Consultation Report No.4

Consultation Report No. 4

Alternative Constitutional Frameworks, Alternative Transitional Arrangements and Mineral Resources in the Sudan

The Sudan Peace-Building Programme

African Renaissance Institute (ARI)

Relationships Foundation International (RFI)

United Kingdom

April 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 7

Section B

IV. List of Issues Considered and Ensuing Discussion 9

1. How the World has Changed Since September 11th and its Effects on the Sudan Peace Process by Professor Washington A. J. Okumu 9

2. A Choice between Co-existence in One Country and Friendly Neighbourhood by Professor Mohammed Ibrahim Khalil 33

3. Constitutional Arrangements that Offer Greater Autonomy than Federation, Including Secession by Dr Peter Nyot Kok 55

4. Constitutional Arrangements that Give Greater Autonomy than Federation, Including Secession by Dr Muaz Ahmed Tungo 70

5. Transitional Arrangements: International Experiences and Prospects for Transition in the Sudan by David Nailo N Mayo 111

6. Transitional Arrangements: the case of Sudan by Mulana Abel Alier 156

7. Transitional Arrangements: the case of Sudan by Dr Sayed el-Khateeb 193

8. Sudan Gold Potential Options for Development and Exploitation by Dr Adli Abdel Mageed 197

9. The Curse of Mineral Resources: the politics of revenue sharing in the Sudan by Luka Biong Deng 213

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 to the 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 four consultations to fulfil these objectives. The first consultation introduced the aims, methodology and activities of the programme to the participants and covered in general terms the issues of peace dividends, oil, water and alternative constitutional frameworks in the Sudan. The second consultation looked at (1) the Nile Waters and Agriculture and (2) Federalism and Self-determination. The third consultation 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.

This fourth consultation focused first on the global trends within which the Sudan peace process was taking place. This led into discussion of ways in which a new constitution could accommodate all parties’ interests on issues of religion and identity, and ways in which the right of self-determination could be exercised while respecting the desire for unity among its citizens. A third theme was to explore specific options for transitional arrangements, discussed in the light of international experience. The final section explored two papers relating to mineral resources within the context of revenue-sharing. It was encouraging to note a growing measure of consensus on key issues in the discussion, building on the trust created in earlier meetings.

In its recommendations, this fourth consultation unanimously requested that from September 2002 the process should move into a new phase where participants would no longer come in their personal capacity but as official delegates of their parties and constituencies. They also requested that a steering group should be set up, that meetings should be more frequent, for longer and supported by the international community. This request was a measure of the participants’ confidence in the process of these consultations.

Professor Washington A. J. Okumu Presiding Chairman Sudan Peace-Building Programme London and Nairobi May 2002

II. List of Participants to the Fourth Consultation

I. Chairmen

1. Professor Washington A. J. Okumu, Presiding Chairman, Vice- Chairman of ARI, Commissioner for Peace and Governance and Executive Director for Eastern and Central Africa, Kenya 2. Viscount Brentford, Co-Chairman, RFI Chairman

II. Sudanese Participants

A. Sudan 1. Professor Yusuf Fadl Hasan 2. Ms Amira Yousif Adam Haroun 3. Professor Farouk Mohammed Kadouda 4. Professor Richard Hassan Kalam Sakit 5. Mr Elzahawi Ibrahim Malik 6. Dr Sayed el-Khateeb 7. Ambassador Mathiang Malual Mabur 8. General Yousif Ahmed Yousif 9. Mr Reafee Sbu Jmoona 10. Professor Ibrahim Hassan Abdel Galil 11. Dr Mohammed Elmukhtar Hassan Hussein 12. Professor Hassan Makki Mohammed Ahmed 13. Dr Kamal Obeid 14. Mr Rabie Hassan Ahmed

B. Eritrea 15. Dr Sharif Harir

C. Canada 16. Mr Hashim Eissa

D. Kenya 17. Ms Rebecca J. Okwaci 18. Dr Peter Nyot Kok 19. Mr Monyluak Alor Kuol 20. Mr Wani Igga 21. Mr Telar Deng 22. Dr Justin Yaac Arop

E. Germany 23. Dr Costello Garang

F. UK 24. Dr Nada Mustafa Ali 25. Dr Mahboob Abdel Salam

III. Sudanese Discussants

1. General Joseph Lagu, Former Vice-President 2. Mr Aldo Ajou Deng, Former Deputy Prime Minister and Former Deputy Speaker of Parliament 3. Mr Suleiman Musa Rahhal, Head, International Nuba Co-ordination Centre

IV. International Participants

1. Mr Wayne Neill, Head, Sudan Task Force, Department of State, USA 2. Mr Alan Goulty, Special Representative on the Sudan and Head of Interdepartmental Unit on the Sudan, UK

V. Sudanese and International Consultants

1. Dr Peter Nyot Kok, Chairman of Southern Sudan Law Society 2. Dr Muaz Ahmed Mohammed Tungo, Counsellor General for International Law and Treaties, Ministry of Justice, Sudan 3. Mr David Mayo, Doctoral Candidate, University of Birmingham, UK 4. H.E. Mulana Abel Alier, Former Vice-President, Sudan 5. Professor Mohamed Ibrahim Khalil, Former Foreign Minister 6. Mr Luka Biong Deng, Doctoral Candidate, University of Sussex, UK 7. Dr Adli Abdel Mageed, Consultant, Rida Mining, Sudan

VI. International Discussants

1. Professor Peter Woodward, Head, Department of Politics and International Relations, Reading University, UK 2. Professor Timothy Niblock, Director, Institute of Arab and Islamic Studies, University of Exeter, UK

VII. International Facilitators

1. Dr Michael Schluter, RFI Research Director 2. Mrs Grace Oloo, Gender and Women’s Officer, ARI 3. Dr Edward A. Christow, Executive Secretary and Research Manager, RFI 4. Dr Jeremy Ive, RFI Policy Advisor 5. Dr. Andrew Michels, Executive Director, International Human Rights Law Institute, De Paul University, USA

VIII. Apologies

1. The Rt. Hon. Donald Anderson MP, Chairman of Foreign Relations Committee, House of Commons, UK 2. Herr Elmar Brok, Chairman of Foreign, Security and Human Rights Committee, European Parliament, Belgium 3. Mr Jim Dunlap, Special Advisor, Department of State, US 4. Ambassador Hans Jacob Frydenlund, Special Advisor for Peace in Africa, Norwegian Foreign Ministry, Norway 5. Dr Abdel Rahman Ibrahim El Khalifa 6. Dr Al Shafea Ahmed Mohammed 7. Dr Amin Hassan Omer 8. Dr Taisier Mohammed Ali 9. Professor Richard Buchanan 10. Professor Francis M. Deng 11. Dr Alhassan Mustafa Onoor 12. Mr John Luk Jok 13. Dr Osman Khalid Mudawi 14. Dr Priscilla Joseph Koug 15. Dr Sumaia Abukashawa 16. Mr Bona Malual, Former Minister of Information and Culture 17. Mr Ahmed Draige, Former Governor of Darfur and Cabinet Minister

III. RECOMMENDATIONS OF THE FOURTH CONSULTATION OF THE ARI/RFI SUDAN PEACE-BUILDING PROGRAMME

In view of the four constructive consultations that have already been held, and the progress that has been made in understanding the key issues and bringing the positions of the parties closer together, we propose, after the fifth consultation in July, the following way forward for the ARI/RFI Sudan Peace-Building Programme:

1) That ARI/RFI will continue with the consultative process, to be entitled "the Inter- Sudanese Consultation on Peace and Justice (ISCOP)."

2) The goal of ISCOP will be to deliver to IGAD's Sub-Committee on Peace in the Sudan a set of defined issues for negotiation based on a thorough exploration by all the parties, and the elements of civil society, of their shared values, underlying position and view of potential outcomes.

3) Representation: each of the parties to the conflict and elements of civil society will be asked to appoint formally a person(s) to attend ISCOP authorized to represent the parties' views to the consultations.

4) Framework: the framework adopted by ISCOP will be the IGAD's Declaration of Principles (DOP), with the additional principles of inclusivity of all Sudanese opinions and elements of the Egyptian-Libyan Initiative.

5) Steering group: a steering group will be made up of: a. GOS b. SPLM c. Other liberation movements d. All parties to the conflict as stated in clause 3 above. e. A nomination from civil society. The steering group will be responsible for preparing the agendas that will be drafted in consultation with other parties and with ISCOP's secretariat.

6) Chairman: the consultations would be chaired by Professor Washington A.J. Okumu and two other facilitators whom he would be asked to nominate with the approval of the whole meeting.

7) Recommendations will be made as far as possible by consensus. Where there is continuing difference in opinion, all views will be noted for the negotiating process.

8) Records: a summary of discussions and full details of decisions reached will be recorded and this will be made available to all the parties involved within two weeks of the end of the consultations.

9) The role of the international community: ISCOP will look first to the US, UK and Norway for diplomatic, intellectual, financial and logistical support and would request that each of these three countries, plus one or two other supporting countries

would send official representatives to attend each of the consultations in their entirety.

10) Frequency, location and length of meetings: the meetings will be held for two weeks in every two months starting in September 2002 and continuing over a period of over eleven months (i.e. six times two weeks meetings).

11) Meetings will be held in the UK or elsewhere at a venue dedicated for the period of the consultations.

12) Media: there will be no media coverage of the proceedings, but the participants at the end of each consultation will agree on a press release. Every effort will be made to maintain good relations with the press and other media.

In the light of the above, we the participants attending the Fourth Consultation in our personal capacities appeal to the US, UK and Norway and other international donors, to provide the necessary financial support to make ISCOP a reality and thus facilitate the start of negotiations. 26 April 2002

IV. Background Papers to the Fourth Consultation and Summary of the Ensuing Discussion

1. How the World has Changed Since September 11th and its Effects on the Sudan Peace Process by Professor Washington A.J. Okumu a. Paper Presented by Professor Washington A. J. Okumu

(1) INTRODUCTION

Let me, at the outset, acknowledge the presence of certain very important personalities among us at this, our Fourth Consultation on the Sudan Peace Process. I believe that I will be speaking on behalf of all us, and also in my capacity as your Chairman, when I express our gratitude to them for finding a little time from their busy schedules to be with us, albeit for only a short time, and to extend to them a very warm welcome. It demonstrates, if any such demonstration was needed, their commitment to what we are trying to do here, namely, to try to bring peace to the Sudan and end the terrible suffering of the people of that country as a result of many years of what can be scribed as 'ethnic conflict.' I hope you will bear with me little if, for the sake of history, I mention them by name.

First, we would like to thank Mr. Wayne Neill who has come from the United States Government working with the Assistant Secretary of State for African Affairs, Mr. Walter Kansteiner. As I said last time, we are grateful for the financial support which we have received from our American friends in this process. I will have more to say a little bit later about the general U.S. Government's involvement in the actual peace process.

Secondly, we would like to thank Alan Goulty, the British Government's Special Envoy on Peace in the Sudan, for his support. I had an opportunity to meet him in July 2001 with Sir Andrew Green during which I discussed with him the situation in the Sudan and briefed him about what this group was trying to do to bring about a peaceful settlement. During our discussions, I stressed to him the need for British involvement in trying to find a settlement because of its long historical connection with that country. I am sure

you will all join me in congratulating him for his appointment by the Prime Minister. We hope that he will be with us on this journey of our quest for peace in Sudan to the end considering in particular his long and massive experience in that part of the world.

Thirdly, may I mention also the importance of the Norwegian Government in the Sudan Peace Process. I am sure you are all aware of the very active but quiet and important role that country has played in the quest for peace in various parts of the world. The Oslo Peace Accord, which was instrumental in the creation of the Palestinian Authority in Gaza and West Bank, and expected to lead to the establishment of an independent Palestinian State - a process which we all hope will soon be achieved - was negotiated by Norway. But this was not the only one. There are many others and if you could allow me to be a bit more personal, I would like to mention, publicly for the first time, that it was the Norwegian Government which helped me to ensure that the South African Peace Agreement which I had brokered between Presidents Nelson Mandela, F.W. de Klerk and Prince Mangosuthu Buthelezi in April 1994 did not break apart. I am sure you are all aware that it is one thing to sign a peace agreement and another to make it stick. Between 1995 - 1996, the Mandela Government of National Unity (G.N.U.) which had been set up after the April 1994 elections was breaking apart because it had reneged on its earlier promise to invite international mediators to settle the outstanding constitutional issues on the status of Kwa -Zulu Natal.

It was the Government of Norway which enabled me to continue with my secret and quiet preventive diplomacy to persuade Inkosi Buthelezi, the then Deputy President Thabo Mbeki (to whom President Mandela had delegated by that time nearly all governmental authority) and F. W. de Klerk, to continue on the path of peace and not allow Inkatha to pull out of the G.N.U. My friend Ambassador Tom Wraalson of Norway, who served in London and Washington D.C., played a prominent in this. And all of us are aware of the role which Norway has played, very quietly behind the scene to bring the Liberation Tigers of Tamil Eelam (LTTE) and its enigmatic guerrilla leader, Velupillai Prabha karam, to the point where he is prepared to enter into a peaceful negotiation with the government of Rohan Edirisinghe. I still recall how in 1996, a

friend of mine, Kumar Rupesinghe of Sri Lanka tried to get me to ask Nelson Mandela to help us bring peace to that country, but I particularly failed to persuade any country to help us because the world seemed to have given up on Sri Lanka. Apart from tea, I was told that it had no rich natural resources to boast of. That is why I consider Norway to be such an important country for peace in the world!

Therefore, the newly called 'troika' consisting of America, Britain and Norway as the countries now seriously engaged in the peace process in Sudan augurs very well for the future if it is maintained. If we follow the principle of multi-track policy in diplomatic peace negotiations, the other initiatives should also be allowed to go on, as was done in the South African case, but being aware that in the end only one or a few united approaches will succeed. In this case I believe that the present 'troika' has probably the best chance of success. This is not to say that other African countries cannot play a role also. I am thinking of the leading members of New Partnership for African Development (NEPAD) such as South Africa and Nigeria which already have established direct links and good working relationships with the G8 developed industrialised countries. It is good to know that the parties to this conflict are also inclined to this view.

Now let me talk briefly about the role of two other very distinguished gentlemen who are supporting the Sudan Peace-Building Programme. The Hon. Donald Anderson, M.P., and Chairman of the British House of Commons Foreign Affairs Committee and the Hon Elmar Brok, Chairman of Foreign Relations Committee of the European Parliament, are very special friends of Africa. Here I speak as an African because both of these gentlemen have never flinched to support us whenever they are called upon. I remember working with them since the late 1980's on the South African peace process. Donald Anderson in particular, together with Sir Fred Catherwood, former Chairman of the European Parliament, attended our first meeting at Lord Brentford's home at Newick Park, Sussex, from which the 'Newick Park Initiative' on South Africa got its name. Those were really difficult times.

More recently, in fact as recently as 23rd July 2001, Donald Anderson gave me an opportunity, may I say a rare opportunity, to address a distinguished gathering at the House of Commons under his Chairmanship. I chose to speak on the topic: "HOW CAN WE BRING PEACE TO SOUTHERN SUDAN: THE INTERNATIONAL DIMENSIONS." *1 Many people of various walks of life attended, including a number of those Sudanese who had come for the Second Consultation as well as those who live in London. I mention this meeting in particular for two reasons. First, I chose the topic against the advice of some of my friends here in England. Some thought that I should confine myself to explaining what we had just done and may be in the context of that appeal for more financial help to enable us carry on with our future consultations. Secondly, some people thought that I would be accused of internationalising the Sudanese conflict. In fact, there was a veiled criticism in the Sudanese press a few weeks later that I had just done that, notwithstanding the fact that when the IGAD countries were requested by the Sudanese Government to help search for a peaceful solution to the conflict, it had already internationalised it.

What is not known is that I had myself given very careful and serious thought as to what I should say and had in fact consulted with IGAD and other key people in Africa quite discreetly. It was at a time when there was a lot of talk about the Libyan-Egyptian Initiative which tended to ignore the IGAD role. While I believed that IGAD has not been a spectacular success for reasons one cannot go into at the moment, it had nevertheless achieved one good thing, namely, the drawing up of the 'Declaration of Principles' and having all the parties to the conflict accede to them. Anybody who is familiar with the intricacies of peace negotiations would readily admit that this was no mean achievement on the part of the IGAD countries. I said precisely this in my speech and I am happy that it was received very favourably in Africa.

But the most important point for which I would like to thank Donald Anderson is that he gave me a platform from which I strongly made a plea for the involvement of America and Britain in conjunction with African countries in the quest for peace in the Sudan. That was before the tragic events of September 11, 2001. Some people felt it was very

courageous of me to do that. But, in my own judgement coupled, with my many years of experience in African affairs, I thought the time was ripe for me to make that plea. I did not mind behaving like a Cassandra, with my voice crying in the wilderness as long as I was sure that I had received the support of the Council of Elders of the African Renaissance Institute and its Board of Directors.

Donald, once again, thank you very much for your steadfast friendship and help always. You are really a true friend of Africa!

(2) HOW OLD IS THE WORLD TODAY?

During the Third Consultation on the Sudan Peace process, I gave a paper entitled:" THE CHANGING STRUCTURE AND ROLE OF THE STATE IN AFRICA"*2. In it I mentioned how fool-hardy I had been and to have had the audacity to tell a distinguished gathering of the African Heads of State and Government and other dignitaries including government ministers from Europe and America (Britain was represented by Clare Short, Secretary of State for International Development) who had attended the annual meeting of the Global Coalition for Africa in Gaborone, Botswana, that although the world was now more than ten years old, it is we, Africans who are usually very slow to realize that. I decried the fact that it takes us so long to adopt any new advances, especially in the technological and scientific fields.

For instance, in no earlier age in man's history, especially since the Post-War period, has the world presented such extra-ordinary contrasts as it does today. Not at any previous period has the scope of economic, social and political change, taking the world as a whole, been so far-reaching. Entirely new prospects have opened for mankind, the epitome of these being the rapid advances in our knowledge of the nature of life and disease, the new venture into outer space as well as other developments which underline man's growing knowledge of and control over nature. Mwalimu Julius Nyerere, the former President of Tanzania, was fond of telling Africans that while the white man was going to the moon, we Africans are still riding our donkeys and camels. In trying to

explain this predicament, some people have said that there are fundamental defects in human nature, deeply implanted inner drives and conflicts, which impel men towards war and self-destruction. And that is why we have so many conflicts in the world today, the majority of which are found in this continent. Although the advances of scientific knowledge and technological resources have by-passed Africa to a very large extent, I would not still accept the defeatist view.

I must confess that what I meant when I said that the world was ten years old, was that I was referring to a full-page advertisement which Merrill Lynch ran throughout the major newspapers in America on 11th October 1998 at the height of the global economic crisis in an attempt to educate all of us about the state of the world today. The advertisement was meant to show that the slow, fixed, divided Cold War system that had dominated international relations since 1945 had been firmly replaced by a new, very greased, international system called globalisation. If we did not fully understand that in 1989, when the Berlin wall came down, then it was better we understood it ten years later. The advertisement read as follows:

"The World is 10 years old. It was born when the Berlin Wall fell in 1989. It's no surprise that the world's youngest economy - the global economy - is still finding its bearings. The intricate checks and balances that stabilize economies are only incorporated with time. Many world markets are only recently freed, governed for the first time by the emotions of the people rather than the fists of the state. From where we sit, none of this diminishes the promise offered a decade ago by the demise of the walled-off world.... The spread of free markets and democracy around the world is permitting more people everywhere to turn their aspirations into achievements. And technology, properly harnessed and liberally distributed, has the power to erase not just geographical borders but also human ones. It seems to us that, for a 10-year-old, the world continues to hold great promise. In the meantime, no one ever said growing up was easy" *3

In other words, globalisation is not just some economic fad, and it is not just a passing trend. It is an international system - the dominant international system that replaced the Cold War system after the fall of the Berlin Wall. We need to understand it as such and my constant and persistent plea to my fellow Africans is that even if we do not like it, we must study it and understand it. We may be suffering from material poverty, but surely those of us who can read and write should not suffer from the poverty of the intellect too. That was my plea in Gaborone to the African leaders and which I shared with you last time.

It was the leader of the American delegation who reminded me that although I was right to say that globalisation has replaced the Cold War as the defining international system, but since the events of September 11, 2001, the world was now different again. It could, therefore, be considered to be just about a month old, (that was in October 2001). What he was trying to tell me is that the terrorist attack in New York and the Pentagon on September 11, 2001 had underlined the irrelevance of America's dominant security priorities, which were still rooted in Cold War attitudes and structures. Anatol Lieven has written the following on this:

"Indeed, it could be said that as far as dominant groups in the U.S. security establishment and politics are concerned, the Cold War did not end until September 11, 2001. This is above all true in three areas. First is the attempt to cast Russia and China as major threats to vital U.S. interests. Second is the strategy of the national missile defense (NMD) and the militarization of space. And third is policy toward Israel and its occupation of the West Bank and Gaza - since this attack originated in the Muslim world and was motivated in part by hatred of Israel and of U.S. support for Israel".*4

Mr. Lieven went on to say that "the United States had been the target of a very serious act of war, conducted by a formidably cruel, brave, fanatical, and well organised enemy with a terrifying capacity for both savagery and self-sacrifice."*5 What is more is that Noam Chomsky, the world's renowned activist, writer and professor of linguistics at the

Massachusetts Institute of Technology has said that the horrifying atrocities of September 11 were something quite new in world affairs, not in their scale and characters, but in the target. He has said the following in an interview:

"For the United States, this is the first time since the war of 1812 that the national territory has been under attack, or even threatened. Many commentators have brought up a Pearl Harbour analogy, but that is misleading. On December 7, 1941, military bases in two U.S. colonies were attached - not the national territory, which was never threatened. The U.S. preferred to call Hawaii a "territory", but it was in effect a colony. During the past several hundred years the U.S. annihilated the indigenous population (millions of people), conquered half of Mexico (in fact, the territories of indigenous peoples, but that is another matter), intervened violently in the surrounding region, conquered Hawaii and the Philippines (killing hundreds of thousands of Filipinos), and, in the past half century particularly, extended its resort to force throughout much of the world. The number of victims is colossal. For the first time, the guns have been directed the other way. That is a dramatic change"*6

I have mentioned this point at length for us to be able to understand why there is a sudden change in factors influencing the conduct of international affairs, and our possible reaction to them because they will inevitably impinge on the conduct of our own behaviour and policies, particularly in these consultations in which we are now engaged. A famous Christian preacher, based in London, referred to what the prophet Isaiah said: 'In the day of great slaughter, when the towers fall...' (Isaiah 30:25). He went on to paint a rather sad picture of the future state of the world in the following terms:

"No one is secure any more. Our families are not secure, nor are our friends. I have to tell you terrorism - worse than anything that we have yet seen - is here to stay. Nothing is sacrosanct any more. The Pope, the Queen, the Prime Minister, children, Big Ben, Buckingham Palace, St Paul's. What has been

called "a new kind of evil' will not regard anything or anybody with any respect. Nothing is shocking any more. Nothing will surprise us now, whether it be a hijacking or the use of chemical weapons. The depth to which some now reach, to destroy anything that is good in the earth, now knows no limits"*7

In other words, America in particular and the Western world in general considered September 11, 2001 to be a watershed and a pivotal date in history. As I have noted above, the attacks were the first carried out on the American mainland by a foreign adversary since the War of 1812. The enemies are considered elusive and shadowy. The means they employ are unconventional and asymmetrical, and the animating vision behind this new terrorism is seen not to be self-termination, except in Palestine, but existential hatred. That is why, once again, the world is considered not yet even one year old!

(3) THE PRESENT PREDICAMENT:

This now brings me to talk very briefly about the present predicament which we face as a result of these developments. It is a predicament based mainly on the misconceptions and/or misunderstandings about the Islamic religion. As a matter of fact and because of this, no religion in the modern world is as feared and misunderstood as Islam. It haunts the popular Western imagination as an extreme faith that promotes authoritarian government, female oppression (the way the Taliban treated their women in Afghanistan is still fresh in the minds of many people), civil war and terrorism. And yet there are quite a number of authoritative writings on Islamic faith and history which offers a vital corrective to this narrow view. The distillation of years of thinking and writing about Islam by certain scholars have demonstrated that the world's fastest growing faith is a much richer and more complex phenomenon than its modern fundamentalist strain might suggest.*8

That is why for many people in the Western world, or shall I say in the non-Muslim world, the horrific events of September 11, 2001 simply confirmed a view of Islam as

an essentially violent and fanatical faith has become one of the tenets of the West, and this notion has been around for a long time. During the Crusades, when the Western world was reinventing itself any finding its soul, in other words, when it had to define itself a new, it was helpful to have an enemy who could be portrayed as its opposite. Muslims and Jews, the two victims of the Crusades, fit the bill, and the Islamophobia of Europe developed alongside its chronic anti-Semitism as well.*9

So, it was during this period that scholarly monks in Western Europe began to develop a hostile portrait of the religion of their Muslim enemies. With very little hard information, an extremely slender knowledge of the Koran, and a great deal of prejudice, they argued that the Prophet Muhammad had imposed his religion on an unwilling world by force of arms and that Islam was a religion dedicated to the concept of the holy war, or jihad. Islam was, therefore, the enemy of decent civilisation and that Muslims could not live at peace with people who adhered to another faith, since Islam was committed to the ideal of world conquest. This is still the popular view of Islam in some sectors of the news media, even though it bears little relation to the truth.

It is often not realised that the Koranic view of warfare is very similar to the Western Christian theory of the "just war." War is always an awesome evil, but sometime Muslims may have to fight to prevent persecution. They may never initiate hostilities, however, and aggressive warfare is always forbidden. The only permissible war, therefore, is a war of self-defence, but the moment the enemy sues for peace, hostilities must cease. Retaliation is permitted to avenge an attack, but it must be proportionate, and patience is the best option; it is better to refrain from any retaliation at all. This is the policy which was adopted by the prophet Muhammad himself when the powerful establishment of Mecca was determined to destroy him and his followers, and in pre- Islamic Arabia, that would almost certainly have meant that every Muslim man, woman, and child would have been exterminated.

The above goes to prove that Islam is clearly not an inherently violent and intolerant religion and there is no reason to think that the mass slaughter of September 11 was an

inevitable consequence of Muslim zeal. Terrorists may quote some of the more ferocious passages of the Koran out of context, and, not surprisingly, non-Muslims find these quotations extremely disturbing. They confirm the West's view of Islam as a violent religion. But the terrorists usually neglect the exhortations to peace and mercy that in almost every case immediately succeed the fierce passages. The whole tenor of the Koran is one of peace, not war. Above all, it says, "there must be no coercion in matters of religion." As a matter of fact, until the earlier part of the twentieth century, Islam had a far better record of religious tolerance than did Western Christianity.

But while all this are definitely true, the fact remains that as a result of September 11, the United States in particular and the Western world in general had to desperately and fundamentally reassess many of the attitudes that have guided its policies since the end of the Cold War. The United States felt that, like other hegemonic states before it, it was paying the price of its super-power status, and so the time for absentmindedness was now over. One important consequence of this was for America to have as many allies as possible and the continuation of or temptation of American unilaterism in world politics, especially militarily and to a certain extent economically, would be a terrible threat to victory in its newly declared war against terrorism.

The first, simpler aspect of this review policy was to end completely its Cold War attitudes against Russia and China. The fall of the Berlin Wall in 1989 may have prompted such a review of policy towards these two Cold War enemies. But September 11 set the seal on the urgency of such an action. It was now realised that since the end of the Cold War, there has come into being the basis of a unified world system in which the world's other leading states are partners, not enemies, and in which all these states are under threat from similar forces. In other words, there really is the makings of an "international community" - or would be, if the United States could stop acting as if it alone constituted this community. (You will recall that in my speech to the Third Consultation in January 2002 I attempted my own definition of the concept of "International community" and it seems I was not far off the mark). The community is based on shared adherence to Western-led modernity. The only categorical opponents of

this modernisation project are indeed religious fanatics - who are not to be found in Moscow or Beijing. Second, with the exception of certain states from the Middle East, which have been identified already, the real threat to the world order comes not from states, but from below, from alienated populations: That is why it is now perceived that in States where you have persistent ethnic conflicts, based either on religion or race, are considered breeding grounds for international terrorism. These so-called failed states are a threat to international peace and security. Thirdly, since the United States cannot occupy and police the Muslim world in the struggle against Islamist terrorism in the same way Israel is trying to do in the West Bank, it is essential to have the co-operation of leading Muslim States. Fourth, the need to change US policies towards the Israeli- Palestinian conflict has been mooted. But this will be much harder and take much longer as is already quite evident. But at the moment this is considered essential if the war against terrorism is to be won.

Let me now revert to the last but equally important part of what I have termed a predicament. This refers to the twin concepts of Islamic fundamentalism and the Sharia Law which the events of September 11 have brought to the fore. The spectre of Islamic fundamentalism sends a shiver through Western society, which seems not nearly so threatened by the equally prevalent and violent fundamentalism of other faiths. This has certainly affected the attitude of Western people towards the Muslims living in their own countries. It is now estimated that there are 7 to 8 million Moslems living in Europe and 8 - 9 million living in the United States. There are now about a thousand mosques each in Germany and France, and more than 500 in Britain. The fact, therefore, that there was a call for the Establishment of a Muslim Parliament in Britain in the early 1990's made many British people fear that Muslims were not willing to integrate into main stream society.

So the events of September 11 has reinforced this widespread erroneous view that Islam, and particularly the extreme variety of it in the form of fundamentalism, is a religion of jihad,*10 that it was essentially incapable of respecting other faiths, and that it was the enemy of Western values. It is argued further that fundamentalist Islam is incapable of

tolerance, pluralism, and democracy that must characterise a modern society: it cannot separate "church" from "state"; it is misogynistic, incapable of change, and backward- looking. Muslims, it is imagined, are incapable of appreciating the West's free, democratic societies.

But the reality of Islam, however, has always been very different from the Western or non-Muslim stereotype, especially after September 11. It is not an alien faith profoundly at odds with the Judeo-Christian tradition. It is certainly not addicted to violence and warfare. Nor is it fanatically opposed to all other religions. The major problem or distortion is the excessive association of fundamentalism with terrorism. And yet over the centuries, terrorism has appeared in many guises. It is not ideology or a political doctrine, but rather a method - the substate application of violence or the threat of violence to sow panic and bring about political change. Although it has rarely been absent from history, it has been more common in some ages and some civilisations than in others.

About a hundred years ago, most Muslims had no quarrel with the West. They believed that Judaism and Christianity were valid revelations, and they revered Jesus and the Jewish prophets such as Abraham, Moses, Noah, Solomon and David. In their empire, Jews and Christians were allowed full religious freedom; their society exhibited nothing comparable to the anti-Semitism and pogroms of Christian Europe. In Muslim Jerusalem, Jews, Christians, and Muslims lived together in reasonable harmony - albeit not perfect - but with a coexistence that seems an impossible dream today. When Muslims began to appreciate the momentous fact that the West had developed a wholly new type of society, they were filled with admiration. But during the last fifty or sixty years, something happened to this goodwill, and for many respect was transformed into hatred. Yet despite what many Muslims and non-Muslims alike may now believe, nothing in the history of Islam and its relations with the West made anything like the attacks of September 11 inevitable. The terrorists and their extremist cohorts hijacked not only several planes, but one of the world's great religions as well. As an African, I

cannot see any justification why so many innocent Africans had to die in the Nairobi terrorist bomb of August 1998.

It is, however, extremely important to note that the violent from of religiosity known as "fundamentalism" is not a purely Islamic phenomenon. Fundamentalism is a global fact and has surfaced in every major faith in response to the problems of modernity such as political, social and economic injustice. If we could deal with the root causes of injustice such as grievances, stresses, and frustrations which lie behind the violence, there would be no terrorism. Seen in this light, terrorists are fanatical believers driven to despair by intolerable conditions. They are poor and oppressed, or at least on the side of the poor and oppressed, and their inspiration is deeply ideological. In other words, a fundamentalist movement does not arise immediately, as a knee-jerk response to the advent of Western modernity, but only takes shape when the modernisation process is quite advanced and has produced concomitant social injustices. Fundamentalist movements reveal a deep disappointment and disenchantment with the modern experiment, which has not fulfilled all that it promised. They also express real fear, because they believe that the secular establishment is determined to wipe religion out. This is not always a paranoid reaction, since secularism has often been imposed very aggressively in the Muslim world.

One of the most important part of Islamic fundamentalism is the body of Islamic law called the Sharia.*11 (You need to belong to the Ulama *12 and thereby be a keen practitioner of the fiqh*13 and ijtihad *14 in order to be able to understand how Muslims have tried to interpret the concept of Sharia law over the centuries, in fact since the 9th century AD). A deep interest in Islamic jurisprudence had led eventually to the creation of a homogeneous religious life, based on the sacred law of the Sharia, throughout the vast Islamic Empire. The inspiration of the law was the person of the Prophet, the Perfect Man. On this point, the following behaviour has been noted:

"By imitating the smallest details of his external life and by reproducing the way he ate, washed, loved, spoke and prayed, Muslims hoped to be able to

acquire his interior attitude of perfect surrender to God. Religious ideas and practices take root not because they are promoted by forceful theologians, nor because they can be shown to have a sound historical or rational basis, but because they are found in practice to give the faithful a sense of scared transcendence."*15

That is why it can be said that to this day Muslims have remained deeply attached to the Sharia, which has made them internalise the archetypal figure of Muhammad at a very deep level and, liberating him from the seventh century, has made him a living presence in their lives and a part of themselves. But like all Islamic piety, the Sharia was also political. It constituted a protest against a society that was deemed by the religious to be corrupt. The Sharia totally rejected the aristocratic, sophisticated ethos of the court. Its ethos was supposed to be totally egalitarian.

We do not have enough time for me to speak about the early fundamentalist ideologues such as Mawdudi who was the founder of the Jameet - i Islami in Pakistan and his influence on the real founder of Islamic fundamentalism in the Sunni world, the Egyptian Sayyid Qutb (1906 - 66) who believed that religious people and secularists could not live in peace in the same society. When he joined the Muslim Brotherhood in 1953, he became a reformer who wanted to give Western democracy an Islamic dimension that would avoid the excesses of a wholly secularist ideology. What he considered to be the violent secularism of President Gamal Abdel Nasser of Egypt led him to espouse a form of Islam that distorted both the message of the Quran and the Prophet's life. He told Muslims to model themselves on Muhammad: to separate themselves from mainstream society (as Muhammad had made the hijrah *16 from Mecca to Medina), and then engage in a violent jihad. As he witnessed the torture and execution of the Muslim Brothers by Nasser, he considered this an avowed determination of the politicians to cast religion into a marginal role. He could see all the characteristics of jahiliyyah *17 in this behaviour which he described as the "barbarism that was forever and for all time the enemy of Islamic faith, and which Muslims, following the example of the Prophet Muhammad, were bound to fight to the death" *18

But one thing which Qutb did not tell Muslims is that the Prophet Muhammad had in fact finally achieved victory by an ingenious policy of non-violence; the Quran adamantly opposed force and violence or coercion in religious matters, and its vision - far from preaching exclusion and separation - was tolerant and inclusive. Inspite of this, however, Qutb insisted that the Quranic injunction to tolerance could occur only after the political victory of Islam and the establishment of a true Muslim state. The new intransigence sprang from the profound fear that is at the core of fundamentalist religion. Every Sunni fundamentalist movement has been influenced by Qutb. But it is not only that. When Ayatouah Ruhollah Khomeini of Iran decreed that a cleric should lead the Umma,*18 he was breaking with centuries of the most holy Shi'a tradition which was as radical a step as would be the Pope's abolition of the Mass. This is because in Shi'a Islam, a minority form of Islam that is best described as pious protest against injustice and corruption in the mainstream Muslim community, religion and politics were separated as a matter of sacred principle. All government was regarded as illegitimate and corrupt, and Shi'a were instructed to withdraw from political life. Only when the Shi'a messiah, known as the "Hidden Imam", inaugurated a golden age of justice would it be permissible for a true Muslim to participate in government. So even though in theory Muslims might find it difficult to separate Church and State, in practice they had found this to be every bit as necessary as in the Western world.

The importance attached to politics in Islam has made the West quite uneasy, because they have separated Church and State and take their commitment to secularism very seriously. Does this mean that Islam is inherently averse to the secular ideal? In theory, yes. The mainspring of Muslim spirituality is the principle of tawhid, "making one": all things must be brought into the ambit of the sacred, and society should reflect the unity of God. So putting religion and politics into separate spheres is not possible or permissible. The demands of faith are all-encompassing; faith cannot be confined to a limited sector of one's social or personal life. But in practice, history shows that Muslims did effect a division between religion and politics. Running a large empire is bound to be a messy and frequently bloody business; it is not easy to live up to the high

ideals of scripture when faced with the demands of realpolitik. This has been a universal experience, and Muslims experienced this difficulty as acutely as did anybody else.

As a matter of fact, when we go back to the period of the Abbasid Caliphate (750 - 1258 AD), whatever the grand theory, there was a de facto separation of what would now be called "Church" and "State". The royal court had its own aristocratic culture, known as the adab, and the elite did not live strictly Islamic lives. The Abbasid caliphs, for example, had many more wives than the mere four permitted by the Koran. The Shari'a was developed by the Ulama, the religious scholars, largely as a counter-culture protest against the inegalitarian and un-Islamic lifestyle of the rulers. The people and the politicians led essentially different lives and were governed by different norms.

(4) A RAY OF HOPE:

I have dwelt on the above subject of fundamentalism and Sharia because these are the two most worrying Islamic ideological thoughts which have suddenly assumed an important significance, especially after September 11, 2001. I hope many of you saw and read New Week's Special Davos Edition dated December 2001 - February 2002 which devoted its articles on what it termed "Issues 2002". In this issue, there was an article entitled: "The Age of Muslim Wars," by the famous Harvard University Professor Samuel Huntington.*19 There was also an article by the famous Francis Fukuyama.*20

We do not have enough time to go into the views of these two American writers, but what I can say, quite briefly, is that in spite of the events of September 11, 2001, not many people in the West believe in the idea of "The Clash of Civilizations," which has been advanced by Professor Huntington. This should give us hope. Secondly, the fact that America has now taken Sudan out of the list of ten top nations that it considered to be connected with terrorism is most welcome and I believe it was the right thing to do.

But I must stress that our position is very unique because we are the only group of Muslims and Christians who are sitting together around a table and are really serious in trying to bring peace to the Sudan. As I said earlier, the involvement of America, Britain and Norway in this peace process is something of great hope. The world is now watching us and let us not fail them. If we succeed, who knows, may be the Israel- Palestinian conflict may begin to unravel because of it. Thank you.

FOOTNOTES:

(1) See a speech made by Professor W.A.J.Okumu at a reception in the House of Commons, Westminster, London on 23rd July 2001.

(2) See a paper given by Professor W.A.J.Okumu to the Third Consultation on Peace in the Sudan which took place at Ashburnham Place, Sussex, England on 28th January 2002.

(3) Thomas L. Friedman: "The Lexus and the Olive Tree," Anchor Books, New York, 2000, p. xvi.

(4) James F. Hoge, Jr. & Gideon Rose: "How Did This Happen? Terrorism and the New War," Public Affairs, New York, 2001, See pp. 295 - 296 on "The Cold War is Finally Over: The True Significance of the Attacks," By Anatol Lieven.

(5) See Anatol Lieven's article, op.cit., p. 295.

(6) See Noam Chomsky: "9 - 11", New York, 2001, An Open Media Book, pp. 11 - 12.

(7) See R. T. Kendall: "The Day the World Changed", Hodder & Stoughton, London, 2001, p.17.

(8) Karen Armstrong: "Islam, A Short History," New York, Random House, 2000. Read the entire book.

(9) Karen Armstrong: Was it Inevitable? Islam Through History," in "How Did This Happen"? Edited by James F. Hoge Jr., Op.cit, pp. 53-54.

(10) Jihad means struggle, effort. This is the primary meaning of the term as used in the Quran, which refers to an internal effort to reform bad habits in the Islamic community or within the individual Muslim. The term is also used more specifically to denote a war waged in the service of religion.

(11) Sharia: This word first literally meant "the path to the Watering Hole." Now, it is understood to mean the body of Islamic sacred laws derived from the Quran, the sunnah and the ahadith.

(12) Ulama (singular, alim) refers to a body of learned men who have become the guardians of the legal and religious traditions of Islam.

(13) Fiqh: This refers to Islamic jurisprudence or the study and application of the body of sacred Muslim law.

(14) Ijtihad: This word means the "independent reasoning" used by a jurist to apply the Sharia to contemporary circumstances. During the 14th century Sunni Muslims declared that the "gates of Ijtihad" were closed, and that scholars must rely on the legal decisions of past authorities instead of upon their own reasoned insights.

(15) See Karen Armstrong, Op.cit.,pp. 60 - 61.

(16) This word refers to the "migration"" of the Prophet Muhammad and the first Muslim community from Mecca to Medina in 622 AD.

(17) Jayiliyyah (adjective, jahili): It refers to the Age of Ignorance. Originally the term was used to describe the pre-Islamic period in Arabia. Today Muslim fundamentalists often apply it to any society, even a nominally Muslim society, which has, turned its back upon God and refused to submit to God's sovereignty.

(18) See Karen Armstrong, Op.cit., p. 169.

(19) See Samuel P. Huntington: "The Clash of Civilizations - Remaking of World Order," New York, Touchstone, 1996.

(20) Francis Fukuyama, "The End of History".

19th April 2002

b. Summary of Discussion

1. We need honourable international brokers in the Sudan. Sudan has a rich history of Christianity, Islam and other religions co-existing together. These faiths have reached accommodation a number of times and these examples ought to be studied by everyone in the Sudan. War and peace are states of mind; it is not only a gun in your hand. If one wants peace it will take a lot of thought. People need to challenge the causes of destruction by finding ways to end them. They need to be frank even when it is not popular. The current war is about human casualties and the destruction of property. The Sudanese people need to dig down to the roots of this war and this will bring a fruitful conclusion to the conflict.

2. The world has not changed too much since 11th September. If one looks at Palestine and Israel, people are still fighting and dying there and still no one can attack Israel. As a result nothing has changed morally or ethically. Who is manufacturing the weapons? Who is trading in arms? It is not the Muslim world. Furthermore, all people condemn the terrorism and those hiding the Taliban and Al’Qaida networks. The word fundamentalism is often misunderstood and it should also be thought of in terms of spiritual fundamentalism. One central concept in Islam is that of Tawhid which means ‘union of eternal divine command and changing conditions of human life’. This concept underlines the dynamism of Islam as was shaped by the Prophet Mohammed and allows Muslims to square their religion with their world today.

3. The ‘Cold War’ has finally ended with the events of 11th September. Now the US, China, Russia and Europe are all supporting the war against international terrorism. This is a great change. At Lockerbie there was terrorism but this terrorism is no different from state sponsored terrorism which bombs the innocent. It is a criminal liability. Those who are harbouring international terrorists must be found. The international community brings hope and fear to the Sudanese. The world is connected, there is no way that we can ignore them. The Sudanese can either accept or reject money attached to strings. By the same token, people make national and international laws and these can be changed. Who is going to deny the right of the Sudanese? We should not give up hope. Would the international community say no to Somaliland and split it into hundreds of pieces for the sake of not changing law? The Government must be open to finding a solution. Those in opposition should be truthful with themselves. The international community should not pull the Sudanese apart. There is much we need to talk about so that we can resolve the conflict.

4. 11th September is a turning point; it has had an impact on international relations and brought to a conclusion the ending of the ‘Cold War.’ Since September 11th, the US is firmly established as the only superpower. The UN will become a tool of US policy unless we reconstruct the whole of this organisation. Absolute power corrupts absolutely. It is these grievances which pushed people to commit the attacks on New York. People need to look seriously at the grievances of the oppressed. When did the world change? Did it change in 1989 or after 11th September? The process started with the end of the ‘Cold War’ in 1989. In our

discussions we realise that the GOS has not realised the changes that have happened in the world and therefore have not addressed them accordingly. The current government came to power in 1989, the same time as the end of the ‘Cold War.’ The regime is a product of the ‘Cold War’, exhibiting a lot of intolerance. Impurity and intolerance continued unabated until September 11th. September 11th has changed the behaviour of the government. We have some concrete indicators to highlight this. The Nuba cease-fire and present investigating commission give some hope that the GOS could be taken to task in the future.

5. September 11th produced clarity in our thinking and gave us a common understanding. From the Sudanese point of view it has done two things: changed the American perception of the world and persuaded the government in power to be amenable to pressure. The chance is still there to see change. Before 1963 there were no human rights in the USA.

6. To non-Muslims, Shariah raises a lot of concerns and frustration. People are still at war with each other over this issue in the Sudan. September 1983 was not the start of Shariah. The frustration will not cease if people are going to behave the way they are and if we continue to use Shariah. We must look for help and answers from the Islamic scholars. In particular people must remember how women and girls are affected. Women would like to drink morrisa. Drinking it is not a sin, but people are now forced not to take it. They ought to be free in their own country to drink and eat what they want. Women are being sent to prison because they are trying to earn a living. Jihad has affected our children, some cannot go to school, and others are disappearing. Christians have respect for Muslims. What are the scholars going to do? They have the intellect to work out a solution, and they must work it out.

7. In the North there is no electricity or water, there are no good roads or schools. Sometimes when people talk about the Northern Sudan it is as if there is a small room where everything has been stored. The Arabs are scattered all over the districts and states – North, South, East, West and centre. If people single out some of them as Arabs and others not being so then we are cheating ourselves. Sometimes people misunderstand the terminology used in the Sudan. Shariah is not just a law; it is a culture of songs and speaking.

8. Who are we going to blame for this situation? We should blame ourselves. The situation in the Sudan is very bad and many people are suffering. If this consultation took place in the Northern Sudan, then you would see for yourselves. You will see how our people are suffering. We talk about Islam as a way of life. The main thing is justice. Let us make sure the situation is better than it is now. You should be free to practise the religion you choose. We are very genuine about solving our problems. Now we face a very real fact that all of Sudan is underdeveloped. Could we sit together and be more tolerant and cultivate the will to develop our country?

9. The Sudan has had enough suffering. We can all sit here and tell stories of suffering. We put all our hopes in IGAD and then added the Libyan and Egyptian Initiative. The first has not had any success for 18 months whilst the second has not

brought anything. This conflict began in 1983 during the Nimeiri regime. As soon as the regime collapsed there were efforts to solve this problem. They almost succeeded to solve the problem. To realise peace in the Sudan we need to ensure stability in the country. We need to convene a political constitutional conference to build consensus between all Sudanese. The duty of an interim Government will be to look into the problems of the country and implement strategies to end them.

10. Our problem in the Sudan is not religious. Christians are sensitive to the needs of their fellow Muslims. Our problem in the Sudan is political. The Northerners consider themselves superior. The current president, like those before him, is repeating the same mistakes as the Khalifa. In trying to end this conflict, why should not Sudan be governed by the democratic and secular state? Recent statements by the GOS have driven away many people. Islam is an accommodating religion and the people practising it should also employ this in their daily lives. Islam as a way of life and as a Muslim I do not have a problem with it. In the Sudan non-Muslims are not being asked to abandon their way of life. What is needed is a system which will protect the minority.

11. This consultation has brought people from different walks of life. We have been working together to find areas of contention and analyse them. We identified two such sensitive areas: race and religion. We do not need to enforce any single prescription at a national level. Similarly, religion could become an individual practice not a national one. Extremist elements should not be brought into Sudan. Sudan has its own problems, which are causing bloodshed, and another element should not be brought into our country. Islam has two components that are difficult – Mecca Suras and the Medina Suras – one is spiritual and the other is socially oriented regulations. These could be used in a modern state. However, we should leave behind forceful Islamisation. We need individual solutions to individual problems. There are many interpretations of Islam including liberal interpretations. We must not mix religion and politics - we should keep theology away from policies. Let us practise our religions at home, the mosque and the church. Secularism is the answer.

