Evaluation #2: At least the Interim Constitution of Southern Sudan tried to break the criteria of vagueness by shipping in some specific details, especially on who shall be qualified to vote in the referendum and how. But it is still hooked-up by the trick of ambivalence of “Secession” terminology. The constitutional judges and lawyers might refer to some of the details mentioned in this sub-constitution but they may not be obliged to do so because they could argue, as well, that the National Interim Constitution should be the only supreme reference in case of clash of interpretations.
3. Articles (4), (5), (6), (7), (8) & (9) of The Southern Sudan Referendum Act: The people of Southern Sudan shall exercise their right to self-determination through the referendum to determine their future status in accordance with the provisions of the Comprehensive Peace Agreement, the Constitution and the present Act (Article 4). The referendum, provided for in Section 4 above, shall be conducted in Southern Sudan and any other locations on 9 January 2011 and shall be organized by the Commission, in cooperation with the Government of National Unity and the Government of Southern Sudan and under international observation (Article 5). While exercising the right to self-determination through voting in the referendum, the people of Southern Sudan shall cast vote for either: i- Confirmation of the unity of the Sudan by sustaining the form of government established by the Comprehensive Peace Agreement and the Constitution, or ii- Secession (Article 6). To ensure the free will of the people of Southern Sudan to express their views, in accordance with Section 6 above, the different levels of governance shall commit to creating an environment favourable to conduct the referendum through the following:
a). Appropriate environment and security conditions in order to prepare and organize the free exercise of the right to self-determination.
b). Freedom of expression for all the people of Sudan in general and the people of Southern Sudan in particular to enable them to dispense their views on the referendum through mass media or any other means.
c). Freedom of assembly and movement to all people of Southern Sudan in accordance with the provisions of the Constitution and the present Act.
d). Ensuring the presence of IGAD member states and partners, representatives of the United Nations, the European Union, African Union and other international signatory bodies as witnesses to the Comprehensive Peace Agreement to engage in the observation on the referendum.
e). Ensuring the presence of national, regional and international Civil Society Organizations to observe all the procedures pertinent to the referendum-related awareness campaign.
f). Ensuring that, in accordance with the Political Parties Act 2007, the registered political parties, organizations and gatherings adhering to the Comprehensive Peace Agreement are given equal opportunities in voicing their views on the referendum options, if they are willing to do so.
g). Educating and registering the voters, safeguard and guarantee their right to secret voting without fear or intimidation (Article 7).
The Commission headquarters shall be based in Khartoum and shall have a Southern Sudan Referendum Bureau in Juba [Article (8)(2)]. The structure of the Commission comprises the following: a) Commission Headquarters, b) Southern Sudan Referendum Bureau, C) Secretariat General, d) Referendum High Committees in the States of Southern Sudan, e) Referendum Sub-Committees in the counties, and f) Referendum Centers [Article (8)(3)]. The Commission shall be financially, administratively and technically independent and shall perform all its duties and powers as provided for by this Act with the utmost degree of independence, impartiality, transparency and integrity, and no one shall interfere in its affairs, duties, competences or limit its powers (Article 9).
Evaluation #3: The Southern Sudan Referendum Act was drafted and billed late by two-years of the agreed schedule. The National Legislature, being controlled by ‘unionists’, lacked the political will to do so, perhaps out of fear of NCP and other Northern political parties and even the unionists within the SPLM. However, at last, Mr. Speaker Al-Tahir signed the bill on 28/12/2009 after its ratification by National Legislature. Also President Al-Bashir signed it on 31/12/2009, making it to become a late-awaited law.
Notwithstanding, the question of who is going to head that commission and who will be the deputy, members and staff remains eye-brows’ affair to Southern separatist, especially after what have been encountered with Mr. Abel Alier and his deputy in the National Elections Commission (NEC) who compromised the rigging and other irregularities in the April 2010 general elections.
Although it is spelt out clearly that the Commission shall be independent, yet this shall be impractical under NCP/SPLM control and influence. The security demand and the bill of rights mentioned in the Referendum Act shall never be respected by the rivaling sides of the process as we witnessed it in last elections.
Although the Referendum Act is an excellent document with written checks as you can see from its articles, still, the end result of all these shall never be a finished case if it was not confirmation of “Unity” of the Sudan. Even rigging this referendum in favour of “Secession” shall never be a decisive solution for dignity of Southerners. Thus, whether carried out freely and transparently or not, the only gainers of this referendum shall be the unionists because all the law has blocked the “Independence” of Southern Sudan de jure.
Hence, the Referendum Act shall remain helpless even if it managed to regulate the process in the best way possible: From formation of the commission, registration of eligible voters and issuance of IDs, preparation of ballots and polling centers, invitation of national and international observers, voter high turn-out, sorting and counting of votes, declaration of results, to appeals and final court verdict.
We might have exalted Dr. Riek Machar and others in the SPLM for being Champions of the success of the referendum process, but at the end of the whole show, we would realize that they were only champions of unfinished comedy of the CPA implementation. The SPLM shall have proven itself to Southerners and the world by then that it was a champion without trophy. Other tournament shall be required by then to get the trophy!
4. All the above-mentioned legal stipulates were extracted from the CPA original text in the section of Machakos Protocol of July 20, 2002: That the people of Southern Sudan have the right to self-determination, inter alia, through a referendum to determine their future status (Article 1.3). At the end of the six (6) year Interim Period there shall be an internationally monitored referendum, organized jointly by the GOS and the SPLM/A, for the people of Southern Sudan to: confirm the unity of the Sudan by voting to adopt the system of government established under the Peace Agreement; or to vote for secession (Article 2.5).
