National Intelligence Bill 2011-Why Kenyans Must reject this Draconian Law

National Intelligence Service Bill: Resist this Draconian Piece of Law

by

Atunga Atuti O. J.

It is not lost on Kenyans that once upon a time when we were working on a final draft of the constitution ahead of the referendum some clever fellow who we never got to know inserted the words...subject to National Security...which would have altered the spirit and effect of the Bill of Rights in the New Constitution. What the clever fellow failed to do is now being effect through the back door. This attempt is the NI SBill. The National Security Intelligence Service Bill is a dangerous piece of Law! The provisions of this piece of proposed legislation has been drafted like we never promulgated a new constitution that we never transited from the days of the “nyayo errors” that we never learnt from the lessons of history. We also never learnt from others including the lessons of fumbled American intelligence cook-up that landed entire world in meaningless and endless wars that the world is trying to extricate itself from essentially we never learnt anything!

The National Intelligence service Bill if enacted in its present form will create an Institution operating in its own realm, created on its own former images, opaque in its operations and answerable to none other than itself! All these on our TAXES and in an era when the rest of the world is moving towards democratic control over security agencies.

The Bill seeks to create an institution that that derogates from and claws back the principles of national security as provided in the Constitution. According to the Constitution,  National security shall be premised on  the protection from external and internal threats  to Kenya, her sovereignty, people, their rights, freedoms, property, peace and stability, prosperity and other national interests.  The Constitution further provides that the pursuit of national security must comply with the law, utmost respect for the rule of law, democracy, human rights and freedoms. In a nutshell, national security is subject to the authority of the constitution and parliament. The envisaged institution is a threat to these fundamental provisions rather than a guarantor of the same.

Whereas the functions as provided in the proposed law in many respects tally with the provision of the constitution in respect to the NSI Service, there are a number of clauses especially those relating to the limitation of rights, oversight, operational transparency and accountability that are wanting. While we appreciate the need to strike a balance between the rights of people working   for the Agency as provided in the Constitution and the need to safeguard the sensitivity and confidentiality of information they will come across in the course of their work. The provisions on limitations of rights do not meet the Constitutional threshold in accordance to Art 24 in terms of their specificity.

There also are a number of reasons why this is a dangerous piece of legislation and seeks to negate the provisions of the Constitution and thus must be rejected: first it has been drafted with the singular aim of perpetuating the institution as it exists today. It does not present much progression in tandem with the New Constitution. There are limited oversight provisions regarding the recruitment of the Director General. This in a way explains why the president re-appointed the current Director General without following the spirit and letter of the constitution pertaining to such appointments. In many respects the procedures for the appointment of the Director General in the Bill do not meet the constitutional threshold for such recruitment.

As pertains to oversight, even though the constitution is clear that the National Intelligence Service (NIS) is subject to the constitution and parliament as per Art. 238 (2a), the Bill seeks to institute  a procedure where it will "vet" MPs who will sit on  a proposed oversight committee to be known as Parliamentary Intelligence Oversight Committee (PIOC). Even though Article 38 recognizes that this committee shall be constituted in accordance with parliamentary standing orders, this provision is oblivious to the fact that Parliament operates on its own rules and standing orders and is not subject to the direction of any body. But even then the same article states that members of that parliamentary committee shall be subject to vetting (Art. 38 (3) by same institution over which the committee is supposed to exercise oversight! The Bill further seeks to legislate that the NIS and its Director General are not subject to any court, tribunal or commission of inquiry (Article 40 (2). How can an Institution that subsists on tax payers funding be insulated from public accountability and scrutiny? If this were the case, would we have known what information was available long before the madness of December 2007 and January 2008? Would we have known the various acts of omission and commission the NSIS and other Agencies engaged in and how useful the intelligence in their possession and further actions would have been in avoiding the Post Election Violence?

In regard to information held by the Service, Article 39 provides that the Director General will make decisions on what information and classified documents are to be kept and what is to be destroyed and the procedures thereof shall be made by the Director General. What will stop the Director General from being at the peck and call of certain interests if s/he has unfettered authority and final word on the destruction of documentation? It should be noted that there are established best practices from around the world on the preservation of documentation and their eventual de-classification. There is no mechanism to insulate the Service from the whims of a rogue Director in respect to preservation of the integrity of the institution and it's accumulated institutional resources, memory and documentation. Whatever information the Service will gather constitutes part of our national treasure, heritage and history and should be preserved. What will stop an outgoing Director General from prescribing the destruction of all information gathered in his or her tenure of service?  There are a lot of advances in ICT that can enable the Service to archive most if not all the information and documentation than the s  discretionary  destruction of  information gathered at tax payers expense.