12. Currently the Sudanese people have three options: (a) Wait and see the Western solution to the Sudanese problem and this would most probably be an American solution. We saw it in 1987 and it failed. (b) Wait and see the opposition military solution, the opposition trying to take Sudan by force. (c) Go for dialogue, to do this we must be reasonable, have a compromising attitude and be serious about it. In reality, there is no American solution – the Sudanese people need to talk about a common solution to the conflict. The Americans or British could support the Sudanese, who are not known for accepting to being dictated to by other nations. The issue before us is as follows: how can we co-exist in the Sudan? An open dialogue is the only way. We need to examine and resolve all stumbling blocks and contradictions. The Addis Ababa Agreement of 1972 was between the North and South; the current dialogue should also embrace the East and West.

13. One way of ending the Sudanese conflict is to: (a) Go back to the Addis Ababa agreement, not as a final solution but to give us time to rethink until we have a final solution. (b) Think about the character of Khartoum as a national capital, with its multinational character. We need patience to get to the final solution. All people believe that the war should end whether they are Northerners, Southerners, Westerner or Easterners.

2. A Choice between Co-existence in One Country and Friendly Neighbourhood by Professor Mohammed Ibrahim Khalil a. Paper Presented by Professor Mohammed Ibrahim Khalil

Summary

The Southern Sudan, which had received a mean share of services and development under the British colonial administration, faired no better after independence. Further material neglect, cultural and religious encroachment and traditional mistrust of Northern designs ignited the first spark of armed resistance on the eve of independence. Soon after, this developed into a full-fledged civil war that has lasted, on and off, for nearly half a century. Not less than two million people have died and more have been displaced into Northern towns and neighbouring countries. After a brief description of the background of North/South relations (Part I), this paper deals in Part II with the relevant legal issues that would govern a peaceful settlement of the conflict. In recent times, negotiated secession and the exercise of the right of self-determination are the principal modes of the emergence of new sovereign states. The paper examines to what extent the international community recognises unilateral secession. It also discusses the applicability of the right of self-determination to the case of Sudan’s conflict. Although the Southerners are resolved, and are entitled to preserve their culture and national identity, the peoples of both parts of the country have a lot in common and share common natural resources, notably oil and the Nile waters. The exercise of the right of self-determination by means of a referendum may result in complete separation, the establishment of a confederation of two states or the preservation of the country’s unity within the framework of a federal arrangement. In Part III the paper examines these various scenarios and their effect on the management and utilisation of the country’s natural resources and the equitable sharing of their proceeds.

Part I: Background

In 1956, after a decade of liberation struggle, the Sudan attained independence as a result of a negotiated settlement with the Condominium Powers, and proceeded to establish a Westminster style democracy. That was an achievement coveted by African countries still under colonial rule. A country of substantial natural resources, it was dubbed the bread-basket of the Middle East. Not long after, however, the Sudan plunged in what turned out to be a long, internecine civil war that led to the loss of thousands of lives. With the diversion of spending to the military operations and the long drought of the 1980's, far from being able to export food products, there was not enough in that bread- basket to feed the population, let alone to spare for export.

The North/South strife has roots in the distant past. Although Nilotics had lived as far North as Dongola and pride themselves over being the descendants of those who founded the kingdoms of Nubia, it was not until the middle of the 19th century, that the Northern and Southern regions came to be regarded as one country. For centuries before the country was re-conquered by the British, the South had been a source of slaves and ivory for foreign adventurers, for whom Northern merchants acted as agents. Under the colonial rule the South was administered as a separate region for which little social services were provided.

It was, therefore, natural that the Southerners expected independence to lead to economic development, social services and meaningful participation in government. The first disappointment came when on the eve of independence, a Sudanisation committee, assigned to Northerners all but a handful of the jobs vacated by the British. That stingy apportionment was subsequently matched by the number and level of ministries assigned to Southerners in the successive governments. And political dominance brought in its train further economic opportunities. To add insult to injury, Northern politicians soon began to encroach on the field of religion, language and culture. No sooner had General Ibrahim Aboud assumed power in 1958, then he proceeded to promulgate legislation making Friday the day of weekly rest, providing for the expulsion of foreign

missionaries and severely circumscribing the right to open church schools, a step that was soon followed by placing all schools under government control.

In a statement of dissatisfaction with that state of affairs, Southern politicians began to demand fulfilment of the promise, given by their Northern counterparts on the eve of independence, to consider the Southerners’ demand for a federal system of government. But that promise was never given serious consideration until Gaafar Nimeiri, with the mediation of church organisations, concluded the 1972 Addis Ababa Agreements with the Anya-Nya rebels and the Southern Sudan Liberation Movement. A few years later, however, Gaafar Nimeiri nullified that peace agreement, thereby undoing the only good deed of his long despotic regime.

Be that as it may, the Sudan was until that time, by and large, a secular state. Things began to take a different turn in the late 1970's when Nimeiri underwent a bizarre transformation of character and disposition. The hitherto Pan-Arab socialist turned Islamic fundamentalist in 1977 issued a presidential decree prohibiting the manufacture, possession, sale and consumption of alcoholic beverages. Liquor stores, owned by Copts and foreigners were destroyed and brewers of native drink, mostly women from the South and the Nuba Mountains were imprisoned and deprived of their only means of livelihood. That was only the tip of the iceberg. Six years later, the Macauley-type penal system was replaced by legislation which prescribed flogging, limb amputation, cross- amputation and crucifixion. In the span of six months more than sixty persons, including a number of Christians from the South and the Nuba Mountains lost their limbs.

It was clear then that the Sudan became not only a country in which basic human rights were institutionally violated, but one in which co-existence of different religions and cultures was impossible. During the election campaign that followed Nimeiri’s overthrow, the abrogation of those laws figured as a principal electoral promise. Nevertheless, the ensuing government did nothing about it until it was too late. During negotiations in Addis Ababa between the Ministerial Peace Committee and the Sudan Peoples Liberation Movement/Liberation Army (SPLM/SPLA), the latter made clear that

the repeal of the so-called September laws was a condition precedent for a cease-fire and beginning of negotiations for final settlement. It took the government several months to concede this claim. On the eve of an emergency cabinet meeting scheduled to approve draft legislation for repeal of that notorious legislation, General Omer El-Beshir seized power by coup d’état on behalf of the National Islamic Front. One of the earliest measures taken by him was to declare the Sudan a put-and-out Islamic state.

This is the background of North/South relations: deprivation of essential services, total absence of economic development, political marginalisation, mistrust and fear of religious and cultural subjugation. Failure to address these grievances resulted in over thirty years of a devastating armed conflict. This programme provides a forum for a conscientious and responsible exchange of views. And it is my privilege to make a modest contribution by exploring the various scenarios of coexistence in one state or separation and the establishment of two friendly neighbour-states. Such discussion raises some legal issues of constitutional and public international law. I propose to deal briefly with these issues before suggesting some scenarios for consideration.

Part II: Relevant Legal Issues

Confederation Confederation is generally defined as an association of two or more states which, without surrendering their respective sovereignties to a central organisation, seek to solve common problems, regulate common interests or promote common objectives. Authority over the armed forces, currency and foreign relations is regarded as essential attributes of sovereignty. Accordingly, whatever other powers are vested in the central confederal organs, the member states reserve to themselves power over these functions of state. As a matter of historical fact, most confederations wielded but limited authority, even with regard to matters other than internal security, currency and external relations. A confederation may have an executive and a legislative body, but the former is in the nature of an advisory body and legislation passed by the latter does not have effect unless ratified by the legislatures of the confederating states. In the result, the central organs of

a confederation have little direct impact on the citizens of its member-states. Though not a sovereign state as such, a confederation is recognised by international law as a quasi- sovereign entity. Examples of confederal arrangements that existed until modern times are The Holy Roman Empire (1526-1806), the Swiss Confederation (1291-1798) and (1803-1848), the American Confederation (1781-1789) and the German Confederation (1815-1867.) Perhaps the Union of Soviet Socialist Republics was the only confederation of the 20th Century. It was, however, a unique arrangement in some respects. Although its constitution gave members the rights to secede, it was inconceivable that any of its members could do so. Moreover, while a 1944 amendment allowed member-states to establish ministries of foreign affairs and forge treaties with other countries, the USSR was virtually one sovereign state, notwithstanding that the Ukraine and Byelorussia were among the 51 founding members of the United Nations.

Today, the European Union is the nearest approach to a confederal association. While armies and external relations are matters of state control, there is more harmony with respect to such matters between EU members than there exists between, say, the members of the Association of South-Eastern States or the Organisation of American States.

Federation Federation, on the other hand, is an association of internally autonomous regions which together constitute one sovereign state. The surrender of sovereignty of the federating entities is reflected in vesting the central legislative and executive organs of the federation with jurisdiction over foreign policy, the currency, citizenship and the armed forces. The distribution of power over other governmental functions between the federation and its constituent units is influenced by historical, geographical and cultural factors. Accordingly such distribution lends itself to any number of permutations and combinations, and while some federal constitutions share certain characteristics, none is a replica of another. Matters of a predominantly local nature are viz., public order, health, local government and trade within the state, generally reserved for the states. With regard to other matters, e.g. criminal law and procedure, contracts and torts, civil

procedure, marriage and divorce, bankruptcy both the federation and the states exercise jurisdiction. Thus federal constitutions contain lists of power distribution, termed federal, state and concurrent powers. Provision is also made for matters not included in any of these list; some constitutions, e.g. the Indian Constitution, give this residual power to the federation, while others, e.g. the United States Constitution, vest it in the federating states.

Among the modern states governed by federal constitutions are the United States, Canada, Australia, India, Pakistan and Switzerland.

A Semantic Problem Confederation and federation are not, strictly speaking, precise terms of art. Yet, in order to avoid confusion, there is a tendency in constitutional law parlance to use confederation to denote an association of two or more sovereign states and restrict the use of federation to an association of regional entities which together constitute one sovereign state in the international arena. Nevertheless, there is no rule of constitutional or international law which dictates the use of the one or the other term, and the founding fathers of a constitution may call it confederation, federation or stick any other label to it, irrespective of its quintessential legal character. Hence, the United States of America, the Commonwealth of Australia, the Constitution of India and the Constitution of the Islamic Republic of Pakistan, Article 2 (2) of which provides that the "Republic shall be a Federation." There is lastly the Swiss Confederation, which is not a confederation at all, but a federation, and a weak one at that.

No wonder that the discussion of inter-communal relations is sometimes befogged by a confusion of terminology, a problem that has often be-devilled our own discourse. It is, therefore, suggested that for the proper evaluation of any suggested arrangement, we should not be swayed by the label it carries. We should, rather, proceed to examine the substantive content of the arrangement; if it purports to vest power over foreign affairs, the armed forces and the currency, then it would, of necessity, entail secession of the

South and the establishment of two sovereign states; it is immaterial whether you call that arrangement federation or confederation. I will revert to this question later.

Self-determination In recent times, the only available modes of acquiring sovereignty over a certain territory are consensual secession and the exercise of the right of self-determination. Unilateral secession, e.g. pursuant to victory in armed conflict, is, to say the least, of very doubtful legal validity. Indeed, with the singular exception of Bangladesh, the United Nations and the international community have refused to accord recognition to such unilateral secession. Examples of such aborted attempt are Biafra, Chechnya and Kosovo. In reluctantly recognising Bangladesh, the international community did not depart from the principle of the territorial integrity of states, but merely regarded the separation from Pakistan as a fait accompli. At any rate, that was, from the beginning, an unusual and untenable federation, its two components being separated by a vast stretch of Indian territory and having nothing in common other than religion. The recent case of Somaliland is a striking illustration of the international community’s adherence to the principles of stabilisation of borders and the preservation of territorial integrity. The downfall of the Siad Barry regime precipitated anarchy and the virtual extinction of any state authority. By contrast to the state of affairs in Mogadishu, the Northern clans of the former British protectorate managed eventually to disband all armed militias and set up an administration in Hargeisa. Notwithstanding that law and order are maintained and the UN specialised agencies are operating smoothly in co-operation with the administration, the international community has so far withheld recognition which could have been accorded on the ground of terra nullius. The Hargeisa administration argues that it had been an independent state, albeit for a very brief period, before it joined with the former Italian trust territory to form the Republic of Somalia. But in vain; several African states have informally expressed the opinion that the OAU Resolution on Border Disputes of 2 July, 1964 governs Somaliland’s claim.

Consensual secession, on the other hand, is a valid mode of creating new sovereign states. Singapore, Eritrea and the former republics of the USSR came into existence as

separate sovereign entities as a result of agreement between the parties concerned and have readily been admitted to the international community. However, the authorities of the parent state, for fear of being accused of dismembering the fatherland, rather than agreeing to automatic secession, are more likely to concede the right of self- determination, the outcome of which is sometimes a foregone conclusion, as in the case of Eritrea. Aware of this reluctance to immediate secession, the leader of the Liberation Tamil Tigers, following the recent cease-fire agreement with the Sinhalese-majority government of Colombo, has declared that he is willing to settle for a large measure of autonomy and recognition of the right to self-determination.

The Right of Self-determination International law literature is replete with reference to the right of peoples to self- determination. It is enshrined in Article 1 and Article 55 of the United Nations Charter, reiterated in the General Assembly’s Resolution 637A (VII) of 16 December 1952 and confirmed in the Declaration of Principles of International Law concerning Friendly Relations of 1970. In its 1975 advisory opinion on the Western Sahara, the International Court of Justice has confirmed the right of self-determination as a basic right which forms an integral part of the law of nations. The International Covenant on Civil and Political Rights, to which the Sudan is a party provides in Article 1 (1):

"All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."

Article 1 (1) of the International Covenant on Economic, Social and Cultural Rights, which the Sudan has signed but not ratified, is couched in identical terms. The African Charter on Human and Peoples’ Rights provides in Article 20 that "All peoples ... shall have the unquestionable and inalienable right to self-determination."

These provisions are often cited out of context to prove that any group of people who have their own distinct identity and live in a defined geographical region within an

independent sovereign state are entitled by international law to decide by referendum whether they want to continue as part of that state or secede and establish a new sovereign state. Far from supporting this view, however, international practice shows that the provision referred to above was intended to apply to colonies and non-self- governing territories. Accordingly, despite a strong moral claim to separate statehood, Kashmir, the Tibet and the Tamil have no automatic legal right to self-determination. By contrast, the Western Sahara, which is classified as a non-self governing territory and East Timor, which was occupied by Indonesia in December 1975 on the departure of the last Portuguese governor were held entitled to the exercise of the right of self- determination.

The Consensual Right of Self-determination It is a healthy aspect of the approach to resolving the Sudan conflict that all the parties have committed themselves to recognising the right of the South to self-determination. Yet, though there is agreement in principle, some differences remain to be settled. First, there is the question whether there is an absolute, or only a conditional, right of self- determination. The Declaration of Principles (DOP) of the Inter-governmental Authority for Development (IGAD), which has been accepted by all parties and hailed by the SPLM/SPLA as the ideal basis for a settlement of the conflict, puts the issue in a way open to different interpretations.

Article 2 of the Declaration provides that "the right of self-determination of the people of the Southern Sudan to determine their future status through a referendum must be recognised." The following article, however, says that the unity of the Sudan must be given preference, provided that certain rights and freedoms are enshrined in the constitution and integrated into the social framework of the country. These rights and freedoms, set forth in the following paragraphs of Article 3, include the guarantee of social and political equalities for all the people of the Sudan, the right of self- administration on the basis of federation, the separation of religion and the state, fair and equitable sharing of the national wealth between all the people of the Sudan and the independence of the judiciary. The article goes on to say that these rights must be

enshrined in the constitution and internationally guaranteed. Article 4 provides that "on failure of agreement on the above principles", "the respective people" will have the right to determine their future status. This has opened the door for putting a different emphasis on the availability of the right.

The SPLM/A has all along maintained that it is an absolute and incontestable right. Indeed in its "Legal Framework for the Peaceful Resolution of the Civil War in the Sudan (Interim Arrangements)", made public in August, 1992, it proposes the establishment of a confederation during an interim period of two years, after which the South will choose by a referendum between confederation and independence. It is, therefore, hardly surprising that the SPLM/SPLA, in accepting the DOP as a basis for negotiation, said that its proposals fell short of its aspirations. Prior to one of its rounds of negotiations in 2000, the IGAD secretariat furnished the parties with a statement which, among other things, paraphrased the DOP’s provisions on self-determination. In its letter of 26 September of that year, the SPLM/SPLA responded that although the statement was generally positive and would serve as a suitable framework for discussion, "Express reference to the right of self-determination must be made". As for the government (GOS), although it does not make express mention of conditionally, it professes to accept the DOP in its entirety and upholds the unity of the country as a foremost priority. The Asmara Declaration of the National Democratic Alliance (NDA) endorses the DOP without reservation, but neither the Declaration nor the protocol on self-determination appended to it refers to its being conditional accruing only on the government’s failure to respect the equality of races, religions and cultures, equitable distribution of the national wealth between the various regions and such other rights and freedoms as are internationally recognised as fundamental human rights. Nor does the joint statement made by the GOS and the Umma Party on conclusion of their discussions in Djibouti in November 1999. In fact, the Umma Party had already pledged commitment to unconditional self-determination in its agreement with the SPLM/SPLA in Chukudun in December 1994. In the meantime, notwithstanding its professed stand for out-and-out separation, the SPLM-United signed a joint statement with the Sudan Alliance Forces (SAF) in July 1997 whereby both parties declared that unity is a first

priority, but that on failure of all opposition parties to agree on the establishment of a secular society, "the people of the Sudan shall decide in a referendum whether they want a two-state solution with a theocratic state in the North and a secular state in the South."

Who is entitled to the right? While the DOP refers to the people of South Sudan, the SPLM/SPLA maintains that the Nuba Mountains and the Ingessina Hills, as well, should have such a right. With regard to the Ngok Dinka of Abyei in Southern Kordofan, it suggests that before the end of the interim period they should decide in a plebiscite whether they want to continue to be administered as part of Southern Kordofan or to be amalgamated with Bahr El Ghazal. If they opt for the latter alternative, then the Ngok Dinka should have the right to participate in the referendum for self-determination.

The GOS maintains that the right should be confined to the South according to the 1956 boundaries. The Asmara Declaration, on the other hand, in somewhat equivocal language, adopts a stand more or less similar to that of the SPLM/SPLA. The GOS/Umma Djibouti Declaration, however, restricts the right of self-determination to the South with its 1956 boundaries and calls for redressing the inequities suffered by the Nuba Mountains and the Ingessina within the framework of a united Sudan.

The length of the interim period The parties also maintain different stands with regard to the timing of the referendum. The DOP leaves the matter for discussion. While the GOS argues that that should depend on the amount of preparatory work to be accomplished before the right can be properly exercised, the SPLM/SPLA consistently favours two years as the length of the transitional period preceding the referendum. Nevertheless, at a recent meeting with a group of Sudanese intellectuals arranged by the Washington based Sudan Democratic Forum, Dr. John Garang advanced the idea of a transitional period featuring a confederation to be followed by a referendum at which the Southerners would choose between a united NEW SUDAN and complete separation. The choice, he said, would depend on whether or not the GOS, during the interim period, agrees to the separation of

religion from the state, respects the equality of races and cultures and protects basic human rights. With regard to the length of the intervening period, the Chairman of the SPLM/SPLA said that as a believer in a united Sudan, he would prefer a fairly long period which, he believes, would give unity a chance. The Umma Party, it will be recalled, agreed in the Chucudum Agreement that the transitional period should not be less than two years. However, the Djibouti Declaration prescribed a period of four years. The Asmara Declaration is silent on the issue.

The Options available It has already been noted that the parties are not ad idem on whether the DOP postulates an absolute or a conditional right of self-determination. Moreover, assuming agreement on this major issue, we are faced with wide divergence on the options available for participants in the referendum. The DOP simply envisages a choice between independence and the South continuing as a part of a united Sudan. The SPLM/SPLA, persistently representing confederation as a variety of unity, regards the options available as federal status within a united Sudan, confederal status within a united Sudan and independent statehood. At the recent Washington meeting just referred to, however, Dr. Garang put the choice as one between complete separation and a NEW United Sudan, which he presumably regards as essentially federal.

The GOS, on the other hand, strongly objects to a confederal arrangement, maintaining that confederation can only exist between independent sovereign states. The Asmara Declaration, on the other hand, adopts SPLM/SPLA’s enumeration of available options, expressly describing confederation and federations as forms of unity. The Umma Party pledged commitment to this regime of options in the Chucudum Agreement which calls for the establishment of a confederal state in the South during the interim period at the end of which a referendum is held to opt between confederation, federation and independence. Nevertheless, the Djibouti Declaration offers no more than a choice between separation and "unity based on an agreed scheme of distribution of powers between the centre and the states."

Part III: One Country, Two Systems

The Various Scenarios When the parties reach a definite agreement with respect to the duration to precede the referendum for self-determination, the options to be put for voting, etc., they should begin to prepare for it. Theoretically, a referendum for self-government should make it possible for the voters to opt for the continuation of the status quo, federation, separation accompanied by a confederal arrangement or separation without more. In view of the genuine grievances over decades-long deprivation of social services and chances of economic development, fear of cultural subjugation and the tragic effect of the civil war, the Southerners can hardly be expected to vote for continuation of the present legal framework of North/South relations. In the meantime, it would be somewhat irresponsible on the part of the politicians to offer an option of separation unaccompanied by an arrangement that would provide mechanisms for the regulation, management, utilisation and equitable sharing of the common natural resources: the Nile waters, grazing land and oil. It would, therefore, appear as though federation and confederation are the really feasible options. Be that as it may, there is no justification for viewing the result as a foregone conclusion. In particular, those whose think that the referendum will necessarily lead to confirmation of unity, may well be in for a grave disappointment. The final word lies with the voters and the outcome would, therefore, depend partly on the length of the period preceding the referendum and, to a large measure, on the performance of the parties during the transitional period. If they conduct themselves in a way that gives reason for hope for peaceful coexistence on a footing of equality, respect for religious and cultural identity and genuine commitment to democracy, human rights, liberalism and development, the referendum may well lead to the preservation of the country’s integrity on the basis of a federal system.

I proceed to deal, in the remaining part of this paper, with the various scenarios for the future legal framework of relations.

Scenario 1 This scenario postulates the present regime’s hold on power as a fait accompli and is, therefore designed to accommodate both its insistence to an Islamic state and the SPLM’s declared pursuit of a secular, modern Sudan. Commitment to these goals reflects the two party’s view of their national identities: the one Arab/Islamic and the other a melange of Africanism and Western orientation. The GOS would like to preserve the unity of the country without abandoning its so-called Islamic agenda. It, therefore, advocates an arrangement based on a constitution federal exhibiting prominent religious features. That constitution would include a provision that makes the Shari’a and custom the sources of legislation but otherwise purports to mete out equal treatment to religions. Not being a secular constitution, however, it would require persons working for the state or engaged in public life to "worship God in their daily lives; for Muslims this is through observing the holy Quran and the ways of the Prophet, and all people shall preserve the principles of religion and reflect this in their planning, laws, policies and public work... towards achieving the salvation of the Kingdom of God." In the meantime, the constitution advanced by the GOS would guarantee the freedom of religion and worship, and the right to establish religious institutions. It would also not require the head of state to be a Muslim. While welcoming this concession, the SPLM wants an out-and-out secular constitution and would have nothing to do with the Shari’a as the source of legislation.

This scenario, which offers preservation of the country’s unity on the basis of a federal constitution, can be feasible on the following terms:

1. The GOS accepts a federal constitution that makes no reference to the Shari’a as a source of legislation, and prescribes no condition for the validity of laws other than compliance with the constitution. In the meantime, a state constitution may, if it is so decided by its founding fathers, make Islam, Christianity or custom a source of legislation.

2. The SPLM agrees that power over foreign affairs, the currency and the national armed forces vest in the centre and not in the states. This is a condition precedent for there being one sovereign state; without it the Sudan would, in effect, emerge into the international arena as two sovereign entities.

While the SPLM would have to relinquish its claim for entrusting such powers to the states, it may well press for jurisdiction over matters usually vested in the centre, e.g. to enter into bilateral treaties with foreign states in relation to trade and commerce, education, etc. With patience, courage and vision, it should be possible to agree on a list of distribution of powers that suits the peculiar nature of the historic and geographical relationship of the two parts of the country. The arrangement proposed by this scenario has the advantage of preserving the unity of the country, while enabling the Southerners to establish a modern, secular, democratic state, enjoying extensive measures of independence from Khartoum, but otherwise within the framework of a federally united Sudan. However, it suffers from a major disadvantage by condemning the people of the Northern Sudan to a theocratic constitution and laws which are inconsistent with fundamental human rights and well established norms of governance.

Scenario 2 This scenario is also based on the assumption that the NIF regime is a fait accompli but envisages that no agreement can be reached on the disputed issues discussed above. In such case, maintaining the unity of the country within a federal framework would be impossible, and the SPLM would have no alternative but to press for secession. If it does, there is hardly any doubt that the voters would go along with its ultimate object. The South would emerge as a separate sovereign entity, completely independent from the North. The NIF would continue its so-called Islamic project.

There remains, however, the problem of devising mechanisms for serving common interests, reducing the risks of friction and settling disputes speedily and effectively. In some seasons, the Dinka of Bahr el-Ghazal, the Misseiriyya of Kordofan and the Rizeigat of Darfor are compelled to share the use of common grazing areas. In the past,

disputes between these tribes were settled by tribal chiefs, fairly speedily and effectively. But it would be a different situation in the setting of two separate states; clashes over grazing land recently precipitated war between Asmara and Eritrea. But in addition to grazing land Northern and Southern Sudan have a common stake in the Nile waters and oil. The confederation proposed by the SPLM seeks to set up hortatory central organ, with practically no power. It is suggested that more effective bodies would be needed to oversee the management, utilisation and equitable distribution of common national resources and for effective settlement of any disputes that may arise. Such bodies may include foreign members and arbitration tribunals.

Such confederal arrangement has the double advantage of enabling the South to establish a modern, liberal democratic system, and at the same time, providing mechanisms for managing common interests. Like the arrangement suggested by scenario 1, however, it has the disadvantage of condemning the Northern to fundamentalist and divisive rule.

Scenario 3 Rather than postulating a lasting monopoly of political power by the NIF, this scenario envisages the eventual realisation of the will of the majority to restore democracy and establish a modern, liberal Sudan in which Southerners and Northerners co-exist peacefully on a basis of equality. This would necessitate a federal constitution that accords both of them an extensive measure of autonomy in running their respective affairs, on the basis of an imaginative regime of distribution of powers. As in scenario 1, the SPLM would press for wider powers than federal constitutions usually give. But once unity is maintained by vesting foreign affairs, the armed forces and the current in the centre, it should be possible to agree on lists of power distribution that meet such aspirations. While residue legislative power would vest in the states, the exercise of current power may result in conflict between the federation and the one or the other state. The Indian constitution which, incidentally, reserves the residual power to the centre, provides that in case of conflict in the exercise of a concurrent power, the Union legislation, whether it is promulgated before or after the state legislation prevails. Presumably this would not be acceptable to the SPLM. A solution may be found in

giving the Southern state legislation precedence, absolutely, or in case it is passed after the federal legislation.

The stipulation that the Shari’a shall be the principal source of legislation would present a more intractably problem. Such a stipulation did not figure in the independence, or the 1964 constitution, but appeared for the first time in the 1968 draft constitution. Since then it has paved the way for passing hudud and qisas punishments, banning bank interest, segregating and humiliating women, and other laws not fit for application in a modern, liberal society. Sayyid Amir Ali and Muhammad Igbal in the Indian sub- continent, Jamal al-Din al-Afghani and Muhammad Abduh in the Middle East and other Muslim scholars have put a liberal construction on the Islamic divine texts. Basing themselves on the natural justice content of the Quran, set forth in more than 500 verses enjoining mercy, compassion, tolerance and justice and shunning cruelty, injustice and oppression, these liberal scholars view Islam as perfectly consistent with liberal democracy, human rights and other norms of governance. But this is poor consolation for the Southerners, since before their own eyes Islam has been interpreted differently. Yet reference to Quranic principles and norms of justice, compassion and good conscience would impart to the constitution an impress of originality and help refute any accusation of mimicking Western institutions. The following alternative formulations are suggested for further consideration:

- The Quranic norms and principles of justice, compassion...shall be a principal source of legislation. - Subject to the provisions of the constitution, the Quranic norms, etc, shall be a principal source of legislation. - The norms and principles of justice... etc. enshrined in the Quran and the New Testament shall be a principal source of legislation. - Subject to the constitution the principles of justice... etc. enshrined in the Quran and the New Testament shall be a principal source of legislation. - Subject to the constitution, the public interest and custom shall be the [or "a"] principal source of legislation.

b. Summary of the Discussion

1. Two central issues in the Sudan are whether one can talk about a viable Sudanese state and whether the country is governable under the present circumstances. If the state in the Sudan is unstable how can it survive? It is very clear from the current nature of the points in this paper that we are still faced with this question. There is also the issue of partial state collapse throughout the country. I am struck that within the current peace talks constitutional issues are very much to the fore. This is partly due to the failure of constitutionalism and the unworkability of central power. There is no constitutional assembly to talk of a more inclusive constitution. The parties of Sudanese politics, the NDA, and the Government of the Sudan should be treated as parties rather than as sovereign entities. Constitutional issues are central to peacemaking. We might think of transition before constitution – here we are doing it in reverse – thinking of constitution without the notion of transition. We need the starting blocks of transition before constitution can take place.

2. The framework presented in the paper brings to the fore the issue of federalism between two regions rather than federation on a national basis – more like the US or Nigeria – perhaps Nigeria is a better model – because there is administrative federalism rather than democratic federalism. Other important issues to consider are the status of the armed forces, the currency and foreign relations under such a framework. These can be seen as a package or as distinct features. Using the EU as a comparison, currency has thus far been the foremost issue since the European Monetary Union was launched. The armed forces and foreign relations have only limited co-operation so far. The confederal drift of the EU compared with Sudan is that in the EU states are coming together to form a relationship. In the Sudan, however, it would be a moving apart of North and South on these issues - therefore the issue of armed forces stands out as a critical issue. The currency would be no less important and would be related to the economic situation, especially water and oil because they will underlie any policy adopted. We saw the difficulties in Eritrea and the importance of this issue there. Foreign Relations – this cannot be underlined too strongly. Relations with other states are absolutely vital to the Sudan. The state of Sudan is crucial to its neighbours. There is interdependence between states. Success or failure could be based on anyone of these three issues – weak currencies / armed forces / different foreign policies regarding neighbouring states.

3. Secession is another important theme, especially in light of the experience of Somaliland. We should look at the attitude of the international community which was prepared to accept the de facto situation. The Somaliland case shows that not only unilateral acceptance is required but also international acceptance. All neighbouring states have to agree to it – not just Egypt. As we see in the conflict between Ethiopia/Eritrea, separation can also be a start of problems. Therefore there is great caution in the international community and not so much enthusiasm for secession. Self-determination in Southern Sudan is part of the colonial inheritance from the British policy. The Eritrean case was argued as a colonial issue. However, Sudan’s case is not as strong in colonial terms as was the case for Eritrea.

4. Other important issues are the border areas of North and South and that of other marginal areas – to what extent do they have the right of self-determination? Is self- determination applicable in Darfur and the Nuba mountains, Equitoria and the Ingessina Hills? The parties have accepted the principle of self-determination – but for who and where? Darfur was independent until 1916 – they became part of the Sudan through conquest. What about the Nuba mountains and the Ingessina Hills? The minority is ruling the majority in the Sudan. Will the latter be given a chance to govern themselves in a democratic manner? Sudan must correct these mistakes and the majority must not rule the country. Sudan needs to have one state otherwise there will be ongoing tension with the North. We cannot go back to the Addis Ababa Agreement because people do not want to go back autonomy. They want to have new laws for the new Sudan; and every Sudanese should be involved in drafting them. If we have new laws in the Nuba Mountains and other regions, they will resolve the conflict in the country.

5. The issue of duration of the interim period is also important. Two years would give you time to make the arrangements after which self-determination could take place. The issue of internal and external displacement is huge – and complicates the self- determination exercise. Fighting would need to stop prior and during the transition period. In Eritrea, the referendum on self-determination took place three years after the fall of the Dergue regime. If you took four years what might be done in the interim? There are no guarantees of the outcome of the referendum. Four years could make the prospect of unity attractive. The resource base would be more available in the event of peace – more so than in war. If the period before self- determination is to be attractive then the politicians’ performance is vital.

6. Attempts should be made to try to separate performance of politicians from economic opportunities. There are mechanisms that can be put in place to help this. The performance of politicians needs to improve and personal wealth creation must be separated from this. Unless their performance is improved then there will not be an open opportunity for the new Sudan. Instead, there will be two unstable states.

7. What will be the character of the two systems and the character of the one state – army, currency etc? Security has been used to control us – this has been a difficult area. Will the one state have one army, one currency, one religion, one identity etc.? Is the GOS ready? Will it give up all it has in order to become one state.

8. There are two schools of thought in the Sudan: First, the Sudan is a creation of British imperialists. If Sudan diverts from the British policies then Sudan will die. Second, that there is a real Sudan with its long and rich history. It therefore deserves to continue. The biggest Southern community is in Khartoum itself where there are between six to seven million people including more than one million Southerners. Many Southern Sudanese were born there – there is now a second generation of these people. 74 percent of Sudanese are less than 40 years old. The internal dynamic of a new generation is now coming out. Sudan will not easily be

restructured from outside – it will be restructured gradually and internally. The internal dynamic should be seventy percent and the external thirty percent.

9. The Arab Islamic State has always been the perception of the Sudan. We are suffering from an identity crisis – we do not know how we can all fit in the way Sudan is perceived to be. Any state which is inherently based on a particular culture is bound to fail – in that case, rule will be dependent on conquest. What should the customs be? What principles will they be based upon? The current ideology is very aggressive. No political, legal or moral argument can come from it. It will not accommodate the diversity of the Sudanese people. Southerners are not separatists but they have been pushed against the wall. There is no constitutional agreement in the Sudan. The North needs to realise that the political system based on race and religion needs to be addressed before we enter into negotiations. We need to try and devise a constitutional system which can accommodate all the diversity of the Sudan. How can Northerners come out of their misperceptions? How can our ideology reflect the reality of the Sudan?

10. We should be free of the thinking of what is mine is mine and what is your is ours. Unless we are free of that then we will not move forward. The USA has different colours living together including the Secretary of State, Colin Powell. It is a country where people are united despite their race and religion. Unless we are willing to make compromises then there will be no movement forward.

11. An alternative title for the paper could be ‘One Constitution, Two Legal Systems.’ The Southerners need to be given the decision of whether they want to separate or stay together. There must be a transitional period during which the negative aspects of our current situation are abolished. This would enable people to vote more clearly. A long transitional period is essential. If the Southerners then want voluntary unity then we should incorporate the diversity of all areas of the Sudan. Decentralisation is an option which could be stipulated in the constitution. There should be unity for the benefit for the people with agreement on legal, administrative and social services. All this could be under one sovereign state with a streamlined constitution.

12. The question of identity has been raised – and will continue to be so. Arab / Islamic identity versus Arab / Christian identity. In the Western, especially American press, the situation is so polarised. The present regime is professing the intention of transforming the identity of the country – they want to make it more Islamic and Arab. I think Islam is a wonderful system but some people interpret it narrowly and literally and they disfigure it. More than one identity can co-exist – we can have Sudan with more than one identity. The Scottish identity is different from the English one. In Canada, the English and French identities exist together without problems.

13. The South has genuine grievances – very few Northern Sudanese will admit that. We are grateful that you have admitted that as it enables the situation to be different. The heading: ‘One Country, Two Systems’ was conceived when Britain had to hand

over its former colony of Hong Kong to the Chinese. They wanted the system of administration to continue and not to be submerged into communist China. This is far from our situation. The Sudan has been known as the condominium of Britain and Egypt. Three powers have been colonising one nation – the British and the Egyptians came, recruiting the Northern Sudanese as their helpers. The children of these people got an education before the others. They became residents of the towns and had a different salary scale. When we got independence these people took up the reign of power, considering themselves the inheritors of the polity.

14. The first time that the Anya Nya showed its willingness to enter into talks it was after the 9th June declaration which stipulated that the Southern Sudan is a distinct territory and the people there differ from the rest of the Sudan culturally. In the past, the North rejected political union – rather the North wanted to administer us like their colony. If we are separate then we have a right to separate rule. When we entered into serious discussions we concluded the Addis Ababa agreement, where the South chose the right to self-rule. With time this agreement was rebuffed in Khartoum – the Southern vice-president was relegated to third place and a Northerner appointed as first vice-president: this showed us that things had not changed. An interim arrangement that was drafted suggested rotating leadership, regional governments in the South and a regional government in the North for the six provinces. The agreement stipulated that common authority could be shared and the appointment of the Prime Minister could be agreed together. There are a number of key ministries in the Sudan – interior, foreign office, education, finance and others. They should be divided among the deployed amongst Sudan. If such reforms are put in place, this may lead to the South voting in a referendum in favour of unity.

15. The practice of abduction arises out of cultural and social phenomenon. Some are unique; some appear across all Africa. We need to avoid terms like secular or theocratic – they are too controversial. In Norway Christianity is the religion of the kingdom, in particular the evangelical church. In Ireland the church and state are together. In the UK the Queen is the Supreme Governor of the Church of England. Separation of state and religion is not realistic. In Morocco Islam is the religion of the state. There are many possible scenarios and we are for one country and for one nation. We want a peaceful solution. We can live together in unity – we need to negotiate all the details. If we have a federal constitution – it will create more problems than the existing ones.

16. If religion was applied as it was intended there would be no problems in the world today. Islam is being used to make the situation in the Sudan unbearable. We need to shed our origins. We need to create a conducive atmosphere for the people to make the choice of what is right. The length of the transition period needs to allow time for this. South Africa took two years to negotiate the constitutional arrangements. You will not need that long. Their apartheid had lasted 350 years.

17. We are trying to reach a political agreement. The Southerners have been fighting since 1965 except for the cease-fire brought out by General Lagu in the 1972

Agreement. Northerners do not expect to be sacrificed in a settlement. We need to separate religion and state. This is not an intellectual exercise – people are dying. 1.5 million people have died because of the war in the Sudan and four million have been displaced. The window of opportunity is open now because of 11th September. Let us sit down and really talk about these issues. If we agree to live together then we can discuss choices; if we continue talking about how bad x or y is, it is a waste of time. I fully subscribe to the view to look at the world as it is. The author has clearly proposed that the situation needs a solution from the fact that there is one country. Federalism is good for all of the Sudan but the South is a special case.

18. It came out clearly that there is a consensus on self-determination. All regions must define self-determination clearly and show where we are heading. People speak but they are not moving. If secession becomes our preferred option then you must be prepared for that. You can not imagine the responsibility that the women are shouldering in this war. Women’s babies die on their lap. If they go away to find help then they find their other children missing on their return. Even the commanders of the army have found that their families are no longer there. Then why do we not wonder what we are fighting for? Do we want to fight until we have three quarters of our people traumatised?

19. There are major points of agreement emerging from this discussion. All of us agree that the Sudanese are suffering now. Until recently we were not agreeing to this. The Government could not always see this. They could only see the economic growth. All of us agree that dialogue is more important than war.

20. The Asmara Declaration established powers between centre and regions. There is need for this. However, attempts to apply this have been unsuccessful. There have been difficulties over regional finance and economic activity. The national constitutional conference will decide the final number of unions and establish their financial viability. Our experience of decentralisation has so far failed because the regional units have been financially disabled. What is required? • Establishment of federal state • Number and boundaries rationally considered • Earmarking regional finances • National property and resources, but allocation to the regions concerned • The central government can have final power

3. Constitutional Arrangements that Offer Greater Autonomy than Federation, Including Secession by Dr Peter Nyot Kok a. Paper Presented by Dr Peter Nyot Kok

Executive Summary

A constitution is a covenant that expresses and codifies the national consensus on the fundamentals of governance in a given country in a given time. By “national consensus” I do not have in mind unanimity. I have in mind a general agreement by the social forces in a country that are capable of initiating and sustaining conflict on the fundamentals of governance such as the nature of the state, the system of rule, basic human rights, principles of socio-economic and legal justice and how to handle dissent.

The Sudan has not had a constitution of national consensus since before independence. Can it really achieve a national consensus on the fundamentals of governance? If the answer is yes, then where do we go from here? Part of the answer is provided by the Declaration of Principles (DOP), the basis of the IGAD mediation in points (3) and (4). The other part of the answer is provided by the Sudanese political forces agreement on self-determination in over 12 different agreements, declarations etc. since 1992 up until the present day.

In the last consultation, I submitted a paper with the title “The Politics of Self- Determination in the Sudan: Between Strategic Admission and Tactical Avoidance”. That paper shows that the Sudanese political forces have agreed on a formula for resolving the conflict, but some are working very hard to avoid implementation of that formula. This paper examines that consensual formula and concludes that it is still the only way out and forward.

Introductory Remarks

A constitution is a normative and operation code that embodies the national democratic consensus of a people on the fundamentals of governance. Whether such a code expresses arrangements that can be labelled as a federal, unitary, confederal or decentralised system is sometimes a matter of packaging, a question of short-hand, or a technique of public relations. Nevertheless, there are identifiable differences between how federal states, states such as the USA, Canada, Malaysia, Australia on the one hand, and unitary states such as Egypt, Libya, Zimbabwe and Chile on the other, are organised and governed. No two federations or unitary states are exactly alike. Details, like actions, speak louder than words. Accordingly, the essence of constitution-making lies in the details. This axiom is happily the very opposite of Napoleon’s axiom that the best constitution is the one that is short and obscure.

A decentralised constitutional set-up can ill afford brevity, much less obscurity. Powers must be clearly spelt out as between various states and state organs. Residual powers must repose in either the constituent states or the central authority. Individual basic human rights must be clearly recognised as having universal validity. Separation of powers and functions must not only ensure a system of checks and balances but must prevent the original evil against which the principle of separation of powers was first devised: prevention of despotism through accumulation of absolute power in one organ, person or branch of government.

In practice, a constitution that represents a functional consensus is, it is said, like a rose. It lasts as long as it lasts, which is not that long. Sudanese constitutions have been like that. In fact, Sudan started with a transitional constitution which set a world record by resurrecting twice (1964 and 1985) after dying twice (1958 and 1969). At one stage, the Sudan adopted what it called the Permanent Constitution. This constitution rested on a broad but delicate consensus based on: a one-party presidential system, secularism, a liberal economy, regional self-government for the South, constitutionalism. The regime imploded in 1985 when an imperial Presidency undermined constitutionalism in

September 1975, undermined secularism in 1978/1983 and regional self-government for the South in 1980/1983. Subsequent attempts at constitution-making in 1985 and 1998 did not obviously aim at producing a constitution of national consensus. No constitution of national consensus can be made in the middle of a civil war when one party to the conflict is not a party to the constitution-making process. In fact, the search for peace becomes actually the search for a constitution of a nation. Hence, such a search must be imaginative and must examine unorthodox arrangements which should not be dismissed simply because they have never been tried before.

The Failed State

The history of state-formation in the Sudan is by all accounts a sad one. At present, we have a failed state. Its characteristics are: a state that has been, and is still, at war for 36 odd years out of 46 years of existence as an independent state; a state characterised by structural socio-economic and political injustices. These injustices manifest themselves in dysfunctional disparity in levels of socio-economic development, access to the means of projecting culture and identity, and access to state power. The recently published Black Book is not only about racio-regional disparities in access to state power, but is about how hegemony is built and maintained. The building of a class, clan, sectional or tribal hegemony has an inherent logic of marginalising others and it also lays the foundations of the future for structural injustice. Structural injustices constitute a time bomb that can explode in the near or distant future but explode it must unless it is defused in time.

An additional manifestations of a failed state are: regime instability, the shrinking authority of the central government, rampant corruption, impunity in looting of public property and cynical manipulation of state organs, especially the adjudicative and legislative organs.

Given the existing structural injustices and the failure of the state, it is the thesis of this paper that federalism and regional autonomy, which might have been effective responses to the Sudanese malaise at one point, are ineffective today.

Take federalism. In most developing countries, federalism is supported to confer the following four main advantages:- 1) It defuses dysfunctional cultural, racial and social heterogeneity by providing constructive outlets at the state even at the national level. 2) It compels distributive socio-economic justice by ensuring that each constituent state has the means to support an administration which provides services and development. Furthermore, the central government feels morally, if not politically obliged to “have a project” in each state or combination of states. 3) It enhances constitutionalism – i.e. governance that abides by procedure, human rights, and the rule of law and effective participation of citizens. In fact, a federal constitution is a detailed contract of distribution of powers refereed by the federal judiciary. Hence it has supposedly a built-in system of limitation of powers. 4) The central government institutions, organs and processes are supposed to fairly and faithfully reflect the federal or the decentralised character of the country.

A closer examination of the existing set-up of “federation” in Sudan does not secure the advantages listed above.

For a start the central government still retains powers that usually vest in the states in federal countries: the power over the police, prisons, wildlife etc. The present federalism cannot defuse dysfunctional ethnic, religious and cultural diversities. On the contrary, the present system has accentuated them. Its “civilisation project” i.e. Islamisation of the Sudanese state and society, as a pilot project for the rest of Africa, has produced a backlash. Other groups have begun to re-assert their cultural identities or to seek protection in less threatening cultural matrices. Historically, attempts to establish an Islamic state in the Sudan have never enjoyed a national consensus.

Secondly, the present “federalism” cannot compel distributive socio-economic justice. On the contrary, it has reinforced the dominant positions of the already privileged region i.e. the central Sudan. It has intensified the war, renamed jihad, for more effective mobilisation and inspiration of some Moslems. The intensification of the war has further impoverished the marginalised areas which were the historical victims of structural injustices. In a bizarre irony, the strategic resources of the marginalised areas are being harnessed by the central government to prosecute the war to subjugate these very marginalised regions. Hence, the developmental advantages associated with federalism are not obvious, at least in the areas that were supposed to benefit from federalism.

Thirdly, the benefits of constitutionalism are also lost by the totalitarian nature of the regime. The limited and tightly controlled liberalisation measures taken by the regime in recent years are their tactical responses to internal and external pressures. These measures constitute neither a change of mind, not a change of heart. At best, they are a change of style. To the extent that change of style promotes people’s struggle for justice and democracy, these changes cannot and must not be ignored.

Fourthly, the central government organs and institutions do not fairly and faithfully reflect the “federal” character of the state Government portfolios in charge of defence and security, finance and economics, foreign affairs are still a preserve of a particular ethno-regional group. The composition and orientation of the organised forces are anything but “national”.

The 1998 Constitution

Under the present constitution, the freedom of the State to choose their chief executive is undermined by the power of the President to nominate three people from whom the State must choose [Art. 56(4)]. The President can appoint the State Governor [Art. 57]. No provisions for consultation are made. Powers over the police and prisons which in most federations repose in the State are exercised by the federal executive [Art. 110(a)]. The

President has vast powers of dismantling the state administration during a state of emergency [Art. 132].

Generally, the present “federalism” of twenty-six states can be seen as creating bantustans or nilotestans if you will, at least in the Southern Sudan. It accentuates the creation of tribal or sectional administrative units linked to Khartoum. It obviously discourages institutions and processes of integration and co-operation among Southern Sudanese States. The argument that the North is also similarly divided misses that point. State-formation under the Egyptians, the Mahdiyya, the Anglo-Egyptian Condominium rule, and successive Sudanese regimes has integrated much of the geographical North in terms of socio-economic cultural and psychological outlook. The South needs state power to consolidate its identity whose trajectory must be freely determined by the Southerners in order to agree with the representatives of the North on a constitution, even for a specified interim period, the Southerners must reach a consensus on how to govern themselves. An in-house consensus by the South on their governance is an urgent and important duty with the South can no longer postpone.

The Confederation Option

That the Sudan is a failed state, a civil war state, stricken by structural injustices the rectification of which calls for solutions beyond simple decentralisation, leads to the an examination of the other options beyond federalism.

