Political and legal implications of exclusion of Abyei in the Constitution of Republic of South Sudan 2011

By Dhieu Mathok Diing Wol

In examining documents inked by the NCP since 2005, a lay person in the discipline of law can easily reach a conclusion that Abyei would have been part of Bahr el Ghazal if its referendum was carried out simultaneously with the Southern Sudan referendum on the 9th January 2011. In looking and analyzing the Comprehensive Peace Agreement (CPA), the Interim National Constitution of Sudan (INCS), Interim Constitution of Southern Sudan (ICSS) and Permanent Court of Arbitration, Abyei Tribunal Award (PCA/ATA) a person could immediately begin to a belief Mr. Abel Alier on what he wrote in his book “Too Many Agreements Dishonoured”, if he/she were doubtful about credibility of the story.

Maybe what are important to be known by the readers are different positions of the parties during negotiations before the final document was produced and signed in Kenya. It is the hypocrisy of that stage hindering the implementation process. In Naivasha the NCP totally refused to discuss issues that are beyond 1/1/1956 South- North Sudan borders. They said these issues were not provided for by Mashokos basic principles document. Meanwhile, the SPLM was advocating retransfer of Abyei to Bahr el Ghazal through an administrative order from the Presidency. Their logic was that, since the area was transferred to Kordofan by the colonel regime administratively the government in Khartoum must revise that decision by issuing another administrative order. The moderators who were facilitating the process, headed by USA came up with the middle position which compromised both positions of the SPLM and NCP, arguing them to accept the proposal as a win-win situation.

It is worth mentioning that, the silence of Machakos Agreement, the guiding document on the peace process, about the status of the three regions of Abyei, Nuba Mountains and Blue Nile, cemented the position of the NCP delegation and gave it a kind of legitimacy to maneuver around issues of the three areas.

After the SPLM delegation accepted the position paper of the mediators presented by US, the NCP requested further consultation with its quarters in Khartoum before giving in their final opinion. The delegation traveled to Khartoum and conducted a lengthy discussion in the Party’s Leadership Office from 8:00 pm to 3:00 am on the other day. The resolution was passed as proposed by a member from South Sudan in the meeting that the issue of Abyei should be referred to Southerners who are holding different positions in the regime various institutions to come out with the resolution which will be used as party’s position in Niavasha. Everybody in the meeting excited for this amicable suggestion from Southerners, because the NCP was looking for an excuse to hang on the blame, and if this scapegoat could be a Southerner, it would serve the purpose to the maximum. Unfortunately, the matter failed as many Southerners refused to involve themselves in this crucial matter. There was no other alternative for the NCP rather than accepting American document despite their reservations with the aim of going around it during the implementation processes.

The placing of Abyei under the presidency with dual citizenship from both the Bahr el Ghazal and Kordofan regions in the interim period was a way of harmonizing different positions until its referendum is carried out.

Notwithstanding, the Abyei Protocol is the most document, among the rest highly affected by many violations and negligence in terms of implementation percentages. The formation of administration that governs the area took three years to be constituted. The area has been denied its 2% ratio of its oil revenues. The NCP militia and Sudan Armed Forces (SAF) elements frequently attacked the Abyei and murdered innocent civil population, roads leading to the area were continuously blocked to obstruct the repatriation process to Abyei and the list of violations is long.

The thunderstorm made by Bashir’s recent speech in South Kordofan when he said, they would not recognize independent of South Sudan if its Constitution includes Abyei, should be considered as a statement without political and legal ground that had driven by elections’ fever and believed to be motivated by eventualities on ground that his party’s candidate for the gubernatorial position in Kadogeli Ahmed Huron was facing a serious isolation and expected to lose the seat in favor of the SPLM candidate Gen. A/Aziz el Helo, hence needs strong support by sending messages, including to threaten of going back to war.