The Bill does not mention at all that officers in this Service will have police powers neither does it provide for the procedures for interaction with the public.  But, there is a curious provision, in Part III Article 20, which prohibits the service from “torture or any other cruel, inhuman or degrading treatment”. Though in the face of it this is a mundane provision, nowhere in the Bill is the service allowed detention or custodial powers. How then can the proposed law purport to prohibit the Service from torture? The mischief in this is the possibility that the service runs what has now come to be referred to "safe houses"-illegal detention centers that are not covered by any law. There is evidence in the public domain regarding the cooperation between Kenya and Foreign Intelligence services. It is also instructive to note that there is evidence that  Americans have been running such facilities around the World that are now a cause of international furore where torture and other inhumane acts took place. Such facilities would not be allowed to operate in US soil hence they had to be established elsewhere. Has the service been complacent in these acts in association with foreign powers? Is there more than we know in the fight against terrorism? If the entire Bill does not mention any custodial facilities-at what point will citizens and others come into contact with the service to the extent of being tortured? Will the agency have police powers? Will it be dealing directly with public on a day today basis and if so what will be the nature of such interactions and under what Law?

But more worrying is the tone and choice of words that the drafters of the Bill have used. Take for example the following two instances: Art 38(4) the committee shall conduct its functions within a ring of secrecy… and Art. 40 (2) gives absolute immunity  to the Director General and his officers from disclosing information in any proceedings in a court, tribunal, commission of inquiry or any other body....All these on your TAXES. So the bigger question is what Agency does this proposed piece of law intend to create?

It is for these reasons and in the interests of living to the spirit and letter of the Constitution, participation, transparency and accountability and of disabusing this institution of its past hangovers of secrecy, torture and acting like a law unto itself that WE must reject this law.

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Atunga Atuti O.J. is the Chief Executive Officer of The East African School of Human Rights (email: eajournal@email.com)

Why Courts Matter: Challenges for Courts in Kenya

Why  Courts Matter: Challenges for Courts in Kenya 

(Part II)

 

Atunga Atuti O.J

In the First part of this two part commentary we delved into why courts matter in our efforts at entrenching democracy and constitutionalism. In this part, we examine the impediments to the proper functioning of Judiciaries and especially the Kenyan Courts.

In the last quarter of 2003, the Chr. Michelsen Institute, in Norway issued a Policy Brief  “Judicial Reform in New Democracies”-other than indication that this was focusing on general experiences  from  many developing countries, one would think the brief was basically on  Kenya. This because the gist of the paper was that  courts in many jurisdictions lack legitimacy because they are either populated by incompetent  officers, lack resources to discharge their functions, lack the independence to perform their functions or are inaccessible. In undertaking the enormous task of reforming the Kenyan  Judiciary, I wish to draw from the  the conclusions of that policy paper because they are critical  timely and relevant  to our situation as we try to institute corrective measures to reform our judiciary.

Why have our courts failed to meet almost all of our expectations? That we had rather resort to violence rather than settle electoral disputes in courts of law, that some constituencies are represented in parliament by people who didn't garner the mandate of the people for more than 48 out of 60 months in an electoral cycle, that disposing of property in order to raise capital for more meaningful economic activities is hamstrung by injunctions after the other, that resolving a dispute regarding a contract is subject to unpredictability that the obligations set out are either overtaken or become worthless. That poor people have no possibility of accessing justice and redress even when their fundamental rights have been  violated. That none of the persons now 36 months in the IDP camps cannot compel government to redress that situation.

A number of reasons have been given as to why our Judiciary is unable to meet the expectations of adjudicating over disputes, upholding the rule of law, supporting good governance, protecting and promoting the enjoyment of constitutional and fundamental human rights. The first challenge is lack of independence and autonomy: the lack of structured appointment procedures, appointments to the Judiciary has been at the pleasure of the President- hence courts often lack the face of Kenya in  their composition, social background. For a long time under the previous authoritarian regimes, the Judiciary was considered an extension of the executive arms of government. Secondly, perceived complicity in past repression often work to distance the work of the courts from the people  the system is supposed to serve. Further, clearcut disciplinary mechanisms for errant judicial officers has been lacking. This also applies to other mechanisms for transfer which has at times been used as a means of punishing certain officers for their perceived independence. But more important has been the lack of budgetary autonomy meaning that the Judiciary has been treated as a department in a particular “parent” ministry through which it can draw its finances.

