February 12, 2009

V. Background

The Comprehensive Peace Agreement

In 2005, the Sudanese government and the Sudan People's Liberation Movement/Army (SPLM/A) signed the Comprehensive Peace Agreement (CPA) bringing an end to more than two decades of civil war in which more than two million people died. In so doing, they agreed not only to a ceasefire, but also to a series of reforms designed to bring democratic transformation to Sudan.

The CPA sets out a six-year interim period in which the two sides agree to withdraw troops to their respective sides of the North-South border, conduct a population census, and hold national elections. At the end of the interim period, southerners will vote by referendum whether Southern Sudan should remain part of Sudan or secede.[1] 

In addition to these time-sensitive provisions, the CPA provides for new government structures and reforms. It established the Government of National Unity (GNU) in Khartoum, created a semi-autonomous Government of Southern Sudan (GoSS) in Juba, and set out power and wealth sharing provisions and various reforms to achieve democratic transformation and "make unity attractive" to southerners before the 2011 referendum.[2] 

The signing of the CPA was itself an achievement, and in the following months the parties formed both the national and southern governments and enacted interim constitutions at both levels.[3] However, slow progress in implementing some of the CPA's key provisions has strained the relationship between the two parties such that in October 2007, the SPLM temporarily suspended participation in the GNU.[4] The party accused the National Congress Party (NCP), the Islamic party that dominates the Sudanese government, of failing to share oil revenues, failing to withdraw its troops from the south, failing to take steps to demarcate the historic 1956 North-South boundary, and, crucially, failing to implement the Abyei Protocol, an accord that aims to resolve the status of the contentious border town and surrounding area of Abyei.[5]

Although the SPLM rejoined the government in late 2007 and the parties addressed some of the sticking points, the Abyei dispute went unresolved.[6] Abyei is an oil rich territory straddling the North-South boundary, historically home to both Dinka Ngok and Arab Misseriya ethnic groups. Political control over Abyei-long a contentious issue-has taken on added significance with the discovery of oil reserves. Failure of the parties to agree on arrangements for administering the territory culminated in a conflict between the SPLA on one side and the Sudanese army and allied militia on the other in May 2008, killing scores of civilians and causing some 60,000 to flee from their homes.[7]

Demarcation of the 1956 North-South borderline-a lynchpin in the agreement-also remains contentious. The border determines which government may claim important oil and other assets. It also affects the composition of constituencies in the upcoming national elections. The demarcation process has been extremely slow, complicated by the lack of documentation from 1956 showing the location of the historic border.[8] With a significant portion of the borderline believed to be contested, the border commission's initial report-to  be submitted to the Presidency before the commission begins the process of physical demarcation-is likely to be controversial.

The parties have not fully implemented the agreed security arrangements.  They were to redeploy troops to either side of the North-South border by June 2007.[9] They both claimed to have finished troop withdrawal by January 9, 2008-six months later than agreed-but in fact neither side has yet fully complied.[10] In addition, they both continue to flout the agreement by amassing weapons.[11]

Security arrangements also call for Joint Integrated Units (JIUs), composed of equal numbers of SAF and SPLA troops, to be deployed throughout the South, in transitional areas, and in Khartoum in order to bring stability, symbolize unity between North and South, and become the kernel of a new army if southerners vote for unity in 2011.[12] The units have been deployed to most (but not all) of the envisioned locations, but remain under-equipped and fragile due to ethnic tensions, poor and un-integrated command structure, lack of training, and the use of former militia in JIUs that were not first integrated into SAF or SPLA.[13] They tend to fall apart in times of crisis, notably in Malakal in November 2006,[14] and were quick to join in fighting with their respective armies at Abyei and other locations.[15] The GNU's failure to contribute promised resources to them, especially in Abyei, where the JIUs and joint police units are supposed to provide security under the Abyei Roadmap agreement, has been a bone of contention.

