BY: DR. SINDANI SEBIT, Kenya, MAR/01/2013, SSN;
It appears Equatoria is being forced to call for the right to self-determination in South Sudan. I have this strong feeling because it appears the Government in Juba seems not to listen to what the people in Equatoria are complaining about. There are many writings abound from different intellectuals and intelligentsia from Equatoria for pointing out the failures of the government in Juba to realize that it is behaving like the Arab regime in then Sudan.
However, the Government has either kept mumb or is encouraging their supporters to unfortunately describe these complaints to be hatred against Dinkas or mere call for federalism which is not accepted by the ruling party in Juba.
The question here is whether Equatorians have the legal basis for calling for self-determination in South Sudan, a country that has just exercised its right to self-determination that resulted in its independence.
First, before I can urge on the right of Equatorians to self determination, it would be prudent to briefly outline what are the major pitfalls in the country that could drive Equatorians to take such a major decision. Apparently, the Equatorians have been forced to consider themselves as minorities in South Sudan and rightly so because the Government in Juba is indeed exercising the deformed concept of majority-have-the-right-to-rule, and thus the Dinka and Nuer being the major tribes in South Sudan have the right to rule regardless.
Secondly, the two tribes have arrogated themselves the title of liberators so as to usurp power in South Sudan for domination of other tribes, exploitation of their resources and acquisition of land in Equatoria by force. If one looks at the Government in Juba critically it is not lost to the observer to discover that nearly 70% of the government is in the hands of these two tribes. The rest are either decoys or friends put there to disguise the plan.
They are not only the majority in the government but they also hold the critical arms of government in order to subjugate the people using the force of arms. The employment in the government is not really based on merit but on tribal basis regardless of educational standards of the individuals involved.
The army and police are a monopoly of the two tribes and these institutions have become the arms of oppression and subjugation. This is evident in land grabbing, destruction of crops in Equatoria by cows driven from Dinka lands and the forceful resettlement of Dinkas in Equatoria. The policy of settlement of Dinkas in Equatoria is ethnic dilution of the population of Equatoria so as to enable Dinkas become the majority. This is the same policy the Arabs are using in Darfur and would like to use in Abyei.
The discrimination in scholarship and payment of students by the Government in countries such as Uganda and Kenya are calculated moves to deny minorities the chance to education while on the other hand ensuring that the majority acquires the necessary skills so as to propagate the discriminatory policies of the majority.
The condemnation of the recent Equatoria conference in Juba by lawyers and politicians drawn from these tribes as a propaganda aimed at dividing South Sudan is yet another proof that the government of South Sudan and its tribal supporters do not believe in the freedom of expression.
In fact this conference was actually aimed at pointing out the ills in South Sudan society with a view to finding amicable solutions to them. This uncalled for outright condemnation further illustrates the Government’s repugnant attitudes and its belligerent contempt towards open discussions about the problems facing the people of South Sudan.
This is just because the government is comfortable enough to maintain the status quo for the benefit of perceived majority in South Sudan. The looting of South Sudan resources for the sake of the majority is certainly another policy aimed at consolidating the power of the majority to oppress the minority in the country.
Having said this, let me turn to the concept of the self determination. The principle of right to self-determination is a fundamental principle of human rights law. It is indeed an individual and collective right for the people to freely determine their political status and freely pursue their economic, social and cultural development.
There are two important concepts about the right to self determination. These concepts are the perfect de-colonization in which the colonial power leaves and restores full sovereignty to the people in the territory as may be the case that has happened in South Sudan and the imperfect de-colonization which occurs when there is an absence of restoration of full governance to a people having the right to self-determination.
Although there are several types of imperfect de-colonization, I will take the fourth scenario which I quote here. “There may be a situation where a small component part of a colonially-created “unitary” state agreed to continue the unitary State but with no particular “opt-out” agreements signed. Rather, there were either verbal or negotiated, written agreements about how the rights of the smaller (or in some situations, weaker) group would be protected in the combined State. However, the smaller or weaker group then experiences severe curtailments of their rights over a long period of time by the dominant group and may lose the ability to protect its rights by peaceful means.”
Does this scenario pertain in South Sudan? Other than the absence of opt-out agreements, verbal or not, and the length of existence of an independent South Sudan, signs are already there that Equatorians feel dominated and in the long run may lose the ability to protect its rights.
