This is a working draft report and comments are welcome:
REVISED REPORT 41, dated 27 August 2010
2011 Sudanese Referendums
Key Observations: In January 2011, two referendums necessary under the terms of 2005 Comprehensive Peace Agreement (CPA) will take place. In one, the South will decide on whether to establish an independent southern state. In the other, citizens from the Abyei area, located on the still un-demarcated border between North and South, will decide on which of these to join.
The South will vote in favour of partition in the upcoming January 2011 referendum. Whilst partition does not make war inevitable, there remains a substantial risk of conflict. Equally war is all but inevitable if a referendum is denied or tampered with. It is possible that in the limited time before the referendum, the government in Khartoum could sway the outcome towards unity with two simultaneous concessions: removing Islamic Law from the constitution and establishing a new, inclusive national government, headed by a Southerner. Such concessions pose their own considerable risks. First, it must be recognized that there is a time constraint. Secondly, such reforms may not be accepted by the government in Khartoum.
It is important to note that both Western oil companies and the United States government have created the impression that they favour partition. The U.S.A has implied it is in favour of a strong and independent South. In reference to the election, US Special Envoy, Gen. Scott Gration stated, “the US hopes that election will set the stage for a civil divorce and not a civil war”. For the Western oil companies it would enable them to enter into and develop South Sudan. Under current sanctions multinational companies are prevented from operating freely within Sudan. Through partition, Western oil companies will be able to curb the dominance of the Chinese in the South Sudanese oil fields, who are not restricted by the sanctions.
Nonetheless, if the international community, and in particular the United States, engages with the government in Khartoum it is possible that Sudan could be persuaded to undertake actions that could potentially alter the expected results of the referendum. In addition, if the results of the referendum are to be credible, the international community needs to immediately focus on creating conditions that would ensure a free and fair referendum in January 2011.
I
Why Encourage A Vote for Unity?
Several key stakeholders, in particular the United States, are perceived as advocating the partition of Sudan. It is clear that the people of the South are likely to vote for partition in January 2011. However, even those who are encouraging partition recognize that this path could result in further conflict. In September 2009 an IKV Pax Christi/Cordaid report on Sudan 2012 identified four possible post-referendum scenarios for Sudan in 2011:[1]
1. A war and a united Sudan
2. A war and secession
3. No war and a united Sudan
4. No war and secession
Many observers do not expect the National Congress Party (NCP) to allow a harmonious secession to take place. Additionally, some fear that whilst the NCP may accept the result of the Southern referendum, they may disregard the result in the oil-rich province of Abyei, which could potentially lead to conflict. Overall, it is difficult to see the NCP accepting any outcome that sees it relinquishing significant oil revenues, which have been integral to enabling the NCP to retain its power in the North. Furthermore, despite pursuing peaceful measures the Sudan Peoples’ Liberation Movement (SPLM) has also been upgrading its military capabilities in anticipation of a conflict resulting from the outcome of the January 2011 referendum.
If secession was to happen in Sudan, it is quite possible that this could have an impact on other nations like Iraq and Yemen, where there already exist fully fledged secession movements. In Southern Yemen[2], many people have aspirations for independence, whilst this is felt to a lesser extent by the Kurds[3] in Iraq who would settle for national autonomy.
The International Stage
Another Sudanese conflict could also embroil its neighbours:
Uganda, an unambiguous supporter of South Sudan’s independence, seeks a stable buffer on its Northern border, primarily to ensure that the Lord’s Resistance Army (LRA) insurgency does not return.
Kenya has invested in South Sudan, including a new railway network connecting Juba to Kenya and an extension of the Trans-African Highway Network linking South Sudan to Kenya’s Mombasa port. More recently, it is in discussions with Toyota Tsusho and the Government of South Sudan over a US$1.5 billion oil pipeline project that will create an alternative to the existing export route (which runs north to Port Sudan).
Chad has come under fire for failing to arrest Sudanese President Bashir when he was recently in the country. As a signatory of the International Criminal Court, Chad has a responsibility to arrest those charged with war crimes. Bashir has been charged with three counts of genocide and crimes against humanity.[4] Chad’s reluctance to arrest Bashir may be due to recent improvements in relations since Chadian President, Idriss Deby, visited Khartoum in February 2010. An estimated 250,000 to 300,000 Darfurian refugees are believed to be in Chad and the Central African Republic.
