Articles and Analysies
The Agreement on Referendum Bill: What is Next? BY: Gatkuoth Deng , USA
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Nov 1, 2009 - 8:13:42 AM

The Agreement on Referendum Bill: What is Next?

BY: Gatkuoth Deng , USA

I felt much relieved like many South Sudanese readers after reading in the news that the Sudan People’s Liberation Movement (SPLM) and the National Congress Party (NCP) - the CPA’s partners and signatories – have finally overcame the outstanding issues and reached a breakthrough in the South Sudan Referendum Bill, 2009, after 10 months of continuous heated, but courageous skillful debates.

Both teams of the Vice President of Sudan, Ali Osman Mohamed Taha and Vice President of the semi-autonomous Government of Southern Sudan, Dr. Riek Machar Teny, are to be congratulated and actually deserve a congratulatory message from the people of Sudan in general and the people of South Sudan or the marginalized masses in particular for breaking the deadlock over this potentially dangerous issue if it was not well and skillfully handled. The same congratulatory message should also go to their bosses, NCP’s chairman, Omer Al-Bashir and SPLM’s chairman, Salva Kiir Mayardit for their political will which brought about the agreement. Leaders of other political parties in both North and South should also be congratulated for blessing the bill though a few of them still object to it. I hope they will be convinced to join the train.

In the final text drafted at the level of the two parties, and which was also availed for final consultation and consensus with other political parties both in the South and the North, the parties agreed to the simple majority vote of 51% to declare the South an independent country in the upcoming January 2011 referendum as long as a quorum of 66% of those registered eligible voters of the “people of South Sudan” turned out and voted in the three-day voting exercise.

The two parties also put in the bill an alternative provision which clearly stipulates that if the 66% of the quorum would not be attained for the first conduct, then the referendum exercise shall be repeated within sixty (60) days. This is a victory to the people of South Sudan and a deterrent to the Northern regime that might think of creating unfavorable conditions that will scary away South Sudanese voters during the referendum days. This wise provision was initiated by the SPLM team and then agreed by the NCP after putting some resistance against it. This special provision clearly tells the NCP or any future elected government in the North not to waste time by creating insecurity on the referendum days because it can be repeated in 60 days after addressing the causes of such insufficient turnout.

The parties also skillfully separated the post-referendum issues from the referendum law. This is very important because the NCP had wanted to know what it could gain out of a separated South before it could commit itself to allow it to secede. This would bog down the whole process if not skillfully handled by the SPLM team and given a separate forum.

The issue of South Sudanese in the North and in the Diaspora is their right to decide their future political destiny like the rest at home. It would have been a self-defeating argument to deny them their inalienable right to vote in the referendum. The SPLM would have compromised its democratic principles if it insisted on arguing that they should not vote. I believe the SPLM team used it as a bargaining chip in the first place, but not its principled mechanism. What is crucially needed is to put in place clear and effective mechanisms to make sure that these are the “people of South Sudan” that shall vote in the North and in the Diaspora, excluding the so-called “citizens of South Sudan”, which number could be susceptible to manipulation by the Northern NCP’s regime. The two parties have also agreed to include the United Nations (UN), International Organization for Migration (IOM), South Sudanese associations in the North spearheaded by their chiefs to work closely with the Southern Sudan Referendum Commission in registering the voters.

The Agreement has also made it clear that no body in the North who claims ancestry from South Sudan will be allowed to vote. Also those who will vote in the ten South Sudan states are the “people of South Sudan”, and that is members of the known indigenous tribes or communities of South Sudan . It is not to be based on “citizens of South Sudan” because this would open a Pandora box and would include new comers who have acquired South Sudan citizenship in their thousands in recent years for some mixed reasons or interests. Only those non-indigenous permanent residents who have lived in the South since 1956 without interruptions are to qualify to vote along with the indigenous people. And they are to be scrutinized by local chiefs. These are very clear issues in the referendum bill in addition to many others clearly articulated. And by the way those IDPs in the North hate unity with the North more than some of the Southerners in the South. They cannot vote for unity in a “secret ballot” against their independence, just to remain IDPs in those very poor and inhumane conditions even inside Khartoum . The fact that the NCP wants to automatically treat them like foreigners if the voting results to independence will even scary them and begin to move to the South before 9^th July 2010 when the registration begins six months before the actual voting day on 9^th January 2011. The Bill is a victory for the Sudanese people and other peace-loving friends of the nation.

The two parties have also agreed NOT to use the 2008’s unpopular and rejected census results in the referendum. In this provision, the NCP has shot itself in the foot. According to comments I gathered from some senior Party members in the Diaspora and at home, the SPLM wanted this provision for two main reasons. One is to capitalize on its overall position that the census results were fake, unreliable and should not be used for any government’s planning that requires the use of population data. This applies to issues ranging from determining geographical constituencies for the elections, power and wealth sharing as well as the conduct of referendum. Another reason is that the counted population of South Sudanese in the North during the census included the so-called “citizens of South Sudan ” which should not have qualified to vote in the referendum. They may qualify to vote in the elections but not in the referendum. Because of this reason, a fresh registration process for the indigenous South Sudanese only will have to be conducted with the participation of the above mentioned organizations.  Now that the NCP has accepted NOT to use the census results in the referendum, it is morally and politically correct to also join the SPLM in rejecting the same census results for determining the geographical constituencies for the elections as well as for wealth and power sharing.

