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FEB
11/2010, SSN; A response to Isaiah
Abraham’s Venomous Vomit on Bari Land rights
A. Introduction
The thirst for land in and around Juba keeps the issue on the front
burner, and often drives contesting sides to rancorous exchanges that
widen the gap on perspectives rather than narrow it. The recent
squeaking by Isaiah Abraham represents the lowest display of ingratitude
to a community that has long lost any symptoms of aggression and
xenophobia. It is the peacefulness of the Bari that has enabled almost
all Bari-speaking areas to become trampling grounds for any ego-centric
caricature of a revolutionary with a gun.
I
must confess that the high-browed disposition of the Bari personality,
and the profound confidence in his self-worth, compounded by a disdain
for others who cannot equal him as a human peacock drives the less
confident to the end of their wits – ultimately making Bari-bashing a
curative recourse.
Nowhere does the CPA make any generous gestures to any particular
community. Nor should any of the provisions in the CPA and resulting
Interim Constitutions be now seen as favoring any particular group,
Northern or Southern. In fact, for anyone to benefit from the residue of
the historical processes that began since 1955, it is important that we
all see ourselves as partners, and both potential losers (should the
carefully-woven web of peace become unraveled) as well as beneficiaries
(assuming we can hold the water behind the dam).
B. Important
Principles of Governance
Bari-bashing on the land question has become a pre-occupation for anyone
who has left his homeland for whatever reason - the premium being put on
being here to serve in the GOSS. There is much that is utterly
misunderstood here. It is up to anyone passionately consumed by the land
issue to become reasonably enlightened on the governing principles! I
seek to provide some crutches here!
There are two important considerations that are incumbent upon anyone to
understand if they are to make calm and cool propositions about the land
issue. First, one needs to understand the governing principles in the
federal set-up that we draw from the CPA. Secondly, a universal legal
principle widely referred to as “Eminent Domain” needs to be well
understood and applied to our bedeviling circumstances.
1. The Federal Arrangement
Although John Garang de Mabior’s record on applying principles of
democracy was lackluster, he certainly cannot be denied the credit for
taking the lead in making a major thrust about the fundamental deviance
in the governance of the people of the Sudan – their MARGINALIZATION
and, hence, exclusion from their own governmental affairs. The
revolution was about restoring power to the citizen, Athenian style!
Little did he pay attention to the reality that interests among some
fighters was shifting towards a life of privilege – beginning with the
kumnia as a status food, to other temporal trappings as the physical war
progressed. The military success of the Haraka was in the end, based on
the common hatred of the Arab, rather than on the lofty principles of
democracy as conceived by our guru on Marginalization.
This is all in prelude to the fundamental reality that the CPA was a
common waterfall at which interests of the diverse combatants rested.
Self-determination for the South, Abyei, and the Nuba as well as the
Angassana was a resounding statement that people will not be dictated to
anymore, by ANYBODY! To attempt to water down these general principles
for the benefit of making an argument in favor of parochial schemes
amounts to a betrayal of this revolution laid on the foundation stone of
self-determination – prominent in the DOP!
It
followed that the government structure was designed to sustain the
notion that people should be left to their own local affairs (the South,
the other Marginalized areas, and (though we like to forget), the people
of the various states and the various communities within the states. The
instruments for carrying these notions of self-governance were to be
contained in a FEDERAL CONSTITUTION. GONU’s source of power is the
Interim National Constitution of the Sudan (not Bashir); the source of
POWER for GOSS are its own Constitutions (without contradictions against
GONU or the CPA), and in the same manner, the powers of the states and
the localities are derived from the governing constitutions.
Hence, to begin to swim in a jungle of constitutional ignorance and
expect that GOSS should be slashing state powers left and right is only
promoted by a short-fall in understanding the arrangements at hand.
Without over-stretching the federalism question to the extent where the
issues become too blurry, allow me to point out, as an example, one of
the powers of the States listed under Schedule C of the Power-Sharing
Protocol: “8. State land and State Natural Resources”! What are we to
make of that, if one bears in mind that physical Juba is not
synonymous with GOSS capital!