China also has an interest in how the 2011 referendum plays out, as well as a certain level of influence. Though nothing has ever come before the ICJ, a wealth of evidence supports the claim that China sent military equipment to Sudan after the arms embargo in 2005.[5]
China has a strong, if controversial, diplomatic and economic relationship with Sudan. China is the most significant partner in Sudan’s oil industry having 40 per cent of shares in Sudanese oil. Despite international criticism of China for continuing to do business with Sudan while the atrocities in Darfur continue, it is unlikely China would ever attempt to influence Bashir to moderate his government’s actions as Oil means more to China than Human Rights.
China will be a keen observer of the upcoming referendum and will not hesitate to intervene on behalf of the Government. If China were willing, they have more than enough influence in the region - and with Bashir - to help positively come January. Instead of supporting the Sudanese Government if it decided to block a secessionist drive, China could lean the other way and encourage Bashir to accept secession. However, China’s relationship with Sudan is, ultimately, based on oil, and if China sees a threat to that supply they will wield military influence in order to secure it.
II
Strategies to Reduce the Likelihood of Partition
Removal of Islamic Law
It has been suggested[6] that if Islamic Law was to be abrogated from the national Constitution, the South would not vote as strongly in favour of secession. Though the South is no longer subject to Islamic Law, this would serve as a symbolic gesture: non-Muslims would be put on an equal footing with Muslims in the governance of the State.
Islamic Law imposed in 1983 under Gaafar Nimeiry was bitterly resented by secularized Muslims and the predominantly non-Muslim southerners. Non-Muslims have continued to voice concerns about what they perceive to be their second-class status in Sudan.
It must be recognized that the North took significant steps in signing the Comprehensive Peace Agreement (CPA) in 2005, which awarded the South semi-autonomy, and exempted non-Muslims from the Islamic penal code. The legal accords of the CPA have largely been implemented with success; Christian populations (and other confessional communities) in the North are not interfered with on a day-to-day basis. The CPA mandated the creation of the Commission for Rights of Non-Muslims in the National Capital (CRNNC). The CRNNC was initially designed to advise the courts on how to fairly apply Islamic Law to non-Muslims, and though it made little progress in effecting changes in government policy it did, nevertheless, open a previously non-existent forum for discussion on religious matters.
A renewed call for the removal of Islamic Law from the Sudanese constitution may be perceived as violating the letter and spirit of the CPA, which, since its inception, has at least fostered relative peace between the government and the erstwhile Southern rebels. The North may view evocation of the Islamic Law debate as a renunciation of its original concessions. To posit a new, completely secular, Sudan would inevitably strike discord among some Muslims, and could also be untenable for the current government. Moreover, by ostracising the Muslim North through the negation of Islamic Law, there is a possibility of further social unrest – potentially more potent than that of the scattered riots of the non-Muslims in recent years.[7]
If Islamic Law was no longer enshrined in the constitution it could reduce the strength of the vote for separation, but it would not be sufficient on its own to produce a pro-unity outcome. The period before the referendum is crucial; the government still has an opportunity to alter its stance.
A New Presidency: Southern President, Northern Vice-President?
In tandem with a sensitive reconstruction of its judicial system, the establishment of a new, inclusive, national government headed by a southerner[8] would be a meaningful step towards reducing prospects for partition.
In January 2009, and again in February of 2010, the SPLM and opposition presidential candidates called on President Al-Bashir to step down and hold consultations to form a new national government.
A nuanced political strategy is necessary as the removal of Al-Bashir would ostracise an already belligerent NCP. If Al-Bashir was to resign from government altogether the NCP, known for its kleptocratic rule, would be destabilized. Al-Bashir’s government is centred on his authority, and if he were to go powers within the government will, by force, compete to ensure their own security. This could elicit greater factionalism and violence.
Nonetheless, unlike the current condominium in place that confines matters of governance to the NCP and SPLM, an inclusive Pax Sudanica would draw in all the disparate political entities of Sudan.
Promisingly, in the months before the national elections, six presidential candidates made a concerted bid for President Al-Bashir to hold a conference with the country’s key forces to choose a competent leader for a new national government. Notwithstanding Khartoum’s initial rejection, such a proposal, albeit modified, still offers a pragmatic answer to Sudan’s many political confrontations.
A Southerner could be nominated as President of Sudan. The NCP could retain its foothold as a parliamentary majority, but without the power of veto over all others. Likewise, the SPLM would not be given a monopoly over Southern affairs; this would resonate particularly well with the Equatorians, who have already challenged an independent South Sudan governed by the ethnic Dinkas.