The SPLM/A has submitted a confederal scheme in the IGAD mediation of 1997. Ideas have been exchanged on issues such as wealth-sharing. No consensus has been reached by the warring parties.

In my article “The Politics of Self-Determination in the Sudan: Between Strategic Admission and Tactical Avoidance” – I listed various agreements concluded by Sudanese political forces on self-determination. A consensus has been obtained on the right of the Southern Sudanese to self-determination – to be exercised before the

effluxion of a fixed interim period. The Declaration of Principles (DOP), the cornerstone of IGAD mediation, has generally been accepted by the Sudanese political forces. Can a confederate Sudan be an accepted set-up during an agreed interim period, to be followed by a referendum to choose between an independent South?

The present “federalism” of the government, as we have seen, is inadequate to resolve the issues that need to be redressed. A model confederation does not exist. Indeed, the example of confederation is the American Confederation of the thirteen American colonies which were bound by the Articles of Confederation in 1781. That Confederation was in fact a league for the war of independence. It was a central petal confederation in which each “colony” kept as much power as it could retain. Congress was more like a meeting of ambassadors from separate countries than a meeting of a parliament. The States were extremely jealous of their rights and privileges. The Articles of Confederation were successful for the war period.

This confederation later transformed into the U.S. Constitution by the Philadelphia Convention in June 1788. The U.S. Federal Constitution became law when it was ratified by nine states. It was a written constitution in contrast to the British unwritten constitution. It chose to strengthen the federal government by vesting powers on foreign affairs, inter-state commerce, war and currency in the federal organs. The States themselves were to be represented in this federal (central) government. Note that the empowerment of the Federal Government was a matter of consensus among the states, not a matter of imposition or historical construction. Second, representation of the States in this federal government was addressed right from the beginning. Indeed, the main differences between the Articles of the Confederation of 1781 and the Federal Constitution of 1788 lay in the shift of consensus. In 1781, the consensus among the thirteen colonies was to have a “weak centre” and strong states, but to endow the centre with enough powers to successfully prosecute the war of independence, which it did. In Philadelphia, the consensus was for a “strong centre” to consolidate the union and protect the independence. In both cases, the primacy of consensus was maintained. This is my view, is the main lesson of the American experience.

The Swiss Confederation (Confederation Helvetica) originates from the 1291 Confederal Pact. The first Federal Constitution of 1803 was replaced by a Federal Constitution of 1848. After a number of amendments, a total revision resulted in the Federal Constitution of May 29, 1874. Another total revision of that constitution led to the new Federal Constitution (December 1998).

The Swiss experience is extremely useful to any country that would like to confer wide powers of autonomy to the States, including powers for cultural and linguistic autonomy. Switzerland provides extensive participation rights of the people in decision-making. Popular initiative and referenda are guaranteed. Of interest is Title 3 which regulates relations between the confederation, cantons and municipalities.

The confederation exercises powers conferred upon it by the constitution; it also exercises powers on matters which the Cantons cannot afford to. Residual powers are the preserve of the cantons.

The German Confederation of 1815-1867 can be useful in the area of military organisation. Although various principalities retained their own armies, there were arrangements by which these armies could aggregate for common defence or offence.

One State, Two Systems

The first question raised by this construction is: is this arrangement just for the transitional period or is that the final and permanent arrangement? When it was first used in the ICSS by a group of eminent people, it was envisaged for the transitional period. To be sure, the Addis Ababa Agreement was an example of two systems in one country: a vigorous and vibrant parliamentary democracy in the South, with an Imperial Presidency and one-party regime in the whole country, and a centralist administration. As usual, details, rather than headlines matter a lot. The One State Two Systems covers the Addis Ababa arrangements to a true loose confederate with a “true” federation in between. This arrangement still keeps open the question of self-determination which has widely been

accepted by political forces in the Sudan. If the political forces in the Sudan cannot honour their position on self-determination, how can they keep their undertaking on other arrangements with the Sudan?

A one state, two systems construction confined to the interim period, with the exercise of the right of self-determination by the people of the South before the end of interim period merits a serious examination. Matters of concern such as oil, water, trade, property rights etc. can be discussed during or even after the interim period.

Blocking the Exercise of the Right to Self-Determination

The fixation on the unity of the country by most Northern Sudanese makes them oblivious to the real danger which is not separation, it is injustice. It is the historical and present political, economic social and cultural injustice that gave rise to the conflict which has cost lives, brought about misery, displacement, massive emigration and demands for separation. The role of the government of the day in the perpetration of injustice cannot be over-emphasised. To date, one does not see a sustained and sincere effort to redress the injustice. On the contrary the focus is on preservation of the unity of the country. Unity in injustice is untenable.

There is demonstrable opportunity for achieving justice and unity of the Sudan. This opportunity is provided by the DOP’s formula: a highly decentralised system, a constructive interim period, and an exercise of the right of self-determination for the people of the South in an atmosphere of freedom and fairness.

Conclusion

A lot of work has been done on power sharing that confers more powers on the states that exceed conventional powers conferred by a federation on the states. The Asmara Declaration is an asymmetrical confederation in which the South have wider powers including powers over oil resources, certain areas of foreign policy and military and

security arrangements. The Declaration event dealt with the issue of self-determination in an innovative, bold manner. However, the Declaration needed more elaboration. Secondly, it needed space for its implementation i.e. the NDA has come to power for it to implement the Declaration. Thirdly, some parties in the NDA began to have second thoughts on self-determination which appear to have been their first and not their second thoughts. Again the question of the willingness of some parties to abide by agreements began to arise. The NIF government record on undermining the 1997 Khartoum Agreement has confirmed the Southern Sudanese fears that political forces in the North will never deliver what it take to resolve the problem. However, there are signs that changes in the international and regional situation have provided windows of opportunity for a settlement that secures peace with justice. But as long as third party mediators allow the parties to the conflict to renegade with impunity on their covenanted undertakings, there can be no settlement, let alone settlement based on peace and justice.

Bibliography In preparing this paper the following works, amongst others, have been consulted.

1. Wai, Dunstan, 1972, The Southern Sudan: The Problem of National Integration. Frank Cass, London

2. De Waal, Alex, 1990, War in Sudan, An Analysis of the Conflict. London

3. Alier, Abel, 1990, Southern Sudan: Too Many Agreements Dishonoured. Ithaca Press, Exeter.

4. Author unknown, 2000, The Black Book: The Imbalance in the Distribution of power and wealth in the Sudan

5. Khalid, Mansour, 1990, The Government They Deserve: The Role of the Elite in Sudan’s Political Evolution, Keegan and Paul International, London.

6. Kok, Peter, 1996, Governance and Conflict in the Sudan (1985-1995) Evaluation and Documentation. Hamburg

7. Hill, C.P, 1966, History of the United States. Camelot Press Ltd. London.

8. Switzerland’s New Federal Constitution, December 18, 1998

9. Anyang, Nyong’o (ed), 1993, Arms and Daggers in the Heart of Africa: Studies on Internal Conflicts. Academy of Science Publishers, Nairobi.

10. Boden, David, 1974, Underdevelopment and Rebellion in the Sudan. Geographical Review, Vol. 45.

11. Umboda, Siddiq, 1989, Education and Mismanagement of the Sudanese Economy (1954 – 1989). Mimeograph material, DRSC, University of Khartoum.

b. Summary of Discussion

1. There is problem of injustice in all parts of the Sudan. GOS has admitted the problem. There is an imbalance in development, with past marginalisation and the disenfranchisement of the population. A host of factors have contributed to this situation but they can be tackled. Other problems have tagged along with the main one being justice and they are just obstacles in the way of a settlement. We need to concentrate on the constitution and to create one that is acceptable to all. Let’s talk about a Sudanese constitution not an Islamic one or a secular one; that is for the citizens and Sudanese people. One that deals with rights and freedoms of all. All should feel free to practice their citizenship and religion without having to coerce others to profess the same faith. This is not hard to achieve and the aspirations of the North and the South can be brought together.

2. In a federal state, powers can be maintained by the states but enough power should reside at the centre to maintain unity. A federal arrangement is something all sides seem to be talking about. This in not something most people come to easily but it is commendable that all constituencies are looking into it carefully. The GOS wants to maintain as much territory as it can and this is not a crime. The crime would be if it were achieved at the expense of minorities and at the expense of justice. Let us agree on the nature of federal arrangements for all states of the country not just the South. This would expose those in the North who are using the South as a shield so they can maintain Shariah or whatever political identity they have. The people in each state should vote for what they want. If the Muslims vote to form their criminal law from Shariah then others should not be upset. The criminal law should reflect the wishes of the populace in the state. Reaching an agreement is impossible and the challenge is for us all. The GOS is pursuing different options and producing documents to suggest ways of doing this. Wealth and power-sharing formulae have been discussed at workshops even though the official negotiations have been suspended. Now there are other games in town such as the Danforth Initiative and this consultation.

3. A final agreement is not something to be dived into without thought. We need to prepare things properly as there are serious consequences for the country. However, we must not drag our feet, as people are dying each day. We need a cease-fire and quick-paced negotiations until we reach the point of the referendum. I am encouraged that author feels the South will want to remain part of Sudan. We need to give the people a clear choice. They need to know what powers their government will have. Details have not been finalised on these sorts of issues.

4. One important issue is the state of human rights within the country. Individual basic human rights have universal viability. Differences between states could give rise to conflict. Basic human rights need to be applied everywhere whilst there must be flexibility in application and interpretation. We need to have a higher court as well as regional ones; the Nigerian example could serve as a warning. Another issue, which needs to be addressed, is the problem of economic injustice. There is a

problem between the current belief in workability of markets. Free markets do not address injustices though market economies seem to be favoured by many. With regards to the issue of constitutionalism, one has to have something guarding the constitution above the President. The constitutional and supreme courts need to be in place. During the transitional phase, the constitutional court in South Africa played a very important role in that situation. We also need to consider governance rather than government. Good governance is concerned with the quality of governing and should encompass such important issues such as corruption, administration and security.

5. In seeking a way forward we have departed from just talking about the problems. Discussing the constitutional arrangements takes us out of a quagmire and gives us opportunities to look at which way to take. Some options are academic; others are not applicable to all situations. Since independence Sudanese have been talking but things have come and gone and yet we have not been able to find a constitution that would safeguard unity. The past should help us think in concrete terms about a united future and in this regard history should be our guide. We should ask ourselves why we need to have an interim period if we are planning on separating? It is to take stock of the past and show the younger generation that we will hold to what we have promised. We must all take our responsibilities seriously. We have the power to influence our communities so let us choose wisely how we will do this. Confidence is key! While we are searching for an interim constitution, we should also respect our agreements in order to bring back confidence and trust.

6. In his book “War of Visions,” Francis Deng says, “What divides people is what has not been said. What has been said, not matter how bitter, can be discussed and thus will not divide.” The blue prints of a future agreement need to be made in a meeting like this where people are here in a personal capacity. If you are here for your party then you are held as a prisoner. We need the freedom to speak so that we can forge ahead and this consultation will help us. IGAD is important because of the DOPs and the process that brought them. We need to carry them forward and any other initiative if it builds on this. All parties should be included in a future process and we do not want to repeat Addis Ababa because some parties felt they were not included and they torpedoed that agreement and this is what brought the second war in Sudan.

7. Africans are not fair when they implement agreements. Northern Sudanese tend not respect agreements. The National Congress claims that it is a religious party. Its members fear God and therefore they are different. They said they would honour their agreements therefore. According to the Khartoum Agreement, Riek Machar was supposed to head up regional government in Juba but this was changed when it was put into the constitution. It was changed so that President Bashir can appoint the governors of the South. We have already found the solution. We have the Khartoum Agreement and Asmara Declarations. All that it left is to make people implement what they have already agreed on. All the options have been gone through. The capital should be free of Shariah but the rest of the Northern states should be able to keep it.

8. This paper has framed the central issue that needs to be addressed. The gist of what is said is not different from what has been suggested in the past. However, is it going to be implemented? Are we on the verge of taking practical steps? Shall we start implementing things or let ourselves to be stooped by problems? Are we too eager to reach an agreement without specifying what things really mean? When things go wrong we assume it is because the other side has been untruthful. It could be that we did not do things correctly at the first time. Both sides are saying that the other has not implemented the Khartoum Agreement. It was hurried and did not state clearly what was expected including an action programme. It created the problems that we now have. How can we overcome this? Can both sides agree on the problems and the steps that need to be taken to resolve them?

9. The problem of Southern Sudan has always been part of the political struggle in Sudan. When it is taken in the context of the political struggle it is difficult to see it objectively. Internal and external political forces have used this and the whole country is paying the price. There is a race between the parties to build confidence, reach agreement and to be the ones that everyone should support as they will be the ones to deliver peace. If peace is to come there needs to be a departure from the past. All the parties need to agree to play part in the future. Everyone believes it is the right of the Southerners to decide their fate. But this decision affects all of Sudan and that is why we must specify how this right will be exercised. Who has the legitimacy to discuss and decide these things? If we want to decide this, we must have full confidence in each other. Even without confidence we can make some progress. Self-determination needs to be dealt with in a clear and simple manner.

10. There is consensus of opinion. We have moved on from just going over the past and we agree that we must move ahead. Why are we not able to implement the agreements reached in the past? We should look more carefully at the work of IGAD and the DOP. We want a real mechanism to reassure us that whatever agreement we reach will be implemented. Whoever acts as a peace mediator should have the power to see to it that the parties are held to the agreements. The papers of this consultation have moved us forward. We must seek to build upon then and establish what are the modalities that we are going to work out. There is a consensus that we agree on the DOPs. We give union the priority based on certain criteria. There are sensitivities that we need to start discussing in details. Particularly the political propaganda, which is coming from all parties; for example TV broadcasts which are biased. Agreements must not be hurried so that they are proved worthless. We need international and impartial internal advisors. I urge the negotiators to take heed and make sure that we take time, advice and really look at the details.

11. The 1955 – 72 war was confined to two blocks: North and South. The current war involves every region in the Sudan, as many of them have joined in to fight the Khartoum government. We are here to bring prosperity, security and peace to the country but we need to also bring in the Nuba, Darfur, Beja and other marginalised areas so that they are not left out. The author discards federation because of its

present application. Others have suggested a federation in the interim period where people here have a chance to speak out and influence decision-makers in their respective constituencies. If we are to live in a federation we need to have pillars upon which we can build national unity on. We need a central parliament to look after the national interest. We need to change the capital because too much resentment is tied up with Khartoum.

12. According to the current constitution the Sudanese President has the power to dismantle the state administrations during “state of emergency.” State administration is weak in Sudan and the regions have no powers to do anything. For example, even though there is a cease-fire in the Nuba Mountains, no services have started even though the cease-fire has held for three months. If the rights of people are denied this could lead to a continuation of the war.

13. It is very important that DOP are retained. Any mediating party which retains the DOP could use them to bring peace to the Sudan. The ‘One Country Two Systems’ construct is not something new. Addis Ababa Agreement had reflected on the above-mentioned system. We had a presidential system in the North and parliamentary system in the South. It did not work because one part of the system did not allow the other part to work and the two systems were ideologically incompatible. The proposed interim period could have different constitutional arrangements for the different regions in one Sudan with the options of self- determination reserved. This is quoted by the US and UK as an agreeable solution. I call on mediators who have moral responsibility not to allow the parties to shy away from the commitments which they have undertaken. If the above is not put in place then the mediation will not be fruitful. We must forge ahead and take courage to examine and gain by the exercise of the right of self-determination. This will give the interim authority an opportunity to try to correct past mistakes.

4. Constitutional Arrangements that Give Greater Autonomy than Federation, Including Secession by Dr Muaz Ahmed Tungo a. Paper Presented by Dr Muaz Ahmed Tungo

SUMMARY

The question and the dilemma that has faced successive Sudanese government from the eve of independence is the quest of the Southern Sudanese people for self rule based on federalism. The seed of distrust and discontent implanted during colonial era has developed into a tree since independence. It would be of no consolation for the successive Sudan governments, nor the different political parties to blame the British. They have had ample time to solve this problem but have failed. Their failure to adhere to such a demand has led the county to a breaking point. Injustice flourishes in nearly all aspects of life in the different regions of Sudan. Military take-overs have destroyed not only the democratic life of the whole society but for more that two thirds of the post independence period, a gradual militarisation of the society has taken place. Infrastructure has been destroyed, development impeded and discontent is no longer confined to the South.

The root of the problem nowadays is really not the religious differences, it never was the actual cause of dissent, besides it has no root in within the day to day life of the society which live in peace beside its other segments. At the heart of the problem are power sharing, wealth sharing, dignity and democracy. Sudan is a country that is one million square miles wide and inhabited by more than 200 ethnic groups. A constitutional solution that provides for a unitary centralised form of governance is quite unrealistic. Confederate arrangements are also not a viable option at least at present. because confederation is a treaty-based arrangement between two or more states. Accordingly such an option would be likely if it is sanctioned by the incumbent government of the day. Or when the South some how achieves territorial sovereignty. Besides, such an option is also not compatible with the aims of the SPLM which stresses the unity of the Sudan and its rigorous defence of the rights of other minorities and regions of the Sudan.

Real and true federalism might be the only viable and acceptable constitutional arrangements for future Sudan. Such an arrangement should not concentrate on a devolved decentralised form of government or the shabby administrative federalism tested and failed. It should concentrate instead on a shift of emphasis to make genuine autonomy for the federating state possible by stipulating original jurisdiction as federating units rights in all internal affairs including self-rule, economic development, education, and social. While assigning specific jurisdiction to the federal government, it must guarantee basic human rights and democratic practice. Separation of powers, sharing of the wealth autonomy of parliament, and affirmative action to integrate all segments of the society in civil and military life must be insured. A rigid type of constitution is preferably the best option to be drafted, nonetheless, safeguards against military take-overs and the collapse of democracy must be carefully provided for; the recent history of the Sudan highlights its importance.

Why One Needs a Constitution The study of political constitutions is the science of examining and analysing the structure of governance of any political entity with a view to establishing whether good governance and political stability is or can be better achieved. Constitutional law is that part of national law that pertains to regulate, in some, permanent way, the system of public administration and the structure and functions of principal organs of government and their relations with each other and with the citizens of that state.

• The aspiration of the ruled to create, preserve, advance and protect their own rights vis-à-vis their effective rules. • The desire on the part of the ruled, or the wishes of the ruler yielding to the wishes of the ruled, to definitely institute a system of government to replace dictatorial or arbitrary actions. • The desire of those trying to create or establish a new community to secure the methods of government in a permanent form and be comprehensible and acceptable to the subjects of that new state.

• In the cases of confederate states the object might be to secure effective joint action.

It is essential, in studying constitutions, to appreciate that the purpose and the operation of legal rules can be understood in isolation of the knowledge of the social background against which these rule are to operate. The study of constitutional law is therefore, closely related to the study of all human associations, the social ethics, the social psychology and most importantly social economics. Lack of stability or the feeling of injustice, whether social or economic are the main causes for constitutional changes be it a unitary, federal or confederate state. The quest for power for its sake might also represent a ground for constitutional change.

In modern Sudan, the first constitutional arrangement to provide for the governance of the Sudan can be said to be the 1899 Agreement between Britain and Egypt which provided for a system of government that placed the running of internal affairs in the hands of the governor-general. A Consultative Council was introduced in 1943 for the Northern provinces which was later amended in 1948 to included the institution of an Executive Council and a Legislative. Based on the 1953 self-determination agreement, independent Sudan obtained its first temporary Constitution in 1956.

Since then, the quest by the people of the Sudan to arrive at some permanent constitutional arrangements to replace the temporary constitution has continued unsuccessfully. In short, the provisional post-independence constitutions were short lived. In April 1958 a new constitution was presented to the constitutional assembly only to be scrapped in July of the same year. In 1964 a temporary constitution was endorsed but then amended in 1965. A draft was prepared in 1967 unsuccessfully. Even the transitional constitution of 1964 was scrapped in 1969. From 1973 to 1984 a so-called permanent constitution was in force only to be revoked by the military leaders in 1985. The main feature of all these constitutional arrangements is that they provided for a unitary form of governance. These arrangements, or at least the democratically approved ones, provide for the freedom of belief, opinion, speech, assembly, social, economic,

political justice, and social equality and equal opportunity. However parliamentary democracy has a very short life in Sudan; four times it has been replaced by a military regime which has tended to live longer. None was has been allowed to complete a four year term.

Prior to discussing the type of government constitutional suitable for the Sudanese people, one would like to overview some historical background to the North-South problem, bearing in mind that the problem now is by far greater than just a North South division. The magnitude of the problem is as diverse as the regions of Sudan. A durable constitutional solution should encompass all present manifestations of discontent and injustices of the whole nation in order to provide a lasting peace and unity.

The Sudan is a vast country currently divided into some 26 administrative federal states with limited powers. The largest country in Africa is geographically, culturally and historically diverse. Its population of over 30 million people is composed of over 400 tribal or ethnic groups, communicating in over 200 dialects. Unquestionably the dominant religion is Islam; Christianity and other spiritual beliefs are a sizeable minority. Race wise, there is no ethnic group in the Sudan that commands a definite majority.

Background to the Conflict In 1820, Bilad es Sudan was invaded by the Turko-Egyptian Army creating modern Sudan within the Ottoman Empire extending Sudan as far south as Lake Victoria. This invasion was mainly in the quest for riches and the brave men famously inhabited Sudan. Later, the exploration of the Nile sources, the lifeline for Egypt was thought to be a good cause for maintaining Sudan. This administration concentrated only in its declared aims from the Sudan conquest, regardless of establishing any development program or to connect the parts of the country cultural or economical. During the Mahdia its forces extended to the two of Mahagi town and Mahagi port on the Lake Albert as the most southern part of the Lado enclave. However they receded upon the declaration of protectorate of Uganda and the assignment of the Lado Enclave to the Congo by Britain.

The Colonial Policy 1898-1956 The Sudan was re-conquered in 1898 with the help of Britain. The Anglo-Egyptian administration is the most important factor in the history of the conflict between the North and south. It envisaged and executed policies preventing natural integration between North and South. First and foremost, two distinct educational policies were introduced, state education in the North and missionary education in the South. Between 1899-1920, the administration’s adopted policy of indirect rule meant formalising a tribal system. Rather than establishing Sudanese educated class with nationalist aspirations to manage the region, the administration attempted to halt South-North integration, as well as the spread of Arabic and Islamic culture into the South. At the Rejaf Language Conference and the International Institute of African Languages and Culture, the conference laid the foundation for the development of the local vernaculars and English in the South, rather than the common use of Arabic. It is clear that Arabic Language was regarded by the conference as one of the most important integration instrument. Although widely spoken in the South, Arabic was rejected on the ground that it would open the door for the spread of Islam, Arabise the South, and introduce the Northern Sudanese outlook. It is evident that the policy was aimed at creating and maintaining two different identities within one entity by preventing the natural and spread of Islam and Arabic in the South. Under this policy the economic progress was very slow compared to the North. Akol in his analysis of Southern Sudan policy during Anglo-Egyptian rule observed that the origins of underdevelopment can be traced back to the colonial policies that led to the relative development of the central policies that led to the relative development of the central Sudan, namely Khartoum and Gazeera. He further described the nature of colonial administration,“... in the other part of the Sudan, the colonial administration was more concerned with establishing ‘law and order’ and maintaining the status quo undisturbed”.

The Closed Districts Ordinance 1922 The Closed Districts Ordinance was most important factor in Southern Sudan policy. It represented the most dangerous act concerning the relation between North and South. Under this ordinance, the administration was attempting to separate the South form the

North, and to join the Southern Sudan to East Africa colony. The Closed Districts Ordinance begun in 1922, but by 1928 the process of creating a detached Southern Sudan from the North had progressed towards separation. The principle foundations of this policy were the building up in the Southern Sudan of series of self-contained racial or tribal units, with the structure and organisation based on traditional usage and believes. In addition there was a gradual elimination of the Northern Sudanese administrators, clerks, and technicians, and their replacement by Southern Sudanese. To eliminate the bases of a common language, English was to replace Arabic when communication in the local vernacular was impossible.

The real implementation of this policy was started from 1930-1945, the period when Southern Sudan separation as one of the closed district area was included in the 1922 Act. After clear-cut instructions regarding the widespread approval to this policy, the policy went on to eliminate the existence any Northerners in South, even traders. The policy went further to achieving its goals of eliminating cultural contact. For example, the South area chief and their fellows were forced to change their Arabic names and dresses.

The policy faced many obstacles and failed to separate Southern Sudan from the North despite the fact that the whole of administrative system was at hand. This failure was clear from the following extract from a letter. The district commissioners, Western district, Bahral Ghazal (now called Equatoria) in 1941 noted that “the most disappointing aspect of the working of Southern policy is the failure to produce in ten years any Southern staff trained for executive work”. Broice, the District Commissioner, in Bahral Ghazal wrote stubbornly insisting that he did not feel able to reverse his believe that if the central government wants the policy to be implemented to a successful end, it must not jib at swallowing a few gnats even if they look like camels. Furthermore, a district commissioner considered that it would be almost impossible to make any real strides in reintroducing tribal organisations until the real Mohammedan (sic) element - such as Gellaba, Fulani, Hausa, etc., are removed from the district both in regard to their dress and religion.

On the other hand there was reluctance and pressure from the Northern Sudanese, who became more suspicious of Southern policy implemented by administrators, the Graduate Congress, founded in 1930, criticised the Southern Sudan policy, in their memorandum to the government on the education policy. In the 1942 memorandum demanded the administration unify the education system between the two parts of the country, and they demanded the revocation of all restrictions banning Northern traders from the South. Whatever the evaluation of these policies from the 1922 act, their implementation have surely succeeded in creating a wider gab between the North and South. Natural contacts were obstructed, mistrust grew and some churches over-placed the issue of slave trade and cultivated hatred. In addition, the issue of economic development was absent also during this period of Southern Sudan policy.

The Juba Conference (1947) The Southern Sudan policy was criticised, both by officials and non-officials. For example, Mr. Cox highlighted the unfairness of the policy towards the Southerners.h An ex Director of education who was in close contact with recent trends of colonial policy, he stated that the Sudan government’s policy in the Southern Sudan had resulted in the South being left further and further behind the North.h It is clear that, the contrasting and declared goals of the policy, which aimed to equip the African people of the Southernh Sudan, thorough economic and educational development. When the policy was finally reversed in 1946-53, there were only three alternatives for the South.h

A. Integration of the with the North B. Integration with British East Africa C. To bisect the South into two, part to integrate with the North,h the other with east Africa

Against this background the Juba Conference was held, on June 12 and 13, 1947. The conference was held under the chairmanship of the then Civil Secretary. The governors of the Southernh provinces, the director of establishment, seventeen chiefs and educated men from the South (chosen by the administration) and six Northernersh attended it. To

discuss whether Southernh Sudan should send representatives to the new legislative body in Khartoum. An assembly in which the South and North would deliberate and enact laws together as people of one united country, or whether the South wanted to establish their own body. The alternative was to establish two legislative bodies, one for each part of the country. According to the conference minutes there was at first day opposition from the educated Southernersh who spoke against the motion but later supported it. In the conference, the Southernersh emphasised their underdevelopment several times, and there was a widespread mistrust and fear of the Northernh intentions among the Southernh members and strong determination not to be dictated to by the North.h El-Shingeiti, the head of Northernh representatives, guaranteed the status of Southernh Sudan in future Sudan and that the South in the united Sudan would have equality with the North,h the salaries and wages were to be equalised. The past situation of hatred and mistrust encouraged by the British administration, according to Judge El-Shingeiti, would be terminated, the united Sudan should be free from any forms of discrimination. Shingeiti assured Southernersh that in the new united Sudan, the people of the Sudan, both Northernersh and Southerners,h were ‘equal’ and they would treat one another so. Safeguards were requested for religious cultural background, the issue of self-rule, and the issue of economic and social development. In fact, they demanded the guarantee of diversity within the unity of the Sudan. Indicating the support of the administration to the motion, the Civil Secretary stressed the necessity to safeguard the cultural and social integrity of the South against domination and mismanagement by a government composed mainly of Northernh Sudanese. Robertson, the Governor General at that time claimed that the only decision resulting from the Conference was taken by himself. At the end, after the Northerners’h representatives accepted the obligations and safeguards, the Conference unanimously decided to establish one legislative assembly for the whole Sudan.

Some argue that the Juba Conference is an indication of the way that the Southernh leaders have been manipulated by the Northernh or that the conference was predetermined by the Northernersh and the British administration. Others suggest that it was where the South agreed to final unification with the North.h In a way it was an indication that the

coexistence between the two parts of the country is possible when both sides establish the condition of mutual understanding.

North-South Relations The important event in this period concerning the relation between the North and the South was the Anglo-Egyptian agreement on February 12th, 1953 which paved the way to self-rule on independence as principle aim for the people of the Sudan.

Its objective was the guarantee of self-rule and self-determination for Sudan, and however, aroused the suspicious of the South and finally led to the outbreak of the Southern Army Muting in 1955. Although this agreement of self-rule in 1953 was the most important agreement concerning the future of the Sudan, the Southernersh were not involved in the negotiations. So no Southernerh was invited to participate in the agreement negotiations and discussions which took place in Cairo between the Sudanese political parties and the Egyptian government. The Southerners,h having not been invited to the Cairo negotiations, opposed the 1953 agreement as it gave the right to self- determination within three years. The South considered that it was not yet in a position to enter an entirely free and democratic union with the North.h The question was that whether it is fully justifiable that the Southernersh participated in the Juba Conference, and yet were denied participation Cairo for the lack of established political parties.

The South was not satisfied with the Sudanisation result, which granted only 8 positions for the Southernersh out of 800 jobs on offer. In 1954, the liberal party conference in Juba condemned the way Sudanisation was implemented and demanded federal status for the South.h Southerners asked how a united Sudan could be built when there was not enough, fair participation in its administration.

The Mutiny, 1955 Southern soldiers of the Equatoria corps mutinied in Torit on August 1955, killing some of their Northernh officers. This sparked a wave of violence in Equatoria and other parts of the South during which many Northernersh in particular were killed. The Torit mutiny

is thus usually regarded as the start of the war that was stopped by the Addis Ababa Agreement in 1972. There was much analysis for the cause of this mutiny. The Southerners were alarmed by the rapid take-over of government and army posts in the South by Northernersh in the run-up to independence. They feared that they would be disarmed and moved to the North.h In Anzara, where much of the violence took place, textile workers had been fired on and some killed. However, Bashir argued that the root of this mutiny lay in the mistakes and faults committed by the Northernh political parities which were exploited and fanned by those administrators and missionaries who had always objected to the new policy. The mutiny was the first armed movement in the Southern Sudan history, as it marked the end of the longest period of peace in Southern Sudan.

Sudan Independence 1956 Sudanese independence came as a result of agreement between North and South, which occurred after the Northernh political parties pledged to grant the South federal rule, after the attainment of Sudan independence. However, the Northernh parties did not take seriously the option of federalism for Southern Sudan, viewing it instead as pretext for separation. When the national committee refused to put the proposal for a federation in the draft constitution, the Southern members of the committee withdrew in 1957.

The government in February 1972 had drawn up a document on the implementation of the regional autonomy for the Southern Sudan. The regional autonomy, which was achieved in Addis Ababa agreement, was a further development on the grounds of previous initiatives in responding to the conflict. These previous initiatives are the Juba Conference 1947, the Round Table Conference in 1965 and the Declaration Regional Autonomy in June 9, 1969. On 27 February 1972, the parties to the conflict concluded and signed what came to be known as Addis Ababa agreement under the witnesses of representatives from the OAU, WCC, and All Africa Conference of Churches (AACC), and some neighbouring countries namely Ethiopia. On 3 March 1972, the Addis Ababa agreement was formulated in to a regional self-government act for the Southern Sudan signed by President Nimeiri.

The Collapse of the Addis Ababa Agreement 1972 The agreement had satisfied the parties of the conflict, and so the international community and achieved outstanding stability, economic development, and expresses the diversity of Sudan within the unity. Why then did the agreement break down? The answer to this focal question has many approaches according to the background, the facts and realties which to be considered. Firstly, the 1972 Act, vested legislative authority to the Southern people’s regional Assembly, which was an elected body. This Assembly was not active enough or did not have a wide authority, and was subject to the powers of the Central Government. Secondly, the High Executive Council was established with the mandate to act in the South on ‘behalf’ of the National Government. The power and authority of High Executive Council was limited. It did not posses autonomous power, but is dependent on the power of the Central Government. Thirdly, the National Government at that time was not institutionalised; it was not democratic government and the power was in the regime president. Fourthly, there was the event of reconciliation between the May Regime and the National Front led by El-Sadig El-Mahdi in 1979. Finally, there was internal conflict between Southerners in a power game: Abel Alier and his group, and Joseph Lagu and his group. All these factors are important when we consider the previous question or even learn lessons from this Agreement.

In terms of the Agreement collapse there was one event is recognised by all parties and absolvers as a direct cause which broke the Agreement down, that was the 5th June 1983 decree, which dissolved the regional autonomy and re-divided the Southern Sudan into three regions.

Alier, who played an important role in achieving the Addis Ababa agreement in 1972, was then the Vice president of the National Government and the president of High Executive Council of Southern Sudan which was dissolved by the 1983 decree, stated that:

‘On 5th June 1983 president Nimeiri issued a decree dissolving the institutions of self- government, namely the regional Assembly and the High Executive Council. As we have

seen he created instead what he called the three regions, Bahar El Ghazal, Equatoria and Upper Nile, with their capitals in Wau, Juba and Malakal. It was viewed as the formal abrogation the Agreement. Lagu affirmed that the decree represented the direct collapse of the Addis Ababa agreement, when he said ‘Only President Nimeiri had full responsibility of that tragic decision.’

On the other hand, those who signed the agreement from the central government, have their own a analysis for the background of 1983 decree and the collapse of the Agreement, Dr. Abu Sag stated that Nimeiri was not responsible. The Southernh minorities were afraid of the domination of the large tribes. According to their request and depending on the constitutional authorities of the president, the Southern region was divided into three regions’. It is clear that, the background of the Agreement collapse was a controversial issue, opinions and analysis of those concerned differ widely. However, there were many factors associated to put an end to the Addis Ababa Agreement.

Before analysing the alternative forms of state suitable for Sudan one would like to reflect on the main features of the unitary and the confederal states respectively.

The Unitary State The state can be described as an institution or even a set of institutions, which have the object of maintaining the common purpose and the welfare of the community and which unite the subjects of a defined territory under a single authority. States in the international milieu are not the same as regards to its physical and political structure. They are either simple or complex a democracy or a dictatorship.

In the simple or unitary state, a central authority exclusively undertakes the running of its internal and external affairs. Although this form of a state is the most popular form of government world-wide, it is not without short comings. Mostly, the constitutions of unitary state, unlike the federal ones, do not permit ordinary central legislature to pass or perform certain acts except under certain condition such as amending the constitution.

Furthermore, in the unitary state there is a lack of subsidiary legislative authority or subsidiary sovereign bodies. In the federal system, the constitution empowers member states with absolute power in certain specified internal affairs and the federal government with absolute powers in external affairs and some internal affairs.

The federal state is a political structure that is designed to reconcile unity and political power with the maintenance member state’s rights. Federal states however, come in different forms and shapes and differ from one case to another depending on situations and experience. They range from a loose league of states to some sort of confederate state such as the Germanic confederation of 1815 with only few central organs. There might be a final development of a former confederate state towards more cohesion, such as is experience in the United States. States may also chose to become more centralised in order to provide more social, economic, development, and political justice to its citizens.

In all cases, successful federal systems require the fulfilment of:

• It is important to take into consideration that the units constituting a federation, although desiring union, do not desire unity otherwise a unitary for of state is the one preferable. • The existing or the developing sense of nationality among the units federating must be continuously strengthened.

While in the unitary state there exists a supreme legislative authority in the centre. Such entails the following:

• In unitary States there exists the notion of supremacy of central parliament and the executive authority. There exists a clear lack of subsidiary sovereign bodies. Taking the UK example one can say there is no limit to unitary state conceding powers regarded as federal power sharing.

Confederal State The complex or confederal form of state consists of one or more state of self-standing regions under the authority of a single government or one president. Thus the structure of such a state which historically existed can be achieved through:

Personal unions, whereby two or more states unite under one leader while preserving their complete independence and jurisdiction in internal and external affairs. Personal unions are the loosest forms of confederations which were suitable for kingdoms inter- marrying. The life of such a union depended on its monarchs. It is usual that it ceases to exist when a change in one of the systems of the component states. Presently there are no living examples of this kind, but historically it existed between England and Hanover from 1714 to 1737, Holland and Luxembourg from 1815 to 1890, Belgium and the Congo from 1885 to 1908.

Real unions exist when two or more states agree a permanent union whereby they come under the authority of one head of a state and one single authority in all that concerns their external relations, while they exercise complete jurisdiction on internal matters. It is clear that this form of union shares with the personal one, the fact that the uniting states reserve their complete independence internally. But differ from the former in a way that in the real union the component states loose their status as a subject of international law. Such union no longer exists, but historically it was the system adopted by the Vienna Conference of 1815 for Norway and Sweden, by which the King of Sweden became the King of Norway responsible for all external affairs of the two kingdoms. As for the internal affairs both kingdoms reserved their own constitution and form of government. This union lasted until 1905 when Norway desired independence. The Austro-Hungarian Empire was also formed in the same manner as stipulated for in the 1867 Agreement until the empire ceased to exist after the First World War. Denmark and Iceland were also formally party to such a union in pursuance of the 1918 agreement which ceased to exist in 1949 when Iceland declared independence.

Confederation of States, in this type one or more states unite by agreement whereby each preserve its complete internal and external jurisdiction and sovereignty. A co- ordinating organ would be formed consisting of representatives of the member states and would co-ordinate the confederation’s public policy and issue directives to the members to apply. This organ is not considered as a government nor does it enjoy its executive powers. Decisions issued by such an organ are not mandatory unless agreed to by all members constituting the federation. Furthermore, in the international milieu, such an organ has no personality; member states preserve their own international personality. Relaxed and temporary as it is, confederations face two forms of future. 1) either collapse through independence of its member states, as it happened to the Confederation of the Rhine from 1806 to 1813, and the German Confederation in 1866 or the central American Republics in 1898, and the Senegal and Gambian experience of late; or 2) the sense of unity increases and the confederation turns into a federation of states whereby the member states not only concede all of their sovereignty and external jurisdiction to the union, but also some of their internal jurisdiction as well. Examples of this kind of development are Switzerland and the United States of America.

From the above-mentioned one can conclude that confederation advocated for by the SPLA is not feasible legally speaking. Given the fact that Southernh Sudan is not an internationally recognised sovereign state for the purpose of confederation, unless the Government of the Sudan accepts that, in that instance it would be based on that recognition. Therefore it might not be achieved peacefully without international intervention a military one to be precise, in such a case, entering into a confederation would be meaningless, independence could be easier. Further, the idea advocated by the SPLA that Sudan can easily be devised into two units based on the colonial maps is rather premature and unrealistic if it is intended to solve the problems of the Sudan. It would be perfect for power-sharing between the North and the South but if the parties are keen not to repeat the failures of the past including the Addis Ababa Accord, then all levels of integration, minority protection, wealth sharing, equitable social and development must be provided for. In the decades since independence, neither the territory nor the people have remained intact. Some of the changes that have occurred are

irreversible, especially the movement of population, both voluntary and the involuntary ones. This movement within Sudan’s borders has to be taken into consideration otherwise we will create an even greater problem. Sudan can no longer be simply divided into North and South unless one refers to bare territory not the population which is our paramount concern. The social reality of the case of the Sudan might call for well-established federalism that provides for social justice and social and economic development.

Self-determination Self-determination is a controversial concept; it is renewable and evolutionary. The concept had played an important role throughout the nineteenth and twentieth centuries as an essential factor in the unification and dissolution of many states, particularly in Europe but also in other parts of the world. It started as a mere political concept and gradually acquired a legally binding dimension. The concept of self-determination continues to play a major and active role in political and legal debate.

In the twentieth century, self-determination has become a part of the general principles of international law. However, the problem of legal status and clear character under international law surrounded the principle. In 1960s and 1970s a revolutionary transformation in the principle occurred when it shifted from a moral and political concept into a legal principle. During that transformation and up to now, the international community is able to say that, they have a legal right of self-determination, at least under a de-colonisation context. However, the principle embodies a revolution within it - a very critical problem when the groups of individuals or minorities interpret the term ‘peoples’ provided for by the most international documents, to justify their bid to secede from their State.

The right of ‘peoples’ to self-determination before 1945 was a political concept. Specific treaties only conferred its acceptance as a legal right. For example, the treaty of Versailles 1919 provided for plebiscite in Upper Silessia. This treaty gave it the right to determine whether it should form part of Germany, or a part of Poland, without

providing for the prospect of independence. Thus, according to conventional international law, there was no legal right to self-determination in the absence of such an express treaty provision. Furthermore, although the principle of the right of people to self-determination plays an important role in political thought, namely its role in the French and American revolutions as a part of Western modern thought, in particular, through the debate between different concepts of West and East particularly, the communist concept. The concept did not promptly acquire legal character or dimension. Though there were massive changes in world geopolitics, the League of Nations Covenant did not even mention the right of people to self-determination. As a matter of legal fact, the crucial development of the concept of self-determination has occurred in post 1945. This development was expressly initiated by the present United Nations Charter provisions and the General Assembly declarations and resolutions which have promoted the concept of self-determination and shifted it from moral and political principle into a legal principle and embodied it into international law and United Nations.

Self-Determination Beyond Colonial Context Traditionally, the right of self-determination was considered to be only available to those people under colonial domination. However the fundamental question raised in this analysis, is whether this right which has been widely proclaimed, has an application beyond the colonial context or not? How can we understand the recent examples in former USSR and former Yugoslavia, or Czechoslovakia and Eritrea? What about some international and regional instruments, which deal with the principle outside the colonial context?

In this context there are many international and regional documents addressing the principle of self-determination beyond the colonial context. However, the International Court of Justice (IJC) viewed the principle of self-determination with its colonial context. In the Namibia case advisory opinion the ICJ had affirmed that:

‘Subsequent development of international law in regard to non- self-governing territories, as enshrined in the Charter of the United Nations, made the principles of self-determination applicable to all them.’

In the same context, namely in Western Sahara advisory opinion and more recently in Burkina Faso v. Mali, the court addressed the principle in the colonial context. Undoubtedly, according to these advisory opinions the ICJ provided the principle in its colonial context, however, what about the other international documents which widely assume that the principle of self-determination is applicable beyond the colonial context?

Article (1) in both International Covenants on Human Rights, the International Covenant on Civil and political rights 1966 and the International Covenant on Social and Economic Rights 1966 provide that:

‘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.’

The key point in this provision is the term person. What does the term ‘all peoples’ refer to? Is it referring to colonial peoples? This could not find a legal justification, because the both covenants are international and universal as a part of the International Bill on Human Rights. So could it be said to refer to group of individuals? In the same justification the both Covenants are universal and they aren’t addressing specific groups of world peoples. The term ‘all peoples’ refer to all peoples of the world without any distinction as to race, religion, or language. Thus it has a universal function and dimension, as human rights promotion and protection are universal and not just concern the colonial peoples or minorities without the other peoples of International Community. The International Law Commission supported the same suggestion when it expressed in 1998 its view that: ‘the principle of self-determination was of universal application,

while the practice of the UN Human Rights Committee has been of particular significance’.

One of the most relevant events in self-determination development as a legal right in customary international law framework was the General Assembly resolution 2625(XXV) - the 1970 declaration on the principle of international law concerning the friendly relations among nations. Undoubtedly, the declaration addressed many important issues concerning the International Community, which represent the basic principles and purposes of the United Nations. If we examine the declaration for this research interest we find that the declaration is very comprehensive in addressing the various issues concerning the International Community. This Declaration, like other international documents, addressed the rights of colonial peoples when it supported equal rights and self-determination. It urged members to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle in order to promote friendly relations and co-operation among states, and to bring a speedy end to colonialism, having given due regard to the freely expressed will of the peoples concerned, bearing in mind that subjection of people to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as denial of fundamental human rights, and is contrary to the Charter of the United Nations.

According to General Assembly resolution 2625 (XXV), provisions the issue of colonialism is present as something to be get rid of as one of obstacles on the way of International Community to achieve and maintain International Peace and Security, as well as Friendly Relations. So in this context the Declaration helps the colonial peoples by granting them legal right to self-determination and a means to free themselves from any form of colonialism, such as, subjection of peoples to alien subjugation, domination and exploitation which constitutes a violation to the principle and inconsistent with United Nations Charter.

Until this part of the Declaration no problems were raised, but the problems occurred when some arguments attempt to use the term ‘peoples’, interpreting it to refer to minorities groups around the world. The declaration in similar manner to Article (1) in both International Covenants on Human Rights, used the same term ‘all peoples’. Nonetheless, the term ‘all peoples’ here represent a universal one standard, and refer to peoples of states around the world, not the minorities groups, that should be clear from the declaration language which addressed the characters of international community, by obligating them to co-operate with United Nations in these issues. So it is clear that ‘all peoples’ here refer to the whole peoples of the world existing in territories of states around the world, in other words the term peoples here refer to territorial concept of peoples. Furthermore, one can argue that the declaration itself is not legally binding. However, there is general agreement that the declaration is recognised by states’ practice as a basic principle of International Law, to which even the status of jus cogens is attributed. Article 19 of the International Law Commission’s Draft Articles on State Responsibility describes as an ‘international crime’; inter alia, ‘a serious breach of an international obligation of essential importance for safeguarding the right of self- determination of peoples, such that prohibiting the establishment or maintenance by force of colonial domination.’ Once again in the terms of self-determination as a legal binding principle, the ICJ, described it as an obligation, however, the ICJ didn’t provide any more explanation.

Self-determination versus Territorial Integrity The principle of territorial integrity is one of the important principles in international law, such as the principle of non-intervention in state’s domestic matters provided by Article 2(7) of the Charter. The principle of territorial integrity is associated with the maintenance of international peace and security, which represent the top priority in the United Nations agenda. However, the question is what is the relationship between the two principles, self-determination and territorial integrity? Undoubtedly the relationship between both is very closed, for example the UN Charter provisions concerning the principle of self-determination provide the term ‘peoples’ generally in territorial concept, in other words to refer to populations or inhabitants of states territories. Moreover, the

United Nations Charter and other international documents concerning the principle of self-determination and relevant issues affirm the principle of territorial integrity as a focal factor in International Peace and Security. On the other hand, many individuals groups are using the term peoples for their interest claiming for self-determination, in terms of secession from state’s territory. However, these claims go against the territorial integrity principal. Furthermore, the territorial integrity principle existed before 1945; Article 10 of the Covenant of League of Nations clarified that. While Article 11 of Montevideo Convention on Rights and Duties of States 1933, prevented any violation of any state territorial integrity under any measures whether by military occupation or any other measures of force. Article 2(4) of the United Nations Charter require all member states to refrain in their international relations from threat or use of force against the territorial integrity or political independence of any state. In the same context the regional organisations documents recognised the principle of territorial integrity. Article 17 of the Charter of the Organisation of American States provides that: ‘the territory of state is inviolate’, while Article 9 of the Draft Declaration on Rights and Duties of States put the principle as a duty upon member states. The 1514(XV) resolution adopted by the General Assembly in 1960 declared in Article 6 that:

‘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’.

The 1970 Declaration on the Principle of International Law, in the section of equal rights and self-determination of peoples stated those members: ‘Shall refrain from any action aimed at the partial or total destruction of the national unity and territorial integrity of any other state or country’.

In the same vein, the 1974 consensus definition of aggression stated in its preamble that: ‘states were under duty not to use armed force to deprive peoples of their right to self- determination, freedom, and independence, or to disrupt territorial integrity.’ In the light of clarification by all these international and regional documents, one can ask is there

any clear definition of the principle of territorial integrity? Or whether it is absolute principle or not? Is there a distinction between it and the inviolability of a frontier?

