South Sudan - The People's Choice - Tom Blass

The inhabitants of South Sudan have voted overwhelmingly for secession – but the new entrant to the community of nations must overcome a number of challenges, logistical and political.

A 98 per cent favourable vote is the kind of result that is typically regarded with some scepticism – justifiably. But in the case of the January 9th referendum in South Sudan, such a result is entirely credible. The Southern Sudanese are tired of being shoehorned into a single nation with neighbours with whom they have often been at war, and with whom they have been at odds since before the creation of the country.

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It’s been a long time getting here – six years since the signing of the Comprehensive Peace Agreement signed in Khartoum – and some Sudan watchers, made shy of optimism by a history of u-turns, were doubtful that the day would ever come.

There is jubilation in Juba. And surprising calm in Khartoum. Preliminary indicators suggest that President Al-Bashir, president of what is still a unified Sudan, has to all intents given his blessing to an event that he describes as the people’s choice. But there are huge challenges to overcome before this newest entrant to the community of nations can consider itself a strong and viable country. South Sudan may be united in its celebrations, but it occupies an area that is not only vast geographically, but ethnically and politically highly complex.

Much of the reporting of the referendum has focused – rightly – on South Sudan’s need for infrastructural development if first steps at nation-building are to be successful. The oft-quoted fact that there is less than 60 kilometres of paved road in the South is true; as it is that it will be impossible for the new country to realise its potential as an oil producer without massive investment in pipelines, refineries and drilling equipment. The need for institutions of governance is no less urgent – with some Sudan observers suggesting that without a marked change of direction there is every possibility that the new South Sudan will degenerate into what one frequent visitor described as, ‘a nasty little police state.’

Rule of law the victim

But reports from Juba and the wider region paint a mixed picture: at its most positive, of a proto-nation struggling against the odds to realise a dream of pluralist civil governance.

Daniel Bekele, Africa director of the campaigning institution Human Rights Watch (HRW), told IBA Global Insight that he was concerned that the institutions of the rule of law were only starting to emerge and that it was not yet clear that Southern Sudan would yet be capable of governing itself in such a way that respected the rights of its citizens. He said the organisation had uncovered a ‘growing culture of impunity’, particularly in relation to the actions of its soldiers. Recent reports by HRW have highlighted abuses including land-grabs, the use of ‘excessive force during military operations and while disarming civilians,’ and most worryingly, attempts at the suppression of an opposition party – the SPLM-Democratic Change. And it predicts that underlying issues around land ownership – for example, between Shilluk and Dinka peoples – may yet translate into political, even violent disputes. HRW has also documented sexual violence within the new Southern Sudanese police force, and a culture of unaccountability among young police recruits, manifest in arbitrary acts of violence and intimidation.

These kinds of report surfaced well before the referendum. In 2010, for example, a major study on South Sudan conducted by the London School of Economics (LSE) found that neither the Southern Sudanese government (Government of South Sudan – GoSS), nor the numerous aid agencies in the country, had actually achieved what they had set out to do during the interim period between the signing of the Comprehensive Peace Agreement in 2005 and the (then imminent) referendum. Rather, they found that ‘accountable government structures on all levels, reliable service delivery, civic education, security and a coordinated effort among development agencies remain elusive goals’.

‘The South cannot sell its oil without piping it through North Sudan to Port Sudan on the Red Sea and hence to the international markets.’
Stephen Chan
School of Oriental and African Studies


An underlying concern, it argued, was the tendency to blame violence either on interference in Southern Sudanese affairs by the Khartoum government, or on ‘tribal hatred’, noting: ‘The “tribal” label is applied to anything from family disputes, clashes within sub-clans of the same tribe, to attacks by criminal gangs or marauding former soldiers. But as an explanation for violence, the term is meaningless, particularly as violence is as often intra-tribal as it is inter-tribal.’ Intense political competition, resource disputes and ‘an absence of institutions with the capacity to control violence’, were, the report concluded, more plausible explanations for Southern Sudanese woes.