The second set of challenges relate to the competence of Judicial officers. Judges are appointed from various practice backgrounds but are expected to preside over a variety of causes.  There is no structured training for instance to update judicial officers whose previous practice was in property law to say human rights, many of the duty stations lack libraries, computers, law reports and judgments research assistance and  recording facilities. This is particularly evident in respect to lack of “knowledge and skills on norms that underpin democratic society”.

Thirdly, the Court system have poor accessibility and resources capacity. Poor people can not access (except of course as provided in the New Constitution) legal aid, court structures, procedures and administration, poor legal literacy and sensitivity to societal demands have worked to hinder the ability of the Court system and the Judiciary in general to serve the interests of  the wider  population.

In undertaking judicial reforms in  Kenya, it is imperative that these challenges should inform the process of transforming our Judiciary into a modern, accessible and democratic institution able to meet the challenges of the 21^st century. It is not useful to change faces, vet existing and new appointments, all very important,  unless the reform of the judiciary is undertaken in a holistic manner. Budgetary autonomy, continuous professional training, legal aid, provision and improvement of physical infrastructure and uptake of advances in Information Communication Technology will go a long way in bringing the desired desired results  from the on-going  reforms.

Essentially then the “aim of  these reform measures is to insulate the judiciary from political  and other illegitimate influences, and to strengthen its influence”. This  must be coupled with the “change in mentality of the judicial officer to instill a new commitment to constitutionalism” as well as enabling the Judges “understand their role and the norms that guide and motivate their work”.

 **

Atunga Atuti O.J is the Chief Executive Officer, The East African School of Human Rights.

Judicial Reform in Kenya- Why Courts Matter

Judicial Reform in Kenya- Why Courts Matter-Part I

by

Atunga Atuti O.J

Deliberations on Judicial reforms in Kenya have  ignored the fact that meaningful reform in any institution of governance has to go deeper than change of guard.  In a way the discourse around Judicial reform has  been a little sterile bereft of important considerations.Why is it that the Institution of  the Judiciary in Kenya  has failed to live up to the expectations of Kenyans? is  it  the people who populate this institution or are there deeper impediments? in this two part opinion, I argue that it is both to do with the people and the structural weaknesses of the Institution. But first- why is it that Judiciaries Matter?

Why is Judicial reform critical to the consolidation of  democracy in Kenya? The first  answer: is Legislative. The framers of the Kenyan Constitution made it difficult (almost impossible )to undertake constitutional amendments.Chapter 16 Articles 255,256 and 257 provide for  the methods of effecting constitutional amendments both of which are difficult to muster. This essentially  informed by the myriad changes that were made to Kenya's Independence constitution to the extent  that  its capacity  to expand space for democracy and promotion of human rights was eroded. It is both hard to  to attain the requisite numbers  to undertake  amendments via parliamentary initiative, so is any attempt through popular vote. In essence the arena for Constitution Amendments will be undertaken via the interpretation of the various provisions by the Supreme Court. Law making  through the Judiciaries is not a new phenomenon. A lot of the amendments to the American Constitution have been made by the American Supreme Court. In situations where certain provisions of the Constitution are not in sync with the aspirations of the  citizens, the Supreme court may be called to give interpretations and especially where parliament as is constituted today and will most likely be after 2012, will not have a dominant party able to undertake amendments on its own. On the other hand when, as is being witnessed today, where Members of Parliament are acting  truant  and miscreant regarding their tax obligations, the Supreme Court will be called upon to protect the Constitution and public interest.

The second reason  is  Human Rights.

