Consultation Report No. 3
Self-determination, The Oil and Gas Sector and Religion and the State in the Sudan
The Sudan Peace-Building Programme
African Renaissance Institute (ARI)
&
Relationships Foundation International (RFI)
United Kingdom
January 2002
Table of Contents
The Summary Discussion Notes included in this document were compiled under the Chatham House Rule. They do not reflect the opinions of any one participant but are drawn from the range of views expressed, nor do they necessarily reflect the views of the African Renaissance Institute or the Relationships Foundation International.
Section A
I. Preface 3
II. List of Participants 4
III. Recommendations by the Sudanese Participants 6
Section B
IV. List of Issues Considered and Ensuing Discussion 8
1. The Changing Structure and Role of the State in Africa by Professor Washington A. J. Okumu 8
2. Self-determination: the international experience by Mr Marc Weller 23
3. The Politics of Self-determination in the Sudan: between strategic admission and tactical avoidance by Dr Peter Nyot Kok 61
4. Sudan Hydrocarbon Resources by Dr A. R. O. Abdel Rahman 75
5. The Impact of Oil and Gas Development on the Local and National Economy, Environment and Society in the Sudan by Dr Peter Adwok Nyaba 101
6. International Experience with the Relationships between International Oil and Gas Companies and Government and its Relevance for the Sudan by Mr David Nailo N. Mayo 132
1 7. International Experience with the Oil and Gas Revenue Sharing Arrangements in Federal and Confederal States and Possible Options for the Sudan by Mr David Nailo N. Mayo 145
8. How Religion and State Have Been Handled in the Sudan and How They Have Impacted the Three Faith Communities, Muslims, Christians and Indigenous Beliefs: a historical background by Professor Yusuf Fadl Hassan 169
9. A State Based on Shari’ah and the Right of non-Muslims by Professor Al-Tayib Zein al-Abdin 192
10. Reflections on Religion & the Post-Colonial State in the Sudan: what is mine is mine, and what is yours is negotiable by Dr Taisier Mohammed A. Ali 212
11. A State Based on Shared Ethical Values by Dr Mario Awet 221
12. Fluidity of Identities in the Sudan: pulling apart for a sounder coming together by Professor Francis M. Deng 247
13. How can Trust and Confidence be built between the Sudanese Constituencies by Dr Edward A. Christow and Dr Jeremy Ive 257
2 I. Preface
The Sudan Peace-Building Programme is a strategic partnership between the African Renaissance Institute (ARI) and the Relationships Foundation International (RFI). The overall goal of the programme is to help bring long-term and sustainable peace to the Sudan. The programme's methodology is based around a series of informal, confidential and low profile consultations attended by senior Sudanese leaders linked to the key constituencies in the country, and representing all shades of social, political and religious opinion. The Sudanese participants help decide on the key constitutional and economic issues for research and discussion at each consultation. The programme does not itself become involved in any official peace negotiations between parties in conflict, but aims to prepare the ground for such negotiations at a later stage.
Over the last two years, the Sudan Peace-Building Programme has held three consultations to fulfil these objectives. The first consultation introduced the aims, methodology and activities of programme to the participants, gave an opportunity to the participants to get to know each other and covered in general terms the issues of peace dividends, oil, water and alternative constitutional frameworks of settlement in the Sudan. The second consultation focused on two areas in detail (1) Water and Agriculture and (2) Federalism and Self-determination. The ensuing discussion during this consultation was backed by ten papers which were presented by international experts.
The papers and summary of discussion contained in this report were presented during the third consultation, which focused on three areas (1) Self-determination (2) the Oil and Gas Industry in the Sudan and (3) the Religion and the State in the Sudan. Since Self-determination was not exhaustively treated in the last consultation it was revisited in greater detail during this consultation. The goal of the discussion on Oil and Gas in the Sudan was to explore the past present and future of the energy sector, examine the impact as well as the various ways through the revenue could be shared and the ownership structure organised. The goal of the discussion on the Religion and the State in the Sudan was to explore alternative frameworks which could accommodate the interests of the various constituencies in the country.
The Sudan Peace-Building programme and the three consultations which have been held to date, are building a body of relevant knowledge about the factual situation in the Sudan on complex issues such as water, agriculture, alternative constitutional frameworks, transitions and peace dividends, self-determination, the oil and gas industry and religion and the state in the Sudan. In addition, the consultations are building relationships between the Sudanese participants and are aiding each participant’s understanding of their respective positions. It is hoped that we are laying a firm foundation for a future successful mediation based on informed knowledge of the real situation in the Sudan.
We look to the future of the Sudan with growing optimism.
Professor Washington Okumu Presiding Chairman Sudan Peace-Building Programme London and Nairobi February 2002
3 II. List of Participants
The following Sudanese and international participants attended the third consultation of the Sudan Peace-Building Programme1, which took place from 28 January through 1 February 2002 in the United Kingdom.
All Sudanese participants attended in their personal capacity
A. Sudanese Participants
1. Professor Yusuf Fadl Hassan 2. Professor Hassan Makki Mohammed Ahmed 3. Ms Amira Yusif Adam Haroun 4. Professor Faroug Mohammed Kadouda 5. Professor Richard Hassan Kalam Sakit 6. Mr John Luk Jok 7. Ms Rebecca J. Okwaci 8. Mr Monyluak Alor Kuol 9. Mr Abdon Agaw Jok Nhial 10. Professor Hammad Bagadi 11. Dr Fadil Shibeika 12. Dr Alhassan Mustafa Ahmed Onoor 13. Dr Priscilla Joseph Kuch 14. Dr Shafir Harir 15. Dr Taisier Mohammed Ali 16. Mr Reafee Sbu Jamoona 17. Col Dominic Dim Deng 18. Dr Sayed el-Khateeb 19. Dr Peter Nyot Kok 20. Dr Sumaia Abukashawa 21. Mr Rabie Hassan Ahmed 22. General Yousif Ahmed Yousif 23. Ms Sophia Pal Gai 24. Mr Samuel Odat Ayul
B. Apologies from Sudanese Participants 1. Dr Samson Wassara
1 The Sudan Peace-Building Programme process is a strategic partnership between the African Renaissance Institute (ARI) and the Relationships Foundation International (RFI).
4 C. International Facilitators
1. Professor Washington Okumu, Presiding Chairman, Vice-Chairman of ARI, Commissioner for Peace and Governance and Executive Director for Eastern and Central Africa 2. Viscount Brentford, Co-Chairman, RFI Chairman, British Peer and Former Member of the House of Lords 3. Dr Jeremy Ive, RFI Executive Director 4. Dr Michael Schluter, RFI Research Director, and Chairman of the Relationships Foundation 5. Dr Edward A. Christow, RFI Executive Secretary and Deputy Research Director
D. International Consultants
1. Mr Marc Weller, Assistant Director of Centre for International Studies, Cambridge University, UK 2. Dr A. R. O. Abdel Rahman, Director General, Ben Bakriya Co. Ltd., Sudan 3. Mr David Nailo N. Mayo, Doctoral Candidate, University of Birmingham, UK 4. Professor Al-Tayib Zein Al-Abdin, Professor, Faculty of Social Science, International Islamic University, Pakistan 5. Dr Mario Awet, Graduate of University of Birmingham, UK 6. Professor Francis M. Deng, Professor, City University of New York, US
E. International Participants/Discussants
1. Dr Andrew Michels, Executive Director, International Human Rights Law Institute, De Paul University, Chicago, USA 2. Mr Jim Dunlap, Special Advisor, Department of State, USA 3. Mr Charles McPherson, Head of Energy Department, World Bank 4. Mr Chris Poncia, Managing Director of C.R. Poncia Limited
F. Apologies from International Participants
1. Mr Elmar Brok, Chairman of the European Union Foreign Relations Committee 2. Sir Fred Catherwood, Former Vice-President of the European Parliament and Former Vice-President of the European Parliament Foreign Affairs Committee
5 III. Recommendations by the Sudanese
A. Introduction
1. At the end of the Third Consultation of the Sudan Peace-Building Programme, we, the Sudanese participants wish to commend the African Renaissance Institute (ARI) and the Relationships Foundation International (RFI) for their noble efforts exerted so far, and encourage them to persevere in those efforts dedicated to the promotion of peace building in the Sudan as complementary endeavours to the on-going peace initiatives.
We appreciate the frank and positive dialogue of the meeting during the past days. We believe the Third Consultation should be considered to be successful owing to:
(a) Wider participation and more serious engagement. (b) Involvement of many Sudanese experts in writing papers on oil and gas, self- determination and religion and the state. (c) More time for participants to discuss the issues raised. (d) Ideas and suggestions which brought consensus closer on major issues, especially on self-determination and religion and the state.
B. Religion and the State
2. In view of the diversity of the Sudan, no single religion, race or culture should be used as the basis of the identity of the Sudan. The aim should not be the reduction of religion but the emphasis should be on citizenship and national identity, and their protection from the encroachment of any external considerations.
3. The state should guarantee freedom of religious and cultural expression and other human rights, under the supremacy of the rule of law.
4. Confidence and trust need to be built in ways that lead to mutual recognition and respect for the multi-religious, multi-ethnic and multicultural nature of the Sudan. In particular, in view of the fact that religion has become a major factor in the current conflict, and in order to give unity a chance in the Sudan, the constitution should not designate any religion as the state religion.
5. In order to promote understanding between the Sudanese people through dialogue, discussion and criticism, all parties should promote discussion on sensitive issues pertaining to religion, policies and governance.
6 C. Self-determination
6. The consultation urges all parties, who had already accepted the principle of self- determination, to enter into a negotiated transitional period. We believe voluntary unity is the desire of the majority of the Sudanese people. However, unity is not possible without justice for all. The parties should address the following concerns:
(a) To put in place mechanisms which will establish and maintain democracy, human rights and the supremacy of the rule of law. (b) To redress the injustice and inequalities of the present situation in the country. (c) To ensure effective accountability of all public bodies throughout the country. (d) To address the imbalance in the relationship between the centre and the periphery. (e) To define the entities of self-determination and the process of the referendum.
D. Oil and Gas Sector
7. There is an urgent need for an impartial international commission of experts agreed by all parties to establish the facts of what is happening in this sector. The terms of reference of the commission should include:
(a) Whether there has been forced clearing of the oil areas. (b) The extent of environmental damage caused by the oil wells and pipeline. (c) Whether the short-term exploitation of the oil fields by foreign oil companies has damaged the long-term oil production potential from those fields. (d) How the revenue from the oil sector has been used. (e) Levels of profitability of the foreign oil companies.
8. The international commission should also be asked to make recommendations on the following issues:
(a) Ways to increase transparency relating to the activities of foreign oil companies, and of the levels and uses of the oil revenues. (b) Ways to include all the stakeholders in decisions affecting the present and the future of the industry. (c) Potential forms of revenue-sharing agreements between central and regional-state governments and how they should be administered.
E. Conclusion
9. From our deliberations, we wish to commend the points above for consideration by all those concerned for the future of the Sudan. In addition we wish to affirm that peace, democracy, freedom and justice are essential requirements for any step forward.
7 IV. Background Papers to the Third Consultation and Summary of the Ensuing Discussion
1. The Changing Structure and Role of the State in Africa
a. Paper Presented by Professor Washington Okumu
(1) INTRODUCTION
It was immediately after the end of our Second Consultation on the Sudan Peace Building Programme, which took place in Feldon Lodge, Hemel Hempstead, England, 16th - 20th July 2001, that I felt that time was now ripe to talk openly about the changed political and economic circumstances in the world since the end of the Cold War in 1990 and how they affected the people of Africa and their governments. Many people in Africa did not understand why there was a sudden explosion of ethnic conflict in the continent so soon after the end of the Cold War. It was as if these potential ethnic conflicts were just lying dormant like a volcano only waiting to erupt at an appropriate moment. Although I hasten to add that there are certain conflicts which have been going on during the Cold War, but they were few in number. The Angolan war and the Sudan conflict are clear examples in Africa. Admittedly, these conflicts did not only erupt in Africa. We have the examples of the horribly violent break-up of the former Yugoslavia in Europe which culminated in the creation of six states in the names of Slovenia, Croatia, Bosnia - Herzegovina (which was further curved up into a small Serbian State or enclave), and later we are witnessing the creation of Kosovo and possibly Macedonia. Also the former communist state of Czechoslovakia was split into the two republics of Czeck and Slovakia. In Asia, we have seen the establishment of a new state in East Timor which was formerly ruled by Indonesia. The only major state which was created during the Cold War was Bangladesh which was part of Pakistan before. We do not know, as yet, how the Indo-Pakistani conflict over Jammu and Kashmir will be finally resolved. In the case of the Israeli- Palestinian conflict in the Middle East, the world has agreed to the creation of an independent Palestinian State in the Gaza Strip and West Bank. It now remains only a matter of when. Nearer home in Africa we have had the creation of Eritrea out of Ethiopia.
I have touched on these issues because they will have serious implications for our deliberations from now onwards. It has also been pointed out that the interpretation of the evolution of global politics after the end of the Cold War required a paradigm shift in our political and economic thinking since no paradigm is externally valid. I will revert to this point later in my presentation. Suffice it to mention here only that those ethnic
8 groups who had been hitherto suppressed as a result of or during the Cold War suddenly found a new lease of life and began to assert their inalienable political rights and dignity after 1990. The present situation can only be compared with the period after the end of the Second World War in 1945 when those countries in Africa, Asia and the Middle East that had been subjected to colonialism and imperialism began to assert their rights to self- determination. In the Middle East in particular, the process began in 1830 when the French took Algiers and nine years later the British colonized Aden. As the Ottoman Empire declined, this colonial expansion continued inexorably: Tunisia was occupied in 1881, Egypt in 1882, the Sudan in 1898, and Libya and Morocco in 1912. In Sub- Saharan Africa, the process began in earnest during the Scramble for Africa after Berlin Conference of 1884. The only exception was the southern tip of the continent where the Dutch and the British settled in what is today the Republic of South Africa from 1652 onwards. The Portuguese also settled in Angola and Mozambique much earlier. The same applies to Sao Tome and Principe, Guinea Bissau, and the Cape Verde.
It was my intention to talk mainly about economic issues and in particular the phenomenon of globalization and how it has affected the African people. I genuinely felt that the African people and their leaders had not yet fully appreciated how their lives would be changed, willy-nilly, by these momentous developments in the world. As I have said above, it was not my intention to speak about the political changes and consequent military and security balance of power in the world, if ever there was such a balance since, in effect, the USA had emerged as the pre-eminent and in fact the only superpower in the world. And when I talk about superpower I mean it in terms of economic, political and military terms.
I know that most of you will quickly wonder as to how does this affect our current deliberations on peace in Africa in general and in Sudan in particular. But I plead with you to be patient because the issue will become quite clear to you very shortly.
You may also wonder as to why did I think of this particular issue of globalization during our conference in July 2001? I hope most of you must have read in the world's major newspapers the terrible violence which was unleashed in Genoa, Italy, during the G8 meeting which was taking place almost at the same time we were holding our conference. It found when I had myself read very deeply and widely on two issues which have been very close to my heart (apart of course, from international mediation and peacemaking), namely: globalization and the eradication of poverty in Africa. I want to quickly add that with regard to the latter subject, the popular language used in most Western
9 publications and international organizations is poverty alleviation or poverty reduction. I think we in Africa must set ourselves a more ambitious goal than that. We must not allow the West to set the goal or agenda for us, intellectually or otherwise as is usually the case. World Bank statistics has revealed to us that most people in Asia and Latin America are living on less than US $1 a day. In Africa, the figure is below US $0.65 cents per day. This is absolutely scandalous, considering Africa's wealth in terms of its human and natural resources. In Sudan, for instance, although people are generally perceived to be still very poor, but the country is enormously wealthy in terms of its human and natural resources. Sudanese oil exploration began in the 1950's in the coastal water of the Red Sea and while the country has been an oil and natural gas producer for a number of years, it is considered vastly unexplored. Recent finds at the Heglig and Unity oil fields in South - Eastern Sudan have changed that dramatically with 1999 reserves estimated at a respectable 1.2 billion barrels and natural gas reserves at 3 trillion cubic feet. Latest figures put the monetary value of the discovered reserves at well over US $ 45 billion and this figure is climbing by the year. Now, back to the subject of globalization. The Genoa demonstrations against globalization of the G8 meeting reminded me of similar demonstrations in Seattle, USA, in November 1999 which stopped or scuttled an important international conference on world trade organised by the World Trade Organisation (W.T.O) and again in Gothenburg, Sweden in June 2001 at a meeting of the European Union Summit. One of the most active organisers of the Seattle demonstrations has written the following as justification for their opposition to the phenomenon of globalization:
"I think we are really at war. We've got an enemy which is the whole corporate system. The objective of that corporate system, whether financial or industrial, is to be able to go where it wants, when it wants, for as long as it wants, to make as much money as it can, and damn the costs.... If the enemy is transnational and is going for total control, then I think it's obvious that the response has also got to be a mix of people. That's not our goal. We want international democracy. But if we are to get it we've got to fight for each other. If we're not fighting each for all, all for each, we're going to be picked off one by one... We've got to stop and turn around and we've got to do nothing less than overthrow the permanent government of the transnational corporations. This is difficult and we shouldn't hide from ourselves the difficulty because we've got to make a huge leap towards common action which transcends not just nationality, which is already hard enough, but we've also got to transcend all the other boundaries; all the boundaries of age, of class, or race, of gender - all
10 special interests. We can win if we pledge ourselves to each other because history is handing to us an enormous opportunity and we've got to seize it." *1
During the Gothenburg demonstrations, many activists came together from throughout the continent to demonstrate against what they termed as the neo-liberal policies of an undemocratic E.U. The organisers of the marches and workshops which took place over several days had said in their statement of purpose that:
"We oppose the transformation of the public sector and our environment into nothing more than commodities. We oppose the militarisation of the E.U., racism and the construction of a Fortress Europe." *2
I have mentioned the above events in order to let you know that when I speak of the need for Africa and the leaders of the continent to have a major and fundamental paradigm shift with regard to the need for an urgent change in their perception of the changing role of government occasioned by globalization in the last twelve years, I am not accused of being oblivious to other opposing points of view. I should not be accused, for instance, of extolling the virtues of globalization without being aware of some of its negative, or as some critics would even like to emphasize, nefarious effects. I am very much aware of the long tentacles of corporate globalization and how the system can be quite oppressive in small countries in Africa with no economic and political power to resist its spreading influence. I am aware of the corporate libertarianism's ideology which advocates total freedom for corporations from restraints of regulation and national borders in the pursuit of profit. In fact, in this regard, I share the same views expressed, strangely enough, by none other than George Soros, the renowned international financier, who has written the following:
"Perhaps the greatest threat to freedom and democracy in the world today comes from the formation of unholy alliances between government and business. This is not a new phenomenon. It used to be called fascism. The outward appearances of the democratic process are observed, but the powers of the state are diverted to the benefit of private interests." *3
What George Soros mean becomes quite clear when you read a book entitled: "Masters of the Wired World",*4 in which leading Western political leaders such as Tony Blair, Al Gore, Martin Bangemann, Alvin Toffler, and Sir Arthur Clarke, extol the virtues of the Global Information Infrastructure (GII), in which they are quite right, but at the same
11 time are somewhat oblivious to the sort of havoc which can be wrought on the economies of the poor African countries. There are many examples which attests to sometimes ruthless arrogance of the West in imposing their thoughts and systems on the rest of the world. Here again the most intellectually authoritative international best-seller book has been written by Professor David Korten of Harvard University. *5
As I have said above, I point these issues to avoid creating the impression that I am pushing the economic agenda of the West and their powerful transnational or multinational corporations. What I am doing is being realistic and recognizing our weakness in so many areas which has made it impossible for us to be heard or set part of the agenda in international economic and political affairs. My plea to the international community,*6 so called, is to realize that the resources of the world has been given to us by God as a sacred trust, and that trust involves creating a world that is fair and works for all; a world that we, through our consciousness and collective actions have a responsibility to bring into existence for ourselves, for our children, for the yet unborn. Accepting this profound responsibility takes us to a whole new place as human beings. The fact that South Africa and Nigeria are now being allowed to attend the G8 meetings, albeit as observers, is a very encouraging development for Africa.
In any case, whatever that may be said about globalization, and its possible deleterious effects in the development of African countries, there is no denying the fact that globalization is not simply a trend or a fad, but is, rather an international system. It is the system that has now replaced the old Cold War system, and, like that Cold War system, globalization has its own rules and logic that today directly or indirectly influence the politics, environment, geopolitics and economies of virtually every country in the world. In other words, if you want to understand the post-Cold War world today, you have to start by understanding that a new international system has succeeded it - and that is globalization. It is the defining international system in that it has replaced the Cold War system as the dominant organizing framework for international affairs. It is the most important phenomenon of our time. In purely modern theoretical economic terms, globalization has been defined in the following manner:
"Globalization means the closer integration of the world economy resulting from increasing flows of trade, ideas and capital and the emergence of multicountry production networks spawned by the investment activities of transnational corporations. Multinationals account for a large share of world production, and perhaps one third of all trade is within firms. But globalism
12 extends beyond economic interdependence to embrace the transformation of time and space as a result of the communications revolution and the spread of information technology. People are now more directly affected by distant events. By the same token, microlevel actions can have microlevel consequences. A change in the use of fuels or in the energy intensity of production in one part of the world can have significant effects." *7
(2) THE CHANGING ROLE AND STRUCTURE OF THE STATE IN AFRICA:
With the above definition, we now come to the real core of my paper by examining the implications of globalization in the way African states have been operating and how they can adapt to the new international economic system and benefit from it. We shall also have a brief look at the effect of globalization on ethnic conflicts in Africa. As Tony Blair has rightly said:
"The world economy is undergoing a process of change as fundamental as the shift from agrarian to industrial production: the emergence of the knowledge - driven economy, the digital economy.... In this century, the source of sustainable competitiveness will be the ability to create, disseminate and rapidly exploit knowledge. Knowledge has, of course, been of vital economic importance, but the scale of the knowledge revolution we are now witnessing marks out the new economy as something different in kind from anything that has gone before." *8
May I, at this stage, inform you of a very important meeting of the Global Coalition for Africa* 9 which took place in Gaborone, Botswana, from October 25 - 26, 2001. The main purpose of this meeting was to deliberate on the issue of the Role of the Private Sector as Key to African Development. *10. Apart from the main issue paper on the above subject, discussions in plenary were organised around the following subjects or sub-themes: (a) Overview of the Private Sector in Africa. (b) The Role of Governments. (c) Responsibilities of the Private Sector. (d) Support of External Partners. (e) Future Priorities of the GCA and Concluding Discussions.
13 It was during this meeting that I spoke very openly and frankly to the African and Western leaders about the issue of globalization.*11 I am very happy that I did so because I received very frank and candid reactions from President Museveni of Uganda, Deputy President Jacob Zuma of South Africa, the Prime Minister of Namibia and a representative of the American government. I lamented the fact that although the world was now more than ten years old, since the end of the Cold War, but it is only Africa, among all the nations of the world, which had not realized that fact. Like an Ostrich, we continue to bury our heads in the sand and operate in the same old ways as we have done before. We in Africa have not yet realized that the so-called Global Information Infrastructure, a network of networks that transmits messages and images at the speed of light and on every continent, has the potential, ultimately, to link all human knowledge. Its creation is so revolutionary and the changes it has wrought are so vast that even those experts in the West who have worked on it for years cannot predict its full impact.
This revolution is being fuelled by three key drivers. First, the explosion of scientific and technical knowledge. The three cornerstones of the information age are the computer, the telephone and the television. Although these three items are not the whole technological story, but they are the ones that stand out the most. Their ubiquity is aided or propelled by digitalization in general and the Internet in particular. Nowadays, virtually everything - voices on telephones, pictures on screens, even management decisions - can be converted into ones and zeroes and then stored or transmitted. Indeed, if there is such a thing as a universal language, it is not English, but binary: a Chinese computer speaks exactly the same language as a Spanish one, as well as the same one as a Spanish digital phone. The World Wide Web not only allows people to access a vast storehouse of information from anywhere in the world but also allows all sorts of business to become borderless.
"The Internet will change how people live, work, play and learn. The Industrial Revolution brought together people with machines in factories, and the Internet Revolution will bring together people with knowledge and information in virtual companies.... It will promote globalization at an incredible pace. But instead of happening over 100 years like the Industrial Revolution, it will happen over seven years." *12
But people have concentrated so much on the Internet that it has tended obscure another very important spin-off from the telephone-television-computer triumvirate that might end up having a greater effect on globalization: the mobile phone. If the drop in
14 telephone prices and the development of the Internet has all been about the "death of distance", then the spread of mobile phones might be said to herald the "conquest of location." Increasingly, the mobile-phone industry is going not just digital but high-speed digital with Internet access. The next few years will see the matings of three devices - mobile telephones, computers and personal organizers - in order to create a single hand held device.
The second factor fuelling this revolution is the success of the western world in opening up the global market, allowing knowledge - and the capital and skills needed to exploit it - to flow freely across the borders. This is what some economists have described as the all-devouring hurricane of capitalism. The free-flowing capital markets makes it easier for companies in even the most out-of-the-way places to buy new technology, which in turn makes it easier to move capital to similarly obscure places. And another key component of this is management - by which we mean the spread of common management methods, the growth of the management industry of consultants and business schools, and the development of a new cadre of professional multinational manager - which alerts companies to the clever ways in which they can use capital and technology. Companies that organise themselves better than their rivals do soon expand beyond their national borders, and in so doing put pressure on less cosmopolitan companies to follow suit or risk annihilation, and so the circle continues.
In other words, the engine which drives globalization is when politicians stop interfering with the operations of the free-exchange market capitalism in which a wide variety of commercial forces such as the Internet, the foreign exchange market, mergers and acquisitions, and foreign direct investment are allowed freely into play. Technology, the capital markets, and management can only neatly blend together if there is no government interference in their operations. One thing is already quite clear. The changes flowing from the digital revolution have not been, and will not be, planned by governments - the massive, sprawling growth of the Internet is testament to that. Governments can still play some vital role - not directing, but in enabling change. They can encourage the use of information and communication technologies in school education and more widely in life-long learning. Governments should take IT into communities, for examples, through libraries, enabling it to be accessed by people in society who might not otherwise have the opportunity, including the elderly, unemployed and disabled. Also, governments should promote the use of IT by businesses, fostering competitiveness and the development of new products and services, and planning legislation on secure electronic commerce to increase business and consumer confidence
15 in electronic transactions. Unless these measures are taken by governments, the IT age could divide society, if not the world, into information 'haves' and 'have nots.' In our quest to make this global phenomenon of the digital revolution and ipso facto electronic commerce into a powerful agent for global economic growth, we should be mindful of the warning by President Museveni of Uganda of promoting a negative parasitic globalization. He firmly believes, and rightly so, that what Africa needs at the moment, more than anything else, is market access of her products into the industrialized countries' markets. Also, he believes that in this way, apart from this trade being of mutual benefit to both parties, Africa will be able to somewhat liberate Europeans from their excessive burden of agricultural subsidies. For instance, it is estimated that the current subsidies paid by European governments to prop up agriculture for their farmers are about US $361 billion.
The third factor driving this new system of globalization is the ability, through modern technologies, to codify that knowledge in a common digital language that can be manipulated, assessed and communicated at high speed. This is the so-called "wired - world" in which cyberspace speaks out.
(3) HOW THE ROLE OF GOVERNMENT IN AFRICA MUST CHANGE
I have just given a slight indication above how the role of government has been rendered extremely minimal by the new digital global revolution. This is because the driving idea behind globalization, as we have seen above, is free-market capitalism - the more you let market forces rule and the more you open your economy to free trade and competition, the more efficient and flourishing your economy will be. Globalization means the spread of free-market capitalism to virtually every country in the world. Therefore, globalization also has its own set of economic rules - rules that revolve around opening, deregulating and privatizing your economy in order to make it more competitive and attractive to foreign investment. That is why every government in Africa must, of necessity, privatize the telecommunications sector because this sector is the first and most fundamental requirement which demands that efficient and cheap telecommunication costs is the sine qua non for a successful and thriving economy. The same applies to the energy sector. As long as the state continues to control telecommunications and electricity sectors of the economy, that country's development will inevitably continue to lag behind, and the talk of poverty eradication in such a society will remain a pipe dream, let alone any dream of attracting direct foreign investment.
16
In other words, what is even more significant is that a talk in such a country of attracting foreign direct investment will fall on deaf ears. For instance, in 1975, at the height of the Cold War when almost every country, especially in the Third World, talked about socialism and state control of the so-called commanding heights of the economy, only 8 percent of countries world-wide had liberal, free-market capital regimes, and foreign direct investment at the time totaled only US $23 billion. By 1997, the number of countries with liberal economic regimes after the end of the Cold War constituted 28 percent and foreign direct investment totaled US $ 644!*13
So, it is quite clear that as globalization deepens, new problems of undertaking national development in the context of an integrated world economy will become the main economic issue in the future. Even more than for previous generations, open market economies will be the rule. And whereas previous international policy issues resolved around trade policy which is still very important to the Third World - the next generation will have to devote more attention to determining the effects of international capital movements, migration, and technology transfer.
There were also a lot of discussions between the 1970's and 1980's about the establishment of a New International Economic Order and other dependency thinking. But these ideas are now passe. As we have pointed above, however, there will be more controversy and intense discussion over whether globalization benefits the poor countries and whether it creates benefits for poor people within countries. In other words, the question of poverty eradication in Africa, in particular, will still remain the dominant economic issue of the next generation. It will have to sort out the positive and negative impulses resulting from globalization.
It is important to note, in the context of the emerging debate on the role of international multilateral financial and trade organisations. The view has been expressed that:
"Furthermore, because markets, technology, and corporations are global in scope, while the jurisdiction of the nation state is only local, there will be a need for new actions by the World Bank, the IMF, and the World Trade Organisation. As the main constituents of the international public sector, they will have to devise new programmes to ensure that the benefits of global integration are more equally shared, that competitive policy-making is avoided,
17 and that problems of incomplete risk markets are mitigated as international integration becomes ever more complex." *14
This view, however, is very strongly contested and opposed by the increasingly vocal and influential anti-globalization movement in Europe and the United States. Their argument, briefly stated, is that since we are living in the era of corporate-led and corporate-driven globalization, these transnational corporations and their allies, the IMF, the World Bank and the W.T.O., cannot build an inclusive world - their policies are in fact throwing petrol on the fires of inequity. They also further argue that the West recognizes, quite correctly, that the combination of debt plus structural adjustment plus massive privatization is a far more efficient instrument than colonialism ever was for keeping countries in line. I mention these views simply to stress the fact that they must be addressed if resentment and suspicion in Africa about globalization is to be reduced or answered adequately.
(4). THE EFFECTS ON ETHNIC CONFLICT:
It has become clear that globalization "pushes down - it creates new demands and also new possibilities for regenerating local identities." *15 This is because it has led to widened horizons, greater interdependence, and increased awareness of happenings beyond the confines of the community and the nation. It has also encouraged the drive or tendency towards localization - that is, a crystallizing of local or ethnic identities that is in part, a reaction to globalism. Localization represents a demand for greater political, fiscal, and administrative autonomy in a post-cold war geopolitical environment in which the pull of centrifugal forces on states has grown stronger. The assertion of identity and the demand for autonomy are tied to the upsurge of participatory politics that has given many people a voice and provided foci for organisation. Localization trends also reflect the emergence of economic regions comprising linked industrial clusters that have exploited powerful agglomeration economies to enter a virtuous circle of development.
But I should like to point out that localization has not only been due to the push of globalization. It was, in fact, already on the horizon in the late 1980's. Since then, it has moved towards the central foreground, spurred of course by the globalization phenomenon. Localization is not exclusively a result of a change in the international political climate following the end of the Cold War. In many countries it stems from acute dissatisfaction with the central Government's ability to maintain law and order and to fulfil its promises to raise income, increase the number of jobs, and provide public
18 services. Ethnic divisions, widening regional income disparities, and deepening inequalities between skilled and unskilled workers have at times fanned the discontent, while the rise of national political consciousness and activities has opened avenues for articulating demands for local autonomy.
FOOTNOTES:
1. See the quotation by Susan George on the inside flap cover of the book "Anti- Capitalism", published by Bookmarks Publications, London, 2001.
2. See the article by Emma Birchman, Op.cit., p.1
3. George Soros; "Open Society: Reforming Global Capitalism," New York: Public Affairs, 2000, p. xi.
4. Anne Leer: "Masters of the Wired World,"London, Redwood Books, Trowbridge, Wiltshire, U.K., 1999.
5. David C. Korten: "When Corporations Rule the World," Published 2001 in the U.S.A. by Kumarian Press, Inc., and Berrett - Koehler Publishers, Inc.
6. There is no proper and universally accepted definition of the term "International Community." It is however, used loosely to refer to the five Permanent Members of the United Nations Security Council or to the G8 members of the industrialized countries of the West and Russia. But strictly speaking, it is the United States of America that calls the shots, particularly in the post-Cold War world.
7. Gerald M. Meier and Joseph E. Stiglitz: "Frontiers of Development Economics," A co-publication of the World Bank and Oxford University Press, New York and Washington D.C., 2000, p. 235.
8. See Anne Leer, Op.cit., p. viii.
9. The importance of the Global Coalition for Africa lies in the following factors: It is the only high-level intergovernmental forum in which the North-South dialogue now takes place in the world. (It will be recalled that the North-South Dialogue was set up by the United Nations in the 1960's as a forum in which the developed industrialized countries of the North held high-level negotiations on world economic development issues with their counterparts from the developing South ie. Africa, Asia and Latin America. Hence the name the North-South Dialogue. It sort of fizzled out or died with the end of the Cold War, and was replaced with the GCA. The first original Co-Chairpersons were Robert McNamara, from the USA and former President of the World Bank and Secretary for Defence under President J.F. Kennedy; Mwalimu Julius Nyerere, the late President of Tanzania;
19 Sir Ketumile Masire, former President of Botswana; and Jan Pronk, now Minister of Housing, Spatial Planning and Environment, the Netherlands). Secondly, it is the only forum which brings African issues to the attention of the G-8. Thirdly, attendance at its meetings is by personal invitation only. Fourth, its other functions can be found in the Internet or its many brochures. I was invited to attend this GCA plenary meeting in my capacity as the Vice-Chairman of ARI and its Commissioner for Peace and Governance and also as an old member of the UN sponsored North-South Dialogue. In other words, my portfolio in the African Renaissance Institute of Conflict Resolution is not only a priority area of activity for the G.C.A. but also for newly re-named New Partnership for African Development (NEPAD). The African Heads of State who were invited were: H.E. Festus Mogae of Botswana, H.E. Thabo Mbeki of South Africa (who was represented by Deputy President Jacob Zuma), H.E. Olusegun Obasanjo of Nigeria who was represented by a Minister, H.E. Yoweri Museveni of Uganda, H.E. Fredrick Chiluba of Zambia and H.E. Meles Zenawi, Prime Minister of Ethiopia, and the Prime Minister of Namibia.
10. See an Issue Paper prepared by the Secretariat of the Global Coalition for Africa entitled: "The Private Sector: Key to African Development." G.C.A. Document/Plenary/no/02/10/2001
11. After the opening of the meeting by President Mogae of Botswana, I was called upon by the Chair to be the first speaker in order to set the tone for the subsequent discussions. In my intervention, I talked of the importance of globalization which has emerged since the end of the Cold War as the only defining policy in international relations. I said that although the world is now ten years old since the end of the Cold War, we in Africa were the last to realize that such a change had taken place. We are always behind the rest of the world in these matters and it only goes to prove Africa's backwardness. I said that in Africa, the majority of our people are so poor that they still live on less that US cents 65 per day - and not on less than $1 a day as President Mogae had said in his opening statement. I said that both very little foreign direct investment and foreign equity investment finds its way into Africa. No amount of assurance by African leaders about attracting foreign investment has had any impact. I gave the statistical examples of huge amount of FDI moving around the world - a figure of over US $ 500 billion and yet only about US $ 4.5 billion has found its way into South Africa and about US $1 billion has gone to the rest of Sub-Saharan Africa. I ended my presentation by informing the African leaders that the three engines which drive globalization are technology, the capital markets, and management. However, within the technological engine, the holy trinity which stand out the most are the computer, the telephone and the television. In other words, telecommunications is key to the new revolution in information technology, and its ubiquity would mean very little without digitalization in general and the internet in particular. It was such a pity that all the telephones in Manhattan island in New York city are more than the entire telephone network in the whole continent of Africa, most of which is concentrated in South Africa anyway.
20
12. Thomas Friedman: "The Internet Wars," The New York Times, April 11, 1998.
13. These were basically World Bank statistics quoted in Thomas Friedman: "The Lexus and the Live Tree," Anchor Books, 2000, p.9
14. Meier and Stiglitz, Op.cit., p.33 15. See Anthony Giddens: "The Third Way - The Renewal of Social Democracy," Cambridge, U.K., Policy, Press, 1998, p.31
DATE: 22ND JANUARY 2002
21 b. Summary of Discussion
1. Globalisation and democracy are two sides of the same coin. This is the nature of the world since it has changed from being a polarised world during the cold war. Africa is not prepared for the New World Order. The Global Coalition for Africa (GCA) is a good way of engaging the West. Issues of globalisation are very complex and no one single leader will be able to answer all the questions. GCA is an important vehicle to attain our objectives if we want to be part of this world. The whole communication system in Africa is so tiny it is only equivalent to a single city in the USA.
2. Globalisation is inevitable and we face its outcomes daily. We know the consequences of this type of phenomena. Should we succumb to it or should we be asking questions?
3. Globalisation is a phenomenon we should understand well and make it work for us – and protect ourselves against the negative aspects of it. We should study it carefully but also insist that decisions continue to be made locally rather than far away from the people they effect. There must be adherence to human rights to protect us against some of the negative aspects of globalisation.
4. The State in Africa has been privatised to a certain extent. Some African rulers do not distinguish between private and public property. However, September 11 has made them realise that the world has changed and they must also change.
22 2. Self-determination: the international experience a. Paper presented by Marc Weller
Terms of Reference
I have been asked to address the meaning of the concept of self-determination in international law. I am then instructed to consider the means of achieving self- determination. Finally, I am invited to address recent experiences, including Slovenia, Croatia, Bosnia and Herzegovina, Eritrea and East Timor. Throughout, I have assumed that this is not meant to be an abstract academic paper, but instead a practical instrument that can help shape the understanding of the international legal aspects of self-determination issues of participants in a realistic way. To this end, I have placed the observations that follow directly into the context of the recent precedents, rather than addressing them separately.
Structure
I. The Meaning of the Concept of Self-Determination A. A concept with multiple meanings B. Self-determination and secession C. Colonial self-determination D. Constitutional self-determination E. Effective entities F. New Claims G. Application to Sudan
II. The Means of Achieving Self-Determination A. Process B. The level of entitlement C. The possibility of struggle D. Types of Settlement
III. Annex: Materials on Standards and Recent Practice A. Resolution 1515 B. Resolution 1541 C. Resolution 2625 D. EU documents on Yugoslavia E. Chechen agreement
23 Executive Summary
This document argues that there are now two substantive sources of entitlements to self- determination in the sense of a right to unilateral opposed secession. In addition to the traditional colonial status, the second entitlement can be best described as constitutional self-determination. Constitutional self-determination can be based on express constitutional provisions, on a constitutional grant made, for instance in an internal or internationalized peace settlement, and on an informal acceptance of the right of a territory to hold a referendum. As colonial self-determination is not fully applicable to the situation in southern Sudan, constitutional self-determination would appear to be a useful tool to address this case. In the second part of the presentation, the substantive rights held by self-determination entities are considered, along with the processes that should be followed in implementing these rights.
I. The Meaning of the Concept of Self-Determination International law is made by governments. Governments normally see it as their first duty to preserve the territorial integrity and unity of the state they claim to represent. Hence, it comes as no surprise that the international legal concept of self-determination has been framed in a very restrictive way. This part of the paper first analyzes the traditional view of the meaning of the right of self-determination, before turning to some more recent developments.
A. A concept with multiple meanings This paper addresses self-determination as the right of a people freely to determine its political, economic and social status, including the question of independence or association or integration with another state. However, to avoid confusion, it might be appropriate to distinguish at the outset the other layers of meaning that are generally attributed to the term self-determination:
• Self-determination as an individual right: Self-determination is not only a right exercised by peoples or groups. It is also a human right of individuals. Hence, individuals are entitled to political participation in the political, economic or cultural system of their state.
• Self-determination as a group right: Self-determination is also a right that can be invoked by certain groups, such as national minorities. In this sense, self- determination is congruent with minority rights, including possibly the right to limited autonomy for minorities that constitute a local majority.
24 • Self-determination and indigenous peoples: Indigenous populations tend to claim a particularly strong bond with certain territorial regions. In addition to minority rights, this will imply a very strong claim to cultural and perhaps also political autonomy. In short, while self-determination also attracts legal consequences in the different contexts given above, only self-determination of peoples is associated with a right to secession. It is in this sense that self-determination will be considered in this outline paper. In this context, a further distinction must be drawn at the outset. Self-determination of peoples implies a right unilaterally to initiate a change in the status of a territory through an act of will of the population of that entire territory. This exercise of will, mainly manifested through a referendum, must be given effect by central authorities that have maintained effective control over the territory in question up to that point. This function of the referendum is therefore different, and needs to be distinguished, from a referendum held to confirm a change in more limited slices of territory agreed by existing sovereign. That is to say, the transfer of territory from one state to another through cession should only be effected if supported through a referendum by the population, or at least through a decision that has been fully democratically legitimized. However, this kind of ‘self- determination’ ratifies the decision of the states involved, it does not replace that decision. Genuine self-determination of peoples, on the other hand, is in itself constitutive of a claim to change the status of an entire territory, mostly in favour of outright independence. Where one state joins another (the new German federal states of the former GDR) a democratic manifestation of will is also required, either through parliamentary assent or through a referendum. The same holds true, at least in recent practice, where an existing state dissolves into constituent parts. This occurred when Czechoslovakia split into two separate states after an agreement to that effect had been obtained in parliament. (The cases of the USSR and the SFRY are different, as the dissolution occurred as a matter of fact, in the absence of an advance decision by the central governments to this effect. They will be considered in greater detail below). The manifestation of an act of will of the population is also often necessary where a government agrees to a secession or dissolution of a state. For example, when Ethiopia decided to provide for the option of independence for Eritrea after a prolonged ethnic and civil conflict, the exercise of that option required an act of self-determination on the part of the people of Eritrea to become effective. Again, however, there remains a crucial difference. The exercise of the will of the population followed on from a previous agreement by the central government that a referendum could be held and that its results
25 would be respected. Self-determination was not necessarily the trigger for this process at the outset. Instead, the exercise of self-determination flowed from a previous, voluntary decision of the government or central state, also reflected in a provision of the new Ethiopian constitution. A change in the status of an entire territory is therefore always possible, provided this is done with the consent of all involved, including the central government. Issues of legal interest only concern the process through which this decision is implemented and problems of state succession, i.e., the continuity or otherwise of the international legal right and obligations for the state in question. In contrast, the essence of the traditional right of self-determination is that it in itself constitutes a valid basis for a claim to secede, irrespective of the wishes of the central government. Therefore, one is really talking about a right to unilateral and if necessary opposed secession. Such a right is perceived to be very dangerous by governments, as it can be exercised autonomously from their consent and control. Hence, it is not surprising that the right to self-determination in the sense of unilateral and opposed secession has been defined very restrictively. In principle, governments have only admitted the right in the very specific context of decolonization. That is to say, this aggressive right (from the perspective of the central state) was only granted in circumstances which in view of preponderant opinion of states were the outgrowth of unlawful and repellent practices by others. By the late 1950s and early 1960s, when self-determination was translated from a political principle into a legal right, it was felt that such a right should be applied to consequences of colonialism, alien occupation and racist regimes. B. Self-determination and unilateral opposed secession The right to opposed unilateral secession stands in obvious tension with the claim to territorial integrity and unity of existing states. Governments have enshrined this claim in countless international declarations and other instruments. One might ask whether a secession that is not covered by the exceptional right to colonial self-determination amounts to an internationally unlawful act. This, for example, was the view (wrongly) taken by the rump-Yugoslavia in relation to Croatia, Slovenia, Bosnia and Herzegovina and Montenegro. The consequence of this view would be that an entity that succeeds in secession would be an unlawful entity. Unlawful entities are well known in international law. These are entities that have come into being in violation of essential rules of the international community as a whole, such as the prohibition of the use of force by states (Northern Cyprus), the right to self-
26 determination (Southern Rhodesia after UDI), the prohibition of apartheid (the so-called Banthustans), or the prohibition of genocide and ethnic cleansing (the Srpska Republic and Herzeg Bosna). Such entities may display the objective criteria of statehood of territory, population and government. However, this will not trigger the consequence of statehood that would ordinarily obtain. Instead, these entities are non-states and all states may be under an obligation not to recognize them as states or to assist them in maintaining their illegal status. However, practice shows that opposed unilateral secession in itself is not internationally unlawful, at least not to that extent. Hence, an entity that manages to secede and to maintain itself effectively can over time obtain statehood, and have this fact confirmed through international recognition, even if the central government objects. However, in its attempts to obtain statehood, the entity is not legally privileged (see below). Hence, the central state retains the freedom to forcibly incorporate the entity if it can manage to do so until the point in time when it has demonstrated its effectiveness to the extent necessary for statehood. One might say that Somaliland is at present in such a state of legal uncertainty. Biafra and Katanga are examples of entities that were forcibly re- incorporated, without much international opposition. Chechnya, which will be considered at greater length below, was also subjected to an armed re-incorporation. It is by way of a lack of international legal protection of its status that an ‘effective entity’ differs greatly from a ‘self-determination entity’. The latter is internationally privileged long before it obtains effective independence. Indeed, it is the essence of the right of self- determination to ensure that a self-determination entity can freely exercise the option of independence if it so wishes. C. Colonial self-determination The right of colonial self-determination is now a core part of international law and enjoys a status that is legally superior to other international norms (ius cogens). However, it is applied only to colonial and non-self-governing territories, of which there are practically none left.
There is no formal definition of what constitutes a colonial territory. However, as a rule of thumb it only includes those territories that one would intuitively recognize as such. These are territories that were forcibly acquired by a racially distinct metropolitan power divided by an ocean during the time of imperialism and subjected to a colonial regime for the purposes of economic exploitation. Many other populations that feel that they, too, have been subjected to colonialism, are excluded. For example, Chechnya argued that it was forcibly incorporated into Russia and colonially exploited. Some politicians in
27 Kosovo were tempted to make a similar argument in relation to Serbia. However, none of these claims were successful.
In addition to genuine colonies, it is accepted that peoples living under alien occupation (Palestine) and under racist regimes (formerly South Africa) are entitled to the right of self-determination. The same applies to ‘secondary’ colonies. These are entities that were entitled to colonial self-determination. However, when they were at the point of administering the act of self-determination, they were incorporated into another state. Eastern Timor and Western Sahara are the two principal examples of this phenomenon. The recent holding of a referendum in Eastern Timor and its move to independence are therefore an example of colonial self-determination in the classical sense, rather than constitutional self-determination.
While self-determination is an activist right that is intended to overcome the evils of colonialism, it is in fact administered in a way that is consistent with the administrative practices of the colonizers. For, the definition of the entity that is entitled to exercise the right of self-determination is in itself a product of colonial administration. Hence, self- determination does not aim to restore ethnic or tribal links amongst populations that were artificially divided by the colonizers. Instead, the ‘people’ entitled to self-determination are those who happen to live within the colonial boundaries drawn by the colonial powers.
Similarly, the International Court of Justice confirmed in relation to the Western Sahara and Morocco that links between the colony and other local states or entities that existed before colonialism will not be restored—they are not of a kind that could displace the right to separate identity that was actually manufactured through the process of colonial administration. Most strikingly this was also affirmed in relation to the island of Timor. Once Portugal withdrew from Eastern Timor, Indonesia was not legally entitled to ‘reunify’ the island under its own rule. Instead, its occupation of the island was internationally opposed, until Indonesia consented to the holding of a referendum on genuine self-determination. That referendum was strongly in favour of independence and its consequences are now being implemented with the assistance of an international peace-keeping/enforcement mission. While some might regard this practice of retaining ‘artificial’ colonial boundaries as reprehensible, it has been accepted by the African states upon independence. In fact, it has been fiercely defended by them. This principle of uti-possidetis has been described by the international Court of Justice as follows:
28
... [T]he principle of uti possidetis seems to have been first invoked and applied in Spanish America, inasmuch as this was the continent which first witnessed the phenomenon of decolonization involving the formation of a number of sovereign States on territory formerly belonging to a single metropolitan State. Nevertheless, the principle is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power.
21. It was for this reason that, as soon as the phenomenon of decolonization characteristic of the situation in Spanish America in the 19th century subsequently appeared in Africa in the 20th century, the principle of uti possidetis, in the sense described above, fell to be applied. The fact that the new African States have respected the administrative boundaries and frontiers established by the colonial powers must be seen not as a mere practice contributing to the gradual emergence of a principle of customary international law, limited in its impact to the African continent as it had previously been to Spanish America, but as the application in Africa of a rule of general scope. 22. The elements of uti possidetis were latent in the many declarations made by African leaders in the dawn of independence. These declarations confirmed the maintenance of the territorial status quo at the time of independence, and stated the principle of respect both for the frontiers deriving from international agreements, and for those resulting from mere internal administrative divisions. The Charter of the Organization of African Unity did not ignore the principle of uti possidetis, but made only indirect reference to it in Article 3, according to which member States solemnly affirm the principle of respect for the sovereignty and territorial integrity of every State. However, at their first summit conference after the creation of the Organization of African Unity, the African Heads of State, in their Resolution mentioned above (AGH/Res. 16 (I)), adopted in Cairo in July 1964, deliberately defined and stressed the principle of uti possidetis juris contained only in an implicit sense in the Charter of their organization. 23. There are several different aspects to this principle, in its well known application in Spanish America. The first aspect, emphasized by the Latin genitive juris, is found in the pre-eminence accorded to legal title over effective possession as a basis of
29 sovereignty. It purpose, at the time of the achievement of independence by the former Spanish colonies of America, was to scotch any designs which non-American colonizing metropolitan State to one division or another, but which were still uninhabited or unexplored. However, there is more to the principle of uti possidetis that this particular aspect. The essence of the principle lies in its primary aim of securing respect for the territorial boundaries that moment when independence is achieved. Such territorial boundaries might be no more than delimitations between different administrative divisions or colonies all subject to the same sovereign. In that case, the application of the principle of uti possidetis resulted in administrative boundaries being transformed into international frontiers in the full sense of the term. This is true both of the States which took shape in the regions of South America which were dependent on the Spanish Crown, and of the States Parties to the present case, which took shape within the vast territories of French West Africa. Uti possidetis, as a principle which upgraded former administrative delimitations, established during the colonial period, to international frontiers, is therefore a principle of a general kind which is logically connected with this form of decolonization wherever it occurs. 24. The territorial boundaries which have to be respected may also derive from an international frontier which previously divided a colony of one State from a colony of another, or indeed a colonial territory from the territory of an independent State, or one which was under protectorate, but had retained its international personality. There is no doubt that the obligation to respect pre-existing international frontiers in the event of a State succession derives from a general rule of international law, whether or not the rule is expressed in the formula uti possidetis. Hence, the numerous solemn affirmations of the intangibility of the frontiers existing at the time of the independence of African States, whether made by senior African statesmen or by organs of the Organization of African Unity itself, are evidently declaratory rather than constitutive: they recognize and confirm an existing principle, and do not seek to consecrate a new principle or the extension to Africa of a rule previously applied only in another continent. 25. However, it may be wondered how the time-hallowed principle has been able to withstand the new approaches to international law as expressed in Africa, where the successive attainment of independence and the emergence of new States have been accompanied by a certain questioning of traditional international law. At first sight this principle conflicts outright with another one, the right of peoples to self- determination. In fact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who
30 have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, have induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples. 26. Thus the principle of uti possidetis has kept its place among the most important legal principles, despite the apparent contradiction which explained its coexistence alongside the new norms. Indeed it was by deliberate choice that African States selected, among all the classic principles, that of uti possidetis. This remains an undeniable fact. In the light of the foregoing remarks, it is clear that the applicability of uti possidetis in the present case cannot be challenged merely because in 1960, the year when Mali and Burkina Faso achieved independence, the Organization of African Unity which was to proclaim this principle did not yet exist, and the above- mentioned resolution calling for respect for the pre-existing frontiers dates only from 1964. Burkina Faso/Mali Frontier Dispute, Merits, 1986 ICJ 564.
Another restriction relates to the fact that colonial self-determination is an ‘act’ which occurs only once, and not a process. Hence, once a colonial territory had exercised the option of independence or integration (the exception being, theoretically, association), the right to self-determination would have expired. It is not available to ethnic entities within the self-determination unit that may feel that they should have had the option of secession from secession. The present dispute involving Comores and Mayotte may serve as an example, as does the following extract from a submission to the United Nations by Sri Lanka:
1. Article 1 of the Covenant sets forth the right to self-determination. 2. Sri Lanka regained her independence from colonial rule in 1948 and became a member of the United Nations in 1955, subscribing to the purposes and principles of the Charter of the United Nations. It is the position of the Government of Sri Lanka that the words "the right to self-determination" appearing in this article apply only to people under alien and foreign domination and these words do not apply to sovereign independent states or to a section of a people or nation. It is well recognized in international law that the principle of self-determination cannot be construed as authorizing any action which would dismember or impair totally or in part the territorial integrity or political unity of sovereign and independent States. This article
31 of the Covenant cannot therefore be interpreted to connote the recognition of the dismemberment and fragmentation on ethnic and religious grounds. Such an interpretation would clearly be contrary, inter alia, to General Assembly Resolution 2526 (XXV) on the Declaration of Principles of International Law and incompatible with the purposes and principles of the Charter. International Covenant on Civil and Political Rights, Third periodic reports of States parties due in 1991, Addendum, Report Submitted by Sri Lanka, 18 July 1994, CCPR/C/70/Add.6, 27 September 1994.
An exception to this rule would relate to a self-determination entity that decides to associate, but not integrate, with another state, instead of opting for independence. Through association, the self-determination status of the entity is retained, or one might say, it is transformed into a case of constitutional self-determination. D. Constitutional self-determination Constitutional self-determination is a fairly new phenomenon. It is only now being fully analyzed by international legal scholars. However, the reality of this right must not be overlooked. The crucial difference between colonial and constitutional self-determination lies in the fact that the former case, the right to secession is based directly in international law. In the latter, the claim to self-determination is derived from a constitutional arrangement and establishes a separate legal personality for component parts of the overall state. International law only takes note of these features of domestic constitutional law, and gives effect to them. It is not constitutive of the claim to self-determination. It is possible to distinguish three different types of constitutional self-determination:
• Express self-determination status
• Granted self-determination status
• Implied self-determination status It will be convenient to introduce each of these in turn. 1. Express self-determination status Some constitutions will confirm that the overall state is composed of entities that retain at least the seeds of original sovereignty. It will confirm a right to self-determination and sometimes expressly to secession appertaining to federal-type units of the state. The broadest example of this kind is the new Ethiopian constitution, which affirms the right to
32 self-determination to all nations and nationalities. The other two principal examples are the former Soviet Union and the Socialist Federal Republic of Yugoslavia. However, in both cases the actualization of that right posed certain problems. It was resisted by the central governments, which argued, in both cases, that secession would only be available if all of the other constituent units consented and if the overall parliament and central government were in favour. The problem in relation to the Baltic republics and the USSR were given an additional dimension, due to the view of many Western states that they have been forcibly and unlawfully incorporated. It was only resolved when the USSR as a whole collapsed in 1991 and all of the constituent republic obtained independence. The crisis in the former Yugoslavia was, of course, even more dramatic. The SFRY constitution of 1974 had provided:
The nations of Yugoslavia, proceeding from the right of every nation to self-determination, including the right to secession, on the basis of their will freely expressed in the common struggle of all nations and nationalities in the National Liberation War and Socialist Revolution, and in conformity with their historic aspirations, aware that further consolidation of their brotherhood and unity is in the common interest, have, together with the nationalities with which they live, united in a federal republic of free and equal nations and nationalities and founded a socialist federal community of working people--the Socialist Federal Republic of Yugoslavia, ... [Constitution of the Socialist Federal Republic of Yugoslavia, Basic Principles, Section I.]
The central authorities also argued in this case that secession could not be obtained unilaterally. When they proceeded to answer the declarations of independence of Slovenia and Croatia of 25/6 June 1991 with the use of force, the international community, led by the EU, took a somewhat ambivalent step. While it failed to recognize the two entities until January 1992, it nevertheless adopted the following view a few weeks after the declarations of independence:
EPC Statement on Yugoslavia, 27 August 1991: The European Community and its member States are dismayed at the increasing violence in Croatia. They remind those responsible for the violence of their determination never to recognize changes of frontiers which have not been brought about by peaceful means and by agreement. ... The Community and its member States call on the Federal Presidency to put an immediate end to this illegal use of the forces on its command.
In short, the EU took the view that both entities were either already states, or entitled to become states and in possession of pre-state rights. These were the right to territorial integrity and unity and the protection from the use of force of the central government. The EU then attempted unsuccessfully to negotiate an orderly secession. When this failed, it declared, through the medium of its Badinter arbitration/advisory commission that the entire Yugoslav federation was in a process of dissolution. Hence, the individual
33 republics that wished independence would obtain it unilaterally, provided they complied with a number of requirements, including the holding of a free and fair referendum. The Badinter commission also addressed the problem of secession from secession. It denied the claim of mainly Serb inhabited areas of Croatia and Bosnia Herzegovina to secede from those two newly emerging states. Instead, the Commission insisted on the application of the uti possidetis doctrine. Minority groups were offered the protection of minority rights and, where they constituted local majorities, autonomy instead of independence. The international community has applied the doctrine of constitutional self-determination very restrictively. It has denied such a claim to Chechnya. According to the 1993 constitution of the Russian Federation, Chechnya had been promoted to the status of a Federal Republic in that newly independent state. Nevertheless, this status was not one derived from original sovereignty of the federal entities. Instead, it was one derived from a limited grant of central authority, which left sovereignty vested in the overall Federation. The Constitution provided:
We, the multi-ethnic people of the Russian Federation, united by our common destiny of our land, seeking to advance human rights and freedoms and promote civil peace and accord, preserving a historically established state unity, guided by universally recognized principles of equality and self-determination of peoples, ... renewing the sovereign statehood of Russia, ... Article 3.1. The multi-ethnic people of the Russian Federation shall be the bearer of its sovereignty and the sole source of authority in the Russian Federation. Article 4.1. The sovereignty of the Russian Federation shall extend to its entire territory. Article 66.5. The status of a member of the Russian Federation may be altered by the mutual consent of the Russian Federation and the member[s?] of the Russian Federation in accordance with a federal constitutional law.
Hence, in stark contrast to the response of the EU to the Yugoslav crisis, the EU confirmed the territorial integrity of the Russian Federation, instead of the claimed rights of Chechnia, for example in the following Declaration of the EU presidency on the behalf of the Union of 18 January 1995:
The European Union is following the continuing fighting in Chechnya with the greatest concern. The promised ceasefires are not having any effect on the ground. Serious violations of human rights and international humanitarian law are continuing. The European Union strongly deplores the large number of victims and the suffering being inflicted on the civilian population. The European Union, which attaches importance to its relations with Russian and is concerned in this regard at the possible consequences of the crisis, would stress that these relations must be based on the principles jointly supported by the United Nations and the OSCE as confirmed in the Partnership Agreement. The European Union supports the declaration by the OSCE Presidency at the Permanent Council meeting on 12 January. It welcomes the fact that Russia has accepted OSCE assistance in the process of finding a solution to the crisis and that Russia is prepared to devote further discussion to ways and means of ensuring practical cooperation with the emissary of the OSCE Presidency on the spot. The Union hopes
34 very much that the Russian authorities will immediately give effect to the measures envisaged in the OSCE President's declaration of 12 January, to which Russia agreed. The European Union would again urge strongly that there should be an immediate cessation of hostilities in order to facilitate the bringing of humanitarian aid to the population and allow negotiations to begin without delay. The European Union takes note in this connection of the proposal made by the Prime Minister of the Russian Federation. It calls for a peaceful settlement to the conflict which respects the territorial integrity of the Russian Federation.
When Russia forcibly reincorportated Chechnia some years later, the international community condemned the excessive brutality of the venture and human rights abuses. However, there was little or no support for the suggestion that Chechnia had a claim to independence, notwithstanding the cease-fire agreement of 1996, to which reference will be made below.
Finally, Kosovo attempted to argue that its status had been that of a Yugoslav republic, or at least that of a quasi republic. However, as Kosovo was also an autonomous territory within the Yugoslav Republic of Serbia, its federal status, acknowledged in the 1974 SFRY constitution, was seemed to be less than that of the republics proper, which had their constitutional claim to self-determination internationally supported. Hence, even after the armed conflict involving NATO and the Federal Republic of Yugoslavia, the United Nations committed itself to the continuing territorial integrity of the FRY.
While these three cases do not augur well for a wide definition of an express constitutional self-determination status, the Yugoslav precedents have had some impact on the attempts to negotiate settlements in a number of other secessionist conflicts. The option of a federal-type solution has proven unacceptable to a number of central governments. They presume that the granting of a federal status to an entity in exchange for a cessation of the conflict will inevitably be the first step to an invocation of constitutional self-determination and to eventual independence.
2. Granted self-determination status Another type of internally generated self-determination status results from an agreement by the central authorities that an entity can exercise this option, even if it is not provided for in the constitution of the overall state. Such a situation obtained in relation to Eritrea, after the change in government in Ethiopia (and before a formal new constitutional was adopted, providing for the right to self-determination to all nations and nationalities in Ethiopia). A formal agreement was established, which granted to Eritrea self- determination status and the right to hold a referendum on independence after the expiry of an interim period. After that referendum confirmed the overwhelming wish of the population to secede, the central authorities implemented this decision.