Arguably, that analysis might be flavoured by an academic distaste for ‘ethnic’ explanations – the report does go on to explore a number of areas where disputes are at least cast locally in tribal terms. Either way, five years is a short time in which to expect the organs of government to develop – especially given the region’s size, ethnic and political complexity, the physical and psychological legacy of war, poverty and lack of infrastructure. And the capacity for change possessed by the ruling Sudanese People’s Liberation Movement/ Army (SPLM/A) – which dominates the Government of South Sudan (GoSS) has been questioned by Sudan watchers long before it was certain that the referendum would indeed take place.

Stephen Chan, professor of International Relations at the School of Oriental and African Studies in London, says that he shares the concerns of others who have spent time in South Sudan that the SPLM/A will find the transition from being a militarised liberation army, to being a democratic party in the context of democratic civilian government, a difficult one to make. Not everyone in the region sees the SPLM’s current leader Salva Kiir, as the right person to lead this transition, he points out: ‘There are a number of ‘young Turks’ in South Sudan who are dissatisfied with Kiir; they feel that he has served his purpose as a liberation commander but that it is time for a new leader,’ he told the IBA, adding that the short-term success of the government would depend on the composition of the first cabinet, and its inclusion of new, possibly more technocratic elements. (Chan observes that the SPLM could do worse than to follow Robert Mugabe’s lead in 1980: ie, appointing younger politicians, many of whom had acquired skills and credentials in the West, to key positions.)

Tim Flatman, an associate of the London-based Foreign Policy Centre, who has returned from a three-and-a-half month fact-finding mission to South Sudan, is convinced that there are positive signs that the Southern Sudanese possess both an instinct for pluralism and a genuine will to create a democratic nation in the South. And, he said, there was evidence that the political engagement demanded of the region by the process of the referendum had actually enhanced that aspiration.

He recalled, for example, that in Upper Nile Province (one of the most ethnically and hence politically complex of the South Sudanese provinces), in the campaigning month ahead of the referendum – the SPLM had visited villages expressly with the purpose of informing residents that campaigners for Sudanese unity should be heard out courteously, and that it was not the SPLM’s wish to prevent that message being heard. ‘My very strong impression,’ he told IBA Global Insight, ‘was that the SPLM understood that a free and fair referendum was the best guarantee of the referendum actually
being successful’, ie that rigging the vote would be counterproductive.


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Civil society the key to democracy

Flatman observed another interesting, and otherwise little-documented by-product of the referendum process. As a condition of the Comprehensive Peace Agreement (CPA) under the auspices of which the referendum took place, the SPLM was not allowed to campaign for separation until one month before it was held. The consequence, says Flatman, being that the SPLM allowed civil society organisations, including youth and women’s groups – which previously had only existed as social networks – as well as campaign groups specifically set up for the referendum, to campaign for separation in their own ways.

‘Many of these are now looking at their possible political role and will begin campaigning on issues that involve them, such as unemployment, corruption, lack of transparency, as soon as separation is implemented. It might be a “happy accident”, ie an unintended consequence of the conditions of the referendum, but I think it could represent a significant if small step toward civil society,’ he says.

Flatman’s thoughts bear out the recognition within the public international law community that democracy and civil society generally fail if imposed – especially by third parties. Co-Chair of the IBA Rule of Law Action Group, Justice Richard Goldstone, points out that, ‘The greatest challenges faced by a nascent country are to make its people feel engaged in the process of nation-building. They should be consulted as effectively as possible and be given a sense of ownership in the new organs of state.’

But some observers have argued that, not only is the South not yet ready for multiparty elections, holding them now would only consolidate single party rule. One, who did not want to be quoted as saying so, pointed out that ‘at the moment, the tendency would be merely to vote along ethnic lines. But also there is no competent political force which can actually offer the SPLM competition’. In that observer’s view, a more sustainable path to democracy would be for rival parties to emerge out of possible splits in the SPLM, and out of the continuing development of civil society generally. ‘Civil society is the sphere in which democracy opens up,’ he argued.

South Sudan is still five months away from formally declaring its constitutional independence. Before that happens, GoSS negotiators must settle some outstanding issues with their counterparts from Khartoum. It is generally hoped that mutual fear of a reversion to conflict is sufficient to ensure these negotiations will succeed. But nonetheless there is unsettled business.

