South Sudan: Independence de Jure or de Facto?

Articles, Opinion

By Dr. James Okuk

January 9, 2010 (SSNA) — As you decide to read and digest this article, please allow me to wish you a happy Christmas if you are a Non-Oriental Christian or a Non-Christian who celebrate this worldwide religious event in solidarity with Westernized Christians. Furthermore, allow me to wish you a blissful new year of 2010 if you are a Pro-Gregorian Solar Calendar that ends the old year on every 31st of December in order to start the new one on the 1st of January. May this Gregorian year 2010 be a peaceful one in the Sudan especially in the worrying circumstances surrounding the conduct of general 2010 elections in the country, the challenge of sincerer preparation for South Sudan referendum in January 2011 in accordance with article 226 (4) of the Sudan National Interim Constitution, and the search for a comprehensive peace agreement in Darfur.

In this article, I would like to present my answers to the following political question: Which is the Priority to the Native CPA Partners (NCP and SPLM); Referendum for the People of Southern Sudan or the Sudan National Security Act? I know that it is difficult to give a conclusive answer on behalf of somebody else, especially when you are not mandated to do so. Nevertheless, it is possible to attempt an answer based on behavior observation as some of us keenly follow chronologically the unfolding political events in the Sudan. Thus, it could be said that the referendum for the people of Southern Sudan is not a priority to the NCP neither is it for the SPLM unionists. It is the National Security Act which is their priority as it suits their power interest calculus in the united Sudan; be it Old Sudan of Islamism or New Sudan of Secularism. The NCP cadres are much concerned about this Act because it is the backbone of their political survival in the fragile Sudan where they got into power through insecurity. They designed the existing National Security Law in a way that would prevent any similar treatment to them. That is, the Security Law that has been operating in the Country is aimed to protect NCP leaders as individuals with government powers rather than safeguarding the people of the Sudan as a whole, regardless of their parties’ affiliations. That is why whoever attempts to create an environment that could lead to the NCP regime change, encounters “brutal lessons” from the Sudan Security agents immediately.

For their power survival in the CPA era, the NCP negotiators ensured that there is a provision in the CPA that says the status quo of the existing laws shall remain until replaced by new ones that comes into effect after being endorsed by the Interim legal authorities (the Council of Ministers headed by the President and the Legislative Assembly headed by the Speaker) (See CPA Part II, article 2.12.8). And who are the heads these legislative and executive branches of Government? The NCP cadres of, course. Hence they have the opportunity to play legal and political tricks on the drafted bills. The existing Security Act and other related Police and Armed Forces Acts in the Sudan that were promulgated before the CPA came into force, are very good for the NCP and they would prefer that new ones do not come into existence. Therefore, when SPLM dull politicians enthusiastically delay the enactment of new laws in this regard, the NCP foxy cadres become very happy. They even help the SPLM to boycott their constitutional obligations so that things stand in the country without any new progress. The CPA has made the NCP leaders to gain more favors than they use to get during the time of war. So the more delays come on the way of CPA implementation, the better for them!!! They will pretend to avoid delays but they will push the SPLM to do this dirty politics for them, since some trouble-happy senior SPLM leaders feel heroes by going opposite to the false direction that the NCP senior leaders point to.

In other words, the delays that are caused by incompetency of the SPLM cadres are a blessing in disguise for the NCP cadres because it elongates their stay in power with a lion share in government control where they continue to give the GoSS and other states of the Southern Sudan what has been agreed to be belonging to the South in terms of wealth and power. It is said that whoever gives you something even if it is yours, becomes your master directly or indirectly. The CPA gave the NCP powers to give SPLM and GOSS the share of oil money and government powers, and therefore, the NCP is the master of the SPLM, albeit. This is called inference of simple Aristotelian logic. The NCP have proven many times to be smarter than the SPLM. They have often put the SPLM weak leaders on reactive side of Sudanese politics. What a pity to the so-called voluntary liberators of Southern Sudanese who thinks the end of bush struggle is spree of corruption and tribalism with impunity in the GoSS and other ten states of Southern Sudan!!!

