On Abyei Final Status: Abyei Protocol in the CPA, ABC, Permanent Court of Arbitration and the 2013 Referendum on Self-Determination

By Akol Abiong, Juba, South Sudan

Monday, October 17, 2022 (PW) — The Abyei is an area of 10,546 km2 or 4,072 sq mi on the border between South Sudan and Sudan that has been accorded “special administrative status” by the 2004 Protocol on the Resolution of the Abyei Conflict in the Comprehensive Peace Agreement that ended the Second Sudanese Civil War.

There were claims that the Dajo people were located in the region of Abyei prior to the seventeenth century, before being displaced by new migrants. From at least the eighteenth century, Abyei was inhabited by the Ngok Dinka, a sub-group of the Dinka of Southern Sudan. The Misseria, a nomadic Arab people, who spend most of the year around their base at Muglad in northern Southern Kordofan, would graze their cattle south to the Bahr River basin in Abyei during the dry season.  Abyei’s permanent residents were thus the southern Dinka, but for half the year, the Dinka were outnumbered by the Muslim, northern Misseria. At the establishment of the Angelo-Egyptian Condominium rule in 1882, the Messiria were predominantly located in the province of Kordofan, considered to be the northern part, while the Ngok Dinka were located in Bahr el Ghazal, considered the southern. In 1905, after continued raids by the Messiria into Ngok Dinka territory and other challenges, the British redistricted the nine Ngok Dinka chiefdoms into Kordofan. The reasons were threefold: to protect the Ngok Dinka from raids by the Messiria, make taxation easier and thus pacify the area; to demonstrate that a new sovereign power was in control, and to bring the two feuding tribes under common administration. When the British left in 1956, they left the status of Abyei unclear.

The two communities began to take separate paths with the onset of the first Sudanese Civil War (1956–1972), particularly after the 1965 massacre of 72 Ngok Dinka in the Misseriaa town of Babanus. The Ngok Dinka were thus drawn to the Anyanya, while the Messiria were favoured by the regime in the Khartoum-based government and became firmly associated with the north. The 1972 Addis Ababa Agreement that ended the war included a clause that provided for a referendum allowing Abyei to choose to remain in the north or join the autonomous South. This referendum was never held, and continued attacks against Ngok Dinka led to the creation of the Ngok Dinka unit in the small Anyanya II rebellion, which began in Upper Nile in 1975. The discovery of oil in the area, among other north-south border regions, led President Gaafar Nimeiry to try the first of many initiatives to redistrict oil-rich areas into northern administration.

The Ngok Dinka unit of Anyanya II formed one of the foundations of the rebel movement at the beginning of the Second Civil War in 1983. Many Ngok Dinka joined the rebels upon the outbreak of hostilities. Partially as a result of their early entry into the war, many Ngok Dinka rose to leadership positions in the Sudan People’s Liberation Army (SPLA), becoming closely associated with Dr John Garang. In contrast, the Messiria joined the hostilities on the side of the government in the mid-1980s. They formed frontline units as well as Murahleen, mounted raiders that attacked southern villages to loot valuables and slaves. By the end of the war, the intense fighting had displaced most Ngok Dinka out of Abyei, which the Misseria state as justification for ownership of the area.

Abyei Protocol in the Comprehensive Peace Agreement

The status of Abyei was one of the most contentious issues in the negotiation of the Comprehensive Peace Agreement (CPA). The first protocol, signed in Machakos in 2002, defined Southern Sudan as the area of independence in 1956. It thus excluded the SPLA strongholds in Abyei, the Nuba Mountains, and the Blue Nile, known collectively during the talks as the Three Areas. The SPLA negotiators then spent several years attempting to give these regions the right to a referendum in which they could decide if they wanted to be under the administrative control of the north or south. This would potentially mean that these regions would become part of the nation of South Sudan after the independence in 2011. The government in Khartoum blocked these attempts, stating that the Machakos Protocol had already delineated the border for the Three Areas in favour of the north.

The deadlock was finally broken by pressure from the United States. U.S. presidential envoy John Danforth circulated a draft agreement, which the U.S. convinced the government in Khartoum to sign despite its inclusion of a referendum. The Protocol on the Resolution of the Abyei Conflict put Abyei into a special administrative status governed directly by the presidency. The precise borders of the area were to be determined by the Abyei Borders Commission, followed by a referendum commission to identify those Messiria that are residents in Abyei and could thus vote in local elections in 2009; all the Ngok Dinka were to be considered residents, as it is their traditional homeland.