South Sudan needs infrastructure, and it needs revenues if it is to realise any ambitions of becoming a fully functioning and self-sufficient state. A potential deal breaker between North and South is the sharing of Sudan’s oil wealth. Currently, North and South share revenues from Sudanese oil ‘50–50’. This is an arrangement that Steve Chan regards as reasonable. ‘The South cannot sell its oil without piping it through North Sudan to Port Sudan on the Red Sea and hence to the international markets. Any prospect of other routes out of the South is a long way off. If well advised, the South will settle for a prolongation of the current revenue-sharing arrangement – which also reflects the original investments made in the oilfields by Khartoum.’

But as of mid-February, GoSS has said that it was ruling out revenue-sharing per se, and that it would prefer to proceed on the basis that it pays a transit fee for shipping the oil through the North. In financial terms, it may yet amount to very much the same, but the critical distinction being that, as the SPLM Secretary General has said, the notion of ‘sharing’ the oil wealth is inappropriate given that in July, North and South will be separate sovereign states, and not two halves of one whole.

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The need to share

Face-saving may also have a part to play in GoSS’s attitude. Another thorny issue remains the allocation of Sudan’s US$34 billion debt burden. According to Flatman, the higher echelons within the SPLM are quite willing to compromise on the debt issue, but, ‘it’s a very hard sell to the people. The popular view is that it represents money that was used by the North to wage war on the South, and that debt-sharing would in effect mean the South was paying for the [past] extermination of its own people. Some say that as a “bribe for peace” it’s just too high… all the more reason for the international community to explore the possibility of debt forgiveness’.

But perhaps the most contentious issue remains the demarcation of the actual border. While the British administration effectively treated Sudan as two separate countries (Arab, Muslim North, and Black, Christian/animist South), they failed to demarcate a boundary that subsequent history has hardened politically, even if it remains topographically, and in parts ethnically, elusive – and it is known that both sides have been scouring archives in London, Khartoum and elsewhere in their efforts to find any kind of cartographical representation of an actual boundary made before 1956 – the year of Sudanese independence.


‘The greatest challenges faced by a nascent country are to make its people feel engaged in the process of nation-building.’
Justice Richard Goldstone
Co-Chair of the IBA Rule of Law Action Group


Even putting to one side the vexed issue of the Abyei dispute (see box), North-South identities are not as distinct as even the 98 per cent referendum vote would suggest. The LSE report for one revealed pockets of uncertainty: in some areas, for example, the population is Muslim and culturally and linguistically Arabic. In others, the movement of people across boundaries is such that ownership of land is always in flux, and must be couched in terms reflecting the use to which it is being put at any given time.

But there is a consensus that all these outstanding issues are solvable, especially given the mutual reluctance to resume conflict. (‘Having had a peek at some of the material that’s available to both sides,’ said one recent returnee from Sudan, ‘I can categorically say that it wouldn’t be in either side’s interest to start fighting again!’) On the other hand, levels of mistrust remain high – as do the number of flashpoints. Worryingly, one 2010 survey revealed that a majority of respondents in the South expected war with the North to resume at some point in the future – and that many also foresaw civil war in the South. The challenge of all parties – the two new nations themselves and the international sponsors of the Peace Agreement – will be to confound those predictions.

Abyei: contested territory, potential tinderbox

A key feature of the Comprehensive Peace Agreement was that it provided a mechanism for the determination of the status of Abyei, an oil-rich province more or less centrally located between ‘North’ and ‘South’. Under a protocol signed in 2004, it was agreed that the population of Abyei would be permitted to vote on whether it regarded itself as part of the North or the South. And it established a Commission tasked with determining the boundaries (most critically, the Northern boundary) of Abyei province.

Historically, Abyei was always regarded as a ‘difficult’ province by colonial administrators. Remote and sparsely populated, two main groups, the Misseriya Arabs and the Ngok Dinka overlapped in Abyei, and conflict between the two – including cattle raids – were regular occurrences.