35 The experience of Chechnya, on the other hand, was less encouraging. In August 1996, Chechnya concluded an agreement with the Russian Federation. That agreement expressly recognized Chechnya’s status as a self-determination entity and foresaw a resolution of the issue according to that principle, and according to international law, by 31 December 2001. However, after alleged Chechen terrorist attacks on Moscow, the Russian Federation unilaterally annulled that agreement and forcibly re-incorporated Chechnya. This example highlights the desirability of seeking to internationalize any agreement granting self-determination status at the point of the termination of a self- determination conflict. There are now a significant number of instruments, generally arrived at with international involvement, that address the self-determination status of an area of conflict. The Northern Ireland agreement confirms that that territory is a self-determination unity, whose status can only be changed on the basis of the wishes of the majority of the wishes of the population. The Bougainville Peace agreement of 30 August 2001 assigns autonomy to Bouganville. However, it also provides for a referendum to be held among Bougainvilleans on the future status of the territory. This referendum is to be held no sooner than ten years and no later than fifteen years after the elections of an autonomous Bougainville government. However, somewhat confusingly, the outcome of the referendum is to be subjected to the approval and final decision-making authority of the national government. The attempt to address the Kosovo conflict through the Rambouillet process also resulted in a formula that is not free of ambiguity. The text, to which Resolution 1244 (1999) of the UN Security Council makes reference, foresees the establishment of an internationalized mechanism that will set up a process for the settlement of the status issue. That process was intended to take account of, inter alia, the ‘will of the people’. The very recent settlement of the southern Philippines, on the other hand, provides merely for a ‘plebiscite’ to confirm autonomy arrangements that are to be implemented in the southern, mainly Muslim parts of that state. There is an express confirmation of the territorial integrity of the Philippines. In some settlements that are at present under negotiation, the increased status of an entity previously seeking secession has been compensated for by a formula that confirms that participation in that arrangements represents the exercise of the right to self- determination. Hence, that right, if it existed before, would have been expended at the time of signing the new arrangement. 3. Implied self-determination status
36 It is also possible to envisage an implied self-determination status. This would be the case where a distinct ‘nation’ or ‘people’ inhabit a clearly constitutionally defined area. Where the central government consents to the holding of a referendum on the issue of secession, or such provision exists according to the constitution, in the absence of an express reference to self-determination, there is an expectation that such a referendum would need to be respected by the central authorities. An example is furnished by the referenda about independence held in Scotland. There does not even exist a written UK constitution. Nevertheless, referenda were arranged with the agreement and cooperation of the central authorities. Had the result been in favour of independence, it is likely that that outcome would have attracted a significant element of international legitimacy. This view was very strongly confirmed by the Canadian Supreme Court in a reference concerning the possible secession of Quebec. Despite that fact that there is no express constitutional self-determination status for Quebec in the Canadian constitution, the Court found that ‘A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize.” (But see below on the consequences of such a decision). E. New Claims Some scholars have argued that there now exist new international legal claims to self- determination. The most credible of these would relate to a situation where a distinctly identifiable population inhabiting a territorially (and perhaps constitutionally) defined area are persistently denied political representation in a state. If negotiations to address this situation have been exhaustively attempted, and if they have been frustrated by the central government, it is proposed that the entity in question should be entitled to secede. However, it has to be admitted that this theory is as yet untested. In the closest case that comes to mind (Kosovo), the international community has at least initially insisted on the continued territorial unity of the overall state. A variant of this view would address instances where an entity has suffered actual genocide or ethnic cleansing, or a deliberate campaign to destroy a population by denying to it that which is necessary for its survival (emergency food aid) on the part of the central authorities. In such instances (say northern Iraq?), some scholars argue that the central government should no longer be entitled to invoke the doctrine of territorial unity in relation to that territory.
37 F. Effective Entities Finally, it is necessary to refer to cases where an entity could not lay claim to any self- determination status, be it colonial or constitutional. Most cases of secession or dissolution have occurred with the consent of the relevant central authorities (UAR, Mali Federation, Malaysia-Singapore, Yemen). There are hardly any examples of unilateral opposed secessions that were successful. Biafra and Katanga were focibly re- incorporated, the latter even with the assistance of the United Nations. Secessionist conflicts in many other parts of the world (Kurds, Basques, Kashmir, Burma, Sri Laka, etc) have gone on for decades, some of them for half a century, without a result in favour of secession having been obtained. The case of Bangladesh appears to be truly exceptional, given the special role played by India in that instance. It might be argued that Somaliland constitutes an effective entity. However, that case is as yet unsettled and its status remains precarious until it is confirmed through an internationalized agreement. The hesitancy with which it has been addressed by the international community confirms the caution that is still being exercised in favour of the maintenance of the doctrine of territorial unity. Nevertheless, should its de-facto status be maintained over time, there is nothing that would legally exclude eventual confirmation of statehood, even if Somalia persistently refuses to settle the matter. The outcome of the Kosovo issue is also still open, although there are signs that the international community might be willing to exercise a greater degree of flexibility than may have been eventually envisaged, given the realities on the ground. G. Application to Sudan Sudan was subjected to a condominium agreement of 19 January and 10 July 1899 between Eqypt and the United Kingdom, following upon the ‘re-conquest’ of the territory. The agreement was confirmed on 26 August 1936. The status of the entity as a genuine colonial self-determination unit was confirmed in the Anglo-Egyptian agreement of 12 February 1953. That agreement provided for a transitional period of full self- government “in order to enable the Sudanese people to exercise self-determination in a free and neutral atmosphere”. While one of the possible results could have been integration with Egypt, the option of independence was of course foreseen. The act of self-determination did not, however, take place as envisaged. Instead of a referendum, a declaration by the Sudan constituent assembly/parliament anticipated this event with a declaration of independence, which was immediately accepted by the United Kingdom. While the fully representative nature of this decision in relation to genuine southern participation has been subjected to some doubt, the authoritative nature of this decision was internationally accepted.
38 It has been asserted that the United Kingdom had maintained separate administrative structures for southern Sudan. Some argue that this policy was overturned only shortly before independence, often mentioning the Juba conference of 1947 in that context. However, while there existed for some time a separate policy regarding the south, including the Closed District Ordinances, this was probably not made manifest in a sufficiently firm and formal territorial and administrative division which could undermine the uti possidetis claim to territorial unity of the Sudan at the time of independence. Hence, according to a more rigid view of the classical international law on the subject, it could not be successfully argued that southern Sudan would have been entitled to a separate legal identity as a self-determination entity at the time of independence. The conditioning of support for independence amongst the members of the assembly/parliament from the south can also not be understood as some sort of legally effective reservation that goes beyond the demand for autonomy (which, in fact, it was at the time). Hence, no analogy to association (as opposed to integration) could be established, even if the southern Sudan had had a separate legal identity at the time. The rapid deterioration of relations between North and South upon independence, and the various constitutional arrangements that followed, would require further study before they can be assessed even in this summary form. However, an initial impression would not support the view that the southern status was much improved. The Addis Ababa Agreement of 1972, and the 1973 constitution appear to have confirmed designs for autonomy within a ‘united Sudan’. The IGADD Initiative Declaration of Principles adopted in Nairobi on 20 July 1994 does refer to the “right of self-determination of the people of south Sudan to determine their future status through a referendum” that is to be affirmed. On the other hand, the text also declares that “maintaining unity of the Sudan must be given priority by all parties”, provided certain principles are affirmed. It then defines self-determination “on the basis of federation, autonomy, etc., to the various peoples of the Sudan”. This latter sentence would seem to indicate that the right to self-determination was supposed to be obtained through measures short of independence according to certain principles. Paragraph 4, on the other hand, provides that in case of absence of an agreement on such a settlement, “the respective people will have the option to determining their future including independence through a referendum.” The author did not have available the Political Charter signed in Khartoum on 10 April 1996. Hence, it is not possible to propose an authoritative interpretation of the Peace Agreement of 21 April 1997, as this latter document also refers to the Political Charter. However, the 1997 Agreement specifically assigns to the people of South Sudan, defined
39 as the people inhabiting the former provinces of Bahr el Gal, Equatoria and the Upper Nile with their boundaries of 1 January 1956, the right to self-determination to be exercised through a referendum. The agreement expressly specifies the options of unity and secessions for the referendum, which is to be held at the end of an interim period of four years. While neither of the above agreements were implemented, and the 1997 Agreement did not obtain consent from all of the Southern Sudanese parties, it is noteworthy that the Sudan government apparently subscribed to them. Of course, it might be argued that their lack of implementation negates their content entirely. However, it is difficult to deny entirely that the government appears to have accepted in principle the possibility that southern Sudan can enjoy a granted constitutional self-determination status, if it has not in fact already done so in a legally binding way. On the other hand, the new Sudan constitution that came into force on 1 July 1998 does not appear to be in accord with this trend. Article 6 prescribes national unity as one of the aims of the state. Article 139 (g) establishes as a fundamental constitutional principle that cannot be easily overturned. In addition to the ordinary process for a constitutional amendment, the following principle can only be amended if approved “by a majority of the people of Sudan in a referendum”: South Sudan is governed by a transitional government that shall strive towards union and co-ordinate the exercise and termination of the right to self-determination.
The reference to the majority of the people of Sudan appears to require a referendum throughout Sudan in order to achieve such a change. At first sight, and without the availability of further information, the exercise “and termination” of the right to self- determination seems to be focused on the aim of strengthening the union, rather than lessening it.
II. The Means of Achieving Self-Determination A. Process The means of achieving self-determination in the sense of secession are determined by the type of self-determination entity. In the case of a colonial entity, the colonial power is positively required to lead the entity towards self-determination. It must on no account repress the entity on its way towards this aim. The act of self-determination normally would take the form of a referendum, although the case of Bahrain and one or two others constitute an exception:
40 The above provisions [of that resolution], in particular paragraph 2, thus confirm and emphasize that the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned. ... Western Sahara, 1975 ICJ 31, 32, 33.
A referendum should be held in an environment that is politically neutral. The option of independence must be provided. All segments of the population have to be entitled and enabled equally to participate in the referendum. However, as the Badinter Commission confirmed in relation to Bosnia and Herzegovina, a minority segment of the population cannot veto a referendum by boycotting it. The referendum will stand, if sufficient efforts were made to enable all minorities to participate. In case of colonial entities, a referendum is in itself decisive. The colonial power must give effect to its results. The Canadian Supreme Court reference has helpfully clarified that a more exhaustive process of negotiation must follow in cases of constitutional self- determination cases, provided the referendum was permissible according to the constitutional order of the overall state in the first place. A referendum result in such cases represents a point of departure for negotiations about independence. Both sides must negotiate in good faith and there is no room for unilateral actions for either of them. In some cases the constitution itself, or legislation, will establish a path towards secession. If one side obviously and persistently frustrates attempts to negotiate or to follow the path for secession laid out in constitutional instruments, then it is possible to proceed unilaterally. Should the central government then use force against the secessionist entity, it can seek international support and ultimately recognition. In cases of effective secession, there is obviously no process of negotiation that has been followed. Instead, unilateral action has created a fact that may or may not be preserved over time. Generally, states will be very reluctant to consider recognition of an effective entity, until such time as the central government signals that it no longer resists independence. While recognition is not seen to be constitutive of statehood, in cases of effective secession it is virtually impossible to determine the point in time when the entity is sufficiently stable to attract the status of statehood until it has attracted a significant number of recognitions. B. The level of entitlement An entity seeking secession is already the beneficiary of international legal rights, at least in cases of colonial secession, before it actualizes the claim to self-determination. Recent practice would also indicate that constitutional self-determination entities enjoy certain entitlements once they have embarked upon a course to independence, provided they
41 have conducted a free and fair referendum and have followed a path of negotiation about its implementation in good faith. Effective entities, on the other hand, enjoy no international legal entitlements until they have stabilized sufficiently to attract widespread recognition. Instead, individuals residing within the entity are merely protected by human rights and the law of (internal) armed conflict.
The following chart summarizes the entitlements of self-determination entities and effective entities.
Inherent self-determination entity (colonial, armed occupation /secondary colonial) • separate legal personality • uti possidetis boundary • territorial integrity • permanent sovereignty over natural resources • right to administer act of self-determination • but, generally, only once territorial unity • right not to be repressed right to struggle • right to have NLM recognized right to receive assistance • imprescriptable status (in theory)
Constitutional self-determination entity • potential separate legal personality • uti possidetis • territorial integrity • relative sovereignty over natuaral resources • right to administer act of self-determination • obligation to respect minority rights ? • right not to be repressed • right to representation?? • right to self-defence • right to assistance??
Effective (Unprivileged) entity • internal status while struggling • no positive ‘right’ to struggle • human rights, law of internal armed conflict • disputed right of international initiative
42 C. The possibility of struggle Before concluding this brief overview, it may be worthwhile adding a few words about national liberation movements and the ‘right to struggle’. In classical colonial self- determination cases, the colonial power must not repress a popular movement seeking self-determination. If it does so, the entity may for a National Liberation Movement. The movement has the right to struggle, including an armed struggle. In that struggle, it may receive international support which would not, in this case, constitute a case of unlawful armed intervention in an internal conflict. However, that right does not include direct military support through troups, air attacks, etc. Instead, it will tend to be limited to supplies and perhaps basing and training facilities. Even such a limited entitlement is, however, disputed by some Western states. Uniquely, genuine national liberation movements have the legal right unilaterally to bring into play the law of international armed conflict, instead of the more limited law of internal armed conflicts (although only in relation to parties to the 1st 1977 Protocol to the four Geneva Conventions). The right to struggle, i.e., to wage an armed campaign for secession is strictly limited to colonial situation. The legal regime outlined above does not apply to groups that style themselves national liberation movements in other contexts. Given the events of 11 September 2001, it is likely that this restrictive view will be pursued by governments around the world with even greater vigor. Finally, even those entities entitled to struggle must do so according to the laws of armed conflict. Hence, practices that are generally described as terrorism (i.e., attacks against non-military objectives, or attacks carried out by individuals that cannot be distinguished from the civilian population) are of course not justified by any cause, however just that cause may be. D. Types of Settlement While these types of settlement have already been noted in passing above, it may be worthwhile to recall that immediate independence is not always the necessary outcome of the exercise of the right to self-determination, or of settlements that foresee the exercise of that right. In recent practice, a number of alternative models have been adopted. At the lowest end, these are autonomies that are adopted instead of a more wide-ranging self-determination entitlement. Federal-type solutions (proposed for Cyprus) or confederal arrangements, or mixtures of the two (e.g., the unique mixture established for Bosnia and Herzegovina adopted at Dayton) are also not unknown.
43 Another recent trend adds elements of complex power-sharing to the settlement. These elements relocate the exercise of sovereignty across numerous different layers of state authority, making it somewhat irrelevant to ask where sovereignty actually lies in relations between the central state and other entities. This is balanced by autonomies or federal structures with elements of consociational state construction. A further type of settlement establishes interim rule for the aspiring self-determination entity, and a cooperative interim arrangement with the central authorities. There will then be added a pledge either to consider self-determination in the sense of secession at a future date, or to establish a mechanism to negotiate about the question, or there may be provided a date or time-frame for the holding of a referendum on self-determination. With the cases of Eritrea, Bougainville and possibly Kosovo, this trend appears to be somewhat increasing, perhaps indicating a slightly more flexible international attitude in accepting the need for secession in exceptional cases even outside of the colonial context. This attitude is gradually being matched by a recognition of central authorities that self- determination and secessionist conflicts will continue unabated, unless and until a settlement has been achieved. Increasingly, the legal personality of the entities seeking self-determination is being recognized and accommodated. This occurs mostly within existing state boundaries, but international law now also provides the tools to arrange for interim governance with a view to the exercise of a genuine act of self-determination, including the possible option of independence.
ANNEX
Declaration on the Granting of Independence to Colonial Territories and Peoples General Assembly Resolution 1514 (XV) 14 December 1960
The General Assembly: Convinced that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory, Solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations; And to this end Declares that: 1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation. 2. All peoples have the right to self determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence. 4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected.
44 5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom. 6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations. 7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity. UN Doc A/4684 (1960), GAOR 15th Session, Supp 16, p. 66
General Assembly Resolution 1541 (XV) 15 December 1960,
... Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for in Article 73 of the Charter of the United Nations Principle VI A Non-Self-Governing Territory can be said to have reached a full measure of self-government by: (a) Emergence as a sovereign independent State; (b) Free association with an independent State; or (c) Integration with an independent State. Principle VII (a) Free association should be the result of a free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes. It should be one which respects the individuality and the cultural characteristics of the territory and its peoples, and retains for the peoples of the territory which is associated with an independent State the freedom to modify the status of that territory through the expression of their will by democratic means and through constitutional processes. (b) The associated territory should have the right to determine its internal constitution without outside interference, in accordance with due constitutional processes and the freely expressed wishes of the people. This does not preclude consultations as appropriate or necessary under the terms of the free association agreed upon. Principle VIII Integration with an independent State should be on the basis of complete equality between the peoples of the erstwhile Non-Self-Governing Territory and those of the independent country with which it is integrated. The peoples of both territories should have equal status and rights of citizenship and equal guarantees of fundamental rights and freedoms without any distinction or discrimination; both should have equal rights and opportunities for representation and effective participation at all levels in the executive, legislative and judicial organs of government. Principle IX Integration should have come about in the following circumstances: (a) The integrating territory should have attained an advanced stage of self- government with free political institutions, so that its people would have the capacity to make a responsible choice through informed and democratic processes; (b) The integration should be the result of the freely expressed wishes of the territory's peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage. The United Nations could, when it deems it necessary, supervise these processes. UN Doc A/4684 (1960), GAOR 15th Session, Supp 16, p. 29
UN General Assembly Declaration 2625 (XXV) on Friendly Relations ..., 1970 The principle of equal rights and self-determination of peoples
45 By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter. The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self- determination by that people. Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self- determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter. The territory of a colony or other non-self-governing territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or non-self governing territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles. Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.
CSCE Final Act, 1 August 1975
Principle IV: The participating States will respect the territorial integrity of each of the participating States. Accordingly, they will refrain from any action inconsistent with the pruposes and principles of the Charter of the United Nations against the territorial integrity, political independence or the unity of any participating State, and in particular from any such action constituting a threat or the use of force. 73 Department of State Bulletin 323 (1975).
European Political Cooperation, Press release, P. 128/91
Declaration on the "Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union"
(Extraordinary EPC Ministerial Meeting, Brussels, 16 December 1991)
In compliance with the European Council's request, Ministers have assessed developments in Eastern Europe and in the Soviet Union with a view to elaborating an approach regarding relations with new States. In this connection they have adopted the following guidelines on the formal recognition of new states in Eastern Europe and in the Soviet Union: "The Community and its member States confirm their attachment to the principles of the Helsinki Final Act and the Charter of Paris, in particular the principle of self- determination. They affirm their readiness to recognise, subject to the normal standards of international practice and the political realities in each case, those new States which, following the historic changes in the region, have constituted themselves on a democratic
46 basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations. Therefore, they adopt a common position on the process of recognition of these new States, which requires: - respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights; - guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE; - respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement; - acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and regional stability; - commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning State succession and regional disputes. The Community and its member States will not recognise entities which are the result of aggression. They would take account of the effects of recognition on neighbouring States. The commitment to these principles opens the way to recognition by the Community and its member States and to the establishment of diplomatic relations. It could be laid down in agreements."
European Political Cooperation, Press release, P. 129/91
Declaration on Yugoslavia (Extraordinary EPC Ministerial Meeting, Brussels, 16 December 1991)
The European Community and its member States discussed the situation in Yugoslavia in the light of their guidelines on the recognition of new states in Eastern Europe and in the Soviet Union. They adopted a common position with regard to the recognition of Yugoslav Republics. In this connection they concluded the following: The Community and its member States agree to recognise the independence of all the Yugoslav Republics fulfilling all the conditions set out below. The implementation of this decision will take place on January 15, 1992. They are therefore inviting all Yugoslav Republics to state by 23 December whether: - they wish to be recognised as independent States; - they accept the commitments contained in the above-mentioned guidelines; - they accept the provisions laid down in the draft Convention - especially those in Chapter II on human rights and rights of national or ethnic groups - under consideration by the Conference on Yugoslavia; - they continue to support - the efforts of the Secretary General and the Security Council of the United Nations, and - the continuation of the Conference on Yugoslavia. The applications of those Republics which reply positively will be submitted through the Chair of the Conference to the Arbitration Commission for advice before the implementation date. In the meantime, the Community and its member States request the UN Secretary General and the UN Security Council to continue their efforts to establish an effective cease-fire and promote a peaceful and negotiated outcome to the conflict. They continue to attach the greatest importance to the early deployment of a UN peace-keeping force referred to in UN Security Council Resolution 724. The Community and its member States also require a Yugoslav Republic to commit itself, prior to recognition, to adopt constitutional and political guarantees ensuring that it has no territorial claims towards a neighbouring Community State and that it will conduct no hostile propaganda activities versus a neighbouring Community State, including the use of a denomination which implies territorial claims.
47
Security Council resolution on the Federal Republic of Yugoslavia (Serbia and Montenegro)
The Security Council, Reaffirming its resolution 713 (1991) of 25 September 1991 and all subsequent relevant resolutions, Considering that the State formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist, Recalling in particular resolution 757 (1992) which notes that 'the claim by the Federal Republic of Yugoslavia (Serbia and Montenegro) to continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations has not been generally accepted', 1. Considers that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations; and therefore recommends to the General Assembly that it decide that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly; 2. Decides to consider the matter again before the end of the main part of the forty-seventh session of the General Assembly.
Opinions of the [EC] Badinter Arbitration Commission on the former Yugoslavia
Note: The Badinter Commission was created to advise the EU (later EU/UN) peace conference on Yugoslavia. It is composed of eminent jurists and can render opinions at the request of the parties to the peace conference. Its opinions, while influential, are not legally binding. A good appraisal of the Badiner Opinion’s work is furnished in the 1986 British Yearbook of International Law.
Opinion No. 1
The President of the Arbitration Committee received the following letter from Lord Carrington, President of the Conference on Yugoslavia, on 20 November 1991:
We find ourselves with a major legal question. Serbia considers that those Republics which have declared or would declare themselves independent or sovereign have seceded or would secede from the SFRY which would otherwise continue to exist. Other Republics on the contrary consider that there is no question of secession, but the question is one of a disintegration or breaking-up of the SFRY as the result of the concurring will of a number of Republics. They consider that the six Republics are to be considered equal successors to the SFRY, without any of them or group of them being able to claim to be the continuation thereof. I should like the Arbitration Committee to consider the matter in order to formulate any opinion or recommendation which it might deem useful. The Arbitration Committee has been apprised of the memoranda and documents communicated respectively by the Republics of Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Slovenia, Serbia, and by the President of the collegiate Presidency of the SFRY. 1) The Committee considers: a) that the answer to the question should be based on the principles of public international law which serve to define the conditions on which an entity constitutes a
48 state; that in this respect, the existence or disappearance of the state is a question of fact; that the effects of recognition by other states are purely declaratory; b) that the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a state is characterized by sovereignty; c) that, for the purpose of applying these criteria, the form of internal political organization and the constitutional provisions are mere facts, although it is necessary to take them into consideration in order to determine the Government's way over the population and the territory; d) that in the case of a federal-type state, which embraces communities that possess a degree of autonomy and, moreover, participate in the exercise of political power within the framework of institutions common to the Federation, the existence of the state implies that the federal organs represent the components of the Federation and wield effective power; e) that, in compliance with the accepted definition in international law, the expression 'state succession' means the replacement of one state by another in the responsibility for the international relations of territory. This occurs whenever there is a change in the territory of the state. The phenomenon of state succession is governed by the principles of international law, from which the Vienna Conventions of 23 August 1978 and 8 April 1983 have drawn inspiration. In compliance with these principles, the outcome of succession should be equitable, the states concerned being free of terms of settlement and conditions by agreement. Moreover, the peremptory norms of general international law and, in particular, respect for the fundamental rights of the individual and the rights of peoples and minorities, are binding on all the parties to the succession. 2) The Arbitration Committee notes that: a) - although the SFRY has until now retained its international personality, notably inside international organizations, the Republics have expressed their desire for independence; - in Slovenia, by a referendum in December 1990, followed by a declaration of independence on 25 June 1991, which was suspended for three months and confirmed on 8 October 1991; - in Croatia, by a referendum held in May 1991, followed by a declaration of independence on 25 June 1991, which was suspended for three months and confirmed on 8 October 1991; - in Macedonia, by a referendum held in September 1991 in favour of a sovereign and independent Macedonia within an association of Yugoslav states; - in Bosnia and Herzegovina, by a sovereignty resolution adopted by Parliament on 14 October 1991, whose validity has been contested by the Serbian community of the Republic of Bosnia and Herzegovina. b) - The composition and workings of the essential organs of the Federation, be they the Federal Presidency, the Federal Council, the Council of the Republics and the Provinces, the Federal Executive Council, the Constitutional Court or the Federal Army, no longer meet the criteria of participation and representatives inherent in a federal state; c) - The recourse to force has led to armed conflict between the different elements of the Federation which has caused the death of thousands of people and wrought considerable destruction within a few months. The authorities of the Federation and the Republics have shown themselves to be powerless to enforce respect for the succeeding ceasefire agreements concluded under the auspices of the European Communities or the United Nations Organization. 3) Consequently, the Arbitration Committee is of the opinion: - that the Socialist Federal Republic of Yugoslavia is in the process of dissolution; - that it is incumbent upon the Republics to settle such problems of state succession as may arise from this process in keeping with the principles and rules of international law, with particular regard for human rights and the rights of peoples and minorities;
49 - that it is up to those Republics that so wish, to work together to form a new association endowed with the democratic institutions of their choice.
Opinion No. 2
On 20 November 1991 the Chairman of the Arbitration Committee received a letter from Lord Carrington, Chairman of the Conference on Yugoslavia, requesting the Committee's opinion on the following question put by the Republic of Serbia: Does the Serbian population in Croatia and Bosnia-Herzegovina, as one of the constituent peoples of Yugoslavia, have the right to self-determination? The Committee took note of the aide-mémoires, observations and other materials submitted by the Republics of Bosnia-Herzegovina, Croatia, Macedonia, Montenegro, Slovenia and Serbia, by the Presidency of the Socialist Federal Republic of Yugoslavia (SFRY) and by the 'Assembly of the Serbian People of Bosnia-Herzegovina'. 1. The Committee considers that, whatever the circumstances, the right to self- determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris) except where the states concerned agree otherwise. 2. Where there are one or more groups within a state constituting one or more ethnic, religious or language communities, they have the right to recognition of their identity under international law. As the Committee emphasized in its Opinion No. 1 of 29 November 1991, published on 7 December, the - now peremptory - norms of international law require states to ensure respect for the rights of minorities. This requirement applies to all the Republics vis-à-vis the minorities on their territory. The Serbian population in Bosnia-Herzegovina and Croatia must therefore be afforded every right accorded to minorities under international convention as well as national and international guarantees consistent with the principles of international law and the provisions of Chapter II of the draft Convention of 4 November 1991, which has been accepted by these Republics. 3. Article 1 of the two 1986 International Covenants on human rights establishes that the principle of the right to self-determination serves to safeguard human rights. By virtue of that right every individual may choose to belong to whatever ethnic, religious or language community he or she wishes. In the Committee's view one possible consequence of this principle might be for the members of the Serbian population in Bosnia-Herzegovina and Croatia to be recognized under agreements between the Republics as having the nationality of their choice, with all the rights and obligations which that entails with respect to the states concerned. 4. The Arbitration Committee is therefore of the opinion: (i) that the Serbian population in Bosnia-Herzegovina and Croatia is entitled to all the rights concerned to minorities and ethnic groups under international law and under the provisions of the draft Convention of the Conference on Yugoslavia of 4 November 1991, to which the Republics of Bosnia-Herzegovina and Croatia have undertaken to give effect; and (ii) that the Republics must afford the members of those minorities and ethnic groups all the human rights and fundamental freedoms recognized in international law, including, where appropriate, the right to choose their nationality.
Opinion No. 3
On 20 November 1991 the Chairman of the Arbitration Committee received a letter from Lord Carrington, Chairman of the Conference on Yugoslavia, requesting the Committee's opinion on the following question put by the Republic of Serbia: Can the internal boundaries between Croatia and Serbia and between Bosnia- Herzegovina and Serbia be regarded as frontiers in terms of public international law? The Committee took note of the aide-mémoires, observations and other materials submitted by the Republics of Bosnia-Herzegovina, Croatia, Macedonia, Montenegro,
50 Slovenia and Serbia, by the Presidency of the Socialist Federal Republic of Yugoslavia (SFRY) and by the 'Assembly of the Serbian People of Bosnia-Herzegovina'. 1. In its Opinion No. 1 of 29 November, published on 7 December, the Committee found that 'the Socialist Federal Republic of Yugoslavia is in the process of breaking up'. Bearing in mind that the Republics of Croatia and Bosnia-Herzegovina, inter alia, have sought international recognition as independent states, the Committee is mindful of the fact that its answer to the question before it will necessarily be given in the context of a fluid and changing situation and must therefore be founded on the principles and rules of public international law. 2. The Committee therefore takes the view that once the process in the SFRY leads to the creation of one or more independent states, the issue of frontiers, in particular those of the Republics referred to in the question before it, must be resolved in accordance with the following principles: First - All external frontiers must be respected in line with the principles stated in the United Nations Charter, in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (General Assembly Resolution 2625 (XXV)) and in the Helsinki Final Act, a principle which also underlies Article 11 of the Vienna Convention of 23 August 1978 on the Succession of States in Respect of Treaties. Second - The boundaries between Croatia and Serbia, between Bosnia-Herzegovina and Serbia, and possibly other adjacent independent states may not be altered except by agreement freely arrived at. Third - Except where otherwise agreed, the former boundaries become frontiers protected by international law. This conclusion follows from the principle of respect for the territorial status quo and, in particular, from the principle of uti possidetis. Uti possidetis, though initially applied in settling decolonisation issues in America and Africa, is today recognized as a general principle, as stated by the International Court of Justice in its Judgment of 22 December 1986 in the case between Burkina Faso and Haiti (Frontier Dispute , (1986) Law Reports 554 at 565): Nevertheless the principle is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new states being endangered by fratricidal struggles ... The principle applies all the more readily to the Republic since the second and fourth paragraphs of Article 5 of the Constitution of the SFRY stipulated that the Republics' territories and boundaries could not be altered without their consent. Fourth - According to a well-established principle of international law the alteration of existing frontiers or boundaries by force is not capable of producing any legal effect. This principle is to be found, for instance, in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (General Assembly resolution 2625 (XXV)) and in the Helsinki Final Act; it was cited by the Hague Conference on 7 September 1991 and is enshrined in the draft Convention of 4 November 1991 drawn up by the Conference on Yugoslavia.
RESOLUTION 1244 (1999) Adopted by the Security Council at its 4011th meeting, on 10 June 1999
The Security Council, Bearing in mind the purposes and principles of the Charter of the United Nations, and the primary responsibility of the Security Council for the maintenance of international peace and security, Recalling its resolutions 1160 (1998) of 31 March 1998, 1199 (1998) of 23 September 1998, 1203 (1998) of 24 October 1998 and 1239 (1999) of 14 May 1999,
51 Regretting that there has not been full compliance with the requirements of these resolutions, Determined to resolve the grave humanitarian situation in Kosovo, Federal Republic of Yugoslavia, and to provide for the safe and free return of all refugees and displaced persons to their homes, Condemning all acts of violence against the Kosovo population as well as all terrorist acts by any party, Recalling the statement made by the Secretary-General on 9 April 1999, expressing concern at the humanitarian tragedy taking place in Kosovo, Reaffirming the right of all refugees and displaced persons to return to their homes in safety, Recalling the jurisdiction and the mandate of the International Tribunal for the Former Yugoslavia, Welcoming the general principles on a political solution to the Kosovo crisis adopted on 6 May 1999 (S/1999/516, annex 1 to this resolution) and welcoming also the acceptance by the Federal Republic of Yugoslavia of the principles set forth in points 1 to 9 of the paper presented in Belgrade on 2 June 1999 (S/1999/649, annex 2 to this resolution), and the Federal Republic of Yugoslavia's agreement to that paper, Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act and annex 2, Reaffirming the call in previous resolutions for substantial autonomy and meaningful self-administration for Kosovo, Determining that the situation in the region continues to constitute a threat to international peace and security, Determined to ensure the safety and security of international personnel and the implementation by all concerned of their responsibilities under the present resolution, and acting for these purposes under Chapter VII of the Charter of the United Nations, 1. Decides that a political solution to the Kosovo crisis shall be based on the general principles in annex 1 and as further elaborated in the principles and other required elements in annex 2; 2. Welcomes the acceptance by the Federal Republic of Yugoslavia of the principles and other required elements referred to in paragraph 1 above, and demands the full cooperation of the Federal Republic of Yugoslavia in their rapid implementation; 3. Demands in particular that the Federal Republic of Yugoslavia put an immediate and verifiable end to violence and repression in Kosovo, and begin and complete verifiable phased withdrawal from Kosovo of all military, police and paramilitary forces according to a rapid timetable, with which the deployment of the international security presence in Kosovo will be synchronized; 4. Confirms that after the withdrawal an agreed number of Yugoslav and Serb military and police personnel will be permitted to return to Kosovo to perform the functions in accordance with annex 2; 5. Decides on the deployment in Kosovo, under United Nations auspices, of international civil and security presences, with appropriate equipment and personnel as required, and welcomes the agreement of the Federal Republic of Yugoslavia to such presences;
52 6. Requests the Secretary-General to appoint, in consultation with the Security Council, a Special Representative to control the implementation of the international civil presence, and further requests the Secretary-General to instruct his Special Representative to coordinate closely with the international security presence to ensure that both presences operate towards the same goals and in a mutually supportive manner; 7. Authorizes Member States and relevant international organizations to establish the international security presence in Kosovo as set out in point 4 of annex 2 with all necessary means to fulfil its responsibilities under paragraph 9 below; 8. Affirms the need for the rapid early deployment of effective international civil and security presences to Kosovo, and demands that the parties cooperate fully in their deployment; 9. Decides that the responsibilities of the international security presence to be deployed and acting in Kosovo will include: (a) Deterring renewed hostilities, maintaining and where necessary enforcing a ceasefire, and ensuring the withdrawal and preventing the return into Kosovo of Federal and Republic military, police and paramilitary forces, except as provided in point 6 of annex 2; (b) Demilitarizing the Kosovo Liberation Army (KLA) and other armed Kosovo Albanian groups as required in paragraph 15 below; (c) Establishing a secure environment in which refugees and displaced persons can return home in safety, the international civil presence can operate, a transitional administration can be established, and humanitarian aid can be delivered; (d) Ensuring public safety and order until the international civil presence can take responsibility for this task; (e) Supervising demining until the international civil presence can, as appropriate, take over responsibility for this task; (f) Supporting, as appropriate, and coordinating closely with the work of the international civil presence; (g) Conducting border monitoring duties as required; (h) Ensuring the protection and freedom of movement of itself, the international civil presence, and other international organizations; 10. Authorizes the Secretary-General, with the assistance of relevant international organizations, to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo; 11. Decides that the main responsibilities of the international civil presence will include: (a) Promoting the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo, taking full account of annex 2 and of the Rambouillet accords (S/1999/648); (b) Performing basic civilian administrative functions where and as long as required; (c) Organizing and overseeing the development of provisional institutions for democratic and autonomous self-government pending a political settlement, including the holding of elections;
53 (d) Transferring, as these institutions are established, its administrative responsibilities while overseeing and supporting the consolidation of Kosovo's local provisional institutions and other peace-building activities; (e) Facilitating a political process designed to determine Kosovo's future status, taking into account the Rambouillet accords (S/1999/648); (f) In a final stage, overseeing the transfer of authority from Kosovo's provisional institutions to institutions established under a political settlement; (g) Supporting the reconstruction of key infrastructure and other economic reconstruction; (h) Supporting, in coordination with international humanitarian organizations, humanitarian and disaster relief aid; (i) Maintaining civil law and order, including establishing local police forces and meanwhile through the deployment of international police personnel to serve in Kosovo; (j) Protecting and promoting human rights; (k) Assuring the safe and unimpeded return of all refugees and displaced persons to their homes in Kosovo; 12. Emphasizes the need for coordinated humanitarian relief operations, and for the Federal Republic of Yugoslavia to allow unimpeded access to Kosovo by humanitarian aid organizations and to cooperate with such organizations so as to ensure the fast and effective delivery of international aid; 13. Encourages all Member States and international organizations to contribute to economic and social reconstruction as well as to the safe return of refugees and displaced persons, and emphasizes in this context the importance of convening an international donors' conference, particularly for the purposes set out in paragraph 11 (g) above, at the earliest possible date; 14. Demands full cooperation by all concerned, including the international security presence, with the International Tribunal for the Former Yugoslavia; 15. Demands that the KLA and other armed Kosovo Albanian groups end immediately all offensive actions and comply with the requirements for demilitarization as laid down by the head of the international security presence in consultation with the Special Representative of the Secretary-General; 16. Decides that the prohibitions imposed by paragraph 8 of resolution 1160 (1998) shall not apply to arms and related matériel for the use of the international civil and security presences; 17. Welcomes the work in hand in the European Union and other international organizations to develop a comprehensive approach to the economic development and stabilization of the region affected by the Kosovo crisis, including the implementation of a Stability Pact for South Eastern Europe with broad international participation in order to further the promotion of democracy, economic prosperity, stability and regional cooperation; 18. Demands that all States in the region cooperate fully in the implementation of all aspects of this resolution; 19. Decides that the international civil and security presences are established for an initial period of 12 months, to continue thereafter unless the Security Council decides otherwise;
54 20. Requests the Secretary-General to report to the Council at regular intervals on the implementation of this resolution, including reports from the leaderships of the international civil and security presences, the first reports to be submitted within 30 days of the adoption of this resolution; 21. Decides to remain actively seized of the matter.
Annex 1 Statement by the Chairman on the conclusion of the meeting of the G-8 Foreign Ministers held at the Petersberg Centre on 6 May 1999 The G-8 Foreign Ministers adopted the following general principles on the political solution to the Kosovo crisis: - Immediate and verifiable end of violence and repression in Kosovo; - Withdrawal from Kosovo of military, police and paramilitary forces; - Deployment in Kosovo of effective international civil and security presences, endorsed and adopted by the United Nations, capable of guaranteeing the achievement of the common objectives; - Establishment of an interim administration for Kosovo to be decided by the Security Council of the United Nations to ensure conditions for a peaceful and normal life for all inhabitants in Kosovo; - The safe and free return of all refugees and displaced persons and unimpeded access to Kosovo by humanitarian aid organizations; - A political process towards the establishment of an interim political framework agreement providing for a substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other countries of the region, and the demilitarization of the KLA; - Comprehensive approach to the economic development and stabilization of the crisis region.
Annex 2 Agreement should be reached on the following principles to move towards a resolution of the Kosovo crisis: 1. An immediate and verifiable end of violence and repression in Kosovo. 2. Verifiable withdrawal from Kosovo of all military, police and paramilitary forces according to a rapid timetable. 3. Deployment in Kosovo under United Nations auspices of effective international civil and security presences, acting as may be decided under Chapter VII of the Charter, capable of guaranteeing the achievement of common objectives. 4. The international security presence with substantial North Atlantic Treaty Organization participation must be deployed under unified command and control and authorized to establish a safe environment for all people in Kosovo and to facilitate the safe return to their homes of all displaced persons and refugees. 5. Establishment of an interim administration for Kosovo as a part of the international civil presence under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, to be decided by the Security Council of the United Nations. The interim administration to provide transitional administration while
55 establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants in Kosovo. 6. After withdrawal, an agreed number of Yugoslav and Serbian personnel will be permitted to return to perform the following functions: - Liaison with the international civil mission and the international security presence; - Marking/clearing minefields; - Maintaining a presence at Serb patrimonial sites; - Maintaining a presence at key border crossings. 7. Safe and free return of all refugees and displaced persons under the supervision of the Office of the United Nations High Commissioner for Refugees and unimpeded access to Kosovo by humanitarian aid organizations. 8. A political process towards the establishment of an interim political framework agreement providing for substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other countries of the region, and the demilitarization of UCK. Negotiations between the parties for a settlement should not delay or disrupt the establishment of democratic self-governing institutions. 9. A comprehensive approach to the economic development and stabilization of the crisis region. This will include the implementation of a stability pact for South-Eastern Europe with broad international participation in order to further promotion of democracy, economic prosperity, stability and regional cooperation. 10. Suspension of military activity will require acceptance of the principles set forth above in addition to agreement to other, previously identified, required elements, which are specified in the footnote below.1 A military-technical agreement will then be rapidly concluded that would, among other things, specify additional modalities, including the roles and functions of Yugoslav/Serb personnel in Kosovo: Withdrawal - Procedures for withdrawals, including the phased, detailed schedule and delineation of a buffer area in Serbia beyond which forces will be withdrawn; Returning personnel - Equipment associated with returning personnel; - Terms of reference for their functional responsibilities; - Timetable for their return; - Delineation of their geographical areas of operation; - Rules governing their relationship to the international security presence and the international civil mission.
Notes 1 Other required elements: - A rapid and precise timetable for withdrawals, meaning, e.g., seven days to complete withdrawal and air defence weapons withdrawn outside a 25 kilometre mutual safety zone within 48 hours; - Return of personnel for the four functions specified above will be under the supervision of the international security presence and will be limited to a small agreed number (hundreds, not thousands);
56 - Suspension of military activity will occur after the beginning of verifiable withdrawals; - The discussion and achievement of a military-technical agreement shall not extend the previously determined time for completion of withdrawals.
CHECHNYA The Russian - Chechen Truce Agreements, 25 August 1996.
Lebed, A. Maskhadov, S. Kharlamov, S-Kh. Abumuslimov: We, the undersigned, taking into account the progress achieved towards the ending of the warfare, endeavoring to create mutually acceptable basis for political solution of the armed conflict, recognizing that it is prohibited to use armed forces or to threaten the use of force as a means towards the resolution of issues under dispute, embarking upon the universally recognized right of nations to self-determination, upon the principles of equality, freedom of choice, free expression of will, strengthening of international accord and security of all nations, exercising the will towards the defence of human and civil rights regardless of his or her nationality, religious affiliation, place of residence and other differences, towards the ending of acts of violence in the relations of political adversaries, while at the same time embarking upon the Universal Declaration of Human Rights of 1949 and upon the International Pact on Civil and Political Rights of 1966, have jointly worked out the Rules for Clarifying the Basis for Mutual Relations between the Russian Federation and the Chechen Republic according to which the further peace process shall be developed:
The Rules for Clarifying the Basis for Mutual Relations between the Russian Federation and the Chechen Republic
1. The treaty regulating the basis for mutual relations between the Russian Federation and the Chechen Republic, to be governed by the universally accepted principles and norms of the international law, shall have been reached prior to 31 December, 2001. 2. No later than on 1 October, 1996, a Joint Commission shall have been formed, constituted by the representatives of the state authorities of the Russian Federation and of the Chechen Republic, the duties of which shall be as follows: -- to assume control over the implementation of the Decree of the President of the Russian Federation issued on 25 June, 1996, under No. 985, and to prepare proposals concerning the completion of the withdrawal of the armed forces; -- to initiate joint undertakings directed towards the combat of crime, terrorism and nationalistic and religious prejudices, and to control their implementation; -- to prepare proposals for the reconstruction of currency, fiscal and budgetary mutual relations; -- to prepare for the enactment by the Government of the Russian Federation of the programmes for the rebuilding of the socio-economic infrastructure of the Chechen Republic; -- to control over the agreed forms of cooperation of the state authorities and other relevant organizations concerning the supply and distribution of food and medical aid among the population.
57 3. The legal system of the Chechen Republic is based upon the respect for human and civil rights, upon the right of nations towards the self-determination, upon the principles of equal rights of nations, of the priority for civil accord, international peace and security for citizens residing on the territory of the Chechen Republic regardless of their nationality, religious identity and other differences. 4. The Joint Commission shall end its work upon mutual agreement of the parties. Signed by: A. Lebed, A. Maskhadov, S. Kharlamov, S-Kh. Abumuslimov; Date of signing: 25.08.1996 Place of signing: Khasavyurt, Republic of Dagestan. In the presence of the Head of the Special Task Group of the OSCE for Chechnya, Mr. T. Guildemann. [Note: A slighly more reliable translation of the agreement can be found, along with previous agreements, in 17 Human Rights Law Journal (1996) 241.]
58 b. Summary of discussion
1. There is a consensus between the Sudanese parties that self-determination is an issue that can be implemented. All Sudanese political forces, including the Government of the Sudan (GOS) have endorsed it. The National Democratic Alliance has also endorsed it within the Asmara Declaration of 1995. Until now the South has insisted that self-determination or may mean separation. There ought also to be the possibility of self-determination without separation. What is currently required is a process by which self-determination could be achieved.
2. The Ethio-Eritrea settlement is unique because it was the core of the Eritrean army that overthrew President Mengistu in 1991. At that time the Tigrean People’s Liberation Front (TPLF) was the weak party and had to acquiesce to the demands of the Eritrean People’s Liberation Front (EPLF) during the conference of Nationalities in 1991. In this case the TPLF and EPLF opted to have an agreed settlement. When we apply the Eritrean case to the Sudan we must look at two areas: How do we see the Sudan entity prior to the condominium? How do we look at Southern Sudan?
3. In Bosnia-Herzegovina there were two entities which thought they were independent states: Serbska and Croatska. Both had a defined territory, government and population. But both were entities that were brought into being through genocide and/or ethnic cleansing. They are therefore non-states. There was great reluctance to accept the falling apart of Bosnia-Herzegovina.
4. According to the current international law ‘Self-determination is invariably practised only once’. The definition of entity may be one of the injustices of international law. Before occupation the essence of the rule of self-determination is to disregard the injustices of colonial divisions. The entity of colonial states must therefore be taken as the starting point. In 1964 the OAU decided not to dissolve colonial boundaries because of the fear of collapse and war. Colonialism defined the territories and the people living in them – these are now the self-determination entities. It is not necessarily just - often the boundaries were accidental. The view was expressed by some that in the case of the Sudan, the country just falls short of being a self- determination entity within colonial sense.
5. The right of self-determination has developed since 1960s. Since then a number important declarations have been issued in the 1970s and 1980s. These were directed at the remaining colonies of the colonial powers: Spain, Portugal and South Africa. International law is the most dynamic area of law. It is shaped by government practices and by changes in rules and institutions. However, when one looks at the issue of territorial stability, states have been very conservative. That is why the international community has forced states to provide a greater accommodation of diversity within their respective frontiers. The international community is increasingly willing to put pressure on governments to settle internal disputes even though these might not threaten international security. The state that is currently
59 advocated by many institutions is one which balances the need of the state with the needs of the people.
6. The definition of ‘international community’ depends on the circumstances. It encompasses organisations such as United Nations and Organisation of Africa Unity. It includes the voice of state as well as non-state actors such as civil society organisations. The voice of non-state actors can take different forms and they tend to moderate the conduct of state actors.
7. One must also examine the definition of colonialism. Many southern Sudanese argue that they have been ruled by a colonial power which has not only divided the country into two but has also not respected their wishes. This points to the existence of internal colonialism.
8. Self-determination is a problem which should not only be examined from a legal point of view but also from political, social and human rights perspectives. The international community provides alternative means for resolving sticking points which the different Sudanese constituencies should seize.
60 3. The Politics of Self-determination in the Sudan: between strategic acceptance and tactical avoidance
a. Paper presented by Peter Nyot Kok
“The South has no intention to secede from the North. If it intends to do so, nothing in this world will prevent her from doing so through the exercise of the right of self determination which nature and reason has conferred on every people. But the South will secede from the Sudan through its social, economic, political and cultural subjugation by the North. Saturlino Lohore , Constituent Assembly, 1958
Asmara Declaration of June 1995.
“The National Democratic Alliance (NDA) hereby 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”.
Executive Summary
This paper asserts that the right of self determination (hereinafter written as RSD) in one form or the other has been accepted by all the political and military formations of the Sudan. Although important details such as the length of the pre-referendum interim period, referendum law, and military and security arrangements during the interim period still have to be worked out, there is enough consensus among the political forces on the RDS and other administrative and constitutional matters for third party mediators to test the seriousness of the Sudanese for a just peace.
1. The Government of Sudan (GOS) had recognized the RSD for the South through a referendum in its 1998 Constitution and in the 1997 Khartoum with six Southern Sudanese political and military groups. Yet it has failed to implement those constitutional provisions and the Khartoum Peace Agreement. To be sure, the repressive policies of the present regime coupled with its so-called civilisational project and jihad have contributed directly to the revival of the RSD as the leading political demand of the Southern Sudanese.
61
The opposition NDA, which underwrote the Asmara Agreement of 1995 committing itself both to the RSD for the Southerners and for other Sudanese groups, has also been seen to be tactically moving away from that agreement.
Efforts at peace making should stress to all parties that no just and lasting peace is possible in Sudan where agreements are neither kept nor implemented. And if the purpose of wriggling out from all the existing RSD agreements is to protect the unity of the Sudan from the perceived consequences of the exercise of RSD, then a cardinal error is being made. The Sudan is not now united. It is more disunited geo-politically than at any time since the independence. Its inhabitants are less united every day the war continues. Paradoxically, as things now stand, a free and an internationally supervised referendum is perhaps the only viable option which offers a chance to recover the unity of, and the establishment of peace with justice in, the Sudan.
The paper suggests what various parties can do to ensure the implementation of the demonstrable political consensus on the RSD. Techniques of strategic admission and tactical avoidance can buy time as they do in pleadings, but do not and cannot solve deep-seated problems of structural injustices and fundamental disequilibrium in state formation in Sudan. It is ironic that the only major issue the political forces now agree on is the RSD which most of them prefer to defer indefinitely. It is a major operation, but the only operation that offers any chance of saving life.
The RSD is not only a human and people’s right. It is also a facility for conflict resolution. It carries the legitimizing effect of being the people’s choice. It is what the people concerned want. In the case of the Sudan, where major political decisions have been made and unmade by deceiving the Southerners (and others as well), or by simply not consulting them, or by consulting them in a token mode, the exercise of RSD is an overdue measure of corrective justice.
This paper will not deal in depth with juristic and political theory aspects of self- determination. Such aspects were of central relevance at a certain point in the past in the Sudanese debate. That the right of self-determination is relevant and invocable in a colonial or decolonialisation context is not a theme among the Sudanese political forces. That there is no ‘self’ to exercise this right either in the South or elsewhere is rarely invoked except in facetious or provocative rhetoric. That the Sudanese (as a whole) have already exercised the RSD in the National Assembly in December 1959 and hence do not
62 or should not exercise it against is an argument still heard from certain quarters. It happens also to be a very weak argument by all accounts.
The exercise of the RSD by the South will result in the separation of the South and hence ‘must not be allowed”. This argument is still loudly echoed outside negotiation circles. Paradoxically it has never been formally presented or defended by any Sudanese political force in any formal negotiations with the South since 1991.
2. Entry
This paper proceeds from the realization that the RSD for the people of the Southern Sudan has been accepted by all the political forces in the Sudan. At least, all the political forces in the country have signed bilateral or multilateral agreements of one sort or the other recognizing the RSD at least of the people of the South.
Differences exist over the inclusion of people outside the Southern Sudan in the exercise of this right, or the choices open to non-Southerners in a self-determination consultation. Importantly, once that basic human and people’s right is conceded to the people of the South, there is no convincing reason to deny it to the other groups in the Sudan.
Yet, despite this apparent unanimity on the RSD for the South, there is an obvious reluctance on the part of the Government of Sudan (GOS) to conclude a formal covenant on such a point and to implement it as per that covenant. This absence of implementable minimum consensus raises doubts about the sincerity of the parties’ acceptance of the RSD. One is reminded of the techniques in pleadings of “admission of avoidance”.
3. RSD Matrix
The following table shows the commitment by various political forces to the RSD with differences in scope and geo-demographic scope of this right.
Date Name of the Self- Parties or Direct Remarks determination Signatories Beneficiaries Agreement Feb 28 Frankfurt SPLM/A Nasir Southern The RSD was not 1992 Agreement faction and GOS Dr Sudanese explicitly used but Lam and Dr Ali the wording clearly Alhag as signatories shows that it was meant.
63 Oct Washington SPLM/A and the People of South Witness was 1993 Declaration SPLM/A United as Sudan within its Congressman Harry represented by Drs borders as of Johnson, then head John Garang and 1.1.1956 of the Congressional Riek Macar sub-committee for respectively Africa. Implicit support by some congressmen of self- determination for the South. May 20 Declaration of SPLM/A; SPLM/A Southern Sudan Prepared by four 1994 Principles (DOPs) United and GOS and others (P.4) members of the P.2 and P.4 IGAD committee on peace in Sudan. Dec Chukudum SPLM/A and Umma Southern The Umma Party 1994 Agreement (self- Party Sudanese rejected the inclusion determination for of the people of the the people of the Nuba mountains and South and those of the Ingessina Hills in Abyei in case they a self-determination happen to decide to consultation be part of the South in a referendum Dec Asmara Agreement All the NDA parties Sudanese People Modifications of 1994 and political forces Chukudum and emphasis on one Sudan June Asmara Agreement 10 NDA parties Southern Indeed, the South 1995 on Issues of political forces and Sudanese and all Sudan based South Destiny. independent national other Sudanese as Sudan Independence Affirmation of the personalities well. Movement (SSIM/A) RSD for the South, applied to join the and extending it to NDA because the people of the Nuba Accord supported the Mountains and RSD for the Southern Ingessina if internal Sudanese. accommodation in Application was one Sudan is not rejected. accepted. April Khartoum Peace Six South Sudan People of the The abortion of this 21 Agreement. Art. 7 Military and South Sudan. Agreement is an 1997 Sect. 10 deals with political formations instructive lesson in the exercise of RSD and the NIF- the techniques of the by the people of the dominated GOS frustrating South agreements in the Sudan
64 Sept Fashoda Agreement SPLM/A United Dr. South Sudanese 1997 Lam Akol and the GOS represented by the then Vice- President El Zubeir Mohamed Saleh 1999 Djibouti Agreement GOS and the Umma Southern First bilateral Party Sudanese agreement between Northern Sudanese leaders to recognise the RSD for the people of the South Feb Memorandum of Representatives of Southern Point 4 of the MOU 20th Understanding the SPLM (Pagan Sudanese affirms the RSD 2001 (MOU) between the Amnom and Yassir general and SPLM and the Arman) and condemns the regime Popular National representatives of for “wriggling” out Conference (PNC) PNC-Omer Al- of its commitments Turabi, and al to this right in Mahboub Abdel previous pacts. Salaam Jan 6th Nairobi Declaration SPLA/M and SPDF. Southern The declaration also 2002 Signatories are Drs. Sudanese and the suggests urgent John Garang and people of the measures for Riek Macar marginalised consolidating the areas. internal front.
4. Background
To be sure, self-determination as a claim has not been new in the political struggle of Southerners. Indeed, the struggle has always posited two demands: social-economic, cultural and political justice within the Sudan, on independent statehood for the South. The latter claim has often but not always been formulated as the right to self- determination RSD.
According to this alternate claim, equity and justice with the Sudan would entail major restructuring of systems and institutions. It would also entail redistribution and sharing of wealth and the means of producing it. Hence, terms such as federation, regional self government, confederation have been used to designated various administrative and constitutional forms of governance needed in the restructuring and redistribution demanded.
65 Responses of the central government of the day have normally been decisive in making the South choose the means and the methods of struggling for its rights. In other words, the nature of the central government response has largely determined whether the South shall resort to violent or peaceful political means in pursuing its stated claims. Invariably violent reaction from the South has often been triggered by central government’s assault on what the South sees as its strategic assets. These assets have often included but not limited to military units (1955), (1983); leadership cadres, (1962), (1964); resources, etc. The Southern demands, under the first military regime (1958- 1964), were self- determination and federalism. The Sudanese exercise the RSD through a parliamentary vote on 19th December 1955. Southern Sudanese members of the then National Assembly agreed to vote for “independence motion” after being formally assured by their Northern Sudanese colleagues that a federal status for the South Sudan shall be considered after the independence”.
A federal demand by the South was later rejected by a predominantly Northern Sudanese parliament. Southerners considered the parliamentary endorsement of the independence motion as a fraud on them. The condition of federalism was rejected. A repressive military regime with an Islamisation and Arabisation agenda for the South, drove Southerners to armed struggle, whose goal was independence for the South. Political forces of the South government controlled areas raised self-determination and federation others espouse “unity” of the Sudan.
5. Self-determination and Separation.
An argument often heard from some Northern Sudanese is that the exercise of the RSD by Southern Sudanese would result in separation and therefore is unacceptable. They probably reach this judgment by putting themselves in the shoes of the Southern Sudan. They also hear it directly or indirectly from Southerners.
However, most forces in the North, do not want to admit the reality of the Sudan as a failed state; a state that has demonstrably failed to forge a consensus on the fundamentals of state and nation building. Such fundamentals include a common consensus on the nature of the state; the primary of human rights and the rule of law; the role of language and culture in nation and state building. This Konsensunfahigkeiz is a reflection of dysfunctional heterogeneity of the Sudan. The policies of various governments, and the present one in particular, have rendered ethnic, religious and cultural differences deeper and irreconcilable.
66 Most Sudanese have not realized that the Southern Sudanese and the people of the marginalised Sudan have paid and are paying dearly for the GOS efforts to maintain the unity of the Sudan. However, the exercise of the RSD need not inexorably lead to separation. The possibility of such an outcome is there but is not the inevitable outcome of the exercise of that right. If the interim period is corrective and addresses structural injustices and adequately compensates for historical wrong, a conducive atmosphere for a self-determination referendum could be created.
Choosing a united Sudan with wide powers of decentralization is not a pre-doomed option. Indeed, there is a constituency for such an option in the South depending largely on how the advocates of a United Sudan present their case, the unionist may win the day in a referendum.
It is the thesis of this paper that the case for self-determination has not optimally been made by beneficiaries and their allies. They have still to do the following:
1) Mobilize and educate people in the issues of self-determination; 2) Gain control over territory and people prior to the exercise of self-determination; 3) Win regional and international support for the RSD cause; 4) Consolidate their popular mandate from their people; 5) Present a credible case of the non-viability of any other option, including various improvements of the status quo; 6) Address in a cooperative and progressive spirit the post referendum situation;
However, most of the forces were traditionally against the RSD for the south or any group of Sudanese for that matter. Indeed, the fact that despite the apparent consensus on at least the RSD, political will to implement this consensus is still lacking. This lack of political will manifests itself in debilitating avoidance tactics. A major, but by no means the only, offender in this tactical game is the GOS.
GOS The GOS initially expressed reservation on point 3.4 of the DOP (i.e., the establishment of a secular state in the Sudan), and on the RSD for the south. However, the GOS team then led by Mohammed Alamin Khalifa with membership of Ali El Haj was accommodating on the issue of RSD.
67 A more rigid team under Ghazi Sallah El Din, who openly rejected both secularism and RSD in the negotiations of September 1995 quickly replaced it. The GOS pulled out of the IGAD peace process, flirted for a while with the Khartoum Peace Agreement and Peace from within.
It was only after the military victories of the SPLM/A over the GOS forces in 1995 and 1997 that the GOS went back to IGAD in August 1997. Its attitude was essentially one of strategic admission, but again one of tactical avoidance.
Indeed, having accepted the RSD for the South under Khartoum Peace Agreement (KPA), The regime could not credibly object to point 2.2 of the DOP. Instead, it contested the definition of the South, trying hard to exclude the Dinka District of Abyei from the South.
With regards to RSD for the southern Sudan, the NIF has no historical of commitment thereto. In fact, it opposed the simple regionalism for the Sudan proposed by the 1968 Draft Constitution Committee and by the All-Political Parties Conference of a year earlier. Consistent to its credo one Islamic Sudan, it opposed the Regional self-rule for the South of 1972-1983 and worked to ensure the abrogation of the Addis Agreement of 1972-1983.
The NIF became a tactical convert to federalism in post-Nimeri Transitional Period (1986) in an attempt to attract regional support for its program of Islamic absolutism. This federalism showed itself as hollow in practice when NIF came to power and began to implement it after 1989.
NIF’s opposition to RSD for the South is consistent with its absolutist ideology, and its commitment to the ‘civilization project.’ NIF manner of eviscerating the KPA 1997 shows its anti-RSD design.
The SPLM/A The SPLM/A is also in a difficult position vis-à-vis RSD for the South Sudan. To be sure, it started in 1983 with unequivocal commitment to a united, new, socialist and democratic Sudan. So strong was the emphasis on the conception of the United Sudan to a degree that some Northern Sudanese suspected a camouflage of separatism by over emphasis on unity. Yet, the SPLM/A New United Sudan call won it support from the North, particularly among African Sudanese in the marginalised regions of northern
68 Sudan. The Nuba, the people of Southern Blue Nile, and even some westerners joined the movement in substantial numbers. They joined it on the basis of a united, just, secular New Sudan.
Most Southern Sudanese join on the basis that the movement provided an opportunity for military and organizational empowerment that can liberate the South from the oppressor. Should the oppressor be defeated all over the Sudan, that eventuality would also be welcome.
The SPLM/A was therefore more composite and desperate in expectation and agendas. Most of these agendas were not publicly or openly articulated.
After the fall of Mengistu, himself a victim of multi-faceted liberation struggle, the internal contradictions of the SPLM/A came to the fore. An important outcome was the split and the open articulation of the separatist and liberation agenda (human rights, rule of law and good governance issues).
Indeed, the independent South agenda, under the banner of RSD for the South, did publicly surface inside Sudan among Southern Sudanese in a GOS-sponsored National Dialogue Conference (October 1989). There, Southern Sudanese re-asserted their right of self-determination to the point of forming an independent state.
The Southern Sudanese memo to that conference underlined the paradox that:
“Islamic fundamentalism which some Muslims view as their ideology of liberation from Western cultural domination should be used as an ideology of oppression and domination of the Muslims vis-ã-vis the Southern Sudanese”
Responding to the difficulty of its composite consistency, the SPLM also adopted the policy of strategic admission and technical avoidance on the RSD issue.
As the table shows, it concluded a bilateral Washington Declaration with SPLM/A United. It was the first affirmation of SPLM/A commitment to RSD for the South since the Torif Minutes of September 1991.
69 6. The First SPLM National Convention
Following its First National Convention in 1994, the SPLM/A averred that:
7.2.1 “The objective of the SPLM is the complete destruction of the oppressive regime of the old Sudan and the building of a free, just democratic, secular New Sudan.
