Fears and hopes about Referendum

By James Okuk

September 7, 2010 — Right from its independence the Sudan have been in search of defining itself. The few Sudanese who got the opportunity to be handed with the independence valuables like power and wealth, did not hesitate to try shaping the country in their own image. They 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 crises affect international interests, the Sudan People’s Liberation Movement/Army (SPLM/A) 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 CPA was 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. The referendum for self-determination for the people of Southern Sudan marked the defining section of the CPA, but now as its timing approaches nearly many fears of distrust have pop up to overshadow the hopes.

There is no doubt that the agreed referendum for self-determination for the people of Southern Sudan could collapse if mishandled. 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 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 external think-tanks for back-ups, and have often been ambivalent on the issue of separation of South Sudan. Mistrust and counter accusations have become the common norm of these two major CPA’s partners.

The enemies of South Sudan independence will not be sleeping until they see the unity of the Sudan in a coffin with the last nail hit on it. The Sudanese Vice President, Ali Osman Mohamed Taha, have already vowed that he and other unionists shall never give up on unity of the country. 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.

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 at risk for the referendum. 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 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 now.

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 too 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. This is a tough homework, given the current situation of human and natural disasters in Southern Sudan.

From the homework, the following scenarios on the South Sudan referendum exercise could could be drawn with likeliness:

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 be executed using Southern Sudan Referendum Act (2009) as some provisions shall require the mentioned 9th January 2011 date of declaration of the plebiscite polling to be amended to suit 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. 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 out their duties and enjoy their rights in time. Funding could be another reason to slow down the process though some well-wishers worldwide are willing to help. The Government of Southern Sudan (GoSS) has also pledged to set aside some fund for the referendum. Further, the Sudan government 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 seems to be likely but let’s give out 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 and 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 third scenario is the most likely now because unionist politicians’ voices seem to be echoing it 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.

Regarding the recogniton of South Sudan as a new country,there is no doubt that the international and regional communities will be compelled to do this. 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. 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. 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. 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.

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.

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 of South Sudan is coming tomorrow!!!

Dr James Okuk is reachable at [email protected]