Response to Dr. Luka Biong Deng on the So-Called ‘Abyei Box’

By Buk Dan Buk, Dallas, United States

Sunday, 24 December 2023 (PW) — In the afternoon of 20^th December 2023, Dr. Luka Biong Deng went for a courtesy call to His Excellency Dr. Riek Machar Teny, First Vice President of the Republic of South Sudan. As a result of such visit and discussion, Dr. Luka came out with a Facebook post titled: The Abyei Box: What do you know about it?[1] In his posting, he argued what he termed as twisted facts about Abyei Box and the origin of the Abyei Box, which according to him came as a result of arbitral award by the Permanent Court of Arbitration (PCA) in July 2009.

However, both assertions are terribly misleading and lack iota of facts. The objective of this response is to dismiss such misrepresentations of historical, and geographical facts and legal issues about Abyei Area map, Abyei Boundaries Commission Report and the subsequent Arbitral Award by the Permanent Court of Arbitration (PCA)[2] respectively.

The Second clarification is about how this negative propaganda as advanced by some individuals has so far contributed and continue to do so, in the current communal conflict between Twic Dinka of Warrap State in the Republic of South Sudan and the Ngok Dinka of Kordofan State in the Republic of Sudan since 1905.

On the first account, it is important to give background to the Abyei Boundaries Commission[3] ABC and its mandate.  Chapter four article 5.1 of the Abyei Protocol in the Comprehensive Peace Agreement[4] established ABC with mandate to define and demarcate the area of the nine Ngok Dinka Chiefdoms transferred to Kordofan in 1905 by doing consultations with immediate neighboring communities. The ABC consulted the rest of the communities and did not consult the immediate communities on the Southern boundary for reason (s) best known to the ABC.

However, the ABC produced the report including the comparative Map of Abyei Area, which according to paragraph 394 of the PCA arbitral award[5] confirmed from the SPLM/A represented by Ngok elites in the ABC, that “although the project was limited in scope due to time constraints and other obstacles, the Mapping Team “drew on the resources of some 200 Ngok Dinka to identify specific sites in the Study Area, “tagging” each with a GPS coordinate”.  This is how   the comparative Map of the Abyei Area which Dr. Luka Biong probably referred to as Abyei Box came about and sometimes referred to as Abyei Region, Abyei Area or a bridge between Sudan and South Sudan by the Ngok  Dinka  elites.

In fact, the Government of Sudan challenged the method used by the mapping team who provided the comparative map of Abyei Area as captured under paragraph 392 of the PCA arbitral award, and they submitted the following position that “the Community Mapping Expert Report should be given no weight. In addition, the Mapping Team was made up of interested parties (200 Ngok Dinka) who randomly carried out GPS mapping method on the basis of leading questionnaires, without establishing how features located in 2009 correlated with their locations in 1905[6].

Accordingly, article 5.3 of the Abyei Protocol[7] in the CPA provide that the ABC shall present its final report to the Presidency as soon as it is ready. Upon presentation of the final report, the Presidency shall take necessary action to put the special administrative status of Abyei Area into immediate effect.Indeed, the ABC was established with predominant membership of the Ngok Dinka and Misseriya natives of the Sudan, on both side of the SPLM/A leadership and the Government of Sudan respectively. In any case, the ABC carried out its mandate and submitted the final report to the Presidency on 14 July 2005[8].

As a beginning of wrongful approach to the ABC mandate, the ABC members and Experts, instead of moving together to brief the communities in Abyei and surrounding areas, the members of the Ngok Dinka in SPLM delegation in the ABC went back to the Ngok Dinka and explained their version of report, and the Government of Sudan went to the Misseriya and equally explained their version of the report. This clearly shows serious conflict of interest and identity crisis because the Ngok Dinka and Misseriya natives of the Sudan were both representing their cases as individual ethnic communities and equally speak or represent their parties to the CPA 2005. It was difficult to differentiate what is an ethnic community interest vis-à-vis that of the parties.

A clear case in point of bad faith politics of the Ngok Dinka representatives in the SPLM/A which was predominantly South Sudan was the comparative submission of the parties’ position on the thematic issue number three on “the relevance of the Kordofan/Bahr el Ghazal boundary to the delimitation of the area transferred in 1905. The PCA pose a question “whether did Bahr el Arab (Kiir River) constitute a precise and proclaimed provincial boundary between Kordofan and Bahr el Ghazal and the northern limit of the area transferred in 1905?

 In answering to this question which is the central contested issue, the Government of Sudan answered the question by acknowledging the existence of Bahr el Arab (Kiir River) as a borderline between Korodfan and Bahr El Ghazal. In their exact submission in paragraph 270 of the PCA arbitral award, “the Government of Sudan argues that the condominium administration was present in the Abyei region and explored it prior to and in 1905. Despite limited and short-lived uncertainty surrounding the location of the Bahr el Arab, it is clear that there was a precise boundary between Kordofan and Bahr el Ghazal on that river prior to the transfer and that the highest-ranking official, who knew where the Bahr el Arab was, considered it to be both the provincial boundary and the northern limit of the transferred area in 1905[9]”.