7.2.2 The SPLM is committed to fight and achieve the right and exercise of self determination for the oppressed people of the New Sudan following the demise of the regime of the old Sudan or in any peace talks with the government of the day in Khartoum”.
Some SPLM top cadres have been cautious in pronouncing themselves publicly for RSD for the people of South Sudan. At other fora, particularly in Egypt and Libya, some SPLM/A members would avoid affirmative reference to RSD. Their support for the Joint Libyan/Egyptian Initiative (Sept 2000) which conspicuously omits any reference to the RSD the South and the establishment of a secular Sudan, could also be seen as tactical avoidance technique. On the other hand, the affirmation of the RSD for Southern Sudan, the people of the Nuba Mountains and Southern Blue Nile by the Leadership Council in November 2001 and in the recent Nairobi Declaration of January 6, 2002 were well received by the members of the Movement and by the people concerned.
Other political forces and military formations have yet emerge from the tactics of self- determination. Most political forces and personalities from the marginalised regions of the Sudan would rather not have RSD exercised by the South or any group in the Sudan for that matter. Some argue, with justice, that they joined the SPLA-led struggle because of its unionist and new deal agenda. Others say that if RSD must be exercised, it should be exercised by all, but sequentially. Still other say that the struggle for justice and emancipation for the oppressed of the Sudan outside the South Sudan must and can go on despite which way the South goes. What has yet to emerge in this debate is a covenanted blue print of the Sudan under Point 3 of the DOPs.
70 Conclusion
A careful reading of the IGAD-initiated Declaration of Principles (DOPs) reveals two key instances of the exercise of the RSD. Point 2.2 thereof affirms the RSD for the people of the Southern Sudan through a referendum. Point 3, with its seven subsections, lays down the principles and elements on which a new, united Sudan should be based. These include secularism, equitable sharing of power and resources, equality before the law, wide measures of decentralization etc. Then comes Point 4. It avers that in absence of an agreement on the seven elements and principles listed under Point 3
“...the respective people will have the option to determine their future including independence, through a referendum”.
In other words lack of agreement on peace and governance in the Sudan is not the end of the world. On the contrary, it is the beginning of a general process of the right of self- determination by the respective people of the Sudan. Accordingly, the strategy of admission and avoidance may be good politics but is demonstrably bad statesmanship. And this is sadly the case particularly if we accept the rule of thumb definition that “a politician is the one who thinks only of the next election. A statesman or rather a statesperson on the other hand also thinks and works for the next generation.”
71 b. Summary of discussion
1. Self-determination could also be understood as people’s right, a right which may be exercised at any time by any people. The Nuba Mountains has recently benefited from an agreement between the GOS, SPLA/M and the USA. In addition to this agreement, the people of Nuba also want to decide their future. When and if that time comes, they want the right to choose self-determination. The people of the Nuba Mountains are living in an area between the South and North with multiple tribes, not just Nuba people. All the tribes who share this area are suffering. They need to be able to choose which side they want to be part of and have a say whether they want to be independent or not.
2. Self-determination does not automatically mean two separate countries. The SPLM/A and other parties are not working towards a separate state in the south. The other marginalised people, the Nuba and the Beja, should also be part of this process of self-determination. Through negotiation and democracy there should be no difficulties in coming to an agreement which will be good for everyone. Many terms mean different things to different Sudanese, for example whether self-determination is equal to separation. The people on the streets of Khartoum assume that self- determination would mean separation and they do not believe that the GOS has the right to split the country. There has never been consideration, in a practical and meaningful way, of what we are committing ourselves to. What are the consequences going to be – what are the next steps?
3. There has never been serious dialogue on the various sticking points- IGAD is not a forum where serious dialogue can take place. The realities of the situation in the Sudan need to be discussed more openly in order to move the peace process forward. Confederation is a solution for the south. These matters need to be discussed whilst there is not a threat of war or intervention. Time is required. Real solutions need to be offered. There needs to be greater understanding about what each group is suggesting. A very prominent British political observer of the Sudan said that the Sudanese are masters of ‘la politique pur’. This is true, but it doesn’t unify the country. There are options – independence, secession, federalism / confederation. Self-determination does not just mean separation. The SPLA/M are not working directly for a separate south. There is a free choice and everyone must be prepared for that.
4. The historical background is very important and needs to be aired. The root problems of the north / south divide have not yet been addressed. In 1947 the problem was there and manifested itself in the proceedings of the Juba Conference. At that time they considered whether southern Sudan should send southerners to the north to decide whether they should overthrow the colonialists. Already then there were grievances at the Juba Conference. It became focused on whether the Southerners should agree to unity with the north. In 1955 there was a mutiny. The 1972 agreement was dishonoured in 1983. The issue of self-determination always makes
72 the northerners try to be sensitive because they are concerned that the south wants to go their own way.
5. Before 1989 there was no mention of self-determination. Apparently since 1996 all political parties have endorsed self-determination. The apparent Sudanese consensus on self-determination is a strategic admission. Most parties came to the conclusion that it is the right political option. Others felt it would be unwise to confront it with outright objections but thought that having agreed they will be able to wriggle out. What can proceed from this consensus? Commitment to dialogue is stronger than ever and gaining momentum. There is a will for peace. That is a credit to the Sudanese. It should be recognised. There are credible forms and visible changes. People appear to feel intimidated. Those who are positive about the unity of Sudan seem to appear guilty. There is fear about the separation of the country. Every political party has signed agreements for self-determination. This is not being challenged. If the country can stay together and address the grievances of Southerners then Sudan would benefit. There needs to be a practical list of everything which appeases everyone. If this not attempted then the Sudan may as well part now. Separation could be chosen as a last resort.
6. There are many Southern Sudanese in the North of Sudan. Some went there because they couldn’t find livelihoods in the south; these people are likely to go back when they can, even if it has to be walking all the way. The presence of the Southern Sudanese in the North is not an endorsement of what is happening in the North. They are in trouble and fleeing to the nearest safe place. The test will be if things return to normal and they remain in the north.
7. Federalism is a good exercise, when applied in an idealistic way it can be built upon. It is good to try and have some sort of federalism. The benefits for education, for example, are 32 universities – one for each state. Sudan cannot wait for ideal opportunities. It is the post referendum scenario that you need to start from. Self- determination is very clear – in whatever end it takes Sudan to – it is an obligation to agree with it.
8. The younger generation needs to be catered for. They need to be understood. Many younger northerners want secession because they see how the struggle is wearing down the country.
9. The nine points of the Libyan/Egyptian initiative bind the Government; these do not include self-determination. There needs to be clarity on the political consensus on self-determination. The Egyptian influence in the Sudan needs to be recognised. Furthermore international guarantors must be called to ensure that the will of the people is really expressed.
10. One of the practical issues is the timing of a referendum. It needs to be when temperaments are cooled down and when a cease-fire is successful. There need to be talks about how to choose this time – the time will determine the result – secession or
73 unity (dependent on war status). The challenge for us all is how to define self- determination so that we can discuss it seriously and avoid all this conflict? We should not be shocked that the south is calling for secession. If it brings peace then we will talk about it. This must not be delayed. If technical avoidance is being played there must be something better. There needs to be a move away from the politique pur so that Sudan goes beyond the short-term tactics of politics. Self-determination is something to work for – it is planned for – not something that will just come. It is common wisdom that that the war will not be won by military means.
11. Imposition of Shari’ah law as the law in the Sudan led to talk of self-determination because those who would then have become second class citizens wanted to leave. Self-determination may lead to secession and therefore people are scared. There must be a separation of state and religion. The root of this problem is religion and state – and this is what needs to be remembered.
12. For most people, justice is more important than unity in the Sudan. If we get the justice equation correct, the unity equation will take care of itself. Neither side can win the current war. But winning means different things to different groups. The guerrilla wins if he doesn’t lose. The government loses if it doesn’t win. Meanwhile many observers believe that Sudan is a failed state. You cannot be proud of a failed state. A failed state is where the people do not reach consensus of language, custom, human rights and the rule of law. What we need is a Sudan to become a liveable common house.
74 4. Sudan Hydrocarbon Resources a. Paper Presented by Dr. A. R. O. Abdel Rahman
S y n o p s i s
Early data did not indicate the presence of hydrocarbons in the Sudan. The Red Sea coastal areas were the exception; hence all exploration efforts since 1956 were concentrated in this area. Chevron made their first discoveries in the Red Sea, followed by others in Central and South Central Sudan in 1979. Reserves increased through additional discoveries. Plans to build a pipeline and start production and exports were delayed through the various factors, including armed conflict, a drop in the oil prices and the opening of better opportunities elsewhere. The length and cost of the export pipeline were handicaps. Chevron, having ceased operating in 1984 and being unable to return, finally came to an amicable settlement with the Government in 1991. They were to designate a third party to operate on their behalf; they chose to sell off to the third party. Concorp took over and later passed the concession to the Government. In 1993, State Petroleum Corporation contracted a small part of the area previously held by Chevron, operated it for three years without incident, developed and produced 24000 BOPD from Heglig and increased the reserves. By agreement, new partners joined in. Exploration was intensified, the Export Pipeline was realised and the first vessel left Bashayer Marine Terminal Sept 1st 1999. Exploration and production agreements were successively reached in other blocks. The type of agreement used is Production Sharing. Negotiations are free, transparent and without incumbrances. Contractors have the freedom of operations under a work programme and budget, and are guided by Accounting Procedures and Limits of Authority. The Petroleum Resources Act 1998 regulates the conduct of work in the Oil Sector. It is headed by the President, assisted by a mini-cabinet and a group of experts. The approval of agreements by the Council for Oil Affairs is mandatory but is speedily done. Marketing was initially done through a broker to find a place for the Nile Blend. The Contractor and the Government independently market their oil. The Government uses tendering with participation by international companies under an FOB pricing formula based on MINAS. The proceeds from the letters of credit are received by the Bank of Sudan. Local distribution of products is gradually approaching a Free Market with several national and international companies involved.
75
SUDAN HYDROCARBON RESOURCES
LIST OF CONTENTS
UPSTREAM OPERATIONS Outlines of the Geology of Sudan Geological Setting Structural Setting History of Oil Exploration in the Sudan Chevron The Oil would not flow The Amicable Settlement with Chevron Concorp State Petroleum Corporation The Consortium The Potential
EXPLORATION AGREEMENTS Types of Agreements Duration Work Programme and Budget Production Sharing Cost Oil and Amortization of Costs Profit Oil Splits and Production Levels Relinquishment Bonuses Tax and Customs Exemptions Law, Jurisdiction and Arbitration Freedom of Operations Employment of Sudanese Nationals Safety and the Environment Points of Comfort Guarantees Approvals Exploration Results and Forecasts
76 INSTITUTIONAL FRAMEWORK The Petroleum Resources Act The Council of Oil Affairs The Minister The Oil Exploration and Production Authority (OEPA) The Joint Coordination Committee Obtaining a Concession in the Sudan Negotiating an Agreement
DOWNSTREAM OPERATIONS Refineries Port Sudan Refinery Khartoum Refinery Al Obeid Refinery Abu-Gabra Refinery Concorp Refinery
Lubricants Other Petrochemical Industries Transportation Crude Oil Pipeline Products Pipeline Road and Rail Transport
MARKETING Local Marketing Pricing Marketing Companies International Marketing The Proceeds
FIGURES Figure 1. Sudan Geological Map. Figure 2. Sudan Concessions Map. Table 1. Blocks under Concession Agreements. Table 2. Work Programmes. Table 3. Reserves. Table 4. Production. Table 5. Suakin and Bashayer Reserves.
77 UPSTREAM OPERATONS
Outlines of the Geology of Sudan1 Reference is made to Figures 1, the Geological Map of the Sudan.1
Geological Setting
• The geology of the Sudan is extremely diverse with a variety of metamorphic, igneous and sedimentary rocks. • Three metamorphic belts have been recognized: 1. South Equatoria 2. Central Sudan and Nile valley. 3. Red Sea. • The gravity, seismic and drilling data acquired in interior Sudan basins indicated that more than 30,000 ft of clastic sediments occur within the deepest central trough of the three major basins. • The sediments are interbedded Sandstones, Claystones, Siltstones, Mudstones and Shales. • Abu Gabra Formation (Darfor group member), Amal and Tendi formations are the principal reservoir rocks. • Yabous formation is uncertain, but seems to be during the mid-Cretaceous to early Tertiary period in the Muglad basin, and during mid to late Cretaceous in Melut basin. • The present temperature gradients over these basins are normal and no over pressure zones have been recorded so far.
Structural Setting
• The interior Sudan Basins are related in their evolution to the West and Central African Rift systems (late Jurassic to early Cretaceous). • The structural development of the Muglad Basin is marked by three major rift cycles, and sagging characterized by a coursing upward sequence of clastic sediments; those are:
(1) Early rifting (late Jurasic-early Cretaceous). (2) Intermediate rifting (Senonian-Turanism) is associated with minor volcanism. (3) Late rifting (late Eocene-Oilgcene). (4) Sagging (middle Miocene). (5) Muglad, Melut and Blue Nile are the three major sedimentary basins.
History of oil exploration in the Sudan2
Before independence in 1956, the belief by the British, one of the colonizing parties, was that the Sudan as a whole does not have any prospects of hydrocarbons, perhaps with the
78 exception of the Red Sea coastal areas. Hence, it is evident from the chronology of the history below that the early exploration efforts were concentrated in the Red Sea Areas:
• In the late fifties Agip of Italy was granted the first exploration permit in the Red Sea Area. • Agip was followed by other companies without success. • 1975-1977 Chevron made the first discoveries of gas and condensate of Bashair and Suakin in the Red Sea Area. • 1975 Chevron moved to the Central and South Central Sudan and obtained a concession of over half a million square kilometers. • 1979 Chevron started drilling operations and made the first discovery at Abu Gabra in the north west of the Muglad basin. • 1980 Chevron made discoveries in the Unity, Heglig, Talih, Sharif, Adar and Adar Yale fields. • 1980 Total (France) signed an Exploration and Production Agreement for Blocks B and C. • 1982 Sun Oil obtained a concession in Central and North Central Sudan. One of its six wells had shows. In 1990 Sun Oil relinquished the concession. • 1984, after the incident at Rabcona, Chevron abandoned operations and claimed force majeure. • 1991 Chevron and the Government met to look into resumption of operations. • 1992 Chevron assigned its concession, with the approval of the Government, to the Sudanese Company Concorp. Concorp later handed the concession over to the Government. • 1993 State Petroleum Corporation, a small Canadian company, obtained a small part of the Chevron concession comprising Unity, Heglig and Kaikang. Areas encompassing previous Chevron discoveries and several prospects, regarded as the most promising of the areas that were held by Chevron. • 1995, Gulf Petroleum Company signed a Development Agreement for the Adar Yale field in Block 3d. • 1995 China National Petroleum Company, CNPC, signed an Agreement for Block 6. • 1996 (June) State petroleum developed Heglig Field for an output of obout 24,000 BOPD. • 1996 (November) a consortium of CNPC, Petronas, State Petroleum and Sudapet took over the concession of State Petroleum through a new Agreement. • 1997 (Feb) IPC (Lundin Oil) Petronas, Sudapet, and later OMV (Austria) signed an EPSA for Block 5A. • 2000 (Nov) Gulf, CNPC, Al Thani and Sudapet signed an amendment of the Agreement for Blocks 3 &7. • 2001 (Jan) Petronas, Lundin, OMV and Sudapet signed another Agreement for Block 5B. • 2002 (Jan) Slavneft and Sudapet signed an EPSA for Bock 9.3
79 Chevron3
1975-1977, Chevron made the first discoveries of gas and condensate in the fields of Bashayer and Suakin in the Red Sea Blocks.2 Having relinquished the Red Sea area and moved to the vast central and south central Sudan, Chevron made history by the early discoveries in Sharif and Abu Gabra, and reversed the theories that the inner continental basins of the Sudan did not contain any hydrocarbons. On the other hand, the extreme faults in the northern part of the Muglad Basin increased the risk factor. The move to the south east of the Basin was much more rewarding. The discoveries positively altered the success rate to become 1:3 and better. At Unity almost seven out of every eight wells drilled were a success. Plans were made for a pipeline to carry about 200000 BOPD and a 25000-BPD refinery at Kosti to satisfy the local demand. The length of the pipeline from Unity to the Red Sea coast was about 1640 km, a true burden on the cost of oil. Chevron and the Government chose to establish a separate company, the White Nile Company, to own and operate the pipeline with equal share holding for both parties. The export plans were not realized!
The Oil Would Not Flow
The Addis Ababa Accord in 1972, which made peace and stability possible, divided northern Sudan into six states and Southern Sudan into three states, with the Central Government at Khartoum and a Regional Government at Juba. In 1983, General Numairi, the president of the Sudan at the time, decided to offer a measure of self government to minorities by further subdividing the Northern and Southern states. The idea was not acceptable in the south and the first spark was generated and fire spread. In September 1983, General Numairi decided to implement Islamic Sharia Law, a step that exacerbated the situation. Numairi withstood enormous political pressures and maintained his stand. The oil would not flow. In February 1984, Chevron camp at Rabcona came under fire from factions opposing the Government. The incidented lasted for about three minutes. The next morning, Chevron made an announcement, ceased operations, evacuated, claimed force majeure and was never to return to operations. The oil prices crashed; the economics were destroyed.
80 The Soviet Union opened doors. American companies were encouraged to take over the oil fields. The fields were ready to develop with favourable terms. The returns seemed better than their EPSA in the Sudan.
The Amicable Settlement with Chevron3
The downfall of Numairi in 1985 through a popular uprising, was followed by a transitional Government for one year, led by General Sowar Al Dahab. The general elections that followed brought in a coalition government led by Saddig Al Mahdi. The period that followed was reminiscent of the pre-Numairi period, and led to the same consequences of a military take-over on 30th June 1989. Various calls were made on Chevron to return and resume operations, but to no avail. In 1990 the Government of General Beshir called Chevron to a meeting in Khartoum to discuss the issues and mitigate the situation in an attempt to resume operations. The call was answered a year later. In June 1991 a meeting was held in Khartoum. The parties met in a cordial atmosphere. The Government understood the worries of Chevron, that a responsible company would not knowingly put its employees and human life at risk. On the other hand, Chevron understood the urgency of the Government that inherited a difficult financial situation. Their income would not cater for the base requirements, which included an oil bill of more the 300 million dollars a year. The development of the discoveries at Unity and Heglig could give the Sudanese nation a much needed dose to ease the economy and provide for relief in an era of rationing in almost all essentials. The alternatives were not easy to adopt. The resumption of operations by Chevron was the first choice for the Government, but at the time was the impossible for Chevron. The second alternative was to find a third party that will be willing to operate knowing the security level in the area. Both parties later agreed to this alternative and started looking for a party to takeover. The third alternative was for the Sudan Government to terminate the contract and challenge the force majeure presumption. Neither party was willing to take this option.
Concorp3
Having agreed with the Government on a third party to operate, Chevron was later willing to end it all and sell off to to a third party. The assignment by Chevron of its rights and obligations in the contract to another party would require the approval of Government. A small Sudanese petroleum company solicited the provisional approval of the Ministry of Energy and Mining to approach Chevron. Hence, Concorp was assured of obtaining
81 the final approval of Government. A deal was then worked between Chevron and Concorp and was concluded in October 1992. A year later, in October 1993, Concorp handed over the Concession to the Government. The Government regained the land; but they are yet to resolve the pipeline enigma.
State Petroleum Corporation3
A small Canadian company with limited risk capital (own equity) signed an agreement for Blocks 1, 2 & 4. During the first term of the exploration period, State was obligated to develop Heglig field for 25000 BOPD and carry out a limited exploration programme. An export pipeline was not in their Agreement. This was in line with Government strong belief to exclude the pipeline costs from the cost oil. State Petroleum was able to achieve the development programme but failed to execute the total exploration programme. State, however, did increase the recoverable reserves through new discoveries, further emphasising the high potential of the area. It became evident that the increased potential and consequently an increased production would necessitate the construction of an export crude oil line as a separate Crude Oil Pipeline Agreement (COPA). Hence, in August 96, the Government and State Petroleum signed a memorandum of understanding to introduce partners of financial and technical capabilities to provide assistance to State and execute the desired Government objectives.
The Consortium3
CNPC of China and Petronas of Malaysia joined State Petroleum along with Sudapet, a wholly owned Government company, in a consortium for Blocks 1, 2 & 4. It was conditional that each company should take a share in the Crude Oil Pipeline Agreement (COPA) equal to their share in the EPSA. The Parties were to form a company for the Pipeline and Marine Terminal independent from the EPSA. The company was to own and operate the pipeline with reasonable returns on their investment. The Parties were given an exclusive right over the route, subject to provisions which included assigning 40% of the Pipeline capacity to third parties, expanding the capacity when required by third parties and use the Pipeline as a common carrier. The spare capacity in the pipeline was an added benefit and an element of encouragement for other parties with interest in the blocks around. The enigma was resolved, the vision a reality and the stage was set for crude oil exports.
82 The Potential
Several companies, before and after the Consortium, signed agreements for concessions in the Sudan. The existence of a utility for transporting the oil for export has made it more attractive. Figure 2 shows the distribution and layout of the concession blocks in the Sudan.2 Table 1 shows the companies and the dates of agreement.3 Table 2 shows the past, present and forecast for work programmes for the blocks.3 Table 3 shows the oil in place and the recoverable reserves.3 Table 4 shows the level of production and the future forecast.3
EXPLORATION AGREEMENTS4
Types of Agreements
The type of agreement adopted by the Sudan Government is a Production Sharing type. Oil produced is split in agreed percentages between the cost oil, which is utilised by the Contractor to recover its operating, exploration and development costs, and profit oil which is shared between Government and Contractor. The Government also adopted a text for the Model Agreement. All other fiscal parameters would be agreed upon between Government and Contractor in free and open negotiations. Prior to negotiations, the Contractor must have been technically and commercially pre-qualified.
Duration
The exploration period is a maximum of six (6) years divisible into two or three Terms by agreement between the parties. The production period is twenty (20) years extendable by a further five (5) years. However, in case the life of a field exceeds this period, the parties would consider the possibilities of a further extension in the light of the expected costs and revenues.
Work Programme and Budget
The Government will generally be interested in examining the worthiness of the programme in order to improve the existing data, provide for work to cover the whole contract area in 2D seismic, 3D seismic exploratory drilling and delineation of discoveries. A provision for an exit policy for the Contractor would be considered within the budget provisions for the work programme.
83 Production Sharing
As stated above, the apportionment of the average daily production into cost oil, contractor profit oil and Government profit oil is of paramount importance.
Cost Oil and Amortization of Costs
The cost oil is assigned taking into consideration a percentage of the average daily production, in line with various parameters affecting the generated revenue, the expected cost to be incurred up to start of production, and the amortization period in line with international trends, is an important item for discussion. The effect of the special nature of the Contract Area and the cost oil cannot be overlooked. The amortization period is 4- 5 years, (i.e. 25% - 20%).
Profit Oil Splits and Production Levels
The profit oil split would take into consideration the area and the geological risk. The average daily production segments are of a wide range, providing Government with increasing share of the profit oil with increased production.
Relinquishment
At the end of each Term of the exploration period, the Contractor will be obligated to relinquish a percentage of the Contract Area. This is a mandatory measure forcing the Contractor to work diligently.
Bonuses
Various bonuses, such as signature, assignment, production, training and social services are part of the fiscal parameters in the agreements. So far the Government has adopted a policy of allowing the minimal possible bonuses, especially the signature bonus, to allow the Contractor the advantage of spending the money on the programme. However the Government expects the late recovery of its dues when considering the profit oil splits. This is done without its dues when considering profit oil splits. This is done without disregarding the essence of bonuses as an indication of the commitment by the Contractor.
Tax and Customs Exemptions
The Contractor is exempt from custom duties on all items used in petroleum operations. The Contractor is also exempt from payment of taxes, which the Government pays on his
84 behalf out of the share of the Government of the profit oil. The filing of tax forms by the Contractor is a formality to enable the Contractor obtain a certificate acknowledging payment of taxes. Subcontractors and expatriate employees of the Contractor are also exempt from taxes, and employees have other limited customs exemptions.
Law, Jurisdiction and Arbitration
The Sudanese Law, comparable to the English Law, is the ruling Law, and Sudan is the jurisdiction. Arbitration, however, is in accordance with UNCITRAL Arbitration Rules. The venue can be in a country other than Sudan, but shall not be to the domicile of party, its parents or affiliates.
Freedom of Operations
Guided by the work programme and budget, which are approved by Government, a wide range of financial limits of authority and the accounting procedures, the Contractor has full freedom of operation.
Employment of Sudanese Nationals
To the benefit of the Sudanese and the Contractor, agreements would contain targets, as a percentage of the total of employees, for the employment of Sudanese Nationals. The Contractor is required to conduct the operations in a business-like manner. Employment shall be in accordance with the prescribed qualifications and experience.
Safety and the Environment
The Contractor is responsible for the safety of operations, good house keeping and the cleanliness of the environment. Proper insurance and indemnities will be required.
Points of Comfort
In an effort to alleviate any possible worries of the Contractor, the Agreement would contain clauses for the ability of the Contractor to freely repatriate its capital and profits. It would also contain clauses prohibiting the Government from appropriation, confiscation, nationalization or the like. The Exploration and Production Sharing Agreements would supersede any laws or ordinances not in effect at the time of signature.
85 Guarantees
Suitable Bank or Parent Company Guarantee is required for the effective execution of an EPSA.
Approvals
The approval of the Council for Oil Affairs is necessary for the Agreement to be put into effect. However, extraordinary meetings are usually speedily arranged.
Exploration Results and Forecasts
The results of the exploration programmes executed in the Sudan are summarized in the attached Tables 2, 3 & 4.
INSTITUTIONAL FRAMEWORK5
The Petroleum Resources Act
The Petroleum business, including exploration, is conducted under the Petroleum Resources Act 1998, which is an amendment of the Act issued in 1972. The Act sets the basic framework for Exploration and Production Agreements and the roles and duties of those administering the Act.
The Council of Oil Affairs
This is a mini-cabinet headed by the President and comprising five key cabinet ministers and six experts. The Council is the highest body in the administrative framework of the oil sector. Among its roles are: -
Settling policies, objectives and plans for the oil industry. Issuing by-laws to regulate the industry. Approval of Production Sharing Agreements. Structuring the Sudan Oil Corporation (SOC). Approving tax and custom exemptions for contractors.
The Minister
The Minister of Energy and Mining, who is the vice-chairman of the Council for Oil Affairs, is the top executive for oil affairs and the agreements within it. Under the agreements, the accounting procedures and limits of authority, he approves the Work
86 Programme and Budget, approves expenditure above the limit of five million dollars and is the reference for all matters concerning an EPSA.
The Oil Exploration and Production Authority (OEPA)
The OEPA is the department within the Ministry of Energy and Mining entrusted with the co-ordination, supervision and assistance to the Contractor. It advises the Minister on all items requiring his decision. They are the single entity the Contractor deals with including matters with departments in other Ministries such as immigration, customs, taxation, etc.
The Joint Coordination Committee
A body formed by the EPSA comprising four members from the Ministry and four from the Contractor. They review and endorse the Work Programme and Budget for the approval of the Minister. They also approve, within the Work Programme and Budget, contractor expenses for items in excess of the limit of authority of Contractor in accordance with the Accounting Procedures.
Obtaining a Concession in the Sudan
Subject to the proper pre-qualification of a company and an introductory letter to the Minister, the Minister may extend an invitation to company to depute some of their technical personnel to review the preliminary data in a specific block or several blocks. Having decided upon a block, further data may be obtained at cost under a Confidentiality Agreement. On communicating a firm interest in a block to the Minister, a model EPSA draft will be given to contractor for the purpose of perusal and advancing the fiscal parameters to Government. If the proposal is within reasonable limits of acceptance, the contractor will be asked to start negotiating these parameters, which, when agreed by both parties, would render agreement on the text a simple task. Perhaps better terms are obtained by Government when a block is offered through a licensing round. More blocks are being offered for concessions in this second mode. This process will continue when the present contractors relinquish areas with known potential. Figure 3 shows the designated Blocks. Table 1 shows the status of these Blocks.
Negotiating an Agreement
It is only natural that negotiations for EPSAs are conducted in Khartoum. It is comforting to know that Government negotiators are free to conduct the process, but their
87 result are subject to review by the Minister and his staff. The atmosphere is cordial, the negotiators honest and uninhibited. A schedule is generally drawn up to the signature of an agreement. Once negotiations start, the Ministry will close the doors on other suitors for the block.
DOWNSTREAM OPERATIONS3
Refineries
Port Sudan Refinery
This 25000 BPD refinery was originally built by Shell in 1964. It is an old technology simple refinery with a capacity of, of without complexities built on. It supplied 50% of the needs of the Sudan for petroleum products. After the sudden and sharp increase in oil prices in 1973, distribution companies failed to supply the needs of the country and the Government resorted to partnerships to enable the provision of petroleum products. The government, who was then able to supply crude oil through bilateral agreements with other Governments, bought a 50% shareholding in the Port Sudan Refinery Company. Port Sudan Refinery is presently preserved awaiting plans for its upgrading as an export refinery.
Khartoum Refinery
This is a 50000-BPD complex refinery built as a joint venture of equal partnership between the Ministry of Energy and Mining and CNPC. The refinery started up in Feb. 2000. The majority of its products output meet the required local demand, with slight surplus for export. The shortfall is in gas oil. No residue is produced, hence the continued operation of the Al Obeid Refinery to provide fuel oil for the industry and for power generation. The equal partnership will diminish for CNPC to 10% and shall remain so thereafter. CNPC would then have recovered their expenses and returns on their investment. Conceptual design is complete for its expansion to 100000 BPD to include other needed processes.
Al Obeid Refinery
Al Obeid Refinery is a 10000-BPD simple refinery, which was purchased second hand in 1996 and installed to utilize some of the crude oil produced the development of Heglig field. More than 60% of its product slate is fuel oil which makes it uneconomical to run
88 when crude oil prices are higher than 20 $/BBL. Its operation, however, is important for the local supply of fuel oil.
Abu-Gabra Refinery
A small 2000-BPD refinery installed in 1993 to utilize the small production from Sharif and Abu Gabra fields to satisfy the local demand in the Far West of the Sudan.
Concorp Refinery
A 10,000 BPD second hand refinery, upgraded and renovated by Concorp Company and installed at Khartoum to utilize a blend of Light Arabian and Sudanese Crude Oil from Block 3d. The refinery is currently shut down.
Lubricants
Various lubricant blending plants exist to blend brands for local consumption and export to neighbouring countries. Base oils are not produced in the Sudan at present.
Other Petrochemical Industries
Except for a small plant for Polypropelene by CNPC, commissioned on 15th. January 2002, there are no petrochemical industries in the Sudan.
Transportation
Crude Oil Pipeline
The above mentioned pipeline was constructed at a cost of 1206 million USD for the length of 1530 km. and a line size of 28 inches. All contracts were awarded between Sept. 97 and end of Dec. 97. In June 99 production was raised from 24000 BOPD, achieved in 1996, to 50000 BOPD to start the line filling process. Throughput then reached an average of 150000 BOPD in August. The first vessel sailed from the Marine Terminal on August 31st.1999. The design was based on three pumping stations for 150,000 BOPD, six stations for 250,000 BOPD and eleven stations for 450,000 BOPD. The slight increase in the operating capacity, over the design capacity, is attributed to the improved flow properties of the crude oil. At present the line operates with five stations for a through-put of 235,000 BOPD. Currently installing the sixth stations for a flow of 300,000 BOPD. Increasing the
89 capacity to 500,000 BOPD awaits the admission of oil from other blocks envisaged by the third quarter 2003.
Products Pipeline
An 8-inch line constructed in 1975 to transport light products from Port Sudan to Khartoum. After the start-up of Khartoum Refinery, the line operates from Al Rawyan, 75 km north of Khartoum. The north-eastern sector from Al Rawyan to Port Sudan is for export of surplus products. The Southern sector from Al Rawyan to Shagara carries products for local consumption. Plans to extend to other major areas of consumption are under consideration.
Road and Rail Transport
Most of the fuel for power stations is transported by rail. Road and Rail transportation represents about 75 % of the requirements for transporting products for local consumption.
MARKETING3
Local Marketing
Pricing
For a long time, the Government subsidised the prices of petroleum products especially Gas oil (Diesel fuel), which is used for agriculture, transportation, power generation and other uses. The subsidy was gradually lifted especially regarding Jet fuel, aviation gas, motor gasoline, kerosene and butane. Most recently, the Government increased the prices of Mogas and Gas oil to international oil price levels. This is considered necessary to balance the dwindling oil prices, curb smuggling of these products across the boarders, and provide for a free market pricing policy.
Marketing Companies
Sudan was previously dominated in the retail and distribution of products by four major companies, Shell, Total, Mobil and Agip. After the increase in oil prices in 1973, the marketing companies failed to provide the necessary imports. The Government, at the time, was forced to obtain crude oil from other countries through bilateral agreements. This led to a 50% participation in TOTAL Distribution Company in 1975.
90 The Government dictated the margins obtainable in the distribution of petroleum products. They were generally low compared to the other countries and inadequate for the renewal of assets or a reasonable return on investment. However, with more products in the free market, the production of crude oil in the Sudan and the start-up of the Khartoum Refinery, more companies have joined in the distribution of products; some local, others foreign.
International Marketing
At the beginning of crude oil export, the Government and the Contractor chose to use an international company for the sale of crude oil. The idea is to use an expert company with known customers in order to find a place in the market for the Nile Blend, the Sudanese crude oil. The company was used for a limited period. Thereafter, Government and the Contractor chose to sell their crude oil themselves. The Nile Blend did find a place in the market assisted by its quality of low sulphur, low salt and low metallic deposits. The Government in the sale of crude oil uses a process of tendering by international bidders. Pre-qualified companies are invited to bid. All dealings are transparent and at arms’ length. Similar tenders are made for surplus products, which are sold off from time to time. The span of tendering initially was about three months. It was later increased to six months and could be increased to one year subject to an evaluation of the benefits accruing to the Government.
The Proceeds6
The sale of crude oil and products is conducted by the Ministry of Energy and Mining, over seen by the Ministry of Finance and the Bank of Sudan. The usual letters of credit apply and the Bank of Sudan receives the proceeds. An audit by International Financial Institutions is readily available and easy to conduct. The figures forecast were published for the year 2000 (2001 figures are not audited). 65 MMSTB were produced giving the Government 31 MMSTB. It generated a gross revenue of about 711 million USD equivalent to 189.5 Billion Sudanese Dinars. 143.8 Billion Sudanese Dinars was the net revenue after deductions for the Refinery, changes in stocks, subsidies and SPC commission. The utilization included repayments to International Institutions, Regional States, developments, agriculture and social subsidies.
91 The production for 2001 was 76.3 MMSTB, but due to lower crude oil prices, the revenue for 2001 and forecast for 2002 are lower than 2000. However, 2003 forecast is expected to be greater than 2000 since the Contractor will have recovered the major expenses accumulated before the start of production. Depending on oil prices, the increase could be from 50% to 60% of the level of 2000.
REFERENCES
1 The Ministry of Energy and Mining: Hydrocarbon Exploration and Production Prospects in Sudan, 2000.
2 The Ministry of Energy and Mining: Hydrocarbon Exploration and Production Prospects in Sudan, 2001.
3 The Ministry of Energy and Mining: Various records, reports, minutes of meetings, maps and logs.
4 The Ministry of Energy and Mining: Model Exploration and Production Sharing Agreement.
5 The Petroleum Resources Act 1998.
6 Ministry of Finance, The Impact of Oil Discovery on the Sudanese Economy, 2001.
92 93 FIGURE 2
SUDAN OIL AND GAS CONCESSION MAP
94
TABLE 1
BLOCKS UNDERCONCESSION AGREEMENTS
SR. BLOCK STATUS COMPANY DATE REMARKS NO. 1 1, 2 & 4 OCCUPIED CNPC, Petronas, Talisman and Sudapet. NOV. 1996 2 3 & 7 OCCUPIED Gulf, CNPC, AL Thani and Sudapet. NOV. 2000 3 5A OCCUPIED Lundin Oil, Petronas, OMV and Sudapet. FEB. 1997 4 5B OCCUPIED Petronas, Lundin Oil, OMV and Sudapet. JAN. 2001 5 6 OCCUPIED CNPC. SEP. 1995 6 8 &12 FREE UNDER PROMOTION JAN. 2002 10 COMPANIES 7 9 OCCUPIED Slavneft and Sudapet. 8 10 & 11 FREE 9 13 & 14 FREE 10 15 FREE UNDER STUDY 11 B OCCUPIED Total. 1980 12 C FREE
95 TABLE 2
WORK PROGRAMME
PAST WORK CURRENT WORK FORECAST( 3 YRS) 2D 3D EXP. DEV. 2D 3D EXP. DEV. 2D 3D EXP. DEV.
BLOCK km sq km WELL WELL km sq km WELL WELL km sq km WELL WELL REMARKS 1 5430 126 10 21 1283 1295 45 95 0 0 5 1 2 5554 128 14 14 3532 360 23 55 0 0 4 1 4 8062 0 4 1 8168 0 17 6 1300 0 13 0 3 & 7 3000 0 3 2 2500 215 2 0 6000 900 12 22 5A 3000 0 1 0 900 300 3 0 1485 180 3 5 5B 2940 0 0 0 2940 0 0 0 1000 0 3 0 6 10317 0 30 0 500 435 10 0 849 815 14 27 8 1576 0 1 0 0 0 0 0 0 0 0 0 PROMOTION 9 2300 0 3 0 0 0 0 0 1700 0 6 0 10 0 0 0 0 0 0 0 0 0 0 0 0 11 0 0 0 0 0 0 0 0 0 0 0 0 12 0 0 0 0 0 0 0 0 0 0 0 0 PROMOTION 13 3400 0 3 0 0 0 0 0 0 0 0 0 14 0 0 0 0 0 0 0 0 0 0 0 0 15 10048 0 9 0 0 0 0 0 0 0 0 0 B 1679 0 0 0 0 0 0 0 0 0 0 0 SUSPENDED C 1277 0 2 0 0 0 0 0 0 0 0 0
96
TABLE 3
RESERVES
CURRENT (DEC 20010 FORECAST ( 3 YEARS )
ORIGINAL OIL RECOVERABLE ORIGINAL OIL RECOVERABLE IN PLACE RESERVES IN PLACE RESERVES BLOCK
MMSTB MMSTB MMSTB MMSTB
1A 1,042.0 318.7 1,226.0 367.5
1B 821.6 184.5 0.0 0.0
2A 543.3 67.9 792.9 110.9
2B 677.4 115.6 738.3 129.0
4 37.7 7.5 61.4 14.6
5A 1,005.0 116.3
6 950.0 366.0
TABLE 4
PRODUCTION
CUMULATIVE FORECAST TO 31 DEC 2001 2002 2003 2004
BLOCK MMSTB MMSTB 1, 2 & 161.746 66.O56 103.949 84.182 4 3 & 7 0.395 5A 0.000 0.000 3.220 12.775 6 0.000
97 TABLE 5 SUAKIN AND BASHAYER RESERVES
Profitability Suakin Bashayer Gas Condensate Red Sand (Gas) Other Sand (Gas) BSCF MMSTB BSCF BSCF 1P 114 1 25.8 41.7 2P 290 32 35.7 54.6 3P 276 19 49 70.8
98 Summary of discussion
1. Normally, the revenues from oil should be transferred to different areas such as social services. In the current agreements there were no revenues stated and the companies that have agreements with the Sudan have not given money to social services. Bonuses are in the agreement; these include social services bonuses. There are two types- the contractor pays the Government and the Government adds that money to that which is spent in the areas of activity. Different contractors have put their own money into promoting social services in the area. For example, Talisman has invested money into social services in blocks 1,3 and 4.
2. Currently, work in Halaib block is suspended and no one can explore or exploit any oil resources in the region. Some understand that Block B is heavily mined. Total, the oil company, have said they can not go in there because of the mines; they asked the government to remove the mines. The government said the French were better placed to do so themselves. Total has suspended their work there on a year by year basis. Work on Hallil block has also been suspended. This block is small and was previously drilled by Chevron. There is a production plan and long term testing – the testing was not previously done properly. Truck then boat then train cumbersomely carried oil. This was a costly way of transporting oil and we need to find more oil which would allow for the construction of a pipeline.
3. The criteria for the location of the refineries are social, economic and political. Refineries are built on the route of the pipeline, near high consumption areas where there is the ability to find labour and support services with political considerations in sight. The point of extraction is not necessarily a place of high consumption, neither is the water at the right temperature and the level of debris is wrong. Therefore, if a refinery were built in such a location it would use an air cooling system not water- cooling. This would prove more expensive to run when humidity is high. Double transportation is not economical. The normal oil share of companies for existing and new concessions is approximately 30%. The Government is willing to increase it, as in block 3 and 7. There are concessions in 3 and 7 with Gulf and Canadian Companies – the negotiating collapsed – then new companies reached agreement. There is a minimum of royalties and taxes. The contractor takes on the work on the basis of risks being taken.
4. Seismic studies precede drilling and provide an analytical determination of the structure of deposits. There are two processes: vibrating machines, then dynamite explosions. The health, safety and environmental regulations are favourable to oil extraction because pumping water into oil deposits, in order to push it to the surface, is not like mining because there is no debris created. The water is pumped into the lines to go for processing. Injection of water if it needs to be injected is accomplished by drilling a well in the strata from rivers or underground water and this would not affect the environment or health of the people nor the flora and fauna.
99 5. The Government of the Sudan provides security at the oil fields during exploration and exploitation The rate of oil production is 66 million standard barrels (MMSTB) in 2000, 76 MMSTB million in 2001, 79 million in 2002 for blocks 1, 2 and 4. These are not significant increases. The price of exported crude Sudanese oil is high when compared to OPEC oil. The Sudanese oil was first analysed for prices in Italy. In comparison to Brent, it realised a price of $1.48 less than Brent when it was $21 per barrel. It is now less than $2 below the price of Brent. The demand and supply forces on the world markets determine the price of Sudanese oil. The quality of the Sudanese oil is good. It is low in sulphur. This makes it very good in the coke industry. It is also low in salt and metallic deposits. Therefore it is perfect for making sulphides. Sudanese oil is popular in Japan, China, Singapore etc. A number of firms are looking at the possibility of exporting Sudanese oil to the American market owing to new US legislation restricting the sulphur content in crude oil. However, for the next 10 years there is little possibility of introducing petrochemical industries in the Sudan because of the investment, technology and size of the market which are required to make it economic, and because crude oil exports have such a high value.
6. The present agreements between GOS and contractors contain targets, as a percentage of the total of employees, for the employment of Sudanese Nationals. Currently, the contractors are required to employ at least 60% Sudanese workforce within 5 years. This is applicable to all jobs including positions in finance, administration and managerial levels. The Human Resources manager should be Sudanese. However, the above ratio would not apply to positions taken by sub- contractors for services.
7. If there were a peace settlement in the Sudan this would allow for the further development of the oil industry in the country. There would also be room for other contractors, especially if they are American. The US has good technology and finances. The American government did not allow Oxidental to come in. Madeline Albright made them pull out at the last minute. Given the small number of strategic investors in the country, there needs to be a change of the nationalities and number of investors in the Sudan because no government would want such a situation to continue.
100 5. The Impact of Oil and Gas Development on the Local and National Economy, Environment and Society in the Sudan b. Paper presented by Dr Peter Adowk Nyaba
EXECUTIVE SUMMARY
The discovery, in late seventies, and development of petroleum deposits in western and northern Upper Nile added another explosive dimension to the already tense relationship between the north and south Sudan. Nimeri’s decisions to relocate the refinery to Kosti received negative response in the Southern Region’s political circles. And the attempts to redraw the political and administrative boundaries of the Southern Region exacerbated the tension leading to the emergence of Anya-Nya II forces in Upper Nile and Bahr el Ghazal. Indeed, the mutiny in Bor in May 1983, which led to the formation of the SPLM/A, only provided a spark for the people of Southern Region ready to go to war against Nimeri’s callousness and double crossing. The SPLM/A and Anya-Nya II forces stopped the oil exploration and development, forcing Chevron to shut down its operations in 1984.
The National Islamic Front (NIF) usurped power in June 1989 in a military coup. In August 1991, a split occurred in the ranks of the SPLM/A providing the NIF with an opportunity to win the alliance and collaboration of the Nasir faction, then in control of the whole of Upper Nile region. This increased the NIF’s prospects for renewing the oil exploration in western Upper Nile. Concorp International belonging to a NIF cadre, Mr. Mohammed Abdullah Jar el Nebi, bought the Chevron concessions at a throw away price, and through it the NIF government was able to mobilise financial resources from Islamic financial institutions. The provision of military hardware for the war must have prompted the Chinese involvement.
The Political Charter (1996) and the Khartoum Peace Agreement (1997) provided a favourable political environment for increased oil exploration and development of the existing fields in Heglig and Unity. The Greater Nile Petroleum Operating Company (GNPOC) comprising the China national Petroleum Corporation (CNPC), Petronas Carigali (the national petroleum company of Malaysia), Sudapet and Canadian Talisman Energy was established. The construction of the Pipe Line and two small and medium scale refineries in El Obied and Jieli (north of Khartoum) began in earnest. Oil export started in August 1999.
101 As soon as the oil and gas development commenced, western Upper Nile witnessed an increase in the military activities and the number of gunship attacks on the Nuer and Dinka settlements in or near Heglig and Unity oil fields. These were part of the government strategy to displace the indigenous Dinka and Nuer inhabitants. This provoked counter attacks on the oil installation by the SPLA and forces opposed to the government and the result is a humanitarian disaster of immense proportions. Horrendous violations of human rights have been documented. These included burning of villages, aerial bombing and extensive use of helicopter gunships against the civil settlements, abduction, and massive displacements.
Evidence exists of the oil companies, notably Talisman and Lundin/IPC having availed their facilities to the government army in its war against the civilians and armed opposition in the oil field. These include the oil roads, airstrips, trucks and helicopters. This makes them privy to the extensive humanitarian disruption and human right abuses. The manner in which the oil and gas development is undertaken suggests that the oil companies have no concern about the short or long term negative environmental impact of their operations.
Sudan now produces 200,000 barrels per day of crude oil. The export of this has enabled to the NIF government to reap US 500 Million dollars annually in revenues. The NIF government is planning or intends to raise the production to 450,000 barrels per day, which will considerably raise the amount of revenues. In such a short time the revenues from oil and gas development have raised the NIF military expenditure, a fact that neatly correlates with the massive human rights abuses in the oil fields area, the increased divisions and internecine fighting among the Nuer factions; and the massive displacement of the civil population not to mention the immense humanitarian disruption.
The NIF leaders have repeatedly stated that they will use the proceeds from the oil sales to increase the tempo and lethality of the war against the SPLA and the ‘conspirators’ [northern political opposition]. The regime has now operational arms and ammunitions factories in Khartoum built with the Chinese technical assistance. The NIF manufactures its own versions of the AK 47 and all types of ammunitions, which are not clearly marked. This is to conceal the origin as most of these arms and ammunitions find their way to other war torn areas in the Great Lakes Region and the Horn. The regime is also manufacturing its own version of the Russian T55 tanks. It has recently ordered the purchase of sophisticated MiG-29s to the tune of 400 Millions US dollars. The purchase is being undertaken by the regime definitely eyeing the proceeds from the sale of oil. This high profile military purchase, which being the case, will deprive urgently needed funds
102 from all the other sectors of the economy. It loudly repudiates the regime’s claims that it uses the oil revenue for the benefit of all the Sudanese.
While, there are definitely no independent sources to verify the allegations, the government data and statistics don’t even demonstrate any evidence that the oil revenue is used for the development of the South. Information from the major towns in the south: Juba, Malakal, and Wau indicate that the regime’s own civil servants spend up to eight months without receiving their remunerations and wages. The level of social services offered in the areas that it takes pride in controlling is despicable. Malakal, for instance the largest town in the area, has no electricity supply, no pipe water, no tarmac roads and no medical doctor [only those medics on national service and the paramedics who run the hospital].
On the contrary it uses the revenues for military build up, which seem to give it an edge over the SPLA in some areas of the war theatre. This semblance of victory hardened the regime’s stance towards the IGAD peace process, making elusive a negotiated peaceful resolution of the conflict. The presence of oil companies like Talisman Energy/ Arakis, Lundini, etc., which are ready to go along with NIF policies give the regime a moral cover for international legitimacy. This has led to the intensification and escalation of the conflict with serious consequences for human rights and the environment. There is nothing to demonstrate the effect and impact of the oil and gas development in western and northeastern Upper Nile on the local economy. If anything the traditional economy of subsistence agriculture, rearing of livestock, fishing, hunting has been completely disrupted and shattered. The war has caused the regime to abdicate from its responsibilities towards the citizens in the oil fields as well as other parts of the south so that dependence of humanitarian assistance provided by the international community has become the prominent feature. The level of social services in the government-controlled areas of south Sudan is despicable.
The strength of the Sudanese Dinar against convertible currencies could be used a measure of strength or impact of the oil and gas revenues on the national economy. However, the indicators are that the economy is not performing well in spite of the windfall from the oil revenues. This could be attributed to war and military expenditure that swallows up almost all these revenues; the foreign debt payment and servicing, which amount to about US $ twenty billions; the endemic corruption in the state, federal institutions linked to the ruling National Congress Party.
103 While, the effects and impact of oil and gas development on the economy may be minimal, it effect and impact on the environment and society are great and destructive both in the short and long term. There has not been an environmental impact assessment of the oil and gas development project. The oil companies, working under security duress, pay little attention to the impact of their exploration operation, drilling and transportation of the crude oil on the environment both land and water. The long-term impact of the present environment deterioration may be irreversible, particularly now that there is no monitoring and the environmental awareness is so low that no one seems to care.
The humanitarian dimension of the oil and gas development in western and northeastern Upper Nile is the most dramatic and traumatic. The local civil population have become victims instead of beneficiaries of the oil and gas development in their own ancestral land. Indeed, the NIF government has utilised the oil and gas development and its revenues to kill, abduct, aerial bomb and burn their villages and displace them from their villages. There are more than five hundred displaced Nuers and Dinka from western Upper Nile now domicile in Bahr el Ghazal as a result of the ‘scorched earth policy’ executed by the NIF government.
Sudan is on the edge of an apocalypse due to a growing uncompromisibility of the positions of the parties to the conflict that paralysed all the peace initiatives and, which has led to the escalation and ferocity of the war. The NIF government, fighting for its own political survival in the face of political opposition in the north, with the connivance of the international oil companies intends to go on with the oil and gas development to enable it finance the war to achieve an edge over the SPLA and political opposition in the north. The people of south Sudan, on the other hand, will not give up their struggle until their inalienable right to self-determination has been granted.
The current rapprochement between the SPLA Nuer commanders led by Taban Deng Gai and Peter Gadet on the one hand and the SPDF commanders under the command of Dr. Riek Machar, which could result in the reunification and integration of forces, may be the saviour of the Sudan. It may force the NIF government to reconsider its peace options.
In conclusion, the negative effects and impact of the oil and gas development in western and northeastern Upper Nile are enormous on all accounts. And these will continue to be negative as long as the war in the country rages. The pressure against oil and gas development needs to be stepped up to force out of the area the oil companies, including
104 the Chinese and the Malaysian, who should be reminded to put morality, human dignity and rights over and above economic considerations.
1. HISTORICAL BACKGROUND
Petroleum exploration and discovery in south Sudan came at a time of high political tension between south and north generated by the general crisis of the May regime and Nimeri’s erratic policies particularly in his terminal years. It will be recalled that the people of southern Sudan harboured a secessionist tendency even prior to the independence of the Sudan in 1956. This tendency surged with every frustration with the regime in Khartoum that paid little attention to southern Sudanese clamour for socio- economic and political inclusion. Nevertheless, the Arab dominated northern political elite pursued a policy that deliberately neglected the socio-economic development of the south. It frustrated through denial of necessary funding the development and exploitation of its vast forestry, high agricultural and animal resource potentials2. The objective was to keep the south poor and economically dependent on the north in order to prevent any moves to secession by the southern elite.
The discovery of petroleum in south Sudan heightened the northern political elite’s suspicion of their counterparts in south Sudan and their commitment to Sudan’s national and territorial unity. The ruling regime, therefore, made strenuous efforts to conceal the real geographic location of the oil fields. The mass media, the government information machinery and Chevron Oil Company in their briefings laid emphasis on a vague location some eight hundred miles south of Khartoum instead of identifying the exact location as western Upper Nile. This heightened the South’s apprehension and unrest.
The naming of the oil fields and Nimeri’s decision to transfer to Kosti (north) the oil refinery initially planned for Bentiu (south) on account that “Kosti was closer to the centre of major industrial and agricultural developmental schemes, whereas Bentiu was in the middle of nowhere (sic)”3, clearly mirrored the northern intentions to deprive the south of its oil. The first oil producing field was named ‘Heglig’ (instead of Wunthau - a Dinka name for heglig), the second field was named ‘Unity’ and other names were now introduced that carried little or no reference to the Southern Region or the ethnic groups particularly the Nuer and Dinka who populate the area. The oil was declared strategic national asset and President Nimeri took charge of exploration and development policies.
2 The Nzara agro-industrial complex-the only operational economic installation in the south, was run down through bad planning, the planned schemes e.g. the Mangalla Sugar, the Melut Sugar, the Tonj Kenaf, the Yei Tobacco and many other projects were either transferred to the north or were completely abandoned.
105 Given the regime’s hostile pronouncements at the time, it was believed that the government had secret plans already afoot either to buy off their land the local Nuer and Dinka population or to forcefully evict them by military means. This was to be the case as experience today can tell. The idea was to pre-empt any future claims to royalties or in the event that there was rebellion in the Southern Region their presence in the oil fields would not constitute a security risk.
In 1980, the government introduced a Bill in the National People’s Assembly (Parliament) in Khartoum to alter the provisional boundaries between the Southern Region and Kordofan and White Nile in the north. The aim was to annex the oil rich areas (Bentiu) and fertile agricultural lands (Renk and parts of Kodok) in Upper Nile to Kordofan and White Nile provinces respectively. There were efforts to create a microcosm of the Sudan in the form of ‘Unity State’ to be curbed off from western Upper Nile [oil producing area], Southern Kordofan and Northern Bahr el Ghazal. This was to bring together in a government instigated and accelerated interaction between the Baggara Arabs [Kordofan], Dinka [Bahr el Ghazal, Kordofan and Upper Nile] and Nuer [Upper Nile] to expedite homogenisation [hybridisation of the racial groups] and hence Sudan’s national unity4.
In Nimeri’s political imagination the project would ward off any attempts to secession by the southern political elite. ‘National Unity’ [‘el wada el watania’] became the Sudan Socialist Union’s ideological catchword with which the regime’s politicians, northerners and southerners alike, hypnotised the people of Southern Region. It will be recalled that, and in order to coerce and curb any recalcitrance in the ranks, only those southern politicians with unity tendency and who preached this ideology were favoured in political appointments. Those who showed defiance and southern nationalism were completely ostracised and imprisoned.
The resentment against Nimeri grew in the south. Even the Southern Regional instruments of government started to tenaciously fight back Nimeri’s moves for altering the borders and transferring the oil refinery to Kosti. For instance, in response to the statement of Dr. Sherif el Tuhami, ‘that Bentiu lies in the middle of nowhere’, Mr. Abel Alier retorted that ‘such a development philosophy would condemn the underdeveloped
3 Dr. Sheriff el Tuhami, then Nimeri’s Minister of Energy and Mining. 4 A Dinka intellectual and writer Mr. Francis Mading Deng ascribes [in most of his writings, particularly “The Dynamics of Identification”] to this project of a marriage of Dinka and the Arabs as a solution to the conflict.
106 areas to perpetual underdevelopment’5 and exploitation (my addition). This was a serious shift in Abel’s initial stance towards the May regime. No wonder that this elicited a series of political confrontations that culminated in Nimeri’s interference in the political and democratic process in the Southern Region.
He confronted the southern political elite head-on, repeatedly dissolved the Regional People’s Assembly (RPA) and the High Executive Council (HEC), and imprisoned the opposition elements in an attempt to prevent the coalescence of any meaningful resistance. Not only that, but in order to further weaken the Southern Region, Nimeri instigated, exacerbated and exploited the internal political contradictions and ethnic cleavages in the South by injecting into the political discourse the idea of re-division of the Southern Region under the guise of administrative decentralisation, which already was under implementation in the north. This eventually led to the establishment of the three regions of Bahr el Ghazal, Equatoria and Upper Nile and final abrogation of the Addis Ababa Agreement6.
By the end of 1979, the political marriage that followed the Addis Ababa Agreement, between Nimeri and the southern political elite started to crack and the cleavages widened and deepened by these political developments. Large sections of the south had lost confidence in Nimeri and the north in general. The economic and deep political crisis in the centre was reflected in stagnation and the general social and political unrest in the south. Mutinies and indiscipline became frequent in the ranks of the Anya-Nya absorbed into the Sudanese Armed Forces. These mutinies started in Akobo (1975), Wau (1976), Juba (1977) and finally in Bor, Pibor, Ayod, Rumbek, Awiel (1983).
Although most of these mutinies centred on or were triggered by administrative grievances in the barracks, they had far-reaching political implications. Many Anya-Nya officers and men were now not satisfied with the manner the government was implementing the provisions of the Addis Ababa Agreement. They, therefore, established units of Anya-Nya II in eastern7, western Upper Nile and northern Bahr el Ghazal. By 1980/81, elements of the Anya-Nya II were already engaging the Sudanese Army in combat in direct opposition to Nimeri’s policies. All indications were that South Sudan was returning to war and the spark was only to be provided by the mutiny in Bor on May
5 Peter Nyot Kok. “The Ties that will not bind: Conflict and racial Cleavage in the Sudan”. In P. Anyang’ Nyongo (editor) Arms and Daggers in the Heart of Africa: Studies on Internal Conflicts. African Academy of Sciences (AAS) 1993, pp. 33-66 6 The Presidential Decree No. 1 of June 1st, 1983. 7 Bilpam, which later became the SPLM/A General H/Qs, was established in western Ethiopia by the remnants of the Akobo rebellion 1975.
107 16th 1983, feeding into the formation of the Sudan People’s Liberation Movement and Sudan People’s Liberation Army (SPLM/SPLA) and the beginning of the present war.
It must be mentioned that although the formation of the SPLM/SPLA had wider political and ideological overtones, the response to its call to arms was in response to local grievances in the south. This is underpinned by the lack of consensus on the political and ideological direction of the SPLM/SPLA, which were to lead to serious internal convulsions and splits the NIF regime exploited8. The formation of the Anya-Nya II in western Upper Nile was to prevent the oil being pumped to the north particularly in the wake of Nimeri’s decision to relocate the refinery to Kosti. The attack on Rub Kona – Chevron’s field H/Qs - on February 4th, 19849 was carried out by the local units of Anya- Nya II and not by SPLA, which lends credence to the fact that decision on oil and gas development was a factor in the present conflict. The intensification of the war and its escalation into all parts of south Sudan brought a complete halt to all petroleum exploration and development. Nimeri was subsequently overthrown in April 1985 and a complete withdrawal of Chevron and all the oil companies from the Sudan.
In June 1989, the National Islamic Front (NIF) usurped the state power in a military coup against a background of escalating war in south Sudan, Nuba Mountain and Southern Blue Nile. The SPLA sustained a military advantage over the Sudanese Army, whose garrisons now fell to the SPLA one after another. Some even fell to the SPLA without shooting a bullet. The Army morale was at it’s lowest and garrisons like Torit, Nimuli and Kajo-Keji withdrew into Uganda. Sadig el Mahdi, the elected Prime Minister, unable to make decision on peace and war, led a politically bankrupt and weak coalition government of ‘national unity’, which involved all the political forces except the NIF, but completely incapacitated by corruption and political bickering among the coalition members.
The NIF assumed power on an Arab and Islamic agenda of ‘el twaja el hadhariya’ [civilisation project]. It therefore embarked on far reaching social, economic, cultural and religious transformation of the country in the image of its civilisation project. On the political front it vowed to defeat the SPLA and return to its sovereignty all the garrisons captured by the SPLA and to protect the territorial unity and integrity of the Sudan. On the economic front the regime raised the slogan of self-reliance, “ We eat what we plant
8 Nyaba, P. A. “The Politics of Liberation in South Sudan: An Insider’s View.” 2nd edition, Fountain Publishers, Kampala, 2000, pp 51 9 It was this attack in which a number of foreign oil workers were killed that prompted the Chevron Oil Company to close down its operations in western Upper Nile.
108 and wear what we weave” and embarked on revitalising the Gezira and agricultural schemes in northern province. In all its ambitious plans, the NIF must have been eyeing the existence of huge petroleum deposits in western Upper Nile with the view of developing them for the realisation of their political strategy.
In August 1991 the SPLM/A split following the failed coup against the leadership of Dr. John Garang de Mabior. The NIF regime immediately exploited the split winning the alliance of and forging some working relations with the Nasir faction leaders. It was this strategic collaboration with the Nasir faction that enabled the NIF strategists to build the consortium that finally put together the plan for developing and exploiting the petroleum deposits in western and northern Upper Nile. It mobilised financial resources from Islamic and Arab financial houses that eventually enabled a hitherto unknown Sudanese company10 to buy off the Chevron concessions in western Upper Nile.
Riek Machar’s South Sudan Independence Movement/Army (SSIM/A) controlled the oil fields and with its tacit collaboration, especially after the signing of the Political Charter (1996) and the Khartoum Agreement (1997), the NIF immediately embarked on a process that expedited the building of the Pipe Line and the pumping the oil to the Red Sea Port of Beshair [map 1]. Indeed the first consignment of Sudanese oil was flagged off by President Omer Hassan el Beshir and Dr. Abdullah Hassan el Turabi, then the Speaker of the National Assembly, on August 31st 1999 to the chagrin of many south Sudanese, including Riek Machar who was sitting as Assistant President of the Republic in Khartoum. It is worth mentioning that in the ceremony Dr. Turabi, then still the political mentor, declared that ‘the proceeds will be used to buy armaments for prosecuting the war against the SPLA and the conspirators [northern opposition]’11.
