Are President Kiir and Vice President Riek violating CPA?

By Zechariah Manyok Biar

September 22, 2010 (KHARTOUM) — As less than one hundred and ten days remain before the day of the referenda in South Sudan and Abyei, things are becoming hot between the National Congress Party (NCP) and the Sudan People’s Liberation Movement (SPLM). NCP officials are angered by the recent remarks from the President of South Sudan General Salva Kiir Mayardit and his Vice President Dr. Riek Machar Teny about the inevitability of South Sudan’s secession in the upcoming referendum. NCP officials complained that the statements of Southern top leaders have, as Sudan Tribune paraphrased it, “fallen foul of the CPA and shown the SPLM’s lack of concern for the welfare of the south and the entire country.” NCP’s Media Secretary Fathi Shilah is reported to have cited some CPA’s Articles, stating that the signatories of the CPA should work together to promote Sudan’s unity.

Fathi is right. What may differ is the understanding of what these Articles really say in relation to what President Kiir and Vice President Riek have said. Article 1 (1) of CPA reads: “That the unity of Sudan, based on the free will of its people democratic governance, accountability, equality, respect, and justice for all the 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 South Sudan and to meet their aspirations within such a framework.”

There are many words that NCP officials are overlooking in this Article. They are just caught up with the idea of the Parties working for unity. The first word they overlook is the word “priority.” Priority means first thing. When first thing does not work, then you move to second thing. Second word is the “free will of the people.” People of South Sudan have the right to choose unity when they are convinced through action that the third word, their “grievances” are “redressed” through “democratic governance, accountability, equality, respect, and justice for all the citizens.”

If one of the above words is not met, then the obligation of the Parties to work for unity of Sudan is overridden by the free will of the people and leaders can tell others that the free will of the people seems to be prevailing. That is exactly what President Kiir and Vice President Machar are saying. They are just reporting the will of the people. They are not saying that they are swaying the will of the people. President Kiir said, “At the moment all signs point to the fact that on January 9, 2011 Southern Sudanese people will vote overwhelmingly for their own independence.” Is there any violation of the above CPA Article in this statement? I don’t think so. Vice President Dr. Machar was also just reporting the free will of the people when he said that China should prepare for possible independence of the region so that it would not come as a shock.

When it comes to the Article about making unity attractive, Article 1 (5.5) reads: “Design and implement the Peace Agreement so as to make the unity of the Sudan an attractive option especially to the people of South Sudan.” Making unity attractive here does not mean that leaders in South Sudan should not say anything that supports separation. What is meant by making unity attractive is stated in Article 1 (5.4) of CPA: “Formulate a repatriation, resettlement, rehabilitation, reconstruction and development plan to address the needs of those areas affected by the war and redress the historical imbalances of development and resources allocation.” Are South Sudanese satisfied with these services mentioned in the CPA? Not at all. Was it SPLM and President Kiir’s fault that these provisions were not met? Was it not Vice President Taha of NCP who recently said that development in South Sudan did not happen over the last five years because the international community did not honour its pledges?

If Taha and his NCP knew that not implementing provisions about development in the South would make people in the South vote for secession and still did nothing to fill in for the failed pledges of the international community until this year, then why would NCP officials now blame President Kiir and his Vice President for reporting the will of the people?

Even if President Kiir and Dr. Machar were campaigning for secession, they would still be following the law because they had given unity a priority and it did not work. Also there is no provision in the CPA which prevents Southern leaders from campaigning for secession if they are dissatisfied with unity. NCP officials together with some SPLM officials are now campaigning for unity but no Article in the CPA says that they should do so. Making unity a priority does not mean campaigning for it against the free will of dissatisfied Southerners; it means making it attractive by satisfying the voters through developmental activities that show the usefulness of unity.

NCP appears to respect CPA when something is said against their interest, but they disregard it when it does not serve their interest. When opposition parties demonstrated against some laws in the system in 2009, for example, some opposition leaders including SPLM top leaders were arrested and most of them including Yassir Arman of SPLM were tortured. But Article 1 (6.2.4) of CPA makes it clear that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Why did NCP that claims to respect CPA Articles so much violate this Article?

They may argue that the demonstrators were suspected of crime against state. Good. But CPA in Article 1 (6.1.5) (c) says, “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” The tortured opposition leaders were tortured before proven guilty because they were later released without trial, meaning they were innocent even though they were tortured. Where were the preachers of CPA legality or is CPA only legal against SPLM leaders who talk about secession?

My argument can go on and on with examples against NCP’s violations of CPA, but because of space I would conclude by saying that NCP is trying to find scapegoat on legal ground, not knowing that its officials are swallowing elephants and spitting out gnats. Our eyes are wide opened to see this.

Zechariah Manyok Biar, BA. Edu., MACM, MSSW. He can be reached at [email protected]