The selective implementation of the Sudan CPA and today’s crisis along the North/South border

By Benedetta De Alessi

Sudan and South Sudan today are at war, and so is Sudan with its own peripheries in Darfur, East, Blue Nile and Southern Kordofan States while insecurity never stopped in some areas of South Sudan since 2005. To call it otherwise is political blindness or else convenience. What is happening today in Sudan is no mystery, but the direct result of the selective implementation of the Comprehensive Peace Agreement (CPA) by the Parties and accepted by the International community (the signatories and observers of the Naivasha peace process) in the past six years of interim period for the sake of ‘peace’ and ‘stability’ in the region.

The parenthesis of relative peace that the CPA brought for the six years of interim period – in its narrow sense of cessation of direct hostilities between the North and the South – allowed for the self-determination option for Southern Sudanese to be exerted, and resulted in the independence of South Sudan. That was only one of the objectives of the SPLM/A struggle enshrined in the CPA; the other one, the New Sudan, for a ‘united, democratic, secular’ country, just and equal for all, was abandoned in the first years of implementation (and some would say already in Machakos in 2002 when negotiations begun). The CPA, a liberal peace agreement, provided for peace to realise as a result of democracy and development in Sudan; however given the lack of transformation of both the NCP and the SPLM into sound national political parties, and the consequent lack of democratisation of Sudan as a whole (North and South) the CPA implementation was controlled by the Presidency, through a plethora of commissions and committees, at the exclusion of the other political forces in Sudan and in most cases of the international community. The CPA drafters did not foresee any provision about breaches of the Agreement. The CPA implementation became a technical matter, while the implementation of crucial political points was delayed and at times renegotiated such as the legislative transformation of Sudan, the process of National healing and Reconciliation, the protocol of Abyei and the conflict of Southern Kordofan and Blue Nile States. The ‘peace’ and ‘stability’ expected by the technical – rather than political – implementation of peace, through the Referendum and the separation of Southern Sudan, were by no means sustainable. In the aftermath of the independence of South Sudan, the effect of the non-resolution of key CPA provisions emerged; in particular, today’s crisis along the North/South border and in the Three Areas, is the result of the lack of implementation of the protocol of Abyei, the lack of determination (let alone the demarcation), of the North/South border, and the lack of resolution of the conflict of Blue Nile and Southern Kordofan States. A solution should start from understanding the dynamics of the past six years, accept mutual mistakes and act upon those.

The Area of Abyei was contested between the North and the South. The CPA provided for an Abyei Boundaries Commission (ABC) to define its territory for a joint administration to be established in the interim period and a Referendum of self-determination to take place simultaneously to that of the people of Southern Sudan. When the ABC report was published in September 2005, the Presidency rejected it, irrespective of the CPA that called it ‘final and binding’. The NCP had the majority in the Presidency and could enforce that decision whereas neither the SPLM nor the international community had enough political power to impose the CPA. The Parties decided to ask for a third party arbitration to solve the impasse i.e. to decide whether the ABC had exceeded its mandate. When the Permanent Court of Arbitration (PCA) in the Hague issued its award in 2009, the territory of Abyei was reduced, including in its eastern border: the area of Heglig fell off the Abyei area and in a limbo. No evidence (i.e. maps) was brought to sustain the claim that Heglig was part of the North on 1 January 1956, or of the South; had that evidence existed, neither Party would have accepted to include Heglig in the Abyei protocol in the first place. The PCA ruling was accepted by the Parties but its implementation was hampered by a security stand off when SAF occupied the northern area of Abyei and the oilfield of Difra, and the area became no-go for the civil Abyei administration. The SPLM reacted by increasing the police forces in the southern area. As a result of the instable political and security situation, and a major disagreement on the residents of Abyei hence the voters, the Referendum for self-determination of Abyei could not take place on 9 January 2011. Today few people live in Abyei, caught in between the North and the South’s enduring struggle, and without any administration. In the aftermath of the independence of South Sudan and in response to an advance of southern police, SAF occupied the town of Abyei provoking thousands of displaced to the southern part of the area at the border with South Sudan, in Agok mainly. The Abyei protocol was drafted by the US administration and the Parties accepted it at the last moment in Naivasha; in 2010 the US proposed a division of the area between North and South that the SPLM refused. The solution of the Abyei crisis was brought to the post-Referendum negotiations in Addis Ababa under the AU without success triggering the lack of resolution of the other outstanding CPA issues. As all attention was devoted in resolving the crisis of Abyei, other crises were emerging along the North/South border, including the real Badme between North and South Sudan, Heglig. The problem of Abyei reveals a different understanding of the CPA by the side of the NCP and the SPLM, which needs a political, not a technical solution, on the expectations of Sudan and South Sudan on the future of their countries.