Assured of oil revenues, the NIF embarked on revitalisation of the military machine as a means of protecting further oil exploration and development of the oil fields. It is no wonder that the military budget doubled in a mater of two years. It increased from US $ 162 million (1998) to US $ 327 million (2000) and now (2001) it stand at US $ 596 million12. This amount, assuming that all other variables remain the same, will continue to rise with the escalation of the war and the increase in the daily production to half a million barrels per day as has been projected.
10 Mohammed Abdullah Jar el Nebbi’s company called Concorp International amassed billions of dollar from Saudi Arabia, Malaysia and from Islamic organisations like the ‘Dawa el Islamiya’ for which he worked in Kampala, Uganda. 11 Jezera Satellite Channel monitored by the Author in Nairobi. 12 IMF source quoted in Georgette Gagnon and John Ryle “Report of an Investigation into the Oil and gas development, Conflict and Displacement in Western Upper Nile, Sudan.” October 2001
109
The intervening period [1997 – 2000], which witnessed an upsurge in the development o the oil fields was, therefore, characterised by increased Sudanese Army activities in western Upper Nile resulting in their occupation of Mankein, Mayom, Ler and Adok, hitherto controlled clearing enough territory for oil exploration; the deepening of the rift and heavy internecine fighting between Riek Machar and Paulino Matip culminating in murder in cold blood by Matip’s men of Riek Machar’s three state ministers in Bentiu13. The humanitarian disruption in western Upper Nile resulting from these military operations led to unprecedented massive displacement of the Nuer civilian population into Twic, Tonj, Yirol and Rumbek counties of Bahr el Ghazal14.
As a result of and in anger to these atrocities against his people, Riek Machar resigned his position with the NIF government in December 1999, stormed out of the presidential mansion in Khartoum and return to command his forces in the bush.
Box 1. In February 1992, GoS began planning for oil exploitation, and military offensives caused the death of 35 people (mostly civilians), the theft of about 500 cows, some tukuls burnt and people forced out. In November 1992 and until April 1993, the GoS and Arab Murahileen, allied to it conducted a 5-month offensive with looting, burning, abduction. In all, 57 hamlets were burned. A new offensive began in December 1993, when 26 people were killed in hamlets near to Heglig [Panlok, Kwok, Nhorial, Panagwit]; it was after this that the area around Heglig was more or less deserted except for GoS forces. The Dinka village of Athonj was renamed El Toor, and the GoS deployed troops in Maper, renaming it Munga. In October 1996, the GoS and its allies launched a further offensive, displacing many thousand of people, some into the ‘peace camps’ in Pariang and Athonj, where coping mechanisms were limited because cattle were stolen and seeds lost. 15
The resignation of Riek Machar in 1999, followed a year later by that of Taban Deng Gai led to the collapse of the Khartoum Peace Agreement and created a condition favourable for a rapprochement with the SPLM/A and the reunification of the southern front. The internecine fighting among the Nuer factions has already ceased bringing respite to the
13 This came against a background of Riek refusal to appoint as governor of Unity State. Paulino Matip, offered a bogus title of Major General by the NIF regime. 14 The Wunlit Nuer-Dinka Peace Covenant (1999) made it possible, for the first time since the split within the SPLM/A in 1991, for the Nuers to move to Dinka areas. 15 ‘Human Security in Sudan: The Report of a Canadian Assessment Mission’ – John Harker – for the Ministry of Foreign Affairs, Ottawa, January 2000, pp 10
110 civil population, although the high altitude Antonov bombardments and helicopter gunships are still a menace.
2. THE PETROLEUM DEVELOPMENT – MORE POLITICS THAN ECONOMICS: AN INTRODUCTION
‘Thick-skin and Thin-skin detachment faults in continental Sudanese rift basins’. 16
What has been said of the conflict potential of natural resources finds expression in the development of the oil and gas deposits in the Sudan. It is both a cause and catalyst of the long running war, the humanitarian disruption, environmental deterioration and the escalation of the conflict and internecine fighting that have engulfed the Nuer sections and clans of western Upper Nile, and the heightening of conflict between the nomadic Arab tribes of southern Dar Fur and Kordofan on the one hand and the Dinka and Nuer on the other hand.
The subtitle above is a ‘geology metaphor’ of the cynicism that surrounds the oil and gas development in the Sudan. The political/social forces that are generating the humanitarian disaster in western Upper Nile today correspond and seem to be reworking the geological processes that led to the formation twenty five million years ago [from its previous lacustrine micro-organic life] of the huge petroleum deposits.
While the ‘detachment faults’ that trap the petroleum are buried thousands of feet below, their surface manifestation is a series of political fault-lines between the Arab dominated northern political elite supported by the multinational oil companies [thick-skin] and the political elite [thin-skin] in south Sudan. The clash between the two borders on ‘ethnic and religious cleansing’ of the Dinka and the Nuer people in western Upper Nile and northern Bahr el Ghazal. These people now carry the brunt of this brutal war.
2.1. The oil fields, refineries and pipeline
The location (map 1) shows the main oil producing fields. In western Upper Nile, [Bentiu- Unity (Block 1), Heglig (Block 2) and Block 5A] are to be found. In northern Upper Nile [Adar-Yale (Block 3)] and Abu Gabra (Block 6) are located. There are four refineries which process the Sudanese oil for domestic and external markets. Among them there are small to medium scale oil refineries: Port Sudan with a capacity of 21, 700
16 Adopted from an article written by D. Craig Mann.
111 barrels per day, El Obied with a capacity of 10,000 barrels per day, el Gieli, which is 35 KM north of Khartoum with a capacity of 50,000 barrels per day and Abu Gabra with a capacity of 10,000 barrels per day. However, the bulk of the crude oil is pipelined and exported through the terminal at Bashier near Port Sudan.
2.2. The international companies involved in oil and gas development
The major oil companies involved in the development and exploitation either singularly or in a consortium including the construction and ownership of the pipe line17 and the refineries are: Agip (Italy), China National Petroleum Corporation (CNPC – China); Elf- Aquitaine (France), Gulf Petroleum Corporation (GPC), Lundin Oil/IPC (Sweden), Mobil, National Iranian Gas Company (NIGC-Iran), OMV-AG (Austria), Petronas (Malaysia) Royal Dutch Shell (Netherlands), Talisman Energy (Canada) and TotalFina (France & Belgium). The NIF regime uses the large number of oil companies to offset the negative impact of the high risk of the operation and the political fallouts resulting from its excessive violations of human rights, humanitarian disruption and displacement of the indigenous people. This has given the regime more space for political engineering and diplomatic leverage.
2.3. The internal and external dimensions of the oil and gas development.
The development of the Sudanese oil and its exportation has given the NIF government enough international manoeuvrability. It won an observer status with the OPEC. The regime now reaps revenues from the sale of oil and, although a large portion of these revenues goes into debts repayment, nevertheless, this has transformed the character of the present conflict into a resource war. The economy is now a war economy dominated more by political and military expediency than economic and market considerations. It has become a zero sum conflict and whomever controls and exploits this strategic resource may determine the final out come of the war, whether diplomatically or militarily.
The Dinka and Nuers and indeed south Sudanese can win only by submission, abandonment of their rights to the oil and sacrificing their dignity as a free people. And the NIF regime and by extension the Arab dominated northern political elite can relinquish their ambitions only under threat of military defeat by the SPLA or the
17 The Pipe Line owned by a joint operating company The Greater Nile Oil Project (GNOP) was established by an agreement (1996) according to the following proportion: CNPC 40%, Petronas 30%, Arakis 25% and Sudan National Petroleum Company 5%.
112 intervention of a super power like the USA in the context of the current war against terrorism to which the regime has been privy for a long time.
The NIF regime prosecutes the war in total disregard of the norms of international humanitarian law, international human rights law and international law of war. The Harker Mission Report (2000) and other subsequent reports18 and news footages concur that oil and gas development exacerbated the war south Sudan, Nuba Mountains and Southern Blue Nile and more particularly with intensity in western and northern Upper Nile and northern Bahr el Ghazal. And this correlates with the extensive human rights abuses, abduction, forced displacement of the Dinka and the Nuer from their ancestral lands, etc., and settlement of the Baggara Arab tribes people in their place [plates 2: a, b, c & d].
The oil revenues received by the NIF government translate into increased military expenditure, which correlates also with endemic splinterism among the Nuer military commanders in western Upper Nile which has unprecedented humanitarian and security consequences for the civil population in the oil fields area. The regime supports Major General Paulino Matip Nhial against both the SPLA and the SPDF of Riek Machar, and has used him largely to displace the Nuer civil population in Jagei, Lek and Dok areas (see map 2 & 3) in order to create space for the oil companies, particularly the Lundin/IPC in Block 5A, to conduct their exploration activities. In 1998, the forces of Paulino Matip commanded by Cdr. Peter Gadet razed Ler to the ground and with his assistance helped the GoS to establish a garrison therein, making it easy for Lundin/IPC to start their geophysical exploration and drilling operations.
The NIF regime now dazzles the oil and tries to entice the neighbouring countries to buy cheap Sudanese oil as a means to improve its image and break itself out of diplomatic isolation19. Because of the oil politics, it has considerably improved its relationship with both Ethiopia and Eritrea, although the two nations are at each other’s throat with perhaps NIF’s instigation and duplicity. The tension between the regime and Uganda has thawed and, the two countries have now exchanged diplomatic representation after almost seven years of diplomatic cold. Some European governments, particularly members of the IGAD Partners Forum, with stakes in the oil companies have now changed their position vis a vis the NIF regime and are favouring constructive engagement with the regime. This
18 Peter Verney “Raising the Stakes: Oil and Conflict in Sudan.” A Sudan Update Report. December 1999; Christian Aid “The Scorched Earth: Oil and War in Sudan.” March 2001. Human Rights Watch and other reports. 19 Eritrea, Ethiopia, South Africa and Uganda were the targets of this NIF government ‘oil diplomacy’ offensive
113 has hardened the regime's stance towards the IGAD Peace Process, rendering elusive the attempts at a negotiated peaceful resolution of the conflict.
However, there is a growing international campaign against the development and exploitation of the oil deposits while the war is raging. The human rights violations and the displacement of the civil population has been attributed to the oil and gas development and exploitation. Pax Christi (Netherlands), Sudanese Bishops Conference and other groups in Europe, Canada and USA have launched campaigns against the Talisman and other international oil companies exploiting the petroleum deposits in Bentiu and Adar oil fields. In fact a court case has been opened against Talisman in The Hag, Netherlands, for abetting in humanitarian disruption and human rights violations and abuses in western Upper Nile. The US Administration (Clinton) introduced a bill that would prevent Talisman and the oil companies involved in the Sudan from raising money on the US financial markets. These measures were in recognition of the negative impact on the humanitarian situation in the oil fields.
2.4. This paper
This paper was prepared for presentation at the ARI/RFI’s third consultation on the Sudan Peace programme. It hopes to address the following matters associated with oil discovery, exploration, exploitation and exportation. The humanitarian concerns related to oil and gas sector development around the oil fields; Whether or not the local people leaving near the wells have gained in terms of employment opportunities, incomes, quality of housing, roads, etc.; Whether or not there is discernible negative impact on the environment as a consequence of oil production; Whether or not there are local jobs created in drilling, pipe line construction, processing, distribution and export; Whether or not the oil and gas production has affected national and local distribution of income in the Sudan; and Has the oil surpluses been used in national and local development? The situation surrounding the development of the oil fields in south Sudan is very complex. Coming in the context of the long-running and cruel war, whose parameters are defined by racial and religious factors, the development of the petroleum deposits is likely to distort its economic potentialities for the country. It is likely also to widen the gap between the parties to the conflict because only one side benefits from this development. This will make it almost impossible for peace making and building.
114
Indeed, given the fact that it costs the NIF government almost US dollars three million per day to prosecute the war, oil is the only strategic product that can source this war and it is unlikely its revenues could be used to develop the local people whom the NIF government chased away from their ancestral land, and has embarked on a programme of resettling the Arab tribesmen – the Baggara in order to give the oil companies a free and secured environment for their operations. The development of the petroleum deposits in south Sudan, therefore, has transformed the conflict into a resource war similar to the diamond wars in Angola and Sierra Leone, which renders peaceful resolution more complicated.
3. EFFECTS AND IMPACT OF OIL AND GAS DEVELOPMENT
The oil and gas development and the operations of the oil companies in western and northeastern Upper Nile is shrouded in impenetrable secrecy. Neither the NIF government nor the international oil companies involved are transparent about their operations. No independent reporters and researchers are allowed into the oil fields and the information filtering out is carefully tailored in order to keep the world ignorant of the immense human suffering, forced displacement of the indigenous Dinka and Nuer people from their ancestral land, the deliberate policy of resettling nomadic Arab tribes in the oil fields area, and the immense environmental degradation resulting from oil exploration and exploitation and military/combat activities.
Elsewhere in the world, the discovery, development and exploitation of petroleum resources would be a blessing to the country. The revenues and royalties accruing would definitely be pumped into socio-economic transformation and development. In the Sudan, and on the contrary, it is proving a curse not only for the Dinka and Nuer people in whose ancestral lands it has been discovered, but also for the black people of south Sudan, Nuba mountains and the Funj. Mr. Abel Alier, the former President of the High Executive Council of the Southern Region and vice president of the Republic, is said to have once quipped “do you have an army to fight”, when asked about the future of oil development in view of Nimeri’s political machinations.20 The fate of the Nuer and Dinka in the oil fields resembles that of the Ogoni people in Nigeria because their government (NIF) and the international oil companies have conspired to disregard their human rights.
20 Mr. Benjamin Warille, former editor of The Nile Mirror, in a personal communication in 1984.
115 The oil and gas development in western and eastern Upper Nile has devastating effects on the lives of the indigenous people, their way of life and their environment. We summarise these as follows:
3.1. Humanitarian disaster resulting from the war
If they had an opportunity to make a preference between oil and gas development [the manner it is being undertaken] and their homeland, the choice of the Ruweng Dinka and the western Nuers will be more than obvious. Living for decades on the fringes of the Sudanese state, the discovery of oil in their ancestral land pushed the Nuers and Dinka to the status of non-citizen and brought them immense suffering of unprecedented proportion. Their villages have been bombed from the air and razed to the ground, their livestock stolen, their women and children abducted into slavery and many people killed in what repeatedly has been described by Human Rights observers and other humanitarian agencies as ‘scorched earth policy’.
Box 2 ‘As one flies along the new oil road, the only sign of life are the lorries travelling at high speed back and forth to the oilfield. Small military garrisons are clearly visible every five kilometre. The bulk of the population that once lived in villages along the road and within walking distance of OLS airstrip are now nearly beyond reach.’21[Plate 3c]
The NIF policy, which borders on ‘ethnic and religious cleansing’ leaves the survivors with only one choice and that is to flee their homes for their lives. Hundreds of thousands now live in internally displaced peoples (IDPs) camps in either Bahr el Ghazal [Twic, Tonj, Rumbek and Yirol counties]22 or in northern Sudan. This has been corroborated with the evidence provided in the reports of Mr. Leonardo Franco, the former UN Special Rapporteur on the Human Rights situation in the Sudan.
The humanitarian disruption resulting from development of oil fields and the NIF government policy of keeping the Nuers and Dinka people out of the area can’t be over emphasised. Plate [3a] illustrates the displacement of the indigenous people from Heglig, Unity and Block 5A to give way to oil fields development. The NIF government considers as security risks, and hence unwanted people, the Nuers and Dinka civil
21 An Aid Worker quoted in the Christian Aid report 2001. 22 An assessment of needs conducted by OLS and New Sudan Council of Churches between January 26th and February 12th 2001 in Tonj, Rumbek and Yirol put the number of displaced at 46,488. This number has long increased due to heightened tension between the forces of Peter Par and Peter Gadet, which resulted in the burning of Nyal Relief Centre in March 2001.
116 population. This forced displacement from their homes has become a policy priority for the government to serve military strategy of denying SPLA access to their area. The humanitarian disruption and the concomitant lost of the people’s traditional livelihood [cattle, fishing and subsistence agriculture] result from the following: -
The military operations by the NIF ground forces and the militias including the Arab Murahalieen who conduct the burning of villages, disperse the people who survive, and steal the livestock; The Sudan Air Force use of high altitude Antonov bombers, the helicopter gunship to which the people have no defences; The denial by the NIF government of relief and humanitarian intervention, through relief flight bans, exacerbates the situation leading to large numbers of deaths from hunger and disease; Fishing, a centuries old practice of the Nilotic people, in the Nile, its tributaries and surrounding swamps is restricted due to security considerations imposed by the government army. The Nuers and Dinka are denied access to the enormous fish potential and hence the source of nutrition. It is only the army and the militias who have taken over the fish industry; and There are about 53,000 displaced people living in Bentiu (35,000) and Rub Kona (17,000), who have been reduced to depending entirely on the WFP food rations because they have no other source of livelihood. This has serious effect on the human and personal dignity of these people. The NIF government is using their dire predicament for Islamic proselytisation.
3.2. The impact on the environment.
International criteria for large-scale constructions and development projects, particularly oil drilling and pipeline construction demand that an environment impact analysis [EIA] is conducted prior the implementation. The environment and its protection against deterioration and contamination is the least of the NIF regime’s priorities. As a result the development of the oil fields in Heglig, Unity, Block 5A and Adar Yale in northeastern Upper Nile have proceeded without any environmental studies being carried out. The major environment concerns arising from the development of oil fields and which are likely to have both short and long term impact stem from the following: -
Oil spills and explosions resulting from military actions. A break in the pipe due to deliberate SPLA attack poses two serious hazards to the environment. The
117 pollution of the earth due to oil spillage and burning gas that could be ignited by gas explosions;
Destruction and loss of wildlife habitat due to intensive movement of heavy petroleum exploration and drilling machinery. Spillage on land and in the water channels e.g. the Nile and its tributaries, as a result of busting of the pipeline or breakdown of truck-tankers transporting the crude to the collection points, constitute a big environmental hazard, particularly to aquatic and the fishery resources. Oil forms layers on the water surface that prevents aeration leading to suffocation and death of the fish and such aquatic life like hippos and crocodiles; The Sudan crude oil is waxy and laced with heavy metals, which on vaporisation become toxic for humans and wildlife. According to an ecologist with the Chinese National Petroleum Corporation, “they simply pump water in the oil well23 and pump out the mixture, which is transported a distance of 160 km to the oil collection terminal. The water is separated from the oil and pumped into evaporation ponds.”
Security concerns of the NIF regime, and lack of transparency on the part of the consortium of the oil companies eclipse the social and environmental impact of the oil and gas development and makes it utterly impossible to gain public knowledge, awareness and hence action against any environmental deterioration.
Security Forces Torture Journalist – Mohammed Abdel –Sid, the correspondent for Asharq al Awsat Newspaper was detained in Khartoum in mid-April 1999 and tortured by security forces and taken to Kober hospital in Khartoum.24
3.3. The local people have not benefited from the oil and gas development
The roots of the Sudanese conflict run deep into its history. Driven by a sense of racial superiority the Arab rulers of the Sudan have never considered as their equals the black
23 A more desirable process of forcing oil out of the ground would be to pump air or utilise gas pressure. The result of what this operation will be to reduce the well productivity because pumping water in and out and the subsequent separation is an expensive operation. 24 Asharq el Awsat/Reuters 4 May 1999 quoted in Peter Verney “Raising the Stakes: Oil and Conflict in Sudan”.
118 Africans, who populate south, central and western Sudan. Gleaned from its ideology and policy practices, it is obvious the present NIF regime is executing some policy statements, as the one below, made during the first war by the Arab zealots whose main aim was land without the African people in south Sudan.
“…be merciless, kill these black slaves and burn their tukuls and chase them into the bushes and swamps… we don’t need them, what we want is their land and its resources…25
Thus, the development of the petroleum resources is being undertaken without the slightest consideration for the human rights, dignity of the local people and their environment. The deliberate displacement of the Nuers and Dinka from the oil fields and the subsequent resettlement of the nomadic Arab tribes in their ancestral is a fulfilment of this strategy and blends with the NIF regime’s civilisation project of arabisation of the Sudan.
The development of the petroleum resources brought no visible benefits, whether in form of social services or local employment opportunities in the drilling or pipeline construction, to the local Dinka and Nuer population in the oil fields. First, these are high technology jobs, which require a certain degree of literacy and technical expertise. The area and its people have been deprived of education services for a long time and, therefore, are automatically deprived of these job opportunities. The area can’t provide people qualified with such skills needed for the industry. Because of the policy of exclusion, none of the citizens of the area benefited from the thousands of scholarships and training opportunities offered by Chevron Oil Company in the late seventies or early eighties.
Secondly, the regime considers the oil and gas industry strategic and since south Sudanese are suspected of sympathy with SPLA, they are therefore considered security threats and are not allowed into the oil area. This explains the ‘scorched earth policy’ the NIF regime executes, which has resulted in the massive humanitarian disruption in the area. The local people instead of benefiting from the natural resources are either killed, driven away or abducted on sight and their villages are burnt down.
25 Hassan Bashir Nasr, the Minister of Defence [1958 – 1964] flagging off troops going to fight the southern rebel army in 1962 quoted in P. A. Nyaba (2000) The Politics of Liberation in South Sudan: An Insider’s View. Fountain Publishers, Kampala. That coincided with the worst atrocities committed by the Sudanese army against the civil population in south Sudan. Hundreds of thousand fled into the bush and the neighbouring countries of Uganda and Congo.
119 In 1999, the UN Special Rapporteur accused the Khartoum government of creating a 60 km security zone around the oil fields and reported that half the population of Ruweng was displaced. The regime did not change this policy. Instead it has intensified its atrocities provoking defection back to the SPLA the Nuer commanders who allied to it following the Khartoum Agreement in 1997.
It is, therefore, very unlikely that the government would be interested in serving these people. In August 2000, the NIF government announced that it has allocated approximately US dollars 3 million for development of the South. This, apart from being chicken fat, was just hot air. The NIF government has not committed any meaningful sums of money, whether development, services or chapter I (salaries etc.) to any of its states in the South. It explains why civil servants spend sometimes up to eight months without receiving their salaries.
“…we don’t get our salaries. Sometimes we spend up to eight months without receiving our salaries. In fact we work only for food, because what we do is to go to the Jellaba and borrow durah, salt, etc., and when the money is brought he goes to receive your salary… You don’t see the money…the condition of the people is pathetic… You can’t imagine that there is no pipe water in Malakal… our women have to fetch water from the Nile…”26
Therefore, the only local people [persons] benefiting from the oil revenues are the militia commanders [both Murahalieen and Nuer militia]. According to Mr. Taban Deng Gai, the NIF government earmarked US dollars 10 million for the militias for the 2000/2001 dry season offensive. ‘A single militia person in operations is being paid LS 50,000 pocket money. He is given food, a rifle and ammunition. He does not have to return the rifle when he returns from any raid. If his camel or horse is killed he is compensated LS 700,000.’27 The Arab tribesmen's' enthusiasm in the forceful displacement of the Nuer and Dinka strikes a chord with their competition for water and pastures in the area.
The NIF government’s record of what it calls development is despicable. The so-called ‘Unity State’ has a population of about two million. There are only three primary and one secondary schools [Bentiu, Rub Kona and Pariang]. There are only three health centres and a modernised hospital in Heglig but which is not accessible to the local population. There are three ‘recreation centres’ in Bentiu, Mayom and Pariang. In 1999, IPC
26 A relief worker who had come out of Malakal to work with the Fashoda relief and Rehabilitation Association of the SPLM/A-United, interviewed by the Author in Lokichoggio, Northern Kenya on 16 September 2001 27 Christian Aid “The Scorched earth: Oil and war in Sudan.” March 2001.
120 announced it was initiating a ‘community development project’ in the area [Block 5A]. It has not implemented its pledge provoked perhaps by the abject poverty in the area. This may be in line with the government policy of pauperisation and impoverishment of the local population to expedite their migration away from the area.
Trade in the area is the monopoly of the northern merchants who operate in close alliance and collaboration with the army. The local traders are unable to compete because the successful ones are intimidated into relinquishing their businesses or are lynched. Further, the militia groups render trade and commerce in local produce: charcoal, firewood, fish, livestock products etc., impossible due to excessive taxation levied by the militias. As a result the local population, displaced or not, have been reduced to complete dependence on food rations provided by the WFP.
3.4. The NIF regime uses the oil money to fuel the war
The NIF regime’s approach to the present conflict is driven by military victory over the SPLA and the northern political opposition it has categorised as ‘elements of evil and betrayal’28 in order to impose the dominant Islamic and Arabic culture on the defeated black Africans, which they euphemistically expressed as ‘bringing the south to light’ through Islamic proselytisation, assimilation and abandonment of southern cultures, languages and religions.29
The evidence, gathered by independent researchers and the reports of the UN Special Rapporteur on Human Rights in the Sudan including the Harker Report, suggest that oil and gas development fuels the war. Apart from the fact the Sudan Army uses the oil roads and helicopters in its war efforts against the civil population of western and eastern Upper Nile, the NIF government has pumped the oil revenues into the war machinery. This is reflected in the sophistication and variety of its arsenals. It has also changed its methods of prosecuting the war. It has virtually stopped the forceful conscription of the students and idlers. Ironically, because the regime has run down all the others sectors of the economy, the army, benefiting from the oil revenues, has become the only employer. The army now pays handsome and attractive remunerations. The Sudanese children have thus been spared the risk of forceful conscription into the army and the war.
28 President Basher’s 46th independence anniversary speech delivered on December 31st 2001. 29 Human Rights Watch/Africa “Behind the Red Line: Political Repression in Sudan.” May 1996
121 The NIF government manufactures arms and ammunition with the Chinese financial and technical assistance. It manufactures bombs and missiles, which are dropped on civil targets in south Sudan, the Nuba Mountains and Southern Blue Nile from high altitude Antonov planes. This correlates with information gathered from the battlefronts in which SPLA recovered pieces of AK 47 and ammunition boxes, which bear no clear markings or indication of their origin.30 The NIF government is said to have started manufacturing a modified version of T55 tanks and armed personnel carriers (APCs), and that it is manufacturing chemical and biological weapons will have to be confirmed.
Box 4 “… Oil revenues are paying for more than just weapons. Since oil revenues started coming in the government has hiked the pay and improved the benefits of the forces fighting for it – regular troops and militias alike. In the financial year 2000/2001, salaries of civil servants were raised by 15% because of oil-but army salaries by 80%. Because of oil, there are also better services. Officers now have cars. In the oil fields, you have a car for a captain up. If you are operational, your family is well treated....Two or three years ago, young men were reluctant to go to the army, but now people are going back to the army because of good services and salaries…”31
All these wouldn’t have been possible without the oil and gas development in the Sudan. The country now exports 220, 000 barrels of crude oil per day and this volume is likely to increase to half a million in the next two years. This is dictated by the need to pay for the war and debt repayment. Sudan refines and manufactures aviation fuel, diesel and other products, which go into lubricating the war machine. This has considerable reduced the governments dependence on imported oil products, which was an impediment in the past to its prosecution of the war.
The regime definitely has gained some military advantage enabling it over the last two years to frustrate the SPLA offensives in northern Bahr el Ghazal, the Nuba Mountains and Southern Blue Nile. It recaptured Maban and outlaying areas in 2001 clearing the way for the development of the oil fields in Adar Yale. It also recaptured Raga and Deim Zubier making it difficult for the SPLA to penetrate into Dar Fur. The oil revenues, therefore, have given the NIF government the capacity to sustain the war and, to turn the tables on the SPLA. It therefore fuels the war.
30 The ammunition boxes or the AK47 are not marked as required by the international law of war. This is to camouflage the NIF role in destabilisation of its neighbours. These arms and ammunition are used by the rebel groups in Uganda, Ethiopia and Congo whom the NIF regime support. 31 Taban Deng Gai interviewed by Christian Aid March 2001.
122
3.5. Oil revenues and the peace process
The financial windfall the NIF regime receives from the oil revenues is more of a war that peace incentive. The prospect of Sudan becoming an oil producing and exporting country has complicated the fledgling IGAD peace process brokered by the regional body. The regime is over confident of winning the war against the SPLA in the south and northern opposition in the east. As such it does not attach importance to the IGAD peace agenda preferring instead the Libyan – Egyptian Initiative (LEI), which denies the people of south Sudan their inalienable right to self-determination.
In an unfortunate turn of events, some European member governments of the IGAD Partners Forum (IPF) seem to have recognised the economic potency of the regime, and consequently have changed their stance towards the NIF regime and the quest for peace in the Sudan. Some have used as a pretext the divisions within the liberation movement in the south and lack of clarity could have been a catalyst. The reality is that economic considerations have tended to influence this change and this has given the regime false self-confidence so that it dropped the peace agenda.
On the other hand the marginalisation of the local people and their deprivation from the benefit of the oil revenues have triggered a train of events that is facilitating the rapprochement between the SPLM/A and the SPDF. This is likely to lead to the merger of the two movements as a means of invigorating the liberation struggle to counter the NIF regime’s illegitimate exploitation of the oil resources.
The reconciliation and unity in south Sudan is the only hope that will expedite and put on track the IGAD peace process. This is because the south can now negotiate peace or fight the war as a united front. Unity of the SPLA and the SPDF will make a formidable force, which the NIF regime can’t take lightly either on the negotiation table or in the battlefield.
123 4. THE OIL REVENUES AND THE ECONOMY [LOCAL AND NATIONAL]
Since the flagging of the first shipment of the Sudanese oil in August 1999, the NIF regime started to reap more than US dollars 500 million in a year in oil revenues alone. Although, the foreign debt repayment and the war costs runs at US 3 million dollars per day chew up a large portion of this revenue [Box 5], nevertheless, this amount could considerably improve the NIF government performance in the domain of self-reliance in some sectors. Not only that but the export of oil has also boosted the morale of the citizens by giving them hope that things will continue to improve.
Box 5 The estimated revenues for the year 2002 amounted to 486.2 billion dinars while public expenditure was projected at 599 billion dinars showing a 20% deficit of 112.8 billion dinars, according to the Minister of Finance and National Economy. Presenting the 2002 national budget before the National Assembly (Parliament Wednesday [November 21st, 2001], Abdel Rahim Hamdi said the budget aimed at raising the Gross Domestic product (GDP) by 15%, which would constitute the highest rate in the history of the Sudan. Public expenditure would be financed through domestic resources (89.5), foreign loans and grants (3.8%), borrowing from the banking system (4.2%) and external borrowing (2.5%). 234 million dollars were allocated for repayment of foreign debts and oil revenues were expected to be 500 million dollars in 2002, Hamdi said32.
It was assumed that with the oil export and revenues accruing thereof, the national economy would do well and the people’s lives transformed for the better. And indeed in a bid to gain popular support the NIF regime artificially brought down the prices of petroleum products: benzene, diesel, cooking oil and gas, on the local market. The process has been reversed and the prices of these commodities have been hiked in a manner that revealed the hollowness of the move from the beginning.
It will take a long time before the impact of the oil revenues could be felt at the local and national level. The high running cost of the oil and gas development, the huge foreign debts, most of which is owed to the Islamic banks or financial institutions linked to the NIF regime itself, and the high cost of war and corruption33 in the state financial institutions reduce the impact of oil on the national economy. Already, as can be discerned from above there is a 20% deficit in the national budget for the fiscal year
32 Source: United Nations Information Centre in the Sudan. Thursday, 22 November 2001 33 Arabic News.Com of November 23rd quoting the Inspector General says that during the period between September 2000 and August 2001, a sum of 4.4 billion Sudanese pounds was stolen from public funds in the federal companies, commissions and banks. The perpetrators are linked to the ruling National Congress Party.
124 2002. This deficit will have to be covered by borrowings from the local and foreign financial houses.
While the benefits of the oil revenues are not reflected clearly in the form of improved services for the people, nevertheless, impeccable sources confirm that only the NIFers and those politically linked to their ideological instruments of power and commercial interests benefit from the oil revenues that trickle into the economy. As mentioned earlier there is a huge public debt in the Sudan, but this debt is owed to the Islamic financial institutions and hence they are the first to benefit from any debt repayment leaving the rest of the country in economic doldrums.
If the oil and gas development has little impact on the economic performance, the logical question then is why the insistence at such high human costs? The explanation must be sought in the political and ideological domain. The huge number of foreign oil companies involved is necessitated by the public relations drive of the regime to improve its image internationally and this is already paying dividends at the diplomatic level. It has helped deflect the public attention from its gross human rights violations, explaining succinctly why the UN Security Council lifted the sanctions it imposed [although were not implemented] on the regime in 1995, without any evidence that the regime has eschewed terrorism as part of its international relations.
It is our contention supported by the factual evidence of the performance of the Sudanese economy that the oil revenues have negligible impact on the economy. For two years the Sudanese Dinar stabilised at 250 to one US dollar. It is now depreciating [1 $ now stands at 267.5 SD] at a time the oil revenues is being pumped into the economy. This gives credence to what we alleged earlier that the oil and gas development in the manner it is undertaken against all the social and economic logic is driven by political and ideological consideration than economics.
5. OIL AND GAS DEVELOPMENT IN THE CONTEXT OF WAR – A SURE PLUNGE INTO THE APOCALYPSE: A DISCUSSION
The oil discovery in south Sudan, its development coupled with the irresponsible social and political engineering constitute an explosive mixture that has catalysed and exacerbated the present conflict between the people of south Sudan on the one hand and the Arab dominated northern political elite on the other hand. Notwithstanding the continuous shifting alliances and vacillation of the southern political and military elite in
125 face of their northern counterparts, the war is likely to escalate until the fundamental issues that caused its eruption have been addressed. The NIF government pursues war for strategic considerations linked to its own political survival. The people of south Sudan will not accept a resolution of this conflict, peace or otherwise, that perpetuates their marginalisation and oppression. These uncompromising positions coupled with the environmental degradation, humanitarian disruption.
Until and unless the Arab dominated northern political elite affirms the right of the people of southern Sudan to self-determination, the war will continue to rage in south Sudan, the Nuba Mountains and Southern Blue Nile. The NIF regime through its international linkages and the oil revenue could acquire sufficient military logistics to tilt the balance precariously in its favour. On the other hand the SPLA could suffer serious defeats and reverses. However, as long as the fundamental causes of this conflict remain un-addressed, the SPLA could easily revert to guerrilla warfare, which can still wear down the regime into accepting peaceful resolution of the conflict.
Under such circumstances of war underwritten by acute racial and political extremities, the oil and gas development will have negative effects on the people and the environment of western and northeastern Upper Nile, and the national economy. Thus the NIF regime’s blind insistence on oil and gas development in order to raise financial and economic resources will spell an apocalypse for the Sudan. This is because with the revenue accruing from the sale of the oil, the government will develop appetite and desire to increase security and control over more territories to expand the exploration activities of the international oil companies. It will in turn translate into the revenues accruing not on economic development but on perfecting the war machine and enlisting the use of the tribal militias. This will lead to the escalation of the conflict further a field as may be dictated by the security and military considerations.
On the other hand, it is likely the SPLA will heighten military attacks on the oil fields. This is particularly true in view of the recent rapprochement between the SPLA and the SPDF that led to their merger agreement. The SPLA attempt to stop the oil operations will lead to the escalation of the conflict with serious consequences for life and the environment.
The possibility for a sustainable development of the oil fields lies not in military victory being pursued by the NIF government, but in a negotiated peaceful resolution of the conflict in which the people of South Sudan, the Nuba Mountains and Southern Blue Nile
126 are able to exercise their inalienable right to self-determination and the attainment peace with social justice, dignity, equity in the distribution of wealth and power.
In this respect, oil and gas development must be suspended until peace with justice has been established. There is therefore need for the foreign oil companies to voluntarily pull out from the oil fields, before the mounting international pressure, which may entail denial of financial facilities will make it unsustainable for the oil companies to undertake any further exploration and development activities.
The financial resources from the oil and gas development have already extended the regime’s longevity and its oppressiveness. The gap between the south and north in terms of economic perks, petty as they may be, social services and the physical infrastructure is daily increased. There are marked income disparities reflected in the negative social indices in the South Sudan, Nuba Mountains and Southern Blue Nile. The suspension of oil industry is therefore the only incentive for peace in the Sudan and its future sustainable development to the benefit of all.
6. CONCLUSIONS
The discovery, development and export of the Sudanese oil are factors in the escalation of the war with the concomitant humanitarian disaster in western and eastern Upper Nile and northern Bahr el Ghazal. The indigenous Dinka and Nuer population have been subjected to immense suffering, killings, burning of their homesteads, displacement and abductions by the army and militias in order to make space for oil exploration and development [Heglig, Unity, Block 5A and Adar-Yale].
The foreign oil companies lend their facilities: oil roads, trucks and cars, helicopters and riverboats to the Sudanese army in its war against the SPLA and its displacement of the civil population. Indeed, under the circumstances of war as those in western Upper Nile, it is almost impossible for the foreign oil companies to remain neutral. Their operations benefit the government side and as such are privy to the worsening humanitarian situation in western Upper Nile. The integration of oil and gas development with the government’s war aims is illustrated by the presence of the Chinese state oil corporation as a partner in the GNPOC and the establishment of Chinese weapons assembly factories in Khartoum.
The NIF regime reaps US 500 million dollars from the oil revenues. This has two important results: It increased its capacity to prosecute the war through importation of sophisticated weaponry and its ability to manufacture small and light weapons, bombs,
127 missiles and ammunitions. On the other hand this has improved the regime’s international standing and made it to break itself out of diplomatic isolation. The UN Security Council lifted the sanctions imposed on the regime in 1995. It has restored diplomatic relationship with Eritrea, Ethiopia and Uganda.
There is no independent verification of how the Sudan government uses oil revenue apart from its war efforts. There is no concrete evidence of oil revenues being spent for the development of south Sudan in spite of the fact that 40% of the national budget comes from the oil revenues. Furthermore, it is evident that the oil and gas development has continued to have negative impact on the human rights situation.
Stopping the oil and gas development until a peaceful resolution of the conflict is, therefore, the only viable option for the oil companies operating in western and northern Upper Nile. Talisman, The Royal Dutch Shell, the Lundin/IPC and others should therefore heed the appeal of the Sudanese Bishop Conference (August 2001) endorsed by Pax Christi International in Mainz (November 2001) and adopt the stance of South Africa’s Soekor that “we share the concerns of the Southern African Catholic Bishops Conference that an extensive pursuit of oil interest in the Sudan might contribute to the escalation of the civil war.”
In conclusion, while it is possible that the western oil companies may bend to international pressures, the real problem lies with the Chinese and Malaysian oil companies. Their economic and military interests are interwoven with ideological considerations in a manner that far outweighs their concerns for humanitarian disaster resulting from their operations and cooperation with the NIF regime. There is need, therefore, to step up pressure on these governments to stop their operations in the Sudan until peace with justice prevails.
128 References
D Craig Mann “Thick-skin and thin-skin detachment faults in continental Sudanese rift basins.” Journal of African Earth Sciences. Vol. 8, Nos. 2/3/4, 1989, pp 307 – 322.
Human Rights Watch/Africa “Behind the Red Line: Political Repression in Sudan.” Human Right Watch. May 1996. New York. Washington. London. Brussels.
International Petroleum Corporation (IPC) “Sudan – Block 5A: Scouting Visit Report and Photo-Log.” March 1997.
Taisier Mohammed Ali & Robert O Matthews (editors) “Civil War and Failed Efforts for Peace in Sudan.” McGill Queen’s University Press, Montreal, Kingston. 1999.
Peter Verney “Raising the Stakes: Oil and Conflict in Sudan.” A Sudan Update Report. Sudan Update, December 1999.
Peter Adwok Nyaba. “The Politics of Liberation in South Sudan: An Insider’s View.” Second edition, Fountain Publishers, Kampala, 2000.
John Harker “Human Security in Sudan: The Report of a Canadian Assessment Mission.” Prepared for the Ministry of Foreign Affairs, Ottawa, January 2000.
UNICEF/OLS and NSCC “Report on the Assessment of needs of the Internally Displaced Persons (IDPs) and the Review of the Wunlit People to People Peace Agreement” February 2001.
Christian Aid “The Scorched Earth: Oil and War in Sudan.” March 2001.
Georgette Gagnon and John Ryle “Report of an Investigation into the Oil and gas development, Conflict and Displacement in Western Upper Nile, Sudan.” October 2001.
Leonardo Franco, the Special Rapporteur on the Situation of Human Rights in the Sudan – Speech to the Third Committee [UN Social and Economic Council] of the General Assembly on November 8th, 2001 in New York.
US Congress “The Sudan Peace Act.” Congressional Record House, Page H8217 of November 15th, 2001.
Peter Nyot Kok. “The ties that will not bind: Conflict and racial cleavages in the Sudan.” In P. Anyang’ Nyong’o (editor) Arms and Daggers in the Heart of Africa: Studies on Internal Conflicts. African Academy of Sciences (AAS) 1993, pp. 33-66.
A. H. Abdel Salam & Alex de Waal (editors) “The Phoenix State: Civil Society and the future of the Sudan.” Justice Africa/Committee of the civil project- Publication. The Red Sea Press Inc. Asmara, 2001.
129 b. Summary of Discussion
1. The production of oil is a credit to the current government because only a developed country knows how to produce oil. Oil is a blessing to everyone and they should benefit from it. The oil resources have been invested in different areas and could be seen in roads and schools. Regarding, the economic situation, all the reports from banks are showing a marked improvement on the Sudanese economy. The reason cited is oil. There is direct benefit. The IMF has access to all Ministry of Finance information and that of the Bank of Sudan. Confidence in the Sudanese economy has increased.
2. Environmental degradation is not only specific to Sudan’s oil fields but is a global phenomenon. The Ogoni people in Nigeria have suffered as a result of Shell’s exploration and exploitation on the Nigerian Delta. In the Sudan, the majority of people who have been displaced as a result of oil production have not yet been compensated. This has generated numerous problems for the displaced, who are angered that they had never been informed or consulted by successive governments. Many people who had to leave the oil regions are now living in the swamps. The water is polluted, fish are dying and therefore it is having a negative impact on the people’s nutrition. An environmental impact assessment has not been done in the Sudan – this is a norm in all oil exploitation. Why has it not been done? It is suggested that it was overlooked for political reasons, in order to quickly redeem enough revenue to win the war.
3. For most Southerners the oil is their worst nightmare. Oil exploration is fuelling the war between the Government of the Sudan and all opposition movements. The SPLA is on record saying that they will destroy these installations. GOS has used resources from oil to wage war against the south and other parts of the country and it is trying to create a buffer zone which would allow the uninterrupted exploitation of oil. Militias who act with impunity have caused many causalities. The Government should admit its mistakes and try to confront the situation along with the other parties. Perhaps there are some schools, dispensaries – but who are the people using these facilities – they are people introduced to the area from other areas. Everyone needs to shoulder his or her share of responsibility.
4. The economic impact of oil and gold cannot be accurately measured because revenue from these sectors are not reflected in the current budget, although the Ministry of Finance disagrees, stating that the revenue from petrol is there. The Government is unable to provide salaries even in Khartoum; it is not only in the oil regions that salaries are lacking. This was not the situation before oil. Oil discovery has reinforced the structure of revenue; 40% revenue is now from oil. The fall of oil prices immediately hit Sudan; for example, the price of electricity has increased. Furthermore, the Sudanese are paying taxes but none is coming back to the people; for example, compensation for injured people, compensation for death and compensation for war. But there is no cash in the bank to receive your own money back. Banks have no money.
130
5. There have been protests in a number of neighbouring countries regarding their decision to buy the oil. The protestors have called it blood oil. Cheap Sudanese oil is being dangled in front of local African countries. However, many are saying no. The oil could affect the neutrality of countries willing to mediate in the current conflict.
131 6. International Experience with the Relationships between International Oil and Gas Companies and Governments and its Relevance for the Sudan
a. Paper Presented by Mr David Nailo N. Mayo
Abstract:
This paper attempts to examine oil and gas concessions and production sharing schemes (PSCs) usually adopted between the Multinational Oil Companies (MNOCs) and the host governments. The purpose of doing so is to enable us draw a caricature on the future relations between the investors in the Sudanese oil industry and the Sudanese state itself.
Important considerations include: the investor’s technological advantage and negotiating power; the level of political risks in the host country and investments and cost-recovery schemes; and the long-term profitability of the enterprise. These elements have great implications upon the fiscal requirements, including environmental issues, on both the government and the (MNOCs). However, since this paper is extracted from the work in progress elsewhere by the author, I would like to state that the conclusions drawn herein should be treated only as tentative because they are yet to be refined or possibly altered in due course.
132
I. INTRODUCTION: WHY FOREIGN CAPITAL?
Developing countries generally lack the technological capacities to explore and develop their own oil and mineral resources. They also lack entrepreneurial skills to manage a chain of retail distributions to market oil and gas products. Hence less developed countries must, out of necessity, invite foreign oil companies to bring capital, engineering, and management skills necessary for crude oil extraction and marketing. Normally the MNOCs expend their own financial resources in exploration and development,34 and they also build a reliable transport and markets for the produce. In return, the government is paid rents (royalties) and taxes on licenses it provides to the MNOCs. It is from these technological advantages of the MNOCs that the fiscal and economic considerations of oil wealth sharing start to come into play.
1.1. Concessions and Production Sharing Schemes The technological advantage of MNOCs has more relevance to the considerations on how productions sharing contracts or concessions are made and, ownership arrangements of oil wells, pipelines, and refineries, etc. Generally, the investor-state arrangements in oil development take one of the following approaches: • The Concession System; • Production Sharing Contracts; and • Joint Ventures. Concession arrangement is the traditional form of contract making where the investor undertakes the necessary oil development and pay rents (royalties) to the state minus any other expenses incurred.35 However, as many developing countries have no technical skills to monitor the sophisticated oil production itself, they have been often in a bargaining disadvantaged position. In some instances, foreign capital actually serves to reduce the independence of the host government. This is because sovereignty over the natural resource has to be distributed between the state and the investor in varying degrees of ownership. Or even if the state retains control and interest in oil and gas resources, the investors would still take a greater chunk of profits under cost recovery scheme.
34 Davidson, Paul. "Public Policy Problems of Domestic Crude Oil Industry" in Smith, Vernon (ed). 1977. Economics of Natural and Environmental Resources. New York, Gordon & Breach, pp. 103- 108.
35 Sanford, Cedric. 1984. Economics of Public Finance. Oxford, Pergamon Press, pp.167-170.
133 But this concession system came under attack from the Indonesian government in 1960. Under pressure from leading figures, like Ibnu Sutowo, the CEO of the state-owned Pertamina Oil Corporation, Indonesia instituted a law for managing natural resources with foreign-based companies. This was known as “production sharing contract.”36 Prawiro noted that: Indonesia and the foreign oil contractors would share the oil as it came out of the ground. The production company retained a portion of the crude oil to compensate for its exploration and other costs and the remainder of the crude was divided between the company and Indonesia at an agreed upon ratio (Prawiro 1998, pp.102-103).
PSC was seen as a radical approach to oil wealth sharing. But like the 50:50 profit sharing schemes instituted by Venezuela in late 1940s, the PSC regime also took root and seems to be a popular contractual arrangement in oil and gas industry in the world today. Finally, another version of PSC is the joint-venture type of arrangements where an investor and the host government enter into joint operations, ownership and marketing of oil and gas.
1.2 Revenue Sources for oil States Some key sources of revenue for an oil producing state include rents or royalties; Ad Valorem Tax; Corporate tax; Petroleum Revenue Tax; assortment of fees from licenses and bonuses. A royalty is a rent, which the investor pays to the state regardless of the profitability of the oil well: it is slides between 1 and 12.5%. Ad Valorem taxes, like sales taxes, are levies based on the price or value of a good or service. Corporate tax is a charge on the income of the corporation (just as individuals pay income tax). Britain charges Corporation tax (now 30%), Petroleum Revenue Tax (levied on profits arising from the extraction of oil and gas) and Royalties (calculated on the basis of the value of the oil at the well-head).37 As I will discuss below, the corporation tax falls under a 50:50 sharing scheme i.e a fair share of capitalism split between the investor and the state. Licenses for exploration rights, development and oil extraction, as well as bonus payments are some ways the oil producing state gets from the MNOCs. The rational of taxing corporate profits is outside the scope of this paper but can easily be obtained in the principles of taxation in economics or public finance texts. Suffice here to say that taxing corporate net incomes, as other studies elsewhere have
36 Prawiro, Radius. 1998. Indonesia’s Struggle for Economic Development. Pragmatism in Action. Kuala Lumpur, Oxford University Press, p.102 37 Trotman-Dickenson, D. I. 1996. Economics of the Public Sector. London, MacMillan, p.179.
134 shown, play an important role in the division of gains from foreign investment between source and host countries.38
II.THE EXPERIENCES BETWEEN THE MNOCs AND LDCs
Generally, the MNOCs in developing countries witness difficult relations with host governments or the citizens at large. This is because of two main reasons: (a) from the investor point of view, developing countries are prone to coup d'etats, civil unrest or weak governance especially in law and order. Thus they are characterised as "high risk" and, therefore, “high insurance premiums.” Since most investment decisions must avoid risk at any cost, the MNOCs have often pursued aggressive cost recovery regime to quickly recoup their investments. Aggressive cost recovery regime can cause many drawbacks, such as disregards to the environmental or labour laws of the host country; (b) the power influence of most multinationals is such that they can make host countries subservient to their interests. Host governments sometimes rely heavily on the multinationals or else one risks the kind of fiasco as in Mugabe's Zimbabwe.
As Moran established, most MNOCs direct policies in their favour through schemes such as: (i) adoption of counterstrategies to minimise the development of economic nationalism in the Third World through selective use of politicians in the country of their origin or in the host country to gain favours to their interests or to provide an umbrella of protection under future contingencies of political change which would affect the continuation of their direct investment; and
(ii) The sequencing of investment process or financial structure in such a way that may provide a series of bargaining chips to manage economic nationalism.39
In return, host countries, especially the citizens, resent such schemes. They liken them to neo-imperialism. This perception may nourish economic nationalism in the host country and in the long run could have negative effect upon the investor-host government
38 Caves, Richard E. Multinational Enterprise and Economic Analysis. Cambridge, Cambridge University Press, p.189 39 Moran, Theodore H. "Multinational Corporations and the Developing Countries: An Analytical Overview" in Moran, Theodore H. (ed). 1985. Multinational Corporations: The Political Economy of Foreign Direct Investment. Lexington, Lexington Books, pp.16-17
135 relations. Some few cases, such as Venezuela, Chile, Zambia, etc. are worth discussing here for comparative purposes.
2.1 Relations between the MNOCs and Oil Producing Developing Countries: Why Venezuela leads in economic nationalism?
The estrangement between the MNOCs and the Venezuelan state since 1945 inevitably culminated into nationalisation of the Venezuelan oil industry in 1976. But in the process, Venezuela became the leading developing nation to pursue reforms, including the founding of OPEC in 1960, which are now part of the international transaction in the oil sector. Before 1945, American oil giants, who controlled the oil industry from production to retail, dominated the MNOCs in Venezuela. The oil giants brought along their managerial style, oil law, and forms of market control. The Venezuelans were suspicious of all these managerial aspects and instead equated them with American imperialism.40 Successive Venezuelan governments continued with the reforms until they reached the 3:2 ratio around 1958. Venezuela was able to increase its share from 52 percent in 1947 to 82 percent in 1973. But in about 1957, the trend had taken a twist: there was a concerted policy on the part of the Venezuelan government to push out the MNOCs altogether -- just within two decades since the reformist government took power in 1945. Indeed, as the politics for nationalisation matured in the 1960s, the MNOCs were increasingly driven out. The road to nationalisation in Venezuela has been a prominent feature of investor- host country relations – with the Iranian Revolution of 1979 being at the other extreme. The Venezuelan Petroleum Minister and founder of OPEC, Juan Pablo Perez Alfonzo, long thought that the power of MNOCs could not be controlled unless the elite in oil- producing and exporting developing countries jointly assert their power to push for reforms in their favour. Lax wrote: Venezuela's Alfonso repeatedly called for closer cooperation between the countries as a means of furthering their common and respective interests …. The Organization of Petroleum Exporting Countries (OPEC) was formed in 1960 as a reaction against the second cut in posted prices by the international companies in two years.41
The Venezuelan nationalisation of oil industry in January 1976 was partly due to the Cold-War politics of the time. The Latinos viewed the American oil giants as the vanguard of the American foreign policy, and the executives most of whom were
40 Tugwell, Franklin. 1975. The Politics of Oil in Venezuela. Stanford, Stanford University Press, p.10. 41 Lax, Howard L. 1983. Political Risk in the International Oil and Gas Industry. Boulder, Westview Press, p.27
136 socialised and imbued with the Monroe Doctrine, were seen as imperialists. In addition the belief that we can stand on our own inevitably pushed every Venezuelan government towards nationalisation. Venezuela started oil-wealth sharing campaign in the middle of 1945 by demanding a 50-50 split of corporate profit, normally a charge on the pre-tax profits. This came to fruition in 1948. Soon, the oil-producing Gulf States also followed suit and a 50- 50 share became a standard method of revenue sharing between the state and MNOCs (Tugwell 1975; Lax pp.25-26). Nigeria adopted it in 1968 when the Nigeria National Petroleum Corporation (NNPC) was created. By 1979, the military government instituted ad valorem tax and in the 1980s Nigeria instituted the 3:2 ratio that remains up to the present. Figure 1. Oil Wealth Sharing in Venezuela, 1947-197342
100 90 80 70 60 50 40 30 20 10 0
1947 1949 1951 1953 1955 1957 1959 1961 1963 1965 1967 1969 1971 1973
Gov't Share % MNOCs Share %
However, if this may have been a triumph of some sort, the developing nations increasingly wiser and realised that there were some weaknesses about the 50:50 profit sharing schemes. So some methods, such as PSC, were initiated in attempts to curtail the hyper-profits and imperialism of the MNOCs. The justifications were due to two main accounting problems:
42 Tugwell, The Politics of Oil in Venezuela, pp.179-181
137 1. The calculation of expenses before the net profit means that more items can be included in the profit and loss account which could shrink the pre-tax profit so much that the MNOCs still gain big in those strategies; and 2. Some western governments (this is unknown in the case of Chinese taxation- accounting system) permit their multinational companies to itemise the tax they pay to foreign governments in their annual returns.
Hence, for these two reasons the 50-50 schemes would not distribute tax burdens equally between the consumers (market) and the shareholders of these oil companies. Rather the taxpayers in the countries where the MNOCs come from would ultimately foot the tax bill. This kind of state subsidy to MNOCs maximises the welfare of multinationals in the long run and this scheme only reconstructs the dominance of the MNOCs regime. As the MNOCs, in general, would not feel the tax burden regardless of the 50-50 scheme, this scheme should be weighed carefully in the future considerations in the Sudan and if adopted, should be adopted with other schemes which would promote partnerships and joint-venture schemes. In Chile, the multinationals mining copper literally pushed the Chilean people toward economic nationalism. Moran43 noted that the introduction of foreign corporations into the centre of national life presents a complex challenge to the interests and to the sovereignty of the host country and natural resources. Companies like Anaconda and Kennecott are large oligopolies with substantial discretion in formulating investment policy, pricing policy, marketing policy -- a tight hold on the combination of capital, technology, and experience that are all necessary to find ore-bodies, bring them on-line, and process and market the output -- gives them the power to exclude competition (Moran 1974, pp.5-6). He continued that: The system of relations between Chile as an exporter of raw materials and the industrial countries as exporters of manufactured products seemed to work, coherently and perhaps even intentionally, to frustrate Chilean efforts to build its own industrial base, provide for its own national welfare, and promote the broad process of development (Moran 1974, p.63).
In the oil sector, this "captive production" may be partly because the state of powerlessness was common among the oil-exporting developing nations: they could not negotiate with wisdom and power and this weakness was easily translated into hostility (that gives rise to economic nationalism) against foreign multinationals. The Arab oil exporting countries in 1950s, were in this position, as Lax reminds us that:
43 Moran, Theodore H. 1974. Multinational Corporations and the Politics of Dependence: Copper in Chile. Princeton, Princeton University Press.
138 Lacking the vital inputs necessary to produce oil, having virtually no domestic demand, and being politically and economically unable to mount an effective challenge to the concession relationship, the Middle Eastern rulers had little negotiating strength in their dealings with the oil companies (Lax, p.23).
Meanwhile, there two conditions in which “economic nationalism” would arise: 1) When there is no fair sharing of oil-wealth; 2) When host governments get stronger economically and technologically and seek to revise the working conditions between the MNOCs and State. Experiences also suggest that, as host governments got stronger, they often insist on shorter concession periods, smaller areas, and schedule relinquishment, and increased royalty rates, and the politics soon changed in favour of host countries (Lax, p.25). For instance, the National Iranian Oil Company (NIOC) wars with BP, starting with the Iranian nationalisation during Mossadeh regime, and Venezuelan successive governments with the MNOCs are stark cases where friction can develop into a full-fledged nationalisation crusade. This pattern was also evident between the multinationals mining copper in Zambia and Congo. The host governments increasingly changed the profit ratios in their favour and finally nationalised the firms in the 1970s.44 Now, with all these international experiences, where does the Sudan belong? Should it go through a long road taken by other oil companies in the past? Or it should join the stream in the middle of the current? What advice, if any, could these international experiences, bring to the Sudan that is inexperienced in dealing with the economics of oil sector? These are questions, which I wish to turn and discuss.
III. OIL WEALTH SHARING BETWEEN THE SUDAN AND MNOCs
The current arrangement in the Sudan is that the MNOCs take away 95% of oil- revenue while the NIF regime receives only 5 percent -- a ratio of 19:1. That is, if a barrel of oil fetches US$24 in the world market, the MNOCs would take away $22.80 per barrel sold while the NIF would retain only $1.20 for every barrel sold. As I pointed earlier, political risks in the host and unstable country mean that the investors must pursue aggressive cost recovery schemes. So long there is minimum security for their personnel, this in itself becomes a lucrative enterprise in which the MNOCs siphon more revenues as quickly as they can. Little wonders that Messrs Talismans & Co. is fighting tooth and nail to continue Sudan operations amidst a brutal civil war in Southern Sudan. There is no doubt that by any economic standards, the 19:1 arrangement is very hostile against the Sudanese people who, at the moment, have no voice about how their
44 Michael Shafer "Capturing the Mineral Multinationals: Advantage or Disadvantage?" in Moran 1985.
139 natural resource could be exploited and how the revenues should be utilised. Moreover, in the early 1980s the concessions between Chevron Oil Company and the Nimeiri's regime were such that the Sudanese state kept at least 49% of oil revenue; while the White Nile Petroleum Corporation (WNPC) took away 51 percent, a ratio of 49:51. This was based on a simplified model of fiscal regime: 30% of revenues was allocated to the WNPC to offset exploration and development costs; while 70% of the remainder would go to the Sudanese state, and the rest would go to the oil companies.45 However, these ratios were not realised as the conflict intensified in the oilfields and the Chevron Oil Company and its subsidiaries were forced to close down their operations. Why, then, does the NIF regime give more concessions to the MNOCs this time around instead of adopting the ratios of early 1980s? There are obvious reasons for this: First, it appears that this wide concession is only a temporary measure imposed by the NIF regime's precarious political situation in the long-drawn conflict than lack of economic nationalism. Since the NIF is a minority government with horrendous record of human rights abuses -- such as: participating in internal and international terrorism, committed many war crimes, and has been weaken by years of war, diplomatic isolation and sanctions, and until recently friendless: it is obviously negotiating with the MNOCs at a weaker position. Second, the survival of the regime supersedes all other economic considerations. Hence, despite its weak position, the NIF still recoups back [through] royalties and other fees from licenses (which can be paid-in-kind in a form of military equipment, such as: tanks, helicopter gunships, bombers, and recently military technology and experts to manufacture tanks locally). For instance, China, which has a 40 percent interest in the Sudan's oil industry, is the main supplier of arms to Khartoum. In return, China, as a permanent member in the UN Security Council, has often exercised its veto power to defend and protect the NIF interests in international sphere.46 Thus, with the 19:1 ratio, a friendless regime has finally enticed friends to come in and stay in exchange for the support to the regime: and indeed, the NIF now has many friends all over the world. But is this position economically tenable?
IV. PARTNERSHIPS AND JOINT VENTURES
Although the Sudanese people have no say in decision-making process pertaining to oil production and use of oil revenues, yet this is only a transient situation. As war is
45 Widatalla, Abdel Latif. "A History of Oil Exploration in the Sudan" in Arou, Mom K. and B. Yongo-Bure. 1988. North-South Relations in the Sudan since the Addis Ababa Agreement. Khartoum, University of Khartoum, p.422. 46 In June 2000, China joined France, Mali, and other friends of the NIF regime to demand the removal of sanctions against Sudan.
140 raging with mounting international pressure upon the NIF regime, the 19:1 ratio will definitely change a great deal because of the following reasons:
(1) The political risks that make the foreign investors more eager to recover their investments would be able to spread recovery costs over longer periods of time. The premium for insurance would have also come down as peace is established;
(2) The legitimate government instituted would re-assess licenses and contracts; legislate on new taxation; and ownership arrangements including joint ventures, etc. In other words, if the Sudanese people reclaim their political control (assuming the Sudan resolves its political problems and becomes strong politically and economically), it would revise the “contract of work” conditions with the MNOCs to gain a larger share of the oil revenue.
The majority of the oil-rich developing countries, including many Gulf states, have utilised a complex mix of partnerships-joint venture schemes and most settle down to a 3:2 ratio between the state and MNOCs respectively. I believe the 3:2 ratio, which is grounded on aggregate taxation and fiscal policies, could be adopted during the transitional period.47 There is nothing wrong about the Sudan adopting some of those taxation and fiscal schemes or ratios that has been applied elsewhere.48 Meanwhile, the best approach to skim-off the profit-maximisation of the multinationals would be through joint-ventures scheme i.e. working together as integral partners. The kinds of fiscal policies such as adopted by Britain in its North Sea oil industry would be worthy adopting in some cases. The Sudan could actually adopt reasonable tax rates for royalties or ad valorem taxes that could be levied on the value of each barrel of crude oil produced. The main reasons why the Sudan would opt for partnerships and joint ventures would be as follows: 1. To force the MNOCs to take some burden of tax incidences, even though some will still be passed on to the consumers but not all of them.49 Oil and exploration and mining licenses, rents and concession taxes could also be proposed in future;
47 Now, assume that the 3:2 ratio was adopted in the Sudan, and peacetime production capacity peaks 1,000,000 bpd, and a barrel of crude oil fetches $24 in the world market. This means that $14.40 per barrel would belong to the Sudan, while $9.60 would be taken away by the MNOCs.
