STEERING COMMITTEE FOR HUMAN RIGHTS IN THE TRANSITION IN SUDAN

MECHANISMS FOR IMPLEMENTATION

This is an issue paper based on research done by John Luk Jok.

"The application of the right of self-determination requires a free and genuine expression of the wishes of the people concerned."

Introduction

The people of Southern Sudan have struggled for more than four decades asserting their inalienable right to self-determination against all successive post independence governments in Sudan. Those governments consistently denied any justification for the claim and set out to suppress it through both political manoevres and military force. The consensus throughout post-colonial Africa has been the preservation of the boundaries left behind by the colonial authorities. It was important for newly-independent African states to guard jealousy against any attempts that may impair their territorial integrity and sovereignty. The right of self-determination was understood simply as encapsulating the principles of decolonization and the non-intervention in the internal affairs of each member state of the United Nations. The fact that colonial boundaries trapped certain ethnic, religious or cultural groups within the new boundaries, or arbitrarily divided them, against their aspirations was viewed insufficient reason to justify the revision of colonial boundaries. This position was in conformity with the OAU Charter and subsequent policy declarations particularly the Cairo resolution of 1964 by OAU Heads of State.

When Southern Sudanese petitioned both the United Nations and the OAU in 1967 on the grounds that Southern Sudan was being subjected to internal colonialism by the North, the claim fell on deaf ears. The Southern struggle continued until 1972 when the South was conceded regional self-government.

In 1983, the Central Government abrogated the Regional Self-Rule for the South contrary to the provisions of the National Constitution of 1973, which enshrined the self-government in its article 8 as an organic law which could only be amended in accordance with its provisions. Article 34 of the Act required three-fourths of the National Parliament and two-thirds of the people of the Southern Region voting in a referendum for its amendment. These requirements were not followed in 1983 when President Nimeiri dissolved the Regional Government, broke up the South into smaller entities and imposed Islamic laws throughout the country. This is what led to the current war which has so far raged on for more than fifteen years.

At Abuja in 1992, the two factions of the SPLA agreed on a common platform for self-determination. Since then the issue has been a fundamental demand of the Southern struggle.

1. Self-determination Recognised

Since 1995, there have been new developments internally in the Sudan regarding the right of self-determination for Southern Sudan. Both the government and the opposition political forces in the North have finally come out openly to recognise that unity of the Sudan cannot be maintained through the use of naked force or coercion, that the people of Southern Sudan are entitled to the exercise of the right of self-determination.

The right of self-determination may be divided into two aspects, namely internal and external self-determination. Internal self-determination is concerned with issues of democratic government. External self-determination has been applied most frequently to colonial situations. In the colonial context it amounts to a transfer of territory from the colonial power to the independent state. Here self-determination in effect operates to restore lost status and not assert a new right. This has been pointed out by R. Bhalla:

What self-determination provides for in reality is the restoration of the status of which they were deprived by the colonial power. What is involved here is not secession from the colonial power, nor is it a case of granting a new right for it is simply the restoration to the colonised people of a right of which they were forcefully deprived.

In cases where the territory is not a colony this approach relies on constitutional or legislative provisions of a state and the level of human rights violation to decide if secession of a part of that state's territory can occur. A basic requirement in this regards is to have a territory which is geographically separable from the rest of the state.

The claim for self-determination in Southern Sudan is based on the colonial history of the territory and the systematic and gross violation of human rights in the territory throughout the independence period of the Sudan.

This paper will not engage in any substantiation or exposition of the legal, historical or political grounds which justify the right of self-determination for Southern Sudan as that is not the immediate purpose. The issue has been argued elsewhere. It will instead take it for granted that there is now a recognised right of self-determination, beyond dispute, and focus on the mechanisms for its implementation. No right can be isolated from the institutions and procedures available for its enforcement. Our focus here will be on the mechanisms for the implementation of the right of self-determination in Southern Sudan.

The right to self-determination of the Nuba people and other marginalised people in northern Sudan will not be discussed in this paper. (It is dealt with in a separate issue paper for the conference.)

But before discussing the available mechanism for implementation it may be useful to outline the documented positions of the Sudan Government and the opposition National Democratic Alliance (NDA) under which the right of self-determination is openly recognised.

2. Government Position

The Sudan Government has, for the first time in history, publicly committed itself to the principle of self-determination for Southern Sudan. This is a major victory for the Southern forces and the SPLA in particular.

Constitutional Decree number 14 of 1997, stipulates in article 3(15) that ‘citizens of the Southern states shall exercise the right of self-determination through a referendum.’ The Decree further provides that ‘the referendum shall be held after four years from the date of the formation of the Coordinating Council for the Southern States.’ The options in the referendum will be unity or secession.