In addition to the Government of Sudan submission on the matter, the Government of Sudan submits that a number of pre-1905 documents describe the Bahr el Arab as the provincial boundary between Bahr el Ghazal and Kordofan, including: Frank Lupton’s 1884 writings; and 1884 report by the Intelligence Branch of the War Office; the 1898 first edition of the 1898 Gleichen Handbook;  Mardon’s 1903 revised map (first issued in 1901); the 1902 to 1904 Bahr el Ghazal Annual Reports; the 1904 Kordofan Annual Report (which states that “the Darfur Frontier […] runs southwards, west of Dar Homr to the Bahr el-Arab which is the northern boundary of the Bahr el-Ghazal Province”);  the 1905 Bahr el Ghazal Annual Report (which no longer refers to the provincial boundaries as being “vaguely defined”); and the 1905 Gleichen Handbook which includes two maps showing the Bahr el Arab as the northern border of the Bahr el Ghazal.

The government of Sudan continue with submission on recognition of the borderline between Kordofan and Barh El Ghazal under paragraph 287 of the PCA arbitral award that, “it is clear from the contemporary record that the boundary between Kordofan and Bahr el Ghazal before the 1905 transfer was the Bahr el Arab. The fact that the provincial boundaries were not prescribed in any kind of constitutional, legislative or executive document is immaterial, as no such legal requirement existed. Contrary to Professor Schofield’s position, what mattered was that Condominium officials, including Governor-General Wingate, considered the Bahr el Arab to be the boundary

In sharp contrast and deliberate misleading submission by the SPLM/A represented by Ngok Dinka elites, they submitted under paragraph 271 of the PCA arbitral award that, “in 1905, at a time when there was virtually no administration in Southern Kordofan and Bahr el Ghazal, there was widespread and prolonged confusion as to the location of the Bahr el Arab. Contrary to the Government of Sudan position, the provincial boundary between Kordofan and Bahr el Ghazal was indeterminate in 1905 and irrelevant to a transfer that concerned a people as opposed to a specific area”.

Additionally, the SPLM/A represented by the Ngok elites continue to mislead in their submission under paragraph 288 of the PCA arbitral award that “when the Bahr el Arab was referred to in the documentary record as the provincial boundary prior to and during 1905, “the Anglo-Egyptian administrators simply did not have a clear or common understanding of where that boundary was in fact located”. 

Upon receipt of the report which was already embroiled with different perceptions, there were two different interpretations of it. On the one hand, the Government of Sudan said what has been submitted by the ABC must be considered as recommendations, which would be studied, while the leadership of the SPLM/A said what has been submitted is a final and binding decision, which must be implemented[10]. This is how the disagreement between the parties over the ABC report came about.

As a result, the matter was referred for arbitration by the PCA in the Hague, the Netherland. The course of action to be determined were under Article 2 of the Arbitration Agreement, on (a) whether or not the ABC Experts had, on the basis of the agreement of the parties as per the CPA, exceeded their mandate which is ‘to define (i.e. delimit) and demarcate the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905’ as stated in the Abyei Protocol, and reiterated in the Abyei Appendix and the ABC Terms of Reference and Rules of Procedure. (b) If the Tribunal determines, pursuant to Sub-article (a) of the Arbitration Agreement that the ABC Experts did not exceed their mandate, it shall make a declaration to that effect and issue an award for the full and immediate implementation of the ABC Report. (c) If the Tribunal determines, pursuant to Sub-article (a) of the Arbitration Agreement, that the ABC Experts exceeded their mandate, it shall make a declaration to that effect, and shall proceed to define (i.e. delimit) on map the boundaries of the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905, based on the submissions of the parties[11].

 During the arbitration proceedings, the tribunal found that the ABC Experts have exceeded their mandate in certain areas of its implementation. Specifically, the ABC Experts failed to state sufficient reasons concerning some aspects of their decisions and thus exceeded their mandate with respect to some of their conclusions. However, on the Southern boundary, the ABC in its decision No: 3 stated that the Southern Boundary shall be Kordofan-Bhar el Gahzal-Upper Nile as it was defined on 1 January 1956. This was similarly confirmed by the ruling of the PCA that “the ABC Experts did not exceeded their mandate. The Southern Boundary as established by the ABC Experts is therefore confirmed.

In this case, there is nowhere Abyei Box appeared or referenced as a decision of the PCA in its final arbitral award in July 2009.  In other word, there is nothing called Abyei Box as the PCA did not provide the map of the Abyei Area in its proceedings. Instead, it is evidently known and clear to all that the PCA based its arbitral award on the ABC report including assessing the submission of the parties on the comparative map of the Abyei Area.

In response to Dr. Luka assertion of Ngok Dinka being South Sudanese citizens with equal rights, this raises legal question of nationality and territorial rights of the Ngok Dinka native of the Sudan. First, it was legally questionable to include the land and the people as geographical part of South Sudan before the conduct of Abyei Referendum. Article 1.3 of the Abyei Protocol in the CPA provide that “at the end of transitional period with simultaneous conduct of referendum for Southern Sudan, the residents of Abyei will cast a separate ballot. The proposition voted on in the separate ballot will present the residents of Abyei with the following choices, irrespective of the results of the southern referendum: (a) that Abyei retain its special administrative status in the north; or (b) that Abyei be part of Bahr el Ghazal.