The Road Ahead

The CPA time-table commits the parties to holding both a national census and elections before the interim period ends in 2011, when residents of Southern Sudan and Abyei vote on self-determination (Under protocols to the CPA governing Southern Kordofan and Blue Nile, residents there will not participate in the referendum[16]). The parties held the census in April and May 2008, but the process was deeply flawed in Darfur, where IDP populations refused to take part, and in parts of Southern Sudan, where insecurity interrupted the counting.[17] In Lakes State, communal violence killed an estimated 95 people and interfered with census activities.[18]

Both parties to the CPA have reserved the right to reject the census results. The President of Southern Sudan (who is also the First Vice President of Sudan) entreated the national and southern census commissions to seek agreement on the results before submitting the final report, reflecting concern that a controversy could fuel renewed violence, particularly in the lead-up to national elections scheduled in 2009.[19] The CPA's power-sharing agreement gave the SPLM one-third of the national representation based on assumptions about the population of Southern Sudan. A less than one-third count could weaken the SPLM's political power nationally.

Although the parties have announced their willingness to hold elections on the CPA time-table, which calls for elections by July 2009, [20] preparations are seriously behind schedule and many observers expect the date to be postponed. The list of tasks includes agreeing on census results, demarcating the North-South boundary, drawing boundaries for voter constituencies (based on population counts), nominating candidates, and registering voters. The National Elections Commission, appointed in November 2008, has yet to set a date for elections or appoint High Committees for Southern Sudan and the States to administer voter registration and elections, as required by the National Elections Act.[21] The elections law sets out an extremely complicated process, particularly for Southern Sudan, where residents will fill out twelve separate ballots for regional, state, and national officials. Public information and voter education campaigns-critical in the South where illiteracy rates are very high and where the population has little or no experience of participating in democratic elections-are just beginning.[22]

The national unity government is behind implementing legal and institutional reforms called for in the CPA that would create a free and fair elections environment. While it has passed several laws implementing aspects of the CPA-such as the Joint Integrated Units Act, the National Civil Service Commission Act, and others-it has not made reforms with far-reaching human rights implications. For example, the CPA calls for a new security service that functions as information gathering and analysis organ.[23]

The GNU has yet to reform the NISS, limit the arrest and detention powers of security officials, or reform the criminal code and media laws to protect freedom of expression in line with the interim constitution and international obligations. The CPA also calls on the national government to establish a National Human Rights Commission and Land Commission, neither of which it has done.[24] These reforms have been the subject of political negotiations between the CPA parties; the parties should not in their haste to reach a deal rush through legislation without proper consultation when the assembly reconvenes in 2009.[25]

Southern Sudan

The CPA is largely silent on governance in the ten States that make up Southern Sudan beyond establishing the GoSS and various mechanisms such as the Southern Sudan Land Commission. In an area almost the size of France that was never developed and has rarely been at peace over the last fifty years, the GoSS faces enormous state-building challenges.

It has made substantial progress establishing new government structures and institutions at the regional and state levels. It has largely succeeded in incorporating dozens of militias into the SPLA, as required by the CPA. On the development front it boasts improved roads, infrastructure, and new investment.[26] But the southern economy remains heavily dependent on the GoSS share of national oil revenues. The majority of the sizeable budget goes to the security sector, and to salaries rather than development projects.[27] Many commentators have noted the lack of transparency about how efficiently the budget is spent.[28]

Southerners criticize GoSS for keeping power and resources in the capital and for failing to deliver basic services. The process of decentralization, a stated priority for 2009, should in theory bring more services to people in rural areas.[29] States will need assistance setting up systems to pay public servant salaries, including for regular armed forces (police, wildlife service, fire brigade and prison guards) that are to be decentralized. Failure to pay salaries can lead to insecurity and human rights abuses. When teachers demonstrated over the lack of payment of salaries in Bentiu in October, authorities in Unity State responded by arbitrarily arresting and detaining several teachers.[30] In Juba, a student demonstration over the non-payment of their teachers' salaries in November also turned violent and led to human rights abuses when police used excessive force and shot into the crowd, leading to injuries and one death.[31]

Southerners also criticize the GoSS for engaging in "tribalism," and specifically for allowing the Dinka ethnicity to dominate government.[32] Many have indicated that anti-Dinka sentiment is rising in Juba. In addition, many have noted increasing signs of corruption and the head of the Southern Sudan Anti-Corruption Commission, which has yet to be empowered legally, has said "there is outright stealing throughout the nation because we have a fragile institutional set-up,"[33] In private conversations with Human Rights Watch, officials bemoaned the lack of transparency and accountability within their own administrations. The types of corruption officials mention include misuse of public funds, favouritism in hiring practices, and inflated payrolls.[34]

And while the architecture of government is largely in place, GoSS has been less successful breathing life into it. With very little legal expertise and high levels of absenteeism in the legislative assembly, the GoSS has been overwhelmed with the task of drafting legislation and slow to establish a needed legal framework.[35]  Laws on police, other regular forces, and land use are still in draft form, leaving a legal and policy vacuum in critical areas. The law to enable the Southern Sudan Human Rights passed in February 2009, while the laws enabling Land and Anti-Corruption Commissions are still pending.