The principle of territorial integrity has been a topic for debate between the restricted colonial definition and beyond the colonial definition on the other hand. These debates and arguments have been clarified by the Morocco and Algeria case. Shaw in his analysis stated that:

‘One may conclude that the correct temporal context for the definition of territorial integrity is the period of de-colonisation’.

Some international writers assumed that this principle is not an absolute principle. For example, Shaw argued that, the principle of territorial integrity is not an absolute principle. He justified his argument that states have a legal permission under certain circumstances to resort to use of force against the territorial integrity of other states under the doctrine of self-defence provided by Article 51 of the UN Charter. Undoubtedly, the Article 51 exception and the new trends of self-determination, clarified by the ‘minorities’ claims to self-determination in terms of secession, threaten the principle. However the international community still invokes the principle of self- determination and that should very clear in dealing with those claims. The Secretary- General of the United Nations, U-Thant, in 1970 stated in relation to the attempts by Biafra to gain independence from Nigeria that:

‘So far the question of secession of a particular section of a member state is concerned, the United Nations’ attitude is unequivocal. As an international organisation, the United Nations never accepted and does not accept and I do not believe it will ever accept the principle of secession of a part of a member state’.

However, the crucial question is whether the government does not represent the whole state population and what can international community do? In the light of the same declaration a government representing the whole people belonging to the territory without distinction as to race, creed or colour is required for self-determination. Some writers argue that there is a right to self-determination for minorities within an independent State when the government is not fully representative.

The Organisation of African Unity and Secession This part of the paper will attempt briefly to examine the OAU’s approach to self- determination and the relevant aspects such as the principle of territorial integrity and the problem of secession. As a matter of fact, the principle of territorial integrity and the dilemma of secession are very complicated and sensitive due to the nature of statehood and the various diversities in Africa. Undoubtedly, according to African states practice, the task of redrawing the African map along ethnic lines, would threaten the stability and further the existence of the African continent. According to this clear fact, the post- independence African leaders and the O.A.U invoked the principle of territorial integrity provided for by the General Assembly declaration on the granting of independence of colonial countries of 1960. By that attempt they aimed to ensure that self-determination was exercised within colonial boundaries. Furthermore, the O.A.U at first meeting of head of states in 1964 resolved the concept of ‘uti possidetis’ which was adopted by the Inter-American Organisation. The statement of head of states’ meeting in 1964 put it very clearly that:

‘All member states pledge themselves to respect the borders existing on their achievement of national independence’.

In Africa the notion of nation-state has been replaced by the concept of territorial state. In practice the African states over the past thirty years demonstrated the commitment of the continent to territorial integrity and its opposition to secession. For example African states have opposed the secession of Katanga for the Congo, Biafra from Nigeria, Southern Sudan, and Eritrea from Ethiopia before its peaceful independence through referendum’.

This analysis demonstrates that African practice opposes the secession. However, can one argue that is internationally prohibits secession? What about the secession achieved by the peaceful, free and internal will of the whole population or by constitution arrangements? For instance, in the Czechoslovakian and Eritrean cases. Dugard stated that:

‘There is general agreement that, despite U-Thant’s portrayal of policy of the United Nations, there is no prohibition in international law on secession. On the other hand, there is no legal right to secession for ‘peoples’ or ethnic groups as part of the right of self-determination’.

Then he added saying that ‘[s]tate practice, at its very lowest, supports a presumption in favour of the maintenance of territorial integrity and against secession’. It is clear that, the recent examples of self-determination, for example the Czechoslovakia and Eritrea scenarios, demonstrate that secession as consequences of self-determination will be recognised when it is agreed to by all the component parts of the state. It can also be achieved through referendum or general elections. However, one must think twice about secession in Africa, because its different nature and composition, secession is a dilemma in Africa as nation-states were built within colonial boundaries.

Self-Determination and Autonomy As noted, there are different meanings for the principle of self-determination, one of them is the autonomy. Here I will not review the autonomy history and aspects. However, I will demonstrate the terms’ definition and the relation between the two norms.

One of the descriptions of autonomy as follows:

‘The term autonomy appears in various legal contexts. In domestic law, autonomy is part of the self-government of certain public corporation and institutions. It includes the power to make statues, that is, the authority to regulate their own affairs by enacting legal rules. Constitutional autonomy is an essential condition of statehood. In international law, autonomy means that parts of the state’s territory are authorised to govern themselves in certain matters by enacting laws and statutes, but without constituting a state of their own’.

In terms of defining autonomy, some writers have assumed that the term is used differently depending on the context because the concept of autonomy is not a well- defined legal concept but originally derived from sociology. Whatever the origin of the term autonomy, there is general agreement that parts of the state for certain reasons, govern themselves in certain matters by certain authorisation, such as, enacting laws and statutes, but not under any case to establish their own state. Although there are some comments by writers that an autonomy regime can be a basic for independent state. In this context, Hannum and Lillich pointed out that:

‘Autonomy is understood generally to refer to independence of action on the internal or domestic level’. It is clear that, without constituting new independent state’.

In practice autonomy characteristics may exist in the local police force for the supervision of internal security and public order. Foreign relations, defence and currency are often excluded. This is also true in case of involvement in foreign relations for autonomous authorities, this excludes PLO which insists that its situation will develop into independent state. Some writers argue that autonomy is recognised as a principle of international law. For Sanders, at least territorial minorities have rights of autonomy

within the existing structure of state. It is clear that, autonomy appears to be one of the ways to satisfy the aspirations of some groups of state population within state structure and sovereignty. The draft declaration refers to indigenous population as ‘peoples’, declaring in paragraph 1 that indigenous peoples have the right to self-determination. However, their right to self-determination is restricted to an autonomy and self- government. In other words any form of self-determination concerning them should be within the state.

Despite all these legal approaches to autonomy in the framework of self-determination, states practice demonstrates that much of international community has yet to widely recognise autonomy as an acceptable form of self-determination. Furthermore, many states are extremely reluctant to grant autonomy to sections of their population any form of autonomy types, for example, territorial autonomy, personal autonomy, or cultural autonomy, or functional autonomy.

Self-determination when used to denote secession is one option for peace in Sudan that should be considered but again classic international law doesn’t provide for such an option within colonial context. It is against the Charter of the Organisation of African Unity, Though the Eritrean example differs. While international law has yet to set an example maybe through the Kosovo issue if it supports this autonomous region’s bid to gain sovereignty. Hence, it can only be provided for if the Government of the Sudan concedes and the international community accepts. Also it might not be a workable constitutional option if it is to be implemented soon. But the constitution might stipulate for the free association of the federating units and their right to independence when they choose. Such an option might be open for periods long after the transitional period. Nonetheless, the government has admitted to the right of self-determination plainly in the Khartoum Peace Agreement:

1- In this agreement the right of the people of Southern Sudan to determine their political aspiration and to pursue their economic, social and cultural development is hereby affirmed.

2- People of Southern Sudan shall exercise this right in a referendum before the end of the interim period. 3- The options in the referendum shall be: A - Unity B - Secession

The Constitutional Arrangements for the Sudan At the outset, one would like to point out that the strict distinction between types of states is some times very difficult to make due to constant development of these systems to accommodate community needs. Nonetheless, confederate arrangements, as seen from above, clearly belong not to constitutional law but to international law, as they presuppose the agreement of two or more sovereign states to surrender part of their sovereignty to joint organs, for co-ordinating purposes. A unitary constitution for Sudan is not option. It was tried but failed and it is clearly unsuitable for present day Sudan. The concentration of executive, legislative, economic, military, education, health powers can be unfairly exercised in the vast Sudan. Nonetheless, as the experience of the United Kingdom provides, strongly based and empowered regional administrations might be short of federalism just in name. The federal option on the other hand can be used to give comprehensive powers to the federating units. As the Australian, Belgian, United States and Swiss examples provide, such constitutionally delegated powers can even include entering into agreements with foreign governments yet obligations derived from international principles are the federal states responsibility.

Strong components of federalism based on reduced central powers, in matters other than the army, external security, currency, for instance, might be the only viable way to provide for greater autonomy for the Sudanese people.

The constituent units of the Sudan federation would not have territorial sovereignty, but they would have to possess a wide-ranging jurisdiction under national law to enact or pass legislation, including exclusive competence over certain matters and shared competence with the federal authority in limited ones. This requires that policing should

largely rest with the units while the army and defence would be the responsibility of the federal government. Security can be shared while development should largely rest with the units. International obligations should be the responsibility of the federation. Nonetheless, Memorandum Of Understanding (MOU) regulating non-binding relations with neighbouring states can be concluded with the consent of the relevant units. Again example of the USA and the Swiss federation may be useful models.

A positive discrimination policy (or a quota system), supervised independently of the federal or federating government to oversee justice is done and is seen to be done both at the federal level and the units level, in areas of education, employment, health and development may be employed. This would require the creation of an authority, preferably a constitutional authority, to oversee through the application of positive discrimination in order to alleviate the suffering, grievances and injustice be they social, educational, employment, religious, military, policing, civil service, wealth sharing or economic, or development. India has given the world some examples and even this Sudan Government has tested this notion in the field of education. Building on this experience, Sudanese people will attain higher social levels and informed democratic participation rather than ethic or religious. Furthermore, it would in due course, strengthen civil society and ensure parallel development, combat poverty and ensure a fair share of civil service employment in all the federating units.

Deep rooted and comprehensive application of such a positive discrimination in all walks of life, if allowed to develop, would build a solid ground for unity and meaningful democracy.

Our main objective, if really opting for unity and democracy, should not concentrate on the shape of the acceptable state we aspire, be it confederate, federal or unitary. The most important element is the provision of democracy and equal opportunity for all citizens, fairly and justly is our insurance policy not to repeat the failures of the past. The greater the autonomy people would have, the more unified Sudan will be.

Constitutions of the world states are fall under two types. They are either flexible constitutions where amendments are comparatively easy to make, or that they are rigid constitutions whereby their amendments are hard to achieve. Furthermore, some rigid constitutions also contain even more rigid articles. These include principles or articles that the constituent legislature intends to remain unalterable by any authority in the future even if the same authority can alter some of its other provisions. The Australian, Canadian, French and the United States constitutions are rigid constitutions. Some elements of a rigid constitution are also contained in the present 1998 constitution since its amendment requires not only the parliaments assent, but also the federal assemblies and a referendum.

In this, prior to an agreement between all the concerned parties in the Sudan, it is quite impossible to suggest or devise a proposed new constitution to the Sudan. Having said that, one believes that a constitutional solution to the current unity and power-sharing dilemma in the Sudan can best be solved by adopting by consensus some form of a very rigid constitution. Clear power sharing grounds between federating units and the federal authority and a solid division of power between the legislature, the judiciary and the executive must be enshrined. It goes without saying that such a constitution must conform to basic international principles of human rights and the principles of democracy. It is likely that the constitutional settlement would be preceded with a provisional period. In that case, blue prints of federal and federating units constitutions should be outlined and adopted by whatever number of units the parties agree to, whether 2, 9, 15 or 26. However, it might be more feasible and viable option to select the nine former colonial provinces as a strongly built base for federal units.

It is customary for the states governed by a written Constitution to include in its provisions the following:

The Nature of the State This new constitution must define clearly the nature of the state, unitary or federal, and the system of government adopted whether presidential or a parliamentary democracy.

The Guiding Principles The guiding principles in constitutions are in fact the preamble that contains no legal force per se, but seeks to guide the government in its general policies. Such may include political, economic, social, cultural, and international objectives.

Citizens Rights and Freedoms This new constitution must stipulate the rights and the freedoms of citizens. An outline of the most crucial rights and freedoms to be protected by the constitution must be mentioned. Such rights have to conform to the internationally recognised principles for human rights, and serve as a ground for citizens' participation in a democratic environment. The outstanding question of equality in religion and equal opportunity based on citizenship should be stipulated for.

They should include internationally recognised human rights: - The right to freedom of beliefs, expression, equality, assembly and association, personal freedoms and security. - The right to equal treatment. - The right to education and training. - The Right to work, and to just and favourable conditions. - The right not to be tortured, degraded, or treated inhumanely. - The rights enshrined in the constitutions should be enjoyed without discrimination on the bases of sex, religion, race, colour, ethnic origin, etc.

The constitution should also stipulate here the extent of these rights and whether they are subject to a regulatory legislation. Much of the existing restrictions have to be removed, especially bearing in mind the tendency of Sudan legislations to centralises decisions.

The Composition of the Parliament This new constitution must stipulate for a strongly base parliamentary democracy, whether it is a single or double chamber, and the role and powers of the parliament in the legislative, financial and political fields.

In this context it might be a viable idea to institute a two-chamber parliament. One representing the whole Sudan and the other the federating units. Learning from the United States example, it is necessary to give both chambers adequate powers that would ensure the smooth and stable democratic life away from the executive influences such as dissolution.

The Executive When this new constitution stipulates for the presidential powers and the council of ministers role and the conditions for the election of the president, utmost care must be exercised to avoid a future dictatorship. Emergency powers, i.e. dissolving the parliament, had in the past been misused.

Most importantly it includes the power to dissolve parliament. Such powers have in the past been very controversial, and if we are looking for a true democracy, then such presidential powers should be eliminated.

The Judiciary This new constitution must provide for the independence of the judiciary and the administration of justice, including the interpretation and the protection of the constitution.

The Federal Units This new constitution must state the territorial components of the federation. Their original jurisdiction, powers, finances and relation with the centre shall be stated clearly and unambiguously.

Amendment Provisions The constitution when stipulates for its amendment, these shall be subject to greater consensus for the constitution to survive. In the meantime the use of presidential emergency powers to suspend the application of its provisions should be something of

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the past. Properly drafted rigid constitution is more desirable for future stability and continuity of democracy.

Remarks It is to be remembered that the creation of a practical democracy in the Sudan was impeded by a serious lack of protection, a mechanism that prevents its termination, and also by the lack of strong local and federal authorities. Strongly and democratically based political parties are wanting. The existence of strong federal and local authorities are essential for democracy, freedom, dignity and development. The new constitution of the Sudan should be paramount and take into consideration vesting of constitutional and legislative powers in the federal units, guarantees their independence financially and administratively from the centre. Political independence in its elections and the direct election of its local leaders.

Contentious issues such as religious should be solved and can be solved. Religion was not the cause for the conflict neither should it be allowed to be a barrier before peace bearing in mind that it must be accommodated in a way that would not create more problems later. Perfect secularism does not exist anywhere in the world. Shifting religious provisions to the constitutions of federating units is a viable option. Membership of international organisations, be it the Arab League, the African Union, or the Commonwealth, should be with the objective of serving the interest of the whole nation not just to please a few. Other issues such as grievances from discrimination whether political, personal or social, lack of development, fair share of power and revenue can, provided that there is a good will from both sides, be solved amicably.

The federalism that is preferred and proposed here is the one that ensures real and original autonomy to the federating units. Although such federalism will be administrative rather than a treaty based, the gravity and the complexity of the situation requires from all parties to concede that it should be a far-reaching autonomy. One could possibly stipulate for the right of the federating units to choose independence provided that such a decision is democratically arrived at. In the mean time, and in order to

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prevent centralisation from reoccurring, power distribution should be permanently shifted in the to-be-agreed-to constitution by stating what powers the federal authority should have thus preserving original jurisdiction in all other matters to the federating units. It goes without saying that the object of such a power balance between the federal and the federating units is to ensure that the federating units retain much of their independence in pursuing their internal affairs, economic and social development, whilst being consistent with the safety of the federation. It would enable the federating states to maintain and develop their own character as states as far as possible, while leaving the federal state with real power and national unity.

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Bibliography 1. Akol, Lam, the Present War and its Solution, in Francis Deng, Prosser Gifford, (Eds.), The Search for Peace and Unity in the Sudan, The Woodrow Wilson International Center for Scholars, 1987, USA.

2. Aleir Abel, Southern Sudan: Too Many Agreements Dishonored, Ithaca Press, Exeter, 1990, p.12.

3. Alier, Abel, Southern Sudan; Too many Agreements dishonored, p.235. Ithaca Press, London, 1990.

4. Bashir, Mohammed Omer, The Southern Sudan: Background to Conflict, C. Hurst and Co., 1968, London, UK.

5. Beshir, Omer Mohammed, The Southern Sudan from conflict to peace, p. 107, C. Hurst and Co., London, 1975.

6. Beshir, Omer, Mohammed, The Southern Sudan, from conflict to peace,., PP. 107, 108.

7. Collins, The Sudan, p. 31.

8. Collins: Shadows on the grass, pp. 185.

9. Deng, F. M. “War of Visions”, Washington D. C., The Broodings Institution. British administration of the Sudan, East Lansing: Michigan State University Press.

10. Deng, Francis, M., & Progger Gifford, The Search For Peace And Unity In The Sudan; ...Malwal, Bona, The roots of Current Contention, The Woodrow Wilson international centre for scholars, 1987, USA, pp. 9, 10.

11. Dugard, John, Self-Determination and Secession: is the case of Yugoslavia a precedent for Africa? African journal of international and comparative law, vol. 5, 1993, p. 164.

12. Dunstan M. War, The Southern Sudan: the problem of national integration, 1973 in The southern Sudan question, Abel Alier, UK, 1973, p.18.

13. Egdar O’ballance, The Secret War In The Sudan: 1955-1972, Faber and Faber limited, London, UK, 1977, pp. 40, 41.

14. Evans, D. Malcolm, Blackstone’s, International Law Documents, 3rd ed. Blackston press limited, 1991, p. 210.

15. Henderson, pp.201, 202.

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16. Holt M. P. and Daly W. M., A history of the Sudan, from the coming of Islam to the present day, 14th ed., Longman Group UK, 1988, p. 153.

17. Hurst, Hannum, Autonomy, sovereignty, and self-determination (the accommodation of conflicting rights), University of Pennsylvania press, USA, 1990, pp. 27-28.

18. Johnson, D. H., “The Southern Sudan: The root causes of a recurring civil war”, London (1992).

19. Lagu Joseph, Chronology of the North-South Conflict in the Sudan, paper edited 1997, pp. 10-11.

20. Lagu, Joseph, the leader of the Southern Sudan Liberation Movement (Anay Nya) who signed the Addis Ababa Agreement in 1972, Interview, London,

21. Lillich, B.R. And Hannum, H., The Concept Of Autonomy In International Law, 74, A.J.I.L., (1980), pp. 858-889, at p. 860.

22. Malancuk, Peter, Akehurs’s, Modern Introduction to International Law, 7th rev, Ed, 1998, Routlge, London, pp. 326-327.

23. Malanczuk, P., Akehurst’s Modern Introduction., p. 327.

24. Malwal, Bona, People and Power in Sudan, Ithaca Press, London, 1981, p.47.

25. McCorquodale, Robert, Self-Determination Beyond the Colonial Context and its Potential Impact on Africa, AJIL, vol. 4, 1994, 599.

26. Ministry of Foreign Affairs, Peace and Unity in the Sudan, Khartoum, 1973, p.45.

27. Mohammed Omer Bashir, The Sudan crossroad to Africa, Bodley Head (1965), London, UK

28. Oliver Abino, The Sudan, A Southern viewpoint, Oxford University Press 1970, p. 23.

29. Oliver Abino, The Sudan: A Southern Viewpoint, Oxford University Press, London, UK, 1970, p.12.

30. Sanders, D., Is Autonomy A Principle of International Law? 55 Nord. J.I., Nt’l (1986), pp. 17-21, at p. 17.

31. Sanderson, G. N., England, Europe and the Upper Nile, Edinburgh, 1965, pp. 6-7.

32. Shaw, Malcolm, International Law, 4th, ed. Cambridge University Press, 1997, p. 216.

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33. Shaw, Malcolm, Title To Territory In Africa, International Legal Issues, Clarendon press, Oxford, 1986. p. 180.

34. Sir James Robertson, Transition in Africa, London, 1974, p.107.

35. Suksi, Markku, Self-Determination and Autonomy: Applications and Implications, The Institute for Human Rights, Finland, kluwer law international, 1998, p. 1.

36. The Southern Sudan and the reform of the national integration, Dunstan, Wai M., The Southern Sudan Question, Abel Alier, p.17. Frank Cass London, 1973.

Reference Materials 1. Abu Saq, Oman, Mohamed, former Minster of culture and information (19983), an interview in Sudan Now, Magazine, vol. 200, August 1999.

2. ICJ Reports, Burkina Faso v. Mali case, 1986, p. 554.

3. ICJ Reports, The Namibia case, 1971, paragraph. 52.

4. ICJ Reports, Western Sahara Advisory Opinion, 1975, p. 162.

5. Interview with Profess David Ole Chant, former spokesman of rebel’s movement, now the head of peace department in Sudanese external ministry. August 15, 1999, Khartoum.

6. Letter from district commissioner, Western district, to governor, Equatoria, Waw, June 30, 1941, SGA.

7. Letters from R.O.C Brook to civil secretary, March 22, 1920, SGA.

8. Note by civil secretary to governor general’s council, April 3rd, 1944, SGA.

9. Note on situation regarding Southern Sudan, December 1947, SGA. The governor general’s dispatch to the High Commission in Cairo, No. 89/1C1 of August 4th, 1945.

10. Note on the case for the vernacular, SGA.

11. Notes by the Governor-General on June 12, 1927, SGA.

12. Parliament proceedings (unpublished).

13. Professor David De Chart, the head of peace dept. Sudan Ministry of foreign affairs, August 15th 1999, Khartoum.

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14. Sudan government, note on situation began during Southern Sudan, December 1947, SGA.

15. The Draft Declaration on the Rights of Indigenous Peoples which was adopted be the UN Working Group on Indigenous Populations, 1993.

16. The General Assembly resolution 1514(xv); the declaration on the granting of independence and peoples; the United Nations Declaration on Principles of International Law Concerning Friendly Relations and Co-operation between States, 1970.

17. The Khartoum Peace Agreement 1997

18. The Memorandum on Southern Sudan Policy 1930, issued by the Civil Secretary’s Office, Khartoum, January 1930.

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b. Summary of Discussion

1. If there is a place called “Southern Sudan”, which is separate from the rest of the country then Sudan will not be completely united. It would exclude many of the options that we have spoken of such as confederation and federation. We need to agree upon central facts and shed some light on the entity called “Southern Sudan”. The crisis in the Sudan is for all parties to solve. It is an overall crisis – not just about the North and the South. The current fighting in the Sudan is a manifestation of this crisis. The author seems to have confused secession and self-determination. He also stated that the main problem in the Sudan is not about the set of laws but their application. Before building democracy we need to ensure that the current system is dismantled. Whilst justice through affirmative action is useful, we need a redefinition of the terms identity and a redistribution of wealth. Secession and self- determination must be also defined. The issue of secession is a political decision and important for the South. Southern Sudan as an entity should not be dismissed. There is a strong federal government in the Sudan. Most parties have accepted self- determination. We should therefore not deliberate on it. The South will not back track on it. Many people link self-determination and secession because they believe that the former will lead to the latter.

2. Democracy is not well practised in the Sudan owing to the mistrust between parties. We need an environment conducive for the flourishing of civil society where there is freedom from arbitrary arrest. How can we start building confidence? We have done a very good intellectual exercise but there are currently no plans as to how we can go forward to discuss the disputed problems. People are very sceptical and concerned that a solution will be imposed from outside unless we hurry up with this conference. The organisers of this conference are those who need to help us build confidence.

3. One of the current dilemmas in the Sudan is the application of Shariah. Who will apply it in a proper manner? The NDA will not talk about the future without the separation of religion and state and the issue of self-determination being taken into consideration. Sudan has failed dismally to find the right constitution. A properly established constitution will form the basis of justice. Currently, the main cause of our war is injustice. There is more support for unity than opting out of the Sudan. We need to make a substantial advance. The issue here is political rather than constitutional – but the constitution is the basis of everything that we need so we need to get it right. The Americans have got it right and are now multinational nation in their make-up. We need to take into consideration all our individuals – until now only the interests of the leaders have been taken into consideration. The interim period has taken forty years and still Sudan has been unable to make a constitution.

4. We have so many options to choose from. The precedents mentioned do not lead to a single route. Confederations can either come from separate entities or from one. There is no legal answer or choice which is more suitable for the Sudan. It is a political process and it would take time to build a nation which really expresses what is desired. The idea of an interim period is very important as during this period we can make the right choices. We need to give ourselves a chance to make the choices.

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People feel uncomfortable about an interim period – they feel it will reinforce the current status quo – this does not necessarily need to happen. A federal state is a very complex system of government. In a federation you create legal entities - we have not yet reached this stage but we can work for this.

5. This initiative is encouraging and illuminating. We need to move faster otherwise others will over take the initiative. As a custodian, it has to be the leadership who show signs of conciliation and the GOS has to have a policy of positive discrimination. When we talk about the conflict we must not forget the problem about the North. There are many groups in the North. The Darfur, Beja and Ingessana people are demanding human and democratic rights. The GOS is signatory to the UN charter of Human Rights therefore it should uphold them. Furthermore, the people of marginalised areas also deserve the right of self- determination, they have taken armed struggle just as the South has and they are fighting on the same principles. Therefore, they should also be given the right.

6. In creating a new constitution we need political and legal inputs. The conduct of politics requires legal frameworks. Federations can be considered in national terms but equally “One Country Two Systems” could face the problem of central power in the hands of GOS and SPLA. Should secession occur then federations could be formed within the two separate states. Ethiopia has a unique form of federalism. Constitutions do not survive on their own and they cannot simply survive on the good-will of politicians. That is why the legal system will need to support this. There is already a constitution which has been signed and exists now. The interim period must include everybody – we can have an interim constitution for the Sudan. It will have to be passed by the parliament. Otherwise we will be under an Islamic constitution and that will be a constraint for us. There can also be two constitutions. The first for the long term and the second for the interim period.

7. At the end of 1991 in Frankfurt, the negotiators raised the option of self- determination for the first time for the Southerners. The North did not seem ready to give up the option of Shariah. The head of the GOS delegation chose the Islamic State for the North and sidelined the right of self-determination. He said that the GOS was not ready to mention the latter option because if this were done then the Government would be overthrown. In 1992 at Abuja the right of self-determination was discussed only to confirm unity. The government felt they were winning the war so the ideas of Frankfurt were dropped. The Khartoum Agreement was purely a Sudanese agreement and as the GOS did not honour it Riek Macar has now gone back to the SPLA. People are being killed by the army without investigations being made this has led to the failure of the agreement. Currently, the only practical solution is to bring in the opposition and to give them more weight. Currently, the GOS’s policy is to arm areas in order to depopulate them. This is a deliberate measure to encourage the Southerners to flee to the North.

8. Southern Sudan joined the North recently. Until 1928 it was under closed district ordinance and ruled from Juba. The final decision on Sudan was taken during the 1948 administrative conference. The South was not properly represented and both

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the North and South have been very persistent in their interpretation of unity. We want to bring unity. Therefore I propose these things. IGAD is 11years old now – we have been negotiating with them for that long. If the GOS is committed to unity then they must be genuine. We are genuine. Southern Sudan does exist – not only in geography but as a legal entity. Since the time of the Turks, the cultural, religious diversity of the South compared to the North has been recognised. The British also realised this difference and therefore they ruled the South as a separate country for a long time. The unity of Sudan was imposed some seven years before independence. The East and West and the centre are areas more marginalised than all others. They have never been recognised as entities.

9. Separation of politics and religion is very serious issue, which must be reviewed carefully. Last month John Garang gave a lecture in London and outlined three tracks to solve the problem. One of them was negotiation with the GOS. He said we came to deadlock because Shariah was part of the Government. In the Sudan we have the Islamic movement declaring a state on the basis of Shariah. The current constitution never mentioned a state religion. Let us all air our views whilst we sit together. Our God will guide us to peace if we are sincere. Since if there is a will there is a way. This is a way to reach compromises and in turn peace.

10. If a peace is to be achieved in the Sudan a number of contentious points should be resolved. The first concerns apartheid in the Sudan which is unfortunately not recognised by the international community. If you are black then you are considered second class. If you are Muslim you are slightly higher but still second class. Another contentious point is distribution of cabinet posts. No Southern Sudanese has been a minister of finance, defence, foreign affairs or attorney general in our own country. We are only given little ministries. Two other issues are that of Islamic law’s punishments, which are contrary to our traditional laws, and the problem of abduction, which is synonymous with slave trade. Finally, many believe that Sudan has a long way to resolve its problems with terrorism. Osama bin Laden had his headquarters in Khartoum for 5 years. Many Taleban remain in the Sudan. There is also the problem of state terrorism in the form of bombings which target hospitals, schools and markets. Regarding prisoners of war, the SPLM have released 5,000. The GOS has not released anyone because they kill their prisoners. It has been suggested that abduction among the Nuer and Dinka is equivalent to the Southern abduction by government sponsored militia. Among the Nuer and Dinka abduction led to an incorporation into the community as one with equal rights. This is very different to the situation now where Southerners are being abducted by Northerners to become slaves. It can not be compared with the traditional practise amongst the Nuer and Dinka. The militia who abduct Southerners are rewarded. If we are going to progress we must be very honest with ourselves.

11. We have to study closely the proper understanding of the term ‘Arab’ in the Sudan and the Arab community in the Sudan. The word Sudan is an Arab word meaning black; meaning a land of the blacks. Arab is now a cultural term rather than biological term and this is accepted terminology.

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12. The federal system in the Sudan is a failed system; therefore we need to have a transitional government. During the transitional period we need a constitutional process rather than a blueprint. Consideration of the constitution should be by highly qualified Sudanese lawyers and those of a similar experience from other countries. This will enable Sudan to benefit from the experience of others such as the French. To date the systems have failed and therefore other options need to be considered. There must be no loopholes in the law.

13. Previously Sudan had a commission of five men selected by political parties. Now in the Sudan Southern Sudanese constitute one third of the country. It would be fair that the number remains at five but that two people represent the South. These should represent the settled cultivators and semi-nomadic peoples. The remaining three should be deployed geographically amongst the East, the central North and the West. This would ensure that the entire country is represented, no people group will feel marginalised, and none will feel that they have the upper hand. The cabinet has to be apportioned evenly with the nine borders of Sudan being represented by one cabinet minister. The Prime Minister could be allowed to choose the rest but they should be evenly represented. This would form an interim representation which is equitably shared. The people could then vote for the temporary arrangement to become permanent.

14. The South is not an entity in international law in terms of a confederation. It is recognised as an entity but it is not a sovereign international entity. There should be unity by choice, not forced unity. Federalism could be applied as a wide-ranging framework, near to the meaning of the word confederation.

15. I appreciate enormously the frankness that has been demonstrated in these hearings. I believe that it brings us closer to the bones of contention. The GOS came into power under the banner of an Islamic system of government. There are a number of other Islamic groups – the Umma party and Democratic Unionist Party and the National Islamic Front. There are also other groups such as the Muslim Brothers and the Sanasuna who adhere to a strict interpretation of the traditions of the prophet. These five Islamic organisations are moving towards competing Islamic positions. The last two are ultra Islamic, they are on the right of the present Government of the Sudan. Any comprehensive resolution of the conflict must include these right wing Islamic groups.

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5. Transitional Arrangements: international experience and prospects for t transition in the Sudan by David Nailo N. Mayo a. Paper Presented by David Nailo N. Mayo

ABSTRACT In this paper, the concept of transition will be narrowed to a process of transferring political power from a non-democratic military-authoritarian dictatorship or one-party patrimonial regime to a civilian-led democratic pluralism. I will discuss four models of transition and transitional arrangements that have been experienced since the 1970s. The purpose of doing so is to: (i) understand the causes of transition in each model; (ii) articulate how a regime ends, and (iii) measure the pace of transition when change is initiated by the incumbent and/or when change is initiated by the opposition. Finally, I will use the South African transitional experience as a comparative case study to highlight similarities and dissimilarities between the NIF regime in the Sudan and Apartheid regime in South Africa.

I. INTRODUCTION AND CRITICAL ISSUES IN TRANSITION STUDIES

In democratic states, regular periodic elections are the mechanism of affirming an incumbent leader or electing a new representative body.1 In such situations, the question of transition is not a big issue because the customary democratic norms are observed where losers yield power in an orderly and peaceful manner to the winners. However, in non-democratic systems, the method(s) of assuming or relinquishing office are usually coercive, bloody and destructive processes. These are realities that confront us on our TV screens everyday when the CNN Breaking News brings stories from Zimbabwe, East Timor, Argentina, Colombia, etc. However, the causes of change, the origins and dynamics of crises of authoritarian regimes, and conditions for the emergence of democracy can never be uniform in each case. This is because regime types, strategies of individual actors or a result of complex processes, such as cultural, ideological, social,

1 Ware, Alan. 1996. Political Parties and Party Systems. Oxford, Oxford University Press; pp.124-125.

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and economic changes, cannot be generalised transnationally.2 Moreover, interim governments, as Linz and Stepan observed, “are highly fluid situations and can lead to diametrically opposite outcomes depending on which groups are most powerful, and especially on whether elections or sweeping decree reforms are considered to be the first priority.”3 Bratton and van de Walle’s study of transition in Africa in early 1990s, showed that:

Even in democratising countries, transitions unfold with occasional steps back for every step forward. As some countries advance, others regress into authoritarian rule. And some years are better for democratisation than others, making long- term predictions from short-term trends risky at best…. At any given time, optimists can discover reasons for celebration in some countries, and sceptics will find their worst fears confirmed in others.4

As we shall see in the case of South Africa, many parties vie for political control of power during the interim period as a step to establishing a strong foothold in post- transitional period -- and this in essence intensifies the claims, demands, and stakes.

1.1. Definition and Concept of Transition A transition starts at the moment the authoritarian ruler(s) announce their intent to accede to the demands of the opposition and liberalise and possibly democratise the political life in the country.5 As such, a transitional government is defined as "a hiatus between the demise of the old regime and the establishment of the new order dominated by interim governments."6 O’Donnell and Schmitter, the architects of transitional studies, define a transition in a more comprehensive way as: an interval between one political regime and

2 Diane Ethier “Introduction: Processes of Transition and Democratic Consolidation: Theoretical Indicators” in Ethier, Diane (ed). 1990. Democratic Transition and Consolidation in Southern Europe, Latin America and Southeast Asia. London, MacMillan, p.4 3 Linz, Juan J. and Afred Stepan. 1996. Problems of Democratic Transition and Consolidation: Southern Europe, South America and Post-Communist Europe. Baltimore, John Hopkins University Press, p.71) 4Bratton and van de Walle, p.97. 5 Linz, Juan J. and Afred Stepan. 1996. Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe. Baltimore, John Hopkins University Press, p.3; Haggard, Stephan and Robert R. Kaufman. 1995. The Political Economy of Democratic Transitions. Princeton, Princeton University Press; pp.69-74.

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another which starts at the launching of the process of dissolution of an authoritarian regime, and installation of some form of democratic rule, the return of another authoritarian rule, or the emergence of a revolutionary alternative.7 On the other hand, a regime is defined as:

The ensemble of patterns, explicit or not, that determines the forms and channels of access to principal governmental position, the characteristics of the actors who are admitted and excluded from such access, and the resources or strategies that they can use to gain access (ibid, p.73).

In a non-democratic regime, transition starts as soon as the incumbent accedes to the demands of the opposition or heeds international pressure for change and starts a liberalisation process. Liberalisation, just to distinguish it with democratisation, principally means that the regime has relaxed government controls and restrictions on political activity in the country and permitted citizens to exercise their civil liberties with freedom of press and assembly, and so forth. While democratisation, which could go hand in hand with liberalisation or not, presumes the construction of institutions for divided powers; elections and electoral rules; registration of political parties, etc.8 Such institutions and laws made therefrom should embrace pluralism, proportional and consociational democracy more than elections which only affirm the hegemony of one group – as Atta el-Battahani’s study of seven elections in the Sudan have shown.9

Atta el-Battahani establishes that seven democratic and multi-party elections have been held in Sudan between 1953 and 1996. But each of these elections only affirmed the Northern Sudanese hegemony because there exists a systematic tension between a genuine representation of voter choice and the formal procedures of democracy. He believes that a gradual, uneven process of an emerging citizenry determines to fully

6 Shain, Yossi and Juan J. Linz.1995. Between States: Interim Governments and Democratic Transition. Cambridge, Cambridge University Press, p.4 7 O’Donnell, Guillermo and Phillippe Schmitter. 1986. “Tentative Conclusions about Uncertain Democracies” in O’Donnell, et al. eds. Transitions from Authoritarian Rule. Baltimore, John Hopkins University Press, p.10 8 Brattton, Michael and Nicholas van de Walle. 1997. Democratic Experiments in Africa: Regime Transitions in Comparative Perspective. Cambridge, Cambridge University Press, p.108.

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acquire and enjoy political and economic rights vis a vis a conservative, Northern-based hegemonic power bloc of ruling classes and groups has been the underlying thrust of this tension.10 Hence, as we are seeking for a possible transition from the National Islamic Front (NIF) regime to democratic pluralism in the Sudan, we may need to hammer at the tensions Atta el-Battahani postulates.

In the following sections, I will attempt to highlight comparative conditions in which various transitional approaches, patterns or paths many non-democratic regimes may have taken in transforming their regimes into pluralistic democracies since the early 1970s. The purpose of such comparative exploration is to draw possible lessons for transition in the Sudan.

1.2 The Pace of Transition We have defined a transition process as fluid and unpredictable in its outcome because this depends on the regime type and political conditions underlying the causes of transition. The pace and path of transition would also depend on who is initiating the transition: the incumbent or the opposition, and under what conditions. The illustration in Table I below shows a matrix of what could happen when regime leaders or factions within the regime initiate change, and when the opposition initiates change or makes a pact with the incumbent. First, when the incumbent initiates democratisation process, the pace of transition would be gradual and could take a long time for the transition to be completed and for democracy to be consolidated.11 In such situations, the length of transition may depend on the internal reformers within the regime or how the opposition and/or an international community push forward for change. If there were no strong opposition or international pressure, the transition process would either be terminated or reversed. As Bratton and van de Walle noted in Sub-Saharan Africa in the early 1990s, 12 countries that initiated liberalisation end up blocking transitional process some years later, while another group of countries (N=12) underwent flawed transition, and 2

9 Battahani, Atta el-. “Multi-Party Eletions and the Predicament of Northern Hegemony in Sudan” in Cowen, Michael and Liisa Laakso (eds). 2002. Multi-Party Elections in Africa. Oxford, James Currey, 10 Battahani, pp.251-252.

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countries (Sudan and Liberia) hardly underwent transition (Bratton and van de Walle, p.119-120).

Table I: Pace of Transition

Change Initiated by Regime Leaders Change Initiated by the Opposition

Gradual: Incremental democratisation, Transition through revolutionary struggle is uncertain transition and likely to be likely; the cycle of violence and instability blocked/reversed (depending on pressure) may follow a successful revolution

Rapid: Transition through transaction Rapture or replacement

In countries that underwent flawed transitions, in most cases, an authoritarian regime initiate well-guarded liberalisation purposely to weaken or co-opt the opposition: once that were achieved, there was no longer any reason to complete the transition.

Second, when change is initiated by the regime amidst political or economic crisis, the change is likely to be rapid, and transition through transaction is likely (Mainwaring, pp.320-323). In transition through transaction (ibid, p.323), an authoritarian regime chooses to continue opening the political system because of one of the following: • The costs of staying in power increase dramatically (due to a succession of crisis, declining military cohesion, and legitimacy crisis); • The costs of liberalisation decrease (i.e. elimination of perceive threat, pacts, stability of socio-economic order).

Third, if a change is initiated by the opposition through riots or revolutionary struggle, the demise of a powerful military or authoritarian regime may be accelerated when the popular uprising against the regime or internal reformers in the regime, have seized the opportunity to push forward reforms. The Sudan (1964) and Benin (1990) were

11 Mainwaring, Scott “Transitions to Democracy and Democratic Consolidation: Theoretical and Comparative Issues” in Mainwaring, Scott, Guillermo O’Donnell and J. Samuel Valenzuela. 1992. Issues in Democratic Consolidation. Notre Dame, University of Notre Dame Press, pp.319-323.

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transitions, which started soon after riots pulled down the military regimes of General Ibrahim Abboud and General Mathew Kerokou respectively. Such transitions resulted in rupture, and a completely new personality took over from the old guard. The rupture types of transitions generally occur under military coup d’états or revolutionary take- overs. Bearing these paths in mind, let me now turn to discuss typologies of transitional governments in the recent history.

II. TYPOLOGIES OF TRANSITIONAL GOVERNMENTS

The study of transitions has been an attempt to shed light on the causes, outcomes, modalities, and conditions of authoritarian governments undergoing change.12 Generally four types of transition models have been identified. And these are: (1) a revolutionary provisional government; (2) power-sharing interim governments (where the incumbent share power with the opposition); (3) incumbent caretaker government in which members of the outgoing elite manage the transition, supervise the elections and transfer power to the elected government; and (4) international interim governments (Shain and Linz, p.5). The merits and demerits of each model are surveyed next.

2.1 Revolutionary Provisional Government A revolutionary provisional government occurs when a group of army officers usurp power from a dictator purposely to relieve the country of a dictatorship. Here the junta positions itself as an interim government to lead the country toward democratisation and oversee the election process. In most instances, the military may justify its seizure of power by condemning the policies of the predecessor and putting their programme as provisional – giving an impression that they would return to the barracks once those mistakes they identified have been corrected. But in between, the administration of the generals or the colonels becomes even worse than the dictatorship they overthrew.

In theory a revolutionary provisional government usurps power from non-democratic regime such as the military juntas, Sultanic regimes or other forms of patrimonial one-

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party state – and sometimes they end up creating a similar system. However, Sultanic regimes, according to Max Weber who coined the term, thought that it was an extreme case of patrimonialism where public administration and the military are used arbitrarily at the discretion of the ruler.13 It is also clear that:

Sultanic rule reduces the possibility of a negotiated settlement for a democratic transfer of power because of the lack of institutional channels for bargaining over transition rules and power sharing. The brutal suppression of the opposition by the incumbent elite reduces further the likelihood of forming a civilian-military union to launch and administer a political opening from above. Even when incumbent dictators are inclined to compromise and step down peacefully, they may still be inhibited by fear of prosecution for their abusive practices (Shain & Linz, pp.28-29).

Thus the elements of Sultanic regimes are worth stating unambiguously as follows: First, they restrict smooth transition to democratic rule; rely on violence as the mode of public administration; and usually inhibit a smooth transfer of power. What distinguishes a democratic government from the non-democratic one is not so much the regime’s methods and degree of control over society, its ideological or other claims to legitimacy, its political and administrative structure or the goals it seeks to attain. Rather, it is its perception and use of force (economic or military control) aimed at total domination as a tool for maintaining order and transforming society through the monopoly and the right to explain ideology and policy.14 Second, experiences of Sultanic regimes elsewhere testify that the incumbent regime about to step down can use devices such as threats of political chaos to put a halt to a transitional process altogether. Third, when a Sultanic regime finally wishes to step down, it can extract far wider concessions from the opposition including the possibility of depositing a "tutelary democracy" to maintain influence - including veto power – after it has stepped out of power. This was witnessed

12 Ethier, Diane “Introduction: Processes of Transition and Democratic Consolidation: Theoretical Indicators” in Ethier, Diane (ed). 1990. Democratic Transition and Consolidation in Southern Europe, Latin America and Southeast Asia. London, MacMillan, p.3 13 Weber, Max. 1978. Economy and Society: An Outline of Interpretive Sociology. (ed. Guenther Roth and Claus Wittich) Berkeley, University of California Press, pp. 231-232.

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in many parts of Latin America including Uruguay in 1984 (Shain and Linz, p.60; Pinkney, p.64).

Table II: Typologies of Transitional Governments

Type of Causes of Transition How Regime Ended Transition Model

Revolutionary Death of dictator (Abacha in Rupture/replacement; difficult Provisional Nigeria, Franco in Spain), Defeat and taxing transition (e.g. Chile, Governments in War (Argentina, Greece, Argentina), likely to deposit Portugal), strong opposition tutelary democracy or total (Chile, Uruguay) rapture when the regime collapses (e.g. Idi Amin in Uganda, Mobutu in Zaire).

Power Sharing Strong opposition Peaceful transfer of power after Interim interim period Governments

Incumbent Revolution from the top due to Power-sharing as in South Caretaker rising costs of repression African transition from Apartheid Governments (economic decay), international to democratic pluralism condemnation, legitimacy crisis, rupture within the ruling high command, strong opposition, threat of revolt or leader wishes to step down or pre-empts or undertakes revolution from the top.

International State collapse or serious chaos UN supervises elections before Interim likely to cause serious regional handing power to an elected body Governments instability as in Cyprus (1964), Congo (1960-66), Namibia, Cambodia, East Timor, etc.

14Brooker, Paul. 2000. Non-Democratic Regimes: Theory, Government and Politics. London, MacMillan, pp.7-18.

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Source: Shain and Linz, Between States, pp.1-75; Pinkney, Right Wing Military Govt. A tutelary democracy, as a limited democracy, can also include a situation where the incumbent caretaker chooses a replacement, normally a civilian elite, who is made a figure head for a military making a "calculated retreat" but whom the military know would not persecute them for war crimes. Adam Przeworski defines "tutelary democracy" as: formally democratic institutions, but in which the power apparatus, typically reduced by … the armed forces, retains capacity to intervene to correct undesirable states of affairs (Quoted in Shain and Linz, p.60). Tutelary powers, according to McGuire, have two main embodiments:

Constitutional clauses that grant the military the right to defend the fundamental interests of the nation (including at times when such "defence" sets the military at odds with the decisions of an elected government), and military-led National Security Councils that reserve the right to oversee all aspects of government policy (with implicit threat of intervention should elected officials do anything the military deems harmful to national security) (McGuire, p.204).

The military in post-1985 Brazil, post-1989 Chile, and post-1974 Portugal deposited tutelary democracies behind. For instance, in Argentina, the military after 1983 is a case where the military junta inserted clauses of tutelary powers, including overseeing the elections. As an incumbent caretaker government (due to weak opposition), the military made the transition to civilian rule conditional on: (i) Participation of the military in the future government; (ii) Rejection of any inquiry into the dirty war or human rights violations and (iii) Prohibiting the dismissal of the judges appointed by the military junta.15

The Argentinean junta under General Jorge Videla, like the NIF in Sudan, had unleashed a campaign of terror hitherto unknown in Argentinean history. The military pledged that: "We are going to have to kill 50,000 people: 25,000 subversives, 20,000

15 McGuire, James W. “Interim Government and Democratic Consolidation: Argentina in Comparative Perspective.” in Shain and Linz (1995), pp.188-190

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sympathisers and we will make 5,000 mistakes (McGuire, p.183).” Indeed they did all these, and had it not been of their total defeat in the British-Argentinean War of April- June 1982 over Falkland/Malvinas Islands, it was almost impossible that they would have relinquished power at all. Like any repressive regime, attempts by the military to drum a nationalist frenzy and rally support around the national flag only fell upon deaf ears. And Britain with U.S. support easily drove Argentina into the 14 June 1982 surrender.

Even then, the military made transition in Argentina quite difficult. They insisted that immunity from prosecution for human rights violations during the "dirty war" must be guaranteed. These privileges were granted as part of the deal, but these conditions were only to immobilise democratic experiment of President Raul Alfonsin new civilian government.16 Furthermore, the relatives of thousands of those who were kidnapped and disappeared, such as the “Mothers of the Plaza de Mayo,” expected some form of justice to bring those responsible before the law. Claus Ruser, the then American Ambassador in Buenos Aires, noted that: “hundreds of officers in the armed forces had been involved to some degree [in the dirty war], yet it was clearly impractical to prosecute them all”.

In addition, constant threats of military coup d’état paralysed any action by Alfonsin government’s independent commission (CONADEP) to prosecute senior military officers and most got away with murder (Guest, p.381). However, the Argentina military, by April 1983, relaxed its grip upon the state and admitted that the "dirty war" included many "errors" and "as it happens in all armed conflicts, may have sometimes exceeded the limits of respect for fundamental rights (McGuire, pp.188-189). Although the time was too short to tinker with the constitution, yet the military were able to design an amnesty for themselves, including making sure the judges they appointed were not removed by the civilian government of Alfonsin. Indeed, it is clear that when the incumbents manage to dictate constitutional norms that pre-determine the nature of the political system, democratic practices may be imperilled for years to come. I will return

16 Guest, Ian. 1990. Behind the Disappearances: Argentina's Dirty War Against Human Rights and the United Nations. Philadelphia, The University of Pennsylvannia Press.

