STEERING COMMITTEE FOR HUMAN RIGHTS IN THE TRANSITION IN SUDAN
FOR SOUTHERN SUDAN
This paper is concerned to clarify the constitutional options facing Southern Sudan as the peace process matures and the moment of democratic self-determination approaches. The paper assumes that the people of Southern Sudan are now sovereign, but it does not seek to prejudge the outcome of any referendum on unity or independence for Southern Sudan. Instead, it seeks to identify the issues that will face Southern Sudanese as they prepare for that momentous and unprecedented decision, and the challenges that will follow, whatever decision they make. The paper presumes that the process of self-determination is concluded in a democratic manner (see paper B-1).
The future of Southern Sudan is primarily a matter for Southern Sudanese. But, if Sudan is to remain united--the preferred outcome for the Government of Sudan, the SPLM/SPLA and the parties in the NDA--then it will also be necessary for Northern Sudanese political leaders to propose a constitutional arrangement that the Southerners find sufficiently attractive for them to remain in a united Sudan. Some of the arrangements discussed in this paper may well suit this scenario. But, for example, if the Northern Sudanese leaders opt for an Islamic constitution it is unlikely that Southerners will want to remain part of the same country.
The proposed referendum on self-determination will lead to one of two options for Southern Sudan: (a) independence or (b) unity under some arrangement such as federation.
In the case of unity, it is highly unlikely that the Southern Sudanese will opt for anything less than a federation between a Northern State and a Southern State (and possibly including other States such as Nuba State). The South will be self-governing In this case there will need to be
- an appropriate constitutional relationship between the Southern and the Northern states as equals under a Federal Government,
- an appropriate relationship between the South and the Federal Government and
- an internal state constitution for the Southern State.
In the case of independence, Southern Sudan will need a constitution. Outline planning for this constitution should begin in advance of the referendum. Also, there will be many legal and practical questions that will arise from separation.
A constitution needs to enshrine high ideals and aspirations, and it needs to be practical, that is, it needs to be suited to the social and political realities of Southern Sudan, and to be usable as a tool for guiding the development of the state (whether independent, federal or confederal) and its people.
There are many other experiences in Africa and the rest of the world that are worth examining as potential models for Southern Sudan’s constitutional options. Eritrea, for example, is a case of a nation that achieved statehood by breaking away from an independent African country, much as Southern Sudan will achieve either total or partial separation from the North. Namibia and Zimbabwe are countries that achieved liberation after a combination of guerrilla war and internationally-supervised transitions to democratic rule. Angola and Mozambique have new constitutions adopted after prolonged civil wars and international mediation--although the Angolan exercise is scarcely one worthy of emulation. Uganda and Ethiopia adopted new constitutions with novel elements after internal struggles against dictatorships. And Sudan itself has a long history of debate over constitutional issues, including experimentation with regional autonomy. All these are experiences that should be examined by Southern Sudanese and their friends. But Southern Sudan’s constitution will, at the end of the day, have to be determined by the requirements of Southern Sudanese themselves.
II. The Double Transition
Settling the constitutional question will not be quick nor easy. It would be a mistake to rush: there are many impediments to a successful establishment of civilian, constitutional and democratic rule in Southern Sudan (whether that be an independent South or a Southern State within a united Sudan). Southern Sudan will face not one but two transitions in the coming years:
- Transition 1: to the free and fair exercise in self-determination.
- Transition 2: to constitutional, civilian and democratic rule.
The correct timing and sequencing of these two transitions, and their coordination with social and political reconciliation, economic reconstruction, the creation of a national army and other grave issues confronting the Southern Sudan government, will be of enormous importance. It is also important not to rush. In particular, elections should be seen as the final culmination of the process, rather than an immediate requirement.
This paper asks a number of questions and makes a preliminary proposal for how these two transitions may be timed and coordinated with economic reconstruction.
1. Transition 1: Self Determination
This transition should be achieved in a time period of between two and four years after a peace agreement is signed. During this period, programmes of rehabilitation and reconstruction will begin. Disarmament and demobilisation will proceed. There will be a joint political and military authority, with international oversight and monitoring, to prepare for the exercise in self-determination.
There should be a provisional government, drawn from all Southern political forces, its composition and powers agreed at the final stage of the peace process. The powers of this provisional government will be limited.
At this stage, a few constitutional issues will need to be addressed. Among the most important are:
- The overall constitutional option should the vote be for unity (i.e. are Southerners voting for a unitary state, for federation or confederation).