Constitutional Decree number 14 was issued in implementation of an Agreement reached between the government and some military and political groups from the Southern Sudan known as the Khartoum Agreement. In further confirmation of this Agreement and the right of self-determination, Sudan's President General Omer el Beshir gave the following account of the agreement on self-determination before a meeting of the OAU Heads of state held in Harare, Zimbabwe between 2-4 June 1997:

The negotiations concluded that the viable and comprehensive solution is to allow the people of Southern Sudan exercise the right of self-determination and make their choice between unity and separation, through a free and fair referendum at the end of a four year transitional period.

Also during the IGAD-mediated peace talks held in October/November 1997, the Sudan Government delegation submitted the following as its position on self-determination:

The right of self determination to the people of Southern Sudan shall be reaffirmed by all parties as a political solution for the conflict in Southern Sudan.

This position was re-affirmed by the Government delegations to the April and August 1998 IGAD peace talks. There are however strong grounds for questioning how genuine the NIF’s commitment is to the principle of self-determination. Most of the principles of the Khartoum Agreement with SSIM and SPLA-Bahr el Ghazal Group have subsequently been undermined by the Sudan Government, leaving a paper agreement only.

3. Position of the National Democratic Alliance (NDA)

Completing the range of political groupings that have recognised Southern Sudan’s right to self-determination, the NDA has also committed itself to this principle.

3.1 The Asmara Declaration

The substantive position of the National Democratic Alliance, which is an umbrella organization which brings together the major Northern political parties, trade unions, regional armed groups and the Sudan People’s Liberation Movement (SPLM), recognises self-determination. The basic document of reference is the Asmara Declaration of 1995, encapsulating the resolutions of the conference on fundamental issues. The Asmara Declaration in its preambular paragraphs emphasised the fact that unity of the Sudan cannot be durably based on force or coercion but on just and the free consent of all the various groups in the Sudan. The resolution on self-determination committed the NDA to the following:

1. Affirms that the right of self-determination is a basic human, democratic and people’s right which may be exercised at any time by any people.
2. Recognises that the exercise of the right of self-determination constitutes a solution to the ongoing civil war and facilitates the restoration and enhancement of democracy in the Sudan.
3. Affirms that this right shall be excised in an atmosphere of democracy and legitimacy under regional and international supervision.
4. Declares that the people of Southern Sudan (within its boundaries as they stood on 1/1/1956) shall exercise the right of self-determination before the expiration of the interim period.
5. Resolves that the views of the people of Abyei District as regards their wish to either remain within the administrative setup of Southern Kordofan region or join Bahr el Ghazal region shall be ascertained in a referendum to be held within the interim period but before the exercise of the right of self-determination for the South. If the outcome of the referendum establishes that the majority of the people of the District wish to join Bahr el Ghazal, the people of Abyei shall accordingly exercise the right of self-determination as part of the people of Southern Sudan.

3.2 The NDA Draft Constitution

The draft Transitional Constitution of the NDA has incorporated the Asmara Declaration into its provisions. However, the article regarding the right of self-determination for Southern Sudan has been drafted in a way that clearly reveals the direction to which the outcome of the referendum will be influenced. Article 65(1) reads:

While giving maximum priority to the unity of the Sudan, the right of self-determination for Southern Sudan in its boundary as it stood on January 1, 1956, shall be guaranteed and shall be exercised within the interim period.

This article has to be read in conjunction with Resolution 111(12) of the Asmara Declaration which stipulates that

the constituent members of the NDA shall adopt one common stand on options to be presented in the referendum in the South which options shall be a) unity (confederation/federation) and b) independent statehood.

The implication of these provisions on the fair and free conduct of the referendum will be considered below when discussing the referendum as a mechanism for the exercise of self-determination. What needs to be pointed out here is the fact that the draft constitution has omitted any mention of the options which will be presented to the people to choose from in the referendum. This is an important omission which must not be ignored. Total reliance should not be put on the Asmara Declaration alone since it has been seen desirable to draft a constitution for the interim period.

4. Mechanisms for Implementation

The implementation of the available options of self-determination requires the free, voluntary and informed choice of the people concerned. In the words of judge Dillard, the application of the right of self-determination requires a free and genuine expression of the wishes of the people exercising the right. From the practice of the United Nations in the context of decolonization, the political choices which a people can make in exercise of the right of self-determination allow a degree of flexibility. The people can choose to establish an independent and sovereign state, the free association or integration with an independent state or the emergence into any other political status freely determined by them. Political arrangements, such as confederations, federations, regional autonomies etc., are also appropriate modalities for implementing self-determination.

In the case of Southern Sudan where the political options have been clearly defined by the parties to the conflict as being unity in its various forms or the establishment of an independent state in Southern Sudan, there remains some important questions to be answered. These questions concern the procedural mechanisms through which the wishes of the people will be ascertained. The referendum is the primary mechanism which the parties have recognised.