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to this point when I will discuss about democratic consolidation later on. Suffice to say authoritarian regimes threaten democracy everywhere they take over control.

2.2 Power Sharing Interim Governments The Power-Sharing Interim Governments (PSIG), sometimes called civil-military interim government (Pinkney, pp72-85), arise where the incumbent and the opposition agree to share power during the interim period. PSIG model, as rule, is a negotiated transition or “reforma-pactada.” As part of liberalisation, an incumbent usually sets some conditions - including the demand to administer the interim government and oversee the elections - as away of stepping down. Examples of negotiated reforms and pacts have been witnessed under General Morales Bermudez of Peru in 1980; General Gregorio Alvarez of Uruguay in 1984; and General Figueiredo of Brazil in 1985. As we shall see in the next section, internal economic crisis were instrumental in forcing change in these countries (Haggard & Kaufman, pp.69-74). Shain and Linz noted some advantages of this model in that the power-sharing element imparts a degree of legitimacy upon the opposition "without totally discrediting the outgoing administration" and negotiation also reduces the incumbent's fear of losing everything in the transition (Shain and Linz, p.42). Furthermore, a negotiated transition permits the following: (1) a pact where compromises among competing elites attempt to craft long term accommodation of conflict and institutionalisation of the distribution of power in the governing process; and (2) a negotiation permits the incumbent to lead the transitional government and supervise the elections (Sharin and Linz, p.41).

The ability of the belligerents to achieve their objectives through negotiation is always assumed the best way to terminate any conflict as structures erected under a negotiated settlement are likely to preserve peace by promoting co-operation, trust building and harmony. In divided societies, the power sharing interim arrangement appears the most attractive because it is generally peaceful and bequeaths tolerant political culture upon

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the successor governments. Indeed, a negotiation leading to power sharing - as it is likely to address the root causes of conflict - imbues many opportunities for sustainable peace.17

Meanwhile, PSIG are unlikely: “when the outgoing elite, even when still in control, is directly implicated in violent suppression of the opposition, the perpetration of human rights violations, or in economic crimes and corruption. In such cases the democratic forces are more likely to prefer to shy away from a unity interim coalition, fearing the stigma of the incumbent’s unpopularity (Shain and Linz, p.48).

2.3 Incumbent Caretaker Government Like PSIG and transition through transaction, the incumbent caretaker model is a transition which comes about as a result of either internal reform or a direct pact between the incumbent and the opposition. Normally, the authoritarian leader initiates transition either: (1) due to growing opposition, economic deterioration, invective quarrelling within the ruling council, or threat of military revolt. (2) The application of coercive instruments have resulted in diminishing returns i.e. the costs of repression are growing much higher, and people no longer fear repression. Instead they become defiant and fight with the police and security in the streets. In the later part of this paper, I will use the case of transition from the White Apartheid regime in South Africa to articulate the utility of this model.

2.4 The International Interim Government The international interim government comes under the UN Security Council auspicious, authorised by the Security Council under Chapter VII Articles 41 and 42 and includes the imposition of sanctions, blockades, or deployment of military forces to "maintain or restore international peace and security." Chapter VII includes peace enforcement and peacekeeping or both. The International Interim Government is mostly aimed at preventing chaos and disorder of significant proportion, which could cause regional

17 Assefa, Hezkias and George Wachira (eds). Peace Making and Democratisation in Africa. Nairobi, East African Educational Publishers

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instability or state collapse. These are generally complex and emergency-led interventions as in Congo in the 1960s18 or Somalia in 1992.

Unlike peace enforcement missions, which do not require the consent of the warring parties, peacekeeping missions often come when both belligerent parties agree to the UN mediation - as were the cases of UN involvement in The Middle East (in Palestine in the 1948-66; UN Emergency Force in the Suez Canal Crisis of 1956), the UN Observation Group in Lebanon following the 1957 Crisis, or the UN Observation Mission in Yemen after 1963.19 These early phases of UN involvement were to be followed by many missions that almost became a routine practice.

In Southern Africa, the United Nations Transitional Assistance Group (UNTAG) for Namibia stands as a clear case. UNTAG, headed by Martti Ahtisaari, the UN Special Representative to Namibia, was given the task to govern Namibia during the interim period and implement the Security Council Resolution 435 of 1978, which had been hitherto blocked by South African occupation. The UN supervised transition was now scheduled to begin on 1 April 1989, and for elections to follow in November. The South African sponsored Democratic Turnhalle Alliance (DTA) attempted to disrupt the elections with sporadic violence here and there, but elections went as scheduled: SWAPO secured 57 per cent of the 700,000 registered voters, and therefore gained 41 of the 72 seats in the new Constituent Assembly. DTA settled with 21, and the rest went to smaller parties. The UN declared the electoral results as free and fair (Shain and Linz, p.67).

The UN intention to intervene in the Sudanese conflict beyond its UN Operational Lifeline Sudan, which is limited to relief and humanitarian activities, remains remote. The reasons may be geopolitical or sympathisers just rely on certain techniques rather than "Peace Enforcement" (which is normally an imposition of solution even without the consent of the warring parties) as authorised in Chapter VII of the UN. Today foreign

18 Georges Abi-Saab. 1978. The United Nations Operation in the Congo, 1960-64. Oxford, Oxford University Press.

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nations do not want the SPLA to be overrun by the NIF, and instead strive to sustain some balance of power, which favours negotiation. The Nuba Mountains peace deal which the “troika” group of countries (Britain, Norway, and U.S.) see as a litmus test to expand for the whole country20, could drag the UN to expand its OLS activities to some peacekeeping role during the interim period. Indeed, the presence of a force that could monitor the cease-fire and supervise a referendum could provide an atmosphere conducive for a free and fair exercise of a plebiscite by the war affected regions of Sudan.

III. TRANSITION IN SOUTH AFRICA: LESSONS FOR SUDAN?

In this section, I will discuss the transitional experience in South Africa. I believe that South African transitional process demonstrates a very unique case in transition studies, because of the following: (1) To uproot Apartheid was the most momentous and epic transition ever to be witnessed in any patrimonial or exclusive system;

(2) The incumbent initiated liberalisation and a two-stage gradualist transition without sharing power with the opposition for nearly three years (February 1990 to December 1993). After three years and a series of negotiations with the opposition, the opposition was now invited to share power in the Transitional Executive Council (TEC), or phase two of the transition which was able to write the interim constitution and prepare for elections before power was handed to the winners; and

(3) The leadership qualities of President de Klerk and Nelson Mandela were also unique. For instance, even when the ANC won a landslide election in April 1994, it did not use that mandate to initiate reverse

19 Morphet, Sally. "UN Peacekeeping and Election-Monitoring" in Roberts, Adam and Benedict Kingsbury. (eds). 1993. United Nations, Divided World: The UN's Roles in International Relations. Oxford, Oxford University Press, pp.183-192.

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discrimination laws: rather coalition government with the minority parties under the proportionality principle was observed.

Can the two-stage approach to transition experience in South Africa work in the Sudan? What similarities and/or dissimilarities can we draw? I will attempt to answer these questions below. I will show the causes of transition and how the powerful Afrikaner rule was systematically wound down by international sanctions, and the leadership qualities and negotiating skills of Mandela and de Klerk. Thereafter, I will then discuss a two-stage approach to transition, and finally how the National Party (NP) and African National Congress (ANC) shared power in the Transitional Executive Council (TEC) with other parties before the elections in April 1994. I believe these are important transitional landmarks, of which any country, like the Sudan, struggle to create a transition would find a great deal of relevance in understanding every footmark in the Codesa and Multi-Party Negotiation Process.

3.1. The Causes of Transition in South Africa The Afrikaner white rule was a super power in the whole African continent: it had the strongest economy in Africa; abundant natural resources; the best and highly sophisticated army and highly developed infrastructure. In social terms its rulers saw themselves sociologically and biologically superior and distinct from the native black society, and they aspired for a national development and political dispensation that should continue to be a “separate and independent” entity from the majority blacks.21 Even the dominant Dutch Reformed Church justified group boundaries as morally necessary.22

Why then did the white leaders - who were raised and socialised to appreciate the racial distinctions – co-operate in dismantling Apartheid? This section will respond to this question. I argue that the principal causes of transition in South Africa were twofold.

20 International Crisis Group. “Capturing the Moment: Sudan’s Peace Process in the Balance” (Africa Report No.42, Brussels, 3 April 2002). 21 Hermann Giliomee “The Growth of Afrikaner Identity” in Beinart, William and Saul Dubow (eds.). 1995. Segregation and Apartheid in Twentieth Century South Africa. London, Routledge, pp.191-199. 22 De Gruchy, John W. 1979. The Church Struggle in South Africa. Grand Rapids (MI), Eerdmans, pp.69-85.

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First, the role of international community in responding to appeals for condemnation of Apartheid system; the imposition and enforcement of economic and political sanctions against South African state to kill Apartheid; and the collapse of the Soviet Union were key causes of change in South Africa. Second, the tenacity of internal opposition: crippling strikes and boycotts, marches, demonstrations, sit-downs, etc. imposed a huge and costly bureaucracy, which the imposition of sanctions could only bring a rumbling collapse of the system itself – that is, the costs of repression are unsustainable.

In many case studies on the utility of political and economic sanctions in international relations, South Africa is a clear case where the international community co-operated fully23 to condemn, impose and enforce political and economic sanctions against South African state.24 As Guelke wrote: “South Africa exemplifies the role that international community is capable of playing in bringing about change in situations where there is a clear violation of its basic norms, such as that of self-determination.”25 The objects of sanctions, as clearly explained in Hanlon and Omond’s directory, were punitive and directly targeted to dissuade the Botha’s regime from maintaining apartheid. Since the rise of the UN, and unlike the fuzzy League of Nations, diplomacy has been guided by norms whereby nation-states are expected to observe. If they don’t, other nations, acting together in concert of a few strong powers, can impose punitive sanctions against the offender. As Doxey establishes: “Economic strength has always been recognised as a vital component of power and in the course of war it is an obvious target for attack, by military as well as economic means.”26

23 It should be stated that sanctions could have the intended effect only if they are fully implemented, and no evasion routes of such economic penalties is possible. For details, see: Drezner, Daniel W. 1999. The Sanctions Paradox: Economic Statecraft and International Relations. Cambridge, Cambridge University Press. 24 The sanctions included: bans on sales and technology transfer to RSA; purchases, financial bans, divestment of major companies, cutting air and sea links, oil and oil products, a variety of diplomatic measures ranging from a complete break in diplomatic relations to the expulsion and/or withdrawal of various attaches, restrictions of movement and visas, arms and armaments, etc. For details, see directory of these sanctions in Hanlon, Joseph and Roger Omond. 1987. The Sanctions Handbook: For or Against?,. London, Penguin Books, pp.300-365. 25 Guelke, Adrian “South Africa’s Transition: Lessons for East Timor?” in Hainsworth, Paul and Stephen McCloskey (eds.). 2000. The East Timor Question: The Struggle for Independence from Indonesia. London, St. Martin’s Press, p.186. 26 Doxey, Margaret P. 1971. Economic Sanctions and International Enforcement. Oxford, Oxford University Press, p.14

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The proponents of sanctions in South Africa, most notably its architects Bishop Desmond Tutu and Dr. Alan Boesak, could only invoke the sticks and carrots commonly used by nation-states to police its members. They realised that there was nothing that the entrenched Afrikaner rulers feared more than lobbying the international community to impose sanctions upon Pretoria’s government. In a press conference on 2 April 1986 in Johannesburg, Bishop Tutu said that all attempts to persuade the government to dismantle Apartheid had failed27 and urged the international community that: “Our land is burning and bleeding and so I call on the international community to apply punitive sanctions against this government (Hanlon and Omond, p19).” As expected, the response from the government and especially the business sector to the launch of sanctions against South Africa was swift in condemning the Bishop’s call (ibid, pp.19-20). Many leaders including President Reagan and Prime Minister Margaret Thatcher, while seeking a peaceful change in South Africa, did not support the imposition of sanctions. For instance, Thatcher argued that:

Admitted that fundamental changes must be made in South Africa’s system, the question was of how best to achieve them. It seemed to me that the worst approach was to isolate South Africa further. Indeed, the isolation had already gone too far, contributing to an inflexible siege mentality among the governing Afrikaner class.28

But Bishop Tutu continued his speaking tours urging for the imposition and tightening of sanctions against Apartheid regime. Indeed, as these sanctions were starting to take their toll, while efforts to evade sanctions were narrowed, the more the politics of sanctions intensified. In South Africa, for instance, the opinion on sanctions more or less split the black community who, although dismantling Apartheid had been in their best interest, fought against sanctions that hurt blacks more than the whites. But Bishop Tutu ridiculed such critics that “I hope that most who use this argument would just drop it quietly and stop being so hypocritical” (Hanlon and Omond, p.19).

27 Before the press release, Bishop Tutu was tottering on the idea of persuasive sanctions to secure the abolition of migrant labour, end of pass laws, the rights for labour unions, investment in black education, and removal of soldiers from the black townships.

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Although a growing international condemnation and diplomatic isolation of the white regime due to its policies could no longer be sustained (Wintrobe 1998, pp.191-194), yet government of President P. W. Botha was ever defiant against the international opinion. First, for the Afrikaner elder statesmen, including President Botha, apartness was their political heritage and white supremacy, which must be defended. According to Spitz and Chaskalson:

For Botha to have started major changes would have amounted to a repudiation of his political heritage. He and others like him were impeded politically by their background and personally by their lack of courage and imagination. De Klerk, whose rise to political prominence took place during a period of increasing disunity in Afrikaner politics, was not lacking in such qualities.29

We should recall that Botha’s successor, President FW de Klerk did not come to undo apartheid - just as Mikhail Gorbachev did not intend Perestroika to undo the USSR - rather, de Klerk was trying to undertake reforms in such a way that it would preserve white dominance and a major role of NP in the political process. And he hoped to achieve this through negotiation with the ANC, which was seen in the white circles as moderate.

Secondly, the “willingness” of the international community to impose and tighten sanctions owes much to the demise of the Soviet Union. The fear of Communism as an alternative force to Capitalism was removed by Perestroika and Glasnost thus paving the way for moral arguments. Bishop Tutu carried more weight undiluted by ideological consideration. For instance, at the height of the Cold War, and throughout the 1970s, South Africa defied UN Resolutions 385 and Security Council Resolution 435 calling it to pull out of Namibia. Major capitalist nations supported South Africa – as a buffer for capitalism that was threatened by Socialist states of Frelimo in Mozambique, Zimbabwe, Angola, etc. It was not until 1988 after a combination of superpower collusion and

28 Harvey, Robert, The Fall of Apartheid, p.170. 29 Spitz, Richard and Matthew Chaskalson. 2000. The Politics of Transition: A Hidden History of South Africa’s Negotiated Settlement. Oxford, Hart Publishers, p.14

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internal economic and political pressures that it finally agreed to the implementation of the UN resolutions (Shain and Linz, p.67). It was also in the same consideration that support for Renamo and UNITA guerrillas in Mozambique and Angola respectively was lessened. And by 1991, de Klerk urged Dhlakama of Renamo to negotiate seriously with Frelimo Government in Mozambique.30 It is doubtful whether the change in the Southern Africa region could have been so rapid had it not been for international events.

However, due to these two principle factors, the transition in South Africa was brought to centre stage, and kept rolling. In the next section, I will turn to discuss the two-stage transitional experience in South Africa before I discuss the difficult constitutional matters preceding the Transitional Executive Council.

3.2 Two-stage Transition Approach From February 1990 to December 1993, the first phase of transition, the incumbent ruled without including the opposition in the government – but the pace of transition and negotiations with the opposition kept rolling. Since taking office in 1989, President F. W. de Klerk realised that the economic and political costs of maintaining the Afrikaner Volkstaat were mounting, while initiating Perestroika in South Africa could lessen the burdens.31 In October 1989, he tested the waters by releasing Walter Sisulu, a senior ANC member held together with Nelson Mandela in Robin Island. On 2 February 1990, President Frederick de Klerk made an epoch making speech in Parliament that heralded the beginning of transition in South Africa. He announced the unbanning of ANC and its armed-wing (Umkhonto we Sizwe), South African Communist Party (SACP), and 30 other parties in the liberation struggle, and the release of political prisoners including Nelson Mandela.32

This change came out of a great deal of soul searching in the white camp, and also many focused and background meetings held behind closed doors like ours today. Proposals of

30 Vines, Alex. 1996. Renamo: From Terrorism to Democracy in Mozambique?. London, James Currey, pp.131-143. 31 Harvey, Robert. 2001. The Fall of Apartheid: The Inside Story from Smuts to Mbeki. London, Pelgrave. 32 Harvey, Robert. 2001. The Fall of Apartheid: The Inside Story from Smuts to Mbeki. London, Pelgrave, pp.202-203; Spitz, Richard and Matthew Chaskalson. 2000. The Politics of Transition: A Hidden History of South Africa’s Negotiated Settlement. Oxford, Hart Publishing, pp.4-5.

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which were shared with the new government of de Klerk. Robert Harvey tells us of a conversation he had with de Klerk that:

I told Mr de Klerk that [reforming Apartheid] was unacceptable to the ANC. I added that it was not in his interest to retain this concept [minority rights] for it gave the impression that he wanted to modernize apartheid without abandoning it; this was damaging his image and that of the National Party in the eyes of the progressive forces in this country and around the world. An oppressive system cannot be reformed, I said; it must be entirely cast aside. … I added that the ANC had not struggled against Apartheid for 75 years only to yield to a disguised form of it, and that if it was his true intention to preserve Apartheid through the Trojan horse of group rights, then he did not truly believe in ending Apartheid (Harvey, p.200).

When this was secured, de Klerk however, embarked on how to control multi-party politics, while negotiating with ANC and other groups. During this first phase, the state structures and institutions, police, army and security remained intact in the hands of the Afrikaners. This may have served the purpose of cooling down the cauldron of Conservative Party/AVF (Afrikaner Freedom Front) rightwing whites and averted a civil war. Although black-white and black-black violence continued unabated throughout the transitional phases, yet the peaceful end of Apartheid deserves reassessment by nations facing similar dilemmas. Meanwhile since de Klerk has already started the road to Perestroika in South Africa, he had to meet the opposition in the middle way. As soon as Mandela was released, he called for unconditional release of all political prisoners and detainees, the lifting of bans and restrictions on all proscribed and restricted organisations and people; the removal of troops from the townships; the ending of the state of emergency and the repeal of laws designed to circumscribe political activity and the cessation of all political trials and executions (Spitz and Chaskalson, p.14). To this de Klerk permitted stage-by-stage reciprocity that kept the culture of negotiation and compromise rolling. In the Pretoria Minutes of August 1990, the ANC officially suspended armed-struggle and committed

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itself to negotiations (ibid, p.16). This paved the way for all-party congress Convention for a Democratic South Africa (CODESA) which held serious negotiations at Kempton Park towards the government of national unity during the interim period. Between 1991 and 1992, CODESA I and CODESA II came up with proposals of Transitional Executive Council (TEC), which was to be empowered with both legislative and executive powers.

3.3 NP and ANC Power-Sharing in the TEC Preventing the other from ruling alone was instrumental in NP’s and ANC’s move to “accommodation by negotiation” strategy: the ANC saw negotiation (towards universal suffrage and democracy in South Africa) as the only way to end white hegemony. Indeed, a Constitutional Working Group 2, which brought key protagonists33 had identified key areas of disagreement: the balance between central, regional, and local government; the participation of political minorities; economic freedom; government intervention and economic systems; the diversity of languages, religions and cultures; affirmative action; a bill of fundamental rights; self-determination; and the role of traditional leaders (Spitz and Chaskalson, p.21-24).

Despite these, the CODESA Declaration of Intent in April 1992, nonetheless, committed the parties to draft an interim constitution, which ensured a united, democratic, and non- racial South Africa. Moreover, even when decentralisation of powers was accepted, yet the interpretations remained different from each party.

The government and Inkhata Freedom Party desired strong autonomous provincial and local governments; while ANC required a lower degree of autonomy for the regions. While pro-ANC Communists (SACP) desired a “centralised state with a predictable leaning toward state economic and social planning.” In addition, the Whites only Referendum of March 1992, which gave mandate to de Klerk to continue with the reforms, strengthened the NP to insist on a greater political participation of minorities, while IFP desired ethnic pluralism in addition to extensive devolution of powers.

33 Cyril Ramaphosa and Albie Sachs of ANC, Joe Slovo of SACP, Gerrit Viljoen of the NP and Minister of Constitutional Development, and Ben Ngubane of IFP.

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Table III: Interim Constitutional Discussions Political Party Major Demands Major Objections

More rights to provincial and local Majority dictatorship, NP/Govt governments, consociational/proportional economic socialism, democracy, veto power for minority parties affirmative action and redistribution of wealth

ANC Majority rule with proportional guarantees for No veto power for SACP minorities, mixed economy with income minorities (rejected PAC redistribution, affirmative action and self- outright as tantamount to determination; maintaining Apartheid in the new constitution) Exclusive powers in defence, fiscal and monetary policy, foreign policy; and concurrent powers with provinces in education, health, agriculture and economic development; limited residuary powers for provincial and local governments.

Equal citizenship for individuals, not ethnos or racial group rights.

A bi-cameral legislature

Federalism/strong provincial and local ANC dominance IFP governments, ethnic pluralism and plurality of resented, and Inkatha languages/cultures; market laissez faire negotiating position moved closer to the NP in CODESA deliberations

The drafters of the interim constitution were expected to harmonise all these – a difficult task indeed which only led to collapse of peace talks and the end of CODESA in May 1992 amidst NP-ANC acrimony (Spitz and Chaskalson, pp.26-27). The collapse of CODESA brought severe consequences for the peace process – as COSATU and ANC organised crippling strikes. Widespread violence, such as the Boipatong Massacre of 15 June 1992 where Zulus killed 38 ANC supporters, further complicated the strategic

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stalemate. The massacre, and the following one at Bisho, forced Mandela to make a set of demands that de Klerk takes action to: • Dissolve the incumbent led transition and agree to establishment of an interim government of national unity; • Terminate all covert operations (including anti-ANC squads); and • Suspend and prosecute the security forces involved in violence before any peace talks could resume.

This level of violence highlights a major problem inherent in incumbent-led transition. The incumbent, however, weakened could still unleash security apparatus against opponents with impunity. However, international outcry forced de Klerk to control his security apparatus and keep moving on the negotiation track. In September 1992, a record of understanding for a democratically elected body to draft a final constitution and the said security measures were agreed between Mandela and de Klerk before the resumption of talks.34

The “sunset clause,” proposed by Joe Slovo, required for a compulsory power sharing arrangement which the ANC adopted it in its “Negotiations: A Strategic Perspective” in November 1992. By this time, the ANC had relaxed its insistence for centralised state and more or less moved closer to federalism, while the NP dropped its insistence on rotating presidency. In April 1993, the Multi-Party Negotiation Process (MPNP) was formed to replace the defunct CODESA, but picking up negotiations where CODESA left a year ago. Indeed, MPNP brought in smaller parties that were not included in the CODESA process35 and twenty-six parties resumed the peace process at Kempton Park.

But the peace talks almost collapsed when the news of the assassination of Chris Hani on 10 April 1993 by a Polish immigrant instigated by Clive Derby-Lewis of CP (Spitz and Chaskalson, pp.36-37). The MPNP nonetheless set 24 April 1994 as the date for general elections in South Africa. So this date obliged the parties to reach a settlement before that date. But a Watergate scandal where the CP Minister of Law and Order, Hernus

34 Unless otherwise stated, the sources in this section are mostly from Spitz and Chaskalson, The Politics of Transition.

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Kriel, ordered an early morning raid ransacked the premises of PAC, and Afrikaner rightwing violent rampage around Kempton Park further threatened the peace process altogether. The PAC sought to pull out of the negotiation process in protest of CP’s actions: the latter had accused PAC as an organisation engaged in armed violence against whites. This series of violence, however, was to push ANC and NP to strike deals. For instance, on 30 June 1993, just a week after the Afrikaner rightwing demonstrations, ANC and NP instructed the Technical Committee on Constitutional Issues to draft a constitution for the transitional government based on proportionality principle. On 26 July, the Interim Constitution was presented to the negotiation table and TEC was formally formed subsequently.

By 23 September, the South African Parliament enacted the TEC Bill, and TEC took office in December representing all parties concerned to prepare for elections in April 1994 (ibid, 43-44). This was the beginning of the second stage of transition. The police force was now composed of blacks and coloureds, even though the army was still predominantly the white establishment. The NP secured, at the last moment, to be part of unity government for five years so that it is not ejected as soon as the elections are over. Although the TEC was seriously challenged by IFP and CP/AVF attempts to sabotage the upcoming elections through a reign of terror, yet these were familiar facets of South African transition: it was completed and democracy was consolidated.

IV. NIF REGIME AND PROSPECTS FOR TRANSITION IN THE SUDAN

What have we learned from the South African two-stage transitional experience? Is it relevant for the Sudan? If so, how? These are important comparative questions. First, the nature of the NIF regime and that of Apartheid have some similarities and dissimilarities. In terms of similarities, both used excessive force and religion to justify dominance and institutionalisation of restrictive laws against the majority of their citizens. Second, monopoly of economic means is integral part of public administration. But unlike the powerful Apartheid system, the NIF does not have the means to enforce a full fledge apartheid in the Sudan – although Kasha policy or forceful resettlement of internally

35 The new parties included Afrikaner volksunie (AVU), Pan African Congress (PAC), and Conservative Party (CP)

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displaced at the outskirts of Khartoum has shown what it could do if it accumulates enough power. Third, the main purpose why the National Islamic Front (NIF) regime seized power in the 30 June 1989 coup d’etat was to impose a puritan Islamic State in the Sudan – not dissimilar with the Apartheid system at its zenith. A decade later, however, the Islamic project has embarrassingly failed leading to the Bashir-Turabi zeitgist split and rupture two years ago. Observers were quick to point that the rupture within the NIF was the beginning of an end of Islamists in the Sudan. That has not been the case as of yet because the Bashir wing of the NIF managed to isolate the splintering wing of Turabi, and introduced limited liberalisation to woo Sadig el-Mahdi and others. However, this limited liberalisation was not extended to the key protagonists: the SPLA fighters in the South, and Bashir’s wing (using the Popular Defence Forces) drags on amidst consistent foreign policy conduct sympathetic to international terrorism and escalating the ongoing civil war domestically. Fourth, unlike de Klerk’s official declaration of transition, General al-Bashir has not shown any indication that he would share power with the opponents. And with the extraction of oil in South Sudan, the NIF may be tempted to build a dynasty of Islamists in the Sudan which could have a great deal of consequences for transition in the country. So what are the prospects for transition in the Sudan.

4.1 The NIF Regime and Prospects for Transition in the Sudan While we speculate about a transition in the Sudan, we should also be realistic about the nature of the NIF regime itself. Since the NIF regime seized power in a military coup d’etat of 30 June 1989, the prospects for a negotiated settlement have grow even more remote owing to the regime's “Islamic State” agenda. An Islamic State, in its spirit of laws and historical application, is of necessity irreconcilable with the notion of democratic pluralism. Democracy, the major demand by the opposition forces: the SPLA and NDA, is a political behaviour thought and culture which permits effective participation of all citizens with equal and effective opportunities for making their views known and heard; where every member has equal vote and equal opportunity to vote and the votes are respected as representative of the wishes of the voters; alternative ideas/views are given reasonable time to enlighten constituents; not alienated from the

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agenda setting; and all universal adult suffrage is constitutionally guaranteed.36 Dahl rightly believes that democracy prevents tyranny and government by cruel and vicious autocrats; provides for and protects essential rights and liberties; provides for self- determination of peoples including moral autonomy, human development, interests, political equality, peace and prosperity (ibid, pp.44-61). In addition, democracy is also assumed to be secular in its spirit of laws whereby the civic and personal spheres are separate and the realm of politics is emancipated from society and constituted into increasingly autonomous political institutions with an independent and professional bureaucracy.37

This is the kind of realm the opposition seeks to realise in the Sudan. In the following sections, I will show the major barriers to democratic pluralism in the Sudan, and consequently the process of transition. There are three major factors to consider as we speculate whether the NIF regime would undertake a process of transition to democratic pluralism in the Sudan or not: The Islamic State ideology; Military Establishment; and Economic Motives in the conflict.

First, the NIF regime combines a military dictatorship with neo-fundamentalist Islamism both of which are used to construct an Islamic State in the Sudan. The sociology of neo- fundamentalist Islamism – which borders along the precepts of populist ideological movements during the height of the Cold War - seeks to transform the society from bottom up, as opposed to the traditional Ulema approach of top-down.38 At the root of all this, the NIF regime is a right-wing revolutionary government, it is a Jihad State (i.e. willing and ready to fight for a holy cause and to protect its brand of Islamic religious belief),39 and strives to convert a pluralistic Sudanese society into a puritan Islamic State. For instance, the Tawali Law of 1998 resurrects a classical Islamic state ideology, which restricts citizenship and political rights of non-Muslims, and instead relegates them to

36 Dahl, Robert A. 1998. On Democracy. New Haven, Yale University Press, pp.37-38 37 Chabal, Patrick and Jean-Pascal Daloz. 1999. Africa Works: Disorder as Political Instrument. Oxford James Currey, pp.4-6 38 Mayo, D. N. N. 2002. Federal Theory and Pluralism in the Sudan. (Unpublished PhD Thesis, The University of Birmingham), pp.231-246. 39 For the attributes of Jihad, see Qureshi, M. M. 1991. Landmarks of Jihad. Lahore, Muhammad Ashraf Publishers, pp.4-6.

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second-class citizenship status while disabling them from holding public office in policymaking and socio-economic arenas. Indeed, the Holy Quran (3:27; 5:56) and Hadith strictly forbid a non-Muslim from governing over a Muslim.40 Thus, despite the so-called rights, which an Islamic State guarantees to non-Muslims41 yet these rights only affirm what Ye'or calls "dhimmitude," a condition where non-Muslims (known pejoratively as dhimmi) are supposed to remain a permanent underclass. In addition, the sanctity of Sharia Law that no Muslim leader could possibly rescind al-Nizam al-Islami once imposed42 and equating Sharia with the liberation of Muslims (because it is viewed as a fundamental way of Muslim life) fails to recognise the very essence of religious, cultural, political, and economic pluralism necessary for peaceful resolution of the Sudanese conflict. Thus, the insistence of maintaining Islamic State serves to complicate transition by negotiation, the point I will return to later on.

Second, the NIF regime is also characterised by civil-military organisation. In such organisation a civilian cadre hold key posts in various technical and professional strata in the bureaucracy to support the military government.43 The NIF regime’s civilian cadre has been united with the military under an ideologically rooted Islamism, – a coalition that harmonises the interests of both under an Islamic State umbrella. Despite this, and unlike the military establishment in developed democracies,44 the civil-military arrangement in the Sudan is such that the civilian Islamists are unlikely to replace the military in decision-making process.45 In fact, the generals monopolise the hiring and firing tasks – like imprisoning their philosopher Dr. Hassan al-Turabi. As such it is the military that will decide whether to permit transition into democratic pluralism or not.

40 Bat Ye'or. 1996. The Decline of Eastern Christianity under Islam: From Jihad to Dhimmitude. London, Associated University Presses. 41 Maududi, A. 1997. Islamic Law and Constitution. Lahore, Islamic Publications Ltd., pp.245-252, 274-299. 42 Ayubi, Nazih. 1998. Political Islam: Religion and Politics in the Arab World. London, Routledge, Chapter 1. 43 Diamond, Larry and Marc F. Plattner. 1996. Civil-Military Relations and Democracy. Baltimore, John Hopkins University Press. 44 In developed democracies, the military are highly professional and recognition by military officers of the limits of their professional competence; effective subordination of the military to the civilian political leaders who make the basic decision on foreign and military policy; the recognition and acceptance by the leadership of professional competence and autonomy for the military -- and minimisation of military intervention in politics and of political intervention in the military affairs. For details see: Samuel P. Huntington “Reforming Civil-Military Relations,” in Diamond & Plattner; pp.3-4. 45 Had this been the case, as Turabi pushed this through parliamentary means, the NIF regime could have transformed itself beyond recognition. Since the military do the hiring and firing tasks, the rupture with the civilian wing of the NIF under Turabi revealed that the military govern the Sudan.

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Furthermore, the military establishment, as Johansen observes, traditionally imposes many severe limits and challenges to democracy and this cannot be eliminated without radical changes in the state system.46 He argued that:

Contemporary military policies discourage democracy domestically by legitimising military and political institutions that are hierarchical and authoritarian; by insisting on secrecy and practising deception in decision- making; by mounting covert operations; and by skewing political and economic resources away from equitable services of people’s needs into the inequitable service of those with vested interests in the military-industrial complex … Military policies discourage democracy internationally by obstructing multilateral diplomacy; by impeding the growth of intergovernmental institutions and transnational reformulations of sovereignty; and by reinforcing the sovereign separation of states and thereby their irresponsibility toward people in the neighbouring societies (Johansen, ibid, p.230).

Apart from these, military-based dictatorships are characterised by violently repressing the opposition in the country. The instruments used for repression include: official ideology; a single party; instituting a terrorist police state (like the “Ghost Houses” or torture chambers under the NIF); monopoly and/or repression of the press; indoctrination (including thought control, brainwashing and brain-drying); monopoly of armaments; and state control of the economy. As Wintrobe established such instruments have been used by other Sultanic-types of regimes including the personal rule of Mobutu's Zaire, Bokassa's Central African Republic, Franco's regime in Spain, Salazar's Estado Novo in Portugal, Idi Amin in Uganda, Duvaliers in Haiti, etc.47

The NIF regime has committed more egregious human rights violations in its ‘dirty war’ in the Sudan than any other government since the Mahdist's interlude under Khalifa

46 Johansen, Robert C. “Military Policies and the State System as Impediments to Democracy” in Held, David. 1993. Prospects for Democracy. Cambridge, Polity Press. 47 Wintrobe, Ronald. 1998. The Political Economy of Dictatorship. Cambridge, Cambridge University Press, pp.7-8

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Abdullahi (r1885-1898).48 Arbitrary arrests and detention of political opponents without charges for long duration; torture in the Ghost Houses; the degrading system of daily reporting (for those that might have been released), and so forth have earned the NIF a terrible reputation as a violator of every letter of the human rights conventions.49 Hence, the NIF officials may foresee a great deal of reprisals or a witch-hunt for war crimes perpetrators if the opposition succeeds it, and this fear may serve to prevent the NIF from relinquishing power unless its past can be insulated in some way e.g. negotiate for its own amnesty procedures. On the other hand, the NIF may wish to manage any future transition so that it could deposit a tutelary democracy including some veto power over its successors not to open the Pandora's box of the "ghost houses."

Third, the prospects for an oil-boom economy, other than easing transition, have actually reinforced the existing apartheid policies in Khartoum. In the last ARI/RFI Consultation in January/February this year, I presented two papers on possible oil-wealth sharing mechanism between the oil companies and the Sudanese state and among the Sudanese themselves.50 The aim of those papers was to encourage mediators to reassess the centrality of oil-wealth sharing dispute in the bargaining process to secure peace and prevent the transformation of the Sudanese conflict from socio-cultural war to a zero- sum conflict over natural resources.

Meanwhile, we should recognise that in any war, greed and grievances are intertwined and the Sudanese conflict cannot be an exception. Recent analysis in conflict studies has affirmed the pervasive element of greed hidden beneath political grievances. King, for instance, established that war creates special interests where the over-arching political objectives that prompted the turn to violence can become lost amid the grievances and interests produced by the manner of prosecuting the war.51 He went to give examples

48 Ohrwalder, Joseph. 1895. Ten Years Captivity in Mahdi's Camp, 1882-1892. London, Sampson Low, Marston & Co. 49 Human Rights Watch/Africa. 1996. Behind the Red Line: Political Repression in Sudan. New York, HRW Press; and 1994. Civilian Devastation: Abuses by all parties in the war in Southern Sudan. HRW Press 50 Mayo, D.N.N. “International Experience with the Relationship Between International Oil and Gas Companies and Governments and its Relevance for the Sudan” and “International Experience with the Oil and Gas Revenue Sharing Arrangements in Federal and Confederal States and Possible Options for the Sudan.” I’m grateful for African Renaissance Institute and Relationship Foundation International for inviting me to present those papers which finally provoked a recommendation for an “International Committee” to study fiscal aspects of Sudan’s oil and gas sector. 51 King, Charles. 1997. Ending Civil Wars. London, IISS, Adelphi Paper 308, p.37.

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such as oil in the Sudan, diamonds in Angola and Sierra Leone, timber in Cambodia, heroin in Myanmar and opium in Afghanistan that have all become economic resources used by belligerent groups to sustain war (King, ibid). Indeed, as the Christian Aid report testified, the Sudanese conflict has become inseparable from economic motives.52 In addition, Keen observed that:

In Sudan, ethnic groups seen as threatening or rebellious, particularly those in the south, have not only been dispossessed of land and cattle but also exploited through markets skewed against them by force. In the early 1980s, the discovery of oil in the south, the increasing influence of Islamic fundamentalists in the North and the growth of democratic forces throughout the country encouraged Khartoum to divide the opposition. … This political exclusion not only fuelled discontent, but also deprived southern and the Nuba, who live at the southern extreme of the North, of redress against state repression.53

Indeed, belligerents in civil wars according to Berdal and Malone "have long been reputed to stash … large sums of money skimmed from their war chests."54 For instance, during the war-ravaged Thirty Years Wars, which culminated in the Treaty of Westphalia in 1648, war itself became a vast private and profit-making enterprise. As normal peacetime patterns of social, economic, and political interdependence break down, plunder and rough justice must ensue. Through plunder, warriors from Napoleon's generals to Sierra Leone and Liberia rebels amassed wealth (Berdal and Malone, pp.1-3). Furthermore, war also provides convenient cover to suppress genuine demands for reforms (ibid, p.32).

4.2 The Sudan Paradigm of Peace Talking In the past decade, especially after 1991, great efforts towards peace have been exerted by key international leaders like General Ibrahim Babangida of Nigeria in Abuja I and Abuja II of 1992 and 1993 respectively; the former American President Jimmy Carter,

52 Christian Aid. 2001. The Scorched Earth: Oil and War in Sudan. London, Christian Aid Press. 53 Keen, David. 1998. The Economic Functions of Violence in Civil Wars. London, IISS (Adelphi Paper 320) pp.36-37.

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and now a series of IGAD-mediated peace talks under the Chairmanship of President Daniel Arab Moi of Kenya.55 In all these, the incumbent has not shown any inclination to share power. Instead, it has been pushing A “peace from within” strategy that attempts to break the opposition and absorb leading figures as individuals than the whole assembly of dissident chiefs.

The “peace from within” strategy, provides us with every indication that the NIF regime might attempt to outwit the international opinion and continue to stay on course until the system either collapses under its weight or the dictator dies (as General Franco in Spain, Zia ul-Hag in Pakistan, General Abacha in Nigeria). But even then, the Sudan would still be confronted with another dilemma: would the successor moderate the interim period toward democratic pluralism in the Sudan or would General Bashir II mounts the horse and stay on course.

Table IV: Transition Options and Likely Outcomes Transition Option Possible Outcome Democratic Consolidation

The NIF is driven out of office Rupture/replacement Likely and the opposition takes control

NIF runs the Interim Period and Either deposit a tutelary Unlikely conducts elections democracy or create a Mugabe Model in the Sudan

Negotiated Settlement. Ideal for Elections and Referendum joint administration during the are likely to be conducted Most likely interim period

If so, then the NIF succeeded in constructing a dynasty of Islamists in the Sudan, you better forget about transition. This line of argument, and the factors discussed above

54 Berdal, Mats and David M. Malone. 2000. Greed and Grievance: Economic Agendas in Civil Wars. London, Lynne Rienner p.12.

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actually serve to inhibit transition by negotiation in the Sudan. Instead they create a Sudanese paradigm where a series of peace talks are only platforms for mere wrangling or talking without any intent by the incumbent to depart from the status quo and bargain real power sharing mechanism with the opposition.

Thus I argue that the history of peace talks in the Sudan in the past decade and a half support the vast literature on authoritarian right-wing military or Sultanic regimes. In such types, transitions generally exhibit torturous road to transition, and “pactada” or negotiated "pacts" are uncommon (Linz & Stepan, pp.51-54; Ethier, pp.5-6). The NIF has already shown this trend, and if there were sufficient pressure, after years of manoeuvre, the NIF might instead attempt to deposit a "tutelary democracy."

The greatest danger with military authoritarian or Sultanic regimes is that when the regime stays too long, the repressive nature of the outgoing regime generally weakens the successor state and successive governments as well as impeding the development of democracy for many years to come. This is because repressive regimes, as a rule, do not permit the growth of democrats – as the latter were either killed or exiled. The post- Salazar's Estado Novo in Portugal, post Primo de Rivera’s Spain -- which was followed by General Franco’s long dictatorship; Pinochet’s Chile, and possibly future Cuba and Iraq are stark examples. In Sub-Saharan Africa, Chad, Somalia, or Congo also fall under such experiences.56 Transitions that arise as a result of negotiations, like the Mozambican integration of the Renamo or Sudan absorption of the Anya Nya guerrillas in 1972, tend to reduce the possibility of harming democracy. Thus it should, therefore, be clearly understood that the process of transition itself is as important as the successive system of rule expected to replace the revolutionary or Sultanic regime.57

Indeed, we have reasons to believe that if the NIF regime stays too long as it has already done so, it would only drag the Sudan beyond its limits, as was the case in Chad. Foltz

55 Mayo, D. N. N. "Beyond Peace Talks in Sudan: Strategies for Ending the Thirteen-Year Conflict." Ethiopian Review. (October 1996). 56 Zartman, W. (ed). 1996. Elusive Peace: Negotiating an End to Civil Wars. Washington DC, Brookings Institution; and 1995. Collapse States: The Disintegration and Restoration of Legitimate Authority. Boulder, Lynne Rienner.

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reminds us that revolt in Chad produced reprisal; reprisal in turn produced rebellion, then civil war, coup d'etats, foreign military intervention, regional secession, and the division and recombination of alliances and futile governments…. State authority [simply] collapsed.58 Since independence, Chad even under Hissein Habre's (1982-1990) has been one of the Sub-Saharan African states that has lived under continuous instability: the overthrow of GUNT, and the OAU intervention (1980-82) was followed by rebel invasion of Ndjamena in June 1982 under Hissein Habre. Even as Goukouni Weddeye’s forces retreated North and subsequently pushed out in 1986, yet that did not guarantee any tranquillity, and Habre himself had to be thrown out in November 1990 after eight years of heavy handed dictatorial rule especially against the Southerners and later the Zaghawa (Foltz, pp.19-30).

4.3 The Possibility of Democratic Consolidation Even if the NIF regime were to liberalise and reform the three major factors holding transition, and permit transition to proceed, yet an atmosphere suitable for democratisation is still a requisite for democratic consolidation in the Sudan. Democratic consolidation is a sequential process that must begin with transition from non-democratic regime to running free and fair elections and finally, the elected government will also come and run free and fair elections. The factors conducive to the success of democratic consolidation include: the development of a free and lively civil society; autonomous political society; respect of the rule of law; a state bureaucracy necessary for democratic government; an institutionalised economic society.59 Linz and Stepan pursue a hypothesis that: “in a multinational setting, the chances to consolidate democracy are increased by state policies that grant inclusive and equal citizenship and that give all citizens a common roof of state mandated and enforced individual rights (ibid, p.33)” If this theory were tried in the Sudan, it is possible that the Sudan could succeed in democratic consolidation process. The 6 January 2002 agreement between the SPLA and the former SPDF under Dr. Riak Machar, and SPLA-SAF and SPLA-PNC has shown that the

57 Shain, Yossi and Juan J. Linz. 1995. Between States: Interim Governments and Democratic Transitions. Cambridge, Cambridge University Press. 58 Foltz, William. "Reconstructing the State of Chad" in Zartman, Collapsed States, p.15

59 Linz and Stepan, p.7; and Ethier, p.17

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fragmented opposition and fratricides can easily be brought to order. But can this systematically translated into policy and public administration?

4.4 Trust as Social Capital In many divided societies, the cycle of mistrust goes hand in hand with the cycle of violence, a protracted conflict or zero-sum game.60 Indeed, we are aware that wars and all sorts of conflicts arise and are perpetuated when trust is damaged. And when trust is damaged, "community as a whole suffers; and when it is destroyed, societies falter and collapse."61 In addition, psychological-emotional problems arising from fear, suspicion, and mistrust become greater barriers to peace than the political motives of the leaders. To articulate this further: just imagine a society operating without trust. The economic, legal, political, and all sorts of institutions will collapse: there would be no banks, because no one would wish to put his money or invest there, there would be no credit, courts and law enforcement, and the very nature of organised life under the state will cease to exist.

Table V: A Matrix of Integration-Disintegration in Society Types of Integrative Forces Disintegrative Forces Relationships

High degree of tolerance, Social barriers to interactions are intergroup harmony, mutual rigidly enforced, lack of Social Relations sympathy, co-mingling and intergroup harmony and mutual intermarriages, co-existence sympathy, no shared values or encouraged in social commonality programmes, press,

60 Lederach, John P. 1997. Building Peace: Sustainable Reconciliation in Divided Societies. Washington DC, USIP, chapter 2. 61 Misztal, Barbara A. 1996. Trust in Modern Societies. London, Polity Press, pp.13-14.

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Elite co-operation, equitable Elite co-operation is absent, Economic/ distribution of national suspicion of each other Political wealth (to individuals and predominant, wealth is Relations regions), shared attitudes concentrated in the hands of the towards the state/authority, few, high degree of regional power-sharing is a national economic disparities and lack of value embedded in political regional economic policy for culture; regional economic convergence, policy for convergence is rigid/inflexible/traditional elite stressed in policy and run the government, lack of practice, elite are flexible and power-sharing in the governing innovative. process.

Similarly, the traditional North-South divide in the Sudan has been a consequence of broken trust. Misztal advances a strong argument that trust is "essential for stable relationships, vital for the maintenance of co-operation, fundamental for exchange and necessary for even the most routine forms of human co-operation (Misztal, p.12). She argues that trust, with many of its attributes, can be seen as a collective good for institutional fabric of society to operate; as a valued public good necessary for the survival of the civic community, and trust as a social capital which is essential for effective, responsive and representative institutions (ibid).

Psychological and emotional obstacles precluding efforts to "transform" war into peace in the Sudan exist: we must overcome them because the reasons for failures of numerous peace talks in the IGAD-led mediation are not mundane issues such as the mediator's approaches. Rather these are revelations of highly embedded and complex cleavages arising from long and consistent destruction of trust. Table V shows some indicators of integration-disintegration continuum in society -- just to see where the Sudan stands. Rebuilding trust between the North and the South may be the prerequisite for any lasting peace or democratic consolidation in the Sudan because trust is only derived from justice or equity, mutual sympathy, and framing laws that do not discriminate citizens based on religious, regional, or historical factors. Without justice and equity, as King observed, trust is often forfeited in favour of a cycle of organised violence:

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The protracted and often vicious nature of sub-state violence, the inability of parties to engage in negotiations and the fragility of peace settlements themselves can be attributed mainly to the powerful emotions of belligerent. War is an emotional enterprise and the drive to redress past wrongs by perpetrating even more heinous crimes in the present can be so overwhelming that belligerents find themselves unable to contemplate any form of compromise with their opponents.62

Furthermore, the Sudanese opposition suffers from fragmentation as well. Despite an elaborate show at the Asmara Declaration of December 1994 and its ratification in the 17-23 June 1995 NDA Conference in Asmara, yet the SPLA-NDA coalition remains realistically fragmented by historical, ideological, sectarian and regional allegiances. These fragments serve to weaken the rebel resolve to overthrow the Islamists through military and political means. The first three years of SPLA-NDA coalition, for instance, was unable to come up with a blue print of system of government and structure for a post-bellum Sudan.63 Furthermore, even though the SPLA-NDA finally pledged to create a new “liberalismo” in the post-conflict Sudan, yet they still behave in partisan manner of the taiffiyya (Islamic sects) long entrenched in the Sudan.64

V. CONCLUSION

To conclude this paper, I believe that transition in the Sudan has not begun. This is because the NIF regime has not indicated nor announced its readiness to see the transition process rolling in the country. But what is clear is that the Islamists are there to stay. So, how then can we instigate a transition upon a reluctant incumbent who has not felt the need to exit from power? It is even difficult to place IGAD peace process in the South African context: even if Nairobi may be the Kempton Park, yet we’re not sure whether the Sudan peace process is in the CODESA stage or MPNP stage.