Abyei Borders Commission (ABC)

According to an annex to the protocol adopted in December 2004, the Abyei Borders Commission was composed of 15 people: five appointed by the government, five by the SPLA; three by the IGAD; and one each by the United States and the United Kingdom. Only the five impartial experts could present the final report. The five appointed were: Godfrey Muriuki of the University of Nairobi, Kassahun Berhanu of Addis Ababa University, Douglas Johnson, an author of several books on southern Sudan, Shadrack Gutto, a lawyer from South Africa; and Donald Peterson, a former ambassador to Sudan. The ABC established the boundary at approximately 10°22′30′′N, 87 kilometres (54 miles) north of the town of Abyei, using the agreed-upon procedure. Johnson details the process and the map showing the boundary.

The ABC presented their report to President Bashir on July 14th, 2005, whereupon it was rejected by the government, who accused the experts of using sources after 1905 in determining the boundaries. The death of Dr John Garang later that month pushed all other issues off the national agenda, but the Southern Sudan maintains that the terms of the Abyei protocol must be held to. Khartoum’s resistance to an agreement is largely based on an attempt to hold on to the oil reserves and oil pipelines in the area.

Renewed tensions and violence

In October 2007, rising tensions between the SPLA and the government resulted in the SPLA temporarily withdrawing from the Government of National Unity (GoNU) over several deadlocked issues, Abyei among the issues. At the time, the international pressure groups stated what happens in Abyei is likely to determine whether Sudan consolidates the peace or returns to war. Armed violence erupted in the Abyei region in late 2007 and throughout 2008. Clashes occurred between the SPLA and Messiria fighters and between the SPLA and government troops.

Messiria leaders have continuously objected to demarcation provisions of the CPA which they claim to have a negative impact on Messiria access to grazing lands. These grievances fed into armed clashes in December 2007, which killed at least 75 people, and further violence in February and March 2008, resulting in numerous deaths and civilian displacement. These clashes were considered by analysts to represent a serious threat to the peace process and trigger a resumption of civil war. The Messiria were not believed to be directly controlled by Khartoum, however, analysts pointed out that local disputes over resources are readily manipulated by outside forces.

Following the violence of February and March, the Sudanese government deployed a contingent of more soldiers to Abyei town on March 31st, 2008. Armed clashes between these troops and the SPLA occurred in May 2008, resulting in dozens of deaths and the displacement of an estimated 25,000 civilians. The dispute erupted into violence in May 2008, when Abyei town was razed to the ground, causing most of the town’s inhabitants to flee to the south. On 8 June 2008, the NCP and the SPLM signed the Abyei Roadmap Agreement aimed at breaking the deadlock on the implementation of the Abyei Protocol.

Arbitration by a panel under the Permanent Court of Arbitration

Following the clashes in Abyei in May 2008, the Sudanese President, Omar el Bashir, and the President of the autonomous government of Southern Sudan, Slave Kiir Mayardit, agreed to refer the disputes between the government and the SPLM/A concerning the ABC’s determination of the Abyei area’s boundaries to international arbitration at the Permanent Court of Arbitration. The arbitration was presided over by an arbitral tribunal composed of five international lawyers. The tribunal adopted the PCA optional rules for arbitrating disputes between two parties, of which only one is a state.

The SPLM/A appointed Dr. Riek Machar Teny, Deputy Chairman of the Sudan People’s Liberation Movement and Minister Luka Biong Deng, as Agents, and Gary Born, Paul Williams and Wendy Miles as counsel. The Government of Sudan appointed Ambassador Dirdeiry Mohamed Ahmed as Agent and was represented by Professor James Crawford, Dr Nabil Elaraby, Professor Alain Pellet, Rodman Bundy and Loretta Malintoppi.

Following extensive written pleadings, in April 2009, the parties presented their closing submissions to the arbitration tribunal over six days at an oral hearing at the Peace Palace, The Hague. In a groundbreaking initiative, the parties agreed to broadcast the oral hearing over the internet, which allowed those in Sudan and around the world to see the parties put forward their arguments. Following the hearing, the arbitral tribunal began its deliberations, and less than ninety days later, on July 22, 2009, it rendered its final binding decision regarding the validity of the boundaries for Abyei and the Abyei borders commission had drawn.

The award ordered the redrawing of the northern, eastern, and western boundaries, thus decreasing the size of Abyei. The size of Abyei is crucial to the political dispute, as its residents will be able to vote in a referendum on whether to become part of northern or southern Sudan. The redrawn borders give control of the richest oil fields in the Abyei region, such as the Panthou (Heglig) oil field, to the north while giving at least one oil field to the south. Most of Messiria is outside the redrawn borders, making it far more likely that the region will vote to join the south. Announcements by the SPLM and the government of Sudan that they would accept the ruling were hailed by the United States, the European Union, and the United Kingdom.  