However, what are the next equally crucial steps that need to be taken now that the bill has been readied at the parties’ level? In my previous article posted on Southsudannation.com, I wrote about the importance of coordinating the SPLM efforts, especially in the implementation of the CPA and particularly during procedural enactment of national laws such as the referendum law, etc.

The Referendum Bill is said to be heading to the National Constitutional Review Commission (NCRC) to confirm and endorse its provisions and legal interpretations in accordance with the interim Constitution of Sudan, 2005. After the legal body has confirmed it, then it goes to the Khartoum-based national Council of Ministers. If all goes well with the Council of Ministers the Bill will finally find its way to the National Assembly to deliberate on and pass it. Then the President of the Republic, Field Marshall Omer Hassan Al-Bashir will finally sign it into law with immediate effect.

Well, in my previous article I was disappointed by the lack of effective coordination by the SPLM among the three institutions; namely the National Assembly, Council of Ministers and Party levels. These are the institutional mechanisms established to initiate and enact the laws. And I don’t have any reason NOT to remain disappointed unless this time proven otherwise!

In his capacity as the First Vice President of Sudan and Chairman of the SPLM, Salva Kiir Mayardit, should this time be proactive, move to Khartoum and attend the Council of Ministers meetings. He and his colleague President Bashir should give political guidance to their political parties’ members both in the Council of Ministers and in the National Assembly by urging them to pass the referendum bill and other equally important bills for Abyei, Nuba Mountains, Southern Blue Nile as well as the national security bill, etc, badly needed for the upcoming elections.

Since his deputy, Dr. Riek Machar has done his part on this South Sudan referendum bill, Kiir has to intervene and do his part in the Council of Ministers where the bill will be discussed. Dr. Machar is not constitutionally a member of the Khartoum Council of Ministers to attend it and defend the bill. It cannot be constitutionally accepted unless he is granted a special sitting. There is need for a heavy weight in the cabinet to defend the bill in front of Field Marshall Al-Bashir, otherwise the bill can be amended and some important provisions omitted like what had happened to some other bills in the past. This was simply because the bills were not defended by the SPLM members in the Council of Ministers. Some of the SPLM ministers in Khartoum reportedly complained in the recent All Sudanese Parties Conference in Juba that their comments in the Council of Ministers meetings were ignored by the Field Marshall, Bashir. Yes, that could be true because Kiir abandoned them like orphans in the cabinet. A heavy weight figure like Salva Kiir Mayardit, sitting on the immediate right hand of Al-Bashir could not be ignored if he availed himself, stood tall and firm like a giant. After all, what was the three-man Presidency all about?

This three-level institutional mechanism is like dealing with an object that has a very hard crust on the outer part of it, then comes the middle ring of it until you reach its core, the most inner part. If Dr. Machar’s team has succeeded in removing the hard crust of the referendum bill, Salva Kiir should also go for the middle part of it until those of Yasir Arman’s SPLM Caucus in the national parliament deals with its core – final enactment. The best player in a football team cannot defeat the opponent team alone by just scoring goals unless he/she has very good defender and goal keeper who will not allow equal or more goals to be scored by the opponent team. And this is the situation with the enactment of laws by the two peace partners!

This Southern Sudan Referendum Bill is the best the South could get out of these political uncertainties. The South might have wished for a 99% perfect Bill. But this can only be possible if the SPLM team’s initial draft was accepted by the NCP without and debate. However, negotiations are about give and take. It is on this give and take basis that Khartoum was compromised by the SPLM during the Naivasha peace talks in 2005 to be unfortunately the seat of the Referendum Commission. 

The South has gained more in the Bill.  South Sudanese should not surrender to inferiority complex feelings when dealing with the North. The South has grown up! If we don’t appreciate our smartness, we may not even believe that we got our independence even if we get it in 2011. We may still think that the North has cheated us to believe that we have achieved independence. Let us liberate our minds from such inferiority complex.

Of course, there might be unavoidable loopholes here and there in the Bill. This is a reality of the situation but since the core issue, 51% is secured to declare the South independent, the rest can be worked out by the South in its favor. I believe the SPLM plus other South Sudan political parties can work out an internal mechanism to make sure that 66% of the would-be registered voters come out of their houses, walk to the voting centers and vote during the three-day voting exercise in January 2011. The South is believed to have a population of about 8 to 10 million people. Suppose eligible voters are those from 18 years old and above. About 3 million out of 9 million may qualify and would be registered to vote for three days from 9^th to 11^th January, 2011. This can be done if we are serious to achieve our freedom. No rains; no distance walk to the voting centers; and no gossips about insecurity on the way to the voting centers would prevent the South Sudanese voters from participating in this ONLY democratic chance to determine not only their final political destiny, but also their economic and social destiny, and that is freedom at last.