48 For instance, The Tokyo Agreement of 1963 imposed a 60:40 arrangement between the government of Indonesia and the foreign companies. See details in: Palmer, Ingrid. 1978. The Indonesian Economy Since 1965: A Case Study of Political Economy. London, Frank Cass, pp.137-139. British Government. 1997. The Oil Taxation Acts. London, The Stationery Office. 49 Recktenwald, Horst C. 1971. Tax Incidence and Income Distribution. Detroit, Wayne State University Press, pp.124-133
141 2. To properly assess depletion allowance (true economic depreciation/amortisation rate) which will be a provision account of the oil company. The effect would be to encourage more extraction50; 3. To properly assess petroleum revenue tax i.e. a tax charged over excess profits (excess of operating and exploration costs and net of royalty payments); 4. To improve Sudan's oil industry through insulation that comes with the provision of and access to technical, managerial, and marketing skills and spread the investment risk and service for large capital investment (Auty, p.356); and to maintain efficiency and competitiveness; and 5. To provide training to Sudanese citizens in managerial engineering and marketing skills.51
In the past two decades, most oil-exporting LDCs, like Nigeria, Indonesia, Cameroon and Gabon, have used partnerships and joint ventures in investments and sale of oil and hydrocarbons industries.
IV. CONCLUSION
This paper has shown the intricate relationships between the resource-endowed developing countries and the MNOCs. I have noted that the sharing of resources comes about as a result of contractual arrangements between the investors and the host country either in a form of PSC or joint venture schemes. Since there are many international standards, such as the 3:2 ratio, the 50:50 split of profits; I think such mechanisms are worthy of consideration in the first decade after the war in the Sudan. This would enable the next stage of partnerships and joint ventures to develop and take hold of the Sudan oil industry. Partnership and joint ventures, as Chevron advertisement says "Chevron, the symbol of partnership," are, indeed, the best ways to enable the MNOCs to work together with the host countries. Therefore, I believe joint ventures with MNOCs should be the basis for future co-operation: this would enable the backward Sudan to gain technical skills and training in oil management and production.
50 Dasgupta, P.; G.M. Heal and J.E. Stiglitz. "The Taxation of Exhaustible Resources" in Hughes, G.A. and G. M. Heal. 1980. Public Policy and the Tax System. London, George Allen & Unwin. 51 Lin, Julia L., Chwo-Ming J. Yu, and Dah-Hsian W. Seetoo. "Motivations, Partners' Contributions, and Control of International Joint Ventures," in Beamish, Paul W. and J. Peter Killing. 1997. Cooperative Strategies: Asian Pacific Perspectives. San Francisco, The New Lexington Press, pp.115-134.
142 b. Summary of discussion
1. We need to consider the external dimension, treating Sudan as a state, not talking about the internal relations. What is the role of the Sudan? It is to regiment the performance of the Multi-National Oil Corporations (MNOCs). The role is one of regulation not as a participant. So, given a post-settlement situation; the treatment of existing multi-nationals operating in the Sudan is an important issue. There is a need for strict observance of the MNOCs’ rights under the existing concessions. Sudan should not damage its overall investment climate by terminating concessions without cause and thereby deterring private sector investment which could be critical for its economic development. This would not prevent the post-settlement GOS from critical examination of whether the existing MNOCs have met their obligations – e.g. as to exploration expenditure levels, development and production commitments, environment, training etc. If in default, GOS could review the position with the MNOCs and take any remedial action authorised under the law. That is why transparency would be essential. It is also important to know how the relationship between MNOCs and the government has developed. In most situations there are now points of reference and practice – better agreements are now offered because there is competition between companies. There are legal advisers available to most governments.
2. Another important issue is how should the Sudan approach the possibilities of attracting further investors? Looking to the possibility of new petroleum sector investment there is significant geological potential for further on and offshore commercial oil and gas discoveries. Any future GOS should seek to promote the private foreign investment required to discover and develop this potential. In seeking to achieve a significant level of investment from the major oil companies, countries with petroleum resources face an extremely competitive situation from other nations. To succeed, the GOS would have not only to demonstrate the geological potential, but to ensure an attractive investment climate, including modern petroleum laws and model forms (stabilisation, commercial freedoms, fair fiscal treatments etc.), and an effective oil sector institutional capacity.
3. A well-designed framework would not only meet investor requirements but would meet GOS policy objectives (fiscal, training, environmental, etc.). The objectives that people share encourage a wide range of investment. There is a need to ensure the state will guarantee their share – whilst the stake of the government needs to increase over time. There is room for some renegotiations but this needs to be done on a mutually agreed basis. Adjusting the share of profits opens the possibility of manipulation. Partnerships are a possible solution. These are important but they can be viewed as working together with different roles rather than working with the same roles. What you need is the expertise. You do not want to imply that you are putting scarce public funds at risk in the contract by making it a partnership. Redressing the balance – you must not scare off future investors. Bringing in investment for oil is done world wide – not just in developing countries. In order to attract foreign direct investment one ought to remember that transparency is vital.
143 4. The World Bank has been heavily engaged in the energy sector since the 70s, working with developing countries in attracting investment on equitable terms. That advice can be very helpful and help to address the balance with MNOCs. There are successful international examples of international oil consortia which were set up between states with international assistance. One such example is Equatorial Guinea where the government and states agreed on the revenues. However, there has not been such framework within a country where there is a conflict.
5. One critical issue, which should be examined, is the distribution of the revenue within the country. The investors will want to see the result up-front to ensure stability in the country. Net profit should be shared rather than gross revenue. The oil is divided into ‘cost oil’, which is the share of production given to the oil company to cover its production costs, and ‘profit oil’. When costs decline, the balance of the ‘cost oil’ goes to the government. For the profit oil, the percentage going to the government is much higher. The proportion is 31 percent at present, and goes up to 52 percent in some cases. In four years times, 62%-69% of the of the profit oil will go to the government. The Sudanese have started in a better place than most countries in the oil business, because many of us have worked in neighbouring countries on these issues. Now all we need to do is attract investors. It is important that we understand the international market. All agreements are confidential. Excess value of oil goes to the government rather than to the MNOCs. There are two separate agreements – for up and down stream industries.
6. There is clearly an issue of transparency - the figures are not available to the public which would like to see the contracts so that we can interpret them. What is the ratio? It may be a case of national security. How can we go forward from here? It is understandable that the individual oil contracts cannot be published but the overall contract can be published. There is a need to protect commercial confidentiality but there is also the issue of public accountability. There is adequate transparency right now. The revenue obtained by government and amounts of oil extracted are published information.
7. A different perspective come from the areas inhabited by those who have been displaced and survivors from these areas. When they hear the government is getting 36% of the oil they will not feel secure. To them there are two sides – oil in the hands of the government is a matter of their survival. People just think of bombs, ammunition etc; this is why they view oil sceptically. For many people oil is a matter of death. It would be different in the hands of a democratically elected government, as it would be the peoples’ oil. When people talk about training or capacity-building, who are the beneficiaries? Are all there equally or is it controlled by one party? Oil has to be linked with peace-making. We cannot talk about it in a vacuum. When the justice and peace corners are not included then we can not view a discussion of oil from a technological point of view. Oil is part of the current war.
144 7. International Experience with the Oil and Gas Revenue Sharing Arrangements in Federal and Confederal States and Possible Options for the Sudan a. Paper presented by David Nailo N. Mayo
Abstract:
Wealth sharing arrangements in federal or confederal states are generally done through the assignment of taxing and spending powers to various levels of government in a federation. This is often in addition to grants and other transfers that the subnational governments receive from the federal level. In order to meet the federal principle of shared rule and self-rule, federal theory advocates a fiscal system in which taxes are constitutionally allocated to various levels of government. The taxation of natural resources is not immune to this fiscal federalism.
Therefore, this paper will attempt to explore wealth-sharing schemes in some oil producing states. The purpose is to draw attention to future Sudanese fiscal federalism for wealth sharing. Since the Sudan is experimenting with a nominal form of federalism, and is projected to be a medium size oil-exporter in the near future, I believe it is fundamental to gain some insights from the experiences of other oil exporting federal states, such as Canada and Nigeria, to help us design a fiscal system and policies suitable for the Sudanese regional imbalances and the management of the oil-boom economy itself.
145
I. INTRODUCTION
In 1940, Winston Churchill published a book based on accounts of the Anglo- Egyptian invasion of the Sudan during the 1896-98 operations against the Mahdist state in the Sudan. He stated that: The real Soudan, known to the statesman and the explorer, lies far to the south – moist, undulating, and exuberant. But there is another Soudan, which some mistake for the true, whose solitudes oppress the Nile from the Egyptian frontier to Omdurman. This is the Soudan of the soldier. Destitute of wealth or future, it is rich in history … it is the scene of the war.52
Churchill’s portrayal of northern Sudan as being “destitute of wealth” underlines the central role of natural resources in the Sudanese conflict today. It is common sense in the Sudan that the North cannot survive without the “moist, undulating and exuberant” part of the country. And here I tentatively make my hypothesis: Hypothesis I: The North-South conflict in the Sudan has been hitherto a war for natural resources.
Sudanese historians, of course, have written extensively on Muhammad Ali’s reasons for invading the Sudan in 1820: to look for gold, ivory and slaves. Indeed, throughout the six decades of the Turko-Egyptian administration, the flotillas regularly sailed southward along the Nile to hunt for ivory and slaves.53 Like oil today, slaves and ivory were an integral part of the Turko-Egyptian administration and sustained the economy of Egypt and the Levant. In the nineteenth century, the Mahdist administration (1885-1898) continued with the Turko-Egyptian style of administration. The Mahdist economy for the greater part was equally dependent on extracting slaves and ivory in the South, and on war booty at the Ethiopian borders and in Western Sudan until the Anglo-Egyptian rule made this impracticable. It is noteworthy that the Mahdist state was a classical extractionist state: local modernisation of industry was veritably unknown to the Khalifa’s Emirs.54
52 Churchill, Winston. 1940. The River War: An Account of the Conquest of the Sudan. London, Eyre & Spottiswoode, p.2 53 Hill, Richard. 1970. On the Frontiers of Islam: Two Manuscripts Concerning the Sudan under Turco- Egyptian Rule, 1822-1845. Oxford, Oxford University Press; Hill, Richard. 1959. Egypt in the Sudan. London, C. Hurst; Gray, Richard. 1961. A History of the Southern Sudan, 1839-1889. Oxford, Oxford University Press; Marsot, Afaf Lufti al-Sayyid. 1988. Egypt in the Reign of Muhammad Ali. Cambridge, Cambridge University Press. 54 Ohrwalder, Fr. Joseph.1895. Teny Years’ Captivity in the Mahdi’s Camp, 1882-1892. London, Sampson Low, Marston & Co.
146 Thus, whether scholars view this as ‘The War of Visions,’ the ‘Contested identities,’ the ‘Arab-African Conflict,’ or the ‘Government they Deserve,’ the visions and the struggle were caused by the economic motives of the southern marches. These forces did not cease upon the modernisation of Egypt and Northern Sudan. Indeed, the post-colonial Sudanese state, as inherited by the minority Arab-Islamic groups,55 did not deviate from the “traditional perception” that: natural resources from the South must flow with the River Nile into the North. Moreover, major projects, such as the Jonglei Canal Project, the harvesting of timber in the Western Equatoria province, the mining of gold (in Boma, Kapwata, and Chukudum districts) and now the extraction of oil in the upper Nile, reveal a striking continuity with the economics of the nineteenth century – more or less a kind of Monroe Doctrine (or in this case Muhammad Ali’s Doctrine) in the Nile Valley. Unlike the trade in slaves and ivory of the 1820-1898 period, the extraction of oil amidst a brutal civil war, during which more than 2 million people have been killed in the twentyith century, has certainly aggravated this historical conflict beyond any social measurement. Looking back at the continuation of historical forces, one is even inclined to say that the abundance of natural resources in the South is more of a curse than a blessing (at least in the sense that they have led to much suffering for the natives and perennial wars with the Arab-Islamic peoples since time immemorial). The difference this time is that the soldier from the impoverished north (in the emblem of the NIF regime of General Omer Hassan al-Bashir) has used oil revenues in attempts to conquer the south and impose his religion and manners upon the vanquished. The southerners are aware of this and have risen, even at a high cost, to resist this wave. The struggle has even cast doubts on whether the North and the South can viably remain united under “one Sudan one system.” Therefore, since the Sudanese conflict has been hitherto a war for natural resources, the grand question before us now is: Can the fair sharing of natural resources help both the soldier and the victim to mitigate the conflict? If so, what kind of fiscal federalism would be suitable for the Sudanese case? These questions bring us to the questions of allocation of taxing and spending powers, which I will now discuss.
II. TAXING AND EXPENDITURE POWERS IN FEDERAL STATES
Fiscal policy connotes the government's use and application of taxation and public expenditure powers to influence the level of micro- and macro-economic activities.56 It is also a tool for the redistribution of goods and services in the nation. Moreover, the
55 The Arab-Islamic groups constitute only 55% of Northern Sudanese society. Other than traders and military personnel, there are no Arabs settled in the South. 56 James, Simon and Christopher Nobes. 2001. The Economics of Taxation. London, Prentice Hall.
147 distribution of goods and services are not neutral factors: they serve political, economic, and social interests. Since the purpose of taxation is mainly to transfer resources from the private to the public sector (James and Nobes, p.7), there is no doubt that taxes constitute a set of rules to determine the extent to which different people have to yield command over resources to the public sector.57 In most federal states, the taxation system takes one of the following forms: 1. Most taxes are assigned to local jurisdictions for collection, and the revenue raised is transferred to central authorities;
2. Most taxes are assigned to central authorities who then finance subnational governments in the form of grants or other transfers (either by sharing total revenue or a specific share); and
3. Taxing and spending powers are assigned to federal, state, and local jurisdiction (provinces/rural districts and municipalities) to complement locally raised tax (Norregaard, p.50).
Federal theory coheres with the third option, i.e. taxes should be assigned to various levels of government to realise the federal principle of shared rule and self-rule. The political system that implements the distribution of goods and services is central to the realisation of the federal principle. For instance, some federations disregard this rule and instead centralise their taxes, i.e. the central authorities traditionally control revenue raising and distribution powers such that states/regions can only look to the centre for various grants. Australia, which centralises its revenue raising powers, nonetheless has an independent authority, the Commonwealth Grants Commission (CGC), which assesses fiscal claims and distributes the grants to respective states.58 This is in contrast to Canada and the United States, where taxing and expenditure powers are allocated to various levels with their concomitant independence to levy and raise taxes. There are usually many disadvantages of assigning most taxes to one jurisdiction: it hinders income redistribution in the federation and economic stabilisation; and may increase incentives for richer regions to behave geo-local, a behaviour which Slovenia and Croatia exhibited in the years before the break-up of Yugoslavia. The major disadvantage of the second option of assigning most taxes to the central authorities is that it would promote centre-periphery form of national development in which the region (i.e. the oil-producing region) would be deprived of decision-making powers about the
57 Bird, Richard M. 1992. Tax Policy and Economic Development. Baltimore, The John Hopkins University Press, pp.8-14.
148 revenues collected and the expenditures. Arbitrary cuts or delays in grants or other transfers, gives the centre wide latitude how it uses funds (Norregaard, p.50). In a booming oil-exporting economy this would lead to a situation where there is too much money in too few hands. So, the most preferred system of taxation appears the third option where taxes are juridically allocated to various levels of government: federal, state, and local levels. For the purpose of this paper, I will only be concerned about allocation and distribution of revenue to various regions/states specifically to examine: (1) the implication of the tax powers and what taxes are administered by which level of government; and (2) the expenditure powers. It should be stated that a federal political system, as a rule, must spell out tax powers in its constitution to clearly decentralise taxing powers to jurisdictions. A traditionally centralised political system does not necessarily have this legal obligation, even if taxes are decentralised practically. As Potter shows, even centralised British government has increasingly been decentralising since the Radcliffe-Maude report of 1974 – creating two-tier system where the shires and rural areas were separated from metropolitan and municipal administration.59 Federal states must have a decentralised tax schemes for two other reasons: administrative and economic efficiency; and political harmony. According to Rao and Sen, fiscal federalism as the machinery of the public sector in a multi-level decision-making framework which seeks to realise the following: (1) to assign functions and sources of finance between different governmental levels: (2) to evolve mechanisms and policy instruments for resolving fiscal imbalances (vertical vs horizontal); (3) to arbitrate inter-governmental spillovers and foster harmonious and yet competitive intergovernmental relationships.60
Musgrave and Musgrave articulate that the decentralised fiscal framework, at least in American experience, is deeply embedded in the Federalist spirit of its Constitution.61 Professor Oates argued that decentralised framework is efficient because local jurisdiction have the capacity to improve resource allocation in the public sector through the diversification of public outputs in accordance with local tastes.62 Indeed, as Tiebout
58 Craig, John. “Australia” in Ter-Minassian, pp.184-185. 59 Barry Potter “United Kingdom” in Ter-Minassian, pp.342-343. 60 Rao, M. Govinda and Tapas K. Sen. 1996. Fiscal Federalism in India: Theory and Practice. New Delhi, MacMillan, p.13. 61 Musgrave, Richard A. and Peggy B. Musgrave. 1984. Public Finance in Theory and Practice. New York, McGraw-Hill. 62 Oates, Wallace E. (ed). 1977. The Political Economy of Fiscal Federalism. Lexington, Lexington Books, p.9.
149 argued long ago that each region has homogenous consumption patterns or preferences, local jurisdiction will channel resources to meet local demands much more effectively.63 Other federation like India, Canada, U.S. meet this fiscal federalism. However, experiences in some plural societies of the Third World, such as Nigeria, suggest that the centralisation of tax schemes tend to breed inefficiencies, and rampant corruption among central elite. And this approach only serves to generate conflict between the regions and the centre. What is crucial is that: fiscal policies in plural states should aim at maintaining equilibrium. This is done by balancing the financial resources and the fiscal policies and politics as to institute some bargaining processes to supplement constitutional arrangements; and adjusting power patterns in response to political, social and economic forces in the society.64 Unfortunately, this is not often the case in many instances. For instance, the Nigerian “military federalism” has been seriously criticised as inefficient in its uses of oil-wealth sharing schemes. Ikein & Briggs-Anigboh volume survey a long history of this inefficiency in which the best studies, such as the Okigbo Commission (1980) which was set to study efficient oil- wealth sharing ratios in Nigeria, were neglected in favour of military decrees (pp.227- 233). There is no doubt that this military federalism only serves to generate conflict between the regions and the centre. In contrast Indian fiscal federalism is tolerable, and probably the best in the standards of the Third World. For instance, exclusive central government taxes in 1991-92 tax year were as follows: 32 percent of revenue came from exclusive central government taxes; 35 percent exclusive state taxes; and 33 percent shared taxes.
India’s tax allocation scheme Exclusive Central Exclusive State Shared Taxes Non-Tax Revenue Taxes Taxes 1.Corporation Tax 1.State excise 1.Income tax 1.Net contributions 2.Customs duties 2.Union excise 2.Interest receipts 3.Others 2.Sales tax duties 3.External grants 3.Ad valorem tax 4.Others Source: Rao and Sen, Fiscal Federalism in India, p.23
In aggregate, the states got 48 percent of total, including grants from central government (Rao and Sen, pp.23-24).
63 Tiebout, C. “A Pure Theory of Local Expenditures.” Journal of Political Economy. 64 (1956), pp.416- 424);see also Oates 1977, pp.36-37. 64 Ikein, A. and C. Briggs-Anigboh. 1998. Oil and Fiscal Federalism in Nigeria: The Political Economy of Resource Allocation in a Developing Country. Aldershot, Ashgate; pp.2-3
150 In Germany, for instance, the Basic Law was designed in such a way that there is a central decision making with decentralised execution i.e. the Länder governments are responsible for executing national policies, including raising taxes for the federal government. Fiscal equalisation and legislative competences cover three major areas: • the division of legal competence between the levels of government which determines the balance of policy-making authority between the federal government and the Länder; • the vertical and horizontal distribution of tax revenue; • the system of revenue sharing which lies at the heart of fiscal equalisation and which is mainly related to the horizontal distribution of tax revenue.65
Article 106 of the Basic Law apportions taxes and the basis for tax distributions, and Article 109(1) divides responsibilities for fiscal administration and joint administration between the Federal Government and Länder (Smith, ibid). Thus, the Bund collects about 43%; the Länder 43%, and Local Government collects 14%. Of these, the federal government expenditure takes 34.1 %; Länder spends 36.6 percent; Local Government 26.3%, and EU 3.0%.66 In Australia, the Commonwealth raises 68% of national revenue; States 28%; Local Government 4%. In expenditure, the Commonwealth expends 53%; States 42%; and Local Government 5%. To realise horizontal equity, states receive 30.9 percent in specific purpose grants, and 47.9 percent in general purpose grants; while Local governments get up to 0.7 percent of general purpose grants.67 The United States tax structure is decentralised with each federal, state, and local government having its own tax administration to collect the taxes it imposes. With this fiscal independence, the various levels are also responsible for the provision of goods and services within their levels, except of education, health care and social security insurance that have attracted federal funds since the New Deal Era.68
2.1 Taxation and oil-wealth sharing in federal states In federations where the federal principle of shared rule and self-rule has been practised, and of which the centre is inclusive of the various regions, taxation policies appear less decisive. Professor Ronald Watts makes a case that: “Generally the more the degree of homogeneity within a society the greater the powers that have been allocated to
65 Smith, Eric Owen. 1994. The German Economy. London, Routledge, p.66. 66 Spahn, Paul B. and Wolfgand Fottinger. “Germany” in Ter-Minassian, pp.227-229. 67 John Craig. "Australia" in Ter-Minassian, pp.178-184 68 Stotsky, Janet G. and Emil M. Sunley “United States” in Ter-Minassian, pp.361-366.
151 the federal government, and the more the degree of diversity the greater the powers that have been assigned to the constituent units of government.69 Thus, I tentatively pose hypotheses that: Hypothesis II: The structure of tax system in a federation determines, to a large extend, whether oil-wealth would be fairly allocated and distributed between the federation and the region/states.
Hypothesis III: A federation, which utilises the federal principle, is most likely to realise equitable sharing of wealth than would a façade federal political system
Thus in plural societies, which I am mostly concerned, taxing powers should be decentralised70 such that any new found wealth would most likely be evenly distributed. Whereas, a façade federal arrangement is generally inefficient in managing wealth; instead, it may use the oil-boom economy to reinforce the already existing imbalances and strengthen the status quo. As discussed above, most federal states allocate and decentralise taxes in their constitutions. Generally, governments of mineral-rich countries grant exploration licenses and concession rights to the private sector or a public enterprise with expertise in the oil extraction. In return, the government receives royalties/rents, charges ad valorem taxes (taxes based on the price or value of a good or service), licenses fees, corporation taxes, and other production and revenue sharing schemes. It is such assortment of sources of revenue the oil-producing state gets. In a concession system, ownership rights will be distributed between the State and the Contractor or Multinational Oil Companies (MNOCs), and allowing for varying degrees of ownership. But under production sharing arrangement, the State retains the interest in the land and the mineral resources and allows the Contractor to profit from taking a share of production.71 Since, my interest here is to investigate oil-wealth sharing in federal states, I would like to begin by examining Canadian experiences before going to Nigeria.
III. OIL-WEALTH SHARING SCHEMES IN CANADA
The Condominium of Canada has been a federal state since the North American Act of 1867. It has traditionally been a divided polity with French speaking Quebec pressing for a separate state from the rest of English-speaking Canada. Whereas, the
69 Watts, Ronald. 1999. Comparing Federal Systems. Kingston, Queen’s University Press, p.35. 70 Norregaard, John. “Tax Assignment.” In Ter-Minassian, Teresa (ed). 1997. Fiscal Federalim in Theory and Practice. Washington DC, IMF Press, pp.49-50 71 Deborah Mills & Associates Manual, CEMLP, University of Dundee, September 1994.
152 native Indian population continue to seek for visibility and social services. Apart from these ethnic politics, there are also endemic federal-provincial relations, which at times provoke ugly disputes. Here, I will only bring the disputes associated with oil development in the 1970s and 1980s, and how the federal government was able to resolve the disputes. The discovery of oil in the Western Canadian prairie provinces of Alberta and Saskatchewan was soon to spark-off federal-provincial conflicts in the 1973-86 phase.72 Alberta and Saskatchewan were traditionally dependent on agriculture, with usual fluctuations and uncertainties in world prices compared with industrial Ontario. The advent of oil boom in the 1970s, which coincided with the world energy crisis due to OPEC cartels, gave Alberta and Saskatchewan hope to rinse off their backwardness. They were determined to reduce their dependence on agriculture as windfall gains were to be invested in stimulating economic diversification and development for the region to take- off toward industrialisation. But in the fall of 1973, the federal government intervened in the following ways: (a) Freeze the prices of domestic oil (to protect Canadian consumers from escalating world prices) and to manage the oil industry itself; (b) Imposed an export tax (to subsidise the local demand of other non-oil producing provinces); (c) Reduced provincial royalties, and (d) Introduced Petroleum Administration Act (in 1974) which further regulated the distribution and set the price of oil and natural gas entering international and inter-provincial trade.73 Alberta and Saskatchewan governments protested vigorously against these interventions. Premier Lougheed's televised address accused Ottawa of seeking to take over the Alberta’s wealth: The federal budget and energy measures … are an outright attempt to take over the resources of this province … more and more decision-making and more and more control will be in the hands of the decision-makers in Ottawa. … I can only surmise that Mr. Trudeau (i.e Prime Minister Pierre Trudeau) wants to see control of Alberta's resources essentially in the hands of Ottawa (ibid, pp.4-5).
Similar disputes had also engulfed the off-shore oil development in Newfoundland. The provincial Premiers referred to a 1930 law (Natural Resources Transfer Agreement Acts), which guaranteed land and mineral rights to the then sparsely
72 Unless otherwise stated, the sources here are taken from the volume edited by Saunders, J. O. 1986. Managing Natural Resources in a Federal State. Toronto, Carswell.
153 populated prairie provinces as an incentive for settlement in the Western frontier. Indeed, attempts by both Trudeau's and Clark's governments to amend the 1930 Natural Resources Act in favour of federal supremacy had served to escalate the federal- provincial disputes for more than a decade. The provinces vehemently resisted these attempts. But the unilateralist, confrontation rather than consultation, litigation rather than negotiation were narrowed in a 1982 bill, which recognised and permitted the provinces to have access to indirect taxation (ibid). Nevertheless, the federal-province conflict was far from over until 1984 when Brian Mulroney, in his election campaign, promised to resolve federal-provincial disputes to share resources than his predecessors' policies of over-lordship over the provinces.
Table 1: Illustration of Mulroney's Tax Sharing Schemes
Federal Government Provincial Governments
Corporate Income Tax Corporate Income Tax (1/3 federal size) Petroleum and Gas Revenue Tax Sale of Crown Leases (Exploration fees) Incremental Oil Revenue Tax Royalties Petroleum Compensation Charge Provincial Sales and Excise Taxes Canadian Ownership Special Charges Capital Tax Natural Gas & Gas Liquids Tax Oil Export Charge Sales and Excise Taxes Royalties on Canada Lands Indirect Rent Dissipation Price Controls
Source: Robin Broadway "Economic Implications of Revenue-Sharing Alternatives" in Saunders (1986), pp.104-106.
Mulroney aptly stated that the "solution to the crisis rests on the recognition of the right of the province to be the principal beneficiary of the oil and gas reserves", and laid down the following: (1) Both the federal and provincial governments would have an equal role in the management of resources;
(2) The federal government will collect the normal federal taxes and exercise duties;
(3) The provinces will collect royalties from those revenue bases (ibid).
73 Romanow, Roy J. "Federalism and Resource Managament" in Saunders, pp.2-3
154 Mulroney won the elections, formed the government in September 1984, and pursued negotiations earnestly which led to Atlantic Accord with Newfoundland and Nova Scovia which created federal-provincial joint administration of off-shore oil development. The Atlantic Accord was followed by the Western Accord which brought Alberta and Saskatchewan under the same scheme. These accords guaranteed the provinces their economic rights over natural resources in their provinces (Romanow, pp.6-7). Moreover, Mulroney's fiscal policies are typical approaches of revenue sharing in co-operative federalism, which permits joint administration in some areas (e.g. corporate income taxes) while at the same time adhering to autonomous taxation for each level of government in some areas. But in the 1990s, the federal government have ceded many natural resources taxation to the provincial authorities.74 I believe that, soon or latter, the Canadian experiences will become more fundamental during the transition period in the Sudan as well.
IV. OIL-WEALTH SHARING IN NIGERIA
In 1954, Nigeria promulgated a federal system with four regions: East, North, West and South-central. But in the 1990s, the number of states has been increased to 36 states and 589 local governments. Despite the Nigerian political instability and frequent military coup d’etats, oil production continued to increase and is now estimated at 2 million bpd. This accounts for nearly 98 percent of exports and 75 percent of government revenue.75 But the sharing of this wealth has been the point of contention in Nigeria. Since the collapse of the First Republic (1960-66), the military rulers started to pull more fiscal powers from the regions and concentrate power (including fiscal powers) at the centre -- thus weakening the power of the states. The number of states further made the states like mere districts or shires of a centralised state. The lucrative taxes, such as excise duties, mining rents/royalties, petroleum profit tax, capital gains tax, income tax, company tax, etc. remain under the jurisdiction of the federal authorities (Mered, p.602). Therefore, the Nigerian model of centralisation of revenue raising and expenditure powers has been further weakened by lack of an independent grants commission. The taxation policies are centralised in such a way that oil-revenue is brought to the main treasury and the federal government distributes the wealth. Unlike the Commonwealth Grants Commission of Australia, which is an independent body, the
74 Krelove, Russel et al. “Canada” in Ter-Minassian, pp.210-211. 75 Mered, Michael. “Nigeria” in Ter-Menassian, p.598.
155 allocation commission in Nigeria operates under the decrees of the President of the Republic since November 1979, when President Shehu Shagari set up a fiscal review. Nonetheless, "The Presidential Commission on Revenue Allocation" led by a distinguished economist Dr. Pius Okigbo, was able to provide a reasonable scheme for oil wealth sharing (Ikein and Briggs-Anigboh, pp.162-168). The key issues identified by the Okigbo Commission were included horizontal or inter-state equalisation using state population, derivation (giving back a certain percentage to oil producing states), and the level of socioeconomic development (ibid). But even then, the Shagari administration and subsequent rulers of Nigeria disregarded the expert opinion and adopted the 55:30:8:7 ratio for federal, state, local government, and special fund respectively. Of the 7% allocated as special fund, 3.5% went to derivation; 2% to the state of origin; 1.5% goes to mineral producing areas; and 1% for environment (ibid, p.181). In all this scheme, the federal government predominates the revenue and spending powers. Furthermore, this approach weakens the power of the states. For instance, the Niger Delta states, which produce up to 43 percent of Nigeria’s oil are generally neglected and rather impoverished. In other words, the centralised fiscal policies appear inappropriate for a multinational state like Nigeria. The doctrine of shared rule and self- rule demands that a federal political system, by law, must share revenue raising and expenditure powers. This often requires a meticulous arrangement where units are assigned certain taxes to administer, while others fall under concurrent jurisdictions. However, this is not often easy.
V. THE POLITICS OF OIL WEALTH SHARING IN THE
SUDAN
It was in 1979: as soon as it became known that the American Chevron Oil Company struck an oil well in Southern Sudan, the politics in the country soon became petrolised. First, where the oil was discovered was kept the top secret until General Joseph Lagu, the then President of the High Executive Council in Juba, broke the news in public that oil has been discovered in Bentiu, Western Upper Nile.76 Just before the oil could be extracted, President Jaafar Mohamed Nimeiri was already feeling uneasy about oil wealth falling into the South, a region that has been neglected and whose political questions have not been adequately resolved.77 Instead of handling the situation
76 Regular conversations with Mukungu General Joseph Lagu (rtd) about the 1979-83 period clearly correlates with oil discovery with President Nimeiri's shift to Islamisation. 77 Badal, Raphael K. 1983. Oil and Regional Sentiments in Southern Sudan. Syracuse, Syracuse University.
156 judiciously and in co-operative manner, Nimeiri committed political mistakes. His immediate policy reactions were: (i) To decree and gerrymander the Bentiu districts as "Unity Province," and to be administered from the palace; and
(ii) To decree and construct a refinery in Kosti, some 250 miles north of the oil wells. This was in direct opposition to the proposal made by the statesmen from the South to construct the refinery where oil was found.
The location of the “firm” was in itself a sensitive political matter. Based on the need and backwardness criterion, the Southern politicians had hoped that the South was finally going to overcome its backwardness through oil revenues which would have boosted development in the South: the provision of jobs at the refinery plants and community development in the oil districts (Badal 1983). Of course, evidence in most oil producing and exporting countries testify that local areas benefited most from the extraction of oil or any other minerals. For instance, Scotland has been the immediate beneficiary of the British North Sea oil development.78 When Nimeiri decreed his "oil boom" economic policies, the Southern Sudanese hopes for immediate benefits were, undeniably, a cause for disappointment. Apart from devising divide and rule politics and playing one Southern Sudanese leader against another, Nimeiri's policies irritated the Southern political elite exceedingly. Inevitably, suspicion grew in the South, which led to demonstrations in the 1979/1980 by students of various schools in Juba city. The students chanted slogans decrying Nimeiri's policies, especially putting the Bentiu oil wells under the palace and then constructing a refinery in the North. The demonstrators now demanded that oil should be exported through the port of Mombasa than Port Sudan.79 There is no doubt that the Southern reaction may have also alarmed Khartoum: it was interpreted in the North that the South wanted to monopolise the oil wealth. This of course was not true nor did the South have the power to do so; but the reverse was and remains to be true that the Khartoum does not want to share the oil wealth equitably. However, the petrolised politics soon took a radical twist: Islamisation of the state took shape, governments in the South were changed at will, the hard-liners especially in the South were thrown in jail, the re-division of the South was imposed (in direct contravention of the Addis Ababa Agreement of 1972) and the movement of troops,
78 Armstrong, Harvey and Jim Taylor. 1993. Regional Economics and Policy. London, Harvester & Wheatsheaf., pp.46-48. 79 The author participated in those demonstrations.
157 which finally sparked the Bor Mutiny in May 1983, heralding the rise of the SPLA, was aimed at nipping off from the bud pockets of resistance from the ex-Anya Nya soldiers. As though that was not enough, President Nimeiri declared the September Laws (imposition of Islamic Sharia in September 1983) and a state of emergency was tightened by Adala al-Nagizah or "instantaneous justice" under Sharia Courts. The latter were placed in every park, plus Nimeiri's notorious “Amni” or “National Security” which were ever-conspicuous signs of authoritarian dictatorship the Sudan ever bred. The present "Ghost Houses" or torture chambers of General al-Bashir ultimately derived from Nimeiri's cells and apparatuses. As it is now, all this intimidation was for “rational economic calculation” to monopolise oil in the South. Nevertheless, with the mutiny that was already difficult to suppress in the South, Nimeiri's policies only helped the nascent SPLA to recruit and trained almost immediately. Two years later, the oil wells were closed, as the SPLA's motive was first to deprive General Nimeiri any revenues from oil until a fair share of economic and political pie for the South was allocated and distributed. Moreover, the renewal of oil extraction (after 12 years closer) was owing to the 21 April 1997 Agreement between the NIF and Dr. Riak Machar's Southern Sudan Independence Movement (SSIM).80 Machar's militia were immediately deployed around the oilfields to guard and protect the fields from any possible SPLA incursions. In return the “Co-ordination Council” for the South, headed by Machar, was supposed to get a 40 percent of Sudan's share of oil revenues. But since that peace was a mere political bluff (which took years for Machar to realise its emptiness before he hurriedly returned to the bush to fight his former allies), the NIF did not really mean to give that share to the Co- ordination Council. This background is important if we may ever comprehend oil-wealth sharing in the Sudan, which I will now turn to discuss.
5.1 The NIF Attempts to Allocate Taxes and Spending powers The Tawali Law or Constitution of 1998 in the Sudan attempted to apportion taxes to federal, state and local government (as shown in Table 5(b). Table 5 (a): The NIF Division of Financial Resources (Articles 113-115).
80 Dr. Machar, Dr. Lam Akol Ajawin and Commander Gordon Kong declared a coup d'grace against their leader Dr. John Garang de Mabior on 28 August 1991 in Nasir. This inevitable created a South- South factionalism which hurt the Southern cause exceedingly.
158 Federal Financial Resources State Financial Local Government Resources Custom duties, sea and airport Share of business profits, Real Estate/property taxes/fees, company profits, share of industrial taxes, sales taxes, personal income taxes, stamp production taxes, revenue agriculture and animal duties, profits from national from state licenses, state production taxes, local projects, taxes on federal taxes and duties, profits industries and industries, corporate taxes and from state projects, handicrafts, any other taxes on foreign activities, taxes donations, loans and revenue generated on natural resources, donations, credit facilities locally. loans.
Unfortunately we can infer that the NIF regime is not serious about effecting a fiscal policy for wealth sharing in the Sudan. Furthermore, the Constitution has been unusually silent on the main issue of equalisation: how oil wealth might be distributed. The revenues from oil and gas cannot just be glossed under company profits or profits from national projects that accrue to the federal government: rather fiscal policy for oil-wealth sharing among Sudanese should be explicitly stated as the bargaining chip to end the war itself. The Sudan, as the new oil-exporter, is well placed to design fiscal policy for oil- wealth sharing, and perhaps avoid the experiences underwent by other oil-exporting countries. I believe that the assignment of a decentralised tax scheme by a national constitution, as discussed above, is worth recommending for the Sudan. This is because vertical and horizontal imbalances are most likely to be resolved by assigning tax schemes to the states, permit some taxes to be raised and administered jointly, while some may be monopolised by the federal authorities. This is a general practice in most industrialised federal states as discussed.
5.2 The Morality and Legal Obligation to Share Oil Wealth In the situation where the conflict centres on resources, I believe oil wealth sharing should be stated unambiguously.81 Here, I will suggest possible ratios that could match the Sudanese scenarios. The ratios will ultimately be derived from comparative survey of oil-exporting countries in the LDCs in which the Sudan would not need to re- invent some formulas for oil wealth sharing when such formulas seem to have worked well in other countries.
81 Professor Mohammed Suliman, a panel discussant with me in the Sudan Human Rights Organisation (SHRO) in London, Saturday 13 October 2001, stressed this point that the SPLA early attacks were targeted at the Jallaba institutions, tractors, and corporations and this was to prevent the Jallaba from taking over the Southern Sudanese resources.
159 The idea of sharing national resources equitably82 is not new; rather it is central to the philosophy of representative government, and civic culture inherent in participatory democracy.83 The original position where natural provisions can hardly be hoarded by a few in exclusion of others is still part of our ethics in the twenty first century. It is not uncommon nowadays that economic rights are legal and social rights. These are already enshrined in the UN Covenant on Economic, Social and Cultural Rights and the UN Covenant on Civil and Political Rights.84 As Cassese interprets Article 1(2) of Covenant, he noted that: “… the right to control and benefit from a territory’s natural resources lies with the inhabitants of that territory. This right, and the corresponding duty of the central government to use the resources in a manner which coincides with the interests of the people, is the natural consequence of the right to political self-determination (Cassese, pp.55-56).” As this Covenant obliges central authorities to be fair in their economic policies, I believe that the advantages of equitable oil-wealth sharing scheme in the Sudan could inevitably bring about: (a) harmony between the North and the South; (b) resolution of the protracted conflict; (c) economic development for regional convergence and environmental protection; and (d) restoration of dignity and respect for the Sudanese people. It is also apparent that without the will and mechanism of sharing oil-wealth, meaningful peace may remain illusive in this contested country. Indeed, economic rights go hand in hand with other fundamental rights, such as: civil rights (rights to life, security, physical movement, legal equality, due process, freedom from cruel and unusual punishment); political rights (freedom of speech and assembly, unrestricted rights to vote and to seek political office); cultural rights (education opportunity, religious freedom, family life, cultural diversity). Therefore, the aim of any oil-wealth sharing scheme in the Sudan should, therefore, be based on equalisation and need. Equalisation means: equal capacities; equal living standards, and equal provisions of public goods and services. While need implies the amount of money the state needs to meet the national average. In both cases, a measure of the national average standard of living must be established. Furthermore, equalisation has two components: vertical and horizontal equalisation. Vertical equalisation attempts to narrow the imbalances between the federal and subnational levels of government in a federation. Whereas, horizontal equalisation generally attempts to narrow the differences between subnational units. Equalisation bellies on the idea that
82 Common, Michael. 1996. Environmental and Resource Economics: An Introduction. London, Longaman, pp.231-233. 83 Yinger, J. Milton. 1994. Ethnicity: Source of Strength? Source of Conflict?. Albany, SUNY Press, p.84. 84 Cassese, Antonio. 1995. Self-Determination of Peoples: A Legal Reappraisal. Cambridge, Cambridge University Press, Chapter 3.
160 all citizens within a federation should be entitled to comparable services without having to be subjected to excessively different tax rates. This is due to recognition that disparities in wealth among regions within a federation are likely to have a corrosive effect on cohesion within a federation (Watts 1999, pp.50-51). Equalisation is a highly held value among many federal states. For instance, in Germany Article 107(2) of the Basic Law (as amended in 1969), for instance, specifies that: Federal legislation shall ensure a reasonable equalisation between financially strong and financially weak Länder, due account being of the financial capacity and financial requirements of communes and association of communes. Such legislation shall specify the conditions governing equalisation claims of Länder entitled to equalisation payments as well as the criteria for determining the amounts of equalisation payments. Such legislation may also provide for grants to be made by the Federation from federal funds to financially weak Länder in order to complement the coverage of their general financial requirements (complemental grants).
Thus equalisation has been a constitutional requirement in many countries -- as seen by huge social and fiscal administration of various grants.
Therefore, if the Sudan adopts the "One Sudan, Two Systems" proposal85 then the levels of fiscal federalism that we expect to see would be as follows: the Confederal Level 7(a chain connecting the two-states); the Southern State; the Northern State; an Environmental conservation/protection from oil spills in oil-wells or in the pipelines as well as community development within the oil producing districts; and finally Reserves provision for non-renewable resource.
Table 5 (b): Suggested Fiscal Policy for Oil Wealth Sharing in the Sudan
Level of Government/Institution Proposed Oil Wealth Sharing ( %)
Confederation 30% Southern State 30% Northern State 30% Environment 5% Depletion Allowance/Reserves 5%
85 Deng, Francis M. and J. Stephen Morrison. “U.S. Policy to End Sudan’s War: Report of the CSIS Task Force on U.S.-Sudan Policy.” Washington DC, CSIS (February 2001).
161 This could be shared in the following ratios: 3:3:3:0.5:0.5 respectively. That is, the Confederation gets 30%; Northern State 30%; Southern State 30%; Environment Clean up and Community development within the oil districts 5%; and Reserves or provision for non-renewable resource 5%. Let us assume, hypothetically, that the production level during peacetime rises up to 1,000,000 bpd and the market price is $24 per barrel of crude oil, respective sums from these ratios could be calculated. Of the 60 percent ($14.40 per day) allocated to the Sudan, respective levels of governments would share as follows: Confederation, $4.32m per day; Southern State, $4.32m per day; Northern State, $4.32m per day; Environmental protection and community development, $720,000 and Reserves Account, $720,000. Why all this meticulous arrangement? An important national matter is that an economic and fiscal federalism, which would give the centre the monopoly oil wealth, would fall far short of resolving the Sudanese tribulations: First, it would promote a de jure and de facto asymmetry between the states and the centre – thus countering the very problem we wish to solve. Since the nature of asymmetry would appear as a "permanent relationship" than a "transitional one" the nature of the power relations between the centre and the peripheries has been both a de jure and de facto one. As such, this system would be carried over into the new oil boom economy where the centre would use oil wealth to strengthen itself and return the country back to the very problematic Arab- Islamic domination that has kept the Sudan at war since independence in 1956. To prevent this from perpetuating itself (or imposing a circular cumulative causation), the fiscal federalism suggested herein envisions an economic system that could have fundamental consequences for the Sudanese power structure itself: (i) Politically, it would be a case where the centre would not dominate the federation. Instead power will be dispersed to multiple centres and various levels of government: federal, subnational, intergovernmental, environmental, and provisions for non-renewable depletable resources; (ii) It guarantees state autonomy or self-rule and provides for shared rule (joint administration) in intergovernmental fiscal relations; and (iii) Permits regional development policy to take place. The degree of autonomy and powers assigned to or exercised in practice by each unit (self-rule) is an important aspect of fiscal federalism. This includes the fiscal powers and relative financial resources available to each member state, and representation in the federal institutions (shared rule) is a major channel for influencing federal policy-making (ibid, p.4). And to realise this, the Sudan should also craft economic policy for regional convergence, following the EU model, and policymaking.
162 5.3. How the Sudan uses its oil-revenue How the Sudan uses its revenues from oil and gas is very important in the economics of oil development in the country. This is because experiences from many petro-states testify that petrodollars alone without proper fiscal policies for wealth sharing cannot make the nation any better. According to Karl, petro-states reveal a striking similar structuration of choice, which penetrates all levels of political domination, and they suffer from diminished state capacity when states do not have to depend on domestic taxation to finance development (Karl 1997, p.189). This is because governments are not forced to formulate their goals and objectives under the scrutiny of citizens who pay the bills. She noted that: "Excessive centralisation, remoteness from local conditions, and lack of accountability stem from this financial independence … any regime grafted onto this structure, whether authoritarian or democratic, is likely to be considerably arbitrary, irrational, and volatile when making economic policy -- the antithesis of the environment necessary to confront a boom successfully (Karl 1997, p.190)." In addition, petro-states generally fail to maintain growth and sustainable development. The oil booms in the 1970s raised high expectation of resource-based industrialisation, but as Auty wrote: The high expectations from RBI were largely unfulfilled, raising important questions about the causes of its failure; its wisdom as a development strategy; and the consequences for both the oil-exporting countries and key sectors of global manufacturing industry. Specific issues concern: the extent to which RBI is constrained by country size; the political limits on effective industrial development; the merits of state enterprises versus multinational resource corporations (MNRCs); the links between RBI and other tradeables subsectors; and regional policy in developing countries.86
In managing oil booms, the political environment has been stressed as a major determinant whether the oil-wealth would be translated into sustainable development. Auty and Mikesell argued that “What is required is not the sustainability of the mineral production that initially generates growth, but the maintenance of economic and social conditions for sustaining that growth …[but the reality shows that] many of the mineral- exporting countries reviewed in this study have not realised the full potential of their mineral resources for achieving and maintaining growth.”87 They established that the problem lies in the public policies oil-exporting countries in the Third World pursue, including the choices of investments they design, where growth is maintained solely by continues resource extraction and plummet upon the depletion of resources (ibid, pp.26-
86 Auty, Richard M. 1990. Resource-Based Industrialization: Sowing the Oil in Eight Developing Countries. Oxford, Clarendon Press, p.3 87 Auty, Richard M. and Raymond F. Mikesell. 1998. Sustainable Development in Mineral Economies. Oxford, Clarendon Press, p. 3.
163 28). Even Indonesia which did not get a great deal of criticism like Nigeria still witnessed many problems in managing the oil-boom economy.88 So, the availability of wealth alone, from whatever source, is not a necessary and sufficient determinant whether the state would allocate and distribute wealth when the issues of equity and distributive justice have not been resolved. Furthermore, socio-economic development through oil extraction, as studies have shown, demonstrates mixed results.89 Philip argued that abundant oil wealth has not generally resulted in serious development (let alone efforts in equitable redistribution) and oil income has not necessarily made the recipient countries more democratic, less repressive or better able to live in peace with their neighbours (Philip 1994, pp.14-15). The problem, according to Philip, lies in large measure with the uneven quality of public administration: "The oil-boom money, so far from easing this constraint, in some ways aggravated it. There was too much money in too few hands for the quality of decision- making to remain unaffected."90 Moreover, where poor management and corruption of officials is preponderant the state sponsored projects often become conduits for wastes. Karl and Auty affirm that bad governments squander oil-wealth than improving the lives of their own citizens. Other petro-states like Libya, Gabon, and Cameroon have, nonetheless, shown interest over time to distribute wealth internally to all regions.
5.4 Regional Economic Development Policy One of the major grievances in multinational oil producing states is the uneven allocation and distribution of oil revenues, especially to the native communities in the oil producing regions. This is already the major issue in Nigeria today. Ethnic groups in the Niger delta are a perfect example.91 About 32 percent of Nigeiran 2,000,000 bpd is produced in the Delta region. But state neglect of the natives in the Delta have led to various protests which in turn solicit state repression and human rights abuses (HRW The Price of Oil and Ikein & Anigboh, p.272). Indeed, in the Niger delta oil has been a crucial resource which led to major confrontation between the ethnic communities (especially the Ogoni crisis which led to the execution of Ken Saro Wiwa by the military regime of General Abacha) in the oil-producing districts and the successive governments and the
88 Prawiro, R. 1998. Indonesia’s Struggle for Economic Development: Pragmatism in Action. Kuala Lumpur, Oxford University Press, pp.102-118. 89 Auty, Richard M. "The Internal Determinants of Eight Oil-Exporting Countries' Resource-based Industry Performance. Journal of Development Studies. 25, 3 (April 1989); Karl, Terry L. 1997. The Paradox of Plenty. 90 Philip, George. 1994. The Political Economy of International Oil. Edinburgh, Edinburgh University Press, pp.176-177. 91 Human Rights Watch. 1999. The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria's Oil Producing Communities. London, HRW, pp.1-5
164 multinational oil companies (who are usually accomplices in human rights violations against the natives). The Sudan, which seems to be adopting the Nigerian model, should rethink its approaches. Another way of resolving this problem is to institute regional economic policy along the EU model. Hence, apart from those oil distribution ratios suggested above, the Sudan should adopt regional economic policy for regional convergence. The European Union's regional economic policies employ all kinds of instruments to address multiple factors that breed regional inequalities. The 1973 Thompson Report (which critically studied the consequences of regional imbalances) noted that: the existence of regional imbalances works against and puts the European Union in jeopardy, and that unresolved regional disparities poses a threat to the common market and the Community itself.92 And as such EU responded with the establishment of European Regional Development Fund (ERDF) in 1975. Since many backward regions continued to be seen as potential threats to EU, the "Europe for Regions" policy had to redefine and categorised regions. For instance, backward regions have been defined as follows: (a) Peripheral regions which are economically stagnant and facing underdevelopment (Southern Italy, Northern Ireland, and Spanish peripheries); (b) Agrarian regions in the centre (Schleswig-Holstein in Germany and northern Netherlands); (c) Stranded or depressed regions, mostly declining industrial districts (South Wales, Wallonia in Belgium, etc); (d) Special problem areas (mostly former East Germany); (e) Frontier regions; (f) Low population areas (mostly northern parts of Sweden and Findland), and (g) Conurbation.93
And to respond to these: Objective 1 of EU regional policy channels funds to "structurally backward regions", and Objective 2 targets funds for industrial rust belts and depressed rural agrarian communities.94 The ERDF and other funding such as European
92 Sweet, Morris L. 1999. Regional Economic Development in the European Union and North America. London, Praeger., pp.94-95. 93 Vanhove, Norbert. 1999. Regional Policy: A European Approach. Aldershot, Ashgate, pp.122-123. 94 Armstrong, Harvey W. "The Role and Evolution of European Community Regional Policy" in Jones, Barry and Michael Keating. 1995. The European Union and the Regions. Oxford, Clarendon Press, pp.23-62; Loughlin, John. "Regional Policy in the European Union" in Stavridis, Stelios et al (eds). 1997. New Challenges to the European Union: Policies and Policy-making. Aldershot,
165 Agricultural Guidance and Guarantee Fund (EAGGF) are provided on top of what individual states allocate to the regions. The aim of such regional policy has been an attempt to create "parity" through strengthening economic and social cohesion, narrowing regional disparities" and ensure a "fair spread" of benefits to all EU regions (ibid). These strategies are definitely admirable and worth replicating.
VI. CONCLUSION
In this paper I have attempted to articulate the international experiences in sharing wealth from natural resources. And using cases such as Nigeria and Canada in attempts to shape the course of inquiry, I found the Nigerian case unattractive because it has not resolve the issues of oil-wealth sharing successfully. Canada and Australia offer hopes for the Sudan to re-examine its current approach. Oil wealth sharing in other centralised states, such as Cameron, Gabon, Indonesia and Libya were not brought here but are examined by the author elsewhere. I also discussed the issue of state institutions in realising equitable distribution of oil-wealth. I believe the military federalism in the Sudan is incapable of redistributing the Sudanese oil wealth. Instead, as experiences have shown, the NIF regime adopts the Iraqi-Iranian model of military-industrial led development. This would only serve to perpetuate a regime hostile to its people and insensitive to the welfare of the Sudanese people. I am aware that historical, social and economic causes for war in the Sudan exist, as Francis Deng elucidates in his war of visions.95 But since the Sudanese conflict has been hitherto the war of natural resources, I believe that the oil economy could serve two main purposes: (1) bring an end to the conflict by way of fair oil-wealth sharing arrangements; (2) escalate the conflict by hardening both sides in conflict. It is from the latter point that we should do our best to suggest optimal uses of oil wealth towards the first point. This would afford the Sudan the opportunity to resolve its long enduring war.
Dartmouth; Vanhove, Norbert.1999. Regional Policy: A European Approach. Aldershot, Ashgate, chps. 7 and 10-11 95 Deng, Francis M. 1995. War of Visions: Conflict of identities in the Sudan. Washington DC, Brookings Institution; Wai, Dunstan
166 b. Summary of discussion
1. The present legal position in the Sudan in accordance with the 1998 Petroleum Law, which repeated the position under the earlier law, is that all hydrocarbons resources in the ground are vested in the Republic of the Sudan as a sovereign state, and ownership could only be vested elsewhere from the point of production.
2. The Government is of course only the executive branch of the state (the legislative and the judiciary being the other two), not the state itself. This means that allocation of revenues and/or taxation powers between central, regional and local branches of the Government did not bear on the Republic’s ownership, nor require any change. Vesting petroleum ownership in the regional state might raise difficult practical considerations as to resources crossing regional boundaries and as to offshore reserve ownership.
3. There is a distinction between revenue sharing only and sharing of revenue collection authority. Following up on the above paper, it would be possible, for example, to allocate the collection of petroleum royalties to the region concerned, while leaving collection of tax with the central government in the agreed percentages. It is important to carefully design the regional institutional collection and expenditure capacities underlying any revenue sharing agreement, and to allow for an interim period in which to establish the new institutions before the transfer provisions become fully operative.
4. The revenue sharing of the oil resources could be aided through the decentralisation of revenues and taxing authority. A great deal would depend on the institutional capacity at local levels. Rents and profits of the surplus belong to the nation as a whole and they might stay with Central Government so that they can address vertical and horizontal inequalities; it is very difficult to do that at a state level. If the rents stay at Central Government then royalties could stay at local level (level of production is a good measure of demands made on central government to provide social services). It is very important to get it right. There is a need to ensure there is no escalation of taxes at a later date.
5. The Nigerian model turned out badly but the fault isn’t necessarily at the share level – they are now quite favourable locally. There is an issue of governance and accountability at local level rather than the share agreements. Share revenues have been revised in the last year for the Niger Delta development. $1bn a year is going into that area now – it’s the governance which is now crucial. 5% for the environment and 5% for pollution – a rainy day account – this is strong in oil producing states right now. But you need to ensure that it doesn’t become a temptation for all politicians. However, it can be a very useful pot. You need to be open to revisions of the percentages. There is also the possibility of a stabilisation account to enable the government to come through the great flux of oil prices.
6. Concerning use of revenues, they are often wasted because of corruption. Transparency is required– expenditure programmes should be discussed openly. The
167 1997 Sudan Peace Agreement gave about 40% of the accrued revenue from oil to the Southern Co-ordination Council. There are different ways to deal with problems between states and the centre. This could be achieved either through the decentralisation of the tax base or the distribution system itself. Distribution will reduce quarrels.
7. There is a basic lack of agreement between the parties on the underlying factual situation, e.g. as to how much oil revenues are currently accruing to the central government, how much is being spent on the regions, are the existing MNOCs concessions too favourable, the extent of environmental damage, etc. A revenue- sharing formula might be assisted by the establishment of an independent fact finding task force to provide a basis on which the tax/expenditure issues could then be considered and perhaps resolved.
8. A revenue-sharing formula must take into account the needs of all stakeholders. The oil companies are well aware of the implications of working in a nation at war. The interim period is vital. This is the arrangement that we need to start considering if we are to move forward on issues of peace. Oil is important but there was war even before its discovery. The examples of federal nations were very useful. The formula is open for negotiation; those living there want to reach a settlement. The real question is consideration of the use of resources. Sources of taxation law are from parliament or from military general decrees; they can suggest the rate and the types of tax.
168 8. How Religion and State have been Handled in the Sudan and how they have impacted the Three Faith Communities, Muslims, Christians and Indigenous Beliefs: a historical background
a. Paper presented by Professor Yusuf Fadl Hassan
The Christian Kingdoms and the Penetration of Islam.(96) Between the seventh and the fifteenth centuries A D the Nilotic Sudan (which embraced the kingdoms of Nobatia, Al-Muqurra and cAlwa) was influenced by two major cultural currents, which left indelible marks on the traditional African beliefs. The first was the evangelization of the three Kingdoms by 580 A D. However no sooner had Christianity prevailed in those kingdoms than the second cultural influence, Islam, emerged in Egypt, Nobatia and al-Muqurra. Gradually it attained prominence filling the cultural vacuum caused by the decline of the three kingdoms and then by the Christian faith. The process of evangelization began with the arrival of persecuted Christians from Egypt, and was later reinforced by two formal missionary groups, representing two rival Christian doctrines: the Melkites or Dyophysites, and the Jacobites or the Monophysites, (generally identified with the Egyptian Coptic Church). Those missionaries who continued to co-exist for centuries concentrated their efforts on kings and nobles and hence Christianity became closely identified with local political institutions. Although the king remained the central figure in both religious and secular matters, the belief in his divinity disappeared. Indeed people began to glorify a “heavenly king” who exercised greater influence over them than the state had done. Gradually the new faith spread and initiated a new moral bond with which the three kingdoms were identified. When the Muslims attacked Nubia in the middle of the seventh century, the new faith was fairly established. Muslim intervention in Nubia was probably instigated by the frontier raids that Nubians launched in support of their Christians brothers in Egypt. The Arab attack ended in the conclusion of the Baqt treaty, which was essentially a pledge of non-aggression and it remained the basis of Muslim- Sudanese relations for six centuries. In consequence Islamic influences were initially carried by itinerant traders and Arab tribesmen who penetrated in large numbers. Arab nomads were the main agents of the dual process of Arabization and Islamization. They intermarried with the Sudanese peoples many of whom embraced Islam, assimilated Arab genealogies and adopted Arabic language and culture. The ethnic and cultural
(1) I have made considerate use of my paper, “The Role of Religion in the Sudan North-South Conflict with Special Reference of Islam, Sudan Conference, Yale University, 1999. I am grateful to Dr. Ahmed al Mufti, Dr. Muhammad Al-Mukhtar Hasan Hussayn and Ustadh Abul Qasim Abd al-Wahid for supplying me with some useful data.
169 assimilation was a two way process involving the Arabization of the original inhabitants and the indigenization of the Arab immigrants in no small measure. However the term “Arab” was progressively being depleted of its ethnic significance and hence the cultural significance becomes the more logical definition of this development. The process of Islamization, like Christinization before, was a peaceful one. There is neither a record of forceful conversion nor did the Muslim rulers in Cairo initiate a policy of formal proselytization. There was indeed a substantial level of free interaction between the different cultures. Nubia itself was endowed with an admirable surrounding of tolerance between Jacobites and Melkites on one side and also among Christians, followers of African beliefs and Muslims who co-existed for centuries virtually without conflict. The terms of the Baqt treaty were probably conducive to the foundation of this tolerant atmosphere. Contrary to the standard pattern advocated by Muslim International Law where the world is divided into two campuses: Dar al-Islam, the abode of Islam, which would ultimately incorporate the second campus Dar-al-Harb, the abode of war where non-Muslims live. Nubia was treated differently it occupied an intermediary position between Dar al-Islam and Dar al–Harb, hence it was called Dar al-Aman the abode of peace, or security.
Furthermore Muslims took full advantage of the vacuum that arose from the political and religious decline of Christian Nubia. {Hasan, 1967, 8-9}
The Islamic States. The ascendancy of Islam and Arabic as a lingua franca dates from the establishment of the Islamic sultanates chiefly the Funj, the Fur and Tegali. Henceforth the course of Islamization was guided by the conciliatory and peaceful sufi (mystic) missionaries. Islamic faith was spread by pious men associated with one or other of the numerous religious orders (tariqa pl.turuq) constituted throughout the Islamic world. Sufi preachers who were commonly known as fakis (a Sudanese dialect of the Arabic faqih, a jurist) concentrated their efforts on the spread of sufism through preaching (largely among believers in African creeds) and initiation into a religious order, others assumed the role of culama (learned men in Islamic sciences) by teaching principles of Islam or administering the Sharica and also served as intermediaries between the people and their rulers; and at times assumed the role of critics. The khalwa, (a Quranic school or a sufi retreat) was the focal point of the faki’s activity. The Sharica, the reveled Holy Law of Islam, was gradually being implemented definitely in matters of personal status i.e. marriage, inheritance. Although the degree of its application is not clear, the sufis and other culama (especially qadis or judges) were increasingly exerting more influence in public affairs.