In
other words, Gumbo, Gudele, Nyaing, Kor Romula, were never “Juba” as we
understand it. The town has become bloated, and physically extended. It
does not amount to saying that the extension of territory under the
government, if this is at all what has taken place, does not amount to
saying that the land now also belongs to the governing authority. Those
are fundamentally divergent issues which do not provide easy navigation
for anyone challenged to resolve a problem therein. Least, a person with
land interests that shout out loud!
In
another instance, the Power-Sharing Protocol requires the “Recognition
of customary land rights and/or law” (2.6.6.2)! Was this only to apply
in relation to the Jallaba as some have incredibly put forth? Along the
same vein is the general declaration that “land belongs to the
community!” How else could it be? Could one have the Nuer without
Nuerland, Yuai people without Yuailand? Could we talk of a Gogrial East
or West isolated from the people who have dwelt upon these lands from
time immemorial? Closer to home, can we speak of Dinka Bor without
acknowledging the peoples of contemporary Bor, Twic East and Duk?
It is the height of absurdity! Why would anyone seek to
speak of Bari with much of their land sought to be declared GOSS land to
the tune of a hundred miles in diameter? Where else on earth has this
happened? Does my fellow-citizen appreciate the issue that you can have
a GOSS capital without GOSS owning all the land within the Capital?
Would it surprise you to learn that all of Washington DC does not belong
to the Federal Government of the USA; nor does the entire London real
estate belong to Her Majesty’s Government! Ok, let’s go Communist, just
like us, I suppose: Beijing does not belong to the Government of China,
inch by inch! I venture to say that Havana neither belonged to Castro
nor to his successor! What is phenomenally sugarish about Juba that you
would want the entity called GOSS to lick up all of its cotton and sandy
soils? Let me move on to the very much as yet unrecognized principle
known as “Eminent Domain!”
2. The Principles of Eminent Domain may take variations in
nomenclature from country to country, but remain the same in principle.
“Eminent domain (United
States,
Canada), compulsory purchase (United
Kingdom,
New Zealand,
Ireland), resumption/compulsory
acquisition (Australia)
or expropriation (South
Africa and
Canada's
common law systems) is the
inherent power of the
state to seize a
citizen's
private property,
expropriate property, or seize
a citizen's rights in property with due monetary compensation, but
without the owner's consent.” (Weekipidia). The most common uses of
property taken by eminent domain are for
public utilities,
highways, and
railroads.
There is opposition to Eminent domain by those who claim that it
violates Article 17 of the
Universal Declaration of Human Rights, which states, among other
property rights, that "no one shall be arbitrarily deprived of his
property." (which the Isaiah Abraham’s of Southern Sudan want to do to
the Bari just because the capital happens to be within their tribal
territory).
The US, one of the most progressive countries in the world in terms of
the manner it uses a combination of law and the courts to change things,
many laws were passed to prevent government from exercising the right of
eminent domain carelessly: due to a lack of facilities such as tents,
soldiers forcibly sought housing in whatever homes were near their
military assignments; to stop quartering of soldiers on private property
in peace-time without the landowner's consent; to legislate the housing
of troops on private property. Generally "just compensation" was sought
whenever government felt it essential to apply eminent domain to a
particular property.
May I freely quote
Dutch
jurist
Hugo Grotius in 1625, who used
the term dominium eminens (Latin
for supreme lordship) and described
the power as follows:
"... the property of subjects is under the eminent domain of the state,
so that the state or he who acts for it may use and even alienate and
destroy such property, not only in the case of extreme necessity, in
which even private persons have a right over the property of others, but
for ends of public utility, to which ends those who founded civil
society must be supposed to have intended that private ends should give
way. But it is to be added that when this is done the state is bound to
make good the loss to those who lose their property."
