposed for holding the conference advised for postponement given the short notice for its convening. In view of the big opposition against holding the conference as proposed, the office of the First Vice President announced on the eve of the conference, that “the planned ‘Upper Nile State Conference’…. has been postponed due to delays in preparation arrangements”⁹. Nothing was heard again about the conference until the new year.

On 5 January 2021, the President issued Presidential Order No. 01/2021 for the “Formation of Steering Committee to Convene the Upper Nile State Conference”¹⁰. The committee was tasked, inter alia, to: “develop an agenda and themes that will achieve the objective of the Conference, ensuring that it addresses the challenges of the State and find amicable solutions for harmony, security and peace in the State” and pre-empting the conference resolutions, the steering committee was to “propose a mechanism, to be under the State administration, to follow up and ensure the implementation of the conference resolutions and regularly reporting to the Presidency”. The steering committee was to be chaired by none other than the President himself with the First Vice President as the Deputy Chairperson and membership of the Minister of Cabinet Affairs, the two Presidential Advisers, the nine Governors of the other States and representatives of the Parties to the Agreement. A rapporteur who was the Director of the Sudd Institute was also included as a member. There was no mention of the representation of the communities except in the reference that “representatives of the Parties to the Agreement and inclusive of the five (5) communities in the State”. Therefore, representatives of the communities have to be nominated by the Parties and not participate in their own right, rendering them part and parcel of the political stalemate. On 6 January 2021, this author, who hails from the State, issued a statement¹¹ in which he pointed out that “the conference is not owned by the people of Upper Nile State. As has already been mentioned, it is being controlled by a top executive of the government in Juba for reasons best known to them” and noted that the Presidential Order “in its current form, it is unlikely to bring about the desired result of reconciliation, healing and unity of the communities in Upper Nile State”. The author appealed to his brothers and sisters in Upper Nile State “that we should not allow ourselves to be used as pawns in the chessboard of political gimmickry in Juba”.  He concluded thus:

“We need to talk to each other rather than at each other. Therefore, we

     should insist that the Upper State Nile Conference is for our communities

     and must be owned and controlled by them. We are capable of solving our

     own problems and face together the challenges ahead”¹².

 On Thursday 28 January 2021, the Chairman of SPLM-IO yielded to the President’s insistence that he withdraws his nominee for the Governor of Upper Nile State and recommended a replacement, on Friday the President issued the Republican Decree No. 05/2021 appointing him as the Governor. As soon as this chapter was closed, nobody talked about the Upper Nile State conference anymore confirming the earlier fears that the notion had nothing to do with reconciling the communities of Upper Nile State but was just a ploy to advance narrow political interests in the State.

The Current Situation in Upper Nile State

 No sooner was the issue of the Governor overcome than a new problem cropped up. On 25 February 2021, some Padang individuals petitioned the Presidential Security Adviser questioning the decision to revert to 79 counties as they were before the redivision of the country into 28 States¹³. They demanded that the name “Makal County” be dropped and replaced by “Ogot (sic) County” and its headquarters transferred from Malakal to Wau (Shilluk) west of the White Nile based on a resolution taken by the Business Committee of the Council of States on 16 October 2017¹⁴.  Whether the Business Committee can take a decision on behalf of the Council of States is debatable. What is central here is that such decisions were taken within the context of the 28/32 States which were rendered null and void as soon as the country reverted to the ten States and 79 counties. This is the case all over South Sudan where at one point during that period the number of counties rose to more than 300. All these were abolished on 15 February 2020 when the President issued the decree reverting to the ten States and the matter was confirmed by the Joint Committee of the Parties on 27 October 2020 referred to earlier. Instead of telling the petitioners that their complaint had no basis in the Revitalized Peace Agreement, their petition was used as an excuse to throw the entire agreements, especially in Upper Nile State into question. Meetings were held to “resolve” the matter. One such meeting was chaired by the First Vice President and included the Presidential Security Adviser, Minister of Cabinet Affairs and the Governor and his Deputy. After that meeting on 12 March 2021, an upbeat Minister of Cabinet Affairs, Dr Martin Elia, announced that there was an agreement to detach Malakal town from Makal County and take the county’s headquarters to Wau (Shilluk); as the Padang Dinka had demanded. He did not explain what provision of the agreement or constitution gave them power to take that decision. A beleaguered Governor struggled hard to extricate himself from the decision in the face of the tide of opposition protests that poured on him from Chollo and other fair-minded people. He tried to tell them what they wanted to hear but the realities on the ground in Malakal afterwards showed exactly where he stood.