170
The Turco-Egyptian Regime. It was during the Turco-Egyptian regime (1821-85) that system of religious courts to administer the Sharica was enacted. Henceforth a new class of trained culama began to emerge. Though their emergence seem to have constituted a threat to the prestigious position that the sufi orders had occupied in the hearts of the people, the Mahdist Revolution (1881-1898) was hostile to the official culama class and the sufi creeds. Muhammad Ahmad al-Mahdi was opposed to the moral laxity of the Turco-Egyptian administration and the unorthodox tendencies of the religious orders. He imposed a more puritanical and “scriptural inspired social and legal system” (Hill, 187). His movement was part of the eighteenth and nineteenth centuries revivalist movements that encircled the Islamic world. Their avowed objective was a return to the basic sources of Islam: the Qura’n and the Hadith or the Sunna. Such an aim includes (a) following the rules laid down in the Qura’n and the Sunna by the individual, (b) purification of Islam in society from non-Islamic practices and bid ca (innovation) and (c) recreating an Islamic state by instituting the Sharica as state law in accordance with the practice of the Prophet Muhammad at al-Midina. These objectives indicate a kind of changing both the individual and the state and hence the idea of al Islam din wa dawla or Islam religion and state (Hoogkin, 1).
The Legacy of the Mahdiyya.
By 1885 al-Mahdi who was originally a member of the Sammaniyya order succeeded in winning resounding victories and creating an Islamic state. In that state the Shar ica was widely applied and zealously administered. Al-Mahdi’s legislation were aimed at canceling customs that opposed the Sharica or were socially unacceptable. The spirited stand of the Mahdist followers the Ansar against the invading Anglo-Egyptian army in 1899 should be considered in the context of an Islamic resurgence that encompassed the Islamic world in response to the encroaching advance of imperial Europe. Though defeated by the Anglo-Egyptian army, the Mahdist state has left an indelible mark on the course of future Sudanese politics: “It left", as J.L. Esposito observed"a legacy of religious identification, leadership and ideology associated with the state that has continued to influence Sudanese politics”; the Mahdiyya furnished the political development of the country with an important reference point. The Mahdist state came to be regarded as the first independent Sudanese state in whose endeavour towards independence the notion of independence was joined with that of an Islamic state. “Thus”, concludes J.L. Esposito, “Sudan’s historical, political and socio-religious experience has made Islam a force to be reckoned with by political leaders whatever their ideological proclivities”. {Esposito, 189}.
171 Indeed in nearly all-Islamic states religion is a powerful factor, especially in internal affairs. The intimate relationship between religion and politics in Islam is an old one, as hinted earlier. Unlike Christianity where its founder reputed to have said: “Render unto God the things which are God’s”. This dictum remained pivotal to Christian thought and practice. Consequently there were always two authorities God and Caesar (or state) dealing with different matters and according to different laws. Separation of Church and state is an accepted fact in the Christian world. In historic Islam such a doctrine did not exist. “For a Muslim, church and state are one and the same. They are not separate or separable institutions and there is no way of cutting through the tangled web of human activities and allocating certain things to religion, others to politics….”. Quoting Ayatollah Khomeini, B. Lewis stated that: “The Prophet Muhammad founded not only a community but also a polity, a society and a state of which he was a sovereign”. And as a sovereign he commanded armies, concluded peace, collected taxes, and dispensed justice. This affirms that from the very beginning of Islam religion and the state are one and the same. {Lewis, 12}.
The Condominium Government: A Secular State.
With the establishment of the Anglo-Egyptian Condominium (1899-1955) there was a complete shift from a religious to a secular state. However it was to the British, the dominant partners in the condominium, and who were themselves Christians that the political direction of the Sudan fell. Western ideas and institutions were introduced by the British, and at the same time Egyptian cultural influence began to radiate once more into the Sudan. The colonial government embarked on a conciliatory programme to win the Sudanese acquiescence and support. A part from keeping a vigilant eye on the Ansar the government was careful not to meddle, generally, in the religion or custom of the people. Though most of the British officials were devout Christians, they manifested their respect to Islam while channeling the advancement of Christianity (which was marginally introduced during the Turco-Egyptian regime) to areas where Islam was not dominant. However, they denied Muslims the right to propagate their faith in those regions – a point to be discussed later. The British administration relegated the Sharica to the area of private status and introduced western (chiefly British common law) codes of civil and criminal laws. The new rulers found it difficult to comprehend the religious spirit that encompassed Mahdism hence it was declared a banned cult. However after 1918, due mainly to the efforts of Sayyid cAbd al-Rahman al-Mahdi that Mahdism became politically acceptable and the Ansar were treated as another religious order. Indeed the government patronized the leaders of the more influential orders namely the Ansar and
172 the Khatmiyya (under the leadership of Sayyid cAli al-Mirghani) both of whom were to play an important role in the nationalist movement.
Planting of Christianity and the Southern Policy.
Until the middle of the nineteenth century Islam and African beliefs were the only religions in the Sudanese scene. Christian faith was introduced a few years after the annexation of the Southern Sudan by the Turco-Egyptian regime. In 1846 Pope Gregory XVI established the Vicarate Aposolic of Central Africa (in Khartoum) to convert negroes to Christianity. Thus missionary stations were opened in the Southern Sudan. Their efforts were however hampered by a host of factors and hence little progress was achieved. On the other hand Islam seem to have made little impact beyond latitude, 10oN. Arab expansion was impeded by the water divide (consisting of the Sudd, Bahr al- Ghazal and Bahr al- cArab) and the tse-tse fly. The penetration of the Turco-Egyptian steamships beyond the Sudd led to some contacts with Islam but the oppressive policy assumed by the government in the newly annexed territories contributed to distancing the two regions. Further more the adverse Mahdist policy interrupted the development of Islamic presence that had begun to flourish in parts of the Southern region. {Beshir, 13- 14, 25-26} The Sudan government’s first concern was to keep foreign intervention (chiefly French and Belgian) at bay. Having warded off their rivals from the Southern Sudan, pacified it under the sole control of the condominium government, British administrators began to seal it off from any Northern Sudanese Arab or Islamic influences. The alleged reason for this policy of isolation was to protect the Southern Sudan from the ravages of slave-trade in which Northern Sudanese were earlier on connected. The real motive, it seems to me was that Christian missionaries and many government officials were, to say the least, not enthusiastic to see Islam expanding in that region. British officials sought to keep East Africa free from Arab and Islamic influences. Henceforth Missionary Societies were given a free hand in the region south of latitude 10oN. Furthermore the Sudan government and the Missionary Societies agreed to eradicate Islamic influences from the South. The spread of Arabic and Islam were curbed further through the “Southern Policy” which entailed, in short, the replacement of Northern Sudanese personnel by Southerners; free contacts between the two regions were severely restricted and the use of English in communication was encouraged. With the adoption of these policies the seeds of the North-South conflict were sown. The tendency of the two regions to drift apart was reinforced further by the southern Sudanese elite that graduated from missionary schools which came to uphold
173 the Christian faith and the English languages as their symbols of identity. Unfortunately the same periods witnessed very little socio-economic advancement. The Northern Sudanese were most critical of the British Colonial Administration for depriving them of the right of entry to the Southern Sudan thus obstructing the natural free cultural intercommunication between the two regions. On June 29th, 1924, the Imam of Khartoum Mosque censured the British officials for allowing Christian Missionary Societies to evangelize Southern Sudanese. The religious concern was echoed by politicians too. In 1942 the Graduates’ Congress demanded the abolition of government subsidies paid to missionary education. Five years later they requested the Civil Secretary to allow Muslims to propagate their faith in the South. {Hasan, 1999, 3-4} It was mainly in the Southern Sudan that the two monotheistic religions Christianity and Islam zealously competed to win adherents from among followers of African traditional beliefs. Both religious are universal in their mission and they aim to convert all mankind to their cause. Indeed the two religious were, and still are, inherently competitive in the propagation of their creeds. Competition has, on occasion, resulted in conflict However with the passage of time and the prospect of Sudanese independence, the government abandoned its conventional “Southern Policy” and endorsed the idea of a single united Sudan in 1947. Such a development was resisted by the Missionary Societies who feared that Muslims would curtail religious freedom in the country. When a united Legislative Assembly for the whole Sudan convened in 1948 Southerners were able to participate effectively in deliberations towards independence. Yet their disappointment with the distribution of senior posts by the “Sudanization Committee”, fear of domination by the North, and attempts to transfer the Southern Army to the North culminated in a mutiny of the Equatoria Corps in August 1955. Though the revolt was seemingly provoked by political factors, the religious stimulus was at the centre of the issue. A few months later Southern representative in parliament agreed to the declaration of independence in response to a pledge by the Northern political parties to sponsor a federal constitution. However, when it became clear that the sub-committee of the Constituent Assembly drafting a permanent constitution was unable to accommodate the Southerners’ demand to regional autonomy, representatives of the South walked out of the Constituent Assembly on June 16, 1958.
The Beginning of Demand for an Islamic Constitution.
The role of religion in the affairs of the state claimed the attention of the whole country. In a memorandum submitted by Shaykh Hasan Muddathir, Head of the Muslim
174 division in the judiciary, to the Constituent Assembly he, maintained that: “ In an Islamic country like the Sudan, the social organization of which has been built upon Arab customs and Islamic ways and of which the majority are Muslims, it is essential that the general principles of the constitution of such a country should be derived from the principles of Islam…” {quoted in Deng, 24}. Indeed the two leading political parties the Umma (embracing the Ansar) and the National Unionist Party (NUP, consisting of the Khatmiyya order) issued a demand for the establishment of an Islamic parliamentary republic based on the Sharica as the main source of legislation. They called for a more fundamental role for Islam than what prevailed under the condominium administration. Some Muslims like the Anti-Imperialist Front {a forerunner of the Communist Party} and the Republican Brothers (followers of Ustadh Mahmud Muhammad Taha} argued against the idea of an Islamic Constitution. The whole project was objected by the Southerners who stood firm like the Anti-Imperialist Front, on supporting a secular system. Under an Islamic constitution the Southerners feared to be treated like second class citizens, deprived of holding senior public offices like head of the state or chief of the judiciary. They also asserted that application of the Sharica would mean a return to the detestable days of slavery. Hence they threatened to secede and join one of the neighbouring African states. In the end they threatened to boycott the National Committee for Drafting the Constitution unless the Christian faith was acknowledged as a state religion on a par with Islam {Al-lajna al- Qawmiyya li-l Dastur, 6 session 21 –217; al–Buny, 24}.
cAbbud’s Assimilationists Policy and Missionary Societies.
It was during this political unrest and religious tension that army under General Ibrahim cAbbud assumed the reigns of power on November 17, 1958. The military junta did not have a specific agenda that would come close to the political aspirations of the Southerners. It maintained that cultural homogenization was essential to Sudan’s national unity. Hence the government accelerated the policy of national integration as the only tool to promote unity. It encouraged the spread of Islam and Arabic, discouraged missionary activities through nationalizing missionary schools and expelling foreign missionary personnel. These acts provoked much resistance. The missionaries rejected the government claim of complete control and claimed that “the {Catholic} Church has been given a special mandate and right by Christ to share in the teaching of mankind” {the Message, 14, 2, 1959}. The Catholic priests working in the Southern Sudan asserted that the 1962 Act which embodied these decisions, was intended “to make them disregard Christian Tenants and impose Islam upon them (quoted from the Universe, in Beshir, 81). In reply, Al–Ra’y al cAm, the Sudanese daily newspaper rejected the idea that the North
175 was conducing a religious war in the South and asserted that what happened was that Muslims were only given an opportunity to propagate their faith similar to the one granted to Christian Missionary Societies earlier on (Al-Ray Al- cAm, 7, 1, 1963). The government justified its position by asserting that the missionary organizations had exceeded the bounds of their mission: they incited Southerners against the government, and “exploited religion to impart hatred, fear and animosity in minds of Southerners” against Northerners. {The Expulsion of Foreign Missionaries, 16-17}. In short, the enactment of the 1962 Missionary Societies Act provoked much resistance and led to the appearance of the Anya- Nya guerilla army which enjoyed the moral and financial support of the Church. In 1963 the Anya-Nya started the second civil war and henceforth escalated their attacks on government targets. The situation deteriorated into naked war. Doubtless the strict unimaginative policy adopted by the government, the inflexible stand of the rebels and the Church and the ensuing brutalities created an irreparable atmosphere of bitterness and mistrust between the two sides. In the light of preceding events particularly with reference to the propagation of religion, it seems to me that the British administrators had given, in their attempt to protect the South, the Christian missionary societies a free hand that amounted to unrestricted monoply. Consequently the Church could no longer tolerate the presence of a rival faith that could successfully compete with it. Islam had in this country a historically peaceful socio-cultural pattern of dissemination. The course of peaceful Islamization involved free interaction of cultures, persuasion and consent. The military government unfortunately deviated from this peaceful practice to which the Sudan had been accustomed for centuries. During this regime the clash of cultures became violent and uncompromising. The inexperienced military government plunged itself into an armed conflict with a very experienced foe: the Church. The conflict was henceforth shifted from Khartoum to the South and soon it acquired an international dimension. Consequently the Southern Sudanese won the support of both the Church and the West. {Hasan, 1999, 5-6}.
The October Revolution.
The military regime was overthrown by a civilian revolution in October 1964 which had the support of the traditional political forces, the Communist Party and the Muslim Brothers. Five months later the Southern Sudan issue was discussed at the Round Table Conference attended by representatives of all Sudanese parties. It was an important face to face meeting in which Northerners and Southerners met as equals and discussed the Southern issue. Although some tentative solution was reached to eliminate the misgivings of the South in a united Sudan, some fundamental issues pertaining to culture, education and the nature of the constitution were left unresolved.
176 Islam had historically been so intertwined with Sudan’s political development and thus became an integral component of the programmes of most Northern Sudanese political parties. In his address to the Constituent Assembly in October 1966, Premier al- Sadiq al–Mahdi stated: “the dominant feature of our nation in is an Islamic one and its overpowering expression is Arabic, and this nation will not have its entity identified and its prestige, and pride revived except under an Islamic revival”, {Proceedings of Sudan Constituent Assembly, 1966}. The same attitude was set forth forcefully and comprehensively by Dr. Hasan al-Turabi, the leader of the Islamic Charter Front (ICF). It was mainly through the agitation of the ICF and “the mainstream parties” – the Umma and the Democratic Unionist Party (DUP) that the demand for an Islamic constitution acquired a focal position in the deliberations of the newly established committee to draft the constitution. As would be expected the mainstream parties persisted in their demand for an Islamic constitution. The main exception was the Communist Party whose stand was closer to that of the Southern Sudanese Political Parties, namely the Sudan African National Union, Sudan African Liberation Front and independent Southern personalities: they called for complete separation between state and religion. The unequivocal rejection of an Islamic constitution prevailed to the present day as a key factor in the Southerners’ strategy for resolving the conflict with the North. In the midest of this political wrangling at the Constituent Assembly the army stage its second coup d’etat. {Al- Buny, 46; Hasan, 199, 7}.
The Addis Ababa Accord.
On June 9,1969, General Jacfar Muhammad Numayri declared his government policy towards the South. The declaration acknowledged the historical and cultural differences between the two regions and the right of Southern Sudanese to develop their own culture and custom, and to develop regional autonomy within a united Sudan. The new policy initiated the prospect of “a shift from the government’s assimilationist approach towards more inclusive national unity”. {Lesch, 42-44} The declaration paved the way for the conclusion of the Addis Ababa Accord in 1972. Besides ending the civil war, the agreement resulted in the enactment of “the Regional Self-Government Act for the Southern Provinces”. It also guaranteed the freedom of religion. The accord was later incorporated in the permanent constitution where article 9 states that Islamic law and custom shall be the main source of legislation; personal matters of non-Muslims shall be governed by their personal laws. Article 16 recognizes the dominant role of Islam and Christianity in the life of Sudanese society (Badal, 269; Hasan, 1999, 7). Hence a de facto federal system was constituted. The Addis Ababa Accord, had by and large induced a favourable political climate for a decade, during which both Christianity and Islam gained new grounds in the
177 Southern Sudan. However in 1980 Numayri dissolved the regional government in the South and imposed a military regime and partioned the South into the three (old) provinces. Guerilla warfare followed.
The September Laws.
At the outset Numayri’s government had the support of the communist Party and was opposed by the Umma Party, the DUP and the ICF known collectively as the National Front. Having eliminated the communists and as a result of repeated attempts by the National Front to unseat him, Numaiyri sought and succeeded in achieving a national reconciliation with them. Henceforth the campaigners for the Islamic constitution especially ICF intensified their effort in that respect. A committee for the revival of Islamic laws was convened under the chairmanship of Dr. Hasan al-Turabi. The prospect of implementing Islamic law and creating an Islamic state raised grave concern among the Southerners who feared abolition their rights as non-Muslims. In short Numayri’s progressive reliance on Islam as a source of ideology and inspiration encouraged the ICF to clamour vigorously to achieve their objective. In September 1983 Numayri proclaimed the enactment of Sharica (or September) Laws. This included the hudud, the canonical penalties, derived from the Sharica. These prescribed offences are often associated with the Sharica and they the hudud became synonymous with it. Needless to say the hudud cover eight offences half of which are not applicable to non- Muslims. It is true that the punishment is severe but the evidence required to prove them is exceedingly difficult. {Al-Mufti, 27}.
Southern Sudanese Reaction and the SPLM. The declaration of Islamic laws led to wide spread opposition among the Southern political organization, students and the Church. The Catholic bishops of the Sudan. restated their old viewpoint: In June 1984 they urged their followers… “where the Sharia law conflicts with Christian traditions and customs and violates the freedom of conscience you must stand for Christ”. {Badal, 2,3, 269} However because of earlier political developments the gist of which is President Numayri’s failure to fulfill the Addis Ababa Accord, the Southern Sudanese reciprocated violently: the Southern forces mutinied at Pibor and Bor on May 19, 1983, thus marking the starting point of the second civil war or Anya-Nya II. Although the Islamic laws were proclaimed three months after the mutiny and were thus not directly connected with that incident, they were, to my mind, instrumental in stimulating wider ramifications both in the North and in the South. Some Northern Sudanese politicians and secular activists were dead against it, and were stunned by the ferocity of applying the penalties by the courts of al-cadala al-najiza, decisive justice. {Al-Buny, 69-74;}
178 The newly established (on March 3, 1984) Sudan People Liberation Movement (SPLM) and its military arm the Sudan People Liberation Army (SPLA) took a firm stand. Colonel John Garang de Mabior, the leader of the SPLM/SPLA advocated in the movements’ manifesto of July 31, 1983, the total separation of state and the mosque and the church and consequently all religions would have complete freedom to practice without restriction or intimidation. However with the exception of the novel concept of a united socialist Sudan, the movement (representing the SPLM/SPLA) does not appear to be different from its forerunners the Anya-Nya I and the Anya-Nya II either in its objectives or implementation. The SPLM tended to overstate in its leaflets and press releases the religious and the ethnic dimensions of the conflict. There it portrayed itself as a Christian movement that stood up against the Islamic onslaught approaching from the North. Indeed, it laid down from its inception, its insurmountable condition of not attending any peace talks before the removal of the Sharica laws from the statute book. Thus it seems that the North-South conflict has become a religious contest. While these aspirations were being put to the test the civil war continued unceasingly. {Manifesto, Sudan Peoples…, 1-3, 16-17}
The Reaction of the Transitional Government and the Umma-DUP Coalition.
The popular uprising of March-April 1985 forced the Sudanese army to intervene for the third time and over throw Numayri’s regime. The one-year Transitional Government did not meddle with the question of the Sharica laws. Open opposition to the Sharica laws was, and still is, an extremely arduous task. As Dr. A. An-Naim has rightly reminded us “Muslims have a religious duty to implement Islamic law” {An – Naim, 270}. This is ordained by God in the Qur’an: “If any do fail to judge (by the light) what Hath revealed they are no better than unbelievers:; and the answer of the believers when summon to God and His Apostle, in order that he may judge between them is no other than this. They say we hear and obey {The Glorious Kuran, Chap.5 verse 44 and Chap 24, verse 5.}. These verses constitute the established irrevocable commands to which the majority of the Sudanese people, followers of the mainstream of Islam, adhere. However before leaving office the Transitional Government tried to engage the SPLM, in some peace talks but the latter’s response was uncompromising. A flicker of hope seemed to have emerged at the conclusion of the Koka Dam Declaration between the SPLM and the National Alliance for the National Salvation (signed by Major Sudanese parties except the ICF) on March 24,1986. As a programme of action the declaration for the creation of a new Sudan reiterates the ideology and the demands of the movement in addition to convening a National Constitutional Conference. While the Koka Dam Declaration improved the prospects of a peaceful settlement the response of
179 the main Northern Sudanese parties differed widely. {Al-Buny, 83-84; Koka Dam Declaration, 1986} Al-Sadiq al-Mahdi, head of the Umma Party and the Prime Minister of the first coalition government after the intifada maintained a compromising attitude towards the September laws. He contended that they were improperly imposed and were un-Islamic. Yet he recommended strongly the establishment of an Islamic state founded on Shura or consultation, in all affairs pertaining to politics, economics or social justice. The implementation of Sharica established on current ijtihad (independent judgement or creative interpretation) would take into consideration prevailing circumstance and derive its decision from the Qur’an and the Sunna. Two decades later he maintained that the separation of church and state could not be implemented in an Islamic society. As Muslims were a majority, he affirmed that Islam would be declared the state religion and the Sharica approved as the main source of legislation. Still he agreed to most Southern grievances against Islamic laws and suggested that purely Islamic laws be confined to Muslims exclusively. {Warburg, 41, No. 4, 31; Bona Malwal, 41} It seems to me the Umma Party and the DUP who formed the first coalition government were rather ambivalent with respect to the implementation of the Sharica laws. Yet both parties were obliged by there by “electioneering promise” to repeal the September laws. As a compromise al-Mahdi aspired at introducing a new Islamic law or an amended version of the September laws that would safe guard the interests of non- Muslims. As the “acting leader” of the Ansar he was susceptible to mounting pressure of the ICF who behaved as the custodians of Arabo-Islamic culture in the country. The ICF insisted on the preservation of the September laws or their substitution with another Islamic alternative. The deadlock was eased by the conclusion of Sudanese Peace Initiative between Sayyid Muhammad Osman al Mirghani, (head of the Khatmiyya order) and Dr. John Garang representing the DUP and the SPLM/SPLA respectively. The DUP, like the Umma Party maintained a conciliatory (and perhaps) a more liberal attitude towards the North-South Conflict: the DUP did not put a specific demand for the invalidation of the September laws. Having asserted their pledge to the unity of the Sudan, the DUP and the SPLM plan of action included the convening of the National constitutional Conference on December 31, 1988, and that provisions involving the hudud and related articles be frozen. The conclusion of the Peace Initiative ushered in new alliances. The Umma Party had certain reservations but eventually ratified it. The ICF (renamed the National Islamic Front, NIF) the third member in the government coalition, objected strongly to the agreement especially the suspension of the Islamic laws, and hence threatened to pull out of the government. When the differences between the Umma Party and the NIF were
180 patched up a new coalition was forged between these two. The DUP withdrew from government. {Ahmad and Sorbo, 169-170}
The ideology of the NIF and Islamic Movements.
As a revivalist puritanical movement, the Muslim Brothers, the hard core of the NIF, share a common ideology with the reformist movements referred to earlier. They advocated the establishment of an Islamic state and the adoption of an Islamic constitution. Their strategy aimed at pressing for change within the excising system of government, and through the development of a committed elite that would influence all sectors of education, the profession and government. By the end of Numayri’s regime they “developed into a formidable force with substantial influence and resources” {Sidahmad, 183-87}. Their immediate objective, at that time, was the preservation of the September laws. While affirming in their Sudan Charter, that Muslims are a majority in the Sudan, the Charter states that “they do not espouse secularism neither do they accept it politically”. Consequently they claim to have a statutory right to pursue the dictates of their religion fully. At the same time the Charter affirms that non-Muslims would be empowered to express their religious views without qualification. It also maintains that the Sharica would be the main source of law. However disputed issues would be discussed at the constitutional conference. Two opposing points seem to emerge from the NIF objectives. Firstly the enforcement of the Sharica constitutes an unegotiatable fundamental principle of their beliefs; secondly the proposed constitutional conference also suggested by other contenders, present an excellent platform for thrashing out differences {Sudan Charter, 2, 3, 10.}. To accomplish its Islamic agenda the NIF staged the May 30, 1989 coup d’etat. It was effected by the NIF’s adherents in the armed forces under the leadership of General cUmar Hasan al-Bashir. The NIF, and similar Islamic movements that prevailed in the Muslem world lately were described in western writings as Islamic fundamentalism and are equated with the concept of fundamentalism in Christian tradition which has a tendency of being literary attached to the scripture. Western scholars were probably referring to the system of taqlid (i.e. exclusive reliance on tradition) which led to the limitation of the scope of Sharica and the decline of its effectiveness etc. These Islamist movements to be sure symbolized an Islamic resurgence, which is both progressive and forward looking. Hence Islamic fundamentalists (or renewed Islamic fundamentalism) are “Muslims who aspire to establish an Islamic power in an Islamic frame of reference in an international system which is now highly secularized and highly pluralistic”. {Nyang, 48-49} Islamic fundamentalism is a reaction to cultural alienation which was
181 imposed on Muslim societies by imperialism and a response to the failure of secular leadership in the Muslim world. The essence of these objectives was elaborated by Dr. Hasan al-Turabi, the Secretary General of the INF, within the frame of the idea of tawhid (unity of God) which he regards as the central theme of Islamic beliefs and which he employed to signify “the meeting point between religion, the word of God, and this world the domain of man”. According to him tawhid is the union of the eternal devine command and the changing conditions of human life”. To achieve this objective he pressed for the application of tajdid (renewal or revival of the faith) with the intent of attaining the necessary conformity between eternal revelation and changing reality. By means of tajdid Muslims revive the principles of Islamic jurisprudence which had stagnated and hence were incapable of providing solutions to current issues. Such a step would necessitate the opening widely the door of ijtihad {independent deduction through analogy from the Qur’an and the Sunna} for competent culama to discuss unsettled issues. {Sidahmed, 188-190; Al-Turabi 1980, and 1984}. The question of Islam’s response to social changes was fully examined too by Sayyid al-Sadiq al-Mahdi, who while considering the practice of ijtihad reached results similar to those concluded by Dr. al-Turabi. “The dynamism of Islam” Sayyid al-Sadiq stated, “was inspired by the Qur’an and shaped by the example of the Prophet and his companions. To illustrate his argument he quoted Abu Jacfar al-Naqib who affirmed that: “the companions of the Prophet recognized that the spiritual message of Islam is fixed. To that they were faithfully committed. The social message of Islam is however, flexible. Their experience amply demonstrated that flexibility”. {Al-Sadiq al-Mahdi, 233; Sharh Abi Habib…, 3, 160). “Thus in Islam”, to conclude al-Sadiq’s interpretation, “while religion is integral to politics and society, there is a distinction between that which is immutable and that which is subject to change and development”. {Al-Sadiq al-Mahdi, 233} I have gone into these details to gauge the possibility of a latitude within Islamic jurisprudence that might allow a fresh look at some of the disputed issues, through the mechanism of ijtihad. An answer, in that frame of reference, though possible, has not been so far forthcoming. Moreover, in the North-South conflict the initiative was progressively being taken over by extremists principally by the NIF and the SPLM/SPLA neither of whom budged an inch away from his declared political standpoint. Indeed the gap between Islamic ideals, the aspirations of the SPLM and the current political realities constitute a serious challenge to all.
182 State and Religion in the Peace Talks.
However the government of the NIF initiated a series of peace talks with the SPLM but nothing significant was resolved. In the series of talks, launched by mediators including presidents and the countries of the Inter-Governmental Authority for Drought and Desertification (IGADD), the contending parties tended to reaffirm their declared positions which were diametrically opposed. When the question of the relation between state and religion was raised, no discernible progress was attained. Probably the most important out come of these talks was the Declaration of Principles {DOPs} concluded under the auspices of IGADD. Out of the six conditions constituting the basis of resolving the conflict, the reaction of the signatories to the article relating to “the “secular state” desires special mention: Article 3,4 states: “A secular and democratic state must be established in the Sudan. Freedom of belief and worship and religious practice shall be guaranteed in full to all citizens. State and religion shall be separated. The basis of personal and family laws can be religion and customs”. The proposed DOPs was accepted by the SPLML/SPLA at the July 18-29, 1994 meeting and rejected by the government representatives. The proposed separation of religion and state (and the right of self- determination) provoked a lot of discussion, which reaffirmed the unchangeable attitude of either side. At the final session (September 1994) that unbending attitude prevailed. The government delegation while rejecting secularism outright argued that no convincing definition of that concept had been advanced {Ahmad Ibrahim al-Tahir, 127-128}. Once more they reemphasized their commitment to the Sharica as a religion and heavenly mission. Being dissatisfied with the out come of the prolonged sessions of mediation, the government initiated its own internal peace talks with factions of the SPLM. These contacts culminated in the Fashoda meeting (August 4, 1993) between the government and the Southern Sudan Independence Movement (SSIM). The talks emphasized the role of the citizens of the Southern Sudan towards the peace issue and the need to continue the dialogue. This was followed by the Juba convention of the South Peace Force on May 14, 1994 where delegates from different sectors of the South affirmed the following: adherence to the unity and territorial integrity of the Sudan. A Political Charter between the government between the SSIM, and the SPLM-Bahral Ghazal Group {BGG} on April 10, 1996 and on June 22, 1996, by the Equatorial Defense Force {EDF}. The Political Charter embraces fourteen points, of which two main features are relevant to our discussion namely it admits to making the Sharica and custom sources of legislation and to monitor freedom of religion and belief. The Charter has been sharply criticized by Sayyid Abel Alier, who referred to thirteen constitutional decrees that were published
183 between June, 1989 and November, 1955: “these have introduced an Islamic system of government and have done away with civil rights and freedoms… and made the Sudan army and other security organs institutions for jihad and guardians of Islamic civilization." I think Sayyid Alier has overstated the point when he contended that custom was generally deemed to be that of Arabia not the Southern Sudan! {Suna, Peace and Call, 14-17, Abel Alier, 2; Hasan, 1999, 15}
The Sudan Peace Agreement.
A year later the Political Charter was transformed into the Sudan Peace Agreement concluded on April 21, 1997 between the government and the South-Sudan United Democratic Salvation Front comprising the SSIM and the Union of Sudan African Parties the SPLM-BGG, the EDF and the South Sudan Independence Parties. The general principles of the Political Charter were embodied in the Sudan Peace Agreement, it embraces a wide range of articles like religion and state… It confirms that… the Sudan is a multi-religious society; freedom of religion, belief and worship shall be guaranteed, … the Sharica and custom shall be the source of legislation”. “On the issue of Sharica the signatories agreed on a formula under which laws of a general nature, that are based on general principles common to the states shall apply at the national level, provided that the state shall have the right to enact any complementary legislation on matters that are peculiar to them. This power shall be exercised in addition to the powers that states exercise on matters designated as falling within their jurisdiction; including the development of customary law” {The Sudan Peace Agreement, 1997}. The Sudan Peace Agreement differed significantly from previous attempts at least in clarifying in sizable details, the main issues at stake and suggesting solutions to them. The five signatories to the agreement, some of whom were former members of the SPLM/SPLA, though strong initially, did not enjoy the same level of strength and support like the SPLM. Could they, together with the Sudan government, institute a sustainable peace? The agreement has indeed left out several prominent political forces like the National Democratic Alliance {NDA} and the SPLM. The answer to the question depends to a great extent on the manner to which the agreement was enforced and whether its implementation helped in the process of confidence building between the two sides. The NIF envisaged that the adopted frame of reference of the Sudan Peace Agreement, if successful, might persuade others to join in. So far no sizable support is forthcoming. As a matter of fact the political stand of SPLM has stiffened and has assumed a more militant and a violent course of action in the South. Although the government of the NIF has in this peace agreement championed its fundamental principle of non-separation of state and religion it has tended to soften the
184 situation by asserting positively that the basis of rights and duties is citizenship, and on the bases of that citizenship all Sudanese shall equally share all aspects of life and political responsibility. There is, however, still room for coping with details that crop up from the continuous social change. This is I believe where the practice of ijtihad can be employed in tackling some of the problems that are facing the twenty first century Muslim Communities.
The Latest Peace Initiative.
Despite their uncompromising stand the Government of the Sudan (GOS) and the SPLM/SPLA over the question of state and religion they continued to meet and battle with the unresolved issues. The SPLM/SPLA reaffirmed its position in the light of article 3 of the DOPs which were proposed as the basis and agenda in the IGADD peace talks of October-November 1997: (One) “State and religion shall be separate. (Two) The legal system that existed prior to September 1983 shall be reinstated by the immediate repeal of the Sharica based enactments. (Three)Save in the sphere of Personal Law, the state shall not enact legislation, recognize and implement court decision or in any manner whatsoever formulate policies stemming from the tenets of any religion. (Four) The present attempts by the NIF to promulgate an Islamic constitution constitute a major obstacle to the ongoing Peace Talks and to the Unity of the Country and therefore all remaining formal measures for the adoption of such a constitution ought to be terminated”.
In a lengthy memorandum submitted to the third Round of the Peace Negotiations held in Addis Ababa (4-6, August 1998) and based on the final communique of the second Round of the Peace Talks, Nairobi (4-6, Many, 1998), the Sudan Government stated its position, on issues not agreed upon. Reference will be restricted here to the issue of relationship between state and religion. The GOS states that “the Sudanese society is a pluralistic and multi-religious, multi ethnic, multi cultural society (which is identical with the starting point of the SPLM statements) and the Sudanese state is a democratic state where power is exercised by the Sudanese people through their elected institutions…. (a) Eligibility for public office including that of the President is based on citizenship and competence and not on religion or race. (b)Every human being shall have the right of freedom of conscience and religious creed.
185 (c)Religion in Sudanese society represents an essential part of its values, heritage and culture. (d)Sources of legislation shall include Sharica, custom and consensus of the nation”.
The GOS reaffirmed the same points in the 4th Round of the Peace Negotiation with the SPLM/SPLA on 19-24 July, 1999.
In a statement issued on August 3, 1999 the SPLM/SPLA emphatically maintained its former position: (One) In recognition of the multi-national character of the Sudan the SPLM/SPLA calls for the separation of state and religion and therefore no religion shall be made a state religion or a source of laws. (Two) The constitution and the laws must remain secular and all organs and institutions of the state shall be neutral on religion (Three) Hence the new constitution recently {1999} promulgated by the National Islamic Front is unacceptable. The SPLM/SPLA had by their emphatic support for a secular law left no room for a compromise with the government of the NIF. (Four) The solution that the SPLM/SPLA advocates is in the establishment of a confederation of two states. While there is hardly any change in the position of the GOS some stress or emphasis is given to two points: in a document dated April 7, 2000 the GOS delegation to the IGADD peace talks (between 2th-26th February, 2000) stated the following points of convergence: {IGAD/SPP/ POL-TC/2/OOP} * “That at the state level, the legislation shall take into account religious and cultural peculiarities of the people… * The two parties envisaged a two tier system of law at the national and at the state level. * That personal law affecting marriage, divorce, affiliation, maternity and inheritance shall be governed by religious or customary law of those involved Having failed to reach an agreement on the issue of national legislation, the GOS presented the following points for the continuation of the discussion: *“No legislation shall affect the religious rights of any citizen; *Legislation shall provide for equal duties or rights for all citizens on the basis of citizenship. * Eligibility for public office … shall not be based on religious affinity…
186 *Legislation shall encourage all religious values and promote society as a whole towards morality and virtue. * The constitution shall remain silent on the official religion of the country *That the sources of legislation shall be Sharica, customary law “consensus of the nation and universal value”. While no substantial progress has been achieved in these peace talks, the position of the GOS seem to have eased a little in two respects. Firstly, it did not profess Islam or any other creed as the official state religion. Secondly it included “universal values” among the sources of legislation. The SPLM maintained its old stand, as shown in 5 item of its Agenda for the IGADD talks of July 1999. It states: “Realistically, the attainment of a united secular Sudan is not possible in the near future. This is because of the very strong Islamic forces in the North. Whilst the Northerners have the right to apply Islamic laws and policies on themselves, the Southerners have an equal right to choose secular laws and political structures that suit their values and aspirations”. Despite their failure to achieve a solution over the problem of state and religion, the GOS and the SPLM in their endeavour to resolve the North-South conflict continued their formal contacts; the last of which is now being held in Geneva.
187
Bibliography “The Addis Ababa Agreement on the Problem of the South”, Appendix VII in D. Wai, The Southern Sudan National Integration. Ahmed, Abdel Ghaffar M, and Sorbo, Gunnar M (eds), Management of The Crisis in the Sudan, KUP, Khartoum, 1989. Ahmad Ibrahim al-Tahir, Musajalat al–Harb wa’l salam fi al Sudan, Khartoum, 1998. Ahmad, Khorshid, “The Nature of Islamic Resurgence”, in Voice of Resurgent Islam, J.L. Esposito, (ed.) OUP, 1983. Alier, Abel, The Political Charter, Observations and Commentary, (circulated eight Page Memorandum (n.p n.d) An-Nacim, Abdullahi A. Christian Muslim Relations in the Sudan”, in, “The Vatican, Islam and the Middle East, New York, 1987. Badal, R. K, “Religion and Conflict in the Sudan” Bulletin of Peace Proposals, Vol2, No. 3, 1990, 270. Beshir, M.O. The Southern Sudan: Background to Conflict, KUP, Khartoum, 1965. Al- Buny, Abdal Latif, Al-bucd al-diny li qadiyat al-janub, 1900-1989, Khartoum, 1996. Collins, Robert O, Shadows on the Grass: Britian in the Southern Sudan, 1918-1956, Yale University Press, New Haven, 1983. Deng, Francis M, Dynamics of Identification: A Basis of National Intigration in the Sudan, KUP, Khartoum, 1963. Esposito, John L. “Sudan” in the Politics of Islamic Revivalism, S.T. Hunter (ed) Bloomington, 1988. ………………… (ed) Voices of Resurgent Islam, OUP, 1983. The Expulsion of Foreign Missionaries from the Southern Provinces, Ministry of Interior, Khartoum, 1984. The Glorious Kura’n, Translated by Abdullahi Yousuf Ali, Libya, 1973. Gray, Richard, A History of the Southern Sudan, Oxford, 1961. Hasan, Yusuf Fadl, The Arabs and the Sudan from the Seventh the Early Sixteenth Century, Edinburgh, 1967. ………………… “The Historical Relationships: Main Highlights for Sudanese British Relations,” Conference on Sudan, British Relations, February 2001 in Press. ……………….. “The Role of Religion in the Sudan North-South Conflict with special Reference to Islam”, Sudan Conference Yale University, in Press. Hill, Richard, “Islam in the Sudan” in Religion in the Middle East: Three Religions in Concord and Conflict, A. J. Arberry (ed.) Cambridge. Hodgkin, Elizabeth, “Islam is and Islamic Research in Africa”, unpublished paper (1995?). Holt, P.M, The Mahdist State in the Sudan, OUP, 1970. “Koka Dam Decleration”, 1986. Al-Lajna al-Qawmiyya li-l Dastur, six session, National Records Office, Khartoum. Lesch, A.M. The Sudan Contested National Identities, James Curry, Oxford, 1998. Lewis, Bernard, “Islamic Political Movements”, Middle East Insight, Malwal, Bona, People and Power in Sudan, London, 1981. Manifesto, Sudan People’s Liberation Movement, 31st July 1983, (n. p., n. d.) The Messenger, Feb. 14, 1957. Al-Mufti, Ahmed, “War Against Terrorism Islam, Human Rights and Dialogue Among Civilizations,” Khartoum International Centre for Human Rights, Khartoum February 2002. The National Islamic Front, Sudan Charter, Khartoum, 1987. Nyang, Sulyman S., “Recent Trends in Islamic Fundamentalism in Africa North and South of the Sahara,” a lecture delivered in Washington, 1992. Proceedings of the Sudan Constituent Assembly, Oct 1966. Al-Ray’ Al-cAm, Khartoum, January 7, 1963. Al-Sadiq Al-Mahdi, “Islam, Society and Change” in Voices of Resurgent Islam,
188 John L. Eposito, (ed) OUP, 1983. …………………. Islam wa masalat al-janub , Khartoum, 1985. Sudan News Agency; Peace Call Response and Agreement, Khartoum 1997. “Sudan Peace Agreement”, The Republic of the Sudan , Khartoum. Al – Turabi, Hassan A., Al-Iman atharahu fi hayat al-Nas, Manshurat Dar al cAsr al-Hadith, 984. …………………… Tajdid usul al fiqh al-Islami Dar al-Fikr, Khartoum, 1980. Sidahmad, Abdel Salam, “Sudan Ideology and Pragmatism”, in Islamic Fundamentalism, A.S. Sidahmad and Anoushirvan hteshami, (eds.) Westview Press, Oxford, 1996. Wai, Dunstan, The Southern, The Problem of National Integration, Frank Cass, London, 1973. Warburg, Gabriel R, “The Sharica in Sudan: Implementation and Repercussion 1983-1989” The Middle East Journal, Vol 41. 4, 1990.
189 b. Summary of discussion
1. The people who are downtrodden are in the South. They have religions and worship God but they are the voiceless. They know God without prophets – Jesus, Mohammed and the others. There is an impression of Islam being friendly. It is not. A Muslim can walk in St Peter’s Square but a Christian cannot go to Mecca. Fundamentalists exist in all religions. The propagation of Islam in the Sudan has not always been peaceful. We are all believers in God. The best pillar to build our state upon is our faith in God. The problem is not oppressive or suppressive Islam. There is also a racial aspect in the whole Islamic question, an Arab majority and an Islamic majority; it is used to imposing its will.
2. The debate on religion in the Sudan is futile. The position of the SPLM offers a realistic reflection of the thinking in the south today. There is awareness of the historic struggle. There are no missionaries fighting with the SPLA. So far, there is evidence that the major political parties who do not want separation between state and religion are in the north. In view of that position in the north, people are talking of the unity of the Sudan – is there a way in which the Northerners can have the Islamic State as they wish and we can have a different way? Is there a way in Islam? The Sudanese are not willing to be second class citizens in their own country. Is there a place in Islam which offers room for non-Moslems? Islam and Arabism are one - they can never be separated.
3. Islam is a religion of freedom and justice. Political Islam is different – its proponents do not believe in freedom or democracy. They consider the existence of two parties – one of God and the other of the devil. This was not the order of things until 1964 – the October revolution when the regime of Aboud was overthrown. Muslims, Christians and those practising African religions lived peacefully together before this. People are against the implementation of Islamic laws because these laws would make them second class citizens.
4. The assumption that the British insulated the South from Islam is wrong – it is too simplistic. When the British brought the North within their sphere of rule– it was within their policy of eradicating slavery. It was because of slavery that the British took control of large areas of the South. The Nuers were able to withstand until 1928. British policy was changed because of their policy on the Suez Canal. Historical references have to be examined very carefully – they are often automatically assumed. One can not run away from the issue of religion. In 1983 Shari’ah was applied – the number of executions in Khartoum were numerous. Non- Moslems would not accept this. The people of the Nuba and from the South were those mostly affected by it. In particular the women, the dress and the conduct of many non-Muslems are not acceptable for non-Moslems in their own country. In order to leave Khartoum women should be accompanied by their husband or a male relative in order to be given a permit. The economic factor has now become the religious factor – it is always being raised.
190 5. What type of Islam is happening in the Sudan? The state does not believe, it is the people who believe. How was it decided that the Moslems were the majority? Dressing to be acceptable in your own country is personal and affects a person on a daily basis. If Sudan claimed to be a single united state and there is a multi religious population, why is it difficult for the Moslems to accept that the state and religion can be divided? Is it the fear that a non-Moslem will be a president in Sudan? Citizens should be able to follow their beliefs democratically. The nation is there for all citizens without discrimination.
6. There is a Sudanese Islam which is very intolerant. One should look at the Tanzanian example. There have been both Christian and Moslem presidents. The minority Moslems have ruled the majority Christians. It is therefore a question of the Sudanese Moslems’ intolerance compelling others to become the same.
7. It is part of the Moslem faith that you need to not just recognise but believe in the message of Jesus and Moses. Shari’ah simply means law, no more or less. Islam did not come to Sudan through military means. It came to Sudan through peaceful means and also the first Moslem State arose through peaceful means. Moslem societies are natural and they have endured for many centuries.
191 9. A State Based on Shari’ah and the Right of non-Muslims
a. Paper presented by Professor Al-Tayib Zein Al-Abdin
1. Introduction
It was Ibn Taymiyyah (d.1328), who lived during the times of the Mamluks in Syria to deviate from the traditional path of jurists who spoke about the Caliphate or Imamate as the ideal form of the Islamic State. In his al-Siyasah al-Shar’iyyah, Ibn Taymiyyah argued that what is important in the Muslim state is not how the Imam came to power or whether he possessed the ideal qualities or not, but the most important factor is that he should rule according to the divinely revealed law of the Shari’ah. 1 Being a Hanbalite, Ibn Taymiyyah emphasized the literal and meticulous implementation of Shari’ah rules.2 Irrespective of their original madhhab, most of the contemporary Islamic groups who are politically active in the Muslim world were influenced, in one way or another, by the ideas of Ibn Taymiyyah. To them the establishment of an Islamic state based on Shari’ah law is the ultimate objective of their political activism. 3 One major outcome of the Islamic resurgence, which covered most of the Muslim world since the seventies, was the demand for the implementation of Shari’ah in public affairs, especially in criminal offences.
2. Shari’ah in The Muslim Constitutions
Muslim countries, after obtaining their independence from European colonial rule, followed more or less the western model of constitutional structure. However, in the last decades of the twentieth century a number of Muslim countries adopted clear references to the Shari’ah as a source of legislation.
Saudi Arabia being a traditional monarchy, custodian of the most holy Muslim shrines and follower of the conservative Hanbali madhhab, basses its judiciary system completely on the Shari’ah. The recent constitutional document (1992-93) mentions that the Quran is the constitution of the country and that the “courts shall apply the provisions of Shari’ah according to the Holy Book and the tradition and to the laws issued by the king that do not conflict with them. 4
192 The Iranian Revolution of 1979 brought a drastically new system of government based on Islamic principles. The first few lines of the Iranian constitution says: “The Constitution of the Islamic Republic of Iran sets forth the cultural, social, political and economic institutions of Iranian society on the basis of Islamic principles and norms, which represent the earnest aspiration of the Islamic Ummah”. 5 Article (4) of the constitution confirms the previous point in a more binding way: “All civil, penal, financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations, and the fuqaha’ of the Guardian Council are judges in this matter. 6 The judges of courts are given the authority “to refrain from executing statutes and regulations of the government that are in conflict with the laws or the norms of Islam, or lie outside the competence of the executive power.” 7
Yemen, which had been under the rule of a Zaydi imamate for ten centuries till the coup d’etat of 1962, observed its long tradition of Shari’ah laws. The Yemeni constitution states that the Islamic Shari’ah is the source of all legislations. 8
Pakistan, which was created in the name of a separate homeland for the Muslims, opted for a strong commitment to the rule of Shari’ah. The constitution of 1973 states in Article (227) that: all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holly Quran and Sunnah. It created two bodies for the implementation of that objective: The Council of Islamic Ideology which recommends the ways and means by which the Muslims of Pakistan order their lives in accordance with the principles of Islam, and how existing laws be brought in conformity with the injunctions of Islam. 9 The second body is the Federal Shari’ah Court which is empowered to decide whether or not any law is repugnant to the injunctions of Islam, as laid down in the Quran and the Sunnah.10 The commitment is made more rigorous by a constitutional amendment in 1991 that says: the Sharicah that is to say the Injunctions of Islam as laid in the Holy Quran and Sunnah, shall be the supreme law of Pakistan. 11
Egypt, in its constitution of 1980, simply states that Islam is the official state religion, and Islamic jurisprudence (Shari’ah) is the principal source of legislation. 12 The first Sudanese constitution after independence (1956) did not refer to the Shari’ah in any way, however consequent constitutions mentioned the Shari’ah as a source of legislation. The draft constitution of 1968, which was passed in the first reading by the constituent assembly and then abandoned by the leftist coup of 1969, specified that “the Islamic Shari’ah is the major source of state laws.” (Art. 113). It also mentioned that the state should change all laws which conflict with Quran and Sunnah to make them in
193 conformity with the Shari’ah in a gradual manner. (Art.115).13 The constitution of 1973, which was promulgated by the military regime of General Gafar Numerie, combined the Islamic Sharicah and customary law (al-‘urf) as the major sources of legislation. 14 In May 1977, President Numerie constituted a committee, headed by the chief justice, to amend the laws of the country from a civilizational outlook that reflects Islamic teachings and fiqh heritage. The committee produced nine major laws but none of them were passed by parliament. However, in 1983 Numerie promulgated through presidential decrees a number of Islamic laws: penal code act, civil transactions act, evidence act, and sources of judicial decisions act.15 The present constitution of 1998 put the clause about Shari’ah in an innovative way. It says: “The Islamic Shari’ah and the national consent through voting, the constitution and custom are the source of law and no law shall be enacted contrary to these sources,” (Art.65).
3. State and Shari’ah
The Prophet Muhammad was the first leader to establish a state in central Arabia, his immediate successors consolidated the establishment of that state under the name ‘caliphate’. Despite the shock of the death of the Prophet, they realized the urgency of selecting a political leader before the burial of the Prophet. The caliphate system continued since the death of the Prophet, either as a central administration over the whole Muslim empire or as a regional government for one province or more, till it was abolished by Ataturk in 1924. Almost all Muslim schools of thought madhahib agree that it is a religious duty of all Muslims to establish a caliphate as a system of government. 16 Ibn Khaldun defined the function of the caliphate as: to lead the whole community according to the religious view in serving their interests of this world and the world to come. All world affairs are linked, according to God, to the interests of the hereafter. Therefore, the caliphate is the succession of the Prophet in preserving religion and administering world affairs. 17 In Islam there is no distinction between religious and world matters, Muhammad was a prophet as well as a political leader. The caliph is supposed to play a similar role without claiming the right of revelation or a divine authority. The ulema who argue that the head of state should be a Muslim bear in mind that he has a religious function in the administration of the state.
Nevertheless, the Islamic state is not a theocracy because the caliph has no right of legislation, it is the domain of religious scholars who are well versed in the sciences of Quran and Sunnah. Neither the caliph nor any other human being, after the Prophet, is privileged with a special relationship with God. The only reference for the divine will is the authoritative text of the Quran and the Sunnah; knowledgeable Muslims have equal
194 rights in comprehending and interpreting the authentic text. It is interesting to note that the famous five schools of thought (madhahib) which spread all over the Muslim world were founded by ulema who opposed in a way the caliphs of their days. Even in the case of the Prophet Muhammad, there is a clear line between the revelation conveyed to him and his person as a human being. The belief in his prohethood is not inconsistent with the comprehension of his human nature. The early caliphs were careful to clarify their status as rulers under the religious law (Shari’ah), and not above it. Prof Anderson put it in an explicit way, “it is the duty of the Caliph or Sultan to lead the Muslim community in war and act as its executive in peace; but he is under, not above, the sacred law and may not meddle in what God has prescribed.” 18 Traditional jurists did not elaborate on the various aspects of the caliphate (Islamic state), their writings on the subject were theoretical, general and sporadic. It was left open for practical developments and de facto situations to shape the manner and system of the caliphate at the time.
4. The Meaning and Objectives of Shari’ah
The word ‘Shari’ah’ designates “a rule of law, or a system of laws, or the totality of the message of a particular prophet. In so far as it designates a system of laws it is synonymous with the word sharc, which is probably the more common word in juristic literature for divine law. The verb sharaca may appear with God as subject following (Kur’anic usage). More frequently, the process of demonstrating the law is a prophetic activity, and the word shari’ (law-giver) refers characteristically to Muhammad in his function as model and exemplar of the law. In a rare extension of meaning, the word shari’ is transferred to the jurists, thereby highlighting the creative aspect of their interpretative activity.”19 In practical terms Shari’ah refers to all kinds of rules (ahkam) governing human actions and having their bases in the Quran or the Sunnah of the Prophet. The academic discipline whereby scholars describe and explore the Shari’ah is called fiqh; it is a human activity which cannot be ascribed to God or to the Prophet. However, it is the only access to the divine law.
The sources of Shari’ah are: the Quran, the Sunnah of the Prophet, the Ijma’ (consensus) of the ulema or the whole community and Qiyas (analogy).20 The last source is a methodical deduction used by learned scholars as an instrument to cope with the growing needs and requirements of society. As a matter of fact most of the Shari’ah rulings are based on analogy. The objective of the Shari’ah is to serve the interests of man in this world and in the hereafter. Those objectives (maqasid), as developed by al-Shatibi and recognized by other jurists, are: the preservation of religion, human life, progeny, intellect and wealth. These objectives are necessary for the well-being of the community
195 and, therefore, stand as the primary purposes of the law.21 It is worth noting that four of these objectives are concerned with the material things of this life while one objective is concerned with the interest of the second world.
As Dr. al-Sanhuri rightly observed that the area of public law, especially constitutional law, was not well developed by the traditional jurists. He explained that was due to the heated controversy amongst the various theological groups about the caliphate and the despotic rule of the caliphs since the Umayyads.22 Contemporary scholars tried to fill that gap but purely on theoretical bases influenced by different European models. This is why many major differences exist among religious scholars concerning the interpretation of issues under public or constitutional laws such as the powers of the head of state, the division of powers between the executive and the judiciary, the rights of the citizen vis-à- vis the state etc. The areas which have found detailed exposition in fiqh books are: rituals (‘ibadat), family law and prescribed punishments (hudud). The rules concerning rituals and family law have been widely practised all over the Muslim world for centuries even during European colonial rule. Thus, the Shari’ah rulings are definite in these areas while they are vague and general in the area of public law. Besides the fact that the area of public law has been kept away from Shari’ah injunctions for a long time, the traditional ulema were not competent enough to make new ijtihad based on Shari’ah and at the same time suit the present conditions of the Muslim world. It is left mainly to scholars with western education and religious orientation to venture in that undeveloped area. The differences of opinion on this matter can easily be shown by the different models of an Islamic state as established by Al Saud in Saudi Arabia, Imam Khomaini of Iran, the Salvation Revolution in the Sudan and the Taliban of Afghanistan. It is not simply a difference of religious opinion as it is due to differences of traditions, cultures, social development and degrees of contact with the outside world. The countries mentioned before which refer to the Shari’ah, as a source or the main source of legislation do differ widely in the implementation of that article. Some take it seriously others do not. Even those who take seriously do not agree on many important issues. In other words there is no conformity amongst scholars about the system, functions, powers and methods of decision-making in a state based on Shari’ah law.
5. The Rights of non-Muslims
Traditional ulema wrote in some details about the rights of non-Muslims in an Islamic state. There are many references in the Quran and the Sunnah of the Prophet to the subject. It was a practical problem in Muslim societies all through their history because never in Muslim history there was a state which comprised purely of Muslim
196 believers. The first state established by the Prophet in Medinah included Muslims as well as Jews, Christians and Arab pagans. The Ottoman Caliphate which continued for six centuries till the first quarter of the twentieth century included many non-Muslim communities in Eastern Europe and the Middle East. At present there is almost no Muslim state that does not have indigenous non-Muslim citizens. The mere fact of the continuous presence of non-Muslims in dominantly Muslim countries for many centuries reflects the practical possibility of co-existence and accommodation.
The guidelines for treating non-Muslims are clearly mentioned in the Quran and the Traditions of the Prophet; they constituted the bases of Shari’ah rulings on the subject. Some of the references in these two divine sources may be mentioned below.
The Quran says: “God forbids you not, with regard to those who fight you not for your faith nor drive you out of your homes, from dealing kindly and justly with them: for God loves those who are just. God only forbids you, with regard to those who fight you for your faith and drive you out of your homes and support others in driving you out, from turning to them (for friendship and protection). It is such as turn to them (in these circumstances), that do wrong.” (ch. 60: 8-9). The Quran says about the people of the Book (Jews and Christians):
“And dispute you not with the People of the Book, except with means better (than mere disputation), unless it be with those of them who inflict wrong (and injury). But say: we believe in the revelation which has come down to us and in that which come down to you; our God and your God is One and it is to Him we bow (in Islam).”(ch. 29: 46).
The Prophet said: “Those who commit an act of aggression against a dhimmi (a non-Muslim citizen), or usurp his rights, or demand of him a work beyond his capacity, or forcibly took something from him against his wish; I shall be the advocate of the oppressed’s against them on the Day of Judgment.” (Related by Abu Dawood and al- Baihaqi). In another Tradition, the Prophet says: “He who harms dhimmi harms me, and he who harms me harms God.”(Imam al-Tabarani).
The written document (al-Sahifah), known as the Constitution of Medinah, authored by the Prophet to regulate the relationship amongst the various communities, particularly between the Muslims and the Jews, reflects a remarkable liberal and accommodative attitude unfamiliar in those times. The document stated the following principles: the Jews who obey us will have help and equality, they shall neither be oppressed nor any help shall be given against them. They shall be considered as a community (ummah) along with believers, the Jews have their religion and the Muslims
197 have theirs. That applies on both clients and original members of the Jewish community. But whosoever shall be guilty of oppression or violation of the treaty shall put to trouble none but his own person and the members of his own house. In the case of war against outside aggression, the Jews shall bear their expenses and the Muslims shall bear their expenses, they shall help each other against those who fight the parties to this document. There shall be sincere counsel and well wishing between them. None of the Jews shall go out on a military expedition (against a third party), without the permission of Muhammad.i
As the Quran says, “There is no compulsion in religion,”(ch.2: 256), the Prophet acted on that principle in making agreements with the Christians of Najran and the monks of St. Catherine, near Mount Sinai. The terms of the second agreement with the monks are as follows: they were not to be unfairly taxed; no bishop was to be driven out of his bishopric; no Christian was to be forced to abandon his religion; no monk was to be expelled from his monastery; no pilgrim was to be detained from his pilgrimage; no churches were to be pulled down for the sake of building mosques or houses for Muslims; Christian women married to Muslims were to enjoy their own religion; if the Christians were in need of assistance for the repair of their churches or for any other matter pertaining to their religion, the Muslims were to assist them.ii It was uncommon for a conquering power to be so generous with a vanquished community professing to a different religion.
According to those guidelines in the Quran and the Traditions of the Prophet, the ulema attempted to find out the rulings of the Shari’ah on various practical problems concerning the relationship with non-Muslims, as they occurred. Understandably, they were influenced by the conditions of their times such as the strength of the Islamic state, the internal and external threats to that state, the links of non-Muslims with other communities and powers etc. Contemporary ulema and scholars may reach different rulings according to the conditions of their own times.
The classical ulema called the non-Muslims who are permanently residing in an Islamic state, ‘ahl al-dhimmah’ which means ‘the covenanted people’. The word ‘dhimmah’ is an Arabic word which means safety, security and contract. The name was taken from the Traditions of the Prophet. They were called dhimmis because they were guaranteed contract by God, His Messenger and the Muslim community. Traditionally the non-Muslims entered in a dhimmah contract, as individuals or as a community, by having a treaty with the Muslim ruler or simply by accepting the Islamic system and living under its rule. Contemporary scholars compare the security granted to dhimmis to
198 the citizenship given by a government to an alien who abides by its constitution, and therefore enjoys all the rights of a natural citizen.iii
Although the term dhimmah did not originally have negative connotations but it has been dropped in Muslim constitutions and laws for the use of the word citizenship. Dhimmah, like citizenship, is a life-long contract.