5. The Referendum and Related Issues

Referendums are useful mechanisms for resolving fundamental constitutional or political issues. They have many different forms and functions. Referendums may be mandatory or advisory. They have often been invoked by the various nations of the world to give legitimacy to constitutional changes, boundaries changes or policies.

Sudan is not used to holding referendums to resolve fundamental political, constitutional or moral issues. When the Sudan became independent in 1956, the vote for self-determination and independence was taken by representatives in Parliament instead of a direct vote by the electorate. The country saw referendums only during the sixteen year rule of President Nimeiri who used referendums as means of obtaining popular mandate for his presidency. No other candidates were allowed to stand for the presidency. The outcome of the presidential referendums used to record 99.8 or 99.9 percent in most cases.

A referendum on self-determination in Southern Sudan would be a political event of unprecedented occurrence. This therefore, requires that all the possible issues connected with it be examined and discussed. As to its nature and outcome, it will certainly be mandatory and not advisory. The parties concerned intend it to be an authoritative verdict of the people.

a. Identifying the voters

This may appear on the surface as a simple matter since one can easily say that the voters will be Southern Sudanese. But this certainly would beg the question as to who are the Southern Sudanese? Are Southern Sudanese defined by geography or by ethnicity or some other common factors?

During normal parliamentary elections in the Sudan, those who used to vote in the Southern territorial or geographical constituencies were those Sudanese who have lived in the constituency in the preceding six months before the start of the registration of voters. Accordingly, individuals from any part of the country used to vote anywhere in the Sudan provided that they can show that they have been resident in the constituency area in the past six months. Under this rule, Southerners can vote or nominate themselves in Northern Sudan and vice versa. In the 1986 general elections, many Southerners voted heavily in Khartoum constituencies while some indeed contested the parliamentary seats. All this, is in accordance with the law. There is guaranted freedom of movement and residence in all parts of the Sudan for all Sudanese. What problem does this give rise to in the context of the referendum on self-determination for the people of Southern Sudan and its outcome? Let us imagine a situation where a peace agreement comes into effect with the incumbent regime providing among other things, for the right of self-determination, or where the incumbent regime is overthrown and a government of the National Democratic Alliance takes the reins of power and the war comes to an end. In either case it may happen that huge numbers of Northern Sudanese decide to come to the South together with the two million Southerners in Khartoum, to settle finally there to seek better opportunities of livelihood in the exercise of their freedom of movement and residence as guaranteed by law. It could also take the form of a planned migration to the South with the aim of influencing the outcome of the referendum in favour of their preferred option. How would such a situation be handled? There is a living example in Africa in which an incumbent government sought to influence the outcome of a referendum in a territory which it wanted to annex, by sending a huge number of its citizens to that territory so that they can register and participate in the referendum. This was precisely the controversy over the referendum in Western Sahara between Morocco and the Polisario Front, which has led to the apparently indefinite postponement of the Saharawis’ exercise of their right of self-determination.

In Southern Sudan if the referendum were to be conducted under a national government with a declared policy of unity (either NIF or NDA), then the chances of having a truly fair and democratic referendum may not be altogether certain. This may occur because the government may use state power to bring about its preferred option of unity. This may include flooding the South with pro-unity voters from other parts of Sudan using freedom of movement under the constitution.

How do we define a Southern Sudanese then? The ‘self’ that is to determine itself or exercise the right is often defined as referring to ‘the indigenous people of the territory where self-determination is to be exercised.’ It follows that a Southern Sudanese may be defined to include any person who is domiciled in the three Southern regions (former provinces) of Bahr el Ghazal, Equatoria and Upper Nile in their boundaries as they stood on 1st January 1956 and belonging to one of the indigenous ethnic or tribal groups in those regions through one or both of his parents. (Special provisions can be made for Abyei along the lines laid down in the Asmara Declaration.) This would exclude persons taking up temporary residence in Southern Sudan for purposes of employment or trade from other regions of the Sudan. Southern Sudanese who have taken temporary residence in the other parts of Sudan because of the war should return home to be able to vote at the material time for the referendum. Those who have taken refuge abroad should be allowed to cast their votes in the countries of refuge or residence at the Sudan diplomatic missions. All voters of course should be of a voting age.

Having identified in principle who is entitled to vote it will be necessary to conduct a census to enumerate and register the voters. This will enable the size, composition and location of the eligible population to be known and will be an important safeguard against fraud. Conducting a census or voter registration exercise is a difficult exercise, and will be especially so in Southern Sudan which has been ravaged by many years of war, and where there are no reliable existing population figures. (The population of Southern Sudan has never been enumerated. The 1955/6 census was based on a sample only and the subsequent censuses of 1973 and 1983 are considered unreliable because they were conducted just after the first war and during the second. No reliable census has been conducted since the outbreak of the war and, in truth, no-one has an estimate of the total number of people of voting age in the region.) Conducting a credible census is a huge task that will take much time and expertise, including advice and monitoring from international specialists, and should be begun early during the transitional period.

