GOS Response to the Nakuru Draft Framework

Comments and Remarks of GOS Delegation on Draft Framework for Resolution of Outstanding Issues Arising Out of The Elaborations of The Machakos Protocol AND OTHER IMPORTANT ISSUES

Friday, 11 July, 2003

1 General Remarks
1.1 The title of the document points to issues which have cropped up out of the elaboration on the Machakos Protocol, and therefore the Protocol is the main reference here, so it should be expected that the framework does not contradict, violate or ignore the major tenets of the Protocol, or anything that has properly been based on it, or follows logically from its spirit. The document clearly does not meet these expectations.
1.2 The outstanding issues are well known, and therefore leaving some of them out, and addressing some of them casually are serious failures, especially if the one left out is of concern to one side, and the one treated casually is again of concern to the same side.
1.3 This draft follows the adoption by the IGAD Envoys of what has come to be known as the totality approach, which is based primarily on the idea of tradeoffs, that would make signing a peace Agreement possible. Addressing only one side's concerns goes against that very idea. And this is what the document does.
1.4 A major theme of the Machakos Protocol is the maintenance of unity during the interim period, but the draft goes a long distance in the direction of creating two separate entities with almost no structural ties.
1.5 The draft pre-empted the opportunity to start serious preliminary negotiations on the all important issues of security and military arrangements, by offering a "resolution" there, where in fact this issue was only touched upon in one unproductive round. This cause a serious imbalance because of the interconnectedness of all the issues, and in fact put the totality approach at sever risk.
1.6 In at least one very important phrase the draft recklessly abandons the language of the Machakos Protocol. It is difficult to accept that this is an oversight, because the nomenclature has been one of the hotly debated outstanding issues. (see 10.2)
1.7 1.7 Some parts of the draft give impression of being hastily drawn up, to the extent that they barely intelligible.(see 1.5 and 2.1)

2 Major departures away from Machakos Protocol
The rejuvenated IGAD peace process has achieved a series of steps the most significant of which is the signing of the Machakos Protocol, which was hailed by a great many as a breakthrough and has given our own people hope that peace finally is a realistic possibility. That is why adhering to this important document should be a mainstay for all the efforts towards a peaceful settlement. If either side to the negotiations or the IGAD secretariat, or the observers, show signs of disrespect to the protocol, then the whole process would collapse.
2.1.1 Machakos Protocol states in its first agreed principles: That the unity of Sudan, based on the free will of the people, democratic governance, accountability, equity, respect and justice of all citizens of the Sudan is and shall be the priority of the parties, and that it is possible to redress the grievances of the People of the South and to meet their aspirations within such a framework.
2.1.2 The document under consideration pays no attention to this assertion and proposes a structure of government that does not serve the cause of unity as indicated by the following: It calls for a completely separate army for Southern Sudan. Gives the president and the National Government a limited role in the South, even where the role is called for by the document itself, like the appointment of the deputy chairman of the Regional Government of the South (2.1) It proposes that unless the Chairman of the Regional Government wishes, the Governors of the states in the North shall be the choice of the President and the Governors of the States in the South shall be the choice of the Head of the Regional Government. It leaves the issue of linkages between the levels of Government, an important outstanding issues, up in the air. Fails to emphasize, or even mention, the decentralization of the South. Suggests the creation of a ministry for Defense in the Regional Government of the South. While it appropriately calls for national presidential elections, it leaves the post of the vice president to be filled as a result of regional elections in which only the voters of the southern Sudan participate.
2.2 State & Religion
2.2.1 The Machakos Protocol declares with great confidence and relief: Further record that within the above context, the parties have reached a specific agreement on the Right to Self-Determination for the people of South Sudan, state and State and Religion etc… And also it states under National Government: Nationally enacted legislation having effect only in respect of the states outside Southern Sudan, shall have as it sources of legislation Sharia and the consensus of the people. See also the mechanism proposed by the Machakos Protocol for revision of currently enacted legislation in 3.2.4 (i)&(ii).
2.2.2 Yet, despite these clear provisions, the drafter of this document, under 3.0 Seat of National Government and National Legislature went on to prescribe a number of provisions 3.1, 3.2, 3.3, 3.4, 3.5, &3.6 that neither refer to the above stated specific agreement in the Machakos Protocol, or at least acknowledge its existence and binding nature, some of the enumerated provisions indeed violate the specific agreement or try to revise it in a manner that would be described as sneaky, and in light of discussions with the people we believe to be responsible for the framework and our well known position on the matter, and assurances by the resource person in the presence the Special Envoy, that the agreed (and signed) provisions shall not be tampered with, we feel that the credibility of the whole process is now seriously challenged. Any draft that in effect brings the binding nature of the Machakos Protocol in question is not going to enjoy support on our part, and shall not, we firmly believe, be initiated by the secretariat, or be encouraged, or endorsed by the friends of the peace process, otherwise the very foundation of this peace process will crumble, particularly as we know that the other great achievement of the Machakos Protocol: Right to Self-Determination can be rendered as ridiculously meaningless, as State and Religion has been thanks to this unbalanced draft, that can be achieved through tactics similar to the one used in achieving this present dubious feat, and everybody, who knows anything at all about the situation in Sudan know that the internal and external detractors who helped set the stage for this brazen retreat from a signed commitment, are as negative about self-determination, as they have shown to be about state and religion.