62 King, Charles. 1997. Ending Civil Wars. London, IISS (Adelphi Paper 308), p.25 63 Lesch, Ann M. 1998. The Sudan: Contested National Identities. Oxford, James Currey, pp.194-196. 64 Karrar, Ali Salih. 1992. The Sufi Brotherhoods in the Sudan. London, C. Hurst.

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As I have discussed in the Sudan paradigm of peace talking, the Sudan exhibits a strong case of a stubborn and complex conflict, and whose transition might be an abrupt rupture/replacement rather than the reform/pact transition. This is because of the unique nature of demands from the opposition and the incumbent’s unwillingness to share power. Thus the country has been plunged into a zero-sum war of attrition where both sides in conflict are rigidly dug in their own camps, come to peace talks without really negotiating and in which no one would over-stretch its abilities. On the other hand, the NIF regime may be tempted to defy the international pressure and instead draws a new dossier of “charm offensive” diplomacy and continue fighting the war. That should be discouraged at all costs.

Since, the NIF regime falls under the right-wing military regimes -- and has been complicated by ideological underpinnings on an Islamic State, which is incompatible with the philosophy of democratic pluralism - I believe that the transition in the Sudan should be caused to happen by external pressure as has been the case in South Africa. Thus the following proposals should be reassessed critically:

(1) The Incumbent Caretaker Government would not be appropriate nor relevant for the Sudan because the opposition does not trust the NIF to handle the future of the country. Indeed, the NIF may not hand over power after the interim period, or if it does, it would deposit a tutelary rule without major changes in the system. The most relevant and possible transitional models would be power-sharing and internationally supervised transition.

(2) A two-stage transition would not be appropriate for the Sudan. First the opposition will not like it because that would be in favour of the NIF’s gradualist approach to change. Second, the international community has been quite reluctant in intervening in the Sudanese conflict beyond the provision of relief. Such that after a ceasefire and some semblance of peace returns, the international community would have turned its attention elsewhere, while the NIF could easily reverse the transition and plunge the country back to war. If

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war is a consequence of a “bad peace,” then we should design a peace that would keep the peace and prevent war.

(3) The international community, especially the “Troika” countries (U.S., Norway, Britain) should continue to exert pressure upon the NIF regime to pronounce its readiness for transition and start serious negotiation with the opposition on that platform in IGAD. Various technical committees (as was the case in MPNP in South Africa) need to be launched to study and draft proposals on interim government.

(4) The “Engagement with the NIF” diplomacy as preferred by Britain, should be strengthened preferably with more media coverage of the events in the South and Nuba Mountains, and talking to the people to express themselves as to what they really want.

(5) The opposition should be supported to continue collecting its fragments and solidifying itself in anticipation of a power sharing transition. This would enable the Sudan to avoid rupture-type of transitional rule where the incumbent is fought until the regime collapses and thrown out wholesale.

(6) Use oil and gas sector as a bargaining chip at various stages of negotiations.

I believe these elements could cause a transition to happen in the Sudan. This would enable the opposition and the NIF regime to draw “a perfect union” (just to use the language of the American statesmen in the Continental Convention in Philadephia in 1787 which finally framed the Constitution of the United States). This would require a give-and-take process where the NIF abolishes its Islamic State and Sharia Law in favour of democratic pluralism.

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b. Summary of Discussion

1. All topics at CODESA were discussed in this sort of a meeting. While CODESA was going on, the De Klerk government was still in power. Upon agreement of an interim constitution the transitional executive was established and the powers were taken from the President.

2. There does seem to be some ambiguity over the question of whether the GOS needs to be removed first. Is it worth negotiating with or not? This has to be the starting point of any discussion. International pressures are difficult, great powers pursue their own interests, and these can change. The “Troika” are involved in the issue. Can they assert great pressure and mediate at the same time? The current regime has become more moderate and willing to engage.

3. The way democracy often comes about differs from one country to another. South Africa is just one case among many. Democracy there was achieved because people believed in it but also because they saw it as the only way out. It seems that this dimension should be thought of in the Sudan. If the present government consider a system which they can be involved in, as opposed to being pushed out, then they may be more willing to come into an agreement. One important issue would be that of atrocities committed after the change of government. Many people believe that they should be prosecuted at some stage – indeed many are supporting the case in Belgium of Sharon at present.

4. It is important to think of the democratic phase as transitional. There is a tendency to think that democracy is the answer and once you have got there then that’s it. You need to think of it in terms of training and external support for quite some time before people believe that the system has established itself.

5. Someone also asked: who is representing the South; Garang or Lagu? This is a misnomer. These two gentlemen do not define the South. The leaders have changed through out history. It is not useful to define and confine the South to personalities. Our society will continue even after these two gentlemen die. Other people contend that the Islamic laws do not interfere with normal life. But we all come from Sudan and we can attest differently. Still, others say that we should not hurry about the issues of peace so we don’t make mistakes. This supposes that we do not care about the number of people who are dying. How many must die before we stop fighting? It is urgent for us to do what we are doing. Peace is overdue. It is not haste we are talking about. We are already late and we must tackle the issue of war and peace.

6. The structure and function of the military, security and police forces must be established in such a way that they are apolitical and neutral because they are there to serve the people and not the government in power. The position of the NDA is clear, there is no going back on it, and it is as follows: Firstly, there must be separation of religion and the State; secondly; self-determination must be included, and; and thirdly IGAD must be used as the main forum to bring about peace to the

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country. Sudan is ripe for a solution and we must redouble our efforts to find this solution. The solution has to be found by Sudanese and this is why we are here. If there is peace in the Sudan, the country could become an attractive destination for trade and investment. This would help make sure there is something for all during and after the peace process. Currently, Sudan would be eligible for debt relief were it not for the conflict.

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6. Transitional Arrangements: the case of Sudan by Mulana Abel Alier a. Paper Presented by Mulana Abel Alier

1. Introduction

The country is vast and varied both in territory and demography. It is one million square miles, with the Southern Sudan occupying over one quarter of that space. Sudan is the largest country on the continent of Africa. It is bordered by seven African states (Eritrea, Ethiopia, Kenya, Uganda, the Republic of the Congo, Central Africa Republic and Chad) and two Arab states (the Arab Gamahiria of Great Libya and the Arab Republic of Egypt). It is blessed with four great contrasting phenomena of nature: the River Nile, the vast Savannah regions, the Equatorial forests and two great deserts – the Sahara and Nubian Deserts.

Three censuses, conducted between 1954-6 and 1993, were, on the whole, not satisfactory for a variety of reasons: the earliest, though scientifically based, customs and other considerations deprived it of a higher figure; the other two, in 1983, and 1993, were conducted at the beginning and the midst of the civil war. All three produced rather low figures.

Based on many criteria, the estimated population of the country is most probably between 35 and 40 million. Muslims, mainly in the Northern Sudan, constitute 65% to 70% of the population; the other 30% to 35% are mainly Christians (20% to 25%); the remaining 10% to 15% are followers of noble spiritual beliefs. In recent years, there has been a remarkable upsurge in conversion to the Christian faith in the Southern Sudan, the Nuba Mountains, and to some extent, in Southern Blue Nile.

As for ethnic and racial categorisation, Sudanese of Arab origin constitute about 31% of the population and the rest are Africans. Others put the figures at 61% Africans, 38% Arabs and 1% others. Accommodated within the country are 55 languages, 11 of which are written.

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In terms of religion, the country has an obvious and clear, uncontested Muslim majority. But most of this majority is socially, economically and culturally marginalised, falling into the same category of discontentment with most of the non-Muslims.

And in terms of racial composition the Africans are in the majority, but are largely marginalised.

Sudan is thus rich and complex, in cultural, religious, racial, ethnic and linguistic diversity – all special strengths for some nation–states, but proven weaknesses for the Sudanese state. Which one of the many diverse attributes should be picked and chosen as the foundation of the Sudanese state without rocking the boat? Positively put to use, diversity enriches the nation-state; negatively handled, diversity brings manifold problems as is the case in the Sudan today.

There are historical reasons that have reinforced the country’s weakness in its complex diversity. One of them is an old badge – subjugation. From the arrival of the Turco- Egyptian officials in the early 19th century, joined inside the country by traders, some areas, notably the Southern Sudan, the Nuba Mountains and Southern Blue Nile, became the focus of invading forces, trading in, amongst other things, human chattels. Slavery flourished in these regions between 1821 and the end of the first quarter of the 20th century. This was the main reason for declaring these regions as “Closed Districts” in the 1920s. It was not to surrender them to foreign Christian Missionaries, as some commentators often suggest.

That practice (“closed districts”) has had its own special negative impacts on community and race relations in the country, especially as it was further reinforced by uneven social and economic development, between these regions on the one hand and the central regions of Gezira, the White Nile, Khartoum and the Northern Riverain Reach, on the other.

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There are other historical events in North-South relations which are negatively reflected today as the two regions address the issues of contention. The first of these is that the North and South were in practice administered separately from 1842 to 1946 when they were abruptly merged together as one country. In 1944 Sir Douglas Newbold, the then Civil Secretary, announced a policy regarding the people of Southern Sudan. “Our obvious duty to them (Southerners) therefore is to push ahead as far as we can with economic and educational development so that these people can be equipped to stand up for themselves in the future whether their lot be eventually cast with the Northern Sudan or with East Africa (or partly with each)”(1). In 1946, Sir James Robertson, the new Civil Secretary, suddenly changed the policy about the Southern peoples. He said geography and economics combined, so far as could be seen at that time, “to render them inextricably bound for future development to the Middle Eastern and Arabicised Northern Sudan.”(2) The second, at the thresh-hold of independence, is that the Northern Sudanese political leaders made an historic pledge that a federal system of government between the North and the South would be established if the South joined and voted for independence of the country. The South did vote for independence on 19th December 1955 and on 1st January 1956, trusting in the sanctity of that pledge. But the Northern Sudanese leaders went back on their word and not only did they dishonour the pledge but outlawed Southern Sudanese platforms for the expression of a call for a federal system of government between the two regions. Instead, some of these leaders worked hard to promulgate an Islamic constitution for an Islamic state. Independence was obtained by methods tantamount to fraud. Earlier on, in 1954, the political elite in control of the interim authority in Khartoum publicly promised to give the South a fair share of the civil service posts upon Sudanization. When 913 civil service posts were Sudanized from British and Egyptian expatriates, only six out of that huge number were awarded to Southern Sudanese. In 1983, the Addis Ababa Agreement, which had secured self-rule for the South and brought in exchange an end to the first civil war, was abrogated by the central authority in violation of a treaty and constitutional prescriptions.

Two more incidents may be added to these stories: in August 1955, Southern non- commissioned officers and men from the Southern Defence Force, mutinied in the South

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and killed Northern Sudanese soldiers and civilians alike. It was in cold blood. In July 1965 Northern Sudanese soldiers reciprocated, killing many innocent civilian Southerners in Southern towns, again in cold blood.

Distrust and Loss of Confidence All the incidents related above have something in common: mutual trust and confidence have been fundamentally shaken. The experience of the last 13 years has further deepened the level of distrust. Trust and confidence are key to the resolution of the current conflict as parties alternatively jockey and search for mutual accommodation. Will the parties ever keep any solution within the framework of unity? Who wants to answer that question convincingly?

To add to the country’s predicament, the vast, negative effects of the current war are daunting. It has been an especially destructive war: 2.9 million died, directly due to the war and related causes; 6 million have been displaced from their homes, not to mention the destruction to property, the environment and social and physical infrastructure. Oil men have, in recent years, added to the plight of thousands of the number displaced. Currently 600,000 to 700,000 are refugees.

Arabo-Islamic state and society The policy of the Government of Sudan (GOS) has been to establish an Arabo-Islamic state and society. In line with this, the government has promulgated an Islamic constitution, though it does not bear the usual label: “The Islamic Constitution.” It does not name the Sudanese state as an ‘Islamic state’. However in essence, substance and practice, the Sudan is an Islamic state, with an Islamic constitution. It directs public officials to stick to the Quran and the Sunna of the Prophet in their decision-making process. Many articles of the constitution are explicit about this.

Article 18: “Those in the service of the state and public life shall envisage the dedication thereof for the worship of Allah wherein Muslims stick to the Quran and the Traditions and all shall maintain religious motivation and give due

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regard to such spirit in plans, laws, policies and official business in the political, economic, social and cultural fields in order to prompt public life towards its objectives…”(3)

Article 19: “The directive principles which state organs and employees seek are means that guide them. They are not defined rules controlled by constitutional adjudication; however, they are principles that guide the executive organ in its policies and they are observed by the legislature in making laws, recommendations and resolutions and they are those which all the service of the state should observe.”

Public officials read carefully such provisions of the constitution and apply them as required and intended. All the civil service of the central government is manned by Muslims. Even the head of the Department of Christian Affairs is a Muslim. Similar control is extended to sensitive public positions of decision-making in the Southern states.

Article 65: “Islamic law and the consensus of the nation, the constitution and custom shall be sources of legislation, and no legislation in contravention of these fundamentals shall be made; however legislation shall be guided by the nation’s public opinion, the learned opinion of scholars and thinkers…. and then by the decision of those in charge of public affairs.” Custom here means one which is in conformity with the Quran and the Sunna.

Article 122 (b) provides that the People’s Armed Forces’ duties include, among others, promotion and protection of civilizational project – Islamization project. The army is an Islamic army which fights a Holy War (Jihad) for the conquest of new lands from infidels.

For the GOS, the country’s unity is fully based on Arabo-Islamic foundations. How does it in practice maintain that position? It has done so thus far through concerted efforts

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aimed at scoring an outright and final victory over the Sudan People’s Liberation Movement (SPLM).

However the GOS has also engaged the SPLM in wide-ranging political dialogue. In July 1997, in Nairobi, after fighting the civil war for eight years, excluding the first six years (1983-1989), the GOS and SPLM reviewed their strategic and tactical options at the IGAD Forum, before the Envoys of Kenya, Uganda, Ethiopia and Eritrea.

2. The IGAD Forum and Others The GOS and the SPLM agreed and signed an agreement, the Declaration of Principles (DOP), embodying a framework within which to negotiate the issues of contention. This document should be considered as a standard reference work for the parties to the conflict, including the other opposition parties.

It took three years (May 1994 to July 1997) for the IGAD Committee on the Sudan and the IGAD Partners to bring the GOS round to commit itself to the DOP and to sign it with the SPLM, which they did. The DOP is thus an agreement between the GOS and the SPLM. The Umma Party and the SPLM signed a similar document earlier on, in Chukudum (Southern Sudan), in December 1994; the SPLM and Northern opposition coalition, the National Democratic Alliance (NDA), including the Umma Party, the Democratic Unionist Party (DUP), the Sudan Federal Democratic Alliance, the Legitimate Command, the Sudan Alliance Forces and the Sudan Communist Party, signed the Asmara Resolution (1995), inclusive of most of the provisions of the DOP. In April 1997 the GOS and the break-away group of SPLM, led by Dr. Riek Machar, signed several peace agreements: the Khartoum and Fashoda Peace Agreements, the Nuba Mountains Peace Agreement and another for the District of Abyei of the Ngok Dinka, administered by Western Kordofan. Khartoum Peace Agreement, which provides for self-determination for the people of the Southern Sudan and a referendum on options of unity and independence, is now part of the country’s constitution. In December 1999, Southern Sudanese political leaders in Khartoum, in the Government and in the opposition endorsed the principle of self-determination and others, contained in the DOP

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and Asmara Resolutions. In Djibouti in 2000, the President of the Republic and Sayed El Sadig El Mahdi signed the National Call wherein both leaders endorsed self- determination for Southern Sudan; they also acknowledged the problems of the Nuba Mountains and Southern Blue Nile and undertook to address and resolve them.(4)

The DOP states that any comprehensive resolution of the Sudan conflict requires that all parties to the conflict fully accept and commit themselves to this declaration. Because of its importance in the resolution of North-South conflict, the DOP is summarised below.

3. The Declaration of Principles (DOP): Basis for a Political Settlement

The DOP:(5) a) declares that the history and nature of the conflict in the Sudan demonstrate that a military solution cannot bring lasting peace and stability; b) pronounces that a peaceful and just political solution must be the common objective of the parties to the conflict; c) declares that the right of self-determination of the people of South Sudan to determine their future status through a referendum must be affirmed; d) imposes a duty on all the parties to the conflict to give priority to the maintenance of the unity of the Sudan. However, upholding unity has specific conditions attached to it that must be fulfilled. First, all the parties must affirm that the country is multi- racial, multi-ethnic, multi-religious and multi-cultural. These diversities must be given full recognition and accommodation. Second, the parties must guarantee by law, complete political and social equalities of all peoples of the country. Third, the parties are required to affirm extensive rights of self-administration on the basis of federation or autonomy – and so on – to the various peoples of the Sudan. Fourth, the Sudanese state must be secular and democratic, guaranteeing freedom of belief and worship to all citizens. Implicit in the democratic requirement is the duty to permit

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formation of political, social, trade, scientific and professional organisations. It envisages a plural political, and social system with fundamental freedoms, requiring bills of rights. State and religion must be separated. Fifth, public wealth must be shared fairly and equitably among the various peoples of the Sudan. Sixth, the constitution and laws of the country must incorporate human rights as defined by recognized international and regional conventions. Seventh, the constitution and laws of the country must make provision and guarantee for the independence of the judiciary.

If the parties to the Sudanese conflict do not reach agreements on any of these requirements for the maintenance of the country’s unity, the respective peoples will have options to determine their future. One of such options is independence, through a referendum, among the peoples in that region.

The DOP addresses two additional issues. The first of these is that the parties are required to reach agreements on transitional arrangements and its duration. The second issue is to reach an agreement for a cease-fire, including its monitoring, disengagement and separation of forces and their administration. The cease-fire, as the DOP makes clear, is part of the overall resolution of the conflict. A cease-fire alone without addressing and resolving the issues, which in the first place brought about the war, would be like taking care of the symptoms and not the causes of the disease. A comprehensive cease-fire occupies the last place in the scheme, the Declaration of Principles.

The DOP is an important instrument that should remain the framework for the resolution of the conflict. It is a summary of principles and issues brought out in the process of dialogue between the GOS and SPLM, covering a period of five years (1989-1994).

It took three years for the GOS to sign the DOP as it searched for a short cut to peace, in its own terms and image, one that preserved a Sudanese state based on Arabo-Islamic foundations and did not provide for self-determination to any group of peoples. The GOS might have thought the Khartoum Peace Agreement, signed in April 1997, tactically

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offered an eventual escape route from any commitments that a signature of the proposed DOP would entail.

Negotiations were resumed between the GOS and the SPLM in July 1997, following the signature of the DOP. The issues addressed between that period and September – October, 2000 were: state and religion, sharing of power and wealth. The meetings were rare and short when they took place; the pace of progress was slow. In September 2000, the Envoys of IGAD Committee undertook an exercise similar to what was undertaken in May 1994 –when the IGAD states put together the summary of the five years of negotiations that became the basis of the DOP. Recognising that the GOS and the SPLM had discussed the three fundamental issues without reaching an agreement, even to disagree, the Envoys drafted the proposals on these issues and presented them to the parties, based on the DOP and also the outcome of the negotiations, between July 1997 and September 2000. Each of the parties responded, separately to the Envoys’ proposals.

This exercise seemed a positive way forward towards the resolution of the conflict. But important as these proposals and the responses are, the parties have not meet again since September – October 2000, to pursue the negotiations. They should resume and pursue the negotiations, based on these three proposals and link the outcome to the transitional arrangements provided for under the DOP. To do this, the parties need encouragement, even prodding, from the IGAD Committee on the Sudan, under President Moi and the IGAD Partners, in particular, the United States of America, Britain and Norway all of which have now appointed special envoys on the case of Sudan.

Encouragement is needed as there is still a clear tendency to avoid the IGAD Forum and to pursue an alternative initiative, the Libyan-Egyptian Initiative (LEI) which has purposely omitted the crucial issues of state and religion, and self-determination. However, even the LEI has now been transferred to the Chairman of the IGAD Committee on Sudan, to consider how to make use of it at the IGAD Forum and within the framework of the DOP. This was the decision of the IGAD Summit of Heads of State and Government that met in Khartoum in January, 2002, under the chairmanship of the

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Sudanese President, Omer Hassan Ahmed El Beshir. President Moi was in attendance; so were representatives of Libya and Egypt, and the Secretary General of the Arab League was there too.

The LEI’s seemingly novel points are two: a call to involve all political forces in the country around a table to agree on a comprehensive political settlement, and the formation of a transitional government in which all the political parties should be represented. This latter is covered in the DOP under the interim arrangements, while the first point is a contribution to the resolution of the conflict. Egypt’s and Libya’s main purpose has been to kill the DOP and with it the Forum of IGAD. Egypt justifiably believes it has clout, both at regional and international level, to let its wishes come true. Egypt also believes history is on its side when it comes to policies North-South strategic relations.

The mechanism of involvement of the Northern opposition groups, under the umbrella of the National Democratic Alliance (NDA), should be explored. Should they be physically involved, around the IGAD negotiation table, together with the GOS and the SPLM? Should other channels of consultations be established between the NDA on the one hand and the IGAD Committee Chairman and the two immediate parties in the negotiations, on the other? Or should the NDA consult directly with the GOS, being Northern parties that traditionally faced the South together in the past – in the independence debates and resolutions of 1955 and 1956; in the constitution committees of 1957, 1968 and 1973; in the Round Table Conference of 1965 on North-South constitutional relations and its brain child, the 12 Man Committee of 1965-7. Or should the SPLM represent itself and also the Northern opposition parties as it seems to do now?

How much space will be provided for the Umma Party in this process? It is an important party, with a country-wide following, borne out by its past popular electoral support, and some of its important constituents have natural borders, social links and interests, with the Southern Sudan.

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Formal consultations, between the GOS and the Northern opposition are important, in this process of negotiations, especially as they relate to the future status of the Sudanese state. Basic in these consultations is reconciliation and justice, without which the long standing North-South dilemmas cannot be justly resolved.

4. (a) Proposals of the Envoys of IGAD Committee and Responses of the GOS and SPLM – Application of DOP (6) The proposals are important and need to be examined closely. The Envoys propose a federal system.

The proposed federal system divides powers, assigning some to the federal government, other powers to the state governments and some shared. This is in compliance with the power and wealth sharing principles, as well as the vital, determining role, status and location of religion, envisaged in the DOP. Each level of government has a constitution and the usual organs of government – the legislative, the executive and judicial organs.

The federal system is required to be democratic and secular, with constitutional guarantees of rights and freedoms – freedom of thought, conscience and religion. At the federal level, the government is for all citizens, equal in opportunities and duties. Religion is confined to the private and family domain, at this level. Organs, institutions and structures are described as “neutral on religion,” to ensure further equal opportunities for all citizens.

Defence and security powers, defined as ‘national’ are vested in the federal government; land, natural resources and non-renewable natural resources, are assigned to the state government.

The proposals recognize the problems of the peoples of the Nuba Mountains, the peoples of Southern Blue Nile and the Ngok Dinka of the District of Abyei. Resolution of these problems is part of the comprehensive resolution of the North-South conflict.

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The proposals are sensibly set within the framework of DOP. They constitute a basis of the unity option, along side the independence option.

(b) Response of the GOS to IGAD Proposals The GOS is in agreement with the general principle of a federal system of government proposed by the IGAD Committee. The GOS has of course its own type of federalism in operation under the 1998 constitution. Generally the GOS’s proposals are centred around this constitution. The idea is essentially to preserve the 1998 constitution.

The GOS’s view on diversity of culture, religion and ethnicity of the peoples of the Sudan is, in appearance, identical with that of the IGAD Committee. But there is a difference between the two views about what each does with that diversity. The GOS does not accept separation of state and religion at the federal level. Separation of the two is an alien idea to Islam and an anathema to Muslims, hence federal legislation only takes “into account the multi-religious, multi-ethnic and multi-cultural peculiarities of the people concerned.” “The people concerned” is a reference to non-Muslims. Separation of state and religion is especially not acceptable to the GOS.

The GOS’s answer to religious and cultural diversity is assimilation which is what has been on the agenda since independence and even more so since 1989.

It would be a marked and an unusual departure from the 1998 constitution if state organs, their institutions and structures, at the national federal level, were “neutral on religion” as the IGAD Committee proposals suggest and as the SPLM consistently maintains and advocates. Separation of state and religion at the federal level is wholly rejected by the GOS. It is doubtful whether any political leader in the mainstream sectarian based parties – the Umma and the DUP - would accept any proposition to separate state and religion. Other radical Islamist groups – the Muslim Brothers and the Ansar Al Sunna would strongly oppose separation of state and religion and a secular state.

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With regard to division of power and wealth the followings stand out in the proposals of the GOS:

First: there is a division of the judicial organ. There is a federal judiciary and a state judiciary, each with its own courts and procedures. This is a welcome departure from the 1998 Constitution that provides for only judicial organ at the federal level.

Second: in addition to federal lands, natural resources, minerals and subterranean wealth are all assigned to the federal government.

This provision ensures ownership and control of oil and gas by the federal government. It is in line with the 1998 Constitution and current practice.

Third: licensing of manufacturing industries is assigned to the federal government.

Fourth: defence and security of the federation is an exclusive power of the federal government

Fifth: raising money by any mode comes under the federal government.

From this list is seems clear that all public wealth is vested in the federal government. The GOS provides that a federal legislation “should guarantee the equitable distribution of wealth and revenue on the basis of an agreed formula.” This is a description of the existing status quo.

The proposals of the GOS also concentrate naked power – defence and public security in the federal government. Who controls this power has been one of the most contentious issues in the North-South relations since 1955.

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The GOS does not make reference to the Nuba Mountains, Southern Blue Nile and the Ngok Dinka District of Abyei, as problem areas. The GOS does not provide for self- determination and a referendum on the issues of unity and independence. But referendum is or should be assumed as the proposals are based on the DOP.(7)

(c) Response of SPLM to IGAD Proposals i) Power Sharing. The SPLM is in agreement with the principle of power and wealth sharing, proposed by the IGAD Committee. SPLM differs with the IGAD on specific powers assignable to the Union Government and to the state. The following are some of the powers proposed by the SPLM to be assigned to the states during the transitional period: defence and security of the federation is assigned to the federal government but that is subject to the SPLM retaining ownership and control of state armed forces and security, at the state level, during the transitional period; some aspects of foreign policy; local government; land, mines, natural resources, non-renewable natural resources, international and regional agreements on culture, trade, investments, credits, loans, grants and technical assistance; external borrowing on the sole credit of the state; air transport, telecommunication, airports, referendum, establishment of banks, copy rights, patents, and publisher rights, counsel and advocates etc.

The GOS and SPLM make provision for concurrent powers. But they differ about the extent and the content of the list. ii) Wealth Sharing. This has largely been catered for under the division of public powers. In addition a joint financial and revenue allocation commission is suggested to be established by law by the union government. The financial body will have equal representation from the states.

There is a clear disagreement between GOS and SPLM on wealth sharing, in particular on ownership of land, minerals, non-renewable resources, in particular oil and gas, and all wealth underground and above the earth.

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iii) State and religion. The SPLM provides for separation of state and religion at the federal level and makes the whole state secular. Religion is placed in the category of personal and family matters, at all levels. At the state level, religion may find its expression in laws and policies as may be decided by state organs.

There is thus disagreement, between GOS and SPLM, on the issue of separation of state and religion. None of the parties is expected to abandon its principled position on this fundamental issue. Disagreement on state and religion means that the parties should proceed to the transitional arrangements based, on two systems in one country. This will be addressed later. iv) SPLM provides for a bill of freedoms on religion, as is the case with the IGAD Committee, and to some extent, the GOS. SPLM provides an additional bill of fundamental rights and freedoms and it adopts human rights covenants as internationally recognised.

SPLM’s bill of fundamental rights and freedoms, inclusive of human rights covenants, in a future constitution based on democracy and secularism, spells out its own vision of the New Sudan.

These and other SPLM proposals are the basis of the unity option and will have to be placed side by side with the independence option, in a referendum in South Sudan. SPLM’s definition of South Sudan includes the Nuba Mountains, Southern Blue Nile and the Ngok Dinka District of Abyei. This definition changes the character of the boundary issues. But it is to be undertook within the context of SPLA prominent presence in these areas. SPLM proposes duration of the transitional period as two years. But it could be shorter.

Unlike the IGAD Committee, and the GOS, the SPLM does not call its central authority “federal” but “union” government.(8)

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To conclude on what is an important exercise, the parties, the GOS and the SPLM, differed on four fundamental issues: state and religion, ownership of natural and non- renewable resources – land, minerals (oil, gold, etc.), ownership and control of the military power and procedures for the amendment or repeal of the constitutional arrangements, if one of the parties should make that request.

If the IGAD Committee and the IGAD Partners were to encourage the parties to reconvene and address the specific areas of differences in the proposals, the gap might be narrowed and an agreement could be concluded, based on self-determination and referendum in the Southern Sudan. If that cannot be achieved especially on religion and the army then the parties will have to move to the transitional arrangements, as provided for in the DOP. Here the tasks of the interim period will be discussed and resolved, accompanied by a cease fire agreement.

Given the prevailing climate in the international arena it seems imperative on the IGAD states and the IGAD Partners to see the parties back to the IGAD Forum, to resume the negotiation where they left them in September – October, 2000.

As it is today two trends are clear: one is that the IGAD Forum is being diplomatically avoided by the GOS while it tactfully prefers the Libyan-Egyptian Forum, without wanting to be actually there! The second trend is that focus is being sharpened on the symptoms, not the causes of the war. Symptoms will increase as the real causes of the war are not addressed. Recent arrangements for a cease fire in the Nuba Mountains and other confidence building measures embarked upon elsewhere, initiated by the United States of America, are welcome developments. This typical cease-fire may, incidentally, be extended to Southern Blue Nile. But these measures should be equally and vigorously matched by parallel concrete efforts to address and resolve the political issues that have fuelled and given apparent justification to the war. The generous humanitarian assistance that the world community is offering can eventually dwindle down to a trickle as the donors are seized by donor fatigue, if no credible political solution is insight.

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5. Transitional Arrangements There are two assumptions. The first is that the parties are entering transitional arrangements with a positive agreement on state and religion, power sharing, the military and security power and wealth sharing, (land, oil and other minerals). In this case what will be left to be resolved will be the system of government, autonomy or federation. In this case, where the parties have reached agreement on the three most difficult issues and a federal system of government is also agreed upon, other transitional arrangements including a referendum in Abyei and then in the Southern Sudan, should be addressed and resolved.

During the transitional period the parties will work to persuade the electorate in the Southern Sudan to endorse the agreements, in a referendum conducted in the South before expiration of the transitional period. The Southern electorate may vote for unity based on the agreements. But there is still a possibility that the Southern electorate may vote for independence. Since self-determination is a human right the electorate may ignore what is presented to them as a choice and vote for what they believe will protect and preserve their rights. The second assumption is that the parties disagree or agree to disagree on the issue of religion and state. In this case the electorate in the South will have a clear choice: independence or unity. Here the parties are bound to establish two systems of governments: an Arabo-Islamic system of government where there is no separation of state and religion for the North and the other, non-Islamic system based on a bill of fundamental rights and freedoms, one of which is democratic and secular rights for the South. Each will have its own constitution and will be virtually sovereign and independent from the other. A description of two such systems is given later in this paper.

There are other subjects to be addressed and resolved before and during the transitional period. These include self-determination, fundamental rights and freedoms, democracy and multi-party system. In addition is the question whether the parties should adopt a presidential or a parliamentary system of government. Past practice has been disappointing, if not indeed horrendous.

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Self-determination The people of Southern Sudan are entitled to exercise their right of self-determination before the expiration of the transitional period. Apart from being a human right, all the political forces in the country, including the GOS and SPLM, have committed themselves to this principle and its exercise, by the people of Southern Sudan.

The borders between the South and the North are as they stood on 1.1.1956. The Ngok Dinka of the District of Abyei will choose in a referendum whether to remain in the Northern Sudan or to opt to be part of the Southern Sudan. The referendum in Abyei will be conducted well before the referendum in the South so that the people of Abyei take part in the referendum in the Southern Sudan, if they chose to be part of the Southern state.

The peoples of Southern Blue Nile and Nuba Mountains will be involved in the negotiations about their future status. The transitional and post transitional periods will be guided by the agreement on the comprehensive resolution of the conflicts in the country, including problems of these regions. The cease fire agreement concluded in Switzerland under the auspices of the US and the Swiss governments was between the GOS and SPLM, with the SPLA Commander from the Nuba Mountains representing the SPLM. The same idea can be extended to a political settlement for the peoples of those two regions, especially that the agreement aims at “broader objectives of promoting a just, peaceful and comprehensive settlement of the conflict(11).

Fundamental Rights and Freedoms Both transitional and post transitional governments will be founded on fundamental rights and freedoms, based on human and political rights covenants which are internationally recognised. These include, among others: right to life, liberty and security of the person and protection of the law; freedom of expression, communication and freedom to assemble peacefully and to express grievances by petition; freedom of conscience, thought, religion, including manifesting and propagating one’s religion or belief in worship, teaching, practice and observation; freedom from slavery and servitude

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and forced labour; freedom of movement and residence; the right to own and dispose of property and to receive fair compensation in case of compensation, right of association and organisation for political, cultural, social, economic, professional and trade union purposes; freedom from torture or inhuman or degrading punishment; the right to speedy and public trial by an impartial regular court, duly established by law; the right to be represented in one’s own defence, equality of citizens and independence of the judiciary.(10)

Political System The parties will determine the political system for the transitional period and beyond it. The two parties to conflict, the GOS and the SPLM represent two different political parties, which should be separately maintained. Moreover a federal system of government requires a multiparty democracy for the system to operate practically, affording the central authority no opportunity to take over organs and institutions state government.

Political parties will be established on the basis of a protocol agreed upon by parties to the settlement. The protocol will address internal democracy in the party and transparency in terms of its finances.

Transitional arrangements cover a range of important matters. These include: (a) transitional federal and state constitutional arrangements for a federal system of government or alternatively transitional confederal constitutional arrangements for a confederal system of government; (b) transitional administrative arrangements; (c) cease fire arrangements; (d) transitional military and security arrangements – generally covering the armed forces and the security organs at the federal level and specifically covering the areas of the civil war where troop movements may be necessitated by the terms of the agreements; (e) amnesty and quasi-judicial arrangements;

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(f) repatriation, relief and resettlement of those displaced by the war; (g) special transitional arrangements covering the Nuba Mountains, Southern Blue Nile and Abyei District;

(a) (i) Powers of the Federal Government Powers assignable to the federal government under the basic federal a constitution are: the constitution, national defence and security, foreign affairs, citizenship and aliens, nationality, immigration, currency and coinage, foreign trade, public debts, bankruptcy, banking, incorporation of banks and the issue of paper money, the central bank, loans, international legal tender, federal lands, federal police, patents and copyrights, weights and measures, bills of exchange and promissory notes, federal criminal law, federal legislative, executive and judiciary, federal civil service, regulation of foreign trade, etc.

During the period of transition, state armed forces and public security and aspects of foreign affairs will be under the Southern Sudan State.

(ii) Powers of the transitional State Government Powers of the transitional state governments include: provisional constitutional arrangements for the constitution of the state, state armed and security forces, local government, state civil service, land and natural resources, minerals and metal wealth under and above the earth, except the Nile and its tributaries, language, culture, education, religion, information media, tourism and wildlife management, conservation and exploitation; external borrowing, on state credit, direct and indirect taxes, trade, industry, fines, fees and charges, census, statistics, health, agriculture, forests, repatriation, relief and resettlement of the displaced, marriage, divorce and inheritance, state criminal law, state judiciary, state legal profession and savings banks.

(iii) Concurrent Powers for the federal and State Governments Public counsel and attorneys, health policy, the census and statistics, environmental policy, survey, loans and international business, economic and fiscal policy, and

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international co-operation. (iv) Residual powers Powers that are not assigned to the federal or state governments or not included in the list of concurrent powers, are understood to belong to the state government.

(v) Transitional Finance Arrangements The powers assigned to federal and state governments, referred to in the preceding sections, have also involved assignment of incomes to the two governments.

But more work has to be done by the federal government in raising incomes and pooling these resources in special accounts. States are bound to contribute to this federal financial account.

For the transitional phase, the parties to the conflict are expected to reach agreements on how they raise incomes and determine expenditures. Both federal and state governments will undertake these tasks, within the frame of financial and fiscal protocols. A federal joint financial account has to be established; also a federal joint financial commission has also to be established, its composition taking into account interests of both the federal and state governments. Its primary task will be to scrutinise sources of incomes. On the basis of findings, amounts of contributions by the state will be determined and recommended. The most obvious source of income is oil and other minerals, foreign loans, grants and assistance. During the transitional phase it would be prudent to pool the oil revenues and to determine an equitable formula of distribution to the two-tier governments. This special transitional arrangement is made without prejudice to the rights of the states to land, minerals and natural resources. A considerable amount from that source will need to go to a special fund for repatriation, relief, resettlement and reconstruction in the war affected areas.

State financial resources. During the transitional phase the following sources of revenues may be tapped: all taxes from individuals employed by the state transitional administration; taxes from commercial, industrial and agricultural enterprises and

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services registered in the state; taxes on retail, wholesale, manufacturing, mining, producing minerals and other goods as well as agricultural businesses, import and export duties entering into and leaving the state; social security contributions by individuals employed by the transitional administration and by employees of enterprises registered or licensed in the state; taxes, incomes and royalties on real assets such as land, forests, river transport, wildlife, oil and minerals, consumer durables, fixed capital, assets and inventories, financial assets such as income on deposits and securities; fines; fees and charges, external resources in the form of grants, assistance, loans, and credits to the state.

Grants, subsidies, credits and loans from the transitional federal government for established services and for voluntary repatriation, relief, resettlement and reconstruction.(9)

(vi) Amendments The transitional federal constitution should not be amended during the transitional period. Beyond that period, amendments relating to the functions and number of state boundaries and state representation in the federal legislature should be moved by two- thirds of votes in each state legislature. Amendment after that should be decided upon through a referendum.

On the other hand a sovereign independent Southern Sudan may establish three or more states. There are other alternatives not considered here, like for instance, establishing the old 23 districts in the South as countries with their own assemblies, administrations and financial powers.

(vii) National Emergencies Historically it has been common for the central executive authority to declare state of emergencies, aimed at tighter control of the organs of government. Circumstances under which a state of national emergency may be declared are usually limited to wars and national calamities, verging on collapse of the state. However a state of emergency and

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its regulations should not affect the independence of the judiciary and the status and composition of the state, including its judicial organ. The duration of a state of emergency should be limited to a very short period, and should be confirmed or varied by the federal legislature and the state where the emergency is operative. No state of emergency, affecting the agreement, should be made without due consultation between the parties to the agreement.

Composition of the federal legislature The federal legislature should be composed of two houses: one representing the people, elected in geographical constituencies and based on population, and the second should represent states, represented in equal numbers. The transitional legislature will be composed of the political forces in the country. Its functions are derived from the transitional federal constitution. Its main function will be to supervise the work of the executive.

Number of states The number of states may be the old nine provinces – three in the South and six in the North. There are problems here. During the transitional period the South may prefer to remain one state till a referendum is carried out in line with the South’s right to self- determination. Should the Southern people opt for unity based on the federal arrangements, then after the referendum it may transform itself into three or more states. On the other hand, it could effectively decentralise, assigning substantial powers to councils or counties. Such decentralisation would ensure greater participation of the people in self-government.

Transitional administrations Transitional administrations will be established at the federal and the state levels.

At the federal level the GOS, the SPLM and the opposition parties under the umbrella of the NDA, including the Umma Party, should be represented in the government and the legislative body which should be selected by these political forces. The formula

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agreeable to the parties will be used for representation in the two organs of government. The criteria for selection of judges should be judicial qualifications, including legal education, experience, good character, independence, as borne out by professional lawyers and others. A judicial commission selected among eminent lawyers should be appointed by the transitional executive authority, after due consultation with the political forces. The commission, should, together with the chief justice, recommend to the executive authority, appointment of members of the supreme court; civil service, police and prison commissions will also be appointed to assist the transitional executive authority in recruitment of personnel to the public service. Other commissions, like a finance commission and an election commission should also be appointed, all after due consultation among the parties to the agreement and other political forces.

Transitional authority of the states Executive, legislative and judicial authorities will be established at the state level.

The transitional administration in the Southern Sudan will be formed and controlled by the SPLM. Its functions will include: general administration, maintenance of law and order and public security through state armed forces, assisted by the police; voluntary repatriation, relief and resettlement, registration of voters for the referendum.

The executive authority will appoint civil service, police and prison, finance and judicial commissions, to assist in recruitment and training of personnel for the administration of the Southern State.

After wide consultations with the political forces in the Southern State, the Chairman of the SPLM will appoint members of the transitional government. A formula for selection into the legislature will be agreed upon by all political forces in the Southern State. SPLM will have a lion’s share in state organs, in recognition of its role in the liberation struggle, to ensure stability during and post transitional phases, to fully attend to the implementation of military and cease-fire arrangements, repatriation, relief and referendum.

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Together with the transitional executive, the transitional legislature will legislate for the state on the basis of the powers assigned to it.

Judicial competence will be vested in the state judicial organ. It will be headed by a state chief justice, appointed by the state executive authority, after due consultation with the legislative and political forces in the state. The judicial commission will make the recommendations for appointment. The judiciary will consist of a state supreme court, courts of appeal, district and local courts.

In the absence of specific legislation, judges should be guided by justice, equity and good conscience.

Transitional Confederal Arrangements This system envisages two independent sovereign Southern and Northern Sudanese states. Each state will have its own transitional constitution with its executive, legislative and judicial organs. Each confederal state will be fully in-charge of its territory, defined as the borders of 1st January 1956. Each will establish its own institutions and structures. Both confederal states should opt for a presidential system.

Each transitional confederal government is constitutionally free to adopt a system of government it chooses. One may be based on religion, as for instance an Arabo-Islamic state under a constitution like the 1998 constitution of the Republic of Sudan, with Islamic laws, policies, plans and official business based on the Quran and Sunna. Another confederal state may choose to be plural, social, democratic and secular, with a bill of fundamental human and political rights and freedoms guaranteed in the constitution.

Each confederal state will establish a transitional executive government, a transitional legislature and a transitional judiciary, with various committees and commissions to assist in the establishing institutions and structures of the government; training of personnel and recruitment into the public service.

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Supreme Confederal Authority This body will be established by agreement, a supreme authority to co-ordinate work between the confederal states, during the transitional period. It should be composed of the two heads of the transitional confederal governments, assisted by some ministers and other public officials of the two confederal governments.

The two confederal governments will agree from time to time on what they need to do jointly during the transitional period. Each confederal government will then voluntarily surrender some of its powers to the supreme authority. The powers subject to voluntary surrender should include conduct of foreign policy, ratifying international agreements, appointment of ambassadors and approval of budgets. The confederation will have a supreme court, a central bank, a secretariat and a joint defence council.

End of the Transitional Confederal Arrangements The transitional confederal arrangements will last for up to two years. Before the expiration of this period, a referendum will be conducted in the Southern Sudan on the option of unity and independence. One aspect of unity option is a federal system, between the Southern Sudan and the Northern Sudan. The second aspect of unity option is a confederal system of government. This latter aspect, by its character is a loose unity. The alternative to the two unity options is the independence option. The peoples of the Southern Sudan may vote for complete independence, one not fettered by even confederal ties with the Northern Sudan confederal state. If the South votes for independence, the two confederal states will both become two sovereign independent states, with not even loose constitutional ties. The supreme authority will dissolve by operation of law. And if the Southern Sudan votes to confirm the confederal option then the two states will maintain their joint relationships, based on specific mutual interests, controlled and promoted through the confederal organs, institutions and structures. The umbrella [the supreme authority] will remain in place and can be either strengthened or weakened with the passage of time.

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Other Transitional Arrangements The main agreements on the issues of conflict will be followed by other agreements, the subsidiary transitional arrangements: a comprehensive cease fire, transitional governments, military arrangements, amnesty and other related forms of forgiveness, repatriation and relief of returnees and a referendum etc.

These other supplementary agreements will be handed out by the parties to the settlement, in the form of protocols, charters or treaties, witnessed and authenticated by the IGAD states, IGAD Partners and the UN.

A. The Cease Fire An agreement on the cease fire in the Southern Sudan, Southern Blue Nile, the Nuba Mountains, Eastern Sudan and other related war zones, has to be concluded by the parties, to end all military operations and armed actions. The combat forces remain in the areas under their control, at the time the cease fire orders come into force, till further orders from duly authorised power. Troops may be moved from one area to another as may be agreed upon by the parties. The cease fire agreement should aim at:

(i) forbidding any individual or collective acts of violence and all activities contrary to public order; and (ii) controlling movement of all personnel of the combat forces.

To ensure that the cease fire agreement holds it is essential to include in it creation of a cease fire body, composed of equal representation of the parties to the settlement and assisted by regional and international monitors.

B. Transitional governments, institutions and structures As part of the overall agreement, transitional governments have to be established at the federal and state levels in the case of an agreement based on federal relationship between the Southern Sudan and Northern Sudan. Assuming that the agreement establishes two federal states, then three transitional governments will be constituted: two state

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governments and a federal government. If the agreement is on the basis of confederation between the Southern Sudan and Northern Sudan, then in this case two transitional confederal states will be constituted.

The governments – the executive and the legislature – should include all political forces in the country. In the case of the Southern Sudan, the SPLM is expected to and should form the transitional government. However, other political forces in the South should be part of the transitional arrangements. Involvement of all political forces contributes to stability of this period; it is part of post war reconciliation and it should aim at providing opportunities for the Southern Sudan to make use of most of its qualified manpower, to shoulder responsibilities of a difficult period.

Both members of the executives and the legislatures of the states will be appointed by the head of the transitional executive, in close consultation with the relevant political forces.

The duration of the transitional federal and state governments should be as short as possible and should not exceed two years.

C. Military Arrangements A military body, composed of equal representation of the SPLM and the GOS will be constituted, with international monitors. One of the many functions of this body will be the disengagement and deployment of the combat troops to ensure that fighting does not resume. If the overall agreement is for a federal system, then who controls the military power, both at the transitional and post-transitional period is a contentious issue, as contentious as the separation of state and religion, or who gets what of oil revenues. One of the reasons of the mutiny of Southern elements in the army in the South in 1955 was who should control the military in the South as well as the larger issue: the noticeable absence of Southern Sudanese in the national army. In contrast, the Addis Ababa Agreement was abrogated in 1983, largely because there was a growing feeling by the central authority that the military arrangements had given disproportionately large powers to the South; and it may be recalled that the bulk of the time of negotiations in

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1972, between the central government and the Southern Sudan Liberation Movement, was taken up by the issue of sharing of military power between the central authority, controlled by the North on the one hand, and the South on the other. Bearing this history in mind, very special military and security arrangements are called for in the federal system, both at the transitional as well as the post-transitional period. The SPLM/A and allied military forces will probably maintain their positions generally during the transition. In the South the SPLM should have the overall control of public security.