The Judiciary is the foremost institution that has the capacity to offer redress for, deal with, sanction and punish perpetrators of gross human rights violations and offer justice for the victims. But the Kenyan Judiciary has often  failed on this account. To take one example, the recurrent clashes that have bedeviled this country since 1992 have never been put to rest due to lack of  a credible judicial process that could offer redress to  the victims and mete punishment to the perpetrators. The present clamour for  “Justice made in the Hague” attests to the  lack of  capacity, confidence and faith in our Court system to  offer meaningful respite for those affected. But more important in this regard  there is the  expectation  that the  Judiciary will re-actively redress  human rights violations and  pro-actively as a key pillar in the  active promotion of social justice by affirming the provisions of our Bill of Rights. The Bill of Rights makes robust provisions in  respect to Socio-economic and Cultural Rights  whose enforcement the Judicial system will be tested. Finally, the judiciary has an important role of  inculcating a culture of human rights through its pronouncements and especially on the newer provisions in the Bill of Rights pertaining to  the rights to health, housing, food as well as a range of environmental rights in era of global environmental change. As it were a number of these rights are currently being tested in the courts of law. Recent causes by the Civil Society actors pertaining to the right to housing  and judicial pronouncements against forced evictions attest to the growing role of the judiciary in the protection and promotion   of human rights.

Further, the Judiciary has a key role to play in promoting  law and order and crime prevention. Many cases of extra-judicial killings for example  have been documented in Kenya over a long time and especially in the past ten years. Many of them have been due to the fact that the Judiciary has consistently not been  forthcoming in  settlement of  disputes, punishment of wrong-doing, instituting a sustainable framework for human security and guaranteeing citizen safety. Effective functioning of  our society and especially that of  government institutions depends on a well functioning judiciary. This has not been the case.  We have several reports among them  the one by the well respected Prof. Philip Alston which have not been acted on. In other countries, such reports would make governments unravel but the mere fact that nothing noteworthy has come out of such well documented and evidential reports only goes a long way to illustrate the  the contention that citizens and institutions of government lack faith in judicial processes. It is hoped that the separation of the Prosecutorial arm from 'mainstream' Judiciary in the Office of the Directorate of Public Prosecutions will work to redress this discrepancy

The huge backlog of cases in our court system, the  lack of predictability, stability and security for property rights and contracts has often been cited as key deterrents to more  foreign and local investments.  Laws exist on economic crimes, corruption, money laundering, tax evasion and organized crimes, which distort the economy and market functioning. These  legal frameworks  in turn depend on courts to enforce them. But available evidence indicate  that the courts have played roles in obstructing the resolution of these cases. Long running economic crimes and corruption cases which  have defied closure and courts have been instrumental in heightening their confusion and complexity.

 Past attempts at effecting Judicial reforms in the so called radical surgery of 2003 while  ostensibly motivated by the   overwhelming desire to deal with corruption in the judiciary that was feeding into the rot in the wider society. This was never to be  because  the Judiciary has since operated in a business as usual manner and any attempts at reforms ended up being an exercise in modernization than reform.

A recent ruling by the High Court on President Kibaki's Judicial nominations further illustrates the often neglected  function of the Judiciary- that of entrenching political accountability and good governance. Courts in this respect perform the role of stopping abuse of office through entrenching due process, providing an avenue for horizontal accountability for those who hold political offices, holding the high and mighty to account on how they expend their powers and responsibilities. This function  better illuminates  how the Courts ought to provide sanctions and entrenching the rule of law. But such well conceived decisions have been more noticeable in their dearth than abundance. In many similar past references the judiciary has acted compliant than questioning. In situations like this, where the legislative, electoral and political class is in flux and is short on morals,  memory and  accountability-short on everything-Courts must step in  by steadfastly demanding transparency in the management of public affairs.

In the ongoing debates  on the reform of the Judiciary, it is important to take into account the multifaceted roles of Courts in promoting  a culture of human rights, redressing their violations, promoting law and order, supporting economic development and poverty reduction and  holding other arms of government to answer for their decisions. Courts must present a bulwark against encroachment of these values by the executive and legislative arms of government as well as other elements in society. The debate on the nominations to fill key Judicial offices has been sterile in respect to responding to core issues that lie at the heart of the  New Constitution in respect to  the reform of this key institution of governance. In essence, the ongoing discourse is producing more heat and dust rather than illuminating the core of our Judicial immolation. The issue was never whether the president or any other arm of government errs in the discharge of their duties but whether the Judiciary has the spine to sanction and  remedy  such situations.

 ****

Atunga Atuti O.J is the Chief Executive Officer, The East African School of Human Rights. email:

eajourna@email.com 

South Sudan: A Precedent for other demands for self-determination?