As mentioned above, the CPA provisions especially that pertaining Abyei Protocol, articulated clearly that the referendum in Abyei should be carried out concurrently with Southern Sudan referendum to know options of the Nine Chiefdoms of Ngok Dinka and other Sudanese residence of Abyei, whether they remain in Kordofan or go back to Bahr el Ghazal. During the negotiations in Naivasha, the critical question which came up on the table was what the territorial entity that was transferred from Bahr el Ghazal to Kordofan by the Colonel administration in 1905? In an attempt to answer this question, the Abyei Boundary Commission (ABC) was formed and given the task of identifying Abyei territory transferred to Kordofan in 1905.

The Term of Reference (TOR) was made for its smooth functioning and its membership drawn out of 15 members representing SPLM, NCP and experts from the mediating countries on equal bases, with each group having five members. The most important article in the TOR was that the findings and reports of ABC are compulsory and final to the parties. When the Commission submitted its reports to the leadership of the two parties, the NCP refused the reports on ground that the ABC violated its mandate in identifying the territory of Abyei area by stating in its reports that the Commission had not found exactly the area which was transferred from Bahr el Ghazal to Kordofan in 1905. The argument of the NCP was that the ABC should have seized continuing in rendering irrelevant reports, which violate its mandate since it failed to identify the contested area. According to their opinion, it was a total breach of its TOR.

The issue of eligibility for the voting which currently becomes a central problem was not believed to a serious matter during the negotiations, so the question that who will and will not vote in the referendum was not paid much attention and even escaped schedules and matrixes of the implementation modalities. The overwhelming opinion within negotiating groups was that the problem of Abyei was more associated with boundaries rather than voting eligibility, hence the matter was geared towards solving that particular problem and subsequently taken to The Hague for the arbitration as a consequence of continuous failure to reach a solution after long engagement.

In The Hague, the Court identified clearly, the boundary of the Dinka Ngok Nine Chiefdoms regarding northern borders with Kordofan as requested by the parties when presenting their position papers to the Court. Each party assured the tribunal and audience of their compliance with the Court ruling, whatever would be the result. The NCP accepted the ruling of PCA in the first place with ululations and acclamations, by shouting God is great, God is great, indicating that they won the case because ten kilometers were recovered from ABC reports and annexed to Kordofan by the Court decision. Celebrations were carried on in Khartoum, Fulla, Mujeld and Miaram. They admitted publicly that God of Mohammed the messenger of Allah didn’t lead them down by proving them right against the position of the ABC. To disappointment of every person concerned, the NCP leadership exactly did it in a manner they had done it during the commissioning of ABC when they expressed their readiness to respect the outcomes of ABC reports and later declined from its declared position.

Within few months and after careful studies, the NCP found that the ruling of the Court was not up to their expectations and the area which was annexed to Kordofan by the decision of the Court has only one significant oilfield (well). The remaining part has a bulk quantity of petroleum, which made the NCP changed their minds and started creating other strategies to escape the implementation of Abyei Protocol, including involvement of Messieria nomads in the new strategies and scenarios.

It was clear that the problem has nothing to do with grazing areas for Messieria tribes, because the PCA gave the nomads’ grazing rights in Abyei and beyond. In addition, all regions bordering the North like Northern Bahr el Ghazal, Unity, Upper Nile and Warrap welcomed the decision of the leadership in the South allowing pastorals from Arab nomads in South Kordofan, South Darfur, White Nile and Blue Nile to using their grazing lands. This negates the NCP allegations that the problem is connected with communal grazing rights.

People are totally confused on direction chosen by the NCP, although the matter is different completely from what they are engaging the South and has nothing to do with Messieria nomads but believed to be connected with the oil in the area. It was reported that in one of the meetings of the technical committee a senior NCP boss came up with an idea of giving them a certain percentage in the oil produced in the South after the independence such that they allow Abyei to go to the South. The SPLM asked them to submit a written position on this matter and put in the agenda to be discussed in the next meeting. However, to surprise of the Committee the NCP representatives declined their position and again went back for more camouflaging, which made people to question their seriousness about peace in the area. This indicates clearly that Abyei is a victim of known motive, which turned to be unknown by the NCP.

