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1 Rule of Law: Sudan Case Study Hosted by the University of South Carolina¶s Walker Institute, Washington, D.C.

1 July, 2011

Remarks by David H. Shinn Adjunct Professor, Elliott School of International Affairs, George Washington University

As the focus in this course is on deployment overseas to support the rule of law, I will lay out the key issues in this Sudan case study that face the governments in both the South and North as they implement the historic division of the country. South Sudan¶s week-long referendum in January 2011 to determine whether voters preferred continued unity with the North or secession resulted in a 99 percent vote for independence. Although the goal of the 9 January 2005 Comprehensive Peace Agreement (CPA) was to work to make unity of northern and southern Sudan attractive, this goal failed. Neither the North nor the South made a serious effort to make unity attractive. In the case of the South, any real thought of pursuing unity probably died with the death of the Sudan People¶s Liberation Movement (SPLM) leader John Garang in a helicopter crash soon after the CPA came into effect. For its part, the northern government never made a serious effort to take those steps that might have led to a vote for unity. To the surprise of many, however, the referendum took place on schedule and was relatively peaceful. The terms of the CPA, which created the transitional government of South Sudan and the Sudanese Government of National Unity, will continue until the end of the CPA on 9 July 2011. South Sudan is on the way to becoming an independent state and Khartoum has already opened a consulate in Juba that it will upgrade to an embassy after July 9. Challenges to Be Resolved There are some serious unresolved issues between the North and South. They include: y Approximately 75 percent of the producing oil fields are located in the South while the pipeline for export and the refinery capacity are controlled by the North. The two sides must agree on a formula for sharing the oil revenue or both entities will face economic disaster. This should be an issue where the North and South can find a solution that benefits both of them and there could be agreement by July 9. The initial goal was to have a second referendum on 9 January 2011 on the future of Abyei region where there are conflicting loyalties between the Ngok Dinka who live there

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2 permanently and prefer attachment to the South and the Misseriya, a nomadic Arab people, who use the land for pasturage during the dry season each year and prefer attachment to the North. This referendum did not take place. The future of Abyei must be resolved before there can be peace between the North and the South. The North introduced armed forces into Abyei resulting in occasional clashes. The conflict in Abyei resulted in the displacement of more than 100,000 Ngok Dinka. Although there is some oil in Abyei, it is relatively insignificant. The two sides avoided a major conflict by agreeing on a temporary solution for administration of the region and allowing 4,200 Ethiopian troops under UN mandate to replace Sudanese forces. There is agreement on about 80 percent of the border between the North and the South. The two sides must reach agreement on 7 separate sections of the border that constitute the remaining 20 percent. There is a Border Committee that has responsibility to reach agreement on the disputed areas and to demarcate the border. It will be impossible to resolve all of these issues before 9 July. There are significant groups of people in Southern Kordofan Region, especially the Nuba Mountains, and Blue Nile Region who are contending their future status. The consultations have been completed for Blue Nile Region but no agreements announced. Southern Kordofan, which is north of the border, lies on a fault line between North and South Sudan. Following elections earlier this year in Sudan, oil-rich Southern Kordofan did not take part and only held elections on 2 May to elect a state governor and the state assembly. The elections were generally peaceful. An NCP-backed candidate won the governership by a narrow margin and the popular Nuban opposition candidate cried foul. Consultations among the people are now expected to take place. In the meantime, northern troops moved into Southern Kordofan, creating another crisis. The citizenship of southerners who remain in the North and northerners who remain in the South has not been resolved. The North wants to solve this problem by establishing an agreement on ³soft borders´ that will permit northerners and southerners to cross without visas. The South may be willing to accept this solution, although it prefers a solution whereby northerners living in the South and southerners living in the North can choose their citizenship. Article 7 of the interim northern constitution permits dual nationality. This provision will not likely survive following the division of Sudan. The African Union High Level Implementation Panel on Sudan has taken the position that all persons should be permitted to remain where they are and keep their jobs and property. This principle seems to be generally accepted. There has been, however, no agreement on the amount of time persons will have to decide if they want citizenship in the North or South. Sudan has a debt of $38 billion, mostly to bilateral donors and commercial banks. There must be an agreement on who assumes this debt and how much donor nations, commercial banks and multilateral organizations are willing to write off. Not surprisingly, South Sudan does not want to assume any of it. The African Union High-Level Implementation Panel on Sudan has argued that this debt should be forgiven.