If however the parties agree to a confederal system of government, the issue of separation and deployment of forces will be less difficult. Once the borders are agreed upon, each confederal state will re-organize its own army as it considers appropriate. At the same time during the transitional stage, there will be special military arrangements in the Nuba Mountains, Southern Blue Nile, and possibly in the Eastern Sudan. Such special arrangements are now in place in the Nuba Mountains, although the political issues of contention have not been addressed. Essentially then, there will be a Southern army in the South and a Northern army in the North in the transitional confederal stage. There will be a joint military force under the Joint Supreme Authority, with the powers and functions previously described.

D. Amnesty and Indemnity Arrangements The war has robbed many families of their dear ones, in the battle fields, under emergency regulations, through militias’ and individual criminal acts and omissions; other victims have sustained grievous injuries, physical and defamatory; others were robbed of their property - all in the course of the war and in connection with it.

The parties will have to agree on an amnesty that forgives these acts and omissions, from 16th May, 1983, when the civil war broke out, to the date when the agreement for cease fire and cessation of hostilities, comes into effect. A joint commission, with equal representation, should be established to attend to the observation of the provisions of the amnesty agreement.

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The cease fire body will be joined by international and regional personnel to monitor the cease fire arrangements.

Amnesty and indemnity agreements take many forms, including a form like the Truth Commission of the Republic of South African, or the amnesty and judicial ad-hoc body, adopted by the GOS and the Southern Sudan Liberation Movement (SSLM) in the 1972, under the Addis Ababa Agreement. The core of this latter type of arrangement was that a new era of reconciliation and forgiveness had replaced the old one of hostilities and inhumanities. It was a let by-gones be by-gones era. But the essence of the two types is the same: past bad deeds and omissions should be buried in a spirit of reconciliation. This is attainable in the Sudan despite the current strong feelings generated by the conflict.

E. Repatriation, Relief and Resettlement About six million citizens have been displaced by the war, mainly in the Southern Sudan, the Nuba Mountains and Southern Blue Nile. Between 600,000 and 700,000 are outside the country. Most of the six million will probably want to return voluntarily to their original homes or new villages and towns. A body should be established as part of the overall agreement to establish two bodies: one to handle voluntary repatriation and relief and the other, a special fund institution, to receive and administer resources for relief, rehabilitation, the resettlement and reconstruction programmes.

F. Referendum The end of the transitional period will be preceded by a referendum in the Southern Sudan, conducted on the two unity options – the federal and the confederal options, on the one hand, and the independence options, on the other hand.

Because of the very important implications of the referendum, it will need a special body, a referendum commission, to manage the referendum process: from registration of voters, through to voting, vote count and the declaration of the outcome of the vote.

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The terms of reference of the commission, its composition and functions will have to be addressed and agreed upon by the parties. The terms of reference should settle, among other issues, who is a Southern Sudanese, qualified to vote; the extent of the independence of the commission, and the commitment of the parties to accept and implement the outcome of the vote.

In essence, the referendum process must be open, free and fair. The referendum protocol must provide for inclusion of regional and international supervisors and observers, to monitor the whole of the referendum process. The supervisors and observers may be drawn from the IGAD States, IGAD Partners and the United Nations.

The GOS, the SPLM and other Political Forces Just peace and political stability cannot be achieved in the country without also addressing the problems of the peoples of the Nuba Mountains and Southern Blue Nile. Already the problems of these areas have been acknowledged by all the political forces in the country, government and opposition alike. That recognition is implicit in the DOP and in the Asmara Declaration; it is explicit in the Khartoum Peace Agreements of 1997 and the recent cease fire protocol for the Nuba Mountains, between the GOS and the SPLM, brokered by the United States and Switzerland, which has given the case of the Nuba peoples a special international political dimension.

Both the DOP and the Asmara Declaration affirm extensive rights of self-administration on the basis of federation, autonomy and other related forms of self-rule to all peoples. The problems of the Nuba Mountains and Southern Blue Nile must thus be resolved, within this frame of reference and with the fullest involvement of their leaders. They are, separately entitled to self-rule, that is, full control of their own affairs and a full access to and participation at the level of the central authority, whatever it may be.

It should be borne in mind that self-determination, contained in the DOP, the Asmara Resolutions and the Khartoum Peace Agreement (1997), requires that these people make a choice of their destiny within that frame of the agreements and the specific contexts of

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the DOP.

A comprehensive resolution of the issues of conflict also requires that the political forces in the whole country commit themselves to a full and genuine reconciliation and to the adoption of a just, democratic, social, economic and political system, during the transitional period and beyond, whatever choice the peoples of Southern Sudan make in a referendum.

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References and Readings

1. Alier, Abel. Southern Sudan: Too Many Agreements Dishonoured (1991) Ithaca Press, p.18

2. Woodward, Peter, Condominium and Sudanese Nationalism, Rex Collings, p.65; Southern Sudan: Too Many Agreements Dishonoured, p.19.

3. The Republic of Sudan Constitution (1998), Articles 18, 19, 65, 122 and 139.

4. Asmara Resolutions (1995), Sudan Peace Agreement (1997); National Call (2000)

5. Declaration of Principles (1997), Articles 3:4, 3:3 and 3:5; 4, 5 and 6.

6. Proposals presented by IGAD States’ Envoys to the GOS and SPLM on DOP – 3:4, 3:3 and 3:5. At the Fourth Political Meeting, 21st September – 4th October, 2000 in Kenya.

7. Response of the GOS to IGAD Proposals at the Fourth Political Committee of IGAD from 21st September to 4th October, 2000.

8. Response of SPLM to the IGAD Proposals at the Fourth Political Meeting, 21st September to 4th October, 2000.

9. Alier, Abel: Proposals for the Political Settlement of the Conflict in the Sudan (1999 – Unpublished). Adopted by the Union of Sudan African Parties (USAP) in February 1999; discussed with a government committee headed by Ali Osman Mohamed Taha, 1st Vice President of the Republic (February – May 1999) and with Dr. John Garang, Chairman of SPLM and his assistants, including SPLM Secretariat (April and May 1999); discussed with the President of the Republic and Dr. Hassan Turabi (Jan. 1999). The SPLA accorded a high percentage of support to the proposals; the GOS did not support them.

10. Proposals for the Political Settlement of the Conflict in the Sudan – see above.

11. Article 1 of the Nuba Mountains Cease Fire Agreement (2002).

12. Reading: (a) The Phoenix State, (2001): The Red Sea Press Inc. edited by A.H. Abdel Salam and Alex de Waal:

= Constitutional Challenges of the Transition by A. H. Abdel Salam pp 1-23;

= The Right of Self-Determination in the Southern Sudan, pp 199-222; by John Luk Jok.

= Constitutional Options for Southern Sudan, pp.223-245, by Members of the

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Committee of the Civil Project (of Justice Africa) and South Sudan Law Society.

= Human Rights and the Transition in Sudan – Foreword, by Dr. Amin Mekki Medani

(b) IGAD Envoy’s Proposals to the GOS and SPLM on DOP, at the Fourth Political Committee Meetings, 21st September to 4th October, 2000.

(c) Nuba Mountains Cease Fire Agreement, brokered by the US and the Swiss Government in Burgenstock, Switzerland, 13th-19th, 2002. Read together with the Cease Fire and Military Agreements between the Government of the Sudan and the Southern Sudan Liberation Movement (SSLM) in Addis Ababa, Ethiopia on 22th February 1972.

(d) Woodward, Peter: The Sudan: the unstable state, (1990): Lynne Reinner Publishers, Boulder, Colorado.

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b. Summary of Discussion

1. Sudan is religiously and culturally diverse. Some countries make diversity positive to strengthen the nation and state but in the case of the Sudan it has been a point of weakness. The diversity of the Sudan must be reconsidered in a more positive light. Today the Sudan has an Islamic constitution. This is evident in articles 18, 19, 65, 122 and 139 of the 1998 Constitution the Islamic nature of the Constitution.

2. The two leading parties of the conflict – the Government of the Sudan and the Sudan Peoples Liberation Movement, have endorsed this Declaration of Principles. Until 1994 the GOS did not like the idea of self-determination or separation of religion and state. The three members of the IPF: the USA, Great Britain and Norway, and the IGAD countries should encourage the parties to meet again and discuss the proposals. Apart from the above issues, defence is also an area of contention between the centre and the South. If the parties overcome the questions of state and religion, military power and oil then a period of transition could be agreed upon. The people will make the decision by examining the agreement which has been achieved.

3. The democratic solution did not work in Yugoslavia. If all the political parties are not involved then the Sudan could face many difficulties. What will be the incentive for reaching an agreement over a period of transition? Religion has been used as a political weapon and manifesto. The Umma party and DUP have spoken of an Islamic Constitution. The NC too, has made it difficult for Islamic laws to be repealed like the criminal law. When there were appeals to repeal Islamic laws the NC took over power by force on the eve of the discussion of these things. If a federal constitution is based on religion then you are unlikely to see change in power.

4. The paper constitutes a very detailed transitional arrangement. I wonder if you don’t need a transition to the transition. Another important question would be on the timing of the negotiations as well as the other parties in the dispute whom are not part of the IGAD process; how do they come in to the whole pattern and at what stage? The two years for this transition seems to be very short for what is included within the paper. Can all this be done in two years? Establishing state and federal governments is a lengthy business. A federalism might not be equal in all parts. For example, the South may have to have a higher degree of federalism that the North. The secular state always sounds very simple but it is very complex. In a democratic state, how would a party with a religious basis be able to pursue policies with religious dimensions? These questions should be considered in a constitution. During the transition period, we would also need an agreed upon foreign policy, economic policy, employment policy, public services, human rights and civil service institutions. These are necessary to reassure people during this important period. The rehabilitation, repatriation and re-integration of internally displaced persons and refugees should also be carried out from the first year of transition. If we want a

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federal Government then this is the way to go about it – at least I would support the view that we have before us – a very creative menu of two situations.

5. There are different ways of how we can go about the transitional period. We must start by recognising that there is a crisis in the Sudan. In this way we would see that there is a problem. The South African question is not similar to what is being faced in the Sudan because we have both faced a comprehensive multi-dimensional crisis. What we have done so far is very good; we have identified the areas of conflict and potential routes forward. Now we are trying to enter our new phase by addressing the transitional period. Those belonging to the ruling parties have said that there are economic hardships in the Sudan, this is very good, let us look at how to sort this out. One of achieving the latter is by amending the constitution. There is a crisis of confidence and war of mistrust building up. What should we do about it? I would suggest that we follow the Declaration of Principles one by one and see how we accept them. We can see whether we can overcome the difficulties

6. There is a historical relationship between the groups we call the South and the North. There is a high probability that the border is historic but it has not been static throughout history, it tends to move up and down. Sometimes there has been war and sometimes collaboration. This is also true for the East and West. A secular state does not necessarily mean a state against religion or an irreligious one. It is a topic that parties need to discuss. Furthermore, if we are to have a plural political system, there is a need to review what are the objectives of political parties.

7. The transition period would allow change of structure to take place with elements of continuity. This is different from a take-over because of the set up. In 1964 and 1985, Sudan had two transitions from military to civil governments. The change of power took place in a situation where the army was in the middle. In both cases there was a popular revolution where power passed from military to civilian. The past Sudanese experiences were unique and perhaps the present situation would be the same. Do we need a transition and then another transition? Have we come to the stage where we are thinking about transition? Do we think war stops now? If we want this then we can think about practical steps. However, if someone has reservations then the time is not ready. If we agree on a transition then we are ready to move into the next step. A decision needs to be made. But we must start with who the parties are and who is going to decide this? We need a federal interim government. The task to be assigned to this government is to become strong with definite objectives based on an agreed plan. The experience in the Sudan tells us that wider participation is necessary. There will need to be a programme of participation. The transitional government needs to address the problems at three levels: North/South level, in marginalised areas and ensure that there are Equal opportunities for everyone.

8. There needs to be a practical implementation of the cease-fire and transition. To the government in Khartoum and the SPLA any interim arrangements would be to absorb others into them whilst they remain in control. All parties have a role even when the principal ones seem to be the key people. There should be a mechanism

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set up for direct contact between SPLM, GOS and mediators. DOP are the basis of any agreement. The transition periods are clearly stated here. If you agree on a federal system then it is obvious what powers there will be and you will need to work them out. If the Sudan ends up with two states then each could make use of the transitional time to divide up power. The SPLA believes that two years would be adequate time for transition, whilst the GOS thinks that four years is required. The interim period is a very difficult time for any government. Resources will be needed, as people will be quick to blame the government.

9. In order for us to get to this point we must put everything on the table. Being truthful is the passport to results. If your opponent sees you trying to trick them then the result will be a disaster. There has been a tendency to consider the general voter in Sudan as someone who doesn’t know what to do and who needs to be led. Let them vote with their hearts. Let your manifesto win their votes. The only question is: are the parties willing to get involved? The GOS and the opposition may decide to keep going the way they are.

10. The biggest problem currently is whether the government of the day would act like De Klerk to resolve the conflict. The government of the day has a duty to recognise there is a problem. Sudan needs to release people like Mandela and Walter Sisulu and form a new government. The burden lies with the current government. Amnesty in the South African model came about because the government admitted its wrongs. If the current GOS is prepared to dissolve itself and allow all political players to become involved –then there can be amnesty. Atrocities can only be forgiven if there is a totally admission of the mistakes. We ask the GOS (even though we are here in our individual capacity) to consider this when they talk to each other after the meeting. We all have connections we need to use them to bring peace.

11. Today there is another chance for peace. Are we all really serious about it? The GOS and the other parties should listen to the models presented. The constitution will guide this interim period. So far the Sudanese have talked and talked and talked. Now is the time for action. Everyone has to come on board. What arrangement would there be for Nuba Mountains and the Southern Blue Nile during the interim period? Neither side is recognising the right of the Nubians for self- determination. From an historical basis, the Nuba do have this right. They are an entity in their own right as they were governed under a closed district ordinance. They have a distinct territory and culture and fought along side the SPLM. Self- determination is important because it would guarantee peoples’ rights.

12. South Africa is not identical to Sudan but it gives us hope. Any power sharing and interim arrangements would require a lot of good will. A strong opposition is needed for the GOS to feel the pressure to co-operate. Unless other members are included at IGAD the opposition will not start to work together to reach a consensus. Everyone must feel they are on board and that they have a voice. They need to build up trust that agreements will not be ignored. When the referendum comes up it will be important to get people home, ready and prepared to take part. They will need a

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period of time to get settled. In order for the referendum to take place, international observers will be required. The Sudanese also need assurances that agreements will be honoured and the outcome of the referendum will be honoured.

13. The two parties on our behalf in IGAD have not been that serious. Both have not applied themselves to bridge the gap. It is hoped that now is the time for all parties to negotiate. The Sudanese have to agree on many issues, including the DOP. We should move to an all-party conference where the preparation has been done well to make sure that they will succeed.

14. Both peace and unity are crucial. Any settlement needs to be at a win-win situation not a win-lose situation so that the Sudanese do not take arms again.

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7. Transitional Arrangements: the case of Sudan by Dr Sayed el-Khateeb a. Presentation by Dr Sayed el-Khateeb

Text of paper will be inserted later as a supplement

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b. Summary of Discussion

1. This paper admits that there has been injustice. The national government cannot continue to blame the colonial powers because the country has been independent for over forty-three years. It is positive that you have mentioned this and all parties have a share in the whole problem. The paper also stresses that mistrust is paramount. How can we deal with this problem? Good documents have been produced and then later thrown out. As the oppressed we cannot be blamed for feeling apprehension. Suppose we opt for the proposed true federal system which incorporates elements of justice and freedom of religion- what is the guarantee would we have that this will not be violated? What are our options if the referendum is only on the basis you have said? What would we do if it were violated?

2. Each party should have the right to choose the way it can govern its own area. The two major parties, GOS and SPLA should not ignore the other regions. We must include the problems of the whole of Sudan in any negotiations. I am very encouraged by this paper. Now I feel that the GOS is changing. The author, on behalf of the GOS, has admitted the imbalance and the injustice and that the time is for them to commit themselves to peace.

3. If we want to redress injustice then all marginalised areas need to be taken on board. The “One Country Two Systems” is to me an injustice because it doesn’t take into account the marginalised areas of Nuba Mountains, Darfur and Beja. The armed conflict started between the north and the south but now others have joined in and that is why we have to think in terms of “One Country Multiple Systems” and that justice is for all.

4. I am happy that the author mentioned the imbalance of development, religion and mistrust. Mistrust is very important. The dishonouring of previous agreements has bred it. In order to build trust and confidence, we must apply the Khartoum Agreement and the Fashoda Peace Agreement and see what the results are and whether we are moving towards peace. It is very important for us to have a referendum at the end of the transitional period. We have to give the communities a chance to express themselves. We must ask ourselves, do we really have a mandate from the people we claim to represent? What about those who are independent or who are not represented? The referendum must be internationally supervised and we must educate our people so that they can express what they really want. Otherwise if the result is not acceptable then they will go to war again. To reach an end after all this talking, presenting papers and making commitments, we need pressure on the parties to hold people to what they say.

5. The interim period is a cardinal issue, religion and state and referendum are important issues as well but this presentation has not given us options of the referendum. It is up to people to choose what they want and not for us to tell them that they must only vote for a true federalism and nothing else. Otherwise why hold a referendum. A referendum does not necessarily mean separation. IGAD has

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attained tangible results. The right of self-determination is very positive and is part of the DOPs. It is the details that are lacking. The manner in which the powers are divested will make the people decide one way or another. Implementation is the key. We want people, including ourselves, to be held to this agreement. Prior to the referendum the north can be decentralised and the south should be allowed to decentralise itself as it sees fit.

6. During the interim period the freedom of religion should be practised. People should profess whatever faith they want and they should be free to practice it. We need to be careful with the timing and the events preceding the referendum to make sure that result is not a forgone conclusion. All citizenship rights should be honoured and everyone should call for this. If the will of the people in Southern Sudan is to secede then we will have to honour it. GOS and SPLA have never thought of solution that excludes the Nuba Mountains, Darfur or Beja region. These regions should speak for themselves as they are here.

7. Troika governments are asked to facilitate these sorts of talks as they can see that the results they are bringing. We are talking and finding we have more in common that we thought. The “Troika” governments can help us find peace. The British have a moral obligation; they left us in chaos and now can help us come to a solution.

8. We all agree we must not sweep things under the carpet and we are all saying we have to stop the war. The only way to do this is through political dialogue not through military means. What sort of political settlement is possible? We could have a strong federalism combined with an asymmetrical federalism for the south, which will continue for some time. Who would administer the transition? Are we talking about a transition with the present administration leading the process? We need a lot of time to discuss what a "strong federalism" is and what an asymmetrical one would be like.

9. Aristotle once said “Look to the future but in the light of the past otherwise you will not take the necessary steps for success.” The Nuba have been associated with Sudan since time immemorial. In fact, in the past, Sudan had been called Kuch and Nubaland. The people of the south are historically, geographically and ethnically linked to the Nubas and other people in the Sudan. We have same origins and destiny.

10. The GOS must demonstrate that they are serious by sending higher level representatives to this and other consultations. The federal system is a misleading concept because of what we have found it to be in Sudan. The author’s point of having a long interim period increases the likelihood of unity. If they talking about a two or four-year transition period then it is acceptable. A ten plus year period is not. The SPLM is serious about peace and the GOS needs to hear this.

11. The marginalised people want the GOS to at least make a public statement that this is the beginning of an apology. This statement also needs to be translated into practice.

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We need true federalism, as the current one is fake. Other associated problems, which need to be addressed, are issues relating to identity and religion.

12. The parties who are part of an agreement should administer the transition. However, we must not expect that the GOS would abdicate during the interim period. The central issue is for us to find common ground and a path for peace. The future of Sudan is in our hands until we get Garang and Bashir together. We must represent out constituencies. The formal negotiations should decide the length of the interim period. Each state should have the right to come up with the laws that govern them – this includes that secular Muslims can advocate for their point of view as well.

13. I have listen to all that has been said and I will carry two messages to Khartoum. First that the southern Sudan has a genuine grievance and second that there has been monstrous injustice to the people of Sudan. The statement of the author means a lot to me.

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8. Sudan Gold Potential Options for Development and Exploitation by Dr Adli Abdel Mageed a. Paper Presented by Dr Adli Abdel Mageed

1. HISTORICAL BACKGROUND Gold has been worked in the Sudan from a very early period. The Egyptians of the middle and new Empires, perhaps about 2000 B.C. and 1400 B.C., sent expeditions to the Sudan between the River Nile and the Red Sea and these were followed in later times by the Arabs. During the early years of the last century, gold was one of the things which attracted attention to the Sudan and an important expedition led by Ibrahim Pasha reached the confines of Beni Shangul region in the valley of the Blue Nile, south east of the Sudan.

Sudan was closed during the Mahdi’s Revolution but soon after the occupation of the Sudan by the British, foreign companies and individuals rushed towards the country since 1898 to prospect and extract gold. It was found that much of the ground had been carefully gone over in ancient times, especially in the northern part of the Sudan, where ancient people had worked gold mineralised areas which could not be made to yield profits under modem conditions. The exploration seems to indicate that gold was very much needed and the cost of labour was cheap. They went over the surface coverings and also worked quartz reefs which in places were followed down to a depth of nearly 120 feet from the surface. They managed to surmount great difficulties concerning water supplies in deserts far remote from any sources.

As mentioned, the old workings rarely reached a depth of 120 feet and the workers seem to have preferred quartz veins varying in thickness between 1 and 3 feet. From the quartz left behind, there seems, however, to have been some process of hand selection as indicated by the abundance of partially reduced quartz found in the neighbourhood of the works. It is evident that ½ of the quartz taken from the mines underwent the final crushing. The selection process was probably based on the occurrence of visible gold in the stone, or perhaps on some attendant phenomena of which we do not possess the

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secret. In any case, it was efficient in result, for the rejected stone is rarely worth more than a pennyweight or two a ton and has never been found to contain visible gold.

The ancient gold working activities can be seen at several hundred localities scattered all over the Nubian Desert in the northern Sudan as well as all over the northern parts of the Red Sea Hills. Alluvial gold or secondary gold deposits have been primitively exploited in the upper Blue Nile valleys and the southern Sudan by local inhabitants for at least 300 years. Artisanal gold workings are developed on old river terraces along the Blue Nile and also extend along the Ethiopian high lands from Fazugli, Queissan, Kurmuk to Daga Post. In the southern Sudan, these workings are practiced along River Luri, Khor Klier. Khor Papua, Khor Kaia, River Yei, Ibba River and River Thingaita in Kapoeta area.

2. REVIEW OF SUDAN GOLD POTENTIAL Areas abound in gold resources and witnessed a long history of gold extraction activities are: (1) Nubian Desert-Northern Sudan, (2) The Red Sea Hills-Eastern Sudan, (3) The Blue Nile Valley-Southeast Sudan and (4) the Southern Sudan (Map No.1). The following is a brief review of the gold potential at these places.

2.1 The Nubian Desert (Map No. 2) The Nubian Desert lies east of the River Nile between Sudan-Egypt border and latitude 20°N. There are more than hundred ancient gold workings dating back to Pharaonic times. One of the most important of these ancient workings is Umm Nabardi Mine, some 48 km east of the River Nile. This mine was explored and exploited by a British company where a total of 250,000 ounces of gold were extracted during the period 1901- 1919. At the time of the closure of the mine, a total of 37,000 tons of low grade untreated slime tailings containing an average grade of 2 gm/ton gold, were left behind.

The other two important ancient mines are Duweishat Mine, 3.5 km east of the Nile and Abu Sari Mine, 7 km east of the Nile. These two mines were exploited in a narrow scale

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during 1903-1910 and again during 1952-1962. Reserves and grade of the gold are at present under exploration by French companies.

2.2 The Red Sea Hills (Map No. 3) Of the several hundred ancient workings scattered all over the Red Sea Hills, the following important gold mines were explored and exploited by the British companies and individuals during the period 1900-1952:

(a) Gebeit Mine: Located 250 km northwest of Port Sudan and about 100 km west of the Red Sea shore. A total of 41,000 ounces of fine gold was said to have been extracted between 1914 and 1942. The mine was re-explored by the British Minex Minerals Co. Ltd. in 1982-1985. The reserves of the gold ores were estimated at 63,000 tons, containing an average of 40gm/ton and possible reserves of 86,000 tons containing 21 gm/ton. In the period between 1987 and 1989, Minex managed to extract 625 kg of gold. The mine was abandoned in 1990 because of technical difficulties.

(b) OYO Mine: This ancient mine lies about 110 km north of Gebeit Mine. The mine was operated in 1903 to 1908 but no production was reported. OYO Mine was reopened in 1920 where about 1164 ounces of gold were extracted till the end of 1924 when the mine was finally closed. In 1980, remote-sensing studies showed that OYO Mine is still very prospective for gold.

(c) Abirkateib Mine: Lying about 330 km North West of Port Sudan. A British company exploited the mine in 1930-1935 and again in mid-fifties. In 1958, Yogu Metal Company carried out detailed exploration and proved the existence of 120,000 tons of quartz vein containing 2Ogm/t. During the period 1956-1961, a Sudanese company extracted about 273 kg of gold. About 30,000 tons of amalgamation and cyanided tailings containing 6-8 gm/ton are piled nearby the mine.

(d) Uar and Onib Mines: These two mines were operated by the British Gebeit Co. during the 1940’s, but there are no records of production. In 1977-1984, the French

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BRGM and the Government of the Sudan carried out some exploration work, which resulted in the discovery of the existence of 63,000 tons of ores at Uar Mine containing an average of 60 gm/tons gold, i.e. 3-4 tons of pure gold to a depth of 90 meters.

(e) Current gold production in the Red Sea Hills: The Ariab Mines:Large deposits of gold ores were discovered during the early 1980’s, some 80 km north of Musmar Railway Station and 380km south west of Port Sudan town. The exploration, development and production are controlled by a joint venture agreement between Sudan Government (60% shares) and French companies (40% shares). Production started in 1992 and gold is now produced at a rate of 6.8 tons/year.

2.3 The Blue Nile Valley (Map No.4) The part of the Blue Nile Valley adjacent to Ethiopia can be considered as one of the most attractive areas of the Sudan for mineral development. The area possesses substantial mineral resources within reasonable access and logistics as the area is traversed both by the highway linking Khartoum with Port Sudan and Ed Damazin and the railway linking Port Sudan with Sennar, Kosti and Ed Damazin. Electric power and water are available at El Roseires.

Gold has been mined in the Upper Blue Nile by local inhabitants for at least 400 years ago. Artisanal gold workings are developed on old river terraces along the Blue Nile and also extend in a narrow belt along the foothill of the Ethiopian Highlands, from Fazugli to Daga Post, a distance of 200 km. Virtually; all local workings are alluvial and are worked during the rainy season.

The gold placer deposits are found within beds of ancient and modern streams draining the Ethiopian territory. The most important centres of native gold mining are Jurut near Kurmuk. Adula, Amido, Mias as well as around Queissan. Historically the most important gold placers centres are:

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(a) Kurmuk Area (1) Khor Jurut: Lying 5 km south of Kurmuk. The area of the mining activity extends for 4 km by 60 m. The thickness of the gold-bearing sediments is 5-7 m with 80 cm overburden. The average content of gold is 0.5-2.8 g/metric ton. In the late 1940’s a study, carried out along Khor Jurut, indicated the presence of about 396 kg of gold, which can be extracted by artisanal workings by local natives.

(2) Adula: Lying about 25 km southwest of Kurmuk. There are two khors flanked on both sides by rocky outcrops with numerous auriferous quartz veins. Samples taken from the bed of these khors showed a gold content of 0.9 gm/t. No record was mentioned for the gold content in the quartz veins.

(b) Queissan Area: Khors Aghunfeg, Golli, Amore, Sumba and Mias are all described as important sources of gold placer deposits around Queissan. The gold content ranges from trace to 3.9 gm/metric ton.

2.4 The Southern Sudan (Map No.5) Southern Sudan is virtually unknown in terms of its mineral resources. Most of the land is geologically unmapped and is covered with soil and laterites. Access is difficult because of high rainfall and dense forests. Alluvial gold mining was known a long time ago by the natives and later by some Europeans. Areas most mentioned in the limited records are:-

(a) Ibba River: This river is a good source of placer gold. Over a length of 31km. of the river and of its tributary Khor Lesi, about 44 km. South east of Yambio - Tongi road crossing, the gravel contains about 1-2 gm/metric ton gold. Considerable work was carried out to find the primary source of the placer gold in lbba River, especially along its tributaries Khor Navung and Khor Navura but failed to find these sources.

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(b) River Yei: Gold has been extracted from Khor Aloto, which is a tributary of River Yei. Some reports revealed that the gold was wholly worked out but no information is given for the grade or quantities of gold extracted.

(c) River Luri and tributaries: River Luri is a fairly large river with big tributaries, all being targets for gold panning. The gold was said to be wholly panned out by local companies and natives.

(d) River Kit: This is a large river and is known for its placer gold but the grade is not known.

(e) River Thingaita: This river is over 100 meters wide at Kapoeta. Gold occurs at Wangolet about 14 km. upstream from Kapoeta. The gold bearing gravel 5-8 inches thick rests over the rock floor. River Thingaita and its tributaries are worked for many years and are still providing gold.

The gold occurrences in Kapoeta area consist of reported high grade in-situ mineralisation associated with small outcrops of serpentinised ultramafic rocks as well as extensive alluvial deposits. There are no records of any investigations carried out to appraise the geological and economic occurrence of gold in Kapoeta area. However, it was mentioned that 30 ounces of placer gold were produced by 40 workers every nine working months from River Thingaita.

3. ORGANISATION OF THE GOLD INDUSTRY The Mining and Quarrying Act considers that the mineral deposits within the territory of the Republic of the Sudan are the property of the Government. A general prospecting license will be issued for one year, renewable for another year to enable interested prospectors to search for mineral deposits. In case of encouraging discovery, an exclusive license will be issued for 3 years to evaluate the economic details of such discovery. A mining lease will eventually be granted to mine and utilize the discovered minerals for 21 years or for the whole life of the mine.

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However since the early 1980's the Government adopted the policy of the Production Sharing Agreement, concerning gold only, with interested foreign or local competent companies. As from 1993, the Geological Research Authority of the Sudan (GRAS) under the Ministry of Energy and Mining has blocked out the Northern Sudan and the Red Sea Hills into concession areas. Each concession area has its own geological characteristics on the basis of which joint venture agreements are negotiated with the interested partners. The most important terms which control the exploration, development and mining of all commercial gold and associated mineral deposits are:

1) Sudan Government will grant the interested partners an exclusive authorization to prospect for gold and associated metal deposits in the selected concession area. 2) Initial exploration period of 2 years starting from the effective date plus 2 successive extensions of one year each. 3) If no discovery is made during the initial exploration period, the agreement will be terminated. The investor will report to the Sudan Government of any commercial discovery. 4) At the end of initial exploration period of 2 years, the investor shall relinquish 50% of the original Concession Area. At the end of the first extension of one year, the investor shall relinquish 50% of the remaining Concession Area not then converted to a mining lease. 5) On commercial discovery, a mining company will be formed on the basis of ...% shares for the investors and ...% shares for the Government. A Mining Lease will be granted to the Mining Co. 6) The investor shall provide the necessary finances based on terms and conditions satisfactory to the Government. 7) After the commencement of the commercial production of gold, the investor shall have the right to recover from the total production of gold quantity which value, determined pursuant to an agreed pricing procedure, corresponds to the cost and expenses borne by the investor.

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8) The investor shall enjoy exemption from taxes and duties incurred or arising during exploration period and all other incentive and facilities according to the investment Encouragement Act. 9) The Mining Company shall be exempted from taxes and custom duties from the date of its incorporation and for the duration of the mining leases. 10) The investing company will manage the exploration activities and shall receive ... % of the total exploration cost as management fees.

Artisanal workings or small-scale mining is similar to the systems operating in other African countries. It is a labour structure which is often overlooked by policy makers. The tributors, usually chiefs, control access to land by selling tickets. The diggers who buy the tickets employ others to do the manual labour. The diggers and their gang may then treat the ore themselves or sell it to others who transport the ore away to water in order to carry out the recovery process.

The working conditions of most small-scale mining camps (rush area) are very poor. The resultant health and social problems created from shanty living places, out breaks of disease etc. are horrible. There is no demand for welfare among the participants who are mainly interested to make money to send home. Instead of buying machinery to improve output or form mining companies, the small scale miners go home to invest in agriculture to feed their growing families and domestic herds of animals.

The efficiency of the small-scale miners is not high. They do not care to carry out evaluation studies prior to exploration. Their mining activity is usually confined to gold resources with no more than 8 meters of overburden. The methods of sinking pits are only capable of poor percentages of extraction. Recovery from the traditional processes does not exceed 30%.

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4. CONSTRAINTS AFFECTING THE DEVELOPMENT OF GOLD MINING IN SUDAN Subject to various political settlements, Sudan has gold resources to sustain good outputs well into the next century. However, the following major constraints may stand in the way of expansion of small-scale gold mining. a) Poor Infrastructure: Although gold is amongst the few minerals the exploitation of which can be mounted in remote areas, significant and competitive scales of operation must have reasonable access to appropriate machinery and consumables. The extreme remoteness of some of gold resources tends to be one of the major constraints inhibiting production. Power and Water supplies are in many cases a constraint to the production. Power can be generated but the fuel supply requires roads. b) The lack of equipment much needed for small-scale mining such as hoisting, pumping, excavating and transporting equipment. c) The absence of formal marketing channels will lead the small-scale producer in remote areas to sell to the only demand which exists on the spot. In many cases, sell on the spot to an illicit dealer. d) The currency restrictions in Sudan are major constraints to the development of significant gold trade. Miners should be allowed to retain significant percentages of the foreign exchange earnings in order to purchase mining equipment to improve production.

5. DEVELOPMENT OF SMALL-SCALE MINING Since the improvement of the small-scale gold mining is dependent on sustained technical assistance to miners. Sudan should make efforts to establish appropriate structures to this effect at state, sub-regional and regional levels. Experiences of small scale miners from over Sudan, especially those from southern Sudan and Upper Blue Nile, should be encouraged to share small mining activities in the northern Sudan and the Red sea Hills and train local natives on the techniques of gold mining.

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Necessary and appropriate equipment should be made available to individual miners. Moreover, the development of small-scale mining, particularly, gold mining should receive special attention and constant support. The Government should take measures to appreciably reduce or stop gold smuggling both inter- and intra - state smuggling and ensure the effective control of the marketing circuits so as to increase Government earnings from this activity.

Studies should be undertaken to examine if the working conditions of the work force and, in particular, of women and children in small-scale mining correspond to existing labour standards and if not, to make recommendation for their application.

The past five years have shown a marked increase in small-scale mining on primary and gold mineralisation, in the northern Sudan and in the Blue Nile Valley. All these activities are carried out by unskilled indigenous people. However, the experience shows that, whilst artisanal mining provides a significant counter to the employment problem, there are equally significant resultant problems. Illegal marketing, tax evasion and the uncontrollable impact on the environment were noted as being attendant in most cases.

Artisanal gold mining should be limited to alluvial or placer deposits and the unskilled local people should be presented to experience any artisanal mining on hard rock primary sources. Such primary sources should only be attended by competent mining, engineering, metallurgical and environmental services.

6. CONCLUSION AND RECOMMENDATIONS Based on the above review of Sudan gold potentials, current commercial gold production, artisanal mining activities and the constraints affecting the development of gold mining, the following recommendations can be made: a) Marketing facilities. The government is advised to develop commercial banking network to provide marketing facilities to small-scale miners. Systems should be

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designed to eliminate “middlemen” or any revenue advantage to be gained by smuggling to neighboring countries. b) Currency of Transaction. Large as well as small producers should be allowed to retain 30-50% of their earning in foreign currency in order to allow them to import equipment that will be needed to more develop their mining activity and increase production. c) Taxation and Custom Duties. Gold producers especially the small-scale producers should be exempted from any taxation or any other kind of duties. If a constant stream of production is established and maintained, some sort of taxation can be proposed in order to encourage gold producers to contribute in the support of national economy. d) Transportation. The improvement of the transport network will play a significant role in the expansion of small and large-scale mining development in Sudan. The Government can do this against taxable income from mineral exploitation. In this way remote gold resources that are currently being ignored can become more competitive and contribute towards the planned opening up of gold resources of the Sudan as a whole. e) Administration. The Sudan Government needs to use its mineral administration to educate the indigenous miners about the known gold occurrences in their areas. The administration could either provide or contract expertise to undertake initial training in mining, as follows:

• Train management and the work force in the application of modem technologies for the extraction of gold utilizing toxic chemicals. • To take all the necessary technical measures to prevent any hazard to human health, the working and living environment. • To include in the legislative provisions aimed at (1) prevent artisanal mining on primary hard rock resources (2) protection of the workers safety and health at the work place (3) the environment (4) the rehabilitation of the mining area.

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Map No. 1

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Map No. 2 Location of the gold mining areas in NW Nubian Desert

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Map No. 3 Map showing the Red Sea Hills greenstone Ophiolite belts & the major gold occurrences

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Map No. 4 Gold Placer Deposits at Kurmuk And Quiessan Areas

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Map No. 5 Gold Placer Deposits in Southern Sudan

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9. The Curse of Mineral Resources: the politics of revenue sharing in the Sudan by Luka Biong Deng a. Paper Presented by Luka Biong Deng

Executive Summary: The purpose of this paper is to highlight the potential of mineral resources and their role in causing and sustaining the current civil war and their potential towards peace building and sustenance in the Sudan. The main argument is that one of the primary triggers of the current Sudan civil war is the socio-economic disparities that have resulted from a lack of or flawed revenue sharing system that marginalised the regions that are paradoxically well-endowed with mineral resources. The inverse-income criterion, or in combination with population criterion, is appropriate to a country like Sudan as it is relatively progressive in transferring fiscal revenues to poorer regions. The experience from other federal systems shows that the revenue sharing scheme is an integral part of the constitution with well established statutory or non-statutory institutions for its implementation and enforcement.

The critique of the Nigerian revenue sharing scheme shows that the use of criteria such as minimum responsibilities, social development factor, cost disability factor, internal revenue effort and minerals-producing regions are so relevant to the context of the Sudan. These criteria are crucial in addressing the basic needs as well as equalising the regions. The paper shows also that the principle of allocating part of the national fiscal revenues or proceeds from the mineral resources to the mineral-producing regions is appropriate to the Sudan context with cautious observation of its side effects in the future.

One clear policy implication is that the revenue sharing arrangement should be seen as essential part of any future political settlement as it provides an opportunity for addressing basic needs as well as ensuring vertical and horizontal equity. The experience of Addis Ababa Agreement is a reminder that any agreed future revenue sharing scheme

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must be an integral part of the constitution with well defined statutory and non-statutory institution entrusted with its implementation and enforcement. The fact that the most marginalised regions of the Sudan are the ones well-endowed with mineral resources shows that the effective utilisation of these mineral resources with well laid out revenue sharing systems with full participation of these communities will deter the risk of future civil wars. In terms of policy implication, it shows that the notion of communal ownership of natural resources must be enshrined in the future constitution as an effective measure to make the state or multinational corporations bound to engage in partnership with the communities in development and exploitation of these resources.

1. Introduction: Civil wars have become pronounced and endemic to many African countries since the end of the Cold War. It is estimated that 20 per cent of Sub-Saharan Africa’s population now live in countries that are at war with themselves and low-intensity conflict has become endemic to many other African countries (Elbadawi and Sambanis, 2000:245). In comparison to other regions, Africa has the highest incidence of intense civil wars with an increasing trend during the last two decades while such a trend has fallen or remained stagnant in other regions.

The risk of civil wars in much of Africa stands now as the leading contributory cause of vulnerability during the last two decades and has overtaken the long dominant role of ecological risk. The causes of African famines during the last two decades as noted by Devereux (2000) have evolved from being triggered mainly by drought to civil wars being the main trigger. For example during the 1990s, Von Braun et al. (1998) identifies only one famine out of a total of eight famines in Africa that was mainly caused by drought while the rest were mainly triggered by civil wars.

It is estimated also that warfare has cost up to a million lives per year over the last 20 years (Messer et al, 1998). Elbadawi and Sambanis (2000) shows that Africa has the highest war-related deaths per unit of time compared to other regions in the last 40 years and second to Asia in terms of aggregate war-related deaths excluding deaths that were

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caused indirectly by civil wars. Also in terms of social services forgone for military expenditure, the developing countries spent about US$775 billion from 1960 to 1994 as arms imports (Slivard, 1996). Emergency assistance for zones of armed conflict continues to hijack foreign assistance flows that overall are shrinking in response to economic downturns and domestic pressures to cut budgets and welfare spending (Marchione, 1996).

Sudan as a microcosm of Africa, because of its central location reflecting within its borders all the racial, ethnic, religious and cultural diversity of the continent, has been at war with itself since its independence in 1956 and wasted about 36 years in two major civil wars (1955-1972, 1982-now) that resulted in a death toll of more than 3 million. It is estimated that the current civil war has displaced more than 4 million persons and over 5 million persons have taken refuge in various foreign countries. Since the eruption of war in 1982, Sudan has been prone to increasing vulnerability to food insecurity and recurrent famines (1984-5, 1988 and 1998) that have claimed more than 500,000 lives (Deng, 1999). During the 1990s, the development aid to the Sudan was halted and steadily replaced with humanitarian assistance. For instance in the 1990s, US have provided Sudan with over USD1 billion in humanitarian aid that supplanted similar US contributions in development aid to Sudan in the 1980s.

This upsurge of civil wars in Africa in particular has posed a compelling need to improve understanding them for a better policy direction. In the Sudan, a comprehensive understanding of the causes of its recurrent civil wars is evidently crucial, as the ultimate sustainable solution will largely depend on it. The primary objective of this paper is to highlight the role of mineral resources in causing and sustaining the Sudan civil war as well as their potential role in the sustenance of peace through fair and equitable mechanisms for sharing their proceeds.

The outline of this paper is as follows. Section 2 begins with a brief highlight of the mineral resources potentials in the Sudan. Then in Section 3, the paper discusses the role of mineral resources in causing the current civil wars with special emphasis on revenue

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sharing arrangements that resulted in horizontal and vertical disparity in the early 1980s in the Sudan. Section 4 presents and discusses the economic rational for revenue sharing arrangements with special reference to some selected revenue sharing practices in other countries. Section 5 discusses and critiques the Nigerian revenue sharing scheme with its relevancy to the Sudan context. The paper then concludes in Section 6 with the main policy implications.

2. Mineral Resources Potential: The landscape of the Sudan is a complex pattern of geological features that suggest a high potential of mineral resources. The limited geological surveys that have been conducted suggest that Sudan is well endowed with a favourable geological environment that hosts a wide variety of promising mineral resources. Generally the geology of Sudan consists of typical pre-Cambrian continental carton of granite-gneiss terrain with occasional long narrow ‘green stone’ belts that virtually contain all the gold and base metal deposits (Gabb, 1997). The mineral deposits in the ‘green stone’ are generally contained in three basic statigraphic horizons that are paradoxically found in the marginalized regions of Sudan particularly in Southern Blue Nile, Nuba Mountains, Eastern Sudan (Red Sea Hills), Southern Sudan (Kapoeta, Raga), Darfur and extreme Northern Sudan (Wadi Halfa). These regions of the Sudan are regarded as priority targets with highly prospective for both base metals and sulfide gold mineralsation that cannot be detected by traditional panning methods but only by chemical analysis (Gabb, 1997).

Despite their richness with mineral resources, the regions of New Sudan are the least geologically mapped and researched region of the Sudan except few reports from project works that were done in between 1976-81 by the Hunting and Geophysics Limited of England and the MEFIT-Consultants of Italy (Itto et al, 2000). These two projects resulted in the production of some geological maps of Juba-Torit area and geomorphologic map of the whole Southern Sudan. These geological maps indicate that Southern Sudan consists of early Precambrian rocks of the Watian (288-3000 million years) and Aruan (2550 million years) groups, the Precambrian rocks of Mirian (950 million years) and Chuan (450-650 million years) groups, the Tertiary rocks (basaltic),

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and the Quaternary as the youngest formations. While Watian and Aruan groups are the oldest rocks and occupy a very large part of Eastern Equatoria, the Mirian groups that are associated with alkaline and basic intrusions occupy a very large area of Southern Sudan and became known as the ‘Nile Gneisses’ (Itto et al, 2000). The Chuan group that contains significant auriferous mineralization is mainly found in the areas of Kapoeta, Nuba Mountains and Southern Blue Nile. The Tertiary Rocks are divided into two groups: volcanic rocks that are basaltic and mainly found in Boma and Kapoeta areas and the unconsolidated superficial sediments, mainly sands, gravels and clays that occupy three quarters of South Sudan. The Quaternary Rocks are the youngest group of rocks and they are found in broad valleys or as swamp deposits in most parts of Southern Sudan, Nuba Mountains and Southern Blue Nile.

The most recent geological report from New Sudan (Itto et al, 2000) has confirmed the existence of large and commercial deposits of gold, chromites, uranium, copper, diamond, niobium, limestone, iron, petroleum, talc, marble and others. On the basis of the recent reports on the mineral resources and for the sake of this paper, I will only highlight the potential of the main minerals such as gold and petroleum in the New Sudan as reported by Itto et al (2000) and Gabb (1997).

Gold: The most important metallic mineral found in three regions of the New Sudan is gold, an alluvial that occurs principally in river basins in East Equatoria, Bahr el Ghazal, Nuba Mountains and in South Blue Nile regions. Gold has been panned from the stream beds in many parts of the South Sudan, especially in Kapoeta area in east bank Equatoria, Boma Plateau in Upper Nile, Yei River County more specifically along the River Congo – the River Nile water divide, Kajo-Keji - Luri river basin areas. Here gold occurs immediately west of post-tectonic granites of Jebels Karari and Kidi in three streams draining pyritiferous schisms, Gneiss’s and Amphibolites of the Madi metasediments and the contact granite. Other rivers such as Togolo and Kolier also do yield alluvial gold. The gold occurrences in the Kapoeta area consist of reported high grade in situ mineralisation associated with small outcrops of serpentinised ultramafic rocks and also

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extensive alluvial deposits (Gabb, 1997). In north western Bahr el Ghazal (Hofrat el Nahas in Raga) minor gold values occur in the primary sulphide zones with estimated reserves of 10 million tons and these have been enriched in the oxide zone to about 1/7 ounces of gold per ton, with some surface samples assaying up to 1/3 ounces of gold per ton (Gabb, 1997).

In Southern Blue Nile, gold has been mined by the local people for at least 2000 years on old river terraces along the Blue Nile and also extend in a narrow belt along the foothills of the Ethiopian highlands for a distance of about 125 miles. This deposit is a part of the gold belt that runs along the western foot of the Ethiopian highlands, extending to the areas of Kurmuk and Dajo and Kigeli in Upper Nile. Some recent work has located extensive gold-bearing quartz veins at Queissan, which are reported to have a potential of 100-1,000 tons at a grade of 1/5 ounces of gold per ton. The quartz viens form a stockwork zone of up to 230 feet wide with individual veins of up to 65 feet wide. Minor auriferous quartz veins have been reported over an area of 230 feet by 65 feet between Kurmuk and Queissan associated with the contact zone between pyretic basic volcanic and overlying volcano-classic sediments. The UNDP survey of the Ingassana Hills located widespread gold values in heavy mineral stream sediment samples (22 out of 133 samples). The best gold values were associated with anomalous copper values in the south east of the survey area and estimated to yield maximum assay values of 0.42% copper and 1/35 ounces of gold per ton (Gabb, 1997).

In Nuba Mountains a greenstone-ophiolite belt extends for 40 miles with a width of 25 miles between El Terter and Abu Gebieha. According to Gabb (1997) an individual gossa outcrops are up to a mile square in extent, and appear to be deeply weathered and leached with surface values of up to 5% zinc, 0.19% copper, 0.1% lead, 0.8% nickel, 0.2% barite, 0.06% arsenic and 2,000 ppb mercury. This large extent of gossans and their easy access, about 60 miles south of the railway along the road between El Terter and Abu Gebieha, makes them of potential commercial interest for large tonnage base metal and gold deposits (Gabb, 1997).