This proposal necessitates a rapid restructuring of the ruling elite prior to the referendum. Furthermore, this transformation must be agreed upon willingly by all members of Sudan’s political establishment, which currently looks improbable. Calls for Al-Bashir’s resignation have been rebutted by the NCP. Rabie Abdel Ati, an NCP member, interprets the motion towards Al-Bashir’s resignation as an attempt to destroy the ruling government of national unity, and as a direct breach of the Comprehensive Peace Agreement. In addition, he also notes that proposals asking for Bashir to resign only arose after Luis Moreno-Ocampo, an International Criminal Court (ICC) prosecutor, filed 10 charges against Al-Bashir: three counts of genocide, five of crimes against humanity and two of murder. The Sudanese president is accused of masterminding a campaign to get rid of the African tribes in Darfur: the Fur, the Masalit and the Zaghawa.
However, the NCP could be persuaded to support a new Southern president if the international community engaged with them in the following ways:
· The United States removed sanctions on the government in Khartoum (see next section for deeper discussion on US sanctions)[9].
· Normalisation of relations between Khartoum and Washington, as well as other Western nations.
III
Current Sanctions on the Sudan
Successive American governments have halted all financial aid to Khartoum. The US government has also persuaded both its Western allies and the World Bank to cut off financial help. Khartoum last received assistance from the International Monetary Fund in 1985, and between the years of 1994-2004 it received only $96 million cumulatively in foreign budgetary support – equating to roughly sixty cents per person per year.
US sanctions penalize corporations and individuals who trade with the Sudan, although there are exceptions in place for the regional government of Southern Sudan. However, China is not reliant on American patronage. China is estimated to import 50 to 60 per cent of Sudan’s oil (comprises roughly 30 per cent of China’s oil supplies).
Were a partition of Sudan to occur, Western oil companies would be able to move into Southern Sudan, while the United States freely engages with the leaders of the Sudan People’s Liberation Movement (SPLM), and capitalise on the South’s oil reserves. 82 per cent of Sudan’s total oil reserves are thought to lie in the South (though the North holds considerable reserves of natural gas).
IV
Preparing for the Referendum
Sudanese General Election 2010
In light of the criticisms of the recent general elections, concerns have been raised over the probity of January’s referendum. It is valuable to first identify some of the shortcomings of the April 2010 elections, and thereafter offer possible remedies.
This should have been Sudan’s first multi-party polls in twenty four years. The Arab League and African Union insist that the 2010 elections were free and fair. However Sudan Democracy First, an umbrella organisation in the North, suggested strong rigging by President Al-Bashir’s NCP. The SPLM[10], which serves in a coalition at national level with Bashir, boycotted the general election over fraud and security, irrespective of the threat by Bashir to cancel the referendum if the SPLM boycotted the election. However both the SPLM and other parties who pulled out of the presidential race overestimated their hand. It was believed that their withdrawal would rob Bashir of the opportunity to legitimise his rule. However Bashir’s 68% share of the vote was convincing and his party swept the North.
There are concerns over the behaviour of the SPLM in the South during the elections. There were accusations that SPLM-controlled security forces tortured people who opposed them[11]. Candidates opposed to the SPLM said that they were often detained or stopped from campaigning. If only a fraction of these accusations are true, it raises worrying questions about the impending referendum, and about how the South would be governed if it became independent.
Indeed, many restrictions were also noted by Western observers - the EU and the Carter Centre - that prevented the occurrence of a free and fair election[12]:
· The SPLM were prevented from entering Darfur.
· Political parties also had to seek official permission 72 hours in advance of any public meeting (reduced to 36 hours in mid March).
· 250,000 Darfurian refugees were displaced in Chad. The 2008 Census stated that the three Darfur states comprise 19 per cent of the total Sudanese population. Consequently, the complete organizational disarray in the Darfur regions cast further doubt on the legitimacy of the 2010 Sudanese national elections.
The Sudanese Network for Democracy and Elections (SUNDE) pointed out harassment and intimidation was by no means confined to the North. Worryingly, the SPLM has been accused of facilitating the torture of southerners who did not vote for Salva Kiir, and detaining opposition campaigners.
The Referendum
The key details of the referendum are as follows:
· A vote of fifty per cent plus one is required for secession or unity to occur.
· A sixty per cent turnout is necessary for the result of the referendum to be deemed legitimate.