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3 y The interim constitutions for both the North and South expire on 9 July 2011. Both entities need new constitutions. The government of South Sudan released its draft transitional constitution in April. It is expected to be approved by July 7; South Sudan will then need to prepare a permanent constitution. Nine small South Sudan political parties announced they pulled out of the constitutional review committee following disagreements on power-sharing with the SPLM. For its part, if the ruling National Congress Party (NCP) in the North excludes other points of view from the constitutional discussions, it will create a series of new problems. Agreement on the new constitution is an opportunity for the North to create a more inclusive government. There are some 24,000 southern Sudanese students at the University of Khartoum; about 4,000 have already left for the South where there is not space in southern universities. It is not clear what will happen to the southern students who remain in the North or those who travel to the South and find no openings. Between 150,000 and 260,000 southern Sudanese have already left the North for the South. Unemployment is high in the South and it will be difficult to absorb these and future migrants into the southern economy. Thousands ended up in transit camps or temporary quarters. Under the CPA, SPLM military units were assigned to the North and northern units assigned to the South. Some of these units remain in place. There are some southerners serving in northern units in the South. After the referendum, some mutinied as they insisted on remaining in the South and keeping their military equipment. This resulted in conflict and killings involving northern and southern troops in these units. The security arrangements in the CPA expire on 9 July. The 9th and 10th divisions of the SPLA from the Nuba and Blue Nile areas have some 40,000 active troops. Because of the presence of these forces, the North maintains contingency forces and three Sudan Armed Force divisions nearby. This creates considerable tension. The goal is to establish a demilitarized buffer zone along the north-south border manned by a UN force. Darfur rebels continue to operate out of South Sudan and pose a challenge to both the governments of the North and the South. The future relationship between the North and South will be critical. Whether this is an amicable or hostile divorce, the North and South will remain neighbors. Dealing with the Future Looking forward, there are a number of considerations that will play a major role as the North and the South cope with their new situation. While there are many issues that separate the SPLM and President Omar Bashir¶s NCP, politically the two groups need each other to help ensure their respective hold on power. Economically, the North and the South remain joined at the hip, especially because 75 percent of the oil is located in the South while the entire export and refining capacity is located in the North. But senior South Sudan officials have already

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4 charged President Bashir has instructed his government to provide arms to rebel groups in the south in an effort to destabilize the South. They even claimed they have documentary proof but have not released it. President Bashir has strongly denied the allegation. Issues for Southern Sudan The euphoria in the South following the referendum should keep the secession process on track at least through the July 9 date for independence and for some months after. But southern expectations are excessively high and the euphoria will dissipate if the South fails to solve major challenges. y There is substantial development in and around Juba, the capital, but little elsewhere. This will lead to disappointment outside Juba and its environs unless development quickly occurs throughout the South. Half of the South¶s budget goes to salaries for the army, civil service and other persons on the payroll. Some 90 percent of the military budget is devoted to salaries. These trends are not sustainable. Some observers wonder if the South can remain intact. There will be pressure to bifurcate further along major ethnic lines. The defeated independent candidate for governor of Jonglei Region, Lt. General George Athor, comes from the senior ranks of the Sudan People¶s Liberation Army (SPLA) and engaged in conflict with the SPLA, charging the election in Jonglei was rigged. He is a Padeng Dinka, a sub-clan culturally close to the minority Nuer tribe. His activities threaten to undermine the cohesiveness of the SPLM. There is no clear evidence, as some in the SPLM allege that Athor is a proxy for the North. Corruption is a huge problem in the South. For example, the southern deputy governor of the Central Bank of Sudan stated in Juba early this year that there are southern officials who have millions in their bank accounts. During remarks in Washington in June, South Sudan Vice President Riek Machar acknowledged the corruption problem. He said it occurs especially in contracting, tax collection and in the form of illegally acquired land. The Bank of South Sudan is printing a new currency. While a separate currency is normal for a new country, the North said it would then issue its own new currency. This could result in commercial relations between the North and South only in hard currency as happened when Eritrea split from Ethiopia. Eritrea issued its own currency; Ethiopia quickly rendered obsolete the Ethiopian birr that was in use in both countries and issued a new version. The mandate of the UN Mission in Southern Sudan (UNMIS) expires on 9 July 2011. South Sudan has agreed to renew the mission although its mandate is not clear. The SPLM has a history of authoritarian rule. There is serious concern as to how much political space it will allow the opposition.