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Petroleum: Huge deposits of petroleum and natural gas have been discovered in the regions of the New Sudan particularly in the most parts of Southern Sudan, Southern Kordofan and Southern Blue Nile as shown in Map A. It is generally estimated that the oil reserve is about 262.1 billion barrels that will be exhausted by year 2015 with the current estimates of recoverable resources of 750 million barrels (Gagnon and Ryle, 2001). Currently there are about 17 exploration and 25 development wells in Southern Sudan with average daily production of about a quarter of a million barrels (200,000-250,000 barrels per day).

In 1975, Chevron Overseas Petroleum Company was granted the first oil concession in Sudan and made its first strike in 1976 near the border between Southern Kordofan and Southern Sudan and later realized that there were greater quantities of oil in the Southern Sudan than in Southern Kordofan. Using remote sensing technology, LANDSAT MSS (Multi Spectral Scanner) image mosaic covering more than one million square kilometres in South Sudan, Chevron geologists confirm huge deposits of petroleum with estimated reserves of millions of barrels extending from Bentiu to Kapoeta. The initial Chevron’s exploration and development of six wells in Higlig in Southern Sudan showed an estimated reserve of 265 million barrels, with a production output of 2,000 barrels per day. By 1982, Chevron had drilled 22 discovery, appraisal and production wells with estimated total oil reserve of 593 million barrels and a production rate of 3,600 barrels per day. Chevron suspended its oil development activities in Southern Sudan in 1984 when three of its expatriate employees were killed in Bentiu by rebel group in that area.

In 1992, Chevron sold its major Sudan oil concession. It was acquired by the Canadian Arakis Energy Co. who resumed small-scale oil development in 1996 in Blocks 1,2 and 4 as shown in Map A. As a result of increasing insecurity in 1996, Arakis sold 75 per cent of its oil concession in the Sudan to China National Petroleum Company, Malaysian Petronas Carigali and the Sudan state petroleum company Sudapet that jointly formed the Greater Nile Petroleum Operating Company (GNPOC). As a result of the United States sanctions against Sudan in 1997, Arakis sold its share (25 per cent) in GNPOC in

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1998 to the Canadian largest gas and oil producer, Talisman Energy Inc. (Gagon and Ryle, 2001). Also a Swedish company called Lundin is involved in oil exploration in Block 5A, while TotalFinaElf has the largest concession in Block 5 but with no any active oil exploration activities as the area is virtually under the control of the SPLM.

3. The Etiology of Sudan Civil War: The real question is: Why did civil wars occur in the Sudan and particularly Southern Sudan, Nuba Mountains and Southern Sudan despite their huge and immense natural resources? A comprehensive understanding of the causes and origins of the civil war in the Sudan is evidently crucial, as the ultimate sustainable solution will largely depend on it. Despite the fact that Sudan has been at war with itself for more than 36 years since its independence in 1956, the debate on the genesis and causes of the recurrent civil wars is rather divisive and far from settled. This lack of consensus and good understanding about the causes of civil wars largely explains the stalemate in the efforts of reaching a comprehensive peace in the country. Generally most northern Sudanese particularly the ruling elite perceive the civil war as southern problem that is caused by the external forces and reject the claim of race and religion as the causes of the civil war. The majority of southern Sudanese including their elite see the causes of the civil war well rooted in ethnicity and religion. There is unsettled debate whether economic factors such as vertical and horizontal disparity have caused Southerners to rise and fight to end their economic deprivation. The various arguments of the causes of civil wars in the Sudan are discussed below.

Resources Scarcity: The Crisis of Subsistence in the North The nature of contemporary civil wars in Africa has renewed the need to revisit the fundamental question of whether contemporary civil wars are a simple product of grievances and resource scarcity or the result of criminal acquisitive desire (greed). The neo-Malthusian thesis attributes the causes of civil war to environmental degradation that has led to scarcities in natural resources (Mayers, 1987; Choucri, 1986; Homer-Dixon, 1995 and1998). According to Homer-Dixon (1998) the conflict is caused by the scarcity

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of natural resources either by driving elite to ‘capture’ resources at the expense of the poor and/or through its debilitating effect on economic and social innovation.

In the context of the Sudan, some environmentalists have attributed the causes of the current civil war to the scarcity of natural resources particularly in the Northern Sudan. Suliman (1999) argues that the nature of conflict in the Sudan has changed from being a classic ethno-religious conflict to one mainly over resources, with the economic and resources crisis in the North emerging as a driving force in the Sudan civil war. In the early 1970s the central government initiated policies which encouraged and subsidized shifts towards large-scale, commercial and export-oriented agriculture as a ‘quick fix’ to rapid economic development as well as attracting multilateral financial institutions, development agencies, and rich Arab governments. In pursuance of rapid large-scale agriculture expansion, the central government introduced in 1970 a new land act known as ‘Unregistered Land Act’ that virtually legitimised the state’s control and ownership of any piece of land. This act allowed the central government to expropriate thousands of hectares of prime savannah land from the farming and pastoral communities and they were leased eventually to wealthy citizens and foreign investors to be used for capital- intensive, rainfed mechanized and irrigated farming (Kebbede, 1999).

In the 1970s the World Bank alone provided funding for the clearing of more than 2 million hectares of nomadic grazing land for large scale irrigated and rainfed mechanized farming (Bernnett, 1987). In southern Kordofan about 84,388 hectares of most fertile land was turned in 1973, with loans obtained from the World Bank, into publicly and privately operated mechanized farming scheme (Ahmed, 1983). In southern Blue Nile a wealthy Saudi Prince obtained a 99-year lease on 464,000 hectares of fertile land ‘to produce sorghum to feed animals in the oil-rich nations’ (Prendergast, 1990:41). Also in the 1970s it is estimated that an average of 8,750 of square kilometres of forest were removed annually to make room for mechanised farming (Berry and Geistfeld, 1983). An example of such wholesale clearing of forest in the 1970s was the rapid decline of the Acacia Senegal and later accelerated by peasant farmers in early 1980s as it became

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more lucrative to turn their Acacia trees into charcoal for sale, than harvesting the gum (Cater, 1986:10).

As a result many traditional subsistence farmers, nomadic and semi-nomadic pastoralists in northern Sudan lost their farms and grazing lands during the 1970s. The nomadic pastoralist communities in southern Kordofan and southern Darfur were forced by the economic necessities to look for new grazing lands or settlement areas southwards particularly in the South that created frequent tensions and conflicts over scarce cultivable land and fresh grazing land. The horizontal expansion of mechanized farming accelerates the deforestation as well as soil exhaustion that resulted in the recurrent droughts in the early 1980s that became unmanageable by peasant farmers and pastoralists who became vulnerable to famine in 1984/5 in western Sudan. The drought and famine in western Sudan in the early 1980s triggered the greed drive among the destitute former herders to seek to replenish their stock through raiding, and traders with squeezed profit margins to turn to financing cattle raiding in the South as lucrative business (de Waal, 1996:8; Keen, 1994).

Natural Resources Abundance: The Curse of Mineral Resources in the South The thesis of attributing the causes of civil war to resource scarcity has been challenged by contrary evidence that suggests that natural resources abundance is primary causes of the civil war. Soysa (2000:125) finds no evidence to support the hypothesis that the countries that are resource-poor (natural capital per capita) and poor (in per capita wealth) are especially vulnerable to civil war. Most recently some economists empirically support the proposition that natural resources motivate greed that causes civil wars (Collier, 2000; Elbadawi and Sambanis, 2000; Collier and Hoeffler, 1998). Collier (1998) finds that a high proportion of primary goods exports is significantly and robustly related to the incidence of civil war because the availability of natural resources provides incentives for rebel groups to loot and to sustain their activities. This finding was further qualified by Soysa’s study (2000:125) that suggests the abundance of mineral wealth rather than renewable natural resources is strongly related to the incidence of civil

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conflict as high stakes associated with controlling mineral wealth are likely to be the cause of conflict.

Collier challenges the dominant discourse that imputes the causes of civil war to grievances and argues instead that the true cause of much civil war is the silent force of greed as he finds that the economic variables that proxy greed-motivated rebellion outperforms the proxies of grievance-motivated rebellion. In other words the natural resources are seen to act as a ‘honey pot’ that triggers incentives for profit-seeking groups to be involved and initiated violent actions. Malaquias (2001) specifically argues that it is not accidental that the new internal wars in Africa are fought in countries well- endowed with natural resources with primary objective of pillaging natural resources rather than achieving political objectives.

The strong assertion by Collier of attributing entirely the causes of civil war to greed has been questioned as other factors such as ‘state failure’ emanating from Dutch Disease are equally behind armed violence. Soysa (2000:123) argues that the observed strong positive association between natural resource abundance and incidents of civil war may in fact be capturing the grievance effects generated by the perverse socio-political conditions associated with the distorting effects of reliance on convenient resource streams. The case of Sudan civil war seems to confirm this argument as the greed of the ruling elite rather than that of rebels that generated grievances and rebellion. In the context of the Sudan civil war, the mismanagement of natural resources particularly water and oil by the state towards the end of the 1970s and early 1980s contribute to the causation of the civil war that erupted in 1982. Most recent reports (Gagnon and Ryle, 2001 and Christian Aid, 2001) show how oil is funding and sustaining civil war and how the government of Sudan is pursuing a ‘scorched earth’ policy to clear the oilfields of civilians in order to make way for the exploration of oil by foreign international oil companies.

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Psychological Makeup: Ethnicity and Religion There are competing economic viewpoints about the role of ethnicity and religion as causes of civil war. Though majority of researchers across all disciplines refute any claim that attributes the cause of civil wars to religion and ethnicity, there is growing empirical evidence that suggests the contrary. Some recent studies show a positive association between the incidents of civil wars and religious polarization and ethnic diversity (Huntington, 1996; Annet, 1999; Mauro, 1995; Reynal-Querol, 2001; Ellingsen, 2000). Reynal-Querol (2001) shows empirically that religious divisions are more important than natural resources in explaining the incidence of civil wars because of exclusivity, rigidity and uncompromising characteristics of religion.

As a result of the perceived difficulty in solving ethnic civil wars, some economists (Kaufmann, 1996; Mearsheimer and Evara, 1996; Horowitz; 1985) develop ‘partition theory’65 that elaborates a set of hypotheses on the usefulness of partition as a solution to ethnic civil war as a way of restoring civil politics. The ‘partition theory’ is grounded in ‘security dilemma’ as the dilemma arises when one community faces a distrustful other and one’s actions to increase one’s own security are perceived as threatening the security of others and such dynamic is intensified when the opponents belong to different ethnic groups (Kaufmann, 1996; Posen, 1993). Horowitz (1985), a prominent theorist, argues that it is a mistake to seek accommodation among the antagonists to live together in a heterogeneous state and it is better for them to live apart in more than one homogenous state.

Though this theory of partition has been shaping scholarly and policy opinion with its intuitive appeal on how to end ethnic civil war, it has been challenged by recent empirical findings. Sambanis (2000) shows with empirical evidence that partition does not reduce the risk of civil war and it is instead positively associated with recurrence of ethnic wars. Collier (1998) refutes the belief that ethnic diversity increases the risk of

65 According to ‘partition theorists’ ethnic civil wars are characterized by strong and fixed identities, by weak ideological and strong religious overtones, by the dissemination of tales of atrocities to strengthen mobilization, and by easy recognition of identities and the existence of only limited scope for individual choice. As such once war starts all members of the group must be mobilized because other ethnic groups will inevitably recognize them as enemies and such inescapable destiny reinforces the dynamic of war and must lead to partition as the only feasible option for resolving such a conflict (Sambanis, 2000:2).

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civil war and argues instead that beyond a quite level of diversity, increased ethnic diversity reduces the risk of violence and even recommends the need to change the current state borders so as to increase the ethnic diversity.

In the context of the Sudan civil, the argument of imputing the causation of civil war to ethnicity is rather contentious and acrimonious and far from being settled. According to Deng (1995) the crisis in the Sudan is a result of the fact that the politically dominant Arabised Northern Sudanese, the products of Arab-African genetic mixing and a minority in the country, see themselves primarily as Arab, deny the apparent and dominant African element in them, and seek to impose their self-perceived Arab-Islamic identity on the overwhelming majority of non-Arab communities. Deng argues that the more this imposed Arab-Islamic nationalistic perception is challenged or even questioned by the non-Arab majority, the more it is coercively asserted in the country by the state. Deng is convinced that the civil war in the Sudan is essentially triggered by ethnicity and religion that determine one’s place in society and provide the basis for allocation in the distribution of power and resources. As a result of this psychological makeup and apparent identity anomalous, Deng (1995) argues that dogmatic self- perception are bound to dominate and separatism to be accepted as a safety valve for peaceful coexistence in the short run.

Despite the strong and convincing argument presented by Deng (1995), religion and ethnicity are not per se the prime triggers of the civil war in the Sudan but they are rather magnifying factors that are effectively used to conduct war (Deng, 2002). There are examples of community groups with different ethnicity and religion who have been able to live peacefully alongside each other for long periods and there are also examples of similar community groups who failed to co-exist peaceful (Keen, 2000). The ethnic, religious and cultural diversity is inevitable in any society and the way societies manage such diversity determines the level of peaceful co-existence or even conflict (Deng, 2002). As such Sudan has been failed not by its ethnic, religious and cultural diversity but rather by its ruling northern elite as they wrongly opted to impose the perceived Arab-Islamic national identity paradigm to unite the country.

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The Role of Elite: Sudan Failed by its Ruling Elite The resources scarcity and resources abundance arguments as well as ethnicity and religion argument are not sufficient to explain the causes of civil wars as the actions and policies of political elite are equally important in causing civil war (Ali and Mathews, 1999). Brown (1993) identifies a gap in many studies on causation of civil wars as they have failed to recognize the important role of ‘bad leaders’ and argues that the vulnerable elite engaged in power struggles are at the heart of many internal conflicts. In their struggle to retain powers, the political elite will pursue policies that will trample on the economic, cultural, or political rights of the marginalized (Hampson and Malone, 2002). Keen (1998) argues, contrary to Collier (2000) position, that much of the violence in contemporary conflicts has been initiated not by rebels seeking to transform the state, but by elite trying to deflect political threats by inciting violence, often along ethnic lines. Azam (2001) attributes the causes of civil wars in Africa to the failure of the state to meet its obligations regarding public goods provision and security.

In the context of the Sudan some Sudanese scholars impute the causes of civil war to the failure of the ruling northern elite who have forcibly adopted Arab-Islamic identity as a paradigm for uniting the country. According to Khalid (1990) the main objective of northern elite before independence and after their inheritance of the reins of power was the construction of a united Sudan with Arabo-Islamism as the sole determinant for the national unity. The ruling northern elite saw the religious and cultural diversity of the country as a threat to unity and strove to eliminate it as such diversity was perceived as tantamount to racio-cultural hegemony. According to Khalid (1990) it is this paradigm adopted by the ruling northern elite that has haunted and continues to haunt the Sudan. Consistent with this argument, Garang (1987) diagnoses the problem of civil war in the Sudan as a problem of the northern ruling elite contrary to the dominant perception that it is a problem of the South.

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Conflict over Natural Resources: The Politics of Revenue Sharing While the first argument about religion and ethnicity emphasises the magnifying factors of civil war, the second argument about the role of the ruling northern elite is rather too general and does not explain why the current civil war erupted again in Southern Sudan in the early 1980s.

In most of the studies on the causation of civil war, there has been much focus on natural resources with relative dearth of attention devoted to political institutions and the rules of the political game for revenue allocation mechanisms. The conflict around natural resources is largely determined by uncertainty in the distribution of revenues, equity in the allocation of revenue and the level of enforcement of the rules for allocating revenues (Herbst, 2001). In most cases the institutional structures that guide the allocation of revenues from natural resources tend to be the drivers for conflict rather than natural resources per se. The questions of how revenue from natural resources are distributed and whether such distribution is equitable and enforceable are central political questions for shaping and explaining the political conflict rather than mere abundance of natural resources.

In the context of the Sudan, the rules for allocating revenues to ensure equity and regional equalisation were not well spelled out in the Addis Ababa Agreement that ended the first civil war in 1972. Generally Article 25 of the Agreement granted the Southern Region residence-based taxes (personal incomes taxes and consumption taxes) and some selected categories of source-based taxes (corporate income 5 per cent, some excise duties and property taxes, profits on exports, business profit tax). Though Article 25 (Appendix B:14) of the Addis Ababa Agreement spelled out the source of revenue of the Southern Region, the contribution from the Central Government for the encouragement of construction and development was arbitrary set to be around 20 per cent of the initial cost as assessed paradoxically by the Central Government. It is worth noting that 20 per cent is not of the total revenues of the Central Government but rather from the initial cost assessed by the Central Government rather than the Southern Regional authorities. Interestingly Article 25 (Appendix B:11) granted the Southern Region to collect Special

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Development Tax to be paid paradoxically by the residents of the region. Also Article 11 (xiv) of the Agreement gave the Southern Regional Government the right for mining and quarrying with Central Government still retaining the entire ownership right over natural gas and minerals.

According to the provisions of the Addis Ababa Agreement, the residents of Southern Sudan region who suffered 17 years of civil war were paradoxically expected to pay higher taxes and received lower revenue shares from the Central Government than other regions of the Sudan. The revenue sharing arrangement as provided by the Agreement besides lacking the economic rationale and sound theoretical framework for making judgements, it had utterly failed to address the long-standing horizontal and vertical disparity between North and South. It is this apparent flaw in the initial institutional design for revenue sharing arrangement that accentuated regional socio-economic disparities that further triggered again civil war in the Sudan.

Vertical Socio-Economic Disparity: In order to assess the revenue sharing mechanisms after Addis Ababa Agreement, the planned development and investment regional budget is compared with the actual expenditure during period 1972/3-1982-3 in order to assess vertical disparity as shown in Figure 1. It is apparent from Figure 1 that the realised and actual budget was hardly covering 20 per cent of the planned budget except in the first year of the peace agreement in 1972 when the realised budget reached about 40 per cent of the planned budget. The realised budget was financed by the regional government sources, contribution from the central government (20 per cent as spelled out in the agreement) and external sources. The fact that the realised budget was hardly covering 20 per cent of the planned budget clearly suggests that the revenues transfer from the central government were less that 20 per cent and the regional government was also unable to mobilise the necessary resources because of weak regional economy. When comparing the actual total expenditures of the Southern regional government during 1972/3-1982-3 with the annual tax revenues of the central government (about 1.480 billion Sudanese pounds) in year 1984, it hardly covered 5 per cent.

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As a result of dwindling resources generated by the regional authority and coupled with limited revenues transfers and contribution from the central government, the socio- economic services deteriorated and the disparity between North and South widened further. In order to assess the socio-economic disparity between the South and North, indicators such as hospital beds, health centres, primary schools, primary school pupils, primary teachers, vehicle licenses, banks and admission to University of Khartoum are used as shown in Figure 2. It is not surprising to observe from Figure 2 the appalling and shameful disparity between the South and North. Even if a crude method such as population estimate is used to allocate revenue and socio-economic services, the population of South that is about one-third of the total population should at least receive about 30 per cent of the socio-economic services provided in the entire country.

Horizontal Disparity: The Marginal Cost of Rebellion in the South The vertical disparity in the provision of the socio-economic services between the North and South does not adequately explain why civil war erupted again in the South rather than in other regions of the Sudan. In order to assess the relative level of grievances and marginalisation, horizontal comparison of socio-economic services across various regions is used as shown in Figure 3-7. It is clear from Figures 3-7 that while Khartoum and central region received higher share of socio-economic services, the Southern region received the least.

This apparent socio-economic disparity with apparent inequitable development and revenue allocation that generated sense of frustration and feeling of helplessness, injustice and marginalisation that eventually led people in the South to resort again to armed struggle in order to readdress such disparity and inequality (Yongo-Bure, 1993). Garang (1987:20) emphasises the economic factors, such as fall in productivity, high level of unemployment, hyper-inflation, acute inadequacy and deteriorating social services and social and moral bankruptcy in the ruling system that have plunged the overwhelming majority of the people particularly southerners into an abysmal level of poverty and suffering. Garang (1987:21) argues, using his words, that ‘under these

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circumstances the marginal cost of rebellion in the South became very small, zero or negative; that is, in the South it pays to rebel’. This series of deliberate violations of basic legal, political and economic rights of the South that made Garang (1987) to argue that the northern ruling elite by then have openly aggressed and agitated Southern Sudanese into rebellion and civil war and such provocations have precipitated renewed civil in the Sudan.

4. Revenue Sharing Criteria: The Economic Rationale In many countries fiscal imbalances among sub-national governments are a prevailing phenomenon due to interregional socio-economic disparities (Hur, 1990). To alleviate such imbalances, appropriate revenue sharing arrangements need to be worked out in order to allow national government to devolve a part of its revenue among sub-national governments with due regard to vertical fiscal imbalances between different levels of government and horizontal fiscal imbalance among the regions. The real question is: what criteria are to be followed in order to determine the optimal size of revenue sharing?

The Economic Rationale: The economic argument for revenue sharing hinges on the notion of efficiency and equity. The notion of efficiency in economics is derived from the concept of Pareto optimality in welfare economics. An allocation of resources is said to be ‘Pareto optimal’ if it is not possible to change the allocation so as to make one person better off without at the same making another worse off (Ashwe, 1986). In the context of revenue sharing, one allocation scheme will be considered more efficient than another if it results in a higher value of gross national product (GNP). Generally the theoretical literature on revenue sharing calls for fiscal equalization on both equity and efficiency grounds (Boadway et al, 1983). The notion of equity as applied in the public finance and in welfare economics pertains to the treatment of individuals rather than of bureaucratic entities such as regions or states (Ashwe, 1986:30).

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The equity criterion is rather subjective and tends to be controversial as its nature requires some value judgement regarding the relative well-being of different persons in society. The tradition in the public finance literature is to distinguish between horizontal and vertical equity. While horizontal equity requires that like persons be treated equally, vertical equity is concerned with treatment of unequals as it necessarily involves some value judgement about the weights to be attached to the level of well-being of different peoples. Though the principle of horizontal equity is easily interpreted in a unitary system, its interpretation becomes difficult in federal or con-federal system as different regions may have different sources of natural resource wealth from which to draw tax revenues (Ashwe, 1986).

In the context of revenue sharing, the equity criterion calls for fiscal equalisation of residence-based taxes (those levied on the income and expenditures of the residents) and partial or full equalisation of sources-based taxes (those levied on income or wealth at source such as corporate, property and resources taxes) depending on constitutional property ownership definition. In the context of the Sudan the issue of ownership rights over the natural resources is fundamental and crucial in determining the revenue sharing arrangement. In countries where the constitution gives property right to citizens, communities or regions of the state, then full equalisation of sources-based taxes will be desirable. There is prejudice on the part of political leaders particularly in Africa against the development of a system of individual property rights to land as individual rights are assumed to be inconsistent with customary law (Ault and Rutman, 1978). As a result most postcolonial governments including Sudan abolished private ownership of land and sought to return to communal land tenure systems that ended up with absolute state ownership of land that has been used to dispossess communities of their land. It has been shown that the African communal land tenure systems are generally sets of individual rights that are yet to be defined and exercised when the necessary economic conditions create adequate demand for land.

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Revenue Sharing Criteria Generally the revenue sharing criteria are based on the consideration of relative deficiencies in fiscal capacities of the regions or states and intended to allocate higher per capita transfers to regions with lower fiscal capacity. There are mainly three revenue sharing criteria: population, distance and inverse-income. These criteria are basically used for allocating revenues in the horizontal distribution among regions. These three criteria are clarified and shown in Figure 8 and the main features of each criterion is discussed below: a. Population Criterion: Constant Formula According to the population criterion, the share of a region is determined purely by its share of population (qi) and each region gets the same per capita share regardless of its per capita income or fiscal capacity. The per capita share of a region (qi) can be written as: qi = Ni/∑Ni (1) Where N indicates population of i region (i=1,…..n). Correspondingly, the per capita shares of the regions are given by qi*= 1/∑Ni (2)

Which is constant as indicated by horizontal line with intercept (=1/∑Ni) as shown in Figure 8. This implies that the population criterion would give higher per capita shares to all the richer regions with per capita incomes greater than the mean per capita income

(ys), and lower per capita shares to all regions with per capita income lower than the mean per capita income (ys) of the country as shown in Figure 8.

As horizontal equity entails equal treatment of equals and inter alia vertical equity calls for unequal treatment of unequals, the population criterion is apparently inconsistent with vertical equity (Srivastava and Aggarwal, 1997). Although population criterion has several shortcomings, the total population of a region still remains a broad indicator of expenditure needs. Ashwe (1986:28) argues that the population criterion satisfies fiscal

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equalisation principle as equal per capita grants result in a higher grant-income ratio for regions with low per capita incomes. b. Distance Criterion: Absolute Progressive Formula In the distance criterion, per capita deficiency in fiscal capacity of a region is identified as the difference between benchmark/standard per capita fiscal capacity (ys) and the per capita fiscal capacity of the region (yi) (Srivastava and Aggarwal, 1994). Usually per capita fiscal capacity is measured in terms of per capita income (ys). Under the distance criterion, the share of a region can be written as: ai = (ys - yi)Ni/∑ (ys - yi) Ni where i= 1,…,n and ys ≥ yi (3) Or it can be rewritten as: a*i = α( ys - yi ) = α ys - αyi (4)

Where α = 1/∑ (ys - yi) Ni and is a weighted aggregate of population where population of poorer regions are given absolute (progressive) higher weights. It also the slope (- α) that describes a straight line relating per capita shares ( a*i ) to per capita fiscal capacity

(yi) with an intercept term (αys) as shown in Figure 8. It is apparent also that the degree of progressivity (- α) at different levels of (yi) is constant. According to the distance criterion, the smaller the standard fiscal capacity (ys), the larger would be α implying greater progressivity and transfers to poorer regions while the relatively richer regions receiving smaller or nil shares. c. Inverse– Income Criterion: Relative Progressive Formula Like distance criterion, fiscal capacity of a region is represented by the income of that region. According to inverse-income criterion, per capita deficiency in fiscal capacity of a region is identified as the ratio of standard per capita income (ys) to the per capita income of the region (yi). Thus the share of a region is given by: bi = Ni(ys/yi)/ ∑Ni (ys/yi) (5) Or bi*= Ni/yi/ ∑(Ni /yi) = β Ni/yi (6) where β = 1/∑(Ni /yi)

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According to inverse – income criterion, β is a weighted aggregate of the population that indicates progressivity of the dispensation criterion. Unlike distance criterion where α is constant, β in inverse-income criterion changes with yi and as such the degree of progressivity changes with yi. This implies that inverse – income criterion tends to give higher per capita shares to regions with very low or very high per capita incomes as shown in Figure 8 with a rectangular hyperbola curve that relates b*i with yi. d. Comparison of Criteria: Experiences from Selected Countries Comparison of Revenue Sharing Criteria: The real question is which of these criteria is more progressive in terms of giving a larger share to the poorer regions? In comparison to other criteria as shown in Figure 8, population criterion is less progressive and tends to give relatively lower shares to regions with per capita incomes less than ys (national per capita income), and relatively higher shares to all regions which lie to the right of ys. Comparing distance criterion with inverse-income criterion, the former gives higher shares to all the regions in the range

(y1* to y2*) and lower shares to all the regions with income less than y1* or greater than y2* as shown in Figure 8. Beyond the income level y1*, the distance criterion seems to be more progressive as compared to the inverse-income criterion.

In order to have unambiguous comparison between distance criterion and inverse-income criterion, national per capita income is used as standard (ys). Accordingly, the inverse- income criterion as compared to the distance criterion would give larger shares to the regions with per capita income around or above the national average (ys) most at the cost of regions with per capita income around half of the national average as shown in Figure 8. This suggests that distance criterion, except for the very poor regions, appears to be more appropriate. However if a large part of population lives in the low income regions, then inverse-income criterion may be preferred. As such, the choice between the two criteria becomes an empirical question. In the context of the Sudan where a large part of population lives in the low income regions, the inverse-income formula may be preferred.

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When a combination of criteria (population, distance and inverse-income) is considered, it results in progressive allocation of dispensation. This suggests that any progressive criterion combined with the population criterion would result in a distributive mechanism which is progressive as a whole. However, the larger is the weight attached to the population criterion, the lower would be the progressivity of the allocative mechanism taken as a whole.

Revenue Sharing in Selected Countries: The process of revenue sharing and transfers involves determining both the volume of vertical transfer and its distribution among the regions. The experience of some selected countries in allocating revenue vertically and horizontally is summarised in Table 1. It is apparent from Table 1 that countries with large part population lives in the low-income regions (Nigeria, Brazil and India) use primarily inverse-income criterion in combination with population criterion, while others with relatively high incomes adopted distance criterion in allocating the revenue among the regions. Interestingly in most countries with exception of Germany and Canada, the volume of vertical transfer is determined independently of the scheme of distribution of transfers among the regions. In Germany, the scheme of horizontal fiscal equalization does not involve vertical transfers, while in Canada the determination of vertical transfers and their allocation among regions is done simultaneously. Most countries have some sort of statutory or non-statutory institutions for allocation of fiscal transfers among the regions. The determination of vertical transfers and their allocation among the regions is based on thorough needs and fiscal capacity assessments. The benchmark that guides the allocation of fiscal transfers ranges from the highest per capita income, national per capita income, standardised tax per capita, national average tax capacity, standardised expenditure and minimum responsibilities.

5. Critique of Nigeria’s Revenue Sharing: The Option for the Sudan It is apparent from Table 1 that the experience of Nigeria; given its history and socio- political characteristics, is more relevant to the Sudan context than other experiences.

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However, the relevancy of the Nigerian experience in revenue sharing to the Sudan context requires thorough examination and critique. Nigeria operates a federal system of government with three tiers: federal, state and local governments. Its 1979 Constitution provides for a presidential system of government, akin to the USA with an executive President and a National Assembly composed of two houses: a Senate and House of Representatives. The States are headed by a Governor and a House of Assembly while the local governments are run by a Council with a presiding Chairperson.

The Constitution grants the state governments a reasonable degree of autonomy and self- government whereas the local governments are creatures of the states. Each tier of government has functions allocated to it under the Constitution with apparent and substantial concentration of powers at the federal level. Thus the power of tax income, profits and capital gains, custom and excise duties, import and export duties (source- based taxes) rests solely with the federal government. The Constitution also vests the entire ownership and control of all minerals in the federal government.

The state governments on the other hand have jurisdiction over general sales and purchases taxes, gift taxes, land taxes, entertainment taxes, motor vehicle licenses and fees, personal income tax (residence-based taxes). The local governments have revenue powers over property taxes and rates, market and trading licences and fees. In addition, they are responsible for the administration of the personal or community tax (a head tax) that they share with states.

The apparent implication of the concentration of fiscal powers at the federal level is that lower-level governments have to rely on transfers from the federal government in order to fulfil their constitutional roles. The Constitution explicitly provides for this by establishing the Federation Account, into which all revenues collected by the federal government must be paid. These proceeds deposited into Federation Account must be shared among the three tiers of government according to such rules prescribed by the National Assembly.

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The real and key challenging issue in the Nigerian fiscal federalism, like other federal systems, is how to share revenues among the different tiers of governments in order to attain the desired goals. The revenue sharing arrangement has been a contentious issue and as a result has been changing overtime by various governments and regime. For the sake of this paper I will present the Nigerian revenue sharing arrangements as recommended by Ashwe (1986) and their relevancy to the context of the Sudan as shown in Table 2. The main features of Ashwe (1986) recommendations include: criterion and the process of determining the vertical and horizontal allocation of fiscal transfers and the main principles to be applied for allocating revenues.

Combined Revenue Sharing Criteria: The revenue sharing arrangements in Nigeria came as a result of relentless struggle for nation building in the midst of religious and natural-endowments disparities across the country. In recognition of regional disparities and history of struggle over natural resources, Ashwe (1986) recommended combined revenue sharing criteria that include population and inverse-income criteria. Ashwe (1986) also recommends step-wise procedure for estimating the relative fiscal positions of the three tiers of government by comparing the fiscal functions of the federal government vis-à-vis the states to get the states’ share; then to take similar analysis of the states vis-à-vis the local governments to get the state-local distribution. As discussed earlier that the combined revenue sharing criteria is generally progressive in transferring revenues to the poorer regions and the choice of inverse-income criterion in particular is more relevant to country like Nigeria where large part of its population lives in poor regions. The use of population criterion is important as population factor acts as broad indicator of basic expenditures needs of the communities and acts also as equalising factor of various regions.

Sudan shares similar historical and contemporary experiences with Nigeria and the choice of combined revenue sharing criteria (population and inverse-income) will be appropriate and relevant. The apparent regional socio-economic disparities between North and South and among various regions of the Sudan can not be resolved by political settlement alone but must be complemented by comprehensive revenue sharing

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arrangements that will gradually address such disparities and to achieve vertical and horizontal equity in the long run. The experience of Addis Ababa Agreement in the Sudan has clearly shown that a political agreement without sound economic arrangements to address the root causes of the conflict is bound to revert to protracted conflict as is the case now in the Sudan.

Principle of Minimum Responsibilities: The main rationale behind this principle is that the states (regions) are equal as legal entities and that every state/region, regardless of size, has a financial responsibility for providing the minimum governmental services to its people, and should therefore be provided with the necessary resources to perform this function. Ashwe (1986) recommends that this factor is best captured by focusing on the minimum financial requirement needed for discharging administrative responsibilities rather than the entire government services as some services such as social development services should be treated separately. This principle clearly acts as equalising factor as cost of administration is an essential service which all states, small and large or poor and rich, have to undertake. This principle of minimum responsibilities is so appealing and relevant to the context of the Sudan.

Social Development Factor: Social development service factor is an essential factor that captures the economic regional disparities and plays important role in equalising regions as well as realizing horizontal equity. Due to the paucity of data, Ashwe (1986) recommends the use of economic indicators of fiscal capacities and expenditure needs, or indirect measures of budgetary data to drive some measures of regional disparities to be used for equalization process. In the absence of social development and welfare data, Ashwe (1986) recommends to use social development indicators such as primary school enrolment and hospital beds as they represent a measure of the level of social advancement and also a good indicator of need. Also Ashwe (1986) also recommends use of inverse enrolments as a proxy measure of the level of social inequality as well as the level of social

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advancement. In the context of the Sudan, the apparent dearth of relevant data makes this recommendation relevant in determining the revenue sharing mechanism.

Cost Disability Factor: Ashwe (1986) recognises that systematic variations in the cost of provision of public services may introduce differential net fiscal benefits that are a real cause of inefficiencies and inequalities in a federal system. Such systematic variations in cost may be due to differences in the degree of urbanisation, population density, geographical terrain or topography that are essential to be explicitly incorporated in the revenue sharing scheme. Ashwe (1986) recommends that easily available data such as urbanisation and population density to be incorporated in the revenue sharing scheme with the level of transfers varying directly with urbanised population and inversely with population density. In the context of the Sudan, such factors like urbanisation and population density do play important role in decisions pertaining to allocation of social services but hardly consider in allocating revenues among regions.

Internal Revenue Effort: As a result of data limitations, the revenue sharing grants are based on actual budgetary data rather than potential revenue capacities. This apparent limitation may make equalisation of fiscal capacities to serve as a disincentive to state or local governments to exploit their revenue potentials. Ashwe (1986) recommends internal revenue effort to be included in the revenue sharing scheme in order to improve fiscal performance of governments despite its potential of penalising poorer states with smaller tax bases. Ashwe (1986) also suggests that, as the ultimate interest of this factor is to assess the burden of raising revenues on citizens, it should be related to the population of the state rather than its expenditure that is leeway to manipulation.

Mineral – Producing States: The issue of considering allocating part of the Federation Account to the mineral- producing states in Nigeria is a contentious political issue. Because of deeply founded regional loyalties and interregional rivalries, this principle of allocating part of the

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federal revenues to the mineral-producing states has always been over-emphasised in the Nigerian politics. While Okigbo Report in 1980 recommended about 2 per cent of Federation Account to be distributed among mineral-producing states on the basis of derivation, that is in proportion to their contribution to the Federation Account, the National Assembly increased it instead to 5 per cent. The military regime that ousted the government of Shehu Shagari in 1983, promulgated a new decree that provided 2 per cent of revenues derived from minerals rather than 2 per cent of the Federation Pool Account to be paid to minerals-producing states on the basis of derivation.

In the context of the Sudan, this principle of allocating part of the minerals proceeds to the mineral-producing regions will constitute an integral part of the conflict resolution for whatever shape the future Sudan will take. Given the apparent socio-economic disparities with mineral-producing regions paradoxically suffering most, this principle is so relevant but it needs to be treated with care in future as it may accentuate regional economic disparities that may further engender political controversy and interregional bickering and acrimony.

6. Conclusions: The paper has shown that the marginalised regions of the Sudan particularly Southern Sudan, Southern Kordofan, Southern Blue Nile, and Eastern Sudan are paradoxically well-endowed with huge and immense mineral resources potentials such as gold and petroleum. The paper has clearly shown that the politics of revenue sharing arrangement has greatly contributed in creating vertical and horizontal disparities in the Sudan with Southern Sudan suffering most. The apparent socio-economic regional disparities and socio-economic marginalisation of the Southern Sudan triggered the current civil war. Though the paper recognises the important role played by natural resources, ethnicity and religion and northern ruling elite in contributing to the causation of the current civil war, it gives due weight to socio-economic disparity as the main trigger of the current civil war.

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The paper argues that the issue of revenue sharing is essential in addressing the current vertical and horizontal disparities in the Sudan. The discussion of the economic rationale of the revenue sharing arrangements highlights that the criteria such as population, distance and inverse-income are to be considered to realise economic efficiency and vertical and horizontal equity. The paper shows that the inverse-income criterion or in combination with population criterion is appropriate with country like Sudan as it is relatively progressive in transferring national fiscal revenues to poorer regions. The experience from other federal systems shows that the revenue sharing scheme is an integral part of the constitution with well established statutory or non-statutory institutions for its implementation and enforcement. The paper shows that issue of constitutional definition of property rights particularly land is particularly essential in the revenue sharing arrangement and requires thorough revisiting.

The critique of the Nigerian revenue sharing scheme shows that the use of criteria such as minimum responsibilities, social development factor, cost disability factor, internal revenue effort and minerals-producing regions are so relevant to the context of the Sudan. These criteria are crucial in addressing the basic needs as well as equalising the regions with apparent socio-economic disparities. The paper shows also that the principle of allocating part of the national fiscal revenues or proceeds from the mineral resources to the minerals-producing regions is appropriate to the Sudan context with cautious observation of its side effect in the future.

One clear policy implication is that the revenue sharing arrangement should be seen as essential part of any political settlement as it provides an opportunity for addressing basic needs as well as ensuring vertical and horizontal equity. The experience of Addis Ababa Agreement is a reminder that any agreed future revenue sharing scheme, it must be an integral part of the constitution with well defined statutory and non-statutory institution entrusted with its implementation and enforcement. The fact that the most marginalised regions of the Sudan are the ones well-endowed with mineral resources provides a hope that the effective utilisation of these mineral resources with full participation of these communities will not only resolve the current conflict but will also

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deter the risk of future civil war. In terms of policy implication, it shows that the communal ownership of natural resources must be emphasised institutionally as it will make the state or multinational corporations bound to engage in partnership with the communities in development and exploitation of these resources.

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Table 1: Comparison of Revenue Sharing Schemes in Some Selected Countries

Country Criterion Benchmark Institutions Vertical/Horizontal Vertical Transfers % Australia Distance Standardized CGC Independent 39.8 Expenditures

Brazil Population Per-capita Finance Independent 21.5 Inverse-income Income Ministers

Canada Distance Per-capita Tax Federal Simultaneous States

Germany Distance Average Tax Federal No Vertical 57 Capacity States Transfers

India Combined Highest Per- Finance Independent 81 capita Income Commission

Nigeria Population Minimum National Independent 40 Inverse-Income Responsibilities Assembly

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Table 2: Ashwe’s Recommendations for Nigerian Revenue Sharing Tiers of Government/Rationale % Measurement a. Vertical Allocation: (Total Federation Account): 1. Federal Government 50% Ratio of all States annual 2. State Governments 33% expenditure to federal expenditure 3. Local Governments 17% b. Horizontal Revenue Allocation (States): (50% of Total Federation Account):

Main Rationale and Principles: 1. Population (need) 40% Recurrent budgets of all states as per cent of total federal revenues 2. Minimum responsibilities of government (Administrative Budget) 20% Administrative expenditure of all states as per cent of their total expenditures 3. Social development factor: • Primary school enrolment: (i) Direct enrolment 10% Education expenditure of all states as (ii) Inverse enrolment 10% per cent of their total expenditures • Hospital Beds (per 1000) 5% Expenditures on health of all states as per cent of their total expenditures. 4. Cost Disability Factor: • Urbanized Population 5% Expenditures on works of all states as • Population Density (inverse) 5% per cent of their total expenditures 5. Internal Revenue Effort: 5% Personal income tax collection as per cent of their total internal revenues (residual) c. Mineral - Producing States: 5% from federation account or revenue derived from minerals and portion among mineral-producing states according to their contribution to the pool) d. Horizontal Revenue Allocation (Local Governments) (33% of Total State Revenue):

Main Rationale and Principles: 1. Population (need) 40% 2. Social development factor: • Primary school enrolment: (iii) Direct enrolment 20% (iv) Inverse enrolment 20% • Hospital Beds (per 1000) 5% 3. Cost Disability Factor: • Urbanized Population 5% • Population Density (inverse) 5% 4. Internal Revenue Effort: 5%

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Figure 1: Southern Sudan Planned and Actual Budget, 1972-83

100%

80%

60%

Actual Planned 40% Actual/Planned Budget Actual/Planned

20%

0% 1972/3 1973/4 1974/5 1975/6 1976/7 1977/8 1978/9 1979/80 1980/1 1981/2 1982/3 Financial Year

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Figure 1a: Sudan Regional Population Distribution, 1957

20%

18%

16%

14%

12%

10%

8% Persons (1000) Persons 6%

0% Central Darfur Eastern Khartoum Kordofan Northern Bahr el Equatoria Upper Ghazal Nile Regions of the Sudan

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Figure 2: Sudan Vertical Socio-Economic Disparity, 1980-1

100%

80%

60%

40% South North South/North Ratio South/North 20%

0% Hospital Health Primary Primary Primary Vehicle UoK Banks Beds Centres Schools Pupils Teachers Licenses A dmission 1984 Basic Disparity Indicators

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Figure 3: Sudan Regional University Admission Disparity, 1984

600

o 500

UoK A dmission 1 984 400

300

200

100 Number of Students Admitted to U to Admitted Students of Number

0 Central Darfur Eastern Khartoum Kordofan Northern Bahr el Equatoria Upper Nile Ghazal Regions of the Sudan

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Figure 4: Sudan Regional Schools and Hospital Beds Disparity in 1980

4,500

4,000 B 3,500 Hospital Beds Primary Schools 3,000

2,500

2,000

1,500

1,000

500 Number of Primary schools and Number of and Primary schools

0 Central Darfur Eastern Khartoum Kordofan Northern Bahr el Equatoria Upper Nile Ghazal Regions of the Sudan

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Figure 5: Sudan Regional Transport Disparity, 1980

60,000

50,000

Vehicle Licenses 40,000

30,000

20,000

Number of Vehicle Licenses 10,000

0 Central Darfur Eastern Khartoum Kordofan Northern Bahr el Equatoria Upper Nile Ghazal Regions of the Sudan

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Figure 6: Sudan Regional Health Centres and Banks Disparity

60 Health Centres 50 Banks

10 Number of Health Centres and Ban

0 Central Darfur Eastern Khartoum Kordofan Northern Bahr el Equat or ia U pper Nile Ghazal Regions of the Sudan

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Figure 7: Sudan Regional Education Disparity, 1980

500,000

450,000

400,000 Primary Pupils 350,000

300,000

250,000

200,000

150,000

Numberof Primary Pupils 100,000

50,000

0 Central Darfur Eastern Khartoum Kordofan Northern Bahr el Equat or ia U pper Nile Ghazal Regions of the Sudan

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257 b. Summary of Discussion

1. Gold and Oil are recent discoveries. How much Gum Arabic revenue has been shared in the past? Northern Sudan has had this resource and cattle for a long time. The future constitution must also consider revenue sharing. This is a sensitive issue because the constitution is always a political construct and there is a worry that the weaker part of the country will get a bad deal. This could be avoided by ensuring it incorporates everyone’s opinion.

2. The statistics are from 1980s and are thus old and not current. The application of federalism in the Sudan has changed the situation in many ways. For example, the current constitution talks about two sorts of resources – state and non-state. The state in which a national resource is found gets a 10% concession. The rest of the revenue is dispersed according to national priorities. We now have 26 Universities; three of which are for the south – Juba, Wau and Malakal. Resources spent on services go to centres that have a higher concentration of population. Are the states able to cater for their expenses financially? Some can and some can’t. The level of federal grants given to these states is not shown in this paper.

3. The current constitution attracted lots of attention because it deals with revenue sharing. We cannot blame the people in the past about the sharing then. The first draft of the Frankfurt agreement only talked about the South. This was later amended to allow any state with resources to keep a percentage. The nature of the war has changed into a war that is mainly over the resources.

4. Lots of people have come through Eastern Sudan to get the gold. Many have not been successful - like the Roman Empire. The British discovered gold in northwest Sudan and started to mine it. After independence the mines were closed. In 1990 the GOS signed an agreement between a French company to mine gold in Ariab, which is eight kilometres west of Port Sudan. This mine has attracted many problems, as there are no Beja people on the committee that oversees the gold mining. Some of the materials used to mine the gold are toxic and have caused disease in the region. In addition, the miners are from other areas and thus this operation does not offer employment to the local people. The company sends the gold secretly and the money accumulated is not shared with the people. The GOS does not mention that they are getting money from gold which is exported. There are no services in this area even though there is this industry. There is a great potential to develop this industry in the region as there are many areas which have gold but the local population should be involved. The multi-national co-corporation could put any pressure on the government to be more transparent about its work in the region.

5. It is important to discuss policies on how can we share any mineral resources (gold, oil, diamonds etc). It is not a matter of 5,10 %. It is to do with the principles that will guide how we divide everything. The paper focused on the pre-war period because it is difficult to obtain data now. We need to decide a set of principles especially if we are going to have a working federal system. The person on the

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ground will be looking at the provision of services. The elite will be looking at big things like the constitution etc. The poor person wants to maximise his survival, wealth and security. A good political agreement does not necessarily mean much for the average person.

6. Revenue sharing is politics. The principle used to decide how to share the resources is more important than the figure reached. For example if there is only one bed for 10,000 in southern or eastern Sudan and in another region one for 25 per bed even if you give ten percent of the revenue to the Southern or Eastern regions things will not solve the problem. It is the rationale which will solve the problem not the arbitrary number. We do not want the southern Sudan to have more than the north. We want a rationale that leads to equity all over Sudan. We can learn a lot from the Nigerian experience and how they have dealt with revenue sharing. Sudan is lacking basic capital and thus in one way or another it must deal with multinationals. The rules of the game are very important. Any deal made must consider the rights of the communities.

7. No one knows how the Sudanese resources are reflected in the services provided in the country. The war is supported through tax. Where does the money go? There are no services offered to the public in the Western sense. Medical care, education and security are not free. Teachers in southern and western Sudan have not been paid for a long time. Without accountability there can be no revenue sharing.

8. The government must be accountable and the private sector can take over some of the public sector responsibility. The rules of the game must be very clear to everyone, especially regarding accountability. If the rules are clear then accountability becomes easy. GOS must provide the necessary services, as this is worldwide requirement of a government. It needs to collect taxes but it should be transparent in how it spends them. India has a complex revenue-sharing formula which apportions all revenue vertically and horizontally.

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