Coming to the issue of referendum, the Non-Southerners who comprise the majority of the NCP members are not eligible to this exercise and so they consider it as none of their democratic or undemocratic business. The same applies to the Non-Southerners who comprise the minority of the SPLM membership; the referendum is never a priority to them. This could be detected as the simple raison detre why they are much concerned about the Security Act and other Acts that are supposed to make democratic environment conducive for mass demonstrations aimed at generating popular uprisings in Khartoum and Medani even if this doesn’t apply in Juba or the South. It is philosophically said that the right question is the start of the correct answer, which is translated in medical analogy as: the right diagnosis leads to the right prescription for a cure of an ailment. I could have framed the above question to include the “democratic transformation”, but since I believe that referendum could be de facto without necessarily passing through democratic channels, I intentionally left it out though I understand that the de jure referendum is a fundamental part of democracy as practiced worldwide.

What I mean here in a common language is that history is rich of examples of countries that became independent without referenda that were regulated by civil laws, as well as countries that became independence through civil democratic referenda laws. Notwithstanding, the countries that chose to get independent de jure got it peacefully without bloodshed or other undesirable consequences. The case of Southern Sudan could take the direction of any of those options: independence de jure or independence de facto. But I will appreciate the de jure direction until otherwise imposes itself as unavoidable option. This is the tricky part of it all that makes the NCP cadres unable to play legal games and political delay-tactics for this right to dignity of Southerners after decades of colonialism and oppressions.

That is why since the signing of the CPA they started to build big developmental projects in the North from the oil dollars and Euros that comes from South Sudan natural resources. The NCP left the South to the mercy of creator God as they dispatched huge amount of development fund into the pockets and private accounts of corrupt and shameless SPLM leaders. The NCP knew it in the beginning that with more money and luxury at their disposal, the SPLM leaders will relax with alcohol and women, forget the bitterness of bush struggle, and become confused than the confusion itself; they will live without identified priorities and clear directions!

And this has indeed happened until the rush hour we are in now where the SPLM runs ups and downs at the corridors of the National Parliament and Council of Ministers to make sure that the Proposed 2009 Southern Sudan Referendum Act is not left in the cold when the MPs finally lose their constitutional immunities and privileges and go back to their homes on 23rd December 2009. If this happens, the leader of the SPLM Caucus in National Assembly should be blamed for negligence and having busied himself with useless conspiracies of who should be dismissed from the SPLM members in the Parliament and Cabinet, rather having focused on what should have been done right in the convenient time by the MPs and Ministers that have been holding national portfolios on the SPLM tickets. Not only this, but Kiir should be blamed for having appointed a Jellaba to represent interest of the South in an important legal forum like National Parliament in Khartoum. Any way, let’s hope that things end well with the tabled Referendum Bill at the Parliament.

The haggling that has been going on between the ever-quarreling CPA partners (SPLM and the NCP), hitherto, is about the de jure referendum, which has to be presented to National Council of Ministers and the National Legislative Assembly for deliberation and passage (unanimously or by majority votes). This legal path is commendable and I pray that its implementation follows suits without feed-dragging or foxy tricks, otherwise. What has been going on indoors between the referendum negotiators is not really known apart from what they told the public and what they wrote down in the proposed Southern Sudan Referendum Act for the year 2009. If there were some gentlemen agreements of give-and-take of power interests between them inside there, this shall get revealed later, although.

Now the most important thing that needs keen attention is what has been declared publicly on the referendum exercise in accordance with the CPA and Interim National Constitution obligations though it is lagging behind the schedule by one year, because article 220(1) of the Interim Constitution says that the National Assembly should deliver Southern Sudan Referendum Act by the third year of the interim period (i.e., by 2008).

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What if National Elections Commission Rejected Kiir Nomination To GoSS Presidency?