The CPA pre-interim period (January-July 2005) was left to the Parties to organise themselves into national political organisations and form the New Sudan institutions, starting with the drafting of the Interim National Constitution. Among the crucial provisions to be implemented then, the delineation of the North/South border was one, considered essential to define the territory governed by the Government of Southern Sudan, for the redeployment of SAF and SPLA troops in their respective territories, the sharing of oil revenues, and for census, Elections and Referendum to take place. Despite its importance, the committee tasked to make a recommendation to the Presidency on the border line started working only in 2006 and submitted its report to the Presidency only in 2010, for both technical and political reasons to be imputed to both Parties. The major cause of the delay was a substantial disagreement over the number of contested areas also within the committee; while the NCP insisted on 4 areas, Kafia Kinji, Kaka, Megenis mountains and Jodah, the SPLM wanted six, to include Sahafa area and, after the PCA, also Heglig. The interim period ended without an agreement on the contested areas along the North/South border; the Parties agreed to disagree and to start the demarcation of the non-contested areas (around 80% of the border). As the Parties could not find any negotiated solution, the issue should be referred to an international arbitration, and its decision final and binding.

The CPA protocol on the Resolution of the conflict in the states of Southern Kordofan (SKS) and Blue Nile (BNS) established special power sharing and security arrangements to the Two Areas in the North that fought alongside the SPLM/A against Khartoum during the second civil war. The NCP initially did not want to include it in the CPA, but eventually agreed as the resolution of the conflict in the States could become a model for peace and unity in diversity for the whole Sudan. Unlike Abyei, people of the Two Areas were not granted the right to self-determination, but the right to a popular consultation; the process was meant to ascertain their view on the implementation of the CPA in a mid interim period, after the National Elections. The plan was for two ad hoc commissions within the newly elected State Parliaments to run the consultations and produce a report to the same Assembly and then eventually start consultation with the Government.

The late conduct of the Elections in April 2010 pushed that process towards the end of the interim period in both States, missing its essence and clashing with the result of the Referendum of self-determination of Southern Sudan. Moreover, SKS rejected the result of the National population census, which led to a recount and the consequent rerun of the State Elections in April 2011. While the consultation process started in BNS in autumn 2010 with a massive response from the population, the popular consultation in SKS never took off as the security situation worsened in the aftermath of the contested electoral result. The CPA gave the Presidency the responsibility to determine the number of troops of SAF and SPLA for the interim period; Joint Integrated Units were formed but both Parties maintained their separate camps, without providing their exact sizes. With the independence of South Sudan approaching, SAF wanted the SPLA troops in the Two Areas to withdraw in accordance with the CPA; however the SPLM claimed that they were northern soldiers, citizens of Sudan, and defended their right to be integrated into SAF. Moreover, were the security aspects of the Protocol to be completed before the political ones i.e. the popular consultations? No negotiated solution was found and an attempt of SAF to forcibly disarm SPLA in SKS in June 2011 triggered a conflict in the State, that expanded to BNS in September 2011 (at that time SAF considered the SPLA and SPLM in the North illegal and attacked also members’ houses and offices in Damazin). The CPA protocol on the Two Areas became a missed opportunity. Today the conflict (ground fighting and aerial bombardments from the Government) has displaced an estimated number of over 300,000 people in SKS (increased after March military offensives) and of 300,000 in BNS (including over 100,000 refugees in South Sudan and Ethiopia). The humanitarian situation is affected by the lack of access of the international agencies from the North and their unwillingness to operate from the South in order not to compromise their political relations with Khartoum. With the rainy season approaching and a missed farming season, the risk of starvation for hundreds of thousands of citizens is real.

In the aftermath of the independence of South Sudan there is no peace and no stability in Sudan and in South Sudan. Given the appalling humanitarian situation of the people in the Three Areas, and the risk of an escalation of conflict between the North and the South that would provoke more suffering to all, the international community that strongly advocated for the CPA and made it possible against all odds, has the responsibility to bring the Parties to a negotiated solution of the outstanding CPA issues. An immediate cessation of hostilities should be signed between Sudan and South Sudan, starting with the full withdrawal of SPLA and SAF from the contested areas along the North/South border, including Heglig, and from Abyei. A UN peacekeeping mission should be sent along the North/South border to maintain security and to allow for the demarcation of the non-contested areas while the determination of the contested areas is deferred to an international arbitration final and binding. Negotiations on the Resolution of the conflict of the Two Areas should continue following the rejected Framework Agreement signed by the Parties in June 2011, through the support of IGAD and the AU and the other international guarantors of the CPA, to negotiate the political and security aspects of the protocol, including the future of the right to popular consultation of the people in the Two Areas and of the SPLA-N soldiers. Negotiations should begin with a cessation of hostilities between SAF and the SPLA-N that allows opening humanitarian corridors ahead of the rainy season to support the displaced Sudanese citizens in need. The Parties should then enforce the PCA ruling they have already accepted, for the socio-economic development of the area, while they enter negotiations on the future relations between Sudan and South Sudan, in its economic and social aspects and that should trigger a solution on Abyei. The CPA did not solve some of the causes of the second civil war but provided a good base to do so; the cost of peace is still cheaper than the cost of war.

Benedetta De Alessi is a PhD candidate at the School for Oriental and African Studies, London on the transformation of the SPLM/SPLA in the context of implementation of the Comprehensive Peace Agreement (CPA).