[1] The Comprehensive Peace Agreement did not resolve other issues, such as land ownership or accountability for human rights violations during the 21 year civil war, although it established land commissions (nationally and regionally).

[2] The Comprehensive Peace Agreement Between The Government of The Republic of The Sudan and The Sudan People's Liberation Movement/Sudan People's Liberation Army (CPA), signed January 9, 2005 Chapter I, Part A, Art. 1.5.5. http://www.unmis.org/English/documents/cpa-en.pdf (accessed October 19, 2008).

[3] The GNU passed the Interim National Constitution and the GoSS passed the Interim Constitution of Southern Sudan. The GNU's National Assembly has enacted several CPA laws such as the Joint Integrated Units Act, the Organization of Voluntary and Humanitarian Work Act (NGO Act), the National Civil Service Commission Act, and others.

[4] The parties agreed to the CPA in large part because of the personal relationship between NCP's Ali Osman Taha, currently Vice President, and SPLM leader John Garang. Garang's death in July 2005 changed the dynamics of the peace agreement. See International Crisis Group "A Strategy for Comprehensive Peace in Sudan," Africa Report No. 130, July 26, 2007, pg. 3, http://www.crisisgroup.org/home/index.cfm?id=4961 (accessed February 2, 2009).

[5] CPA, Ch. IV.

[6] The parties have made progress on the wealth sharing provisions, but the Assessment and Evaluation Commission, an independent body established by the CPA to monitor its implementation, recommends more transparency in the oil sector. Republic of the Sudan, Assessment and Evaluation Commission (AEC), Mid Term Evaluation Report, July, 9, 2008, p. 18, http://www.aec-sudan.org/mte/mte_english.pdf (accessed October 7, 2008).

[7] Human Rights Watch, Sudan - Abandoning Abyei: Destruction and Displacement, May 2008, July 2008, http://www.hrw.org/en/reports/2008/07/21/abandoning-abyei-0. The parties have since made progress deploying new joint security forces and appointing an Administration pursuant to a June 8 agreement. However, the underlying boundary dispute, deferred to international arbitration, remains, and there have been reports of continued troop build ups in the area.

[8] James Gatdet Dak, "Sudan's 1956 North-South border map is non-existent," Sudan Tribune, June 29, 2008, http://www.sudantribune.com/spip.php?page=imprimable&id_article=27683 (accessed October 6, 2008).

[9] CPA, Ch. VI, Art. 3. The term "boundary," used interchangeably herein with "border," refers to the boundary drawn by the British colonial administration dividing North and South Sudan as of the date of Sudan's independence on January 1, 1956.

[10] CPA Monitor, November 2008, p.24, http://www.unmis.org/common/documents/cpa-monitor/cpaMonitor_nov08.pdf (accessed February 4, 2009); See also, United Nations Security Council, "Report of the Secretary-General on the Sudan," S/2008/485, para.s14-15, July 23, 2008, http://www.un.org/Docs/journal/asp/ws.asp?m=S/2008/485 (accessed October 7, 2008).

[11] See, e.g., "Sudanese army deploys troops in South Kordofan, SPLM says," Sudan Tribune, December 6, 2008, http://www.sudantribune.com/spip.php?article29498 (accessed February 2, 2009).

[12] CPA, Chapter VI; see also Small Arms Survey "Neither 'joint' nor 'integrated': The Joint Integrated Units and the future of the CPA", Sudan Issues Brief No. 10, March 2008, http://www.smallarmssurvey.org/files/portal/spotlight/sudan/Sudan_pdf/SIB%2010%20JIUs.pdf (accessed February 3, 2009)

[13] "Neither Joint Nor Integrated," p.4.

[14] AEC, Mid Term Evaluation Report, p. 37-8.