DOES THE INDEPENDENCE OF SOUTH SUDAN CREATE A PRECEDENT?

 by

Dr. Kithure Kindiki

The birth of a brand new African State, South Sudan on July 9, 2011 marks a legal and political watershed in the African continent. The significance of this event lies in the fact that it adds to some of the other legal and political developments in Africa which suggest relaxation to the widely held view in Africa that borders inherited at end of colonial rule are inviolable. Whether or not the inherited boundaries were optimal, African leaders thought that trying to rationalize them risked continent-wide chaos. Ironically, there have been few African border conflicts since independence, but the number of internal conflicts has been high.

The struggle of South Sudan for self-determination has a history longer than any other struggle in Africa for self-determination. It is rooted in Sudan’s pre-colonial, colonial and post-colonial political and socio-economic structures. Its recent origin coincided with the achievement of independence of Sudan from Anglo-Egyptian colonial rule and it indeed constitutes a resistance to the manner in which Southerners were united with the North under Northern domination both by deceit and force. The first round of the armed struggle continued until the signing of the Addis Ababa Agreement of 1972. The second armed struggle started in 1983 following the abrogation of the Addis Ababa Agreement, the practice of systematic discrimination and denial of equal rights to the South, the imposition of Sharia law as the law of the land binding on all Sudan.

South Sudan’s assertion for self-determination reveals repeated violations of democratic principles, negotiated attempts for settlement and a long history of socio-economic, political and cultural domination and marginalization. The war led to the death of close to 2 million Southerners and the displacement of many more millions. That any effort at resolving this conflict was to be based on the recognition of the claim of the people of South Sudan to have the right to self-determination can only be understood against this background. For the first time, this was fully established in 1994 with the signing of the Declaration of Principles negotiated and supported by IGAD, which paved the way for years of negotiation for the 2005 Comprehensive Peace Agreement (CPA). It is through a referendum held in January 2011, under the terms of the CPA that citizens overwhelmingly voted affirming South Sudan as an independent nation. The question that now lingers is: do the events culminating in the independence of South Sudan create a precedent? Is it likely that we might in the foreseeable future witness more separatist movements?

The answer to both the above two questions are in the negative. To support this view, it is important to understand that there are two versions of self-determination. The first is external self-determination, representing independence for all the people of, separating from an existing State, as is the case with the South Sudan.  The other is internal self-determination for a section of the population of a State, whereby that section of the population continues to enjoy certain guarantees of freedoms, autonomy  and rights, but while remaining for all intents and purposes as part of the mother State.

The right to self-determination is accordingly a right of either the whole people of a State or the section of the population of a State. It is therefore a right that imposes obligation on African States who are bound to facilitate ways for allowing the exercise of that right by their people/s. Accordingly, self- determination can be invoked either by the whole people of a State or by a fraction of it against the State. It is clear that while the first formulation of the right of peoples to self-determination coheres with the principles of sovereignty and territorial integrity as well as national unity of States, the second one, raises the question of whether and how it can coexist with those principles.

It is unlikely that demands for external self determination in Africa will be casually entertained both from legal and political standpoints, as this would generate numerous claims of statehood status even on the most of flimsy grounds. Although the right to self-determination may be exercised in different ways including independence, it must be fully cognizant of other recognized principles such as sovereignty and territorial integrity. And unless solid grounds for creation of new States exist, territorial integrity of States in principle takes priority over separatist, external self-determination. In particular, in the absence of concrete evidence of violations of human rights to the point that the territorial integrity of the State should be called to question and in the absence of evidence that the people clamouring for external self determination  are denied the right to participate in government as guaranteed in international human rights legal instruments, even self-determination claims based fairly reasonable grounds may be turned down, and the claimants asked to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity existing State. The legitimacy of the South Sudan’s external self-determination from what is until July 9 The Republic of Sudan should be understood as a case sui generis- a special case, justified by concrete evidence of long-term flagrant human rights violations and denial to participate in government. It does not create a precedent. 

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Dr. Kithure Kindiki is a Professor of Law at the Faculty of Law, University of Nairobi. He specializes in International Law. He is a regular contributor to the East African School of Human Rights' Journal, The East African Journal of Human Rights and Democracy. ISSN 1682 900X

Media in an Independent South Sudan

  Morning Yet on Creation Day: Media in South Sudan

By Henry Maina

On July 9^th the South Sudan state was born. However, this birth is mediated by global and regional media outlets. This is because the media in the New State is ill-equipped, undeveloped and least supported. The situation did not change much even with the progressive 2005 Comprehensive Peace Agreement.

