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Compliance of the National Congress Party with CPA Articles on Power and Wealth Sharing

Overall, key commissions agreed to in the CPA have not been established: the National Human Rights Commission, the Civil Service Commission, and the National Electoral Commission, among others. The Commission for the Rights of non-Muslims in the National Capitol has been announced, but not set up.⁴

The SPLM and Power Sharing at the National Level

At the national level, the CPA designated three clusters of ministries (sovereignty, economic sector, and services sector). The SPLM was to share “equitably and qualitatively” in each cluster to ensure that southerners were not handed the least influential and least sought-after ministries, far from the center of power, as has happened in the past—characteristically, southerners in government were appointed to head ministries such as Wildlife and Tourism, Animal Resources, and Transportation.

The SPLM was to receive 28 percent of executive branch positions, but the parties had an unwritten understanding that the SPLM would receive either the finance or energy ministry, the two most important ministries in the economic cluster. It received neither. Nor did it receive the top ministries, such as defense, interior and justice, in other clusters. The most important ministry in all three clusters the SPLM received was the foreign ministry, but although a former southern rebel heads this ministry,⁵ neither he nor the SPLM controls it: the former bureaucracy is almost entirely still in place.

Southerners were keen on controlling the energy ministry because it is the key to their revenue, but the NCP refused to relinquish it. First Vice President Salva Kiir claims that he sought to convince President El Bashir that permitting the SPLM to appoint the energy minister would greatly help “make unity attractive” and make it less likely that southerners would vote for separation in the referendum. Salva Kiir claims that Bashir replied, however, that the southerners were going to vote for separation whether or not they had the energy ministry.⁶

This allegation, if true, is a worrying indication of the thinking in the NCP, and flies in the face of the main objective of the long period prior to the southern self-determination referendum. If the NCP is convinced that southerners will vote for separation regardless, then it is much less likely to provide resources to help develop the south or otherwise facilitate southern integration into the national government in the interim period. Others say that this statement, and the actions of the NCP in denying the south a large portion of the oil revenue (see below), suggest that the NCP party intends to use its majority in government to extract as much wealth as it can from the south prior to the referendum.⁷

Salva Kiir, who faced his first storm of protest from southerners over his decision not to fight for the energy ministry, defended the decision by referring to the majority southerners would hold in the National Petroleum Commission.⁸ He also maintained that the SPLM would be able to monitor the quantity of oil being produced in the south, which would prevent trickery with the sharing of the oil wealth.⁹ The National Petroleum Commission, which is to develop strategies and programs for the petroleum sector and negotiate and approve all oil exploration and development contracts, was not formed until the eve of Salva Kiir’s October visit to the United States—when it was already several months late because of NCP neglect (see below).¹⁰

At present a number of factors are hindering the SPLM’s ability to seek full participation as a partner in the national political agenda, with which it should be engaged as a partner in national government. These include factors that tie its attention overwhelmingly to Southern Sudan, such as the challenge of building a functioning administration in the face of unforeseen financial constraints and the need to balance various group interests, and ongoing security problems. These are explored in succeeding sections of this report.

Also outlined below are some of the negative consequences of the SPLM’s lack of engagement or traction within a national government agenda evidently affected by NCP recalcitrance, notably the failure to enact security service reform, and to bring modified government positions to the negotiations with the rebels in Darfur.

One provision in the CPA for greater participation in government in Sudan—which applies to Darfur as well as the south and the rest of the country—is for national, regional, state, and local elections, following the first national census since 1983. Although, as noted above, the election date has been postponed from 2008 to 2009 by agreement of the NCP and SPLM, these nevertheless are to be the first internationally-monitored elections ever to take place in Sudan. Hopes are high that the elections will be an important step on the road to democracy in Sudan. One well-placed international observer claims that the NCP will not win the elections and neither will the SPLM.¹¹ If these parties are also of that opinion, then considerable international pressure will have to be sustained to make sure that the elections occur and are indeed free and fair.

The Autonomous Regional Government in Southern Sudan

One of the most successfully executed aspects of the CPA appears to be putting the regional government of the south into southern ex-rebel hands and having NCP-appointed personnel in the south recognize the superior authority of the SPLM civilian authorities. Former rebels and their supporters from the diaspora have established residence in Juba and taken up work in government offices there: they are clearly in charge. Not only the SPLM is present: several other southern political parties are represented in the Southern Sudan Parliament pursuant to the CPA.¹²

According to residents, since the SPLM’s official appearance in Juba in May 2005, the previous climate of repression of southern culture, religion and everyday life in Juba has loosened. A curfew was lifted and people could move more freely about the town. Security and military intelligence are invisible for the time being, and gatherings of citizens, spontaneous or planned, take place without restrictions.¹³ The transition of power away from the NCP military is not complete, however: not until mid-2007 must all the northern troops be withdrawn from the entire south. A major garrison remains in Juba, for instance, and although it is low profile it can readily be reactivated from Khartoum.

