Not IBC nor IGAD: Data from the national census could determine the number of states in South Sudan
9 min readThe National Housing and Population census could be viable determining factor for number of states in South Sudan: It can neither be IBC nor IGAD’s decision.
By Adv. Bol Chol Kucdit, Juba, South Sudan
Friday, 28 June 2019 (PW) — It appeared recently that the IBC that was established under terms of R-ARCSS, 2018 reached stalemate as to the number of states in South Sudan. The preliminary report of their work indicated the IBC failed to adopt (10) states in their voting exercise by lack of one vote to meet the qualified majority stipulated under R-ARCSS. The preliminary report also suggested that the IBC referred the matter of states to IGAD for further consideration.
Though everything in this country is accepted for the sake of peace which may turn out to be war at any hour, I beg to share a different view that the R-ACRSS created a sort of condominium ad hoc body called IBC to decide some important national issues for South Sudanese. The IBC in fact has membership of (10) South Sudanese that were appointed by parties to R-ARCSS respectively with different ratios. The other (5) members were appointed by African Union High-Level Ad hoc Committee on South Sudan mainly from South Africa, Nigeria, Chad, Rwanda and Algeria. The membership of these foreign countries beats my reasoning as to why should our national affairs be decided by foreigners.
The inclusion of South Sudanese in the committee was a matter of formality but the actual control of the process was a kin to 1947 Juba conference event. It was just meant to confirm the premeditated decision in favour of colonist. The IBC which is chaired by a foreigner was given unnecessary powers to collect opinions of South Sudanese as to how many states do they want. They were also tasked to adopt any number of states through voting and their decision should be binding on parties to R-ARCSS and entire citizens of South Sudan. They were also tasked to restructure council of states in National parliament after redrawing new states’ boundaries.
The IBC for the last couples of months happened to collect public views on number of states through email which was a process devoid of our citizens’ expectations. It is a matter of common knowledge that majority of civil populations in this country do not possess nationality certificates leave alone being on online. Some do not even know the existence of internet or social media. The question is, why did IBC choose to collect citizens’ view through email? This was indeed unhealthy democratic process. I wondered whether the IBC thought that South Sudan is a social media country! Since there was no consultation done with our constituencies on the ground, whatever finding they got through on line submission should be declared null and void to that effect.
However, the issue of states in South Sudan is a historical matter that can be traced back to constitutional development in South Sudan. Some historian asserted that little was known about the constitutional arrangement that was taking place in the then Southern Sudan prior to the Turko-Egyptian occupation in the early nineteenth century. I will not bore the readership of this piece about the History of Sudan including South Sudan but the relevant of South Sudan in regards to governance structure deserves some historical snapshots.
Indeed, South Sudanese were existing before the Turko-Egyptian’s occupation. They were exisiting in form of chiefdoms and kingdoms. The period of Truko-Egyptian and Mahdiya was witnessed by unrelieved tragedy of slave trade in the South from 1821 up to 1898. History also indicated that Turko-Egyptian divided Sudan into provinces (Mudiriyyas), which they then subdivided into smaller administrative units that usually corresponded to tribal territories. The Turko-Egyptian administration organized and garrisoned the provinces of Fashoda which was later renamed as Upper Nile province, Bahr El Gazal, and Mangala province that later became Equatoria province. South Sudan during Mahdist state maintained the same provinces though it was more of slave raid and slave trade administration.
In the Anglo-Egyptian rule from 1898 up to 1956, South Sudan was ruled under the same three provinces of Bahr El Gazal, Upper Nile (Fashoda) and Equatoria (Mangala) provinces with number of districts (Markaz).
History also observed that the number of provinces in the then whole Sudan varied from six in 1898 to fourteen after First World War and South Sudan maintained the same three provinces. The provinces were later reduced to nine in which six were in the Northern Sudan and three in Southern Sudan. There are still conflicting views as to number of districts in Southern Sudan during Anglo-Egyptian rule. The like of Reik Machar claimed that there (21) districts and states should be created along that line and some would even increase the number of districts to (22) or more.
Following the independence of Sudan from British in 1956, the same three provinces of South Sudan continued with their districts. In 1980s, the former President of Sudan, Jaffer Neimeri later turned the three provinces into three regions of Bahr El Gazal, Upper Nile and Equatoria in a manner contrary to 1972 Addis-Ababa Peace Agreement and districts were turned into counties.
The Constitutional History also indicated that Sudan later adopted federal constitutional arrangement after fake national dialogue in 1990s in exclusion of South Sudan. The former president of Sudan, Omer El Bashir in his constitutional order No. 4/1994, decreed the creation of 26 states in the Sudan. One state was later abolished and Northern Sudan remained with (15) states and (10) states remained for then Southern Sudan.