Following these clear general legal principles that Ngok Dinka native of the Sudan are not South Sudanese pending the conduct of Referendum in Abyei to decide their destiny, a politically correct decision was made by the two Government of Sudan and South Sudan to accommodate their participation in the administrative structures of the states during the interim period.  Article 6.2 of the Abyei Protocol in the CPA provide that “Residents of Abyei shall be citizens of both Western Kordofan and Bahr el Ghazal with representation in the legislatures of both States as determined by the National Electoral Commission”. There was no mention of their participation in the national representation simply because they are not legally eligible to participate in the national government pending the conduct and outcome of the Abyei Referedum.  For these reasons, that is why the Ngok Dinka did not vote in 2010 general elections.

In the Transitional Constitution of the Republic of South Sudan 2011 as amended, the Transitional Constitution has contradicted, challenged or violated the provisions of Articles 1.3 and 6.2 of the Abyei Protocol in the CPA 2005[12] by including the land and the Ngok Dinka native of the Sudan as South Sudan Sudanese citizens. This is shown in article 1 (2)  (a) of the Transitional constitution which define the territory of the Republic of South Sudan that “the territory of the Republic of South Sudan comprises: (a) all lands and air space that constituted the three former Southern Provinces of Bahr el Ghazal, Equatoria and Upper Nile in their boundaries as they stood on January 1, 1956.

Regrettably, the Government of South Sudan added article 1 (2) (b) that “the Abyei Area, the territory of the nine Ngok Dinka chiefdoms transferred from Bahr el Ghazal Province to Kordofan Province in 1905 as defined by the Abyei Arbitration Tribunal Award of July 2009, be part of the Republic of South Sudan.  The legitimate question is how come to annex a disputed land and the identity of the people to be party of a certain country without their consent and the implementation of article 1.3 of the Abyei Protocol which calls for conduct of referendum. Similarly, the same way South Sudan under the CPA could not declare its independence before the conduct of the referendum as stated in the CPA 2005.

In a normal legal procedure, the Abyei Protocol on referendum would have first been implemented and if the outcome of the referendum confirmed joining Barh El Ghazal, then the Constitution of the Republic of South Sudan would automatically be subjected to amendment to include Abyei Area. Therefore, the granting of South Sudanese citizenship to the Ngok Dinka native of the Sudan under article 97 (4) (a) of the Transitional constitution was not only unconstitutional but flagrant violation of the Abyei protocol in the CPA 2005 and the Transitional Constitution of the Republic of South Sudan 2011 as amended.

The author, Buk Dan Buk, is a concerned South Sudanese American who can be reached via his Email Address: Bukdandit@hotmail.com.

References:

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[1] Dr. Luka Biong Deng (20 December 2023) Facebook post titled: The Abyei Box: What do you know about it?

[2]  Article 5 of the arbitration agreement between the Government of Sudan and the Sudan People’s Liberation Movement/Army on delimiting Abyei Area – and – the Permanent Court of Arbitration Optional Rules for arbitrating disputes between two parties of which only one is a state – between – the government of Sudan – and – the Sudan people’s liberation movement/army. www.pac-cpa.org/en/documents/publication/pca-award-series

[3]  Abyei Boundaries Commission Download PDF — Sudan Open Archive (sudanarchive.net)

[4] Chapter four 5.1 of the Abyei Protocol in the Comprehensive Peace Agreement

[5]  Para. 394 of the Permanent Court of Arbitration Award. Sources: www.pac-cpa.org/en/documents/publication/pca-award-series

[6] Paragraph 392 of the PCA Arbitral Award: The Community Mapping Expert Report should be given no weight. In addition, the Mapping Team was made up of interested parties (200 Ngok Dinka) who randomly carried out GPS mapping method on the basis of leading questionnaires, without establishing how features located in 2009 correlated with their locations in 1905

[7] Article 5.3 of the Abyei Protocol in the Comprehensive Peace Agreement (CPA 2005)

[8] The New Humanitarian | Interview with Douglas Johnson, expert on the Abyei Boundary Commission.https://www.thenewhumanitarian.org/report/59142/sudan-interview-douglas-johnson-expert-abyei-boundary commission

[9] Paragraph 270 of the PCA Arbitral Award: www.pac-cpa.org/en/documents/publication/pca-award-series

[10] Ibid The New Humanitarian | Interview with Douglas Johnson, expert on the Abyei Boundary Commission.https://www.thenewhumanitarian.org/report/59142/sudan-interview-douglas-johnson-expert-abyei-boundary commission

[11]  Article 2 of the Arbitration Agreement Between the Government of Sudan and the Sudan Peoples Liber twww.pac-cpa.org/en/documents/publication/pca-award-series

[12] Articles 1.3 and 6.2 of the Abyei Protocol in the CPA 2005

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