It is important that all who are eligible to vote are able to do so and that there are seen to be no biases or omissions in the registration process. If eligible citizens believe they have been unjustly deprived of their opportunity to vote, they may dispute the result. Alternatively, if some individuals or groups believe that the registration process is discriminating against them, they may decide to boycott or disrupt the process. A high turnout will give greater legitimacy to the exercise and its outcome.

It is important to note that Southern Sudanese will be voting on the status of the South. It is not all Sudanese voting on a one-state or a two-state option. Northern Sudanese should not be entitled to vote in this referendum.

b. Who organises the referendum?

Referendums on self-determination are events of fundamental importance because of their serious implications on the territorial sovereignty and integrity of states because they often bring about the dissolution of states. In recent years, the world had witnessed referendums on territorial issues in the former Soviet Union, Eritrea and Yugoslavia which resulted in the dissolution of the old state and the rise of new independent states. A referendum in Quebec, Canada, failed to support independence. Referendums in Ireland and various European states have also been used to ratify proposed constitutional changes.

In the former Soviet Union most of the component republics independently carried out their own referendums and proclaimed national independence and sovereignty from the Soviet Union. Some even boycotted the all-union referendum which Gorbachov called for to preserve the union. Those independence referendums in the Soviet republics were called by the governments of those states as ways of legitimising their proclaimed independence. These referendums led to the final dissolution of the Soviet Union. There was nothing the central authority could do to preserve the union in the face of a strong desire for independence by the majority of the republics.

In Ethiopia, after the defeat of the Mengistu regime by the Eritrean People’s Liberation Front (EPLF) and the Ethiopian People’s Revolutionary Democratic Front (EPRDF) the way was open for Eritrean independence. In 1993, the Provisional Government of Eritrea organised a referendum for the people to decide whether they wanted Eritrea to be independent or remain part of Ethiopia. There was an overwhelming vote in favour of independence and sovereignty for Eritrea. The result was respected by the government in Addis Ababa.

In the splintering of Yugoslavia, independence for the republics of Slovenia, Croatia, Macedonia, and Bosnia-Hercegovina were preceded by referendums which were called by the republics themselves. Other smaller minority groups also organised referendums to assert their autonomy. In the case of Bosnia-Hercegovina, the referendum was boycotted by the ethnic Serbs (about 44% of the total population), which meant that the vote for independence was open to challenge from the outset. Avoiding similar problems is important in Southern Sudan: all must be encouraged to vote.

Czechoslovakia represents a unique case in which a referendum was superseded by mutual agreement between the Czech and Slovak state governments to dissolve the federation without referendum. The two communities were divided by language, religion and ethnic identity. The dominant Slovak party was pushing for independence. There were demands for a referendum to be held throughout the Czech and Slovak federation to decide the fate of the country. There were clear indications that popular opinion supported a referendum and the perservation of the federation. But the two parties that won the 1992 elections negotiated a split and agreed to dissolve the federation without a referendum. The referendum law (which was not applied) provided that an absolute majority of voters in either republic would be enough to sanction secession. There was little chance of getting this absolute majority in each of the two republics of the federation. The Czecholavak case represents an instance in which the elites short-circuited a referendum which might have kept their country together in favour of secession. This serves to illustrate the capacity of those in authority to thwart mass opinion and take things in the direction they prefer. The fear that matters can take the mirror-image route in Sudan--in favour of unity--as a result of some influence from the NDA in conformity with its pro-unity stance is a point of concern.

In Somaliland, formerly north-west Somalia, no referendum was held, and the Somali National Movement, controlling the territory, unilaterally declared secession in response to popular pressure from citizens. The independent statehood of Somaliland has not been recognised by any other country. This approach should be avoided if at all possible.

There are other relevant experiences of countries that have recently emerged from war or colonial domination, organising elections. These have been organised by or with the cooperation of the UN and other international bodies in countries such as Cambodia, Namibia and Mozambique. This experience is particularly relevant in situations of negotiated withdrawal of a colonial power or the end to a civil war.

Let us come back now to the referendum in Southern Sudan, after reviewing the above experiences with referendum in some parts of the world in recent years. Southern Sudan like Eritrea has pursued the path of armed struggle in pressing home their demand for self-determination to rectify historical injustices. Like the Eritrean problem, the conflict in Southern Sudan has its roots in the colonial history of the territory. Also to some extent, the present alliance between the Northern opposition forces and the SPLM within the framework of the NDA bears some resemblance to the alliance of the EPLF, EPRDF and other groups in Ethiopia which dislodged the Dergue from power in May 1991.