- The establishment of criteria for eligibility to vote in the referendum on self-determination and the creation of an electoral roll. This presupposes a de facto ruling on who is eligible to be a citizen of Southern Sudan.
- The composition of a transitional assembly, to be formed shortly after the referendum on self-determination, to oversee the first stage of nation-building and the writing and adoption of a constitution.
2. Transition 2: To Constitutional Government
It will take a further period of time, probably two to four years, for Southern Sudan to adopt a constitution (whether for an independent Southern State or for an autonomous, federal or confederal South within a United Sudan). During this period there should be an elected transitional assembly. If the referendum votes for unity, there will also be elections for the national Sudanese parliament. For the sake of brevity, the following discussion will speak of a ‘Southern State’, which does not presuppose any particular outcome of the referendum.
This second transition should see the following:
- The election of a transitional state/national assembly. This assembly should also include a quota of members chosen by the SPLM.
- The formation of a transitional government of Southern/national unity.
- The creation of a Southern/national army and the separation of the military from civil politics.
- The drafting of a Constitution for the Southern State by a Constitutional Commission.
- The negotiation of the terms of separation or association between Southern Sudan and Northern Sudan.
- The adoption of the draft Constitution by the state/national assembly. (This could either be the transitional assembly or a conference specifically elected for this purpose.)
- This transition would culminate in elections for the assembly (and if chosen, Senate) and for the state or national President.
The economic policies adopted during this transition will be instrumental in determining its success or failure. Given the almost total collapse of the formal economy, it will be necessary for aid donors and creditors to be generous and patient in the conditionalities attached to assistance to Southern Sudan.
III. Constitutional Options in the Case of Unity
These options need to be examined, if only to rule them out as unacceptable, during Transition 1, the transition to self-determination. They need to be examined in detail during Transition 2.
When considering the options, the status of the national Sudanese army vis-à-vis the South is bound to be a sensitive and controversial issue. Success in handling this issue is essential to success in the broader constitutional enterprise. Details cannot be examined here. But two points should be made:
- Any form of unity implies a national army.
- One of the major concerns of the Southerners will be the maintenance of overwhelmingly Southern forces in the South.
1. A Unitary State
The SPLA first argued for a unitary Sudanese State on the grounds that the 1972 arrangements for Southern autonomy had proven unworkable, and that it was preferable to have proper representation for the South in a unified state. There are strong reasons for supporting such arguments. Under any system of government so far experienced in Sudan, power has resided in Khartoum, and devolution of power to regions has proven to be a way of marginalising the regions. Strong representation of the regions in the centre may be the best way to ensure that the regions obtain their share of power and wealth. But it is likely that there will have to be decades of political and economic development in the peripheries before the power of the ruling elite, centered on the riverain North, to be constrained. And the popularity of the idea of self-determination indicates that a unitary government is not likely to be popular.
2. An Autonomous Southern Region
The history of this arrangement (1972-83) was not positive, and means that few Southerners will be ready to accept this. The primary reason is that control over the constitutional status of the South does not rest in the South. But this may be acceptable as an exceptional arrangement for Transition 1, when:
- the governing transitional authority in the South has the primary responsibilities of organising the referendum, establishing law and order, social and economic rehabilitation, return of refugees and displaced.
- we can expect international organisations (IGAD and the UN) to be guarantors of the process leading up to the referendum, so the problem of central government undermining regional autonomy is unlikely to arise.
However, the guarantees on autonomy will need to be exceptionally strong for such an arrangement to be workable.
3. A Single Federal Southern State
This is an obvious and attractive option which is on the table already. Questions that will arise will be:
- What kind of federation--there are many options to choose from. Most will argue that the current federal status under the NIF constitution is unacceptable. In an alternative system, what division of powers and responsibilities between the state government and the federal government will be needed? A North-South federation is one option, a multiple-state federation is another (with several northern states). Most assume that Khartoum will be the Federal Capital, as well as the state capital of the Northern State. Is this appropriate? Or would the location of the Federal Government in Khartoum bring undue advantages to the Northern State? Is there another realistic location for the Federal Government?
- It is important to note that in a federal system, the Southern State would have precisely equal status with the Northern State (or States), under a Federal Government. That is, there would be (at minimum) three governments: a Southern State Government, a Northern State Government, and a Federal Government. The option of federating Southern Sudan under Northern Sudan, is not a politically viable option (as Eritrea was federated under the Ethiopian crown in the 1950s, and Zanzibar has been de facto federated under the mainland Tanzanian government). It follows that the autonomy of the Southern State will be similar to the autonomy of the Northern State or States.