Articles, Opinion

By Dr. James Okuk

January 9, 210 (SSNA) — The critical mentality will immediately ask me here: But are you sure Dr. Salva Kiir has been nominated by the Politburo of his SPLM political party to run for the presidential position of the Government of Southern Sudan (GoSS)? But I will reply, assuring that I’m not answering with absolute certainty but only a realistic hypothesis based on many indications pointing to Mr. Kiir’s running for GoSS presidential seat in April 2010 general elections. One of the clues is Kiir’s disinterest to gain popular support in Northern Sudan as he has never bothered himself to appear to all parts of the Sudan as a possible national leader like late Dr. John Garang. Also Kiir has been so excellent in confining himself to Southern Sudan (Juba, Yei, etc.) and neglecting his national duties in the Gordon Palace in Khartoum. The pulpit of Catholic Church Kator Cathedral in Juba also gives some clues from Kiir’s several political sermons to the faithful who went there to pray in that house of God on Sundays and other occasions.

Thus, in this article I have decided to focus and speculate on the possibility of the National Elections Commission (NEC) rejecting Kiir’s nomination to the GoSS Presidency in reference to the conditions required in accordance with the 2008 Elections Act and the Interim Constitution of the Sudan with its corollary, the Interim Constitution of Southern Sudan. The motive here is not trouble-shooting as some narrow-minded political proponents of Kiir might think. It is rather a refresher alert so that those who seem to take the open political possibilities for granted (including Kiir himself) are not taken by surprise if my hypothesis turns out to become a theory for practice, once it stood unfalsified by the unfolding political events in the country.

According to the NEC nomination procedures for April 2010 general elections, any person shall be eligible for nomination as a candidate for the office of President of the GoSS in accordance with the provisions of the Interim Constitution, provided that he/she shall satisfy the following qualifications: a) be a Sudanese (‘by birth’ has been removed); b) be of sound mind; c) be at least forty years of age; d) be literate; and e) not have been convicted of an offence involving honesty or moral turpitude.

Also according the NEC, applications shall be submitted starting from Tuesday, 12/01/2010 until Friday, 22/01/2010, from nine (09:00) a.m. to five (17:00) p.m. including holidays. The Sudanese aspiring for the presidential seat of GoSS shall need signatures of Ten thousand eligible and registered voters from at least seven of the Southern Sudan states, with no less than two hundred voters from each state for nomination secondment. In addition, Article 43/3 of the Elections Act provides for the deposit of five thousand Sudanese Pounds (an approximate equivalent of US$ 2,000) for nomination to democratic contest for this highest office in the South. This fund is refundable if the candidate secures more than ten per cent of the valid votes cast, or if the candidate withdraws at any time forty five days prior to polling day.

After the submission of candidates’ nomination applications, the NEC shall inspect them to ensure that they satisfy the legal conditions. The most prior of these are the following conditions: 1) Commitment to the Comprehensive Peace Agreement; 2) A signed certificate of assets and liabilities for the year prior to the date of nomination including the assets of spouses and children.

After the inspection, the NEC shall publish the list of persons nominated as candidates and the names of those who nominated them and their respective political parties, or independents. Also the NEC shall publish a list of rejected nominations and the reasons for such rejection. All the Sudanese shall have access to the list for any remarks or objections. The person whose nomination application is rejected by the NEC has the right to appeal against the decision to the court within seven days from the publication date. The court shall decide on any objection within a period of seven days from the date of receipt of the objection. The court decision shall be final. Lastly, the NEC shall publish the final list of candidates in the Official Gazette and other mass media inside and outside the Sudan after all objections to the court have been decided. By then, the official campaigns and public rallies by the contestants kick off.