Instead of seeking a specific space, so many meters long and wide for a
specific purpose (hospital, road, police station, school), GOSS is given
sympathy for trying to take all of Gandu Kuru island? Desire was even
expressed to define Juba as government land with a radius of 50 miles!
There is no question that the public, served through the government,
needs public land, but the manner of acquisition has to follow
constitutional and legal procedures!
The Bari would have no resort of any kind if land was being taken
according to the above principles, with proper compensation. The only
problem is that the Bari are generally to blame, as are all other
tribes, for maintaining tribal real estate on a community basis instead
of transferring parcels of land to family and personal ownership so as
to facilitate the marketing and transfer of land to new owners in a
market of willing seller willing buyer!
C.
The Government of Southern Sudan Vs The States of Southern Sudan
Pitting the Government of Southern Sudan against any state is simply
wrong-headed. Properly understood, as conceived, the GOSS has to do the
bidding of the states, as they in turn, must follow the dictates of
their communities. That in essence, is the regime of democracy. The
approach that GOSS should somehow see itself positioned to bully states
such as Central Equatoria and dispense with any opposition, using force
without hesitation, represents a complete failure to understand the
philosophical underpinnings of this struggling revolution.
This failure, to understand the correct balance between the powers AND
limitations of the various levels of governments, is what has lead to a
wholesale violation of segments of the CPA, even by very well-meaning
people. I give you the example of Part IV in the Power Sharing Protocol
wherein it is stated: “The States’ Council of Ministers shall be
appointed by the Governor in accordance with the State Constitution,
having regard to the need for inclusiveness. The State Ministers shall
be accountable to the Governor and the State Legislature in the
performance of their functions and maybe removed by the Governor on a
motion supported by two-thirds of members of the State Legislature. ”
(4.5.3).
This provision is deliberately violated by seeking out
the President of GOSS to do the dirty work of the Governor, and in the
process, making it appear as if was within the powers of the GOSS
president to go about mutilating the powers of state governors.
Spare Central
Equatoria State if it appears to have, intentionally or accidentally,
held up to the provisions of the governing laws arranged by the CPA and
the governing constitutions. To seek to have an imperial GOSS is to
advocate the annihilation of the reasons for which so many sacrificed –
restoration of power to the people.
D.
What Constitutes a “Capital City”
I
am embarrassed that I must sound as if I was in a class for beginners
Geography! But if this is not understood – then let it be understood
now. We have in the modern world various references to cities:
Industrial City, Commercial Capital, Port City, Capital City, University
Town, even Crime Capital! This is never to imply that the entire
territory so demarcated has nothing else in it but what is suggested in
the name. It simply means the principal function (by no means the only
one) is what is suggested in the name. This is of import to our
understanding of “capital city” – meaning the seat of government. It
generally means that the main offices of the dominant institutions of
government (the Legislature, the Executive, and the Judiciary) are
located here! These usually form land marks of very highly diversified
urban settings with everyone owning their piece.
Government gets its property by its use of the powers of eminent domain.
Businesses and other individuals obtain theirs through the open market –
provided principles of a free market with willing seller and will buyer
are promoted. The perversity of the capital of GOSS is that it has many
riding on its back to get free land on the grounds that “capital city”
means a free-for-all real estate situation. Some even have the
gall to state that they earned the piece of land they are taking by
force with their blood! What an abomination to true revolution!
E.
Ignorance and Blaming the Bari Victim
A researcher on Ghetto schools
in the United States found out in the 1970’s that white teachers went to
ghetto schools with an attitude, hence, pre-judgment about ghetto-kids
as being ill-disciplined! In their teaching contacts with pupils they
persevered with these pre-judgmental attitudes. The result was that even
good teachers were unable to perform in the ghetto schools due to this
attitude when, in fact, they had become bad teachers. The results of
that research were published in a book called: “Blaming the Victim”.
