The Republic of Sudan Position on Abyei and the AUHIP Proposal
1. The Abyei Protocol, which is part and parcel of the Comprehensive Peace Agreement (CPA) 2005, which gave Southern Sudan the right to secede, is the overarching instrument that governs the Abyei referendum.
2. All points of the Abyei referendum are agreed in the Abyei Protocol, including the referendum question and how to define the area subject to the referendum, which was subsequently delimited by the award of the Permanent Court of Arbitration. However, what was not agreed in the Abyei Protocol was the criteria of residence for eligibility to vote in that referendum.
3. Nonetheless, the Abyei Protocol clearly determines that only residents of Abyei are entitled to vote in the Abyei referendum and left for the Commission of the Abyei Referendum the duty of determining the criteria of residence. In this respect, the Abyei Protocol reads: ‘The residents of Abyei shall cast a separate ballot. The proposition voted on in the separate ballot shall present the residents of Abyei with the choices’. Furthermore, the Protocol states that: ‘The residents of Abyei Area shall be (a) the Members of the Ngok Dinka community and other Sudanese residing in the area; (b) the criteria of residence shall be worked out by the Abyei Referendum Commission’. However, Sudan and SPLM/Southern Sudan disagreed as to whether or not the term ‘residents of Abyei’ includes pastoralists who reside customarily in the area for the dry season.
4. Sudan asserts that the Abyei Protocol did not provide for permanent residence as a condition for voting in the Abyei referendum. Hence, Sudan argues, the Messirya nomads who reside regularly though not permanently in the area are entitled to vote. In support of this position, Sudan cites the fact that the Abyei Protocol accords those nomads full rights of citizenship in the Abyei Area, including the right to a share in the administration of the area and its oil revenue equal to that of their Ngok Dinka counterparts.
5. Conversely, South Sudan insists that the Ngok Dinka has an exclusive right to vote in the Abyei referendum. South Sudan presents no argument in support of its position other than adducing a convoluted reading of the PCA ruling to the effect that the ruling gives the Ngok Dinka an exclusive right to vote in the Abyei Referendum. The Permanent Court of Arbitration (PCA) was in fact an arbitration tribunal tasked with the specific duty of delimiting the Abyei Area and hence could not venture to resolve the difference as to who is eligible to vote; as the parties posed no question to it about that. It is indeed established in law that it is the duty of such tribunal not only to reply to the questions stated by the parties but also to abstain from deciding points not posed by them.
6. It should be clear from the above that this difference on eligibility to vote is the only disagreement that the two parties had had and the reason why the Abyei Referendum was not conducted simultaneously with the Referendum of Southern Sudan as the Abyei Protocol provides.
7. It should also be clear that Sudan did not agree at any point of time to a referendum in Abyei Area confined only to the Ngok Dinka or to the permanent residents of the area. Such referendum will be pointless as the balance will be already tilted deliberately and undemocratically in favour of one of the two options of the referendum; namely the option to join South Sudan. In other words, a condition that limits the referendum predominantly to one community contradicts the very idea of the referendum itself, which is all about giving the two communities of the area an equal opportunity to determine its future status.
8. The AUHIP was invited to mediate on this only one point of difference that the parties faced. It is understood that the two parties commissioned the AUHIP to bridge the gap that exists between them in accordance with the well-established traditions of mediation in Africa. It was indeed contemplated that the AUHIP would try to break middle grounds as mediators always do; and as the Special Envoy of the President of the United States once tried to do when he proposed that only those who reside for 185 days and more are entitled to vote. The parties even expressed their hope that the AUHIP would chart the way forward to a win-win scenario.
9. Surprisingly, the AUHIP presented the two parties with a formula on the issue of residence that represented unqualified endorsement of the position of the SPLM/ South Sudan, and disregarded the position of Sudan in its entirety. That Proposal reads: ‘the criteria for qualifying under Paragraph 26(b) shall be permanent abode within the Abyei Area’.
10. Additionally, the AUHIP Proposal was not restricted to the only point of disagreement the parties have. The AUHIP Proposal went on to reformulate the provisions of the Abyei Protocol that govern the rights of the Messirya in the Abyei Area, including their right to share in the administration of Abyei and its oil revenues and reduces the Messirya rights only to grazing rights in the area.
11. Furthermore, the AUHIP purports to make use of the AU Roadmap and Security Council Resolution 2046 to impose its Proposal on Sudan. It is the understanding of Sudan that the AU Roadmap and Security Council Resolution 2046 are intended to make it possible for Sudan and Southern Sudan to implement what the two states already agreed to and not to impose on them a different agreement. The intention of the AU or the UN Security Council can’t be that new obligations not undertaken by the parties are to be imposed on them under the threat of Chapter VII of the UN Charter.
12. To conclude, Sudan has reservations on the AUHIP Proposal for the following reasons:
a. It purports to impose on Sudan a new obligation to conduct a referendum different from the referendum that Sudan accepted to conduct in the Abyei Protocol.
b. It excludes altogether one of the two communities of the area, the Messirya, whose lifestyle is inimical to the concept of permanent abode, from the Abyei referendum. This makes the Abyei referendum a fait accompli and prepares the ground for conflict rather than reconciliation and peace.
c. It unravels the agreed deal of coexistence of the two communities by denying the Messirya rights indisputably accorded to them and enshrined in the Abyei Protocol. The AUHIP Proposal thus widens rather than narrows the gap between the positions of the two parties.
d. It violates the conventional traditions of mediation in Africa, where mediation is all about arriving at amicable solutions and cannot lead to imposing the position of one party on the other.
e. It turns the AU Roadmap and UN Security Council Resolution 2046 into a device for imposing on Sudan an obligation to conduct a referendum different from the referendum which Sudan agreed to.