- What will be the internal constitutional arrangements for the self-governing Southern State? This is a very complex question which is addressed in more detail in Section IV below.
- How much constitutional autonomy will the Southern state have? Can it change its parliamentary system? Can it subdivide into smaller states? Usually with a federal system these sorts of constitutional changes can only be effected at the centre. Moreover, there are potential tensions between the NDA proposal of a national referendum on the Constitution and the South’s autonomous right to enact its own constitutional provisions. This is an important issue because such disagreements are the commonest cause of the breakdown of federal systems--and indeed exactly this kind of disagreement was the basis for the collapse of the autonomous status of Southern Sudan under the Addis Ababa agreement.
- Will the Southern State have the continuing right of self-determination up to and including independence? This seems only logical: once the right of self-determination has been acknowledged, it cannot be retracted. If this is the case, under what conditions would it be entitled to exercise that right? (If the Southern State has the right of self-determination, it follows that the Northern State or States will have it too.)
4. Multiple Federal States in the South
Will the South be a single state or several states? The three provinces of Upper Nile, Bahr el Ghazal and Equatoria could each be a State with federal status vis-à-vis a Federal Government in Khartoum. This is the provision in the current NIF constitution.
The arguments in favour of this centre on the fears of certain groups in the South that they will be dominated in a unitary Southern State. These fears could also be assuaged by a devolution of power within a single Southern State.
The arguments against this focus on the experience of Sudanese history over the last two decades, which suggests that the South will be strongest if it is united. Khartoum is likely to play ‘divide and rule’ in the South, and the constitutional guarantees on the rights of Southerners are likely to be very precarious.
This option should be ruled out.
5. A Confederal State
Confederation is also attractive because it precludes interference by the Khartoum government in the internal affairs of the South. It has been floated as a proposal already. However it also has some drawbacks.
- Confederation usually arises when two hitherto independent entities come together to form a single state. Under this arrangement there will be a relatively easy option of secession if things don’t go according to plan. (As Singapore opted out of the Malaysian Confederation.) As this is not the case in Sudan, complications will arise.
- Confederation usually assumes that the two entities are already very institutionally and economically separate, or it won’t work well--there will be too many sources of friction between the confederees. Most importantly, if the South opts for confederal status in the transitional period then the points in Section V, essentially concerning separation, will have to be addressed immediately, i.e. before the referendum. This could be a major source of difficulty during the transition for several reasons:
(i) because these are controversial issues, and the transition is going to be controversial enough as it stands,
(ii) because they are complicated issues and will take up a lot of time and energy on the part of the relatively small cadre of educated Southerners in government and
(iii) because it will seem to many in the North that the decision on separation has been made in a de facto sense already, causing further frictions.
c) The SPLA has proposed establishing a confederal state for the transitional period. If this is set up, then for all intents and purposes, the referendum on self-determination will be between maintaining the status quo (confederation) and independence. Closer union with the North will not be an option.
d) One attraction of confederation is that it is the loosest relationship still compatible with sovereign union, and therefore acceptable to Egypt.
e) A second attraction is that the question of the enduring right of self-determination is settled: a confederal state automatically retains the right to opt out of the confederation.
f) Thirdly, the South retains its autonomy to enact its own constitutional provisions, and the dilemmas and potential disagreements over constitutional powers outlined in the discussion on a federal state would not arise.
This discussion implies that for Transition 1, the South should have either autonomous status guaranteed by the UN and IGAD or there should be a transitional North-South federation or confederation, also with international guarantees. For the long-term, in the case of unity, the options are different. Autonomous status is not a realistic option, and the choice is between federation and confederation, with all the different possibilities that lie therein.
IV. A Constitution for a State of Southern Sudan
In the case of unity, Southerners will demand their own constitution. The following examines some of the options for an internal constitution for a self-governing State of Southern Sudan. These considerations will also be relevant if the South opts for separation.
Some of the following issues will arise in a straightforward form if the South opts for confederal status (or indeed independence). They will be complicated if the South opts for a federal union. For example, it will be difficult to have different parliamentary systems for the State of Southern Sudan and for the Federal Assembly.
