South Sudan: Independence de Jure or de Facto?

By Dr. James Okuk

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

In this article, I would like to present my answers to the following political question: Which is the Priority to the Native CPA Partners (NCP and SPLM); Referendum for the People Southern Sudan or the Sudan National Security Act? I know that it is difficult to give a conclusive answer on behalf of somebody else, especially when you are not mandated to do so. Nevertheless, it is possible to attempt an answer based on behavior observation as some of us keenly follow chronologically the unfolding political events in the Sudan.

Thus, it could be said that the referendum for the people of Southern Sudan is not a priority to the NCP neither is it for the SPLM unionists. It is the National Security Act which is their priority as it suits their power interest calculus in the united Sudan; be it Old Sudan of Islamism or New Sudan of Secularism. The NCP cadres are much concerned about this Act because it is the backbone of their political survival in the fragile Sudan where they got into power through insecurity. They designed the existing National Security Law in a way that would prevent any similar treatment to them. That is, the Security Law that has been operating in the Country is aimed to protect NCP leaders as individuals with government powers rather than safeguarding the people of the Sudan as a whole, regardless of their parties’ affiliations. That is why whoever attempts to create an environment that could lead to the NCP regime change, encounters “brutal lessonsâ€‌ from the Sudan Security agents immediately.

For their power survival in the CPA era, the NCP negotiators ensured that there is a provision in the CPA that says the status quo of the existing laws shall remain until replaced by new ones that comes into effect after being endorsed by the Interim legal authorities (the Council of Ministers headed by the President and the Legislative Assembly headed by the Speaker)( See CPA Part II, article 2.12.8) . And who are the heads these legislative and executive branches of Government? The NCP cadres of, course. Hence they have the opportunity to play legal and political tricks on the drafted bills.

The existing Security Act and other related Police and Armed Forces Acts in the Sudan that were promulgated before the CPA came into force, are very good for the NCP and they would prefer that new ones do not come into existence. Therefore, when SPLM dull politicians enthusiastically delay the enactment of new laws in this regard, the NCP foxy cadres become very happy. They even help the SPLM to boycott their constitutional obligations so that things stand in the country without any new progress. The CPA has made the NCP leaders to gain more favours than they use to get during the time of war. So the more delays come on the way of CPA implementation, the better for them!!! They will pretend to avoid delays but they will push the SPLM to do this dirty politics for them, since some trouble-happy senior SPLM leaders feels heroes by going opposite to the false direction that the NCP senior leaders point to.

In other words, the delays that are caused by incompetency of the SPLM cadres are a blessing in disguise for the NCP cadres because it elongates their stay in power with a lion share in government control where they continue to give the GoSS and other states of the Southern Sudan what has been agreed to be belonging to the South in terms of wealth and power.   It is said that whoever gives you something even if it is yours, becomes your master directly or indirectly. The CPA gave the NCP powers to give SPLM and GOSS the share of oil money and government powers, and therefore, the NCP is the master of the SPLM, albeit. This is called inference of simple Aristotelian logic.

The NCP have proven many times to be smarter than the SPLM. They have often put the SPLM weak leaders on reactive side of Sudanese politics. What a pity to the so-called voluntary liberators of Southern Sudanese who thinks the end of bush struggle is spree of corruption and tribalism with impunity in the GoSS and other ten states of Southern Sudan!!!

Coming to the issue of referendum, the Non-Southerners who comprise the majority of the NCP members are not eligible to this exercise and so they consider it as none of their democratic or undemocratic business. The same applies to the Non-Southerners who comprise the minority of the SPLM membership; the referendum is never a priority to them. This could be detected as the simple raison detre why they are much concerned about the Security Act and other Acts that are supposed to make democratic environment conducive for mass demonstrations aimed at generating popular uprisings in Khartoum and Medani even if this doesn’t apply in Juba or the South.

It is philosophically said that the right question is the start of the correct answer, which is translated in medical analogy as: the right diagnosis leads to the right prescription for a cure of an ailment. I could have framed the above question to include the “democratic transformationâ€‌, but since I believe that referendum could be de facto without necessarily passing through democratic channels, I intentionally left it out though I understand that the de jure referendum is a fundamental part of democracy as practiced worldwide.

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

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

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

The haggling that has been going on between the ever-quarreling CPA partners (SPLM and the NCP), hitherto, is about the de jure referendum, which has to be presented to National Council of Ministers and the National Legislative Assembly for deliberation and passage (unanimously or by majority votes). This legal path is commendable and I pray that its implementation follows suits without feed-dragging or foxy tricks, otherwise.

What has been going on indoors between the referendum negotiators is not really known apart from what they told the public and what they wrote down in the proposed Southern Sudan Referendum Act for the year 2009. If there were some gentlemen agreements of give-and-take of power interests between them inside there, this shall get revealed later, although.

Now the most important thing that needs keen attention is what has been declared publicly on the referendum exercise in accordance with the CPA and Interim National Constitution obligations though it is lagging behind the schedule by one year, because article 220(1) of the Interim Constitution says that the National Assembly should deliver Southern Sudan Referendum Act by the third year of the interim period (i.e., by 2008). Will the Sudan Interim National Assembly pass the proposed Referendum Act that has generated quarrels between the native CPA partners or will it play delay-or-avoid tactics in the rush hour in which this bill has been tabled? This is the critical question that keeps the minds of many people focused to Khartoum these days.

Anyway, it is better late than never as it is said there is no hurry in Africa. Also it is understandable that many African countries are struggling to get out of perception or/and experience that Africa is a very good graveyard for best constitutions  and agreements whose articles remains as ink on papers without honouring their implementation in time. The Sudan is best known for dishonoring some important deals but we hope this time, with the obligatory referendum exercise, this bad attitude could be avoided.

There was no way for the unfaithful partners (SPLM and NCP) to deny publicly what they have agreed to in the CPA and the Sudan Interim Constitution. Otherwise the people, especially Southerners who are most concerned about their referendum and the international community who have pushed for the realization of the CPA and witnessed its signing, would have considered these partners as liars and untrustworthy to lead the country any more (whether in the North or the South).

Now the Southern Sudan Referendum Act has been inked on the paper, would it be honoured for it to see the bright light of its dawns; be it independence of South Sudan or continuity of unity with the unjust North!!! Would the referendum be a priority to the current contradictory SPLM leadership or they will continue to look after other confusions in the pretext of democratic transformation in the fragile country that they are dreaming to re-named “New Sudanâ€‌ in accordance with the vision of late Dr.   John Garang de Mabior, and as surrogated by his trained errand boys who are zigzagging the SPLM and SPLA and claiming it as their personal properties under the incompetent leadership of Salva Kiir Mayardit who thinks that he could oppress any political party or community in the South in the name of liberation credit?

I doubt whether it is yet uhuru (liberation) under the current situation in the South!!! And I doubt whether the South would be born as a non-failed state under Kiir’s leadership that is incapable of improvement with all the suitable opportunities availed since 2005. I prefer that new leadership comes in so that it could take the South safely to the promised destiny!!! May God hear my sincere prayers for better change in the South after 2010 elections?

Dr. James Okuk is a concerned citizen of South Sudan. He can be reached at [email protected]