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5 Issues for Northern Sudan y The North also faces serious challenges. There is a growing expectation in some quarters in the North that Bashir will be forced to stand down, although there is no obvious successor and the political opposition is deeply divided. Bashir¶s NCP government is being perceived as the one that lost the South and has not been able to end the conflict in Darfur. Progress on resolving the conflict in Darfur has been disappointing. Events in Tunisia, Egypt and Libya may result in greater pressure for change in Khartoum. Others argue that the problems in the North are so severe that Sudan, unlike its neighbors in North Africa, is beyond an uprising. They are already enmeshed in trying to deal with dramatic change in the country. A spokesperson for President Bashir did announce in February that he will not run for reelection when his term expires in 2015. There is no guarantee that the center will hold in the North after the secession of South Sudan. There may be pressure from Darfur, eastern Sudan, the Nuba Mountains, and Abyei for changes in their relationship with the government in Khartoum. If the NCP does not recognize that the North remains a diverse society even after the secession of the South, problems concerning unity will continue. There is an immediate issue in Darfur where most Darfuris apparently want the current three regions to become one region. The NCP fears this change would be the first step towards independence. The northern cabinet in May actually created two additional states in Darfur for a total of five. On the other hand, Khartoum plans to hold a referendum on 1 July to make Darfur a single region to upgrade its status. The SPLM remains one of the largest political parties in the North. It is in the process of making itself independent of the SPLM in the South. After the South secedes, it is not clear what steps the NCP will take concerning the future of the SPLM in the North. Nor is it clear how southerners who remain in the North and oppose the NCP will organize politically. There are between a half million and a million southern Sudanese still living in the North. There are also about 15,000 southern Sudanese, some of them highly skilled, working in the northern government. South Sudan wants to absorb them into the civil service of the South¶s new central and regional governments. The NCP has a history of authoritarian rule with little space available for political opposition groups. Everything suggests this trend will continue. Regional Implications y A state of South Sudan will create new border relationships and have important implications for all of its neighbors: Ethiopia, Kenya, Uganda, the Democratic Republic of the Congo and the Central African Republic. The birth of a new nation astride the Nile River raises important questions about the allocation of Nile water. The water issue was ignored by the CPA and the SPLM left the

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6 matter to Khartoum. A 1959 treaty signed only by Egypt and Sudan allocates about 75 percent of the water to Egypt and 25 percent to Sudan. The division of Sudan raises questions about the appropriate allocation of water between the North and South and revives the debate about water allocation to the other eight Nile Basin riparian countries. There are still Sudanese refugees in neighboring countries; their future needs to be resolved. Secession of the South may set in motion renewed efforts by entities such as Somaliland to obtain African recognition for their own independence. Traditional Justice and Conflict Resolution Keeping in mind your responsibility to improve the rule of law and ensure equitable administration of justice, it is critical to understand the role that customary and traditional systems have played in South Sudan. They are historically important and the practices vary widely according to ethnic group. Years of civil war and rule by local militias, which carried out their own harsh systems of ³justice,´ have weakened these traditional systems administered by chiefs, elders and community and religious leaders. Some of the traditional practices, for example receiving a virgin bride in compensation for commission of a serious crime, also run counter to modern concepts of human rights. As a general rule, traditional systems of justice in South Sudan emphasize the shaming of the guilty party and the exaction of compensation for the aggrieved party or the family of the aggrieved party in the case of homicide. While these systems are not perfect and have been weakened over the years, they are still sufficiently important that the leaders of South Sudan have incorporated their practice into law in certain regions and for some kinds of legal redress. Ignoring them will only lead to misunderstandings and less effective implementation of modern systems of justice. Traditional conflict resolution practices may also be the most appropriate for resolving some of the upcoming problems in the North-South border area involving the movement of pastoral people.

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