While the following discussion focuses on the future ‘permanent’ constitution for Southern Sudan, some of the provisions may also be considered appropriate for the interim constitution that will be in force during Transition 2. For example, an ‘interim federation’ might be in order during this period.
1. A unitary Southern state or a federation?
This discussion assumes that there will not be a Sudanese Federation with multiple Southern states with equal status vis-à-vis Khartoum. It is concerned with the status of different parts of the South vis-à-vis the government in the Southern capital (probably Juba). There are arguments in favour of a unitary State of Southern Sudan, including the following:
- Southern Sudan is simply too poor to afford state governments in different places.
- Mineral resources (oil and gold) are concentrated just in a few areas, and if there were a federal system this would bring disproportionate wealth and power to the areas sitting on top of these resources.
- After years of warfare including internecine strife it is time to build a sense of Southern Sudanese national identity that can only be done by all Southerners working together in a single administration and government.
- A federal system within the South increases the opportunity for ‘divide and rule’ by the Khartoum government.
There are also arguments in favour of a Southern Sudanese Federation, including the following:
- There is deep animosity between certain groups within Southern Sudan due to the way in which successive governments have used ‘divide and rule’ tactics in the South. These animosities often follow ethnic lines, and can best be contained by recognising the rights of different regions.
- Federated powers are a powerful brake on abuse of central power.
- Sudanese experience with regional government is that it does not prevent ethnic conflict; on the contrary it exacerbates it by providing new foci for political competition at a regional level.
Note that a Southern Sudanese Federation would work only if the South enjoyed either confederal status or was independent: a federation within a federation would be unduly complicated.
2. Autonomous areas? A special status for the city of Juba?
In the case of a federation, it is inevitable that the capital city will have to enjoy special status.
In the case of a unitary state, it may be necessary to provide special autonomous status, at least for a limited period, to certain areas. If the fear of serious potential conflicts between ethnic groups is not sufficiently strong to warrant a federal constitution, there may be specific cases in which the grant of autonomous status to certain groups is called for.
3. What electoral system?
There are many options for electoral systems that should be studied carefully. Some of the questions that need to be asked include the following:
- A unicameral or a bicameral system? An alternative formula to federation for ensuring some protection to minority interests is a bicameral system of legislature. A lower house would be elected using geographical constituencies of approximately equal size. An upper house--a senate or ‘house of lords’--could have equal representation for different ethnic groups, irrespective of size, or some other formula that would allow small groups to have a political voice. If the South opts for a federation, its choice on this issue will be constrained by the federal constitution. A bicameral Southern legislature would entail three layers of assemblies nationwide, which is almost certainly too complicated and burdensome.
- Single member districts (SMD), proportional representation (PR) or a combination of the two? Most African countries prefer the SMD system because it is the simplest, because of the strong link that is thereby established between MP and constituents, and because in rural societies people tend to vote along geographical lines, so that distortions that occur in some western systems (e.g. Britain) are unlikely. But SMDs also have their drawbacks, for example when constituencies become the fiefdoms of sitting MPs who may be almost impossible to remove. Some African countries (South Africa, Namibia) have chosen PR-based systems, and other options are also possible.
- Parliamentary decision-making rules can be simple (e.g. majority alone) or complex, requiring super-majorities or votes from various regions for certain critical measures to be allowed to pass.
- There can be constitutional requirements for power-sharing. In a Westminster-style democracy, it is ‘winner takes all’ and the opposition wields no real power at all, merely hoping that it can gain power in the next election. But there are very few African countries in which there has been any genuine party alternation in government, which leads to the situation in which opposition MPs are sorely tempted to defect to the governing party in hope of gaining an office. In response to this likely problem, coalition governments can be constitutionally guaranteed. For example, under the South African constitution, any party gaining above a certain percentage of the votes is guaranteed a ministerial position.
- The role of the electoral commission or other independent agencies for arbitration over electoral disputes can be very important. Under SMD systems, constituency boundaries are important and should be set by an independent agency so far as possible. Disputes over elections should also be investigated and arbitrated by an independent agency. In some countries, such as India, the Electoral Commissioner has gained enormous power. This has both advantages (it minimises fraud) and drawbacks (it can create an incentive for endless petitioning over electoral disputes). Independent election monitoring, for example by the UN or the Commonwealth, can also play a vital role. Overall, it is important that conflict-mediation mechanisms should be built into the electoral process at the design stage.