Abyei Referendum as per Comprehensive Peace Agreement (2005)

As of December 2010, the permanent court arbitration border has not been demarcated, and there is still no agreement on who constitutes a “resident of Abyei” for the purposes of voting in the Abyei referendum. The question is whether to include Arab nomads, who have historically stayed in the region every year for six months. If the Misseria Arabs are prevented from voting, the region will likely go to South Sudan. While the Dinka Ngok and Messiria tribe maintained a peaceful coexistence during the civil war, the division of Sudan has created mistrust between the two communities. In the second week of January 2011, when a referendum was held regarding South Sudanese independence, a simultaneous referendum to determine the fate of Abyei was meant to be held. This referendum was postponed due to the disagreement over voter eligibility.

Abyei takeover by north

On 21 May 2011, it was reported that the armed forces of Sudan had seized control of Abyei with a force of approximately 5,000 soldiers after three days of clashes with the South. The precipitating factor was an ambush by the South, killing 22 northern soldiers. The northern advance included shelling, aerial bombardment, and numerous tanks. Initial reports indicate that over 20,000 people have fled. The South Sudanese government has declared this an “act of war”, and the U.N. has sent an envoy to Khartoum to intervene. 

As of May 2011, the prospective referendum on Abyei’s future status has been postponed indefinitely. The former President al-Bashir dismissed the southern chief administrator of Abyei and appointed a northerner, Ahmed Hussein Al-Imam. All these indicators were part of disrupting the independence process of the people of the Southern South after the majority voted for separation in Jan.

In this regard, protests were held in at least two Southern states, Upper Nile and Warrap, over the occupation of Abyei by Northern forces. Labour leader Abraham Sebit, leading the protest in Malakal Upper Nile, asked for intervention by the United Nations and suggested a no-fly zone could be established over Abyei. Governor Nyadeng Malek of Warrap also condemned the occupation.

Ceasefire and enforcement

A deal on demilitarization was reached on 20 June 2011. The United Nations Interim Security Force for Abyei (UNISFA), consisting of Ethiopian troops were to be deployed under a United Nations security Council resolution from 27 June 2011.

The peacekeepers began arriving in Abyei on 15 July 2011 after traveling overland from Ethiopia, just under a week after South Sudan formally declared its independence. Both countries continue to claim Abyei, but the presence of the Ethiopians is intended to prevent the military of from attempting to wrest control of Abyei.

Abyei self -Referendum (2013)

Community leaders from the oil-contested region of Abyei in October 2013 decided to carry out referendum of their own to determine their final status due to identity challenges faced in both South Sudan and Sudan. An October 2013 referendum proposed by the African Union (AU) to decide the fate of Abyei never took place after Arab nomads from the Misseria tribe, who periodically enter the region to graze their cattle, rejected their exclusion from the ballot on the basis they were not permanent residents of the area. While the vote was primarily symbolic and not legally binding, the Abyei Referendum High Committee, which organized the referendum, stated that 99.89 percent voters chose Abyei to become part of South Sudan.

 This move was for the people of Abyei to determine their final status. Both the Sudanese and South Sudanese governments refused to recognize the ballot, in which Ngok Dinka residents voted overwhelmingly to join South Sudan. Community leaders say the lack of official recognition remained an ongoing source of suffering for the people of Abyei and are determined to push ahead with a campaign seeking regional and international recognition of the October 2013 referendum result. The consequences of the dispute over the status of the area are hurting so much, even when people have made their choice known to the whole world.

Abyei People in South Sudan

During the liberation struggle of the Sudan People’s Liberation Movement/Army, Abyei contributed like other Southerner Sudanese communities to have this country. They are part and parcel of South Sudanese communities socially, economically, and politically, though transferred to Kordofan in 1905 by British administration due to proximity and to solve continuous fighting with Misseria tribe. Many battle fields in greater Bhar el Ghazal have been headed by Gen Pieng Deng a true son of the soil. My hometown of Tonj was captured by him and Oyai Deng Ajak as commanding officers.

 From 2013 onward people of Abyei have been neglected by the government of South Sudan in many ways, including being removed from key government institutions. Many Ngok sons and daughters were removed from the government’s key positions, including the long-serving ambassador to the United Nations Dr Francis Mading Deng, Gen. Pieng Deng, Deng Alor Kuol, Dr Luka Biong Deng, among others, based on what many believe, especially from the Bhar el Ghazal community, to be the pieces of advice from Uncle Bona Malual Madut not to give key positions to the people of Abyei, of whose identity is not yet clear.  