[15] AEC, Mid Term Evaluation Report, p. 38. 

[16] CPA, Ch. V

[17] The national census, conducted in April 2008 after several delays, was marred in part by a spate of attacks on civilians by Sudanese Armed Forces-supported militia in the preceding weeks. "Militia Attacks Threaten Crucial Census," Human Rights Watch news release, April 10, 2008, http://www.hrw.org/en/news/2008/04/08/sudan-militia-attacks-threaten-crucial-census.

[18] United Nations Security Council, "Report of the Secretary-General on the Sudan," S/2008/485, para. 5, July 23, 2008, http://www.un.org/Docs/journal/asp/ws.asp?m=S/2008/485 (accessed October 7, 2009).

[19] "Speech of South Sudan President Salva Kir on Fourth Anniversary of CPA in Malakal," New Sudan Vision, January 11, 2009 http://www.newsudanvision.com/news/speech-south-sudan-president-salva-kiir-fourth-anniversary-cpa-malakal-1467 (accessed February 2, 2009).

[20] CPA, Ch. II, 1.8.3 calls for elections by the end of the third year of the interim period, while implementation modalities (Annexure II) of the CPA call for elections no later than end of fourth year of interim period.

[21] The National Elections Act 2008, http://www.unmis.org/english/2008Docs/Election-LAW2008.pdf (accessed February 2, 2009).

[23] CPA, Ch.1, Art. 2.7.2

[24] CPA, Ch.1 Art. 2.10.2

[25] "Sudan: Pushed legislative reforms are counterproductive," REDRESS, January 12, 2009, http://www.redress.org/news/09-01-12%20REDRESS%20KCHRED%20Press%20Release%20Sudan%20Legislation%20Reforms%20-%20English.pdf (accessed February 2, 2009).

26See "Speech of South Sudan President Salva Kir on Fourth Anniversary of CPA in Malakal," New Sudan Vision, January 11, 2009, http://www.newsudanvision.com/news/speech-south-sudan-president-salva-kiir-fourth-anniversary-cpa-malakal-1467 (accessed February 2, 2009).

[27] The 2008 GOSS budget for SPLA Affairs alone was 1 billion Sudanese Pounds, representing nearly a third of the total 3.428 billion Sudanese Pounds. Close to half the budget went to salaries. http://mpagoss.org/budget.html (accessed October 7, 2008). In January 2009, GoSS passed a 3.6 billion Sudanese Pounds budget despite overspending in several sectors including security, and falling oil revenues.

[28] See John G. Nyout Yoh, "Countdown: Two Years to the Referendum," Gurtong, January 20, 2009, http://www.gurtong.org/ResourceCenter/editorscorner/edart_details.asp?editorsitem_id=1020 (accessed February 2, 2009).

[29] See "Speech of South Sudan President Salva Kir on Fourth Anniversary of CPA in Malakal," New Sudan Vision, January 11, 2009 http://www.newsudanvision.com/news/speech-south-sudan-president-salva-kiir-fourth-anniversary-cpa-malakal-1467 (accessed February 2, 2009).

[30] UNMIS Human Rights Bulletin, December 23, 2008, on file with Human Rights Watch.

[31] Human Rights Watch interviews with UN police and human rights staff (names withheld), Juba, December 2008.

[32] Traci D. Cook, "A place to call their own: Southern Sudanese comment on the hard work & struggles of self-governance," Findings from Focus Groups with Men and Women in Southern Sudan, National Democratic Institute for International Affairs, September 18, 2007, http://www.ndi.org/node/13793 (accessed January 28, 2009).

[33] "Lack of law hampers South Sudan's anti-corruption body," Sudan Tribune, July 30, 2008, http://www.google.com/search?hl=en&q=Lack+of+law+hampers+South+Sudan%E2%80%99s+anti-corruption+body+reuters (accessed February 2, 2009).

[34] Traci D. Cook, "Intergovernmental Relations in Southern Sudan," Findings From Interviews with Government Officials and Legislators and the GoSS and State Levels," The National Democratic Institute for International Affairs, September 30, 2008, p. 75, http://www.ndi.org/node/14950 (accessed February 2, 2009).

[35] Human Rights Watch interviews with members of Parliament (names withheld), Juba, March 17-18 and June 28, 2008.