It is important that the electoral system be designed with both the founding election and subsequent elections in mind. Anticipating certain difficulties with the founding election, the system may be over-designed to deal with those difficulties, and other problems may arise with later elections. It is important that the system is drawn up with a long-term perspective. Meanwhile, some of the particular problems anticipated with the founding election may demand one-off solutions, for example a pre-election pact between major parties to share power in a coalition government.
Voter education will be very important in Southern Sudan where most citizens have little or no experience of voting for a government.
If Southern Sudan opts for a federation with the North, its choice of electoral system will be constrained by the Sudanese Federal Constitution. But it is important to note that some of the provisions outlined, such as conflict resolution mechanisms built into the electoral system, can also be ad hoc initiatives designed specially for the circumstances of Southern Sudan.
4. A presidential or a parliamentary system?
There are strong arguments in favour of either system of government, but a presidential system is probably most appropriate for Southern Sudan. The possibility of numerous small political parties, fragmented and based on ethnic constituencies, might make a parliamentary system prone to instability. In addition, the role of the SPLA might militate in favour of a presidential system, with the interim presidency awarded to the SPLM Chairman. The structure of the SPLM/SPLA--its domination of the military and political landscape of Southern Sudan, its integrated military and political command, combined with its potential electoral vulnerability should other parties become well-organised--are not well suited to a parliamentary system.
If the South opts for a federation, its choice on this issue may be constrained by the federal constitution.
5. A multi-party system or a Ugandan-style ‘no party’ system?
The tradition of Northern Sudan strongly supports the creation of a multi-party system. During former parliamentary regimes in Sudan, Southerners have been active within this multi-party system. On the other hand, the experience of Uganda also has relevance for Southern Sudan, and there are arguments for disallowing political parties which are, or are likely to become, based on ethnicity. A compromise would be a system that allowed political parties but limited their power, either with a bicameral system or a strong presidency, or both.
If the South opts for a federation with the North, the choice will automatically be made: a multi-party system will be in place.
6. A bill of rights?
A Southern Sudan constitution should include strong guarantees on human rights. This could be done by the incorporation of the Universal Declaration of Human Rights and/or African Charter of Human and People’s Rights as a constitutional provision enforceable in the courts. It will also require a strong and independent judiciary to make this meaningful. As other Issue Papers have shown, there are also abuses of human rights embedded in the traditional social structures of Southern Sudan, which result in discrimination against women and children and some harmful traditional practices. Human rights education and social development will be the means whereby these abuses can be tackled.
In the case of a federal system, the human rights guarantees in the Federal Constitution will also be applicable in Southern Sudan.
7. Separation of powers
Southern Sudan should have an independent judiciary. This is a standard and basic provision for protection of human rights and the rule of law.
A more controversial question is the nature and authority of the high court, and what institution should be the custodian of the constitution. Should Southern Sudan follow the tradition of democratic Sudan in making the High Court the Constitutional Court? Or should it follow the Ethiopian model of making the national assembly the Constitutional Court, empowered to interpret as well as amend the constitution?
Under a federation, many of the ultimate constitutional powers will rest with a Constitutional Court in the federal capital (probably Khartoum).
8. Should there be privileged representation for the SPLA?
The SPLA has played the historic role of demonstrating, once and for all, that the people of Southern Sudan cannot be ruled against their will. The SPLA is primarily an army, although the SPLM is also organising as a political party. However, at least for the initial period of an independent Southern Sudan, the SPLM cannot be regarded as a political party just like any other.
One of the prime reasons for this is the question of the national army. Initially, the SPLA will be either the national Southern Sudanese army or at least be the backbone of that army. But the SPLA is also a political movement. In time, the army will have to become a non-political, professional force. But in the short term, such a move would deprive the SPLM of most of its cadres. On the other hand, if the SPLM becomes a ‘normal’ political party, it cannot retain a ‘private’ army associated with it. For practical and political reasons, the transformation of the SPLM/SPLA can only happen after the transition to self-determination is complete.
For an extended period, which includes the interim period and during the second transition until the formal adoption of the Southern Sudanese constitution, it follows that the SPLM will have to retain a special status as the dominant military and political power in Southern Sudan. After the adoption of a constitution, however, the SPLM cannot be privileged vis-à-vis other political parties: if it wins power through elections it must do so purely on its own merits.
V. Legal Questions Affecting the Establishment of an Independent State of Southern Sudan
The following discussion in no way presupposes the outcome of a future referendum on the constitutional status of Southern Sudan. The decision will be in the hands of the Southern electorate. But separatists and unionists alike must examine the implications of an independent Southern Sudan.