However, does this constitute any legal right for the people in Equatoria to self determination? Certainly it is feasible and much probable because the “obligation to respect the principle of self-determination is a prominent feature of the UN Charter of 1945, appearing, inter alia, in both Preamble to the Charter and in Article 1.”
Secondly, “the International Court of Justice refers to the right to self-determination as a right held by people rather than a right held by governments alone.”
Thirdly, “The two important United Nations studies on the right to self-determination set out factors of a people that give rise to possession of right to self-determination: a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self-governance.”
In this sense, Equatorians have identifiable territory called Equatoria, have distinct culture from the dominant groups in South Sudan and a will and capability to self governance.
Fourthly, “the right to self-determination is indisputably a norm of jus cogens. Jus cogens norms are the highest rules of international law and they must be strictly obeyed at all times.”
And lastly, “Both the International Court of Justice and the Inter-American Commission on Human Rights of the Organization of American States have ruled on cases in a way that supports the view that the principle of self-determination also has the legal status of erga omnes.” This means “when a principle achieves the status of erga omnes the rest of the international community is under a mandatory duty to respect it in all circumstances in their relations with each other.”
This part certainly gives the Eqautorians the legitimate right to be supported by the international community if they deem so to seek the right to self determination within or as separate state. Right to self determination could be for the type of governance within a state such as federalism, confederation or self rule.
Currently there are loud voices coming out from Equatoria calling for federal system of governance in South Sudan but this seems to be falling on deaf ears of the rulers in Juba. Sadly the same rulers are oblivious to the fact that this is a right of the people that cannot be suppressed by force or otherwise.
However, how could Equatoria raise the issue of its right to self determination? Equatoria is considered as a minority in South Sudan but they are indigenous people of a territory called Equatoria. They were brought into a Country called Sudan by colonialists that included the Belgians, English and French. Being indigenous, they have right to self determination under international law.
The Special Rapporteur of the UN Sub-Commission, José Martinez Cobo, on Study of the Problem of Discrimination against Indigenous Populations defined Indigenous communities as, “peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.”
Interestingly enough, Equatoria has several tribes but has since before independence of Sudan in 1956, regarded itself as one region with a common belief, shared diverse traditions and cultures that they continue to preserve for the prosperity of their future generation. The people have sedentary customs and practices distinct from the rest of the people in South Sudan. It is these traditions, cultures, common beliefs and customs that are being threatened by ethnic dilution and systematic policy of land grabbing.
The land and resource of Equatoria are being systematically and unjustly taken away, mainly by governments, multinational companies, and business groups. Equatorians have limits to the democratic space, and political participation. Most political systems are dominated if not controlled by the majority.
National party, the SPLM, does not represent the interests of indigenous peoples but are only interested in getting their votes. The Party is practicing policies based on personalities and social and political influence.
The Equatoria lands are invaded by their so called masters or settled on by force in order to create ethnic dilution. This kind of situation is not only worrying but is actually a precipitant to call for self determination.
In fact ethnic dilution contravenes Article 49 of the Fourth Geneva Convention while settling people in indigenous people land also goes against the International Court of Justice ruling on Western Sahara in 1975, which it ruled that “if there is land that in fact no one has ever claimed, it is opened for grabs. Such land is called “terra nullius” – empty land. But if any land has had a population on it, that land belonged to that population and is not open for grabs”.
The recent proposal to amend Chapter 11, Article 170, and Sub-section 5 of the South Sudan transitional constitution aims to rob the communities in Equatoria of their ancestral communal land to enable the Government freely settle their own people or displace the Equatorian communities legally.
In conclusion, I would like to draw the attention of the government in Juba to this intricate situation in South Sudan. Marginalization, discrimination, deprivation and intrusion into peoples’ lands and destruction of resources and denial of the people the right to freedom of expression and political participation are elements that can lead the Equatorians to peaceful call for self determination and the world will be left with no option but to accept.
Secondly, the government can only avoid this by listening to the people, accept some, if not, all their views, act on some of the excesses committed by them or their protégés in order to create equality, equity and freedoms for all. The government must realize and become vigilant that some of their actions are detrimental to the peaceful co-existence of the country.
The warning signs are there and we are all alerting them to this ominous signs so that changes can be initiated now and not in future.
On the other hand if such a scenario of call to self determination arises let the government not blame anybody other than itself because of its failure to prevent it or to accept advice from those who have volunteered to do so.