· Southerners residing in the North will be allowed to vote in the North if they were born before 1956, the year of Sudanese independence. If born after this date, the individual will have to travel to the South to vote.
· The date of the referendum has been set for the 3rd - 5th January 2011.
In order to ensure that the referendum is free and fair and thus give the resolution of the CPA the best possible chance of succeeding, it is necessary to resolve a number of outstanding issues.
The army has been designated as the supervisor of January’s referendum. This role should be given to the police force, or the United Nations. This would give credibility to the process, and encourage greater civilian participation.
The chief of the Assessment and Evaluation Commission (AEC), Derek Plumbly, stressed that, unlike the general elections which were delayed by a year, the referendum should take place on time. In the delay that preceded April’s elections, increasingly vocal and restless opposition prompted rioting and reciprocal government violence.
If the outcome of the referendum was against secession, it is possible that the South could declare unilateral independence. Given the recent International Court of Justice ruling on Kosovo, that its unilateral independence did not break international law, the unilateral action taken by the South could be recognised by the international community.
Border Demarcation
Critically, the demarcation of the North-South borders should be completed before the upcoming referendum. Professor Al-Tayib Zain Al-Abdin, a Sudanese political analyst, does not hold demarcation to be a hindrance to the referendum. He does not foresee an immediate resolution to the North-South border demarcation.
The Vice President of the Government of South Sudan, Dr. Riek Machar, has stated that disputes over border demarcation should not delay the January’s referendum. Two phases of the demarcation process have already been completed: the collection and compilation of information and the description and drawing of boundary lines on paper.
Dr. Machar contends that 80 per cent of the North-South border has been agreed upon by the joint committee of the CPA partners, the remaining 20 per cent, which includes contentious oil fields and agricultural lands, will not pose a significant risk to derailing the referendum or regional peace. Moreover, it is argued that since Sudan already has some experience in dealing with border issues (such as those with Ethiopia, Egypt and Kenya), a post-referendum agreement could be negotiated amicably. However recent developments could further delay the demarcation process, which realistically could mean that it would not be completed before the referendum. The reason for this delay (possibly until next October) is the rainy season, which will affect the terrain and logistics. The implications of this delay are substantial because the NCP has stated that the referendum would have to be delayed until the demarcation process is completed. On the other hand, the SPLM was quick to dismiss the condition set by the NCP to conduct the referendum.
However, such a view is optimistic. Following neighbouring Eritrea’s vote for independence from Ethiopia in a 1993 referendum, an otherwise peaceful separation turned into a violent border dispute over a small, resourceless tract of land. Taking into account the Sudanese propensity for military action, any contestations for land, post-secession, are at risk of becoming armed offensives. The NCP’s downplaying of the issue of demarcation poses a risk to a peaceful separation.
The process of demarcation needs to be resolved as quickly and fairly as possible. Regardless of the outcome of the referendum, absolute definition of the boundaries would consolidate stability in the Sudan.
Also note that Sudan’s border with Kenya is still not demarcated. Borders between Sudan and Ethiopia are yet to be demarcated, since most of the Al-Fashaga area is being farmed by Ethiopians’ who are renting it from Sudanese farmers. Similarly, Sudan still disputes the Halayib Triangle with Egypt.
Three Areas
The so-called Three Areas – Kordofan, Blue Nile and Abyei – will be potential flashpoints. They are critical to long-term stability and economic development in Sudan due to their wealth of natural resources, as well as their geographical location. The CPA agreement (which demarcated the border between North and South Sudan) excluded Abyei. This is an area defined ethnically and geographically as the nine Chiefdoms of the Dinka-Ngok, and the Nuba Mountains and Southern Blue Nile (now Blue Nile) State.
Abyei will have its own referendum[13]. However, the demarcation of the province has stalled and already there are signs that opposition to any result is probable. The North Misseriya community, for example, has been placed outside of the borders of Abyei. Their leaders have denounced the actions as deliberate manoeuvres designed to deny the North Misseriya community their right to some share of the provinces oil revenues. Furthermore, Abyei is prone to conflict. In May 2008, fighting between the Sudanese Armed Forces (SAF) and the Sudan People’s Liberation Army (SPLA) displaced over 60,000 people and destroyed almost all of the town of Abyei.
Kordofan and the Blue Nile are also entitled to “popular consultations” under the terms of the CPA. These are to be implemented by the State Assembly, elections for which were cancelled in response to a dispute regarding the 2008 census. Therefore, considerable obstacles, in relation to the 2011 referendum, remain in the Three Areas. The appointment of a high-level individual sanctioned by the African Union, Arab League and other Western organizations is required to ensure problems pertaining to the Three Areas are decided in a timely fashion before the referendum takes place.