The internal constitutional issues that will arise with an independent Southern Sudan, during Transition 2, will be exactly the same as those outlined in Section IV, with the simplifying factor that there will be no involvement of any government in Khartoum.
The external issues that will arise will be more complex, and must be studied carefully. The recent problems between Eritrea and Ethiopia illustrate that it is important for a ‘state divorce’ to be handled in the proper manner, without relying too heavily on personal friendships between the leaders of the two states. All aspects of the separation must be formal and legal, and handled at the appropriate time. Some may need to be addressed even before the outcome of the referendum on self-determination is known; others can be addressed in the second transitional period leading up to the adoption of the Southern Sudanese constitution, while still others can be outlined in principle at this time but need only to be implemented later.
Some of the questions that will arise will be the following:
- The Nile Waters agreement with Egypt: what will be the South’s status?
For Egypt, this is one of the most sensitive questions concerning a possible independent Southern Sudan. Southern Sudan’s position on this issue will be a powerful factor in determining the Egyptian position on Southern Sudanese self-determination.
In terms of international acceptability, the easiest path for Southern Sudan is to make the minimum demands on the Nile Waters, and formally acknowledge this. But Southern Sudanese will surely demand that a more favourable arrangement is concluded.
There are several options facing the South:
(i) Will Southern Sudan automatically accede to the Nile Waters Agreement, and negotiate with Northern Sudan on the question of how to divide up Sudan’s existing quota?
(ii) Can Southern Sudan negotiate bilaterally with Egypt?
(iii) Or will there need to be a new conference of the riperine states in which a new quota is allocated for Southern Sudan? This should be determined in advance of any referendum.
- Qualifications for citizenship of Southern Sudan.
This issue is a vital one facing any new state. It will be especially important for Southerners resident in the North and vice versa. Some of the criteria for citizenship will be pre-judged by the decisions made earlier about who is entitled to vote in the referendum for self-determination. However, this decision should not prejudice any possible changes in the law of citizenship.
(i) The basic question is the criteria for citizenship. Will this essentially be ethnic or a question of residence? Or a combination of the two?
(ii) Can individuals have any discretion in choosing their nationality? Or will nationality be decided solely on objective criteria laid down by governments?
(iii) Will there be provisions for dual citizenship? Or will there be a transition period in which Sudanese citizens are required to decide which state to join?
- Southerners resident in the North and Northerners resident in the South.
The status of Southerners in the North and Northerners in the South will be a key question. Many cases of separation of states have resulted, immediately or after some time, in mass expulsion, ethnic cleansing or other forms of abuse. (Examples include India/Pakistan, Serbia/Croatia/Bosnia and Ethiopia/Eritrea.) In other cases, nationals of one country have taken continued to live as citizens in the other without prejudicing their status (Great Britain/Republic of Ireland). Among the most pressing issues will be the following:
(i) Will Southerners in the North and Northerners in the South continue to enjoy the privileges of citizenship when it comes to residence and voting?
(ii) Will they have be subject to the tax and investment codes of citizens or foreigners? This will be a particularly sensitive issue as the South has long accused Jellaba traders of exploiting their country, and there will be strong demands for Northern businessmen to be treated as foreigners when it comes to commercial activities including banking. In addition, the very large number of Southerners displaced in Northern Sudan are engaged in petty trade, often unlicensed, which is normally only permitted for citizens. Are these people to be allowed to continue? Natural justice would imply that yes, they are, at least for a prolonged interim period.
(iii) What other civil rights will Southerners enjoy in the North and vice versa? Hundreds of thousands of displaced Southerners are already treated as second-class citizens in the North. In the event of an independent Southern Sudan, there is a possibility that they will summarily be deprived of their citizenship in Northern Sudan and subject to a range of abuses including expulsion.
(iv) What will be the status of outstanding obligations by the Northern Sudanese state towards Southern citizens, such as pensions for civil servants? Will the new Southern Sudanese state inherit these obligations, or will the Northern State be considered responsible?
Clearly, the only policy compatible with human rights and the mutual interests of the two states will be that Southerners in the North, and Northerners in the South will continue to enjoy the status of citizens, at least for an extended transitional period, and if there is to be any change in that status it should be managed slowly, carefully, legally and democratically. The dangers of spontaneous popular action against nationals of the other country should be considered carefully, and planned for in advance.