In analyzing legal framework of Abyei, since the parties to the Peace Agreement agreed that Abyei is governed through the presidency with dual citizenship in the North and the South, prior to the referendum in the area, it becomes an obligation that necessitated constitutional provisions, both in the national and Southern Sudan levels such that this status is regulated by the two constitutions, so Abyei appeared in article 183 of INCS and in article 176 of ICSS and the two versions were identical and a photocopy of one another. The independence in South Sudan necessitates reviewing of constitutions in the two entities to comply with emerging situation, Khartoum proceeded Southern Sudan in amending its constitution without bringing the issue into the forum of the joint political committee to recommend away on how sections, articles and provisions concerning Abyei, are to be treated since the Presidency will not be there on the 9th July 2011. Furthermore, the US Presidential Envoy in Sudan and African Wise Men Committee chairperson Mr. Thombo Mbeki the former President of South Africa, failed to bring the matter into attention of the Presidency in their regular meetings, since they couldn’t resolve the issue before July the 9th 2011. NCP decides to keep Abyei in its constitution on the same condition that the area will be administered under the presidency. Nobody has a concrete answer on type and formation of the presidency in Khartoum after the 9th July 2011 except NCP. Will the President Basher appoint a son of Abyei among SPLM members to be the
First Vice President (FVP) before the referendum takes place in the area?

Because H.E Salva Kiir Mayerdit whom Abyei citizens have a trust upon him will not be there, and definitely going to be a President of his own in a newly emerging state of the Republic of South Sudan. So what type of the presidency that Abyei continues to be governed under it? This is an important question that needs convenient answer from the NCP leadership before Abyei continued to be part of the North after secession of South Sudan.

The inclusion of Abyei in the constitution of the North without consulting SPLM leadership and the joint political committee of peace partners made South Sudan to act on the same footing by including Abyei in their constitution. It was unfortunately that the very words used by the President Basher in the public rally at Mujeld that he will not recognize the independence of South Sudan if its constitution includes Abyei, was stated in a form it came up in the meetings of the Constitutional Review Committee (CRC) by one of the members. How this statement reached out NCP and Basher is an issue of integrity and credibility from members of the Committee, who were supposed to keep their deliberation secret and in the context of the Committee. If the leaking-out came from the NCP member- which I personally believed not to be the case- then it was a great treason from that member because what has been prepared to be a constitution of South Sudan, which has no connection with the North. When the North prepared their constitution in which Abyei was included, the South was not informed. Therefore, why should we involve the North on our affairs? The NCP declared early in February that they have effected disconnection with Southern membership. In this case, our brothers shouldn’t be continued reporting affairs of South Sudan to Khartoum? I believe, the NCP members from the South are not required to make briefings to Basher and his party about the process of the constitution in South Sudan.

In ICSS, the article 176 tackled the issue of Abyei in the same manner the INCS prescribed it. The CRC decided to bring this article forward with modifications as part of article 1 in the constitution, the definition of territory of the Republic of South Sudan, which should be defended by any Southerner throughout external aggression and maybe is what made Basher to be defiant in Kordofan. The latest news was that those parties who reserved inclusion of Abyei in the constitution have come back to their sense and accepted the CRC position. The document was passed by All Political Parties Forums (APPF) and the Council of Ministers (CoM) with few changes, and now it is before the SSLA. The amendments proposed by the CoM was that the sub-article on composition of National Assembly (NA) was added as subsection 3 to give the President powers to appoint- beside the membership of current SSLA and those coming from National Assembly in Khartoum- additional 66 members to NA to represent political parties, Martyrs’ families, War Wounded, War veterans, Fait-based Groups and Civil Society Organizations.

It was believed that the meetings of APPF would have concentrated on the issues of decentralization, distribution of powers and allocation of resources to different levels of the government, rule of law, independence of Judiciary, cluster of freedoms, democratic process of governance and the process leading to the formulation of the Permanent Constitution. This was not the case; instead, the leaders concentrated their concern on the formula of participation in the Transitional Government and deletion of Abyei from the Constitution. It was reported that some political parties were using the issue of Abyei as a card to nail SPLM such that it could accept their conditions and make compromises on certain issues. One of the participants from these political parties went as far calling for implementation of Sharia laws and creation of Islamic courts in South Sudan?

