Note: The following paper was developed by an expatriate diplomat who is very familiar with the situation in southern Sudan. The purpose of the document is to stimulate discussion on the development of governance in southern Sudan. The writer, known by Sudan Infonet as someone very knowledgable and close to the current situation, wishes to remain anonymous to encourage open discussion, revision and broad ownership in a process to strengthen democracy and civil society development in southern Sudan. Circulation of this paper and revisions and interaction among Sudanese is strongly encouraged.
Regards.
Sudan Infonet Administrator
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711.
G O V E R N A N C E I N S O U T H E R N S U D A N
1. General consideration
Governance in Southern Sudan has to provide stability for the region, and justice for its people. That demand is valid whether the solution to the conflict will lead the South towards self-government within a united Sudan or towards full independence. And this paper is meant to encourage the planning and building of such a peace-order within Southern Sudan.
2. What vision for Southern Sudan?
Southern Sudan can be defined as an alliance of free counties, or as an union of equal counties in Southern Sudan. The goal of this union: to provide freedom and prosperity to each county, and to the people of each county.
3. Why to choose the counties (or districts) as the main political building blocks?
Ethnic groups are the most relevant social organisations in Southern Sudan. If this fact is not addressed properly, ethnicity creeps back into the system in the form of tribalism. And the recent past has shown what enormous damage ethnic conflicts can bring to Southern Sudan.
The importance of the tribal structure of the society has to be recognised, but to define Southern Sudan as mainly a tribal federation might create more problems than it would solve. The introduction of territory as main parameter accommodates two different needs: it provides a defined space for ethnic identities, and a defined space for urbanised and mixed populations.
The preference of territory over ethnic affiliation is of great political relevance: by breaking down the bigger tribes into smaller political units, it would reduce the fears of the smaller groups and facilitate cross-tribal coalitions.
Counties do already exist in the political mind of the Southerners: under the Addis Ababa Agreement, the county (or district) borders were known, and generally accepted. In addition, the three major regions of Bahr al-Ghazal, Equatoria and Upper Nile seem too big and diverse to be able to function as effective political entities (i.e. link between Kapoeta and Yambio). Finally, the ten newly drawn-up states are considered by many to be alien structures.
To avoid from the outset any arbitrary redivision of the South - and such a division might provoke another civil war in Southern Sudan - the number of counties and their borders would have to remain frozen as they were under the Addis Ababa Agreement. Since their modification would transform the power balance within the South, changes of county numbers and county borders would have to be ratified by a qualified majority of all southern counties.
To what extent would such governance structures in Southern Sudan contribute to defuse the conflict? They might reduce the fear of the North that a pacified and united South could threaten its territory; they might also reduce the fears of the international community that an "Afghanistan syndrome" would befall Southern Sudan; finally, Southern Sudan understood as being a union of equal counties would also ease an orderly reintegration of "alienated" clan- and tribe-based militias.
4. How can 25 weak counties become viable political units?
Political voice: if all counties are given equal weight, each county one vote, and if the forum of the county representatives "Southern Council", (a better name is to be found) becomes the supreme authority in Southern Sudan, the political control of the county becomes relevant.
Ownership of the land: if it is agreed that all unclaimed land in the South belongs to the counties, and that the central authority owns neither land nor rivers if it has not purchased them, the political relevance of the counties will be enhanced.
Distribution of oil and tax income: if it is agreed that no less than three quarters of all future oil income and custom duties will be equally distributed among the counties, and paid directly to them; and if it is agreed that no less than three quarters of all locally raised taxes remain within each county, their viability would be further improved.
5. What balance between civilian administration and armed forces?
It might be wise to make the institutions in Southern Sudan reflect the crucial role of the armed forces: to recognise their importance and to contain them within the military domain.
How best to establish a sustainable balance between civilian and military power?
One could agree that the head of the civil authority on one hand, and the commander-in-chief of the armed forces on the other hand, must be two different people; and that both would be elected by an assembly.
In addition, the presence of military units within heavily populated areas could be restricted or made subject to a specific authorisation procedure, since law and order would be implemented by a police under the control of, and paid by, each county’s civil authority.
Finally, the armed forces would have to adjust to the fact that
- the county leadership would be involved in the nomination of territorial commanders;
- counties would provide the army with an agreed number of conscripts;
- conflicts between the civil authority and the armed forces would be settled by the judiciary.
6. A truly independent judiciary?
The judiciary would have two main tasks: to protect the balance of power between the political and military authorities; and to provide equal justice for all.