- Mutual security arrangements and defence pacts.
The national security of the new Southern Sudanese state will be a major concern, and many Southerners will suspect that Northerners still harbour designs on reunification or domination of the South. Northern Sudan will also have major security concerns, particularly because Northern Sudan is likely to include many people who have sympathies with the South and actual or former members of the SPLM. Southern Sudan will be seeking guarantees of non-interference by Northern Sudan and vice versa. If the Nuba Mountains and South Blue Nile are included in Northern Sudan, then the Southern Sudanese state will clearly have special interests in these areas, because of the history of common struggle.
- Monetary policy
Will the new Southern State have its own currency and monetary policy? The extreme dissimilarity between the economies of Northern and Southern Sudan implies that the two countries will require very different economic and financial policies, which in turn will dictate a new currency for Southern Sudan. In this case, a number of issues will need to be resolved including the following:
(i) At which time the new currency will be introduced.
(ii) The status of Sudanese pounds in circulation in Southern Sudan at the time of the handover. (Are they a liability on the Bank of Sudan, and if so, at what level of the face value?)
(iii) Exchange rates between the currencies and management of cross-border trade. Will this be on a preferential basis allowing for direct exchange between the currencies or will it function through normal foreign exchange restrictions used for trade with other countries?
- Division of the national debt
This is a potentially controversial issue: will an independent Southern Sudan be ‘debt-free’ (as in the case of Eritrea) or will it be required to shoulder some of the country’s $18bn debt? This issue will not be easily resolved.
(i) Many Southerners will argue that South Sudan should be debt-free, as it did not benefit from the loans originally taken out by governments in Khartoum.
(ii) Northerners will argue that they, too, did not benefit from the loans. They will argue that development programmes such as the Jonglei Canal were located in the South, and Southerners and SPLM members were high-ranking members of the Nimeiri regime when it took out loans.
- Division of joint assets.
A related question to the division of liabilities is the division of assets. These include infrastructure (railways, ferries), companies (Sudan Airways, etc) and the resources of the national government (ministries and parastatals which are predominantly based in Khartoum). A formula will be needed to provide for a fair division of these assets.
Southern Sudan will need its borders fully and properly demarcated. There are several issues here.
(i) Whether ‘Southern Sudan’ is defined as the three Southern provinces existing on 1-1-56 or another formula. This is a political decision that will be taken during the peace negotiations. The status of Abyei is likely to be the main factor in this.
(ii) Even if, for example, the 1-1-56 borders are accepted, there are potential border disputes. These exist at Hofrat an Nahas on the western side, along the Bahr el Arab/Kiir river, and at Chali el Fil/Yabus on the eastern side. There may be other potential flashpoints too. The experience of Ethiopia and Eritrea suggests that these issues should be settled as soon as possible. If they cannot be settled by bilateral agreement, they should be referred without delay for international arbitration.
(iii) Southern Sudan has other actual and potential border disputes with other neighbours. The Ilemi Triangle dispute with Kenya is one example. These also need to be subject to a due process of negotiation and if necessary international arbitration.
(iv) Internal boundaries in Southern Sudan may be another contentious issue. This will arise especially if there is a federal arrangement within the South. A process needs to be established that is seen to be independent and fair, whereby internal border disputes can be resolved. A border commission is one possibility.
- Management of cross-border tribal movements.
The border between North and South is porous, particularly for pastoralists who graze their animals on both sides. An agreement must be reached on the status of such people and their rights to grazing and water. Similarly, noting that disputes over grazing and water are frequent sources of conflict within the South, agreements on free or regulated internal movement of peoples and use of natural resources will have to be reached.
- Accession to international treaties, humanitarian conventions and human rights law.
Will the Southern Sudanese state automatically accede to the treaties formerly ratified by Khartoum? Or will it start from scratch? One proposal is the following:
a) Southern Sudan will automatically accede to all human rights and humanitarian conventions that Sudan has acceded to, such as the Universal Declaration of Human Rights, the Geneva Conventions, the Convention on the Rights of the Child.
b) All other bilateral or multilateral treaties will be renegotiated. Southern Sudan will certainly join the UN, OAU and IGAD but almost certainly not the Arab League or the Organisation of the Islamic Conference. Joining the (ex-British) Commonwealth may also be an attractive option.
c) The Nile Waters Agreement may be treated as a special case.