Muslim jurists spoke about the rights and obligations of non-Muslims living under Islamic rule as follows:
a. General status:
The general rule is that when a non-Muslim enters into the contract of dhimmah with the Muslims he becomes equal to them, enjoying the same rights and fulfilling the same obligations. Imam al-Kasani (d.587 H.) narrated the hadith of the Prophet: if they accept the contract of dhimmah, tell them that for them what is for the Muslims and upon them what is upon the Muslims.iv Imam Ali b. Abi Talib said that: they have accepted the contract of dhimmah so that their property shall be like our property and their blood shall be like our blood.v However, this general rule has its exceptions, which shall be explained, in their appropriate places.
b. Protection of the self:
The Islamic state should protect non-Muslims from outside aggression and internal oppression, so that they may lead a peaceful life. A famous Hanbali jurist said that if the non-Muslims fall into captivity, the imam must marshal all the resources to secure their release and punish the transgressors against their lives and properties. Imam Ibn Hazm said that: Muslims who have entered into a pact of dhimmah, should fight until death with those who try to oppress non-Muslims in the Islamic state in order to abide by the guarantee given to them by God and His Messenger.vi Shaikh Ibn Taymiyyah defended the release of Jews and Christians before the Tartar leader on the basis that they were under the protection of Muslims.vii However, the jurists have different opinions about the execution of a Muslim who has killed a non-Muslim. Some like Imams Malik and Abu Hanifah argued that he should be killed if he intentionally took the life of a non- Muslim, others said only the blood money (diyah) should be taken from him.viii
199 c. Religious freedom:
Jurists are unanimous that religious freedom is guaranteed by the Quran, “Let there be no compulsion in religion,”(ch.2: 256). This means that no one should be coerced to convert to Islam, that freedom of worship and places of worship of non-Muslims should be protected. cUmar b. al-Khattab fulfilled this principle in a strong way to the Christians of Jerusalem in a famous agreement which says:
Their churches are not to be occupied, demolished, or damaged, nor are their crosses or anything belonging to them to be touched.ix Some jurists said that non- Muslims should not expose their ceremonies or crosses in Muslim quarters, nor should they erect a church in a town where there had not been one before, as such an action may provoke anger and sedition in society.x According to al-Maqrizi, the Egyptian historian, all the churches of Cairo were established after the coming of Islam.xiThat freedom includes the teaching of their religion to their children but it does not include the conversion of Muslims. The Muslim tolerance towards other religions is widely recognized by scholars and historians. Robertson, in his book The History of Charles V, said that Muslims are the only people who possess both a zeal for their faith as well as a spirit of tolerance towards the followers of other religions.xii d. Right of property and work: There is no disagreement amongst the jurists on the principle of protecting the non-Muslim property. Abu Yusuf, in his book Al-Kharaj, quoted the Prophet’s agreement with the Christians of Najran: “Najran and its neighbouring area are in the security of Almighty Allah and His Messenger. The property, religions, and churches of the inhabitants, as well as all possessions, whether much or little, are under the protection of the Prophet.”xiii From this principle the jurists infer that a person who steals from a non-Muslim will have his hand cut off, and he who takes his property by violence is punished, and he who borrows money from a non-Muslim is obliged to repay him. Some items, like pork and wine, are not considered a real property for the Muslims, but in the case of a non-Muslim they are considered lawful property, which should be compensated if anyone destroyed them. According to a senior Maliki jurist if non-Muslim fighters came to a Muslim territory on a safe conduct basis, their Muslim prisoners should not be taken away from them.xiv ‘Umar b. al-Khattab demolished a mosque in Lebanon, which was constructed on a usurped piece of land belonging to a Jew, in order to return the land to its original owner.xv It is obligatory on the government and the
200 Muslim community to protect the property and land of non-Muslims and to allow them enjoy their rights of ownership, sale, transfer, grant etc just like Muslims. Non-Muslims can carry on all kinds of trade, industry, agriculture and adopt any profession of their choice. There is no distinction between Muslims and non- Muslims in this regard. The jurists have ruled that non-Muslims should be treated in the same manner as Muslims in the matters of trade, commerce, and other financial dealings, except for riba (interest) which is forbidden for them as well as for Muslims. They are also forbidden to sell wines and pork in Muslim areas because it may lead to misbehaviour or disturbance amongst the Muslims. As a matter of fact the non-Muslims have the advantage of not paying zakat, which is 2½% of the total revenue on all kinds of trade, industry and irrigated agriculture (10 % in case of rain-fed agriculture). That gives them significant advantage in competition with Muslims who trade in the same field. The non-Muslims have the right to serve in any governmental position, which does not have a direct bearing on the religious life of the Muslim. The jurists excluded the offices of the caliph, the head of the army, a judge of a Shari’ah court and the zakat collector, from being held by a non-Muslim. Except for these limited number of posts, non- Muslims can be employed in any other capacity provided they fulfill the necessary requirements of the post. Al-Mawardi, the famous Shafi’i jurist, allowed that a non-Muslim can hold the office of an executive minister who enforces the caliph orders. Actually some Christians held this post during the Umayyad and Abbasid dynasties. The Prophet himself appointed a non-Muslim envoy to plead the case of Muslim immigrants before the king of Abyssinia. The historian al-Baladhuri reported that caliph ‘Umar b. al-Khattab wrote to his governor in Syria asking him to “send us a Greek, who could put in order the accounts of revenues.”xvi Adam Mitz, in his book The Islamic Civilization in the Fourth Century A.H., observed that the Islamic Shari’ah did not deny the non-Muslims any opportunity to work even as assistants or physicians to caliphs. e. Right for social security: The Shari’ah was pioneer in human history to make it obligatory on the state and rich people to look after the poor and weak members of society. That responsibility is not towards Muslims only, but it also includes non-Muslims who are permanently resident in a Muslim country. The Prophet says: “All of you are shepherds and all of you will be responsible for people placed under your authority;” (al-Bukhari & Muslim). Abu cUbaid reported that the messenger of Allah gave charity to a Jewish family on regular basis. He also sent property to
201 the tribes of Mecca, when they suffered famine, to be distributed among the poor people.xvii During the caliphate of Abu Bakr, the military commander Khalid b. al- Walid included in his treaty with the people of al-Hirah that: if an old man was incapable of doing any work, or was struck by some calamity, or he was rich and became pauper so that the people of his religion started giving him charity; such a person must be exempted from the payment of jizyah and that he should be maintained from the public treasury of Muslims (Bait al-Mal).xviii It was narrated that the second caliph, ‘Umar b. al-Khattab, ordered charity and stipends to be given to Christian lepers from the public treasury. In another case he saw an old Jew begging. He was upset and asked the Jew about his problem. The Jew answered him that it was due to his need and the payment of jizyah. ‘Umar took him to Bayt al-Mal and asked the treasurer to grant him maintenance and to all people like him. He said: it is no justice that we collect jizyah from them when they were young and abandon them when they become old.”xix ‘Umar had an exceptional sense of justice. Although he was assassinated by a non-Muslim Magian, nevertheless, he instructed on his deathbed his successor to be merciful to non-Muslims: “I advise the caliph who will succeed me to be kind to the non- Muslims, to fulfill our covenant with them, to fight for the sake of their protection, and not to overburden them.”(al-Bukhari &Yahya b. Adam in Al- Kharaj). The Umayyad caliph, ‘Umar b. Abdul Aziz, gave a similar instruction to maintain old non-Muslims who could no longer work. From these incidents, the jurists concluded that it is the obligation of the Islamic state to look after its poor citizens, Muslims and non-Muslims alike. There is a difference of opinion among jurists to give from zakat, which is collected only from Muslims, to needy non- Muslims. The majority of jurists are not in favour of giving zakat to non-Muslims, and those who approved it put the condition that the poor Muslims of the region should be satisfied first. Judging by previous arguments it is logical that government services, such as education, medical care, transport etc should be equally available to non-Muslims. f. Personal freedom: Contemporary jurists agree that non-Muslims are entitled to the right of privacy, nobody should enter the house of a non-Muslim without seeking his permission. Like Muslims, they are to enjoy the freedoms of movement and of assembly. They may seek asylum in Muslim countries as Muslims may seek asylum in non- Muslim countries. The Quran instructed the Prophet to give asylum, or safe conduct, even to pagans in order to hear the word of God (ch. 9:6). Non-Muslims
202 are entitled to protection from arbitrary arrest or detention without a valid accusation. They have the right to implement the personal law of their religion in the matters of marriage, divorce, inheritance, will and expenditure on family and relatives.xx
6. The Obligations of non-Muslims
According to the Shari’ah the non-Muslims as they have rights they have certain obligations to fulfill. Those obligations are:
a. To pay the jizyah, the kharaj and the commercial tax. This is a monetary obligation.
b. To abide by the Islamic law of the country.
c. To respect the feelings and belief of Muslims.
a. Monetary obligations:
The jizyah is a small capitation tax levied annually on able male adults who can afford it. It is mentioned in the Quran: “Fight those who believe not in God nor the Last day, nor hold forbidden that which has been forbidden by God and the Apostle, nor acknowledge the religion of Truth (even if they are) of the people of the book, until they pay the jizyah with willing submission, and feel themselves subdued.”(Ch.9: 29). The Prophet and his immediate successors levied jizyah on non-Muslims in conquered territories. There is no fixed rate for jizyah but it should be within the means of the person. The second caliph ‘Umar fixed it 48 dirham for rich persons, 24 and 12 dirhams for less affluent people. Imam al-Shafi’i suggested one dinar per year but added that it should differ according to the time of ease or difficulty, and the capacity of those on whom it is imposed.xxi The justification of the jizyah is that non-Muslims are not obliged to perform military service while Muslims do. Thus, jizyah is a defense tax upon those who enjoy the protection of the Islamic state without taking part in defending it. This is why it is not imposed on women or minors because they are not expected to take part in fighting.xxii When the Islamic state fails to give protection to non-Muslims, then it has no right to collect jizyah. Abu ‘Ubaidah, the famous commander who conquered Syria, returned the jizyah to the local people after he decided not fight the massive advancing Roman troops.xxiii Khalid b. al-Walid in his agreement with the people of al-Hirah wrote: “If we
203 are able to protect you, we have the right to your jizyah, otherwise we do not, until we overcome the enemy.”xxiv Contemporary jurists agree that hence non- Muslim citizens take part at present in military service there is no justification of asking them to pay jizyah.xxv No Muslim country today ask non-Muslims to pay jizyah; even the former Taliban government in Afghanistan did not attempt to collect jizyah form non-Muslim citizens.
The kharaj is a property tax levied on land owned by a non-Muslim whose territory has been conquered by the Muslims. The old practice was to confiscate the agricultural lands of the defeated enemy and distribute it among the soldiers of the victorious army. It was first started by the Prophet and followed by successive caliphs. However, kharaj remained for centuries as a property tax irrespective the owner of the land was a Muslim or a non-Muslim. There is no fixed rate for kharaj, it is left to the discretion of the ruler but it should be within the affordable yield of the particular land. If the land did not produce any yield or less than expected then the kharaj is dropped or reduced accordingly. Since long time, there is no Muslim country which treats non-Muslims differently in the case of land tax, and contemporary jurists do not ask that a special land-tax be imposed on non-Muslims under the name of kharaj or otherwise.xxvi
The commercial tax, which has no reference in the Quran or Sunnah, was first imposed by ‘Umar b. al-Khattab on dhimmis who used to come with their trade from outside the Muslim territories. It is equivalent to the customs duty of our times. Some of the classical jurists justified this tax on the basis of the protection given to non-Mulsim traders by the state, others argued that it was an old practice for border trading.xxvii However, it is an outdated tax which was based on ijtihad rather than a clear text in the Quran or Sunnah. Today commercial tax or customs duty are imposed equally on all merchants irrespective of their religion. Contemporary jurists, do not object to that but they feel that Muslim merchants should not be placed at disadvantage as they pay zakat on their commercial revenue. b. Abiding by the law:
Both Muslims and non-Muslims are obliged to abide by the Islamic constitution and law which are enacted in the country. This is a natural consequence of being a permanent residence of that country. However, non-Muslims are exempted from certain laws which have ritualistic significance: such as paying the zakat,
204 or participating in jihad. They are not obliged, in their social or personal affairs, to abstain from anything which is lawful in their religions but unlawful in Islam, such as marriage and divorce practices, or consumption of pork and wine. They may have their own personal law and personal courts according to their beliefs. The Islamic state should not interfere with the jurisdiction of non-Muslim courts which adjudicated upon matrimony, succession, and related issues. In cases of murder, wealth offence, civil and criminal affairs non-Muslims are required to abide by the relevant Islamic laws just like Muslims. Imam Abu Hanifah was of the opinion that the non-Muslims who commit adultery (zina) should not be given the prescribed punishment (had), stoning to death in case of married couples, but a lighter punishment. The charging of interest by non-Muslims is also prohibited as it is harmful to the whole society and it is also unlawful in Judaism and Christianity.xxviii
c. Consideration for the feelings of Muslims:
The third obligation placed upon non-Muslims is supposed to achieve social harmony in society. Therefore, non-Muslims should respect the beliefs and feelings of Muslims by not publicly abusing Islam, its Messenger, or the Quran. They may not propagate openly creeds or ideas contrary to the religion of the state, unless it is part of their faith. They may not openly indulge in practices, which are lawful to them but prohibited in Islam, such as consumption of wine, pork or taking meals during the days of Ramadan. Those are not legal offences, they are rather provocative practices which may create some disharmony in society. Muslims are equally enjoined to respect the beliefs and feelings of non- Muslims, especially the people of the Book. The Quran says:
“And insult not those whom they worship besides Allah, lest they insult Allah wrongfully without knowledge,” (ch. 6: 108).
About the Jews and Christians, the Quran says: “And dispute you not with the people of the Book, except with means better (than mere disputation), unless it be with those of them who inflict wrong (and injury).”(Ch.29: 46).
7. Non-Muslims and the rule of Shari’ah in the Sudan
The question of adopting an Islamic constitution and laws based on Sharicah was a hot political issue since the independence of Sudan in January 1956. Although the
205 activist elements behind the Islamicisation of laws were a small group, but they were vocal, well organised and rallied a wide support within the two big political parties which have religious background. Their influence increased through time, especially after the popular revolution of October 1964, which overthrew the military rule of General Abboud. They had a partial success in the daft constitution of 1968 which stated that “the Islamic Shari’ah is the major source of state laws.”, and that all laws which conflict with the Quran and Sunnah should be amended gradually to make them in conformity with the Shari’ah. It was General Numerie, who started as a leftist military ruler in 1969, to introduce actual Sharicah laws in the statutes of the country in 1983. The most important of these laws are: the Penal Code Act, Civil Transactions Act, Evidence Act, and Sources of Judicial Decisions Act. These laws created a wide controversy inside and outside the Sudan mainly on political grounds. The leader of the Ummah Party al-Sadiq al-Mahdi, the Southern politicians and the Communist Party were against those laws while they were supported by the Islamic Charter Front led by Dr. Hassan al-Turabi. However, al- Mahdi could not abrogate these laws when he came to power in 1986 because of its popular appeal in the North. Numerie’s experiment had certain negative aspects: he included the state security act which restricted political freedom in the Penal Code Act which brought him the accusation that the whole purpose of the new laws is to protect his military regime; he constituted special courts from outside the judiciary to implement the Penal Code, the judges of those courts were enthusiastic about the experiment but they were inexperienced; the new laws gave wide discretionary powers to the judges, some of them made full use of that to pass harsh sentences for minor criminal offences; the new laws were hurriedly drafted by young legal advisers without proper consultation which showed later some gaps and inconsistencies; the government media gave wide publicity to the sentences passed by the courts which was damaging to the reputation of the defendants and to the whole experiment.xxix The Islamic movement, under the new name of the National Islamic Front, attempted to find a solution to the problem of adopting Sharicah laws in the country without antagonising the non-Muslims in the Southern part of the country. The NIF, which had 53 members in parliament making it the third largest party, introduced in January 1987 a document called: The Sudan Charter: National Unity and Diversity.xxx The document was meant to be a working paper for the proposal constitutional conference, which never took place. It received a good press coverage and was praised by the Prime Minister, Sadiq al-Mahdi, as a “positive contribution”.
The Sudan Charter spoke about the legitimate right of Muslims to practice the values and rules of their religion by virtue of their democratic weight and of natural justice. It recognised that non-Muslims shall also be entitled to freely express the values of their religion to the full extent. It mentioned the regional application of certain laws
206 opening the door for exempting the South from some Islamic rules. It spoke about the possibility of a federal system in the country, the sharing of power and wealth amongst the different regions of the country. After the NIF seized power in June 1989 by a military coup, the Charter became, more or less, its blueprint for a constitutional solution to the chronic problem of Southern Sudan.
8. The Constitution of 1998
Before the promulgation of the Constitution in July 1998, the Salvation Government passed a number of Islamic laws, the most important of them is the Penal Act of February 1991. The Act was similar to the one passed, in its first and second readings, by the Constituent Assembly in 1988. Although it was passed by an overwhelming majority, most of the members from the South walked out of the session in protest. The Act included almost all the criminal offences in the Shari’ah but it reduced significantly the unprescribed punishments (ta’zir) compared with Numerie’s law. The new Act clearly exempted the Southern states from the implementation of hudud offences, which have a religious significance for Muslims.
The Constitution of 1998 tried to address some of the concerns and fears of the Southern people. Most of those concerns and fears are political and economical rather than religious. In political matters, it established a federal system for 26 states. The South is divided into 10 states but with Coordination Council, which acts as an autonomous cabinet, and with an Advisory Assembly, which acts as a regional parliament for the whole South. The peace agreement signed by the government with some Southern organisations in April 1997 was made part of the Constitution as a transitional arrangement (Art.137).
On religious issues the Constitution concedes the religious and cultural diversity of the country (Art.1), it states that all Sudanese are equal in the rights and duties of public life without discrimination based on race, sex or religion (Art.2); it allows every sect or group to have the right to keep their particular culture, language or religion and to bring up their children according to these traditions (Art.27); it does not mention a specific religion as a condition for the eligibility of the President. Although religious language is used in the guiding principles of the state but it bears no discrimination against non-Muslims
207
Conclusion
The Southern problem which started before independence in August 1955 is not a religious problem, nevertheless, it has been aggravated by religious laws and politics. Religion has been used by both parties to the conflict against each other. The Sudanese people, Muslims and non-Muslims, live together in a social harmony unknown in many African or Asian countries. The country is comprised of different tribes, which migrated from various places into the Sudan, none of them can claim that they have more rights than the others. There is no one tribe, which is dominant all over the country. Islam has entered the Sudan gradually and voluntarily through waves of migrants from the north and the east of the country. The migrants learned to co-exist peacefully with other beliefs and traditions. The Sufi orders, which were the main groups to spread Islam in the country, are known for their tolerance and forgiveness in matters of religion. Unlike the ulema, they emphasize the spiritual upbringing of the individual rather than the legal aspect of religion. The Islamic movement in the Sudan, which has stood behind the process of Islamicisation, is politically oriented and western educated. Thus, it is pragmatic, capable of necessary political compromise and appreciative of human rights values. Therefore, it may not be difficult to find a political solution for the prolonged conflict in the Sudan, which is acceptable to all parties. Let us pray for that!
208 Notes
1- Erwin I.J. Rosenthal, Political Thought in Medieval Islam: an Introductory Outline, (Cambridge University Press, 1958). Also Qamaruddin Khan, The Political Thought of Ibn Taymiyah, (Islamabad: Islamic Research Institute,1973), p.63. . 2- See al-Siyasah al-Sharciyyah, (Cairo, Dar al-Kitab al-Arabi, n. d.),pp. 27-161. 3- J.L.Esposito (ed.),Voices of Resurgent Islam (Oxford: OUP,1983), p.215 4- R.L.Maddex, Constitutions of the World, (London: Routledge, 1996), pp. 243- 244. 5- The Constitution of the Islamic Republic of Iran, (Tehran; Islamic Propagation Organization, n.d.), Preamble. 6- Ibid., Article 4. 7- Ibid., Article 170. 8- Dastur al-Jamhuriyyah al-Yamaniyyah (Sanca: Majlis al-Nuwaab, 1994), Article 3. 9- S.M. Khan Sabri, The Constitution of Pakistan, 1973 (Lahore: Emporium, 2nd ed. 1994), pp. 179-181. 10- Ibid. p. 158. 11- Ibid.,p. 424. 12- Maddex, op.cit., p. 72. 13- A.Z. al-Abdin (ed.), Al-Qanun al-Jana’i al-Sudani, (Islamabad: 1991), p. 11. 14- Ibid., p. 12. 15- Ibid., pp. 13-15. 16- A.A. al-Sanhuri, translated by N.A.al-Sanhuri, Fiqh al-Khilafah wa-Tatawuraha, (Cairo: al-Hayah al-Masriyyah lil-Kitab, 1989), p. 85. 17- Muqadimat ibn Khaldun (Beirut: Dar al-Hilal, 1983), p. 131. 18- J.N. Anderson, “Reflections on Law, Natural Divine and Positive,” a lecture held at Westminister, in S. Ramadan, Islamic law: its Scope and Equity ( Geneva: 2nd ed., 1970),p.57. 19- Encyclopaedia of Islam (Sharicah). 20- A.R.I.Doi, Non-Muslims under Sharicah (USA: International Graphics,2nd ed . 1981), pp. 6-7. 21- I.A.K.Nyazee, Theories of Islamic Law (Islamabad: 111T & 1R1, 1994), p. 214. 22- Al-Sanhuri, op.cit., p. 63. 23- Muhammad Hamidullah, translated by M.A.Ghazi, The Life and Work of the Prophet of Islam, vol. I (Islamabad: IRI, 1998), pp.156-158. 24- Ibn Hisham, al-Sirah al-Nabawiyyah, summarised by Doi, op.cit., p.76. 25- Yusuf al-Qaradawi, tr. by K. Hamad & S. M. Shah, Non-Muslims in the Islamic Society, (Indiana: ATP, 1985), p.2; A. Zaydan, Ahkam al-Dhimmiyyn wal- Musta’manin fi Dar al Islam, (Baghdad: 1963), p.24. 26- In Zaydan, ibid., p.70. However, the hadith is not known in other sources but its meaning is acceptable to the fuqaha. 27- Ibid. , p.70. 28- In al-Qaradawi, op.cit., p.3 29- Doi, op.cit.,p.26.
209 30- Al-Qaradawi, op.cit.,p.5. 31- Tarikh al-Tabari, in al Qardawi, ibid., p.10. 32- Ibid., p.10. 33- Ibid., p.11. 34- Ibid., p.11. 35- Ibid., p.7. 36- Zaydan, op.cit., p.133. 37- Doi,op.cit., p.107. 38- Ibid., p.108. 39- Zaydan, op.cit., p.103. 40- Ibid., p.103. 41- Ibid., p.104. 42- For these freedoms see: R. al-Ghanushi, Huquq al-Muwatanah: Huquq Ghayr al- Muslim fi al-Mujtama ‘ al-Islami, (Tunisia:IIIT, 1989); M.S. al-‘Awa, “Al-Nizam al-Islami wawd ‘ Ghayr al-Muslimin” , in Al-Muwatanah: Tarikhiyan, Dusturiyan, Fiqhiyan (Cairo: al-Markaz al-Qibti lildirasat al-‘ Ijtima‘iyyah, 1998). 43- Doi, op.cit., p.59; al-Qaradawi, op.cit., p.18. 44- Al- Qaradawi, op.cit., p.19. 45- Related by Abu Yusuf in Al-Kharaj. 46- History of al-Tabari, in Zaydan, op.cit.,p145. 47- Al-‘Awa, op.cit., p.74; zaydan, op.cit., p. 155. 48- For more details about kharaj see: Zaydan, op.it., pp. 158-175. 49- Al-Qaradawi, op.cit., pp.22-23. 50- Ibid., pp. 23-25. 51- Al-Abdin(ed.), op.cit., pp. 16-17. 52- A. Z. al-Abdin , “The Sudan Charter: National Unity and Diversity”, in Bulletin on Islam and Christian-Muslim Relations in Africa, (Birmingham: CSICM, 1988). vol.6, No.1, pp.1-12.
210 b. Summary of discussion
1. In 1992 a fatwa was issued for Muslims to kill the people of the Nuba because it claimed that the latter were rebels. Can a Moslem issue a fatwa to another Moslem? The fighting in the Nuba Mountains ended last week, under the supervision of the USA and this has given temporary peace to the people in the region.
2. There are two distinct origins of law in the Sudan, the Islamic and Modern State. Are these compatible? If Sudan is going to move forward and progress, is it better for it to remain as an Islamic or modern democratic state? How does one deal with the theological aspect of Islam versus the practical experience? How does one reconcile the contemporary aspects of human rights, the UN Conventions to which the Sudan is a signatory with Islam? How do these fit with Islam?
3. Shari’ah is diverse and as old as Islam itself. Throughout the last 1,500 years the Ulema have not developed Islamic public law or an institutional framework for the state. So what could be the relationships between religion and the state? One could think of a state in which the Quran instructs Moslems but it does not do it through a Moslem state. Islamic activity could also be seen as human activity which is not based on public command. One could also understand hudud as the maximum penalty which might be applied with a view to the circumstances.
211 10. Reflections on Religion & the Post Colonial State in the Sudan: what is mine is mine and what is your is negotiable a. Paper presented by Dr Taisier Mohammed A. Ali
On the State:
A state is not a divinely solid and unified institution to be worshipped, feared, or hated for itself. Like other institutions, it is the product of socio-economic interaction among people engaged in life activities within specific relations of production, accumulation, reproduction and control. States are special in that they tend to reflect the fundamental divisions, conflicts and cross-pressures in a society. Basically, state policies are not the work of an individual minister or a single specialized department. Nor should it be assumed that the policies adopted will automatically embody the common good. On the whole, the state is the product of competing interests, conflicts, and strives for control; it reflects protracted processes of struggle and negotiation by socio-economic forces aspiring to achieve domination.
A democratic state nurtures social and economic justice, ensures equality of all citizens in front of the law and its constitution protects the basic freedoms. In essence, state policies are expressions of all relationships and compromises demanded by the balance of political power. The state, then, is not just an institution or a mere structure; it is a complex form of relations created by the variations and struggles in society and the corresponding forms of social organizations. Therefore the state is not independent of social forces or their conflicts; quite the contrary, it is in itself the product of socio- economic realities. The state not only manifests and reflects social antagonisms albeit in a condensed form, but it also (depending on the manner in which conflicts are resolved) projects corresponding forms of organization upon social being to facilitate and ensure the reproduction of dominant social relations.
The basic idea of a secular state is the division between what is temporal and what is spiritual. First adopted in France during the Revolution and the agonizing transition from feudal to capitalist relations, the aim was to end absolute power of the church and royalty over society and political authority. On the political and philosophical levels ascended the age of reason in which everything, including religion, was carefully thought out and subjected to critical analysis. However, diffusion of these concepts to third world societies has been fraught with difficulties. In some cultures there is no immediate or exact translation for the concept of “secularism” and must therefore be explained in its
212 original historical context. The blurred translation in Arabic has bred confusion and controversy. In this paper we distinguish between atheist and secular states, with the former banning religious practices along the defunct model of communist bloc countries; and, the latter which supports all religions without itself favoring a set of beliefs over others.
On the State in Sudan:
The Sudan is a country that baffles observers. Some consider it part of sub-Saharan African, while others think of it as Middle Eastern; in certain literature it is the heart of the Islamic “Ummah” while in some others it is part of the Central African ‘Sudanic Region”, and more recently it is thought to belong to the Horn of Africa. Briefly, the identity of the Sudan seems to be in the eye of the beholder. The source of this apparent confusion is the cultural complexity and socio-economic diversity created by ancient and enduring relations between Africans and Arabs, Christians, Moslems and people of traditional beliefs in this one country.
At the time of independence, everyone seemed to agree that public laws and access to public institutions should be available to all Sudanese. Even, when the country arrived at its political independence there was no constitution. Instead, what existed was a constitution for a transitional period (self-rule), which was subsequently adopted as constitution of the new independent Republic of Sudan (December 15, 1955). It is noteworthy to recall here that this supreme legal document was a secular one with no reference to religion. Later on, when parliamentarians disagreed on one part and wanted it emphasized, it was not that of religion. Instead, the one issue that M.Ps requested it to be considered and amended in the constitution dealt with paying due consideration to the legitimate desires of the South to acquire federal status. Religion was not an issue and the elected representatives of the people did not express any degree of concern about the subject.
Until the time of the first military coup in 1958, the question of religion was brought to the attention of the National Constitutional Committee (NCC) only once by a member of the Islamic Charter Front. In other words, the issue appeared to be one of a certain elite preoccupation rather than a popular demand of the Moslem majority. This fact prompted the Chairman of NCC, a leading member of the Umma Party, an ex-Shari’ah judge and speaker of the first parliament, to declare that the call for an Islamic constitution is a “demagogic slogan”. Even when the military rule of General Abboud (1958-64) adopted
213 measures against missionaries it was for inciting popular emotions in the South against the North. In other words, the decision was politically motivated and not one based on the religious values of the missionaries.
Fearing a power vacuum, the October regime that assumed power after the downfall of General Abboud in 1964, adopted the secular 1956 constitutional arrangements. Whatever amendments were made centered on basic freedoms and not religion. It was not until the 1968 parliamentary regime that the issue of an Islamic constitution was raised by (the then MPs) Sadiq al-Mahdi and Hassan Turabi, who subsequently managed to get a draft passed in a first reading of a committee stage; and in the process precipitated an abortion of the democratically arrived at resolutions of the 1965 Khartoum Round-Table Conference as well as those of its Executive 12 Member Committee of 1965/1966.
In that particular “committee stage” a leading Member of Parliament (Rev. Phillip Gaboush) asked Dr. Turabi (in his capacity as professional advisor for the Constitution Committee) whether a non-Muslim could become President of the Republic in Sudan. After considerable hesitation the answer was a categorical “No”. Little wonder then, that MPs from Southern Sudan (led by Mr. Abel Alier), the Beja Congress and Union of Nuba Mountains walked out of Parliament.
Setbacks of this nature in the constitutional process along with the general failure to end the civil war or deal decisively with other national crisis contributed to the collapse of the democratic experiment in 1969. The military regime of General Numeri succeeded in 1972 to stop the carnage of the civil war. By the following year a quasi-secular constitution was formulated devoid of specific references to any one religion. Instead, it recognized all religions as well as “supreme spiritual creeds” and rendered the use of religion for political gain or fermenting discord between citizens not only a crime but also an unconstitutional act. However, an article in the same constitution stipulated that Shari’ah and customary law are sources of legislation, which was explained in terms of use for family law for Muslims. In 1983, General Numeri used this provision for political reasons to introduce his version of Islamist laws and Islamist state.
The architect of these and subsequent legal structures was the Islamist leader, one time Minister of Justice and later Presidential advisor, Dr. Hassan Turabi. Earlier on, in 1976 Numeri reconciled with Sadiq Mahdi who accepted the President’s candidacy for a third term, endorsed the Sudanese Socialist Union as the sole political party in the country, and declared his appreciation of the new Islamic code of virtues leadership (al-quada al-
214 rasheeda). Eventually, the prospect of having unquestioning obedience and total loyalty by all citizens lured Numeri to become the “Imam” of modern Sudan.
In reality, the professed “Islamization” of the political system in 1983 did not necessarily reflect the collective will of the Sudanese people in various parts of the country. This decision did not come about as the result of a democratic test of will / interest through a plebiscite or referendum. Instead, it was imposed under military dictatorship through the barrel of a gun. As such, it was little more than another form of elite machination and contestation to monopolize power and wealth. Indeed, the individuals who spearheaded the call for an Islamic Constitution in 1968 were the ones later on again championed similar changes of the legal and political system in 1983.
By the late 1970s, Marshall Numeri had managed to alienate the traditional right wing groups as well as the liberal oriented organizations on the opposite end on the Sudanese political spectrum. His Sudanese Socialist Union failed to generate meaningful support and remained another corrupt, weak and inefficient government department. Therefore, the regime remained largely if not totally dependent on the “good-will” generated by the Addis Ababa Agreement that ended the civil war in 1972. Overtime, however, the political mileage derived from that agreement could not be sustained for too long and lacking reliable grass root support; the regime became desperate for new sources of legitimacy.
The party of Islamists stepped in to fill this political void by offering Numeri the unquestioning blind loyalty afforded to an Imam. In return, presidential decrees allowed for the creation of a variety of Islamic financial institutions with phenomenal tax and other exemptions. In this manner and within few years the Islamist movement succeeded in creating an overpowering economic empire, which dwarfed traditional institutions of the sectarian Umma and DUP political parties that dominated agricultural production and trade. In short, it is perhaps plausible to argue that the introduction of the so-called Islamic law was not entirely a matter of faith and religious conviction as much as establishing a powerful economic base. The popular uprising of 1985, which swept General Numeri out of office and the “Imamship”, failed to dismantle or even weaken the economic grip of the Islamist party. The National Islamic Front (NIF), through shrewd and imaginative, though not entirely above suspicion, use of economic resources was able to influence national politics in a manner far beyond the real mass of its popular base. Accordingly, all of the 1986 election promises by Prime Minister Sadiq al-Mahdi and other sectarian leaders to abrogate the
215 Islamist laws did not materialize. In the end, popular forces and organizations managed through non-violent public agitation and campaigns of civil disobedience to advance a peace agenda calling for the freezing of Islamist laws. Fearing possible future implications of the popular mass movement making a direct connection between civil war and the continued application of Islamist laws, the NIF staged its 1989 military take over of political power and thereby blocked the peace process.
Under the NIF regime the foundations of an exclusivist state were put in place through wide ranging presidential decrees, banning of popular and civil organizations, the practice of torture and by transforming the civil war into a religious one, not to mention dubious adventures beyond national boundaries. In 1998, the regime made a volte-face and adopted a new constitution that dropped direct reference to any particular state religion and made citizenship the bases for holding public office. Surprisingly the person responsible for this formulation is the same one who explained in 1968 (to Rev. Phillip Gaboush) that a non-Muslim couldn’t become president. This bizarre change of opinion raises serious questions in that either he is insincere and was honest earlier or the reverse. In all cases, if he was honest in the first incident then a non-Muslim cannot aspire to become president, however, if he was honest in the second time then his reading of Islam must be perplexed and therefore cannot be accorded the status he claims of the ultimate authority on the subject.
In addition, the 1995 Constitution stipulates that Shari’ah and customary law are sources for legislation. Turabi used this same provision in 1983 to declare General Numeri an Imam. It appears then that within the overall context of existing legal and political superstructures, reference to citizenship in the Constitution is no more than lip service. At present, the problem is much more serious than who is allowed to become president. The entire state and society system ranging from education to national media and culture, from accounting to entertainment, freedom of thought and public opinion, have all been forcibly reshaped by intensive Islamist propaganda and sloganeering. Life and well-being has been redefined along extremist Islamist perceptions. The main inadequacy of this state of affairs is its total alienation of non-Moslem Sudanese. Of course, this is not only unjust and morally repugnant but it also breeds perpetual instability of society and state in our country.
Furthermore, legislating for constitutional changes is not left open but circumscribed by the stipulation to observe Shari’ah and the consensus of the “Ummah”. Serious hurdles obstruct even the simplest straightforward matters that are less threatening or grandiose
216 than “the constitution”. Consider for example the issue of getting a permit to construct a new church in northern Sudan. Although Islamic jurisprudence does not raise objections, such requests are invariably denied on grounds that buildings of that type cannot be allowed in areas where Muslims constitute a majority. The implicit danger of this argument is that if the composition of residents in neighborhoods shift, then the minority can be denied its place worship. As luck would have it, Church affairs in the Ministry of Social Planning is under the directorship of non-Christians. No wonder then, that in most other vital fields such as education, information or media, the system habitually ignores the aspirations and spiritual needs of non-Muslims.
Outside the Sudan, there seems to exist serious misconceptions about national attitudes towards secularism. For several decades Moslems in the country had no apprehension about a secular regime, after all the fathers of Sudan’s independence who were also leaders of the two largest religious sects (al-Ansar and al-Khatmiyya ) accepted the secular constitution of Stanley Baker during self-rule period and at independence. Moreover, many long-established cultural practices that are not necessarily condoned by Islamists continue to be observed in various regions. Traditional communities are at peace with itself and its heritage and therefore are not intimidated by manifestations of intolerance. Some of these regions remain strongholds for sectarian parties yet they are firm in their accommodation of diversity. Evidently then, the obsession with an Islamist constitution is not necessarily a matter of great concern for the marginalized majority, rather they reflect concerns of elites attempting to impose a particular model of Islam.
Values such as justice, peace and tolerance, reflected in Islam as well as in contemporary political systems were all embodied in previous Sudanese constitutional documents; and, in this sense the NIF constitution did not make any addition other than inserting Shari’ah. Hence, we cannot claim that the Islamic constitution offers a new and exceptional contribution besides highlighting Shari’ah. Moreover, laws must take into consideration social reality and the stark socio-political and economic constraints. From this perspective, anchoring the constitution on citizenship alone does not necessarily ensure justice, and therefore efforts must be made through affirmative action clauses to make the ground more level.
In drawing parallels with other countries, Turkey is often cited as an example of a secular state with Moslem majority. However, two particular observations stand out in this example. First, the constitutional order of the country is under the direct tutelage of its military; and, secondly, the nation is extremely homogenous in terms of its society,
217 religion and culture. The rich human mosaic of Sudan with over four hundred of ethnic groups, about one hundred languages and communities of traditional values is incomparable to Turkey or any other model Islamic country such as Saudi Arabia, Iran, Afghanistan, Pakistan or the Gulf states. Indeed, in most these countries, particularly Somalia and Afghanistan, religion has not been a unifying force.
218 b. Summary of discussion
1. One did not know that he or she was part of the Sudan when they were young, rather people knew that they were part of their region. Sudan is multi–cultural, linguistic and multi-religious country. Sudan has over 25% of all the languages of Africa. There are over 500 languages in the Sudan alone. There are also multi-segmented groups throughout the Sudan. The problem in the Sudan is not just between the North and the South but also between the centre and the regions. The central government has used regions to further their own aims. In effect when people talk about the north they refer to the riverain Arabs. Although the National Democratic Alliance is fighting against the GOS it is also ready for a politically negotiated settlement which touches the roots of the Sudan problem. People now have a choice, either to kill their country or be ready to move forward by sitting and talking. These talks should lead to concrete actions and advances regarding what to do next. Otherwise the talks will not prevent the casualties in the future and the fighting will go on.
2. A secular constitution such as Sudan had in the past does not cancel religion. What is now needed is for the Sudan to strive to build true democracy based on social justice and the rule of law. It is very commendable that every participant wishes to reach a consensus regarding human rights.
3. When the issue of the displaced people on the outskirts of Khartoum was raised at an earlier conference it was suggested that if non-Moslems behaved in an orderly manner then they would not be affected by Shari’ah. There is not only the issue of women brewing for economic gain – but they make this brew as part of their culture – they are proud of it and it is used at funerals and weddings. People do not make it to get drunk but because it is a cultural part of their lives. It is therefore not disorderly behaviour but it is part of their culture and arises from their desire to celebrate. On the other hand, non-Moslems are sensitive to Moslem traditions whilst the Shari’ah is hurting them. Although the south is exempt from Shari’ah, southerners living in the north are affected by it. This leads us to ask the following questions. How should non-Moslems behave in these circumstances? How could they be Sudanese citizens in these areas?
4. One way of moving the peace process forward is through admitting that there is a problem in the Sudan and that this relates to the reality in the Sudan. This problem relates to the multiple cleavages in the Sudan. Another way would be to postpone some of the more sensitive areas of negotiations, like religion, until the last stages of negotiations. First, we could address politics and culture – so that either side does not exploit these areas. We could then discuss how to reach a cease-fire and military and security issues. The discussion of the above practical problems would make other areas far easier to handle at later meetings. We could also identify what specific law or policies we are not happy with. Once these have been identified, then we would need to go into the details. There are areas of negotiation regarding parts
219 of Shari’ah which are not divine laws but made by humans. These laws could be examined.
5. We also need to have general discussion on different religious issues. Even if these areas are hard – we should confront them. We need to talk about these points in order to be taken seriously. We are looking for more seriousness than has been demonstrated by different participants. Unless Sudan’s religious questions are addressed it would be useless to continue future discussions. Islam is a comprehensive way of life for Muslims. There are different ways which are available to us to resolve the problems within the notion of the Sudanese context. A number of concepts which should be examined relate to territory, the state, the issue of nations, meanings and definitions of words. Problems relating to religion and the state should be discussed in specific and in general terms. There are competing perspectives regarding the type of country that the Sudanese want. Unless people move away from an exclusivist approach they will never achieve a humane equitable society. Many parties have an agreed comprehensive approach to examine the above mentioned issues. Let’s sit down and discuss them.
6. In South Africa some negotiators wanted to leave some of the most difficult issues until the end but they found that if they had done that they would have wasted two years and their country might have been pushed towards a bloody war. There is also the issue that if one does not want to look at the hardest sticking points then the world will not take you seriously. Consequently, the hardest issues ought to be tackled alongside other problems. There is a sense that the world has changed since September 11 and it will not wait for us because there are many serious and competing issues to preoccupy the attention of decision-makers.
220 11. A State Based on Shared Ethical Values
a. Paper presented by Dr Mario Awet
Introduction
Sudan since its independence has been standing at the crossroad of the Arab-Islamic Middle East and Sub-Saharan Africa as once proclaimed by Muhammed Ahmed Mahjoub, former Sudanese Prime Minister (1956 – 1966 and 1967 – 1969): For geographical, ethnic, historical and cultural reasons the Sudan is African. Yet it will continue to be Arab in outlook and destiny. As a country it is a geographical spearhead of the Middle East into Africa, south of the Sahara.97
As a consequence the political path that the government chooses to follow in a number of key issues whether ideologically, religiously, economically or socially has always determined the regime’s survival.
In the light of this proclamation and its relationship to our topic, this paper will discuss the Sudanese state foundation and its national identity. In this respect the role of the state based on shared ethical values will be explored in the area of law and education in the hope that it could accommodate its citizens. Generally the perception of the state foundation and nation consciousness of their identity and destiny will be projected as the main concern. People’s sentiment and consciousness toward the state’s existences will be looked at in the area of nationalism that erodes the viability of the state in the absence of civil society.
Modern Sudan and its National Identity
Sudan as a state was the creation of alien rulers, first the Turco-Egyptian (1821-1885) and later the British (1898-1956), whose collective self-interest and domination held the state together until they were forced to go.98 The hegemonic control of the above rulers was imposed over an area vaster than claimed by the Sultanate of Sennār (1504-1820). This type of governance was backed by irresistible firepower, which forced people groups into submission as subjects. As such, the modern political boundaries of Sudan
97 Muhammed A.Mahjoub, Democracy on Trial: Reflection on Arab and African Politics, (London: DEUTSCH, 1974), P.247. 98 P. Woodward, Is Sudan Governable? In BRISMES, British Society for Middle East Studies, 1986, p. 309.
221 originated arbitrarily without regard for the racial, religious and linguistic affiliation of people in the area who had never existed geographically previously as a political entity through the centuries. These artificial arbitrary demarcations caused the Sudanese to experience a confusing fluidity of complex and overlapping identities. As a result, the various ethnic, religious and regional systems were only nominally united within a formal government structure, leading to multiple marginality and monopoly.99
After nearly half a century of independence there are still unanswered questions as to whether Sudan’s heterogeneous population is capable of producing a system of government, which can maintain it as a viable state in the long term. With this question in mind, it is important to remember that the history of the Sudan is a history of many different geographical regions and diverse ethnic groups with their own ways of living and governing that have evolved throughout the centuries. For example, it was not enough that the Turco-Egyptian regime had been pushed out, people’s expectations and aspirations needed to be addressed as a central point of the new regime. What they had expected was the freedom to govern themselves and manage their own affairs as used to be the case during the Fūnj and the Fūr sultanate. Thus the Mahdīyya period, and its legacy, still faces the Sudanese people up to this day.100
It is therefore clear that at the time the Mahdīyya was viewed as a religio-political movement that roused Sudanese Muslims to a spirit of martyrdom and a desire to return the society to the practices of pure Islam. The perspective from the South, however, was different although some peoples in the South co-operated with the Mahdī. The Southerners’ interest was to overthrow the Turkish government and expel their garrisons.101 They did so to free themselves of foreign control and predatory raids that spread anarchy and fear in their villages. The Turks organised periodic ghazwāt - slave hunts (sing. gazwā) in which they seized slaves, ivory and cattle.102 When the Mahdist troops imposed centralised rule, collected taxes and resumed slave raids the Southerners
99 Yehudit Ronen, Religion and Conflict in Sudan: A non-Muslim Minority in a Muslim State, in Minorities and the State in the Arab World, ed. by Ofra Bengio & Gabriel Ben-Dor, (London: Lynne Rieneer, 1999), p. 73. 100 Mario A. Awet, The Ideology of an Islamic State and the Right of Non-Muslims with Reference to Sudan’s Complex Social Structures, Cultural Diversities and Political Rivalries, Ph. D Thesis, University of Birmingham, 2001, p. 68. 101 Kenneth D. D. Henderson, Sudan Republic (London: Ernest Benn Ltd., 1965), p. 155. Also see, P.M. Holt & M.W. Dally, The History of the Sudan from the coming of Islam to the Present Day, 3rd ed., 1979, p. 93. 102 Richard Hill, On the Frontiers of Islam: The Sudan under Turco-Egyptian Rule 1822-1845 (Oxford: Clarendon Press, 1970), pp. 7-8, 12-13.
222 turned against them.103 Although the Mahdist forces could not consolidate their control over the South, their frequent raids further destabilised its society and economy – thus the brutality inflicted on the Southern Sudanese by the jallāba who were involved in the business, still remains as a source of fear and animosity.104
So, the responsibility of slavery in the South lay not only with the invaders from Egypt and their European collaborators, but also with the flood of jallāba intruders from northern Sudan and the Mahdīyya. Undoubtedly, slave raids uprooted people and undermined social units. Conscription into the armed forces was similarly perceived as a form of enslavement and social dislocation, since soldiers rarely returned home.105 During this period a fixed collective memory developed which viewed the northern Arab/Muslim as the primary source of danger as reflected during the 1947 Juba conference regarding the unity of the country and its integration.106 Hence, Islam was badly tarnished by the rapacious Arabs slave traders. Although the slave trade had economic benefits or gain, it destroyed the social relationship and as a result generated a sense of bitterness, hatred and mistrust that has daunted the North-South relationship until now. It heightened also the religious tension and fear in the mind of Southerners against Northerners. This fear and mistrust hampered the cultural and social transformation of the Sudan into a nation or a state.
So, to understand the Sudanese problems of creating and maintaining national unity based on a state with shared ethical values, it is essential to analyse the social characteristics, political situations and historical factors of the country. The historical background and the diversity that has characterised the Sudan since its independence are important factors for maintaining these values. They reflect its physical geography, the ethnic groups, their tribal/ethnic identity and religious affiliation. These elements have important influences and implications on the cultural, social and political destiny of the country. Indeed they have dictated it since the advent of Islam on its soil.
The Sudan as a state is considered primarily an Arab country, from which many of the Muslim elite trace their lineage back to the Arabian peninsula, and in some cases to the early followers of the Prophet Muhammad e.g. the family of Muhammad Ahmad ibn ‘Abd Allāh ibn Fahl ibn ‘Abd Alwali ibn ‘Abd Allāh al-Dunqulāwī, the Mahdī of
103 Ann M. Lesch, The Sudan: Contested National Identities, 1998, p. 27. 104 Robert O. Collins, The Southern Sudan 1883-1898, (New Haven, Yale University Press, 1962), p. 177, also see Abel Alier, Southern Sudan: Too Many Agreements Dishonoured, 1990, p. 25. 105 Ann M. Lesch, The Sudan: Contested National Identities, 1998, p. 27.
223 Sudan.107 Since the Sudan is becoming more Islamic, Arabism excludes and discriminates against citizens who are not yet Arabised or Islamised, but who in the process of assimilation are included.
As a response to these challenges, the African identity in its racial and cultural composition has withstood the onslaught of Arabism and Islam. It faces the policy of assimilation with total rejection and disregard, which has resulted in guerrilla warfare. These elements of identity in some countries or societies are important factors in giving people the sense of belonging to a nation, enabling them to participate in political, economic and social processes of development in the country. Therefore, the southern concept of identity and the growth of Islamic reform in the north are closely related issues in the Sudanese political arena, especially in the light of Islamic revivalism based on a medinan replica that displaces the very mission of the state. The Islamic model of Medina was actually a state among and against tribes of its territory.108
Like most African states, the Sudan as a country gained its independence in 1956 AD, before there was a full development of a national consciousness as a nation.109 In that way the great diversity of the Sudanese led to conflict and rivalry rather than to a common unity as a microcosm of the Arab Muslim world and sub-Saharan Africa in the sense of Afro-Arab relations. Civil war has racked the Sudan, with its difficult majority-minority tensions. The people in the north are mainly Muslims and Arab, while those in the south are of several different black ethnic groups and include many Christians. Despite the mediation of the World Council of Churches, which led to a temporary resolution of the Sudanese conflict in 1972 and the granting of regional autonomy to the south, fighting broke out again in the 1980s and still continues.110
This statement indicates that the Sudanese civil war is one of the factors, which keeps the historical and psychological gap between Arabs and Africans alive; likewise, between North African people who look toward the Middle East and the people south of the Sahara who uphold their African identity. The characteristic aspect of this clearly shows
106 Dunstan M. Wai (ed.), the Southern Sudan: the problem of national Integration, (London: Frank Cass, 1973), pp. 185-88. 107 R. S. O’Fahey, Arabic Literature of Africa Vol. 1: the Writings of Eastern Sudanic Africa to C. 1900, (Leiden: E. J. Brill, 1994) p. 304. 108 Mario A. Awet, The Ideology of an Islamic State and the Right of Non-Muslims, Ph. D Thesis, University of Birmingham, 2001, p. 177. 109 P. Fordham, The Geography of African Affairs, 4th ed., (England: Penguin Books, 1974) p.220. 110 B. Frost, The Politics of Peace, (London: Longman & Todd, 1991) p. 150.
224 the racial divide between the Arabs and the black African. This diversity in one way or another has made its realisation as one nation difficult, especially with respect to the Islamic resurgence that demands an Islamic state. The Islamic resurgence, too, leads to other resurgences that complicate the Sudanese diversity and identity. For instance, the Arabic language has become a religio-political instrument and a symbol of identity and domination in the Sudan given its status as the language of Islam and the Qur’ān. As Arabic is associated with Muslims, English is associated with non-Muslims.111 English has as a consequence become the common official language in the South for political and religious reasons.
Through the following pages we shall examine and analyse the complexity of the Sudan, its religious attitudes and its contested national identity, in order to understand how the rights of citizens are preserved and dealt with as part of the whole nation.
Confucianism and National Identity
In connection with religious practices, the self-identification of people in the Sudan is complex and confusing.112 This conglomeration of confusion is mostly experienced by those in the North, when considering their wider affiliation as Muslims and/or Arab people. In this case they never think of themselves as Sudanese, unless the person concerned happens to belong to a less sophisticated, non-Islamised or non-Arabised section of the population. For example, a person from Northern Sudan might be identified as an Arab or Sharīf (pl. Ashrāf) who claims descent or lineage from the Prophet Muhammad when he is in the Southern part or in Egypt or in the Arab world in general, even though genealogically, this is largely fictional.113 On the other hand when he is at home, a tribal identity might be more important. In other words, most people in the North see themselves primarily as Muslims, to the extent that they think of themselves as Arabs, but as a common denominator for the Sudanese nation this is misleading. Arabism for them is inseparable from Islam and they see their non-Islamic surroundings as being like the pre- Islamic era, the jāhiliyya114, i.e. the ‘Age of Ignorance or barbarism’, with which they
111 H. Chapin Metz, Sudan: A Country Study, 4th ed., pp. 57-8, 69-70. 112 J. Obert Voll & Sarah Potts Voll, The Sudan: Unity and Diversity in a Multicultural State, p. 6. 113 Ann M. Lesch, The Sudan: Contested National Identities, (Oxford, James Currey, 1998), p. 14. 114 The term jāhiliyya does not actually mean just ignorance. It is usually used to refer to the “time of ignorance” or “barbarism”, which is an element of wildness and unruliness. The heroic age, the Arabs had experienced with a mixed feelings when encountering its antiquity that preceding the prophetic mission of Muhammad. Thus the emphasis is more than intellectual, implying a time of indiscipline.
225 cannot identify.115 With this perception in mind, when the sharī‘a was implemented in the Sudan during Numeri’s regime in 1980s.The imposition of Islamic punishments e.g. amputation (chopping of limbs, including cross-amputation – the right hand and the left foot) on non-Muslims who do not accept the rationale of these penal,was seen by Southerners as barbaric and wild behaviour on the part of the government in Khartoum. Also, according to Muhammad Sa‘īd al-‘Ashmawy, former chief justice of High Court of Cairo and legal advisor, the nation which dishonestly forgets its history and origin is likely to live in a schizophrenic situation in which it is easily caught up in questions of pigmentation.116
During two or three decades of the pre-independence period, the principles on which unity was sought were those of Islamism and Arabism rather than of Sudanese nationalism. Such loyalty to a national identity was demanded from the whole nation even though it applied only to a single sector of society, be it an ethnic group or religious sect.117 As a result, after independence, the northern Sudanese, the Arab-Muslim elite, saw themselves as superior to the non-Arabised Muslims and people of the South. As a result of these attitudes and policies, certain ethnic groups have not felt that they are part of the whole nation in which they could necessarily show concern for the well-being of the whole. Ultimately, the country was forced into a political crisis and geographical division, based on racial, cultural and religious affiliations. Thus, the North-South dichotomy or disunity has remained the key to understanding the complicated racial, cultural, and religious configuration of the Sudan. The main problem remains an issue of a collective consciousness about Sudanese identity: Who are they?
An ambiguous national identity does not easily generate national self-awareness and loyalty to a nation/state in which the concept and prospect of citizenship are the basic principles. In relation to the Sudanese conflict of consciousness, Dr. Mansour Khalid, a prominent northern Sudanese scholar, considers this philosophy of national identity in his book ‘The Government they Deserve’ as the cause for the failure of the Sudanese elite who exhibit a most myopic or short-sighted behaviour: They equated national identity with ethnic particularity, they failed to understand the importance of power-sharing in a truly stable nation; and
115 M. ‘Abdel Rahim, Arabism, Africanism and Self-Identification in the Sudan, in Y. Fadl Hasan, ed., Sudan in Africa, 2nd ed., pp. 234-5. 116 Muhammad Sa‘īd al-‘Ashmawy, al-Khilāfa al-Islamiyya, (Cairo: Maktabat Madbūlī al-Saqīr, 1996), pp. 29- 31. 117 M. Khalid, The Government they deserve: The role of the Elite in Sudan’s Political Evolution, (London: Kegan Paul International, 1990), p.13.
226 they were not forward in prompting social justice for all the people whom, in theory, they represented.118
In the same context, Dr. Francis Deng, a prominent southern Sudanese scholar, argues in his book ‘War of Vision’ that the conflict of identities within the Nation-state occurs when groups or, more accurately, their elites, rebel against what they see as intolerable oppression by the dominant group. To him this domination is often expressed in the denial of recognition, exclusion from the mainstream, to the extent of cultural annihilation or even physical elimination.119 As a result of such attitudes the civil war broke out in the Southern Sudan and marginalised areas of the northern Sudan under the, Sudan People’s Liberation Movement/Army (SPLM/A). The goals of the SPLM/A is to establish ‘a new Sudan’ of equality, of social and economic justice, where the various nationalities of the country can develop their cultures in freedom; where no particular religion is selected as the creed of the state; where there is recognition of and respect for human rights and where state power is not monopolised by a privileged few.120
In this case the civil war is not a southern problem, but a Sudanese problem of governance perception. It is due to the lack of guarantees for the minorities or/and non-Muslims rights, since the incorporation of the Islamic law into the constitution is the concern of the dominant group. These developments and complexities have made the unity of the Sudan nation problematic, especially when some groups have been forced into another culture and religion, i.e. Islam, through educational indoctrination, social institutions and other coercive means.
The Islamic emphasis that called for unity through holy war and biological assimilation meant that peaceful coexistence became difficult because the problem turned into a religious issue and it implied that there would not be equal rights for all citizens. Especially when the educated class became subjects and acted like yoyos in the hands of sectarian leaders who denied them their intellectual liberty. This emphasis, which is expressed as an ideology of Islamic revivalism, due to the involvement of Sufi orders and Islamic movements in Sudan’s
118 K. Mansour, The Government they deserve, p.13. 119 Francis M. Deng, War of Visions: Conflict of Identities in the Sudan, (Washington, D.C., The Brookings Institution, 1995), pp. 14-18. 120 Manifesto, Sudan People’s Liberation Movement, 31st July 1983, pp. 4-6, 18-20.
227 politics, is one of the Sudanese problems. It creates discrimination among citizens and leads to instability and lack of tranquillity in the Sudanese community.
As is often the case in Islamic history, political power and religious authority have been indistinguishable. This inseparability in Islam as a form of instinctive collective way of life, which does not distinguish between politics and religion, Anthony Smith characterised as a political surrogate for religion.121 Therefore, the SPLM/A’s call for a united secular Sudan that would reflect the multi-religious, multi-ethnic and multi-cultural reality of its citizens and real common shared ethical values if Sudan is to remain united on the basis of trust and confident without domination and discrimination.
The above views, if they are indeed held and put into practice as an ingredient of unity, eventually could lead to stability of the state, especially where citizenship rights are concerned in today’s world of multiplicity. Hence for the Sudanese to be united they should, firstly, engender the will to be Sudanese – that is, the will to place loyalty to a larger Sudanese community over any other clashing loyalties which take account merely one's religious profession and regional or possibly ancestral and cultural background. In this way the Sudanese may see that their national identity has been torn by intractable unnecessary civil wars and strifes based on ethnic, economic and religious affirmations.
In the case of Islamic revivalism (hiyā) it has to be born in mind that revivalism in Islamic states today has emerged or evolved within the context of political boundaries already known as nation-states. In the nation-state the sovereignty of the state does not belong to God as the Islamists claim, but rather to the people as it has been conceived since the 16thcentury.122
Therefore, if we look into the conflicting views of governance, they mostly arise because people’s interests differ. People’s values differ as well, and conflicts over values are just as important because people are not only concerned withwhat will be effective, but also
121 Anthony D. Smith, Nationalism and Modernism (London: Routledge, 1998), p. 98. 122 The New Encyclopaedia Britannica, Macropaedia Vol. 17, p. 614.
228 with what is right. Individual values may be involved in particular issues, such as the rights and wrongs of abortion or amputation, e.g. in Islamic law. There are also broader systems of ideas about how society should be runand what values - such as justice, equality or freedom, it should have. It is these fundamental differences, of what is right and wrong and what kind of society people should live in, that are the concerns, which make sense of the world around us.
Every society which has persisted for any length of time, particularly if it has developed even a modest degree of complexity, has also evolved some interpretation of its own way of life.123 Thus societies tend to invest the most important goals of social activity with value, although there may be a distinction between aspiration and achievement. The ideal standards are retained by the operation of reinforcing social order or religious beliefs. Nevertheless, a unifying set of political ideas and values can develop naturally within a society, or it can also be enforced from above in an attempt to manufacture obedience. In this case it operates as a form of social control. The values of elite groups, such as political and military leaders and government officials may diverge significantly from those of the masses. An example of this is the Islamic regime in Sudan which has dominated political life and indeed all social institutions of art, culture, education, the media and so on, irrespective of the wishes of the masses. This was also obvious in regimes, which possessed official ideologies, such as Nazi Germany and the Soviet Union, which censored or suppressed opposing views and beliefs.
In ancient societies, the presence of religion was inescapable as an historical phenomenon. It involved many of the social issues and laws as it predetermined the norms and ethics that governed the social behaviour and interaction of individuals in a given society. It has shaped every nation as well as ethnic groups since there were no clear distinctions between social institutions and religious orders in a given culture and the rituals were the basis of their social and cultural life, closely tied to their ethnic groups and identity, from birth to death.124 The significance is that it (religion) functioned as an independent variable within an
123 E. Carlton, Ideology and Social Order (London: Routledge & Kegan Paul, 1977), p. 20. 124 Emmanuel Y. Lartey, religion and society in African context. Unpublish document presented at conference: the Black Africans at the down of the millennum.
229 institutional complex and its normative patterns of thinking and practice permeated all social activities. For example, the Old Testament “covenant” provided the model in ancient Israel, which Christians had to adopt. Therefore, the establishment and organisation of human communities were not only intellectual and technical achievements, but moral and spiritual achievement as well. Hence, religion provided society with a basic unity and purpose.125
So when we talk about separation of religion and state in a pluralistic society, like the Sudan, we are merely concerned with the dominance and control of one religion over every aspect of governance. Religion as a social phenomenon cannot be totally eliminated or separated from society since it involves public holidays, marriage and family affairs among other citizens, all of which have something to do with their religions. Therefore and for the sake of harmony and coexistence in a healthy society, a fundamental analysis of the concept of the nation and state is required. In other words the concept of nation-state.
Notion of Nation State It is clear that the word “Nation-state” is composed of two words, nation and state. For that reason, one cannot discuss its ethical values without taking into consideration what is perceived as a nation and its political aspect, “nationalism”. Politics in society is usually concerned with the attainment and employment of power, and power is usually vested in particular bureaucratic institutions which are apparatuses of the state. So, for obvious reasons, it is inevitable that politics is most commonly preoccupied with questions concerning the state.
So, the overwhelming concern of this section will be based on people’s consciousness and their aspirations within the apprehension of the state. Generally, it is anticipated that means may be found for a peaceful co-existence in a country to whose creation they were not party to, even though they have experienced their belonging to through national identification, in reaction to its political rules and roles.
125 E. Carlton, Ideology and Social Order, pp. 55-6.
230 To understand the concept of nation-state there are a number of conceptual and empirical problems which need to be considered. First, the term ‘State’; secondly, a profound ambiguity of the character of the nation. Apart from these terms and ambiguities, there is a further problem concerning which came first, state or nation. The reason for seeking answers to these questions is that the nation as a natural entity in the sense of its ethnic origin, tends to suggest that nations create states in their own image comprising sovereign people conscious of their will. This suggests that the state is a “sovereign territorial group” where people, territory, government and independence are the criteria of the state.126 This also means that the persuasive power of the state is related to the will of the people and the people have a common interest or purpose. Thus sovereignty and the will of the people are the main issues, since human beings are socially related and bound together into self-perpetuating groups and possessing their own distinctive institutions and culture. This also highlights the fact that human beings live everywhere in groups and share norms and values, which substantially affect their individual behaviour. This raises fundamental questions about the relation between state and society on the ground of political boundaries, especially when considering the nation-state as a political community.127 This is the case of the complex social structure and cultural diversity in Sudan, which has resulted in political rivalry and arduous civil war racking the country. Hence, it will be necessary to analyse the concepts of state and nation in order to look for a way of understanding the situation such as that in the Sudan, and to propose a meaningful understanding that may enable us to resolve the problem of domination and discrimination.
The nation-state as a political organisation developed rapidly over a period of time in a very intricate way, especially in the multinational states of the nineteenth century, which were seen as anachronisms - ‘prisons of peoples’.128 Thus some of the writers on nationalism have preserved a distinction between “nationalism” as an idea that reflects the concept and
126 A Dictionary of Social Sciences, ed., Julius Gould, Willaim L. Kolb, UNESCO, p. 690. 127 The New Encyclopaedia Britannica, Macropaedia Vol. 17, p. 609. 128 A. Vincent, Modern Political Idealogies. p. 263.
231 “nationalism” as a principle which contains the adaptation of this idea, which leads to its becoming a goal and means for justifying the politics of liberation and nation-building.129
State Foundation and its Prospect The term ‘state’ as a concept has existed for a long time under different names in different parts of the world. It has been perceived as a system that organises the life and general welfare of human beings. This view indicates that individuals create a state, and the state is what binds them together.130 As such, the human need for a state precedes its existence, because its basic principle lies in the pattern of law, the authority that organises people in order to eradicate fear and terror. The process, by which human beings develop their situation into a state, takes a long time. It involves complicated religious, social or military issues.131
However, according to the contemporary usage of the term ‘state’, it is defined as a body of people living in a defined territory and organised in such a way that a few of their own members can expect to control it directly, by means of imputed group values or force.132 In the New Encyclopaedia Britannica, the term, “State” refers to the political organisation of society, the whole body of persons who are politically organised under the institutions of government within a definite geographical area, where its sovereignty exists as the supreme and exclusive authority.133
In this respect, the state is the structure by which group activity is defined and regulated and the government is the mechanism through which the state acts as a legitimate power- holding body within the jurisdiction of its policies. It is an agency within society which holds legitimate power within the people.134 Therefore, the crucial question here is what right do people have to legitimatise the action of the state agency. In this context, the
129 S. Barakāt, al-Fikr al-Qawmī (Beirut: el-hamrā, 1984), p. 87. 130 J. Courture, K. Nielsen & M. Seymour, Rethinking Nationalism: Canadian Journal of Philosophy. Vol. 22, (Calgary: University of Calgary) p. 2. 131 ‘Umar A. Gadūra, Shakl al-daula (Cairo: Maktabat Madbūlī, 1997) pp. 13-17. 132 A Dictionary of Social Sciences, ed., Julius Gould, Willaim L. Kolb, UNESCO, p. 690. 133 The New Encyclopaedia Britannica, Macropaedia Vol. 17, p. 609.