How can the judiciary be independent if she has no independent power to rely upon? Options:
- the judges of the supreme court in Southern Sudan are elected by the "Southern Council"
that elects the head of the civil authority and the commander-in-chief of the armed forces;
- a common platform of traditional leaders and the churches in the South provide the judiciary
with an independent power base, and they are jointly in charge of setting up and administer-
ing the judiciary in Southern Sudan. (The Wunlit peace process can be seen as a first step.)
Whatever solution is adopted, judges in Southern Sudan on all levels would be elected in a transparent manner, and neither the civil authority nor the armed forces would be involved in the selection procedure.
7. A presidential system?
Should Southern Sudan try to avoid a presidential system? The diversity of the South would suggest that a presidential system might end up to be more divisive than uniting.
Different options for an non-presidential system to be considered:
- the ceremonial presidency in the South alternates annually between the head of the civil
authority and the commander-in-chief of the armed forces in Southern Sudan; or
- the speaker of the "Southern Council" (neither the head of the civil authority nor the com-
mander-in-chief of the armed forces) automatically assumes the ceremonial presidency; or
- the presidency is moving every year from one county to another; county authorities would
propose names, but the ceremonial president would be elected every year by the "Southern
Council".
8. What way forward?
How should the debate on such questions be pursued? In what forum could an agreement on some issues be reached? When should this be made a topic of North-South negotiations? Who should decide if and when elements of such a governance structure would be implemented?
9. S u m m a r y : G o v e r n a n c e i n S o u t h e r n S u d a n
91. Federalism within Southern Sudan: the counties as the main political building block
- the counties are sovereign, they form the main political units of Southern Sudan;
- the counties have their own assembly, and each assembly elects its county civil authority;
- each county assembly selects its representative to the "Southern Council";
- this "Southern Council" is the supreme authority in the South: each county has one vote;
- the number and the borders of the counties remain as they were under the Addis Ababa
Agreement - later changes will require a qualified majority of the "Southern Council".
92. Separation of powers within Southern Sudan
a) p o l i t i c a l p o w e r
i) legislative authority/parliament: "Southern Council"
this assembly would be composed of one representative of each county;
it would act as the supreme authority in Southern Sudan;
it would adopt laws, fix taxes, adopt budgets and elect the highest officials in Southern Sudan;
ii) the executive authority/ the civil administration
the head of the civil authority would be called "Prime Minister", "Supreme Chief" or "Rais";
he would be elected by the "Southern Council";
he would run the central civil administration of Southern Sudan.
b) m i l i t a r y p o w e r
The army, under its commander-in-chief, is the second power in Southern Sudan.
The commander-in-chief would be elected by the "Southern Council".
Its overall budget would be approved by the "Southern Council", but within this framework, the armed forces would act quite independently, including their military justice.
c) j u d i c i a r y p o w e r
The highest judicial authority of Southern Sudan is formed by an assembly of the following composition: each county selects one member (experienced judge, a man of law, a paramount chief, a king, a spiritual leader, a wise man or woman, a priest or bishop).
The name for such an assembly ("Supreme Judiciary Council" or "Majlis al-Mulanat"?) remains to be found, its main tasks would be:
- to set up a supreme court and courts on county level in Southern Sudan;
- to establish its own procedures for the election and dismissal of judges in Southern Sudan;
- to set up mechanisms of arbitration of conflicts between clans and tribes.
93. Separation of powers at county level
a) p o l i t i c a l
In each county, a county assembly will be elected, and this county assembly should
- elect the head of the county civil authority;
- adopt laws at county level;
- fix taxes and adopt the budget at county level;
- nominate the county representative to the "Southern Council".
The county civil authority will be in charge of the police, the prisons, the education (schools) and health care within the county.
b) m i l i t a r y
Counties must be consulted for the nomination of the county or territorial military commanders. A procedure would have to be established for appeals against unacceptable nominations.
c) j u d i c i a r y
At county level, a judiciary council would be set up of people chosen among chiefs, church leaders, wise men and women. Their main task would be:
- to establish and develop the judiciary system on county level and below;
- to settle conflicts among communities and conflicts between civil and military authorities;
- to nominate the county representative to the highest judiciary authority in Southern Sudan
("Supreme Judiciary Council").
94. Transitional provisions
Due to the war situation, new institutions can only be put in place gradually, and, in the light of local circumstances, with varying degrees in different counties.
However, even a gradual, but credible implementation of such a governance vision might demonstrate Southern Sudan's willingness and capacity to govern itself.
Annex to doc. 711
O l d D i s t r i c t s o f S o u t h e r n S u d a n
(situation up to 1975, in alphabetical order)
Districts District Headquarter
These are the 24 districts within the area covered by the Addis Ababa Agreement;
in addition, and subject to negotiations:
25. Abyei District (Abyei)