VI. The Second Transition: From SPLM/SPLA to Constitutional Government
Under any scenario, the immediate political future of Southern Sudan will be dominated by the SPLM/SPLA, but there will be significant other political forces in competition. One of the major challenges for Southern Sudan will be to ensure that the dominant SPLM/SPLA respects the opposition, while the opposition is ready to provide the political space and time needed for the SPLM/SPLA to undergo the necessary transformations.
During and after a transition, the SPLM/SPLA will be both a political party and an army. It cannot stay this way indefinitely. The preferred trajectory is that the SPLM should evolve into a political party and the SPLA into the backbone of the Southern national army. This is a difficult process that cannot be accomplished quickly. If SPLA soldiers are immediately ‘depoliticised’ and become professional officers in a state army, the SPLM will lose most of its cadres and will be in a weak position to mobilise a political constituency for elections. This would be a destabilising situation, unacceptable to the SPLM.
After a settlement, civilian SPLM cadres and their military colleagues will not lose their camaraderie and common interests. In most countries where a liberation movement has come to power, politicians and soldiers have remained as close colleagues, and this has ensured regime stability. Ex-liberation fronts in government have proved remarkably enduring and immune to political coups. A system of rule, based on the dominance of the SPLM/SPLA in political and military spheres, will be attractive to many in the SPLM leadership. This could either be a ‘no-party’ system such as in Uganda, a one-party system (now a discredited alternative) or a system in which one party consistently dominates the assembly, and small parties are in perpetual opposition.
This option has serious drawbacks. Experience from elsewhere in Africa indicates that the cost of a single unchallengeable political-military establishment has been the exclusion of important political and ethnic constituencies, resulting in some cases in prolonged civil wars, and in others in repressive governments. Many are aware of similar dangers in Southern Sudan, where significant constituencies support political-military movements other than the SPLM, raising dangers of internal conflict.
In Southern Sudan there is the additional complicating factor that a cadre of Southern politicians have experience of civilian electoral politics which they will use to good advantage, perhaps winning constituencies against the less electorally-sophisticated SPLM cadres. Civilian politicians are unlikely to command military forces, but a clash between a civil opposition which is able to use sophisticated public relations methods, especially with reference to the international community, and a military-political elite in power, would be dangerous.
Some of the elements required to effect this transition to constitutional rule include the following:
- Disarmament and demobilisation of former combatants of the SPLA and other armies, and their reintegration into civilian life.
- The creation of a national army for Southern Sudan, with fair representation of all groups and a common professional, non-political ethos.
- A process of internal reconciliation between different groups in the South who have, in recent years, fought one another.
- Assistance to the SPLM to enable it to train its cadres in the requirements of civilian politics, including electoral campaigning, etc.
- Internal reconciliation between groups formerly in conflict.
But these measures will be insufficient unless the Southern political system provides an opportunity for the SPLM/SPLA to relinquish its party-based control of the armed forces, by means of guarantees on its continued political role. The most important factor will be time: none of the processes necessary to establish a workable democracy in Southern Sudan will occur quickly. There is a serious danger that if there is a too-rapid move towards electoral democracy, this will spark violent competition between different political forces, including human rights abuses and the risk of derailing the entire democratisation process.
A proposed solution to this problem is the following:
- During Transition 1, the SPLA, along with other Southern movements, keeps a core of its forces intact under its political control.
- During Transition 2, a national army is created, severing the link between the SPLM and the SPLA fighters who become members of the national army, while in the meantime the SPLM/SPLA retains a privileged representation in the national assembly and government.
- After the completion of Transition 2 and the adoption of the Constitution, the SPLM becomes a political party like any other (should it wish to continue in this form).
The challenges outlined in this paper cannot be resolved easily. One of the challenges of the immediate future and the post-war period is a detailed study of the social, political and ethnic cleavages in Southern Sudan, in anticipation of potential future disputes and even conflicts. Some but not all of these potential problems can be overcome by a well-designed constitution. But even the best constitution cannot deal with the completely unexpected. And it can only work if the parties are committed to working in a non-violent, lawful and democratic manner.
The Steering Committee has no view on what is the best option for Southern Sudan, only that it is important that all the options be considered carefully and fully, and the final decision be arrived at by a properly democratic process.
If peace is achieved, the Sudanese constitution may be the first African constitution of the Third Millennium. This paper has outlined just a few of the many complex constitutional issues that will face the establishment of a State of Southern Sudan, whether than be federal, confederal or even independent.