I am not angry or bitter against
Isaiah Abraham and others like him because I understand that they have
resorted to blaming the victim. Make no mistake about it, even the
victim, like the participant in the living theatre does not realize he
is a part of the drama. The heading of the offensive article begged the
Bari not to treat other southerners like second class citizens. An
abysmal failure to realize that the poor Bari man who depends on nothing
else but the land the family tilled to give Juba mulukhia and it is the
only thing of value he has. Where does he get the power to treat
others like second-class citizens when he himself is struggling on the
periphery of post-CPA Animal Farm?
“Before the Comprehensive Peace
Agreement (CPA) the land was for the government and after the CPA it is
made to be under the community. I don’t know what was in the mind of the
authors of that law when they came up with that clumsy clause.” But that
is all false, the land was undoubtedly community land even before the
CPA, it was only that the government was more ruthless in applying its
rights of eminent domain. Simply because the phrase was put in the CPA
as a guarantee against usurpation does not amount to holding that the
principle of ownership had not been recognized.
“Now we have a land that is made
to be the place for everyone (capital city) yet its land distribution is
exclusively left to local owners to dish it as they will” – again this
is a straw bag set up for proper destruction. Capital city does not mean
land for everyone! Urban planning does not imply that the government
must own the land as it carries out urban plans!
If the “Minister of Land (GOSS)
moved a directive against self-serving officials at CES land offices to
surrender responsibilities and books on land to GOSS Land Ministry or
its Commission” that was a constitutionally null and void order. There
is simply no constitutional basis for a GOSS Minister to give orders to
any part of state government!
And because the Bari (especially
those around Juba) are desperately clinging to the only material
property they have left, it does not even come close to painting them
as a people who “think they can operate outside the premises of legal
framework of our National Government Statutes (GoSS).”
Have you
heard that any Bari went to a jail to free his jailed relative by force?
Have you heard of any Bari going to kill a suspect in jail in revenge
killing for the accidental death of a relative? I most regrettably have
to inform Isaiah Abraham and others who might think like him that you
would have to search outside Central Equatoria to find people who are
good at undermining authority! And you know that beyond the shadow of a
doubt!
In brief, highly-opinionated
statements such as “Bari people are undermining supreme government and
are mistreating other nationalities in the capital city” is not just an
utter falsification of the facts, but also a shameless blaming of the
victim. The comparison of Pius Subek, Clement Wani Konga, and Alfred
Lado Gore is simply to inform all who are literate to read for
themselves who of those mentioned is ready to sell the Bari down the
river!
Simply excuse me if I have gone
to great lengths here. The time spent was worth it as I share the
feeling of many that such reckless postings must be roundly dismissed.
Since the Bari seem to obstruct any stranger from settling in Juba,
where are the “Juba residents…[who] should sue their government for
allowing Bari people to manipulate aspects of the constitution about
land on the expense of their fellow Southerners?”
“Unless the government sits down
and put enough pressure on Bari, they will always be cocky ready to be
themselves and them alone.” That is the only compliment I find to the
Bari. Why should they want to be someone else? The Bari do not have an
innate drive to go and settle in Rumbek, Bor, or Malakal, so let those
who are worried about those citizens asserting their land rights got to
worry about it.
If anybody was embarrassed about
the Gandu Kuru saga, it was the proponents who did it to themselves.
After all Isaiah, there is no way you would surrender your ancestral
property just because someone desires it! I think the government ought
to be congratulated for being more sensible than I ever thought – until
I read what the Isaiahs in Juba would have loved to do as they marched
in from Yei Road.
Local autonomy as per CPA and
Interim Constitutions is an abiding principle and corner-stone in the
war against marginalization. On this basis the Bari have the right to
fight being marginalized vis-à-vis their land. The levels of government
must respect each other and must assume each cannot abrogate the powers
of the other. All powers come from the constitution – they are not given
by any person nor by any other level of government.
I rest my case on behalf of any
community in Southern Sudan that is under siege by those who would see
us return to the old days where the only division was the “natives vs.
the authority!” That was raw marginalization!
Dr.
Afred Sebit Lokuji, JUBA: Email
waniloro@yahoo.com
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