3 Percentages and the idea of the inclusiveness
3.1 The attempted resolution by the framework of the issue of the power sharing fails completely to recognize that the principle of power sharing shall apply to both to the National government and the RGOSS and the states in Southern Sudan it pays attention only to demands of the SPLM as regards its (and not the Souths) share in the National Government, to the complete elimination of any accommodation of the National Congress Party in the Government the Southern region.
3.2 The post of the Deputy Chairman of the RGOSS should go to the other signatory to the agreement, using the same logic the framework takes for granted at the national level. The same goes for the posts of Governors in the Southern region. The framework is silent about any percentages here as well in the executive branch and state legislatures in the South. This is a betrayal of the idea of inclusiveness the framework talks so often about, and continues the trend of failing the cause of unity as stated above, and on top of that it follows the SPLMS unwillingness to recognize that many Southerners are members of the National Congress Party and other parties.
3.3 The so-called adjustment of the number of states in the South is given to the Regional Assembly of South Sudan as a legislative function without any attempt at justification, and furthermore the percentage representing the South in the council of states, is fixed at a certain percentage in violation of the principle of equal representation of all states in the Federation (4.5)
3.4 The framework employs an appeasement approach, that ignore the totality approach when it comes to qualitative representation in the National cabinet, as it says nothing about the incompatibility of the constituionlization of a defence ministry for the South with the opening up of all cabinet posts at the national level for the SPLM (4.7.1)
3.5 The framework is hopelessly oblivious of the danger that the obstinate lack of recognition of the non SPLM Southerners could pose to the sustainability of the peace.

4.1 Elections have been one of the outstanding issues, the framework neglect to mention them. This could be a benign omission were it not for the fact that the framework pushes the timing of the census (4.3.3) to the end of the first half of the interim period, which automatically pushes the election the second half of the inter period. This decision of the drafter favors one sides early position, without any justification.
4.2 The method by which the constitution of the Southern Region is to be drafted and adopted is one important issue, on which there is no agreement; the framework that claims to be final cannot turn a blind eye to such an issue.
4.3 Tying the president hands is unacceptable, but doing it and at the same time deferring the mechanism for prompt action for later agreement makes it more unacceptable and strange.
4.4 The body of the framework in all these segments would be originally based on the allocation of powers, and it is well known that this area has been bracketed at the last minute because of the reluctance of the other side to agree on it. We feel that without agreement on the allocation of powers the generality of the previsions in this framework could become a dangerous tool to render the text an amorphous confusion of possible interpretation.
4.5 The option of having a presidency comprised of a president and one or more vice president(s), is removed from the framework.