After the fall of the Dergue the EPLF established a Provisional Government for Eritrea (PGE) pending the referendum on self-determination over a two year interim period. It was the PGE that organised the referendum under international observation. This model is preferred for Southern Sudan by the SPLM. According to its plan, after the fall of the NIF, the SPLM should set up a provisional administration in Southern Sudan during the interim period which would organise the referendum on self-determination. The role of the central authority would be general observation to satisfy itself that there is no foul play and that the referendum is free and genuine. It should be carried out under international supervision. The role of the national legislature should be limited to the enactment of the necessary legislation to govern and define the necessary procedures and requirements. This Eritrean model may be appropriate in a situation where the SPLM/SPLA takes territorial control of the South before or on the collapse of the NIF Government.

Should the SPLM fail to have complete territorial control of the South, the options include the following: (a) a negotiated withdrawal of non-SPLA forces, handing over administration to the SPLM, (b) all-party consent to an SPLM-organised referendum, or (c) an independent referendum commission. The third possibility must be considered in some detail.

c. An independent commission

Setting up an independent Referendum Commission, is another possible option. The composition, powers and functions of this commission should be contained in a special referendum law enacted by the National Legislature body for the interim period.

The new constitution which the National Islamic government has recently promulgated through the National Assembly and which will be presented for approval by the Sudanese people in a referendum, provides for an independent General Election Commission. Article 133(1) gives the President the power to appoint the Chairman and members of the commission. The Commission is answerable to the President and the National Assembly. The functions of the commission are spelt out under article 133(2) to be:-

1. Preparation of the general electrol roll and periodically revising it.
2. Running the general referendum determined by the constitution or law.
3. Any other electrol functions defined by law or assigned by the President of the Republic.

The Khartoum Agreement between the incumbent government and some former Southern rebel groups provides for the establishment of a Special Referendum Commission (SRC) which will ensure that ‘the referendum is free and fair’. It is set up by Presidential decree in consultation with the Coordinating Council for the Southern States. The initial period within which the referendum will be conducted is defined in very flexible way. It is four years and may be increased or decreased according to circumstances and the wishes of the parties to it.

There are several major problems with this agreement which indicate that the proposed Referendum Commission cannot be considered truly independent:

1. The lack of firm commitment on the part of the parties to the Khartoum Agreement to the declared four years frame time is a major flaw.
2. The fact that the holding of referendums is the prerogative of the central government leaves the matter largely to the good faith of the Northern leaders who dominate the central government institutions.
3. The current government is dominated by a single party, the National Islamic Front, which does not represent the majority of Sudanese, and it rules through the suppression of dissent. The basic human rights and civil liberties preconditions that are required for a free and fair referendum do not obtain.
4. Many provisions of the Khartoum Agreement have been disregarded by the Sudan Government, and there is no reason to suppose that there will be any different experience with the referendum.

For these reasons, the Sudan Government’s proposed Referendum Commission cannot be accepted.

Instead, a truly Independent Referendum Commission should include representatives of all parties, should be formed under the auspices of neutral and impartial international supervisors, and should function in the context of respect for human rights and civil and political liberties. Models can be taken from electoral commissions established in the wake of civil wars and decolonisation, as well as referendums.

The Independent Referendum Commission could include the following representation:

• The central authority;
• The provisional administration in the South;
• Civil organisations;
• International or inter-governmental organisations guaranteeing the peace process (such as the UN or IGAD).

Whatever mechanisms are adopted for Southern Sudan, the enactment of a national law to regulate the conduct of referendums may be of vital importance. This is because the NDA has recognised a general constitutional right to self-determination for all, as a human, democratic and people's right. A referendum in the South may not therefore be the last that will have to be held in the Sudan. It may be the beginning of many referendums to come on self-determination or other constitutional issues.

d. International monitoring

Both the draft Transitional Constitution and the Asmara Declaration have provided for regional and international monitoring of the referendum on self-determination. This is an important guarantee for the free and fair expression of the wishes of the electorate. International monitoring of the referendum may enhance transparency and discourage manipulation of the electoral process by some vested interests to achieve their desired outcome.

It is important that the monitoring is not confined to ascertaining fair play on the day of the vote itself, but also includes the preparations for the referendum, including the registration of voters, the conduct of the campaign, access to the media by the contending groups, and other related issues.

e. Options in the referendum

Referendums may be called on a single issue which gives the electorate to vote yes or no, or may be on multiple options. One important aspect of referendums is how the question for popular vote is designed. There is always the likelihood that the established authority calling for the referendum, whether it is parliament or the executive, may design the issue in manner that may influence the electorate or put the question in a confusing manner which may cause voters’ apathy. There is no ambiguity however, in the way the Sudan Government’s Constitutional Decree No 14 and the NDA’s Asmara Declaration has defined the choices that will be presented to the people. The resolution on self-determination clearly puts the options to be the preservation of unity of the country or the South becomes an independent and sovereign state.