Under the power-sharing agreement, the NCP has the right to one of the ten governorships of the southern states. It chose the state of Upper Nile (capital Malakal), where there is great oil potential (blocks 3 and 7) and where Chinese companies have been building a second pipeline to export oil from the south. Insecurity and a lack of civilian protection prevails in that state because many government-sponsored ethnic militias of southern origin are still in place and claiming control over their areas, to the exclusion of the SPLM. The largest of them, the militia headed by Brig. Gen. Gordon Kong, chose in January 2006 to be incorporated into the Khartoum government forces, rejecting the agreement reached by Brig. Gen. Paulino Matiep of Western Upper Nile for the entire militia (South Sudan Defence Forces, SSDF) to be incorporated into the Southern Sudan army, the successor under the CPA of the SPLM’s armed wing, the SPLA.¹⁴

In Southern Sudan the regional government is forging ahead of the northern states and region in participatory democratic practices. As Southern Sudan’s President (and national First Vice President) Salva Kiir directed shortly after his August 11, 2005 inauguration in Juba, the representatives for the southern regional and state assemblies (and even the national assembly) were to be chosen by means of local consultations. The intention was to draw in hundreds of people in each location to participate in choosing their representatives from the candidates—local men (and a few women)—who put themselves forward to their communities. On short notice and with little formality, this experiment went well, although it was limited in scope. It reflected the customary participation of men in southern community decision-making that even the war could not entirely destroy.¹⁵ Anthropologists have long noted that some southern ethnic groups, particularly the Dinka and Nuer (who together are probably the majority in Southern Sudan), are in practice democratic to an extreme, resisting political hierarchies and insisting that one man is equal to another (issues of women’s equality and women’s rights in Southern Sudan are discussed in a separate section of this report, below).¹⁶

This has not been a perfect process of selection, however—even if women had been appropriately represented, as they were not. Citizens in the Bentiu area of Western Upper Nile claim that the person appointed governor, Taban Deng Gai (a relative of Southern Sudan’s Vice President Riek Machar Teny Dhurgon—see below—and former governor of Western Upper Nile in 1999) was not the person actually selected by those who participated in the gatherings, and that Brig. Gen. Paulino Matiep was influential in the appointment of his followers to government positions.¹⁷

If this was the case, this influence by Paulino Matiep foreshadowed his finalization of the agreement, mentioned above, whereby his rather important militia was incorporated into the new Southern Sudan Army in January 2006. Because of the political importance of persuading militia leaders to join the nascent southern regional government, and thus bring real peace to the area, this kind of deal may well have overridden the vote of those present and voting. Part of the deal, according to its opponents, was to have Governor Taban Deng appoint Paulino Matiep’s relatives to public office. Several of these appointees, however, are members of the NCP, potentially giving the NCP more people in this state government than was agreed upon under the CPA.¹⁸

On the whole, however, the broadened participation in selection of officials was an encouraging indication to southerners of the intentions of the new southern government to encourage popular participation in government.

The Southern Sudan Government and Wealth Sharing

Wealth sharing is an important aspect of the CPA for Southern Sudan: without income, no government can function or succeed. Southern Sudan will be dependent on its natural resources, particularly the oil revenue that is already on-line, for the foreseeable future to finance its governmental functions. Yet it is not receiving its full share of its oil revenue from the NCP-controlled ministry of energy. The south badly needs the promised oil revenue to build the rule of law, including a new police force, judiciary, and an honest and efficient bureaucracy. Depriving the southern government of anticipated revenues will gravely restrict that government’s ability to deliver on its promises, and will seriously hurt its viability as a government.