Oil
It is estimated that 82 per cent of Sudanese oil is located in the South (though there are massive natural gas reserves in the North, located not far from the Southern border). Oil comprises 98 per cent of the government of South Sudan’s budget and 60 per cent of the total national budget. The CPA required that oil revenue be shared 50-50 between the government in Khartoum and the government in South Sudan. This arrangement will come to an end in January 2011.
Whatever the outcome of the referendum a new formula will need to be developed. Even if partition was to occur in the short term the new country would be landlocked and dependent on North Sudan to export its oil, something Khartoum may refuse to do. It will not be possible for at least a few years to export oil via Kenya as it will require construction of a pipeline.
Therefore, it is recommended that:
· A financial audit of the oil sector is undertaken to ensure that an equitable agreement, if necessary, can be implemented.
· Whatever agreement is made on how to share oil revenues, third party monitoring will be required. Under the CPA, discrepancies have been rife resulting in substantial loss of revenues for the Government of South Sudan.[14]
Comment: One of Sudan’s main challenges is that domestic issues are dealt with by major foreign powers on a piecemeal basis. When there is trouble in the South, that issue comes to the fore; when fighting erupts in Darfur or Beja, that becomes the dominant subject. Until a truly comprehensive approach is undertaken, Sudan will continue to be problematic. A national conference could be called to address issues such as the borders and the fairer distribution of resources. That might, in turn, give the disparate regions in the Sudan a greater interest in national unity. Post referendum, some in the international community are backing a “confederation” to foster unity and there is growing support for this approach within Sudan. End Comment.
[1] http://www.ikvpaxchristi.nl/UK/below_regional_africa_sudan_sudan_documentation.h
[2] South Yemen was reunited with the North in 1990, after having been independent since 1967 from the North. Pro-independence demonstrations have multiplied in the south in recent months amid a worsening economic situation and complaints of discrimination in favour of northerners by the Sanaa government
[3] The Kurds of Iraq have achieved self-rule in part of the country since 1991.
[4] The UN puts the death toll at 300,000 with more than 2.7 million displaced. The Sudanese government puts the death toll at 10,000.
[5] Security Council resolution 1591 came into affect 29 March 2005 and included an arms embargo, travel ban and an assets freeze.
[6] This approach is strongly advocated by General Joseph Lagu, former Southern rebel leader
[7] In light of the current political climate in Sudan, it might be more practicable to reinforce Islamic Law as a Muslim phenomenon (but not constitutionally) and to offer non-Muslims a medium by which they can have increasing legal self-determination. This would serve the government’s obligation to the Muslim North, as well as appeasing Southern jurists who wish to consolidate their autonomy. In addition, by modifying the in-place legal channels, the existing governmental framework in Khartoum can be taken advantage of. Thus, a moderate and nuanced legal strategy in Sudan might be more conducive to stability in the region.
[8] Salva Kiir, the current President of the Southern region, would be inappropriate
[9] Conditional one-year suspensions of the International Criminal Court warrants could be offered.
[10] The SPLM joined the unity government in 2005 as part of the peace deal.
[11] In the end, the SPLM boycotted the Presidential elections but still fielded candidates for the National Assembly elections.
[12] http://www.bbc.co.uk/news/world-africa-10679943
[13] The Protocol on the Resolution of the Abyei Conflict provides for an interim period of a few years following the signing of the CPA, during which Abyei shall have special administrative status under the institution of the Presidency and shall be administered locally by an Executive Council. During this interim period, residents of Abyei shall be citizens of both Western Kordofan and Bahr el Ghazal states, with representation in both legislatures. Oil revenues from Abyei will be divided six ways.
At the end of the interim period, residents of Abyei will vote whether to retain their special administrative status in the North or to become part of Bahr el Ghazal State in the South. The Abyei referendum will coincide with the referendum for Southern Sudan. The Abyei Protocol also requires the Presidency to establish two commissions in preparation for the Abyei referendum. The Abyei Referendum Commission is responsible for conducting the Abyei referendum, including establishing criteria for residence in Abyei and, consequently, eligibility for participation in the referendum.
[14]http://www.globalwitness.org/media_library_detail.php/804/en/fuelling_mistrust_the_need_for_transparency_in_sud
This is a working draft and comments are welcome!
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