Why Southerners in Diaspora won't vote due to SPLM Legal ignorance

Legal Viewpoint by: Mr. Clement Kulang, BIRMINGHAM , ENGLAND

In response to the legal concerns about the current voter registration exercise and the upcoming elections and 2011 Referendum on Self-Determination, a southern lawyer has   come forward to competently explain why and how most southerners in the Diaspora won't possibly partake in the two exercises.

This is his legal analysis: "I did not want to bog people down with legal arguments, which would have complicated that points that I tried to put across. However, I will endeavor to put my points in skeleton legal arguments with reference to the relevant provisions of the law and where possible, with the link to the full version of the Acts.

According to section (21) subsections (a), (b) & (c) and section (22) subsection (3) of the National Electoral Law 2009 and in order to qualify for registration for the purposes of elections, you must be:

* A Sudanese citizen;

* Over the age of (18) years;

* Of sound mind; and

* In possession of a valid Sudanese passport and a valid residence permit in the country where you reside.

The majority of Sudanese expatriates especially those in the Arab Gulf countries would qualify for registration as such because they have retained their Sudanese citizenship.

The difficulty arises when it comes to those who have left the country and acquired other nationalities. Are they still Sudanese and enjoy the same legal rights according to the Constitution of the Sudan and its laws?

The answer is definitely NO.

Part II section (5) of the Sudanese Nationality Act 1957 defines who is a Sudanese by descent and Part III section (8) defines a Sudanese citizen by naturalization. The majority of us meet the definition of a Sudanese by descent rather than by naturalization and as such we are or were Sudanese by descent at one point in time. Nevertheless, most if not all of us have not retained our Sudanese citizenship according to the current act of Parliament, which was last amended in 1974. This is the point I have been trying to draw attention to and calling for urgent amendments.

Part IV section (12) of the Sudanese Nationality Act 1957 deals with loss or deprivation of Sudanese nationality. You would have lost your nationality according to this section if you acquired another nationality or have taken an oath or affirmation of allegiance to a foreign country. Those of us who have acquired British or other citizenship would have fallen foul of this section of the Act because we have acquired another nationality and/or taken oath or affirmation of allegiance to the Queen or our country of nationality. Even those who got their new nationality by marriage would fall foul of this Act by virtue of making an oath or confirmation of allegiance to another country.

Therefore, let us not kid ourselves that we have retained our Sudanese nationality. The fact is we have not, whether we like it or not. By producing a foreign passport, you are no doubt informing the Sudanese President that you have obtained the nationality of another country, which is a proof beyond any reasonable doubt and would subsequently invoked the provisions of Part IV section (12) of the Sudanese Nationality Act 1957 or section 13 as applicable.

Most worryingly, our children born abroad would automatically loose any claims to Sudanese citizenship or nationality by virtue of Part IV section 16 of the Sudanese Nationality Act 1957.

Hence, it is naive to assume that the Sudanese President would ignore or overlook the provisions of this Act. That is why I say the National Congress Party (NCP) are smart bunch of people and they are constantly moving one step ahead of us. They know very well that the law does not allow dual nationality, and if they say otherwise without actually amending the law then they must be lying and playing games.

The majority of the Sudanese from northern Sudan living abroad are still Sudanese citizens/nationals. The Sudanese Nationality Act has not been amended and the last amendment was that of 1974. I have explained yesterday why I do believe that most if not all Sudanese living in the UK would not qualify and this includes those living abroad elsewhere.

Sudanese citizens/nationals working abroad (expatriates) do qualify for registration by law. They are known to the government because they are registered and pay tax through the expatriates' affairs organ in Khartoum . What the government does not know is the number of the Sudanese from South Sudan living abroad and who have had other forms of nationality.

To encourage people to register knowing pretty well that they will not qualify by virtue of the law is to play right into the hands of the NCP. I dare defy the legal advisors of the Sudan People's Liberation Movement (SPLM) or the Government of South Sudan (GOSS) to convince us otherwise as the law stands at the moment. I suspect the whole exercise is to enable them to know the number of the people living abroad, especially Southern Sudanese.

If the number is huge, then the NCP will play it by law and argue that those people are not qualified by law. If the number is not significant then they will play the role of the heroes and pass an amendment to the law to allow dual nationality in the spirit of democracy and unity of the country.

It could also be the motive that the NCP is trying to make an image for itself ostensibly trying to assure the international community that the forthcoming general elections would be open, fair and open to all Sudanese citizens in and out of the country.

I am not dissuading people from registering if they indeed qualify by law. My other half certainly qualifies and we will head to the centre to register. However, I want us to be vigilant and do things the right way. We took the NCP to Arbitration over Abyei because we had a case which was well built and prepared. This time round if we were to take the NCP to Arbitration over the issue of registration, I have no doubt in my mind that we would loose and as a lawyer my advice would be not to waste time and money instigating such proceedings. It goes without saying that I will not encourage people to take part in an inept exercise.

It is pertinent at this stage to make things crystal clear and ensure that we will not be caught sleeping on duty again. Members of Parliament in Khartoum should revisit the various laws relating to nationality, election, and repatriation of Sudanese living abroad. They should discuss accordingly and table any proposals.

FOR THE ABOVE REASONS, I CALL UPON THE SPLM AND OUR POLITICIANS IN THE SUDAN TO DO SOMETHING ABOUT THIS ISSUE BEFORE IT IS TOO LATE.

For ease of reference, I have included the provisions of section 12 of the Sudanese Nationality Act 1957 below:-