232 interrelations and inter-pressures of all groups in which the state’s government extends its power are the outstanding problems of the state. It is chiefly in this context that decentralisation becomes necessary for the state’s existence. The significance of this is that decentralisation does not limit state power, but it diffuses the exercise of that power and gives more opportunity for the voice of individual citizens and representative groups to be heard, heeded and develop their cultures as the case in the analysis of the regionalism theory. In regard to these concepts and attributes of statehood, there must also be a considerable measure of stability and continuity in respect to defined borders and of population. Therefore, the creation of an effective political unit is more important than population growth. If not, the defined stable borders and population growth will not coincide with a common nationhood as there will be conflicting philosophical interests and ideological differences as in the case of Sudan and most of the third world countries.
Sociologically the term ‘state’ is conceived of as an institution, which organises the will of a people, politically constituted, with respect to its collective interests.135 If this means that the power of the state is related to the will of the people and the people have a common interest or purpose, then the basic function of the state is to maintain social order and the promotion of general welfare of its citizens. However, the promotion of general welfare and the maintenance of social order are the outstanding problems of the states today. As such, the national security of the state, “security of the state from the danger of subjugation by internal or external power” must be the primary duty of the state bureaucracy, because if state security does not exist, economic and social policies will not be directed towards the welfare of the citizens, but rather towards the security of the state for its survival and continuity as a constitutional territorial unit.136 The example of this is the use of the oil revenue in the Sudan for acquiring military hardware.
Generally, security means safety and freedom from fear or absence of danger. Because of this concept, human beings have been exploring their environments, either physically or
134 Thomas Fleiner, State without Nation: Reconsidering the Nation-State Concept, in Nation, State and the Coexistence of Different Communities, eds. Theo van Willingenbury, R. Heeger, W. van der Burg, (Kampen: Kok Pharos, 1995), pp. 196-7. 135 A. Giddens, Sociology (Cambridge: Polity Press, 1989), pp. 303-4.
233 socially to differentiate between what is advantageous and what is detrimental, so that they might satisfy their instinctive desire and protect their needs. Thus, “where there is law there is a group of people, and where there is a group of people there is law”. Therefore, one would agree with the political theory reached by Hobbes, who painted a grim picture of what life would be like without political order. His argument was that, since men are largely selfish, are roughly equal in strength, and are liable to compete with one another in satisfying their wants, they endeavour to destroy, or subdue one another.137 Hence, the natural condition of mankind is a “war of every man against every man” in which there is a “continued fear, and danger of violent death; and the life of man is solitary, poor, nasty, brutish and short”.138 With reference to this topic, does it means that there is no law in Sudan or that what exists is an imbalance/disruption of law?
In the above analysis it is clear that the role of the state is to maintain a social cohesion with recognised authority. This emphasises that people cannot live without a recognised authority which protects the land, performs rituals, negotiates peace and resolves conflicts. In the light of the above argument one could therefore say that the concept of “statehood” is the first stage in human development as a specification process of authority that guarantees security in a specific territory. Consequently, the attainment of nationhood takes place in the aftermath of what is a long-term process of structured and directional changes. Therefore, there are no people without a state even if patterns of authority and sovereignty vary from one place to another.139
Under these circumstances it is also conceivable that states have special mandates to implement freedom and equal rights within their given powers and competencies. Consequently, all people living and working in the territory should participate in the democratic decision-making process. However, once the legitimacy and political significance of the whole people are established, it is then a short step to another crucial
136 ‘Umar A. Gadūra, Shakl al-daula, pp. 163-4, 173. 137 T. Hobbes, Leviathan, Ed. by C. B. Macpherson, (Harmondsworth: Penguin Books, 1968), pp. 183-85. 138 T. Hobbes, Leviathan, Ed. by C. B. Macpherson, 1968, pp 186-87. See also, I. Hampsher-Monk, A History of Modern Political Thought: Major Political Thinkers from Hobbes to Marx,(Oxford: Blackwell, 1992), pp. 23-26. 139 S. Ellis, Africa Now: People, Politics and Institutions, (London: Ministry of Foreign Affairs DGIS, 1996), pp. 3-4.
234 concept, democracy, which is the apparent expression of the will of the nation.140 Thus, the rise of the idea of sovereignty was not altogether favourable to the continued growth of nation-states because of the voices that demanded independence and self- government.141 The question then was, whether equal citizenship could overcome ethnic and linguistic demands, instead of excluding most from active membership of the state
Therefore, with reference to the social and political identification of nationhood, the question is how a sense of group membership develops, and under which circumstances do groups behave as inverted units, or subdivisions towards collective identification, that make them susceptible to exploitation. Since society is a collection of individuals united by certain relations or modes of behaviour which mark them off from others (culture and institutional systems), then they are merely a different segment.142 This is why it is believed to some extent that the bonds of nationhood have contributed to the formation of the state.
Nation aspiration and Consciousness
Looking into the bonds of nationhood, the term ‘nation’, by definition, usually denotes a group of people who have some common ancestry, history, culture and language, which figure as foci of loyalty and affection, in the consciousnesse of their identity as a people and have acted to preserve their communities.143 The common attribute of a nation in this regard was being a community of persons who felt that they belonged together because of shared interests and history. This does not, however, mean that nations are by default built around shared collective memories, territorial attachments, customs and values of ethnic groups.144 Yet, the irony is that shared common factors make people conscious of themselves as “We”, which tells us who they are, because there can be no “Us” without them, which stresses a social category in describing who they are and who they are not.
140 A. Vincent, Modern Political Idealogies. p. 267. 141 J. Hutchinson & Anthony D. Smith, Nationalism (Oxford: Oxford University Press, 1994), p245. 142 A Dictionary of Social Sciences, ed., Julius Gould, William L. Kolb, UNESCO, pp. 674-5. 143 A. Vincent, Modern Political Idealogies. p. 240.
235 This involves subjective elements such as a national consciousness and the will to remain together. A future that takes on board the legacy of the past is what conceptualises the notion of nation.
Another way of conceiving the nation/state relation is that a nation is more stable if self- governed through a state. The state forms the protective shell for the nation. This can also relate to the point that the state is more governable when it coincides with a nation, but it can also be argued that the nation only flourishes within a state structure. Moreover, the problem of the nation/state at the moment is when it is linked with other issues, namely, when there are clearly multiple nationalities and ethnic groups within the large majority of states. The problem has also been fostered to some degree by the growing interest in decentralisation, regionalism and federalism within states. The phenomenon of multi- culturalism and multi-nationalism has become a regular feature of Western orientated states like Canada, New Zealand and Australia, and is becoming increasingly widespread in many other states which seek self-determination for the independence and sovereignty of their people.
In this brief discussion, one could say nations are different types of social entities, culturally oriented, emotive and generally defined by other types of criteria, which bring into force the issue of communality. That is to say, the form of behaviour which makes national self-consciousness, ethnic or linguistic identity into the central planks of a doctrine, and which seeks political recognition and the need for status, perhaps including the demand for its own state. Thus in the framework of the sociological theory of nationalism, ‘nationalism’ is characterised as a ‘system of ideas, values and norms, an image of the world and society’ which makes a large social group aware of where it belongs and invests this sense of belonging with particular values. In other words it integrates the group and demarcates its environment.145
144 Ethnicity usually refers to inborn factors like kinship, which are understood mostly in biological or genetic terms. Ethnic groups are usually considered smaller, more pervasive, and exclusive in their membership and older than nations. 145 A. Vincent, Modern Political Idealogies.1994, pp. 3-4.
236 Nationalism is a sentiment of belonging to a community, which is conscious of its political destiny.146 It is a way of being within the world of nations. Every self-conscious nation looks back upon its past to revive former glories, to discover its origins, to relate its history to that of other parts of the world and to arrive at a knowledge of the development of its political, social, economic and other systems.147
As such, it stresses that people must be liberated, freed from any external constraint, must determine their own destiny and be masters of their own house. Consequently, if democracy and popular sovereignty are accepted as the most valuable forms of government, then the self-determination of a nation is just a consequence of these ideas.148
But loyalty to the new state and its principles has been less than to the ethnic and sectarian group. For example, the events and conflicts which occurred in Congo (former Zaire) and the ethnic cleansing or ‘genocide’ that took place in Rwanda, plus the events in the Great Lakes Region, as well as the general situation in Africa, are stark cases. Africa is a land of a thousand ethnic groups, loyalty to ethnicity is first, then the state, homeland, community and religion. Its boundaries were arbitrarily drawn by the imperial powers that colonised it. At these boundaries dwelt conflicting ethnic groups, as well as ethnic groups who were diffused. The Independent State collapsed under mismanagement, and the ethnic group sought for safety, and found it in occupying the power, or intimating it sympathetically to ethnicity. Stretched around the frontiers instinctive kinsfolk – and the Independent State lost its balance. Africa washed in the Great Lakes, and took off the robe of the state and wore the ethnic group robe.149
With all this in mind, it is also important to note that the strong affinities between Islamic fundamentalism and the rule of the Sharī’a have made the very fundamental basis of ‘nation/state’ in the Sudan and its coherence more difficult. Also, to correlate Islamic fundamentalist programmes with multi-cultural pluralism introduces another problem because the sovereignty of the state in the fundamentalists’ view belongs to Allah (God)
146 M. Guibernau, Nationalism: The Nation-State and Nationalism in the Twentith Century, p. 47. 147 B. Freund, The Making of Contemporary Africa; The Development of African Society Since 1800, p. 5. 148 P. Alter, Nationalism, p. 1. 149 Al Hayat, Friday 15, August, 1997 Issue No. 12586
237 and not to the people.150 The problem here is not religion but those who politicise it for political and economic ends. An example is the way in which, the word tawali ‘association’ is used by Islamist politicians in the Sudan for restoring multi-party politics under the pretext of Sharī’a legislation in Sudan.
Therefore we may conclude that the crisis of the nation-state has led increasingly to a demand for global government and a global ethic as an alternative for world order. The Islamic movements and states reject this desirability as derived from a Western- dominated culture that appears to deny the validity of all cultural and civilisation alternatives.151 They see the prevalence of political systems based on popular sovereignty rather than on the Islamic concept of divine sovereignty and of recourse to human laws in lieu of the sharīa as a form of kufr. They debate against al-‘ilmāniyya (secularism) and its impact on Arab and Muslim intellectuals. They also view modernising Muslims who argue for ijtihād to reconcile the two, as agents of Western cultural imperialism that must be rejected. If Muslims ignore God and choose the West, they are the losers in their view.152 As a result Islamic states are looming within the boundaries of what are already known as nation-states, e.g. Iran, Libya and Sudan.
State’s erosion In relation to the above we can understand that the established nation/state begins to weaken when elites, in various countries and contexts, begin to appear to act more as the causes of social disruption, inequity and insecurity, than providing solutions to the causes. As such, the nation is in trouble when the state is in trouble, and ‘loss of faith’ in the state as a central guarantor/guardian leads directly to the erosion of the nation. Thus the crisis of the nation-state is then located at the subjective level in the fact that the gap between the promises of security and justice, and the observed capacities or capabilities, has eroded its moral legitimacy to free all citizens treated unequally in different regions,
150 Suha Taji-Farouki, Islamic State Theories and Contemporary Realities, in Islamic Fundamentalism, ed. by Abdel Salam Sidahmed & A. Ehteshami, (Oxford: Westview Press, 1996), pp. 39-41. 151 Suha Taji-Farouki, Islamic State Theories and Contemporary Realities, in Islamic Fundametalism, ed. by Abdel Salam Sidahmed & A. Ehteshami, p. 35. 152 Mamoun Fandy, Safar al-Hawali: Saudi Islamist or Saudi Nationalist? In Islam and Christian-Muslim Relations, Vol. 9, No. 1, 1998, pp.5-7.
238 as well as social groups and geographic areas. No doubt, the nation-state is a modern political structure difficult from and more complicated institutionally than earlier state formations, which were established in Europe and then imposed on the rest of the world. Nevertheless, this does not mean that there exists an alternative to the nation-state since all units of the international system have to be structured along nation-state lines. But the observance of consociation democracy, ‘power sharing’, is more important because the ideology of this system is based on the fact that all citizens are equal. Equally the destiny of man is mostly accomplished and his freedom is realized within the state structures because through the state he attains coherence and acquires reality.153 Therefore, it is true and logical that such a state should embrace the whole of its citizens in their diversity. Otherwise, the outcome will be strife and struggle, and shifting the state’s resources for the maintenance of its security internally rather than the welfare of the citizens.
A state can only be sovereign and stable if large segments of its population have mastered the patterns of democracy and concepts connected with sovereignty, and mostly the development of the notions of citizenship, which are intimately bound up with it. The nation-state, which exists in a complex of other nations, is a set of institutional forms of governance maintaining an administrative monopoly over a territory with demarcated boundaries (borders), its rule being sanctioned by law and direct means of control internally and externally. Principally, if we consider the nation-state as paramount for the realisation of the social, economic, and cultural aspirations of a people, ‘by feeling of being a community’, then the state politically has to be open to civil society, because the existence of civil society154 is central to democracy. This will yield to the participation of all citizens. That, in turn, underpins and implies a shared sense of identity through rights
153 E. Kedourie, Nationalism, 4th expanded edition, (Oxford: Blackwell, 9188), p. 44. 154 The civil Soceity is a combination of associations, clubs, guilds, syndicates, federations, unions, parties and groups coming togather to provide a sanctuary between state and citizen. Civil Soceity also implies a shared sense of identity by means of agreement over the rough boundaries of the political unit in the sense of citizenship, with associated rights and responsiblities, as it is part and parcel of the concept. Othoerwise, soceity has no coherence. Thus, the individual in the civil society is granted rights by the state, and in return acquires duties to the state. Nevertheless, civil society is more than an admixture of various forms of association, it also refers to a quality, civility, without which the milieu consists of feuding factions, cliques and cabals. Civility also implies tolerance, the willingness of individuals to accept disparate political view and social attitudes within multiplicity of the state composition.
239 and responsibilities,155 with all human beings, as part of mankind.156 Still, these new states are only nominally nation-states based on the concept of official nationalism which suggests the pre-existance of a national community that in fact never existed. A state can only become a strong and truly stable nation-state when it furnishes its sovereignty with an accepted pattern of shared citizenship, hence it becomes an organisation, which can accommodate and establish rules and behaviour acceptable to all its citizens. Most of all, the role of the elite to mediate between the citizens and the state should be paramount. Other wise, the contradicting political claims and the true identity of the state will lead to self-protection be it religious, cultural, political, regional or economic in the face of all the threats the governments brings.
Conclusion In the previous pages it is clear that Sudan is a country of diversity be it ethnic, religious, cultural and regional. After independence these diversities resulted in crises due to dissatisfaction with the central authority. These conflicts have been viewed primarily as a national problem, because the governments in Khartoum have failed to develop viable institutions and political systems that could accommodate all the citizens. Yet it remains true that the claim of the Arab-Islamic as a national identity neglects the other cultures, religions and values. The introduction of sharī’a on the whole nation has also endangered the viability of the state and its existence as it discriminates among citizens. As such, these factors have led to money questions if the unity of the country in its diversities is possible. So, what is needed is a clear understanding that Sudan is a country of a multi- religious, multi-cultural and of ethnic diversity with their own ethical values, ways of governance and living that should be mutually respected. These factors form the group’s consciousness, destiny and the will to remain together.
155 Augusyus R. Norton, Civil Society in the Middle East, Vol. I, (Leiden: E.J. Brill, 1995), pp. 8-11. 156 G.A. res. 217A (III), U. N. Doc A/810 at 71 (1948) Adopted on December 10, 1948 by the General Assembly of United Nation, article 13.
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243 b. Summary of discussion
1. All African State boundaries were imposed. Sudan inherited similar boundaries and this is something we have to live with. For many people ethnic identity is more important than national identity. This has been the case for a long period of time and that is why people have not become ‘nationals’. People would have to find a formula to promote national identity and this has to be discussed by everyone. The Sudanese dilemma is quite apparent. Although religious language is used in the guiding principles, there is no reason to believe that just one religion needs to guide us. We are not all one group but if we decide to live together we have to find something which can unite us. What could it be? What type of state would it be? Religion has generated many problems in Sudanese politics. Are we happy to keep religion out of politics? If one religion is made dominant how could people live together? Thousands of southern women are in prison because they have contravened the north’s laws – they are being whipped and lashed. Citizens have rights and obligations, to take these from one religion goes against the others. The constitution needs to be followed by all and applied by all. That is why we must not downplay the issue of religion.
2. In the west religious organisations are very powerful even in supposedly secular states. For example, the Queen is the British Head of State and Head of the Church. In Britain’s House of Lords, Bishops reside. Christian Democratic parties are popular throughout the West. Most movements for human rights, civil rights and democracy have taken many ideas from religious thought, for example, Martin Luther. Many people find it hard to separate religion from politics. There is perhaps a formula which can separate them. The state is made up of people who have executable powers. They need involvement of religious values to examine laws and constitutions; they have a lot of religious content. It is not correct when people associate the phenomenon of mixing religion with public life only in the Moslem world. Christians have drawn heavily on their Judaeo-Christian tradition, and continue to do so. Therefore it is not fair to ask Muslems to marginalise their faith. Secularism is a European response to a European problem that does not necessarily apply to people from different cultures and contexts.
3. The Sudanese are deeply religious. Even when anti-religious political movements have started they have later moved towards religion. For example, the SPLM originally had Marxist / Leninist tendencies. However, in 1992 there was a change in attitude to religion, a positive attitude. John Garang now considers the Council of Churches as the spiritual arm of the movement. Our country is mixed, both in the north and south, some Muslims live in the south, some Christians in the north. We should not fragment this situation. Everybody in the Sudan knows that the Shari’ah is only applicable to Moslems. It was clear from the beginning and there has clearly been an exemption from Shari’ah in the south. There is a great difference between practice and the academic study of religion. We need to look at the global picture today and the harmony of the people. We need to look at development of a state which recognises our differences. Islam is a resource to all Sudanese, just as
244 Christianity is. There is no sense in asking the Sudanese to forget it; it is a cultural and spiritual source of inspiration.
4. Many Sudanese wonder whether Islam has been misapplied in the Sudan. They also ask themselves what are the causes of the attacks raged on Christian worship centres in Khartoum? Do such instances lie in accordance with Islamic law or in violation of Islam which allows the worship of non-Moslems? Could Moslems not let go of issues such as the punishments for criminals which are not acceptable to non- Moslems?
5. We have a very big and complicated problem which needs to be resolved. However, I do not think it is the conundrum that some people think it is. There is a solution if we apply our intellect hard enough. It is more than just talking which will resolve it. It is the same problem for the north and south. Historically it is true that the north has been more privileged than the south. But our problem is the same in the north and the south. The Moslems in the north (and south) aspire for cultural, social and political independence, the freedom to live out our spiritual and cultural values. We are all rebelling against the laws of the oppressor, i.e. colonialism. This is the same for the north and south. However for the south the oppressor seems to be the north rather than colonialism. We need to accept true pluralism.
6. We need to come up with a convincing model which will respect everybody’s human rights and understand everybody’s aspirations. It is not about granting southerners their rights; it is about allowing those of all faiths to feel equal. Citizenship should be the basis for all rights and obligations, not religion or ethnicity.
7. The constitution of 1998 stipulates this but, of course, it is not the final word in political thought. This is the difference between what some people call a religious state, and the kind of state we actually have. The constitution should be modified if agreement can be reached. There needs to be a devolution of power – religion is not the only problem – more autonomy for the state is an adequate answer to the problems of the state that we feel are imposed by the culture of the majority.
8. I find Professor Weller’s call for a dilution of central authority, to the extent that it becomes senseless to call for separation, a very acceptable way out. States need to be free to preserve the rights of the ethnic group in that particular part of the country. In the constitution it should be written that any state in the union is free to apply the law that its citizens want. A state with a non-Moslem majority is free to have the penal code that it wants – recognising the religious identity of the state.
9. Wealth sharing – a complex formula is needed. Dr Mayo proposed this – and it is acceptable. Wealth should not only be seen as oil revenues but all the wealth of the Sudan. Regional autonomy without enough funds to really practise autonomy over the territory will not solve the problem.
245 10. One Sudan – two systems does not exclusively mean a confederal set up. A formula of asymmetrical federalism in which the south has a dual character of one block divided into a federation – also satisfies the requirements of one Sudan – two systems. Once the states choose their laws according to their own cultural values, then those living in a state with a Muslim majority should respect and abide by the laws of the state. The constitution has so many safeguards to guarantee the freedom of the people – such as not specifying Islam as the official religion of the state, and enumerating customary law as a source of legislation besides Shari’ah. We should try this kind of approach, and if and when all fails then people can start talking about self-determination.
246 12. Fluidity of Identities in the Sudan: pulling apart for a sounder coming together a. Paper presented by Professor Francis M. Deng
I. INTRODUCTION
For over four decades, Sudan has been turn apart by a conflict of identities that pitted the dominant Arabized Muslim North against the indigenously African and Christian South. But this is a gross oversimplification, not only of the configuration of the warring factions, but also of the North-South dichotomy along racial, ethnic, cultural, and religious lines. Within both the North and the South, acute differences have proliferated the conflict into fratricidal warfare. Indeed, it is widely believed that more people have died as a result of Southern ethnic infighting than have died in North-South conflict. Further, the North-South divide is being bridged –or further fragmented–by the awakening of non-Arab minorities, who have become increasingly aware of their marginalization within the Northern framework, and have joined the South in a common struggle for a new dispensation in the country, euphemistically referred to as quest for a New Sudan. This paper seeks to present themes in the dynamics of identities in the Sudan and their implications for unity or separation in a way that may appear contradictory, but is in effect a dialectic that can harmonize between a short-term separatist tendency, within a framework of long-term unity and integration. The paper will argue that what divides the Sudanese into North and South and within these two categories is largely a construction of identities that has highlighted the differences and overshadowed the commonalities, which remain obvious, though largely unacknowledged. But it also argues that in contradiction with obvious ambiguity of compounded, but distorted identities, perceptions are rigid and clear-cut. This makes people see themselves as pure in their identity, though visibly mixed, and determined to chart a separatist destiny or impose their identity as the uniting and integrating framework. The policy implication of this anomalous situation is to recognize that in the short run, dogmatic self-perceptions are bound to dominate and separatism must therefore be accepted as a safety valve for peaceful coexistence. However, in the long run, education through a variety of methods, including public cultural and information programmes, will raise the awareness of the people to the common factors of identity and prepare the ground for a smooth, evolutionary coming together to form one nation, united and integrated, even as it builds on its diversity as a source of enrichment. Although the war raging in the country was caused by the diversitites and the acute disparities of the identity configuration in the country, and tragic as the devastation
247 of the war is, it has contributed toward educating the Sudanese leadership and public about the nature of the identity crisis from which the county is suffering and the prospects for resolving it. In the end, the durable solution must be a peaceful one. The short-term pulling apart will require good will on both sides to respect each other, despite the perceived differences, to accommodate the differences on the basis of mutual acceptance and peaceful coexistence, and to open the doors for constructive interaction, with the potential for reunification. It is in that sense that the notion of one country, two or multiple systems, becomes a creative way of reconciling contradictory aspirations, and building a harmonious future for a constructive framework of nation-building.
II. OVERVIEW OF THE CONFLICT
The civil war that has raged intermittently over four decades has gone through several phases. Initially, it was perceived as pitting the Arab-Islamic North against the South, seen as indigenously African in race, culture and religion, with a Christianized modern elite. Although some parts of the North were racially and culturally non-Arab, though Muslim, the general assumption was that Northeners were Arabs culturally and racially, despite the conspicuously contrasting factor of black color of skin. With this dichotomy, the first phase of the war, from 1955 to 1972, was fought mostly by soldiers from the non-Arab West, particularly the Nuba, who were subsumed in the Northern Arab mold. With the 1972 Addis Ababa Agreement that restored precarious peace for a decade by granting the South regional autonomy, the non-Arab regions of the North began to be conscious of their distinctive identities and their disadvantaged position in comparison to the Arabs, and even to see racial and cultural affinities with their compatriots in the South. Increasingly conscious of their political marginalization and economic neglect, they began to aspire for the recognition of their non-Arab identities and sought a political dispensation similar to what the South was enjoying under the Addis Ababa Agreement. With the unilateral abrogation of the Addis Ababa Agreement by the then military ruler, Jaafar Mohammed Nimeiri, not least because it set a dangerous example of liberal democracy and regionalism for the North, war resumed in the South under the leadership of the Sudan People’s Liberation Movement and its military wing, The Sudan People’s Liberation Army (SPLM/SPLA). Unlike the Southern Sudan Liberation Movement (SSLM) of the first phase of the war, the primary goal of the SPLM/SPLA was not the separation of the South from the North, but the liberation of the whole country from Arab-Islamic domination and the creation of a New Sudan that would be secular and free
248 from discrimination based on race, ethnicity, religion, or culture. The implicit assumption was to be a de-emphasis on the Arab-Islamic elements of national identity and a commensurate advancement of the indigenous Sudanese elements. But this goal did not exclude separation as the result of failure to attain a framework for unity and justice. Meanwhile, with the increased awakening of the non-Arab areas of the North to their marginalization by the dominant Arab groups, the SPLM/SPLA’s version of the New Sudan gained a wide appeal in those areas and increased their awakening. Some groups, notably those bordering the South, among them the Nuba of Southern Kordofan and the Fung of Southern Blue Nile, took up arms and joined the SPLM/SPLA in the struggle. The Fur of Darfur in the far West and the Beja in the East became increasingly agitated and engaged in sporadic rebellion. What is important to emphasize is that the non-Arab groups in the South, West, East, and the Nubians of the far North constitute by far the overwhelming majority of the country. And yet, the political dominance of the Arab groups in the central regions along the Nile has shaped the national identity and international image of the Sudan for the grater part of its modern history. In recent years, however, especially since the emergence of the SPLM/SPLA and the resumption of the war in 1983, the identity of the nation has become acutely contested. Indeed, it can be argued that the rise of Islamic fundamentalism in the Sudan is in large measure a defensive-offensive by the extremist forces from the Arab-Islamic groups, who saw their dominance and their identity threatened. Since they could not invoke race as a mobilizing symbol of identity, as the so- called Arabs represent a racial mixture in which the black element is conspicuously evident and in any case are a minority, they resorted to Islam because it enjoys the adherence of the overwhelming majority of the North. It is, however, important to remember that, for the Sudanese, Islam goes hand in hand with Arabism as both racial and cultural phenomena.
III. EVOLUTION OF THE CONFLICTING IDENTITIES
In order to appreciate the sensitivities of the identity configuration in the Sudan, it should be born in mind that the present identities are the result of an evolutionary process marked by the extreme stratification of races, cultures and religions, with opportunities for passing. The African Black “heathens” occupied the lowest levels of the strata, making them legitimate targets for enslavement and other forms of extreme degradation. In the North, converting to Islam, speaking the Arabic language, adopting Arab culture generally, and being associated with Arab ancestry, however nebulous or imagined, elevated one to a contrastingly dignified status. And although Arab traders, for the most
249 part men, who intermarried or otherwise procreated with indigenous Sudanese women, were a small minority, their progeny, propped up by their assumed cultural, religious and economic superiority, eventually dominated and overturned the system in favor of their identity. In contrast to the assimilationist trend in the North, the people of the South viewed Islam and the Arab culture with moral indignation and disdain and had no desire to adopt or emulate them. Nor did the invading Arab slave hunters want Southerners to adopt Islam, since that would undermine the legitimacy of their enslavement. Given this background, the search for the New Sudan as espoused by the SPLM/SPLA can be seen as both a quest for justice against gross historically-rooted inequities and an exploration of the authentic character of the nation, which history has distorted and which must now be rediscovered to provide a common ground for forging a unifying process of nation-building. But views differ on this vision for the country. As might be expected, those Northerners who are committed to the Arab-Islamic vision for the nation find the idea of the New Sudan offensive, especially if it assumes that Northern Sudanese Arabs are not really Arab. Although they concede that they are racially marginal to the Middle East Arabs, they consider themselves culturally as Arab as any other peoples in the Arab world and to them, culture is what counts the most. The hard- liners among Northerners remain committed to the assimilationist model, not only as the most desirable way of ensuring national unity and integration, but also as the inevitable outcome of racial and cultural integration in the Sudan. The more fair-minded among the Northerners acknowledge the injustice of Northern domination and are prepared to correct them and recognize the racial, cultural and religious pluralism of the country. Southerners too are not agreed on the vision of the SPLM/SPLA for a New Sudan. Many, probably most, prefer to see the Northerners for what they regard themselves to be – Arabs – whatever the anomalies of their racial and cultural situation in the Arab world and however black their color of skin. They see this as a basis for separation and place emphasis on the right of the South to self-determination as the instrument for attaining independence. In this respect, those Southerners who are skeptical or even resistant to the notion of the New Sudan fail to see its complexity and the argument of the SPLM/SPLA that it is not limited to the vision of unity, but could indeed be an instrument for exercising the right to self-determination, which could lead to separation. The SPLM/SPLA presumably recognizes that only a vision of a just Sudan within a unity framework would justify and sustain the military alliance with the fighting forces from the South and the North. Such alliances strengthen the capacity of the South to self-determine its destiny, including the choice of secession. But if the alliance succeeds in creating a new just Sudan, then there would be no need for Southern secession.
250 Neither the assimilationist nor the separationist model is as attainable as its advocates assume. The history of North-South relations demonstrates clearly that imposing the Arab-Islamic identity on the South is not plausible, or desirable. The South has resisted the assimilationist model for centuries and, in the process, has developed and refined its own modern identity of resistance in a way that is no longer reversible. Likewise, a number of factors seem to militate against partitioning the country, despite increasing acceptance of the right of the people of the South to self-determination. Foremost among these factors is the lack of a practical mechanism for partition, especially in view of the general tendency to see colonial borders as sacrosanct and to resist dismembering any country, however divided internally it may be. Furthermore, successive governments in the North have exploited the structural segmentation and fragmentation of indigenous Southern societies to divide and weaken their resistance to Northern domination. The fear that an independent South would disintegrate into chaotic ethnic violence may have become a self-fulfilling prophecy. Some Southern groups may in fact prefer to remain united with the North than risk replacing Northern domination with domination by another group within the South. Under the circumstances, a case can be made that reforming the framework of unity on the basis of mutual accommodation and respect for the differences may perhaps be a more feasible and desirable object. The fundamental assumption of this paper is that the option of the New Sudan, though controversial and formidable, is in the long run the most plausible among existing options. It will, however, require not only making a convincing case for the New Sudan, but also giving it substantive content, and concrete methods for achieving it through alternative scenarios. In all likelihood, it can only be achieved through an evolutionary process and not by military imposition. It should also be remembered that partitioning the country, though presently viewed as undesirable, is always a residual option, should the goal of creating the New Sudan prove too elusive. However, the goal of partitioning the country could be as elusive as the pursuit of the New Sudan without a plausible mechanism for achieving it. The historical dimension of the formation and confrontation of identities, and the Arab-Islamic domination resulting from it, should be vitally important to appreciating the present and the projected future. The postulated New Sudan must have an anchor in history. Indeed, any proposals for reform must be historically contextual, descriptively analytical, and policy oriented. They should aim at making recommendations on a wide range of important issues, including political, socio-economic, and cultural aspects of nation building.
251 IV. CONCLUSION
Virtually all the political forces in the Sudan agree that the Old Sudan is so dysfunctional that there is a need for a new framework for unity, or, if that proves untenable, the model of separation must be reverted to. And yet, by its very nature, the crisis of national identity in the country poses extreme paradoxes that undercut a common purpose or clear alternatives to the status quo. On the one hand, the crisis is extremely polarizing, almost to a zero-sum degree. On the other hand, Sudan is characterized by overlapping identities whose shared elements have been obscured by clouded and even distorted historical perspectives and memories. There are Sudanese from different parts of the country who believe in a uniting vision across the North-South divide. There are also Sudanese from the North and the South who believe that the identity of the nation will eventually be determined by the victorious and dominant party in the current contest for the soul of the country. And there are also those who believe that the contending identities, especially between the North and the south, are too far apart to warrant aspirations for unity within the stipulated New Sudan. For them, self-determination, with the view to partitioning the country between north and south, is the only viable answer, and it is important to examine how this aspiration relates to the vision of the New Sudan as expounded by the SPLM/SPLA. There is a case to be made for both aspirations – separation and unity. Indeed, the debate on whether the Sudan can be held together or not is a long-standing one that has defied resolution. A widely shared view is that while there are legitimate grounds for partitioning the country, there is a strong bias in Africa and in the international community in favor of preserving the colonial borders, however artificial and problematic. The challenge then becomes one of creating conditions that would support and sustain the unity of the diverse groups within the existing borders. Even if most Sudanese were in favor of the New Sudan as a matter of principle, there are bound to be significant differences on its normative content. But, even more significantly, it is possible that after a thorough examination, the conclusion might be that the unitary framework of the New Sudan is not empirically justified or attainable and that the alternative models of coexistence or partition must be considered. Indeed, most Southern Sudanese are likely to start from the premise of preferring separation and would be more positively disposed to the SPLM/SPLA’s concept of the New Sudan, if they appreciated that it also caters for self-determination and the prospects of partitioning the country. It should be reiterated, in conclusion, that the idea of the New Sudan, though theoretically one of unity, remains highly controversial, but little understood, and still needs to be clarified. The very notion of “New” implies “Old”, traceable to antiquity. How the Sudan as currently constituted came to be is a historical question of great
252 significance to the present and the prospective future. The clarification of the concept of the New Sudan, the alternative visions it postulates, and what factors determine the outcome, are issues that will continue to be debated for a long time to come. But for now, the Sudan is confronted with three clear alternatives: create a new framework for an intergrated unity; establish a system of coexistence with the potential for mid – to long- term evolution toward a more integrating unity; or as a resort of failure to attain unity, partition the country. There is little doubt that the second option is the most plausible and the best achievable under the circumstances. It is a formula for pulling apart to prepare the ground for a sounder coming together.
253 b. Summary of discussion
1. Identities, which have divided the Sudanese people, have a lot do to with the subjective feelings and perceptions of the people. Differences between people have often generated problems between them. This extends to the area of different visions which have shaped perceptions of people. Colour, religion and culture have played important roles in shaping identity. In the case of the South, the symbols of Arabism have been rejected. With the rise of fundamentalism, people have polarised their vision for Sudan. This has generated friction between groups, which in turn has affected the cohesiveness of each group. With each group aiming to undermine the other through alliances. The way forward is through building the new Sudan by providing new images and implementing hope. The biggest Southern community in the Sudan is in Khartoum. Each one of us should ask ourselves how this presentation could help find a practical solution for the Sudan? Something drastic needs to be done. When peace comes, it will be the cumulative effort of so many efforts by so many people. We often forget the fact that there are so many people working on it that we do not see. The one country two systems formula could be seen as a means of reinforcing unity. It is to encourage us to try and accept that there could be a possible way of exploring possible routes from both sides.
2. In the eyes of the Southerners the author of the above paper is regarded as a great unionist – those who knew him from that stand based this on his writings. What he has said today should really speak to our brothers in the north – what could have convinced him that the best idea is to create some kind of division between the north and south in order to create some kind of unity in the Sudan? Very little has been written by northerners on the south. Northern Sudanese have never really tried to understand the south. If one administers the country it is incumbent on them to understand their people and problems as they are and they should listen to everyone. In the 1980s the author stood for unity. One has the impression that today the author has hope for the future. We need to be more forceful in our approach and more candid in our discussions. In order to succeed we need a breakthrough in our actions. The political parties during colonisation were very aware of the problems of the south – and put forward some plans to solve part of it. After independence – only 40 years – and two transitional governments, everyone has to make steps to resolve these problems. There is consensus that lack of democracy escalated the war and complicated the problem. The people need a democratic government. We also ought to ask ourseleves: how far apart should we fall before we embrace each other again?
3. Could one say that there is a systematic link in the intensifying Islamic programme in the Sudan – or have there been separate programmes throughout? It seems that the programme is now really sinking into the Sudanese. Turabi is the architect. Now there is perhaps also an external influence on the Sudanese. It is hard to be seen to be objective. If you are identified as a southerner then you are prejudged before you speak. There will be a time when you will not be able to tell from someone’s words whether they are from the north or south. The war itself has led to some transformation of identities. In the south Government and SPLA areas have seen the
254 growth of Christian fundamentalism – which they have called Christianisation through Islamisation. Islamisation has provoked a counter effect – increased Christianity. In the north among southern refugees there is a cultural discovery – traditional remedies etc. and a growth of Christianity.
4. With regards to the One Country Two Systems Model: how would it be administered? Would a council lead the interim period – or an international element – or the NIF? How would it operate in practise?
5. Peace in the Sudan which brought happiness to the Sudanese people did not last for too long. At the beginning the fight was carried by Southerners – then the Nuba, Darfur and Beja joined the fight – why is that? Is there a possibility for others to join the fight again? Bearing in mind that 1972 Peace Agreement was signed, what is not said is what divides – we need to speak the truth. In order to help you, we need to tell the truth. There are classes of citizens in Sudan. Giving unity priority there are certain conditions. Egypt and Libya should be saying that unless the south’s just cause is being addressed correctly then your country is in danger. During the interim period we would need to convince them that unity is best. The one country two systems model is a simple equation which expresses a far more complex idea. For example on the issues of who should govern – the implication of the question is that there are very serious differences between those in the south – therefore people need to think very carefully how to develop an inclusive system in the north and south. Saying you are not what I think you are – this is in an attempt to find brotherhood between us.
6. The notion of two systems freezes the conflict and glosses over the deep schisms which today have gone past the north / south. It also seems to me that thinking along these terms carries the conflict to another stage – and it delays our attainment of lasting peace. Thinking about two systems is like an intellectual sedative we are giving ourselves. Diluting the conflict to two main actors does not put an end to the conflict. What kind of systems do we have in the south – the notion implies two or multiple systems. It excludes the possibility of having other systems in the Nuba etc. Is it really a step to unity or maintaining the status quo and having further problems? What do they think about the notion between these two systems and the situation in the south itself? What are the safeguards anticipated in holding these systems?
7. Marriage between the concepts and reality of the Sudan are what we are wrestling with. In this diversity how will people harmonise their relationships? Here should be diversity and people must look at the other side even if it is hard to understand the other side. Only when people live together can they begin to understand one another. For example one might take their own habits for granted but they could be offensive to others. We need to be pragmatic – and begin to move forward – each of us so that we can have a unified understanding.
8. To solve our identity problem our historians need to write it properly. It is known that the word ‘Sudan’ is from the colonial times. The Ethiop is the original name – land of the Ethiop since Biblical times. The word Arab has been confused and there
255 is now a crisis of identity. Many people became Arabs in the Sudan after they converted to Islam and they also remain Sudanese. Increasingly the term Arabic in Sudan is more of a cultural one than a racial one. It is the language you speak. Those who came from Yemen are the ‘original’ Arabs. There is a second group, who were not originally Arabs, including the Prophet himself, who nevertheless considered themselves Arabs. It is part of the culture that Arabs assimilate easily. Sudanese people have never denied the African roots of their Sudanese background. There are, in the Sudan, those who speak more correct Arabic than Arabs themselves. Arab is not about colour or how you look. In the context of this conflict it is a very sensitive thing when you say that ‘this is not your identity’ – you are deceiving yourself. I know it was not meant insultingly.
9. When people talk about their own identity in the Sudan they bring out the quality of human worth. The northerners know who they are and they are not having an identity crisis. They are not unsure of who they are. That is not necessarily bad. Kuosh – black – covers the whole area and extends beyond. Scholars speak of them going right across the Sudan. If the northerner does not accept that the Southern Sudanese are Sudanese then that is his problem. The Saudis say we are not Arabs – but that does not make Sudanese any less Arabic.
10. When is this unity supposed to be realised? It appears to be as a result of self- determination. But couldn’t unity take years to realise? There is huge psychological damage inflicted on people. This calls for a healing process. We need to aim at future generations so that we can see a future for Sudan. We need to be together – we need one another or we are not the Sudan. It is hard to think of a nation as homogeneous. At some time, as Western countries are doing now, there will be new people coming into our country. In this regard, what are our aspirations for our nation in the future? In genetics there are no pure lines in the world – all lines which will not mix will go extinct at some time. The diversity of humanity is a positive thing. It will never work if we try to segment into small groups. How can we make the nation we aspire to? We are very concerned at this polarisation of north and south. Ignoring the system that was in the north made the south pay very dearly. One country multiple systems will not become a permanent system in the future.
11. It is better when people say that they are what they are and part ways (let northerners say that are Arabs and let the southerners go their separate way). Today almost every southerner is extending a hand to northerners to say we have become one people. But the irony is that the southerners are saying we have something in common – let us look at what unites us. The northerners say that they are Arabs. Egyptians say they are more Egyptian than Arabs; in doing so they are they disappointing the Arabs! When the Arabs and Dinka fought – the conflict was racial in their minds. There is something deep that the northerners feel about their pride. Even two systems, one country becomes very difficult – it is hard to assimilate what it is to become Arab. How can cultural chauvinism be better than racial chauvinism?
256 13. How can Trust and Confidence be built between the Sudanese Constituencies a. Draft paper tabled for review and comments by Dr Edward A. Christow and Dr Jeremy Ive.
I. Introduction
This paper seeks to affirm what many Sudanese individuals have already said in public meetings and to us in personal conversations. The purpose of this paper is to examine how trust and relationships could be built between the Sudanese constituencies. In doing so, it will look at trust and confidence from theoretical and practical points of view.157
The theoretical part of the paper will begin with a definition of a number of relevant concepts such as trust, confidence and social capital. Next, the current literature and debate on confidence and trust will be critically reviewed and then related to peace building, underscoring the impact of trust and confidence on relationships.
The practical part of the paper will confirm what has already been said in different forums and by numerous individuals coming from diverse backgrounds in the Sudan and abroad. The practical part of this paper will offer six strands which are key to building trust and confidence between the Sudanese constituencies. These strands could support the long-term reconciliation process through the establishment and sustaining of viable political structures and relationships.
II. The Study of Confidence and Trust in the Current Literature and their Impact on Relationships and Peace-Building
1. Definition
The Oxford English Dictionary defines trust as “Confidence in, or reliance on some quantity or attribute of a person or thing or the truth of a statement…. confident expectation of something…. quality of being trustworthy…”158 Similarly, confidence is defined as the “mental attitude of trusting in or reply on a person or thing…. feeling sure or certain of a fact or issue…”159
157 The authors of this paper owe a debt of gratitude to many people. We would like to thank Dr Michael Schluter for his careful review of our earlier drafts. We would also like to express our gratitude to the Sudanese participants to this consultation for their comments during our meetings. 158 Oxford English Dictionary, Oxford University Press, Oxford, 1999, Vol. 12, p.231. 159 Ibid., Vol. 3, p. 147.
257
The above definitions lead us to make three conclusions: a. Trust and confidence are interrelated and interdependent b. Trust and confidence relate to values such as truth, integrity, tolerance, justice and peace c. Trust and confidence are important determinants of the quality and nature of relationships
2. Literature Review on Trust and Confidence
In his study of confidence and trust Adam B, Seligman160 has developed the notion that trust-building is done on the basis of shared risk while confidence-building is something facilitated from outside and takes place on the basis of the acceptance of a common framework and mutually recognised roles. These are mutually reinforcing processes.
Another important author who has studied trust and confidence is Robert D. Putman’s. In his recent bestseller which was published in 2000 under the title “Bowling Alone”, Putman looks at the issue of ‘social capital’, which is essentially composed of, and defined by, relationships. For him social capital refers to “…connections among individuals - social networks and the norms of reciprocity and trustworthiness that arise from them.”161 For Putman trust is an important issues because it “lubricates social life”.162 He also contends that trust promotes frequent interaction amongst individuals which in turn lead to greater reciprocity. The greater the reciprocity and social connections (and better relationships) in a nation the less distrustful the society would be.
One of the most important recent works on trust has been written by Francis Fukuyama Fukuyama contends that trust plays an important role in enriching the culture, institutions and economy of a country. He also stresses that trust encourages the creation and sustaining of associations and relationships. This in turn would lead to a community which is based on mutual trust. After completing a study of low and high trust societies he concludes that the latter had better economic performance and that trust had generated
160 Adam B. Seligman, The Problem of Trust, Princeton University Press, Princeton, 1997. 161 Robert D. Putman, Bowling Alone: the collapse and revival of American Community, Touchtone, New York, 2000, p. 19. 162 Ibid., p. 21.
258 solidarity which has allowed people to work together for common purposes even though they might have come from diverse backgrounds.163
3. Importance of Trust and Confidence
The importance of trust and confidence can not be overstated. In the first place trust and confidence have an important role to play in peace-building. Lederach points out that peace-building could be seen as a multi-faceted process, taking place at several levels in parallel or succession. He argues that the process needs to be self-sustaining and dynamic and its object is to move to a situation of sustainable transformation.164
He defines transformation as “the movement from the latent stage to confrontation to negotiation to dynamic, peaceful relationships” and sustainability as the creation of “a proactive process that is capable of regenerating itself over time – a spiral of peace and development instead of a spiral of violence and destruction”. The problem needs to be re-framed so that, as Lederach puts it: “Reconciliation as a concept and a praxis endeavours to reframe the conflict so that the parties are no longer preoccupied with focusing on the issues in a direct, cognitive manner. Its primary goal and key contribution to seek innovative ways to create a time and a place, within various levels of the affected population, to address, integrate, and embrace the painful past and the necessary shared future as a means of dealing with the present”165
The potential outcomes need to be explored in win-win terms: negotiation not a matter of zero-sum bargaining but of finding a basis in which the flourishing of all can be promoted and secured.
Herbert C. Kelman puts it in other terms: “…parties caught up in the conflict dynamics, whose interaction is shaped by the norms and images of the history of the conflict, are systematically constrained in their capacity to respond to the occurrence and possibility for change. …. Conflict resolution efforts, therefore, require the promotion of a different kind of interaction, capable of reversing the escalatory and self-perpetuating dynamics of conflict: an interaction conducive to sharing perspectives, differentiating enemy images, and developing a language of mutual reassurance and a new discourse based on the norms of responsiveness and reciprocity.”166
163 Francis Fukuyama, Trust: the social virtues and the creation of prosperity, Hamish Hamilton, London, 1995. 164 John Paul Lederach, Building Peace: Sustainable Reconciliation in Divided Societies, United States Institute of Peace, Washington D.C., 1997, p. 75. 165Ibid., p. 35 166 Herbert C. Kelman, “Social-Psychological Dimension of International Conflict” in I William Zartman and J Lewis Rasmussen, editors, Peacemaking in International Conflict: Methods and Techniques (Washington, D.C.: United States Institute of Peace, 1997), p. 210.
259 Trust and confidence fundamentally depend on the quality of relationships. Schluter and Ashcroft have argued at an earlier conference that there are five preconditions to achieving trust and in a relationship.167 These are as follows: a. Commonality Any relationship, political or otherwise, needs a foundation of common purpose. Whether unity is expressed through a strong single national identity or through joint work and agreement on specific issues, the extent of agreement is important.. This common purpose must be about real objectives and priorities, those that drive people’s decision- making and about which they are most committed. Generalised statements of agreement which gloss over fundamental underlying differences are insufficient.
b. Parity The basis of any relationship is also often defined in terms of the way in which issues of power are dealt with. Parity should be distinguished from equality. There may be legitimate differences of power and influence in a relationship. What matters is the way in which power is used and that any imbalances of power are not so great that trust and confidence are impossible to build.
c. Multiplexity Multiplexity is concerned with the breadth of knowledge in a relationship. At a personal level this may be a consequence of the different contexts in which one person meets another, and therefore whether a fully rounded knowledge of the person’s character, values, beliefs, skills, family connections and experience can be formed. At an organisational level, a key factor is the knowledge that one person has of the other’s party, organisation or regional background. Such breadth of knowledge fosters trust, accountability and understanding.
d. Continuity Continuity in a relationship is about time and stability. Relationships, whether between individuals or organisations, take time to develop - particularly if trust is to develop. Effective communication requires regular contact. Without sufficient contact there is neither the opportunity for the relationship to develop, or for it to be conducted with full appreciation of the relevant facts. Geographic distance and limited access to communication technologies can make continuity harder to sustain for some relationships than others.
e. Directness Directness is about the nature and quality of the communication processes in a relationship. Meeting face to face is important as a basis for effective communication and relationship building. This is because so much communication is non-verbal. The human face is capable of producing ten thousand different expressions. Body language tells you much about how the other person is thinking. It can be costly in terms of travel
167 Michael Schluter and John Ashcroft, “Political Transitions: a relational analysis” in The Sudan Peace Building Programme, Second Consultation Report: water and agriculture and federalism and self- determination in the Sudan, Hemel Hempstead, UK, July 2001, pp. 103-109.
260 and time and it is therefore important to make judgements about the stages in a relationship or issues where meeting face to face is most important.
So to foster trust and confidence it is necessary to explore strategies and initiatives which will serve to develop these five factors in relationships between and among the various political, economic and social groups in the Sudan.
III. How Can Trust and Confidence be built between the Sudanese Constituencies?
1. The Problem
How can we step back from the struggle for power between and among government and opposition alike and see ways in which the peace process can be set in train?
It is not simply a question of external facilitation, but also of the political will of the parties themselves. There is a need for a common framework which can substantively encompass and address the aspirations and fears of all the stakeholders within Sudan; as well as promoting good relations in the region and internationally. What is it that determines and guides that political will, and how can the cycle towards conflict and a zero-sum struggle for cultural dominance/self-determination and for the control of scarce resources be turned around to allow for the good of all to be promoted with an agreed shared diversity? Alternatively, how can substantial devolution of power take place without the formalisation of old conflicts across new political boundaries?
What is it that will allow the multitude of peace initiatives to coalesce and for the corner to be turned for the commencement of real and fully inclusive negotiations about the future of Sudan? There is a need both for a shared perception of the risks involved as well as an agreement on the values on which the framework is based.
2. Ways Forward to build Trust and Relationships between the Sudanese Constituencies
This section attempts to identify a number of ways in which the five preconditions for trust cab be nurtured. It also seeks to highlight a number of areas in which relationships of trust can be developed, and processes and structures set in place to facilitate this.
261 a. Development of and Support for National Institutions One way of building confidence and trust between Sudanese constituencies is through the support for institutions where people from different backgrounds could associate, interact, respect and be accessible to one another from an early age. If there is an opportunity for people to live, study and work together in institutions where they would learn to live together and get to know each other, this would build confidence between them as well as relationships which would be sustainable.
National institutions provide means for future leaders to meet face to face and be engaged in a process of confidence building. If this policy is applied beyond national university and central institutions to schools and other institutions at a regional and local level then Sudan would be able to reach beyond the elites and involve the middle level and grass roots sections of the country.
For example, if students from the north, south, west and east are able to attend the same school they would build relationships with one another and learn more about the culture, religion and language of their classmates. Other institutions, which serve the same purpose, are government departments, organisations promoting culture, the arts and voluntary sector bodies. b. Development of and Support for the Private Sector The private sector plays an important part in the life of any country. In most countries it is one of the three domains of governance, along with the state and the civil society. The private sector in the Sudan could play an important role of a ‘melting pot’ as the opportunities for people from the North to be engaged in the South and vice versa are increased. How can the North encourage economic activity in the South? The National Economic Strategy involves the removal of trade barriers between the North and South and the state could play an important part in fostering this process by:
• ensuring that enterprises from all parts of the country have easy access to credit • nurturing enterprises which operate in many parts of the country • promoting investment in underdeveloped regions and helping to transfer knowledge, funds and technologies throughout the country • providing incentives for people from different regions to establish enterprises with joint management
262 • removal of trade barriers and support for inter-state trade fairs168 c. Institutional Bilingualism: Arabic and English as Official Languages Sudan is an immense country and its geography, history and economics have produced a rich diversity of temperament, viewpoint, culture, and languages. This is easy to state, and it has been repeated in hundreds of writings; but without the direct experience which has not been available to most people, it is difficult to appreciate fully.
One of the most important examples of this diversity is undoubtedly the existence of the numerous major language groups, which are strong enough in numbers and in material and intellectual resources to resist the forces of assimilation. The number of languages and dialects in Sudan is assumed to be about 400. Over time several lingua francas have emerged and many peoples have become genuinely multilingual, fluent in a indigenous language spoken at home, a lingua franca, and perhaps other languages. One lingua franca is Arabic, which currently has the status as the country's official language, but there are currently several different dialects of Arabic.169
The existence of so many languages and dialects poses a great challenge to the Sudanese people in their daily lives, and yet there is also the predicament that no communication is possible unless there is a shared language.
One way of building trust and confidence, as well as improving the communication between the Sudanese citizens could be through institutionalising Arabic and English as the country’s official languages. In the first place, this would underline the reality of Sudan being an multi-ethnic and multi-linguistic state whilst reflecting the country’s diversity in its institutions.
There are a number of precedents for countries with two official languages. In Canada and Cameroon, English and French are used as the two official languages. In practice, this has meant that all official documents are printed in two languages, all road signs, news reports, parliamentary proceedings, merchandise labels are in two languages.
The two official languages could be adopted not only out of political necessity but their introduction could enrich the country and lead to the breakdown of communication barriers. Even through Arabic and English might be adopted as the two official languages
168 UNDP, Good-Governance and Sustainable Human Development, Policy Series, New York, 1998. 169 Ed. Helen Chapin Metz, Sudan: a country study, Government Printing Press, Washington, D.C, 1992.
263 in the country, each state might be allowed to provide its members with an education in their mother tongue. At the same time, Sudanese would still have the opportunity to learn either Arabic or English as a second language at the elementary and secondary levels.
Currently, fewer people in the South are easily conversant in Arabic, whilst the role of English is declining in the North. If the two languages become official then more Sudanese people would be able to communicate in English and Arabic. The institutional biligualism would also be seen as an affirmative action by assuring the marginal communities that they would be well represented in the education system and other institutions. d. Development of National Civil Service Cadre Running the administration of a vast and diverse country like Sudan requires efficient management of its natural, economic and human resources. That, precisely, is the responsibility of the civil services who are called to manage the country through a number of central government agencies in accordance with the policy directions given by the ministries.
The Development of a National Civil Service Cadre within the could contribute to building trust and confidence between the Sudanese constituencies through the establishment of an elite whose loyalty lies primarily not to the citizens’ ethnic group but to the Sudanese state.
This cadre would need to be handpicked through competitive examination, perhaps modified initially by necessary affirmative action or regional quotas, from the thousands who aspire to get here would in effect become the builders of modern Sudan, laying the framework of the administrative architecture of the nation.
In its endeavours, Sudan could draw lessons from Indian which has build an efficient civil service cadre who are recognised and respected by their compatriots. In India, the Civil Service has still not lost the popularity it enjoyed since the time of the British Raj.
Whilst the National Civil Service could create esprit de cops between the Sudanese cadres, such an elite can feather its own nest and to stratification in the society. The latter developments could be avoided through a careful selection process of the cadres and through accountability and transparency which would ensure that the cadres are not abusing their power and that their power is checked. One tangible way of achieving
264 transparency and accountability could be through the establishment of a parliamentary oversight committee, outside executive control, which would have cross party representation, robust powers and control over the budget.170
Apart from instilling trust and confidence in the country, which arguably needs a national civil service cadre, these cadres could nurture integrity, will power, and hard work to back it up, whilst managing the country’s resources, maintaining order and instilling respect for Sudan.
e. Support for National Cultural and Sport Events National cultural and sport events are two complementary vehicles through which trust and confidence could be built between the Sudanese participants. In this case Sudanese national arts festivals and sports tournaments can build and strengthen the Sudanese identity, culture and society.
These events can have the following positive effects on Sudan:
a. They could provide the Sudanese with greater opportunities to learn and understand more about our country and about each other, to involve them in nation-building and to celebrate and recognise the country’s achievements. b. They could ensure protection of Sudan’s natural and cultural heritage for the benefit of current and future generations c. They could provide access and equity to Sudanese citizens coming from different ethnic, religious and linguistic groups d. They could foster a strengthened sense of what it means to be a part of the Sudanese community. e. They could contribute to a common national purpose. f. They could ensure the presence of Sudanese culture in an era of globalisation.
f. Promotion of a Culture of Peace Through Shared Values171 Values are not vague, abstract notions. They change the way people relate to each other, both on a personal level and in the ordering of wider society. They influence the structure
170 Interview with Professor S. Ahmed, Fellow, Centre for International Studies, University of Pretoria, Pretoria. Samuel E. Finer, The man on horseback: the role of the military in politics, 2nd edition, Pinter, London, 1988. 171 This section is based on material drawn from the following source: Ministry of Youth, Sports, Culture and Training of Rwanda, United Nations Educational, Scientific and Cultural Organisation, Newick Park Initiative, Conference Report, “Shared Values and Promoting a Culture of Peace in Rwanda,” Kigali, October 1998.
265 and ethos of institutions, including not just businesses, schools and hospitals but the central organs of government. If people share values and goals for the future of the country, it gives them hope and inspires them to work for the good of their country. Without shared values there will be political instability and poor economic performance.
Values also give content to social vision. Merely to seek economic development is to deaden the soul of a nation. Art and design, poetry and music, education and social welfare programmes all derive their inspiration from the dreams which a society holds for its future. Martin Luther King had a ‘dream’ for the future of the United States. It was not a dream of material wealth and prosperity. It was a dream that racial groups (black and white) would live together in a relationship of harmony, peace and mutual respect. What is the Sudanese dream for the future of their country?
There are important core values for a culture of peace. These include respect for human life, resolving political disputes through democratic processes rather than by violence, and giving every person an equal opportunity for health, education and employment. The two main sources of a person’s values are those derived from their religion, and those inherited from their family and ethnic group. They are also influenced by the education a person receives, by the media and by peer group pressures. With respect to religion affecting public life, there are significant areas of overlap between the values of Islam and Biblical Christianity, both in issues of personal morality and in the ordering of public life for issues such as justice172, finance173 and the political system174.
A crucial means of cultivating culture of peace is to identify and explore these shared values so that they are accepted as the foundation of a shared Sudanese culture. An open, public discussion of national values is a crucial precondition of long-term peace. Once national values are agreed and accepted, they can be promoted throughout the country by the educational system and through the media. They can also be embodied in the structure and ethos of public institutions.
172 To see the overlap of values relating to criminal justice, see Ed. Jonathan Burnside and Nicola Baker, Relational Justice: preparing the breach, Westview Press, Winchesree, 1993. 173 To see some of the overlap relating to finance, see Paul S. Mills and John R. Presley, Islamic Finance: theory and practice, MacMillan Press Ltd., 1999, especially chapter 8. 174 Compare, for example, Puritan writing on the nature of the state such as the writings of John Milton with some recent Islamic scholarship such as Muhammad Asad, The Principles of State and Government in Islam, University of California Press, Berkeley and Los Angeles, 1961.
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IV. Conclusion
At the very outset of this paper we noted that the aim of our work was to affirm what many Sudanese individuals have already said about trust and confidence. Trust and confidence are virtues which cannot be created in the abstract. In other words, they can only be built through relationship if there a common will amongst the Sudanese people.
Is there a role for third parties? There is a role for the international community in providing resources for extending natural boundaries as well as sponsoring multi-regional institutions. However, the role of third parties is secondary and only complimentary to indigenous initiatives.
Trust and relationships can also be built through actions which can have positive effects on people relationships. One very simple way of building trust in the peace process, which does not require great investment in terms of government expenditure, is the honouring of agreements and adhered to treaties. These simple actions would reinforce support to the Sudanese stakeholders from the grass roots as they seeking to build peace and a prosperous future for the country.
267 V. Bibliography
1. Books
Adam B. Seligman, The Problem of Trust, Princeton University Press, Princeton, 1997.
Francis Fukuyama, Trust: the social virtues and the creation of prosperity, Hamish Hamilton, London, 1995.
Ed. Helen Chapin Metz, Sudan: a country study, Government Printing Press, Washington, D.C, 1992.
Herman C. Kelman, “Social-Psychological Dimension of International Conflict” in I. William Zartman, J. Lewis Rasumussen, editors, Peacemaking in International Conflict: Methods and Techniques, United States Institute of Peace, Washington, D. C., 1997.
John Paul Lederach, Building Peace: Sustainable Reconciliation in Divided Societies, United States Institute of Peace, Washington, D.C., 1997.
Ed. Jonathan Burnside and Nicola Baker, Relational Justice: preparing the breach, Westview Press, Winchesree, 1993.
Michael Schluter and David Lee, The R-Factor, Hodder & Stoughton, London, 1993.
Muhammad Asad, The Principles of State and Government in Islam, University of California Press, Berkeley and Los Angeles, 1961.
Oxford English Dictionary, Oxford University Press, Oxford, 1999, Vol. 12.
Paul S. Mills and John R. Presley, Islamic Finance: theory and practice, MacMillan Press Ltd., 1999.
Robert D. Putman, Bowling Alone: the collapse and revival of American Community, Touchtone, New York, 2000.
Samuel E. Finer, The man on horseback: the role of the military in politics, 2nd edition, Pinter, London, 1988.
Samuel P. Huntington, The Clash of Civilisations and the Remaking of World Order, Simon & Schuster, New York, 1996.
UNDP, Good-Governance and Sustainable Human Development, Policy Series, New York, 1998.
268 2. Reports
Michael Schluter and John Ashcroft, “Political Transitions: a relational analysis” in The Sudan Peace Building Programme, Second Consultation Report: water and agriculture and federalism and self-determination in the Sudan, Hemel Hempstead, UK, July 2001.
Ministry of Youth, Sports, Culture and Training of Rwanda, United Nations Educational, Scientific and Cultural Organisation, Newick Park Initiative, Conference Report, “Shared Values and Promoting a Culture of Peace in Rwanda,” Kigali, October 1998.
3. Interviews
Interview with Professor S. Ahmed, Fellow, Centre for International Studies, University of Pretoria, Pretoria.
Interview and discussion with Sudanese Participants to the Sudan Peace-Building Programme, Asmara, Cairo, Khartoum, London, Nairobi.
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