To make matters worse, Bona Malual Madut nominated his son, Akuei Bona Malual, to be South Sudan, permanent representative to the United Nations, replacing Dr Francis Mading. According to many sources, Bona Malual has long-time grudges against Deng Alor, Gen. Pieng Deng, and Luka Biong, whom he accuses of being close associates of Dr Garang during their fallout. Luka Biong was removed and followed up at the University of Juba level as a clear indication of the plan to clear the people of Abyei out of the government.  The basis was why he commented on the return to ten states during public lectures in the university, which I believe to be not the case since public opinions count in public matters. I happened to attend the lectures, and Dr Luka Biong commented as part of the intellectual community of South Sudan. All these moves against the people of Abyei have angered intellectuals, and some of them joined opposition groups to advocate for the change of the government of president Kiir. Bona Malual did not stop his move but launched a book in 2017 titled: Abyei of the Ngok Dinka not yet South Sudan. I don’t want to connect the dots that the current conflict between Abyei and Ngok communities is connected to long grudges, but one might have that feeling at some point. The silence of key leaders in both Abyei and Twic indicates prolonging the crisis. The committee that was formed early this year by president Kiir, headed by H.E Vice President Hussein Akol, has not done enough to rescue the situation.

 In 2013, after the outbreak of the crisis in the country, Bona Malual Madut became very close to President Kiir, and he has been advising him on many things, including the formation of the so-called Jieng Council of Elders (JCE) with the objective of mobilizing youth to defend the government. From day one, I have been very critical of this group using the big name of mighty Jieng for their political gain. Fitting communities together without a clear roadmap for the country is not what South Sudanese need; they need leaders who care about the country.

Conclusion

Although the government of Southern Sudan has tried much to engage the Khartoum base regime led by former president Omar Al Bashir on the Abyei protocol of 2004 as per the comprehensive peace agreement and the Abyei borders commission, there is still a need to do more for the people of Abyei not to feel neglected.  Subsequently, I would like to thank the government of Southern Sudan for managing the 2008 crisis in Abyei. The Khartoum base regime’s intention was to disrupt the South Sudan referendum and independence process. The government played the nice card of not giving too much attention to fighting the independence process.

The expected process was for the government of South Sudan to take full responsibility for ensuring that the people of Abyei got their independence and joined South Sudan officially. The reluctance of the government led by President Kiir and the Khartoum base regime has worsened the situation of the people of Abyei. The ongoing crisis in both Sudan and South Sudan has made it difficult for the people of Abyei region to attain permanent peace in the area.

 With all the above challenges and no breakthrough from the African Union, Sudan and South Sudan will prolong the suffering of the people of Abyei. Therefore, to serve the people of Abyei, an international trusteeship system should be the best option since the ongoing crisis in both Sudan will not give them time to settle and discuss the issues pertaining to Abyei. The Trusteeship system will give humble time for the government of South Sudan and the Sudan regime to work on the possible options for the people of Abyei to decide their fate in relation to the Comprehensive Peace Agreement of 2004 protocol.  President Kiir has been forming many committees with no breakthrough, which should not be the case.  In human society, the suffering of one person within the community should be the suffering of all. So, the biggest issue for the people of Abyei is insecurity from Arab nomads and now the Twic county of Warrap state. We have previously seen that in such negotiations, when it comes to the final status of Abyei, people will generate another new agenda that makes people not finish the business of deciding on the final status of Abyei.

Recommendations

Pursuant to Article 76 of the Charter, the basic objectives of the International Trusteeship System in accordance with the purposes of the United Nations included: promoting the political, economic, social and educational advancement of the inhabitants of the Trust Territories and their progressive development towards self-government and independence; and to encourage respect for human rights and fundamental freedoms for all and recognition of the interdependence of the peoples of the world.

For the people of our beloved community of Abyei to attain their final status, the following are a few recommendations to support the process:

1. The Abyei region should be trusted under the United Nations Trusteeship System for about 10–15 years, depending on how speedy the process will be. Abyei is not the first area under this mandate, but many countries have been trusted under the Trusteeship mandate and attained self-government or independence afterwards.  By 1994, all Trust Territories had attained self-government or independence, either as separate states or by joining neighbouring independent countries. With this opportunity, Abyei is not exceptional if this option is granted.

2. With help from the African Union and the international community, South Sudan and Sudan governments should sit down and decide on workable solutions for the people of Abyei to have their final status. The final status of Abyei should be based on the protocol’s provisions on Abyei as enshrined in the Comprehensive Peace Agreement of 2005.

3. The government of South Sudan should recognise and adapt to the October 2013 referendum results. If the government of Sudan rejects the results as they are accustomed to, then recommendation number four should be reconsidered.

4. The Court of Arbitration should adapt and make a decision based on the 2008 panel of expert findings regarding Abyei’s final status when all the above recommendations fail.

The writer is a master’s student at Mount Kenya university, college of Social and development studies; he can be reached via his email address: abyong60@gmail.com

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