But prior to these CPA articles it is stated clearly in the beginning of the text: That the unity of the Sudan, based on the free will of its people democratic governance, accountability, equality, respect, and justice for all 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 Southern Sudan and to meet their aspirations within such a framework (Article 1.1).
It is also clearly indicated at the end of the text that: The Parties shall refrain from any form of unilateral revocation or abrogation of the Peace Agreement (Article 2.6).
Evaluation #4: The loophole of using the term “Secession” instead of “Independence” of Southern Sudan originated from the CPA text. Not only this, but also the agreement strictly warns the signatory parties of any tendency of violation and dishonoring of its articles. This means, if the SPLM overwhelming majority legislators at the Southern Sudan Legislative Assembly (SSLA) get tempted to declare the independence of South Sudan unilaterally from inside the parliament in Juba, this shall be considered immediately as abrogation of the CPA.
Nonetheless, it has never been agreed that the CPA shall continue to be in force or obligation after the end of the interim period (9th July, 2011). May be by then the South could declare its “War-of-Independence” and convince the North to recognize it by force like the case of Eritrea with Ethiopia. But will the SPLM/A garner a military victory by might of the gun, comes that time? I doubt if there will not be external mercenaries to help the SPLM/A new separatists by then? Perhaps, it would be kind of President Obama’s Administration to use The LRA Disarmament and Northern Uganda Recovery Act, passed by the USA Congress on 12th May 2010, to assist Southern Sudan (under SPLM mess) to defend the circumstance of the “War-of-Independence”. But again, will Obama be ready to anger the Arab and Muslim World by defending Christians in Southern Sudan? May be the USA pressure and lobby groups would influence him to act.
IV. What can we learn from Eritrea Referendum for Self-determination? The Eritrea method run as follows: capture your territory by military force first and then perform the referendum for self-determination later to baptize the de facto independence with democracy ritual for the sake of seeking regional and international diplomatic recognition. The smart thing with the Eritrean liberation leaders was their clarity on the status their people desired in determining their destiny with “Independence” not “Secession”.
The Eritrean War of Independence was a conflict fought between the Ethiopian government and Eritrean separatists, both before and during the Ethiopian Civil War. The war went on for 30 years until 1991 when the Eritrean People’s Liberation Front (EPLF), having defeated the Ethiopian forces in Eritrea, took control of the territory. Given the power of victory, the EPLF held talks with the Ethiopian new transitional government regarding relationship between the two territories. The outcome of those talks was an agreement in which the Ethiopians recognized the right of the Eritreans to hold a referendum on independence of their ‘circumstantial country’. The EPLF was also granted an observer status in the United Nations headquarters in New York.
In April 1993, in a referendum supported by Ethiopia, the Eritrean people voted almost unanimously in favour of independence under verification by the United Nations (UNOVER). The question used in the referendum ballot cards was: Do you approve Eritrea to become an independent sovereign state? Under this question were two circles of choice between (Yes) or (No). The result of the counted (Yes) box was 99.79% and that of the (No) box was 0.17% and the spoiled votes was 0.04% out of 1,062,410 registered referendum voters inside and outside the country. On May 28, 1993, the United Nations formally admitted Eritrea to its membership (See Wikipedia).
Is there a similarity between this scenario and the SPLM/A case in Southern Sudan? No! The SPLM/A has been vague and ambivalent with what it wanted for Southern Sudan. The SPLM/A fought for the ‘war-of-marginalization’ in the whole Sudan that it intended to transform into ‘New Sudan’. Nevertheless, during the peace negotiations under pressure and fatigue, the SPLM/A adopted the issue of the “right of self-determination” for the people of Southern Sudan through a referendum.
Will the SPLM/A manage to liberate the South so that it can become an independent new state in Africa like Eritrea? Yes, but only if it improves its leadership efficacy and work jointly, sincerely and selflessly with communities of Southern Sudan without discrimination or selfish preference.
“Without a governing vision people will lapse, as they have in recent years, into a narrow selfishness” (Thomas E. Patternson, 1996).
V. Recommendations on What to Do:
1. Let Southerners prepare themselves to accept the referendum for the “Secession” of Southern Sudan (for the time being) by going out to register to get referendum identity cards once the Referendum Commission is formed and mandated to carry on with its agreed and legalized duties. Let them not worry about the outcome when they shall go to the poling stations to cast their votes, because the process shall only be a means for going for “War-of-Independence” after “Secession”.
2. Let Southerners swallow the bitterness of the past elections and unite to make the referendum a success. But they should never be fooled that the “Secession” should end in confirmation of “Federation” or adaptation of “Confederation”; it should confirm declaration of “Independence” of sovereign ‘Republic of South Sudan’.
3.Let Southerners forget that the SPLM/A may bring them “Independence” of South Sudan on a golden plate like the CPA, because this movement, is marred by leadership crisis and internal conflicts of visions and directions between its unionist and separatists. Even if the SPLM/A rigged the referendum in favor of “Secession”; this shall still remain incomplete victory to qualify the region for “Independence”.
4. Let Southerners not be hoodwinked that the SPLM/A shall ever be in control of Southern Sudan without support and cooperation from all Southern communities and their leaders. They need to recall that the SPLM/A did not capture the whole of Southern Sudan by force of gun, neither did the NCP/NIF crush the SPLM/A and other Southern rebel movements by military or any other force.
5.Let Southerners know it well that for the “Declaration of Independence” of the Republic of South Sudan to be successful like the Eritrean one, it shall need recognition of Khartoum (implicitly or explicitly) and the blessing of regional and international communities. Thus, intensive lobby for influence must be carried on to garner more international and regional support of South Sudan Independence, by thick or thin.
Dr. James Okuk is a concerned Southern Sudanese and PhD graduate of Political Philosophy at University of Nairobi-Kenya. You can reach him at [email protected].