Under the Abyei Protocol it was agreed that the mechanism for deciding the boundaries of Abyei should be a commission (the Abyei Boundary Commission, ‘ABC’) – consisting of representatives of both North and South, alongside a panel of independent experts appointed by the main sponsors of the peace process. On the face of it, their shared task was straightforward, being to determine modern-day Abyei as constituting ‘the territory of the nine Ngok Dinka chiefdoms transferred from the province of Bahr al-Ghazal to that of [the province of] Kordofan in 1905.’

Much hinged on the ability of the Commission to discern the administrative boundaries imposed by the British administrators in the early years of colonial rule – and, importantly, on whether or not those administrators intended the Bahr al-Ghazal river to have served as an administrative boundary. Efforts, however, were hampered by an absence of satisfactory records – and also by the evident confusion in 1905 regarding the river's identity and location.

In the absence of agreement between the Sudanese representatives, the decision of the international experts was to be final and binding. In the event however, the ABC’s findings were not accepted by the Government of Sudan, which thanked the Commission for its ‘recommendations’ but rejected them, arguing that the Commission had ‘exceeded its mandate’.

The parties agreed to resort to arbitration, and in September 2009, a panel of the Permanent Court of International Arbitration (PCIA) gave a decision regarding the Abyei boundaries that was described by both parties as ‘a victory’. But the PCIA award has not drawn a line under Abyei; the North appears to be reneging on its pledge to honour the award. Fighting broke out in the region shortly after the referendum, and SPLM and GoSS have yet to agree on who, exactly, is entitled to vote on the question of whether Abyei belongs to North and South – a situation complicated by the contested histories of land use and ownership by Misseriya and Ngok Dinka respectively. Mediation efforts led by President Obama’s special envoy Scott Gration has yet to bear fruit.


The CPA – the route to a long lasting peace?

The Comprehensive Peace Agreement (CPA) refers to a series of agreements culminating in a final agreement signed in 2005 between President Omar Al-Bashir and John Garang (leader of the SPLM until his death in 2008). It was intended to end Sudan’s second major civil war since the country’s independence from the United Kingdom in 1956, and originally bound the two parties into a partnership intended to work for a ‘united, New Sudan’.

It is sometimes forgotten that the SPLM has not always advocated secession. Indeed, Garang was originally an advocate for a united Sudan (and fought mini-conflicts with prosecessionist political factions in the South) before concluding that the Southern people’s best interests would be best served in an independent state.

Important stages preceding the January 2005 agreement included the signing of the Machakos Protocol, signed in Machakos, Kenya, in 2002, which established the broad principles that underpinned the subsequent stage of the process. Further landmarks included protocols on power-sharing, wealthsharing, and for the attempted resolution of localised (but damaging) conflicts in Blue Nile Province, Abyei and South Kordofan.

So far it has proved to be a remarkably successful process, although the road to the referendum has not always been smooth.

Under the CPA, SPLM politicians enjoyed ministerial positions in the Government of Sudan in Khartoum while also serving in the Juba-based Government of South Sudan (GoSS).

In 2007, Southern Sudanese MPs withdrew from the power-sharing agreement on the grounds that the soldiers from the North were occupying oil fields in the South – and because of the government’s failure to implement the Abyei Protocol. The soldiers left the oilfields in the South in January 2008; the Abyei issue, however, remains complicated and not entirely resolved (some believe it remains potent enough to drag the two sides back into war).

It is highly unlikely that the CPA would have been possible without the sponsorship and participation of the international community – in addition, of course, to the involvement and political will of the two sides themselves. The most active forum has been the Assessment and Evaluation Commission (AEC), which includes representatives from both the Sudanese sides, and in addition Italy, the United States, the United Kingdom, Norway and the Netherlands, and is chaired by former UK diplomat, Sir Derek Plumbly. The African Union, United Nations, European Union and the Arab League participate as observers.


You can view extensive news coverage of developments across Africa in Legalbrief Africa, the IBA’s electronic news diary. Go to:


Tom Blass is a freelance journalist. He can be contacted by e-mail at