Working Together to Break Apart: Building a Framework for the Secession of Southern Sudan Laura Brittain Emilie DesRosiers Dan Moore Hannah Moosa Aneesa Walji Semir Yusuf Teshale This report was prepared as one of the requirements for a joint Political Science and Law Graduate Course, Constitutional Design for Divided Societies: Theory and Cases, co-taught by Professors David Cameron, Sujit Choudhry and Richard Simeon, at the University of Toronto during the 2009-2010 Winter Semester. TABLE OF CONTENTS CONTRIBUTORS .............................................................................................................................. 3 INTRODUCTION: “INDEPENDENCE IS MORE THAN SECESSION” .................................................... 4 1. COOPERATIVE SECESSION AND THE SUDANESE CONSTITUTION DAN MOORE......................................................................................................................... 14 2. SUDAN’S BLUE AND BLACK GOLD: FUELLING CONFLICT OR FOSTERING COOPERATION IN A FRAGILE ENVIRONMENT HANNAH MOOSA .................................................................................................................. 28 3. ANTICIPATING THE BIRTH OF A NEW BORDER: CROSS-BORDER MIGRATION AND THE CHALLENGE OF AVOIDING DE-STABILISATION ANEESA WALJI ..................................................................................................................... 66 4. INSTITUTIONAL CAPACITY BUILDING: DECENTRALISATION AND CREATING CAPACITY FOR THE GOVERNING STRUCTURES OF SOUTHERN SUDAN EMILIE DESROSIERS............................................................................................................ 76 5. TRANSITIONAL JUSTICE FOR SOUTHERN SUDAN LAURA BRITTAIN .................................................................................................................. 87 6. REGIONAL ACTORS AND THE NORTH-SOUTH CONFLICT IN SUDAN: ASSESSING THE PAST AND LOOKING FORWARD TO THE REFERENDUM AND BEYOND SEMIR YUSUF ....................................................................................................................... 99 CONTRIBUTORS Laura Brittain, JD Student, Faculty of Law, University of Toronto Emilie DesRosiers, MA Student, Department of Political Science, University of Toronto Dan Moore, JD Student, Faculty of Law, University of Toronto Hannah Moosa, PhD Student, Department of Political Science, University of Toronto Aneesa Walji, JD Student, Faculty of Law, University of Toronto Semir Yusuf Teshale, PhD Student, Department of Political Science, University of Toronto INTRODUCTION: “INDEPENDENCE IS MORE THAN SECESSION” Southern Sudan: Secession on the Horizon Sudan is a country whose people are divided along religious, ethnic and tribal lines. Competition over natural resources1 and a British colonial policy of indigenous administration only strengthened such divides.2 Wars have been and continue to be fought along such lines of identification. In addition to the violence in Darfur and the East, there is a long history of violence between the North and South. Sudan’s second North-South civil war, a twenty-two year conflict that killed at least two million people, and displaced roughly four million more, came to an official end on January 9th, 2005.3 The Comprehensive Peace Agreement (CPA)4 was the product of thirty months of negotiations between the Southern-based Sudan People’s Liberation Movement/Army (SPLM/A) and the National Congress Party (NCP) government of Sudan, a Northern Nile Valley-based “coalition of Islamist, commercial and security interests” that has been in power since a coup in 1989.5 The CPA outlined a six-year process intended to reconcile the forces that had fuelled the civil war: the North’s coercive centralization of political authority, disputes over ownership of natural resources; policies that consolidated the centre’s power by inciting and facilitating sectarian violence in the South; and a general Southern alienation partially rooted in its cultural distinctiveness from the North. The goal of the CPA was to foster unity by promoting respect for human rights, broad-based social justice, fairness in the distribution of wealth and political power, autonomous Southern governance, and reconciliation between North and South.6 Key events envisioned for the period between 2005 and 2011 included the adoption of an interim constitution, which occurred on July 9th, 2005; a census, which was completed in July 2009, two years behind schedule; processes of national reconciliation, which have seen little to no progress; and a national election.7 This election, which was to have occurred by July 2009 but was delayed until April 2010, was designed to be the central event of the interim period, cementing the legitimacy of the CPA and Sudan’s