The government of Upper Nile State was announced on 2 March 2021. There was no mention of Makal County and no commissioner for it was named. On the 27^th of March, the Governor moved from Juba with his cabinet to Malakal. While the ministers and commissioners were taking the oath of office, a crowd that had gathered to welcome them was shot at by Dinka militia in the town killing three of them and wounding more.  Not long afterwards, the Governor’s attempt to get his choice of the Mayor for Malakal town take the oath of office was quietly dropped against a threat from his Deputy that violence will erupt if he went ahead with the swearing-in of the nominee. The ugly experience of a few days earlier had sent a clear message to him that this was no empty threat.  When the Commissioner of Makal County was later appointed it was the Governor who told him to go to Wau (Shilluk). The mask has fallen. The Commissioner asked him to put that in writing so that he can show it to the citizens of the county, he declined and hence the Commissioner continues to be in Malakal town. Nothing has changed in Malakal and things continue as if it is the capital of Central Upper Nile State. The residences of individuals in Malakal continue to be occupied by armed groups and Chollo villages south and southeast of the town on the eastern bank of the White Nile continue to be occupied by the Padang Dinka some of whom are from Jonglei State.  The Governor is caught between the rock and a hard place. On the one hand, his people want the agreement implemented to the letter so that they can return to their ancestral homes, on the other he is under pressure from Juba to preserve the status quo ,i.e., to keep the Upper Nile State out of the R-ARCSS. Matters for him are made worse as his boss, the SPLM-IO Chairman, champions the removal of the county headquarters from Malakal town thus in agreement, wittingly or unwittingly, with those who deny the presence of Chollo east of the White Nile. What is special about Malakal administratively? For instance, Juba is host to the national capital, Central Equatoria State, Juba County and Juba City Council without a fuss. Therefore, what is happening in Malakal is not an administrative issue but a claim over land. We have to call the spade a spade, not a big spoon. The wobbly speech of the Governor in the last Governors’ Forum is a testimony to the dilemma he is in. But sooner or later as his actions and omissions continue to favour the powers that be, rather than the faithful implementation of the R-ARCSS, the citizens of Upper Nile State will discover where he exactly stands.

In Malakal at present, in the ninth month, since the Governor set foot there, there is no State police, prison warders, wildlife personnel or civil defence soldiers. The town continues to be under the control of a tribal militia whose orders do not emanate from anybody under the Governor. The question is: why? If the government in Juba had wanted to establish law and order in the State let alone Malakal town this would have been done easily by providing the Governor with the law enforcement units mentioned above to take charge of security. Once, security is established and the houses and lands are vacated by the illegal occupants, peace will prevail and it would be easy to persuade the refugees and IDPs to return home. There is no other way.

Conclusion

 The idea of Upper Nile State Conference is a noble one and must be pursued with vigour so as to bring to an end the schisms and divisions among our communities and restore the shattered social fabric in the State. However, the idea has been previously used to promote political schemes of some Parties to the peace agreement rather than as a forum for the Upper Nile State communities to discuss their grievances against each other and in the typical African tradition make reconciliation and healing.

It is also fairly obvious that none of the two principals in the peace agreement,

who happen to be at the apex of the executive of the national government is seen to be impartial enough to enjoy the trust of all the communities the conference is meant to reconcile. Therefore, their direct involvement will be counterproductive as we have seen. Their role should be to provide assistance as requested by the organizers of the conference.

The security situation in Upper Nile State presently is man-made and could drastically change for the better if the powers in Juba would like it to improve.

The initiative of the church is highly welcome. The church’s impartiality is a matter of faith and their contribution towards the liberation of this country is undeniable. All should rise to the occasion and help them succeed.

Recommendations

• All Parties to the Revitalized agreement should recommit themselves, in deeds not only words, to its faithful implementation in letter and spirit.
• The decision of the President to revert to the ten States in the country means going back to the political and administrative situation prior to 2 October 2015. This decision has been implemented in all the States in the country except in Upper Nile State. This shouldn’t be the case.
• The national government should provide the law enforcement agencies in Upper Nile State with the military hardware required to reestablish security there under the government of the State.
• All communities should stay within their boundaries prior to 2 October 2015. The Upper Nile State Conference is the most appropriate forum to raise any claims to land. If they choose arbitration that should also be allowed.
• An Upper Nile State Conference is a must. But it must be owned and controlled by the people of Upper Nile State under an impartial mediator/facilitator such as the Church.
• The traditional authorities in the five communities of the State must be invited to the conference on their own right to discuss their grievances and pronounce on their boundaries. They should not be nominated by political parties.
• All maps and literature on the land in dispute must conform to the adopted 1/1/1956 boundaries.
• It is advisable to hold the conference in the capital of the state, Malakal. This will send the right message that the town is safe for all.

Notes

• “Establishment Order Number 36/2015 for the Creation of 28 States” in the Decentralized Governance System in the Republic of South Sudan, Republic of South Sudan, Juba, 2 October 2015.
• Joint Committee of the Parties, “Agreement on Structures and Allocation of Responsibility Sharing in the ten states and two (2) Administrative Areas in accordance with the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS)”, 27 October 2020, Table 17, p. 20.
• A video recording of the statement by the President in the swearing in ceremony of the Governor and Deputy Governor of Upper Nile State, Saturday 30 January 2021.
• “Agreement on Structures……, op. cit, Table 1, p. 5.
• Dr Martin Elia Lomuro, Press Statement, 9 December 2020.
• Article 1.16 of the R-ARCSS.
• Dr Riek Machar Teny-Dhurgon, Press Statement, 13 December 2020
• Padang Community Union, “Rejection of the Upper Nile Conferences called by Dr Riek Machar”, 15 December 2020.
• Executive Director, Office of the First Vice President, Press Statement, 15 December 2020.

10- Salva Kiir Mayardit, Presidential Decree No. 01/2021, 5 January 2021.

• Dr Lam Akol, “Upper Nile State Conference: keep parochial politics out of it”, 6 January 2021.
• Monyjok Kong Monyjok Agook and others, “Support the Council of States Resolution of changing Makal county to Ogot County”, 25 February 2021.
• Council Business Committee, Council of States, “CBC Resolution No. 21/2017”, 16 October 2017.