Forms of unity to be considered range from unitary to federal or confederal arrangement. These options could be placed before the voters in a single referendum. Alternatively, the referendum could be solely on the issue of unity or separation, and should the vote be for unity, the various constitutional options can then be considered in a second referendum.

A hegemonic unitary model may be considered as out of question since decentralization in the Sudan has now developed to the level of federation. The SPLM calls for the establishment of a confederation of two states, one in the South and the other in the North during the interim. If this is how the Sudanese state will be organised during the interim period, then the real options are surely going to be the preservation of the confederation or independent statehood for the South.

The NDA Transitional Constitution is however silent about the options that will be voted upon in the referendum. This is a serious omission which should be rectified. It is however true that the draft constitution has a provision though which it incorporates other basic documents of the NDA such as the Asmara Declaration and the NDA Charter as its integral parts.

The preferred option is for a referendum with two choices, unity or separation. This is likely to give the clearest result and strongest mandate. Further constitutional issues can then be decided by subsequent referendums or legislative decisions.

It is also stated in the draft NDA Transitional Constitution that as soon as a change of government takes place in Khartoum and a government of the NDA is installed in power, a constitutional conference would be convened within six months to resolve all the pending issues among the parties and draw up a national constitution that would be put to a referendum throughout the Sudan. This implies that there will therefore be two referendums to be held in the Sudan during the interim. This may cause confusion. It means that the issue of self-determination will first be voted upon by all the Sudanese when they vote for the new constitution and, if the new constitution is approved and comes into force, then the South and the District of Abyei can in turn vote in a referendum on the options that will be presented to them. In effect this will amount to a nation-wide referendum for the adoption of self-determination and other related issues which the constitution will include.

The question that poses itself is, what happens then if the national referendum fails to approve the constitution drafted by the NDA during the constitutional conference? Specifically, what happens if a majority of voters in the whole of Sudan reject the option of self-determination? Can the interim government in the South proceed to organise the referendum on self-determination?

This is an hypothetical situation but one which cannot be ignored. Were this to occur, it would be wholly unacceptable to the people of Southern Sudan, whose right to self-determination is not dependent upon the wishes of non-Southern Sudanese. It is an obligation for the NDA to implement self-determination during the interim period whether or not there is support for it in a national referendum. It follows that, if the constitution is put to a national referendum, Sudanese voters should be aware that the right of self-determination for Southern Sudan has already been decided upon.

f. What majorities are required?

The advance determination of the majorities required or what percentage of the electorate must turn out to vote is an important question for referendums. Must there be a decisive majority for the referendum to be considered successful or is a simple majority in favour of a particular option enough? In the devolution referendums in Britain in 1979, for instance, held in Wales and Scotland, the British Parliament put two requirements for the devolution to come into effect. The first requirement was that 40% of the electorate should turn out to vote in favour of the devolution. Secondly, there should be a decisive majority in favour of devolution for the legislation to come into force. Both devolution referendums failed because they did not meet the above requirements. The Welsh referendum was defeated by 80-20 percent on a turnout of 59%. In Scotland the devolution vote won 52-48% but since the turnout was only 64 percent only 34% of the electorate had supported it, short of 40% of the electorate required for implementation.

Constitutional Decree 14, the Asmara Declaration and the NDA draft Transitional Constitution have not set out requirements with respect to the percentage of the voters required to vote in favour of the outcome that has to be implemented. It seems a simple majority will carry the day either way. It is important that this issue be addressed and resolved clearly.

g. Preventing manipulation

Although referendums are useful mechanisms for the resolution of fundamental political and constitutional issues, yet there are always fears of manipulation or derailment by those in authority or interest groups with money or more effective campaign methods. In the case of Sudan, fears of manipulation could be real, given the high level of illiteracy and poverty among the majority of the population. ‘Referendums are inherently limited by the machinations of elites who can decide if and when to hold them, what will be said through the media, how success will be defined, and whether to abide by the results.’

In order to prevent manipulation and eliminate any apathy among the electorate, the Transitional Government will have to create a political and legal environment in which the people of Southern Sudan will not find themselves coerced into adopting a position that is against their vital interests for which they have bitterly fought over a long period of time. Therefore the decision on the options of unity and independent statehood must never be influenced or manipulated by those who will find themselves in authority at the material time. In this regard, one must recall again article 65(1) of the NDA draft Transitional Constitution which gives a somewhat qualified recognition to the right of self-determination for Southern Sudan. The right is predicated on giving priority to unity of the Sudan. This will definitely continue to raise many concerns among Southerners.

The way in which the above article is drafted coupled with the fact that the draft constitution made no mention of the options in the referendum can be sufficient cause for worry. Moreover, during the interim period the people would be still recovering from the traumas of war, displacement and dictatorship. If the ruling government uses everything within its means to orient public opinion towards a particular outcome, things can easily go its way, particularly if no fair opportunity is afforded to other viewpoints.