political leaders, fostering national identity and allowing the participation of those excluded from CPA negotiations.8 However, the withdrawal of the SPLM/A candidate, election irregularities and the general political climate has left limited possibilities for the promotion of national unity. Many of these difficulties of implementation have flowed from the tension between building unity and guaranteeing Southern autonomy. In the CPA, this tension was addressed through a “safety valve” for the South: a referendum on secession that must be held before the 1 “Conflict and the Environment” Post-Conflict and Disaster Management Branch (June 2007), online: United Nations Environment Programme (UNEP) <http://www.unep.org/>. 2 Douglas Johnson, The Root Causes of Sudan’s Civil Wars (USA: Indiana University Press, 2003) at 11-13. 3 Johan Brosche, “Sharing Power – Enabling Peace?” (Uppsala: Uppsala University and the United Nations, 2009) at 19, online: < http://www.pcr.uu.se/pcr_doc/other_pub/Sharing%20Power.pdf>; “Sudan: Displaced caught in the crossfire” IRIN (accessed 3 April 2010), online: <http://www.irinnews.org/InDepthMain.aspx?InDepthId=41 &ReportId=71000&Country=Yes>. 4 Online: United Nations Mission in Sudan, <http://unmis.unmissions.org/Portals/UNMIS/Documents/General/cpa-en.pdf> [CPA]. 5 Edward Thomas, “Decisions and Deadlines: A Critical Year for Sudan” (London: Chatham House, January 2010) at v, online: <http://www.chathamhouse.org.uk/publications/papers/view/-/id/823/>; Edward Thomas, “Against the Gathering Storm: Securing Sudan’s Comprehensive Peace Agreement” (London: Chatham House, January 2009) at 6, online: <http://www.chathamhouse.org.uk/publications/papers/view/-/id/688/>. 6 Thomas, “Decisions”, ibid. at v and 1-2; Thomas, “Gathering Storm”, ibid. at 6 and 9 7 United Nations Security Council, “Report of the Secretary-General on the Sudan”, S/2005/579 (12 September 2005) at para. 3. 8 Thomas, “Decisions”, supra note 5 at ix and 1-2; Thomas, “Gathering Storm”, supra note 5 at 16 and 18. Introduction: Independence is more than Secession 5 end of the interim period.9 The right of the people of Southern Sudan to a referendum was first posited by the Intergovernmental Authority on Development (IGAD) in its 1994 Declaration of Principles10, which was “inspired” by what appeared at the time to be Eritrea’s peaceful secession from Ethiopia.11 The right was incorporated into both the CPA and the Interim National Constitution of the Republic of the Sudan (INC).12 Section 219 of the INC provides that “the people of Southern Sudan shall have the right to self-determination through a referendum to determine their future status.” Voters must be given the choice between secession and continued unity within the general framework of the CPA.13 This referendum must occur on or before January 9th, 201114; it is currently scheduled for January 3rd. Secession, however, was not the focus of the CPA and the INC, which contain few provisions relating to Southern self-determination. The project was one focused on building national unity through elaborate arrangements for reconciliation, the recognition of diversity, and the protection of Southern autonomy through such measures as devolution of powers and legal pluralism. Unity was also the stated goal of the political leaders who drafted and entered into the CPA.15 John Garang, then leader of the SPLM/A, and one of the CPA’s chief intellectual architects, was a passionate advocate for transforming “Old Sudan” into a “New Sudan” that would be united through values of justice and democracy.16 Garang died accidentally on 30th July 2005, shortly after being sworn in as Sudan’s First Vice-President.17 Unity became less attractive for Southern Sudan after his passing: Garang had been viewed as a possible Presidential candidate with the potential for holding national support, and the only Southern leader who could successfully negotiate with the NCP.18 Although the CPA survived his death, its implementation in subsequent years has stalled. NCP tactics have been perceived, particularly by the public in Southern Sudan, as intentionally obstructionist. Cooperation between the NCP and the SPLM/A has degraded into a bitter stalemate, where the passage of much-needed legislation and implementation of key steps in the CPA timetable have been delayed by the parties’ zero-sum attitudes.19 President Omar al-Bashir has been forced into a defensive stance by the International Criminal Court’s indictment. As a result of these frustrating difficulties, the goal of national unity has fallen by the wayside. Among the SPLM/A leadership, those who support secession now openly express their preference, while many of those who originally supported unity have given up this hope. NCP leaders, including