It has to be observed in this context that the SPLA/SPLM Leadership did not question the creation of (10) states by Bashir in CPA. The (10) states were later adopted by Government of Southern Sudan in 2005 and continued up to 2015. The issue of creations of (28) states became a matter of debate until they constitutionalized through Amendment of TCSS, 2011 in 2015. The states later became (32) which were done under the Amended constitution in which Art.164 was amended to clarify that South Sudan shall consist of states without specific number mentioned. It was a surprise to some minds that IBC wanted to act outside the constitution to reduce the number of states to specific number when the constitution did not make it specific.
Coming back to the title above, this author argued that the issue of number of states in South Sudan can best be determined through national housing and population census. In my traditional understanding of international law, the criterion of statehood is determined by three factors in the declaratory theory of state’s recognition in international law. According to the ‘’declaratory theory’’ a State should possess the following qualifications: (a) a defined territory; (b) a permanent population and (c) and effective government.
Borrowing this understanding of statehood in the eyes of international law, the internal creation of states should be based on this line of analysis. The first requirement of statehood such as territory is very important for us to look at in the creation of state in South Sudan. Some states as we speak do not have clear borders and that almost caused communal feud went the President was touring some of the areas in South Sudan. The internal borders of states are not clear and work of IBC would have been to draw the internal borders only with help of historical pieces of evidence and international experts but not to decide how many states South Sudan should have. Their report should been to council of states in national parliament and President but not IGAD.
In the view of second requirement of permanent population for the state, it is obvious that we can’t know the population of each state unless we have population census. Well, there were many population census conducted in Sudan starting from 1956 population census, the 1973 population census, the 1983 population census, the 1993 population census and finally the 2008 5th population census of Sudan. It has to be noted that other four population census were done by Arabs in which South Sudan was not well covered due to many wars of liberation since 1955 up to 2005 read together with Arabs’ biasness against the black populations. The 2008 population census was the first of its kind in South Sudan but it did not cover the exact number of populations due to some inter-communal conflicts and rainy season factor. So, the next population census will cover the exact population of this country.
Finally in the third requirement of statehood, the effective government means the government that will have authority to control its territory and protect its citizens from all forms of threats and crimes. Therefore, to add little on this, the constitutional arrangement of South Sudan reveals that South Sudan is a quasi-federal state in form of decentralized system of government under Art. 1 (4) of TCSS, 2011 as amended read together with Art.47 of the same thereof. The effective state government in this sense is that the state government as it is intended to be staffed by local residents must have a strong government in term of human resource. The state must have economic generating activities to sustain itself. This human resource must have acquired a requisite standard of education to deliver quality services to the local populations. On the same note, this requirement of the effective government is determined by the population census where the number of educated people will be known in each locality; the means of their economic livelihood and many more to mention but a few.
In the light of the foregoing, the question whether the state deserves to be state or not will best be explained when its population is known. It is undoubtedly clear that some of states including some counties do not have the present of their populations. Many counties and states are busy killing themselves and some have migrated and occupied other people’s places. Those people will be counted to the place where they are staying and their counties or payams will be annexed to other counties or states. The level of educated people at each level of states and counties will be assessed and equally deal with by denying them states. No wonder that many people are producing more quantity certificates to fill the gaps but their level of expertise will still be ascertained and determined.
Hence, it is the conviction of this author that the reduction or increment of states in South Sudan can be done through national housing and population census but not IBC or IGAD. The reduction or increment of states after national housing and population census will be done by the same presidential decree that created them in consultation with council of states. If it should be done otherwise, it would be up to the upcoming permanent constitution in which it may be voted. It can’t even be done through referendum now when the population of each state is not known.
It would be a blind referendum! The issue of states should be dropped by those who proposed it as an element of solutions to Peace in South Sudan. The (32) states or more can’t affect implementation of R-ARCSS if the parties have a political will to implement it genuinely. The (I.Os) and foreigners behind this idea should drop that understanding that number of state can affect peace. The next government should organize the national housing and population census before elections. The government before population census should disarm the so called self-defence forces or Gelweng militant youth who are disturbing the effectiveness of some governments in the states.
Whoever says the militant youth should not be disarmed because they are carrying arms to defence themselves can meet the force of law. The government is there to protect them! This is to pave the way for the inter-communal stability to conduct next census. The civil population need some awareness that everybody will be counted where he/she stays and there is a need to get back to where you belong otherwise your places will be annexed to other states or counties.
My little opinion!
The author, Bol Chol Kucdit, is South Sudanese Advocate in Juba and can be reached via his email: bol mutaram2 <bolmutaram2@gmail.com>
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