They justified their demand by saying; the North will not recognize our independence if Abyei is part of the constitution. However, the reality of the matter is that they failed to realize the South does not need recognition from North Sudan to declare its independence; it could be a privilege but not a necessity. President Bashir already accepted the will of people of South Sudan on the 7th January 2011 when he received results of the referendum from Southern Sudan Referendum Commission (SSRC) and gave statement in many occasions that he, his party and the government recognize the separation of Southern Sudan. Khartoum nominates Ambassador Mahaweya el Tom as its representative in Juba which means they recognized sovereign state of the Republic of South Sudan. Basher may call back Ambassador el Tom to exemplify the dissatisfaction of Khartoum on how issues of the bilateral affairs are going in Juba. It can go up to military confrontation between the two countries if the degree of difference is severe; like what happened between Ethiopia and Eretria. Anything after the President Basher declared his satisfaction with the results of the referendum should be considered as diplomatic crisis which can be sorted out bilaterally by the governments in the two States. Therefore, the future of South Sudan is not on hands of Bahir anymore. Khartoum may decide to reserve about the independence of South Sudan but cannot stop it. It is the Khartoum to suffer in the events of unrest diplomatic relations between the two governments, because the South has nothing to lose, instead it is the North to lose revenues extracted from cost of hiring pipelines, land and port fees. The NCP leadership in Khartoum has developed wrong presumption that South Sudan is weak. They have two things in mind:

Firstly, they think that the South is depending on oil in its budget by 99%, upon which its management and marketing are done in Khartoum. The best way to address this chronic problem is by constructing pipelines to Mombasa or Djibouti, which will not take time to be on ground. This should constitute an alternative plan to put an end the issue of trading in petroleum with Khartoum. The construction of pipelines should be awarded to those multi-international companies that are ready to borrow monies against reserve oil to run its affairs for two or three years before pipelines are finished and started commercial production.

Secondly, they believed mistakenly that the Militia loyal to Khartoum will overrun South Sudan.

This elusion in minds of the NCP leaders about insecurity in South Sudan created by Militia loyal to Khartoum must be falsified. The NCP has a belief that this group will destabilize the South and draw attention of the new government to forget about post referendum issues, which are being discussed currently; for example, demarcation of South-North boundaries, oil, citizenship, debts, national assets, water and Abyei. The NCP thought it would be better to replace the government of the SPLM by bringing on board those political and military forces loyal to Khartoum to take over in Juba.

Political analysts believe the NCP has taken lessons from their direct involvements in Uganda by support LRA in 1990s, and in Eretria by supporting rebels in 2000s and recently with Chad’s rebels. All these attempts to change governments in these countries back fired Khartoum until they came back to their sense and now trying to establish diplomatic relations with those countries based on principles of non interference.

Inclusion the GOSS is in a better position as far as the issue of Abyei concerned and doesn’t to exclude Abyei from its constitution, since the North included already in its Constitution. The Abyei Protocol as a principal document preserves rights of Ngok Dinka to that piece of land. In addition, the Ruling of the PCA, which resolved the issue of Abyei Boundaries, is another privilege. These two documents rallied up the international and regional communities behind the South and the meeting of UNSC proposed to take place in Abyei will bring the matter to an end. I personally don’t think war is the best solution, so it is advisable to drive back NCP politically and legally, including going back to The Hague if necessary. Any attempt to exclude Abyei from the Constitution of the Republic of South Sudan is a political crime and treason to our martyrs who died in Abyei in thousands.

Dr. Dhieu Mathok is author of Politics of Ethnic Discrimination in Sudan: A Justification for the Secession of South Sudan and Chairperson of the Editorial Board of al Masier Arabic Newspaper published in Juba. He can be reached at [email protected].