5.1 The agreed principles embodied in Machakos Protocol, particularly in items 1.1, 1.10 and 1.12, which emphasize the need for a concerted effort to make unity attractive during the interim period, calls for finding a framework by which all common objectives can best be realized and expressed for the benefit of all Sudanese people.
5.2 Based on these guiding principles which have further been reinforced in draft (8) of the wealth-sharing protocol an equitable mechanism is to be developed to satisfy the need for all parts of the Sudan for development, with special consideration for the South and the war-affected areas. That obviously entails devising an allocation formula that fulfils the needs of the national Government to carry out its constitutional and legal responsibilities and allows for the balanced development of the rest of the country that needs to be brought up to the average acceptable standard.
5.3 It was therefore agreed by the end of the last round to convene a technical group meeting supported by the World Bank and IMF consultants to agree with the parties to working out the allocation based on an agreed upon framework, Instead of doing that, we have been presented with a set of figures which is far removed from what had already projected, and which in our opinion defeats the principles referred to earlier.
5.4 The issue of land and rights was extensively thrashed out in the last round with the valuable assistance of the Australian expert and it was decided that a land commission to shall be set up to address land claims, with consideration to the need for progressive legal review that keeps abreast of modernization requirements, and a means for compensating lawful claimants. Yet the land issue appeared again in such a way that complicates the problem and takes it out of the context in which it was dealt with in draft (8).
5.5 The approach to subterranean natural resources as envisaged by the consultants in the last round was a very positive one. It stressed the need for focusing on the revenues emanating from subterranean resources rather than who owns them. On that basis, the suggested framework for allocation was developed. We now see in the proposed document a departure from this if read with what is suggested in the land ownership part.
5.6 To have a unified fiscal and monetary policy, it was technically agreed that there should be one Central Bank with a branch in the South with a very clear mandate and boundary. Reference to the bank in the document as the Bank of Southern Sudan clouds the issue and makes it look like an independent entity.
5.7 In the membership of the Petroleum Commission it was agreed that the Regional Government in the South will have one representative as the producing states will have their representatives as well. What appears in the document is unlimited membership.
5.8 The document states (Persons enjoying rights in land shall be consulted and their consent shall be sought in respect of decisions to develop subterranean natural resources) item 13.1.3.The underlined phrase is an addition which has never been entertained before in the discussions and it was not part of the statement which was agreed to in draft (8)
5.9 It is clear in the document that a very stringent measures are embodied in transparency and accountability requirements of the National Government (item 27.4) as compared to the lenient measures on the Regional Government (item 27.3)
5.10 The part on Foreign Funding needs to be refined and rephrased. The conclusion of foreign funding agreement is a national Government competence as per the devolution of powers agreed to.
5.11 The segment seems to depart frequently from draft (8) that was concluded and initialled by the two parties, which created some confusion in the knitting of the different parts. It is necessary to build on what has already concluded for the sake of the process.
5.12 For the wealth-sharing segment to be successfully concluded it is imperative that a meeting of the representatives from the two parties supported by the World Bank and IMF consultants be convened as soon as possible to finalize the framework agreed upon and what has already been accomplished.

6 Security Arrangements: points for discussion
The two delegations have not got the same opportunity to engage in preliminary discussions as they have got in the other two areas. The following are points that we believe represent a middle ground subject to further negations.
6.1 In the context of a united Sudan, there shall be a single united National Armed Force (NAF).
6.2 The primary mission of the National Armed Force shall be to defend and protect the Sudan, its border, its people, its airspace and territorial waters from external aggression. There shall be no internal law or order mandate for the National Armed Force (NAF) except in unusual and constitutionally specified circumstances.
6.3 All armed forces shall be integrated in the National Armed Force (NAF) before the end of the interim period according to agreed arrangements.
6.4 The parties agree to a comprehensive cease-fire based on internationally accepted principles
6.5 Every party shall be responsible for the command and control of their allied forces.
6.6 For the purpose of this agreement there shall be established a Joint Command and Control Committee (JCCC) to command and control all forces in Southern Sudan as of its border of 1956.
6.7 The joint Command and Control Committee (JCCC) shall supervise implementation of the security and military arrangements specified in the agreement.
6.8 Internal security shall be the responsibility of Federal and state police and security organs, which shall all be national, united and representative.
6.9 A Joint Monitoring Board (JMB) shall be established to monitor the implementation of all agreed security and military arrangements. International assistance may be sought in this respect.