The issue here is one of democracy and equal opportunities for opposing views. It is essential that there are guarantees on civil and political liberties during the transitional period preceding the referendum. These must include freedom of association, freedom of information and freedom of expression. Political parties and platforms opposed to the views of the dominant parties must be allowed to organise and campaign. There must be free and fair access to the media for proponents of all views.

Human rights organisations should be present in Southern Sudan during the transitional period to monitor the conduct of the campaign and the respect for civil and political liberties.

Any informed and rational decision by the people of Southern Sudan will have to be, of necessity, preceded by an effective enlightenment campaign about the true implication of each and every option that will be put before them for a final vote. The low level of education among much of the population is a strong reason for making the options in the referendum as simple as possible, so that they will be clearly understood, and people will not be able to claim that they have been misled or confused.

A number of international organisations have gained experience in voter education under conditions of post-war reconstruction, in countries such as Cambodia and Mozambique, and their expertise should be called upon to assist with similar public education exercises in Southern Sudan.

h. Accepting the Outcome

In many of the cases mentioned (Eritrea, former Soviet Republics, Croatia, Slovenia), the results of referendums have been virtually foregone conclusions. The ruling authorities have campaigned in line with the overwhelming public mood for independence, and achieved what they and the people wanted. These may be described as ‘affirmatory’ referendums: means of giving legitimacy and recognition to what is already a political fait accompli.

In other cases (Quebec, Western Sahara, Bosnia, Czechoslovakia), the outcome has been uncertain, either because of divided public opinion or because the governing authorities have sensed that their preferred position does not have majority popular support. These may be called ‘contested referendums’ in which the outcome is genuinely uncertain, and ‘aborted referendums’ in which the chance for a genuine expression of popular will has been thwarted. It is in these cases that have caused controversy.

Post-war elections in countries such as Cambodia, Angola and Mozambique have also been hotly contested, and provide models for how referendums can be successfully organised in such situations. The experience of Angola, in which the defeated party (UNITA) refused to accept the outcome of the popular vote, is salutary. Similarly in Burundi in 1993, the losing party refused to accept the outcome and launched a military coup. This indicates the importance of firm guarantees that all parties will accept the outcome, if necessary backed by the authority of peacekeeping forces.

Southern Sudan is likely to be a ‘contested referendum’. The main political parties including the NIF, NDA members and SPLM, are all committed to campaigning on a unionist platform. But there is undoubtedly a significant Southern constituency that currently supports seperation, and pro-independence parties and platforms will be prominent in the pre-referendum campaign.

It follows that, for the historic opportunity of a referendum on self-determination for Southern Sudan to be successful and legitimate, not only must there be a free and fair campaign, but all parties must commit themselves in advance to respecting the outcome.

It is hoped that the transitional government will have enough authority and legitimacy to implement the outcome of the referendum even if that outcome contradicts its preferred position. As it has been pointed out,

Referendum as a truly democratic device, works best with leaders in a knife-edge situation where they have enough authority to carry out and respond to the results of the referendum, but not so much authority that they can disdain inconvenient outcomes or in extreme cases determine the outcome.

One final comment concerns article 67 of the NDA draft constitution which puts a duty on all the citizens to uphold the unity of the country. But during the interim period this very unity will be the issue of the referendum whether to uphold it or not. How can there be then a constitutional duty to uphold unity, particularly for the Sudanese citizens from the South who will vote in the referendum on self-determination? If this provision will remain unqualified as it is now, it will be tantamount to requiring the electorate in the South to vote only for unity in the referendum as a matter of constitutional duty. This of course would be contrary to the very concept of referendum. It is therefore important as of now for the NDA to review some of the provisions in the draft constitution which can be interpreted as determining the outcome of the referendum in advance and therefore undermining the fundamental rights of Southern citizens.

Conclusion

This paper has attempted to discuss some of the issues that will be relevant in the implementation of a free and fair referendum in Southern Sudan during the interim period in exercise of the right of self-determination after the end of the current war. These considerations will apply if there is a settlement between the SPLM and the current National Islamic government, or whether the NDA comes to power replacing the current government.

Whatever scenario develops, and whatever solution impose itself, one fundamental thing that will continue to be constant is the right of self-determination for the people of Southern Sudan through a referendum. This right has been universally acknowledged by all the contenders for power in the Sudan.