The Joint Assessment Mission in March 2005 estimated, based on the government budget, that half of the oil revenue derived from Southern Sudan to be allocated under the CPA to the regional Southern Sudan government would amount to U.S.$1.2 billion for the year 2005 (more than U.S.$2 billion total revenue)—with other reports suggesting that 2005 oil revenue to Southern Sudan might come in at the lower amount of U.S.$700,000.¹⁹ The $1.2 billion was budgeted for accordingly, but the NCP-appointed finance minister reported at the beginning of February 2006 that total oil revenue was $744.8 million²⁰—of which less than half was due to the Southern Sudan government. The shortfall on the amount initially projected is especially notable since oil prices rose in 2005.²¹ Although the total amount transferred by the central government to the Southern Sudan government was not disclosed, reports indicate that the oil revenue transfer to that government will not exceed U.S.$ 400,000—one-third of what was expected.²²

The discrepancy arises mainly from the NCP’s claim that the valuable Heglig oilfield lies outside the south, while the southern government claims otherwise.²³ Resolution of this issue has been held back by delays in establishing the Border and National Petroleum Commissions, which should determine where the boundaries of the south are located and what share of oil is produced in Southern Sudan. The parties agreed that the boundary is to be that drawn by the British prior to decolonization in 1956, but they have never agreed on where that 1956 boundary is or on which side of it Heglig falls. Heglig is part of concession blocks 1, 2 and 4 that the Canadian company Talisman Energy, Inc. controversially developed from 1998 until 2003, when it sold its consortium interest to the Indian state oil company, Oil and Natural Gas Corporation (ONGC). The Chinese National Petroleum Company, Petronas (the Malaysian state oil company) and Sudapet (the Sudanese government’s oil company) remain partners in this consortium.²⁴

These two commissions, and the equally vital Assessment and Evaluation Commission,²⁵ were not even nominally established until the eve of the visits of U.S. Deputy Secretary of State Robert Zoellick to Khartoum followed by that of First Vice President Salva Kiir to the United States (both in October 2005). The delay in getting these commissions up and running has been crippling for the south—without them, there has been no mechanism to adjudicate the status of the oil revenue sharing.

The timing of the establishment of the commissions illustrates the tremendous influence the United States continues to wield, and demonstrates the need for continued U.S. pressure for full and timely implementation of the CPA throughout the six-and-a-half year interim period.²⁶ It is by no means certain that Khartoum will accept what the commissions determine, without further pressure. The example of the work of another commission is revealing. The Abyei Boundaries Commission (ABC) was the first of the commissions agreed in the CPA (a special protocol was signed on Abyei, an area in Kordofan where the SPLA had a military presence) to complete its work. The ABC’s July 2005 decision recognizing substantial land rights of the Ngok Dinka in the Abyei area was rejected by the Khartoum government, although under the protocol the decision of the ABC was to have been “final and binding” on the parties.²⁷ This solution was arrived at when the entire negotiations were about to stalemate over Abyei. The protocol postponed the day of reckoning.

The Abyei issue is emotive on both sides: Abyei was “ethnically cleansed” of Ngok Dinka (southerners) preceding the 1983 outbreak of the second southern war, and many of its inhabitants dispersed to Khartoum and Bahr El Ghazal.²⁸ Many Misseriya, Arab cattle nomads of western Kordofan, now regard Abyei as a “Misseriya town,”²⁹ although they do not actually live there.Their grazing rights but not their primacy now are recognized and protected by the ABC.

Pro-Khartoum militias have built up in Abyei, and formerly displaced Ngok Dinka have not successfully returned in any numbers to reestablish their homes; armed forces from both sides are present. Even before protests arose from the Misseriya, Khartoum announced that the ABC had “exceeded its mandate.”³⁰ President El Bashir asked the SPLM to “reconsider” the decision of the ABC—in effect, to renegotiate this most difficult issue. Salva Kiir refused, insisting on keeping to the letter of what the parties had already agreed to. This NCP attempt to renegotiate findings not to its liking is not an encouraging precedent for the Border Commission or for any other commission whose determination is to be “final and binding” on the parties.

The NCP’s refusal of the energy ministry to the SPLM and its perceived withholding of and lack of transparency on the oil money from Southern Sudan are major acts of bad faith on its part. The southern government has no other readily available income: pledges from donors are not always readily forthcoming and other sources of revenue, such as taxes and customs, will need money and time to set up and administer. Moreover, donors may be hesitant to pour money into an oil-rich region without seeing some of the oil revenue assigned to building the government and social services.

Among many other pressing needs that are impacted by Southern Sudan’s financial problems are those related to human rights: Southern Sudan has to hire and train a police force almost entirely from scratch, reestablish the courts, improve the judicial administration, and create an honest and efficient bureaucracy to assure that the rule of law, including a plethora of new statutes enacted by its new assembly, is respected.