No doubt, Dr. Salva Kiir shall meet all the conditions set by the NEC for the nominated candidates for the GoSS presidential seat or even more (a joke: having participated in the SPLM/A struggle for not less than ten years and without having run to the enemy in Khartoum as a traitor). However, I still want to speculate the possibility that the NEC might disqualify him from contesting the April 2010 general elections in the Sudan. Why? Because I think Honorable judge Abel Alier who chairs the NEC and other colleagues of his, are faithful judicial experts who even don’t regret pronouncing judgments on their mothers if found guilty of legal misconduct and defiance.

The political parties and individuals whose electoral democratic rights have been violated and upset by Kiir’s directives might send their objections to the NEC once they get informed that this Sudanese is amongst the lists of the nominated candidates for GoSS’ presidential seat. Also the constitutional court might object to Kiir’s nomination since he ignored their ruling to declare null and void the 9/11/2009 GoSS official letter that banned the Sudan People’s Liberation Movement – Democratic Change (SPLM-DC) party from the practice of constitutional and democratic rights by its members in the ten states of Southern Sudan.

Other objections from Dr. Kiir’s opponents might pop up too, limiting his chance to get a free ride to second term in GoSS’ presidency. Let me think here of objections regarding corruption spree in the South and the big amount of smuggled money that have been caught in some international airports. On his side, Dr. Salva Kiir shall be presented with tough political options, the less evil of which is to appeal in the competent court and prove himself innocent before the objections levied on his candidacy. The other option is to resort to military threat with an outlaw political conduct that shall create unfavorable and hostile political environment in Southern Sudan for democratic practice within the dictates of the law. Of course, Kiir might get some supporters to trench him against the consequences of acting outside the higher law in the country, the constitution.

But he shall also get opponents to confront him and force him to evacuate the public office in Juba because he supposed to no longer enjoy constitutional immunities and privileges outside the law. He shall be considered a renegade against the national interest and the public good, especially in Southern Sudan. If he tried to take back some SPLA ranks and files to the bush, Kiir shall be reminded of the bitterness of days of the twenty one years of SPLM war. The enlightened SPLA commanders might tell Kiir to keep his hands off the army affairs and resign to his home peacefully even if he takes refuge in Australia or elsewhere. This shall not be regarded as a quo.

Many Southerners and people of the transitional areas and other marginalized parts of the Sudan might not be willing to volunteer fighting under rebellious commandership of Kiir and company. The nostalgic past of the SPLM shall never come back on a golden plate. Things will be different!! The international community, especially the USA politicians/statesmen who are interested in the full implementation of the CPA and the revival of democratic governance in the Sudan shall call upon Kiir to resign peacefully from public affairs in the South or face the wrath of international isolation. They might even ask Luiz Moreno-Ocampo of the ICC to start investigating Kiir’s war history and indict him like Pres. Omer Hassan Al Bashir for atrocities committed in Darfur under his rule in the North. Kiir shall start hiding from public like Joseph Kony of Uganda LRA.

This warning statement from the chief diplomat, the US Secretary of State Hillary Clinton, could serve as a valid hint to remind Kiir that even the world is not happy with the current status quo in Southern Sudan under his rule. Marking the fifth anniversary of the 2005 Comprehensive Peace Agreement (CPA) ending Africa’s longest civil war, she said: “There must be no efforts to restrict freedom of speech and assembly and there must be no prohibitions on peaceful protests….Southern Sudan must increase its institutional capacity and prepare to govern responsibly, whether as a semiautonomous region within Sudan or a newly independent nation.”

Is there a serious objection against Kiir’s rule in the South than this diplomatic concern from USA World Power?

The fact that keeps on portraying themselves on the ground are undeniable proofs that under Kiir’s rule, Southern Sudan is becoming a tomb of dignified freedom from insecurity, tribalism, corruption, incompetence and poverty. As far as democratic freedoms are concerned under Kiir’s SPLM, Southern Sudan is being ruled in a style of state of emergency de facto though undeclared de jure. Otherwise, what makes the SPLA security agents to meddle and poke their noses into civilian political affairs regarding political parties’ democratic practices?

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