1. We have tried to raise some definitional issues regarding the ‘self’ that is entitled to determine its destiny in Southern Sudan. This is viewed as of great importance because the peoples approach to self-determination has often carries with it some discernible difficulties or uncertainties. One of the fundamental issues of self-determination is the very definition of ‘peoples.’ The heterogeneity of the population in Southern Sudan and the racial admixture of the people of the Sudan generally is a factor that may cause some degree of complication or complexity unless some common perceptions are laid down beforehand. Both the subjective and objective factors that define a people entitled to the right of self-determination are not concretely established in Southern Sudan beyond controversy as a result of ethnic cultural and linguistic diversity. However, over the many years of struggle for freedom, the people of Southern Sudan can be said to have subordinated their anthropological heterogeneity to their determined will to become a people bound by bonds of common destiny and a common homeland. It is however true that people can change over time as ‘nations and peoples like genetic population, are of recent contingent and have been formed and reformed constantly throughout history’.

It is also equally true that peoples can be created for political and other reasons. The controversy over the United Nations declared referendum in Western Sahara underlines the difficulties that can arise in the determination of the ‘self’ due to lack of permanent objective definition. The people of Southern Sudan who live and constitute the indigenous inhabitants of a distinct territory have over centuries developed the required sense of self-identification and political unity, although some inter-ethnic conflicts do rear their heads from time to time. Whatever the problems of nation building and social cohesion may be in Southern Sudan, the fundamental fact is that it is the people of Southern Sudan who must determine the destiny of their territory in freedom and without manipulation from any quarter. The indigenous people of the South must be the only legitimate voters in the referendum for their destiny. Accordingly the results of the nationwide referendum on the constitution during the interim period should not affect the exercise of the right of self-determination in the South in any negative way. Its purpose must be to consolidate the legitimacy and the constitutionality of the Southern referendum.

2. The question of identifying the institution that will call the referendum and carry out the necessary procedural requirements has been raised in this presentation.

The experiences of Eritrea, the Soviet Republics and Yugoslavia are seen as useful guides in this regard. In this context, the Eritrean model presents itself as one suitable and relevant to the situation in Southern Sudan. If, at the time of the transition, the SPLM is the dominant authority in Southern Sudan, it can establish an interim authority vested with full powers to call and organise the referendum.

The experiences of post-war elections in southern Africa and Cambodia are also useful guides. This implies a model of an Independent Referendum Commission with representatives of the different authorities in Sudan and international organisations. This will be appropriate if there is a negotiated end to the war in the South, under the auspices of a mediating organisation such as IGAD.

It will also be important that a precise period should be pinpointed during the interim period after which the referendum will be conducted. This means working out a timetable or plan of action in advance with respect to the conduct of the referendum. For instance, as soon as the transitional period begins, the government may allow one year for repatriation and resettlement and rehabilitation of the returnees and the displaced and the restoration of basic infrastructure and services. The second year may for example deal with the consolidation of governmental structures at the various levels, the building of democratic institutions of governance, holding of a population census and registration of voters. The third year or the first half of the fourth year could then be earmarked as the precise of time the referendum. Voter education should be conducted throughout. In the absence of any fundamental change of circumstances, the referendum should be conducted within a reasonable time before the end of the interim period.

Under the Asmara Declaration, the organisation and regulation of elections, (which should include referendum) within the Southern entity is a competence allocated to the Southern entity or state. This is in line with the suggested Eritrean model above and should viewed as a satisfactory possibility. Other options include an independent Referendum Commission.

The options for the referendum as stated in the Asmara Declaration and the Khartoum Agreement are clear and unambiguous. What is further required as far as the NDA is concerned is to spell out these options concretely in the Draft Transitional Constitution as this is an issue already agreed upon. The proposed constitutional conference which is to take place six months after the anticipated demise of the incumbent regime should only tackle matters that have not been finally settled in the Asmara Declaration. The desire of the NDA in all its component parts to give maximum priority to the unity of the Sudan should only give them the right to propagate for their preferred option among the people , but must not use their control over state power to manipulate the process of referendum and the law to achieve their goal. To put a constitutional and legal duty, on the citizens of the Southern Sudan to uphold the unity of the country as contained in the Draft NDA constitution may appear a contradiction to their very freedom of choice between unity and independent statehood.

3. The referendum on self-determination in Southern Sudan must be conducted in a free and fair manner. This applies not only to the voting itself but to the previous transitional period. The referendum can only be said to reflect the true wishes of the people of Southern Sudan if they are able to express their views and form associations as they see fit. All views should be given a fair hearing in the media.

4. Finally, the majority required in favour of each option should be simple majority of the electorate in the Southern Sudan. It is important to provide for this in advance so that no controversy arise as to the implementation of the choice made by the people on each of the options. But if decisive majorities are required then it must also be determined in advance to avoid conflict and confusion.

We end by pointing out that the success of referendum in Southern Sudan as the procedural mechanism for the implementation of the right of self-determination will very much depend on the commitment of those who will be in the seat of power in the Sudan at the material time. As some commentators have pointed out:

Referendums can allow public opinion to flower and during times of transitions, these blooms can ease the way to democracy if decision makers decide not to trample them underfoot with force and violence.