The all-important self determination agenda has not fairly been grounded in the development of the other fundamental issues of rights to information, media diversity and plurality. It is already an irrefutable truth that a free and independent media can protect people and promote sustainable development. So why hasn’t the media sector taken off in the South Sudan?

Perhaps because the existing media is still seen not as a critical sector necessary for not the New State’s collective development but also for the individual South Sudanese growth and self-actualisation, the media in the South Sudan is still seen just as a lapdog. Consequently, the Government of South Sudan starts a new era without a comprehensive media and information policy. In fact, most states, except Western Equatorial State, lack any policy and legal guidelines on freedom of information and freedom expression in general and media freedom in particular. They have continued to operate in the Pre-CPA era.

Three pieces of draft laws developed in 2009 with by media stakeholders with the guidance of ARTICLE 19 continue to be held in some deep freezer even after they were initially approved by the cabinet. Similarly, cases are rife of security officers in some states harassing and intimidating journalists and media workers under the guise of implementing the 2003 SPLM/A Administrative Orders. The situation was at its worst during the election period and the subsequent referendum as all local media outlets were pushed to act as mouth pieces of the ruling party –SPLM candidates.

Three reasons have been advanced by commentators for the current situation. First, the government of south Sudan is overwhelmed by the developmental needs in the country. This means it has to give priority to health, education, agriculture, infrastructure and security. Media is thus a distant other given meagre resources. Second, there is limited knowledge and understanding of how the media could play a critical role in the development of the country and give voice to citizens previously unheard because of subjugation. Third, most security officers in the South Sudan continue to brazenly disregard or selectively implement the Interim South Sudan Constitution. In fact when it suits them they have applied the 2004 Press Council Act passed by the National Congress Party-led and dominated parliament in Khartoum. For instance, the editor-in-chief of the Citizen newspaper, Nhial Bol, has in the past three years been arrested and prosecuted under this retrogressive law.

At least two reasons are important for the Government of South Sudan to embark on an aggressive process to develop the media sector as seeks to fast track development in the new African state. The New State under President Silva Kiir is faced with a daunting task of mobilising each and every South Sudanese to step up and participate in the development of their country. Thus, it would be pretentious to believe that such a feat could be achieved without a clear and unequivocal support to local and national media. Citizens must be clearly informed to be able to assist the government in developing key policies and developing immediate priorities for the young nation. This puts clear a case for the development of a sustainable public media- television, radio and internet-based media.

Such a media could be deployed to inform the world of the virgin development and investment opportunities in the country. Public media could also be used in rolling out mass programmes on public health, basic education given that the state would take over five years before it has the requisite personnel in the health and education sectors.

Second, given that the South Sudan is well endowed with natural resources-forests, oil and plenty of arable land, how the state appropriate these resources for the better of all citizens can only be known through the existence of a free, independent and pluralistic media. Like all other countries, there are going to be competing trading groups and countries that would like to exploit the resources. To ensure the government get a fair share of returns, the media is critical as all agreements need not be secretly signed and agreed upon. Oil and timber need not turn into the curse. They must remain the chattel that will lighten the development of the new state.

Thus, as we usher the new state at least some points of quick action. First, the President Salva Kiir Mayardit should rally his legislature to immediately pass the Right to Information Bill, the Public Service Broadcasting Bill and the Broadcasting Frequency Management Bill. These laws will give the new government a clear and progressive legal and policy framework to not only enable the sector thrive but help the government communicate its policies and development priorities in a coherent manner.

Second, media stakeholders should step up their efforts to popularise the Code of Ethics and Conduct for South Sudan journalists and recruit as many media actors to voluntarily submit themselves to scrutiny and accountability.

Media development agencies should pool resources to establish a sustainable media school in South Sudan with a two-pronged curriculum- fresh training course and refresher for practicing journalists, editors and media professionals.

The birth of South Sudan has come at the right. The pregnancy has come to term. We just need the proper mid-wife in the name of government and the parents who are the citizens of South Sudan are willing to discharge their responsibilities. These responsibilities include those of media practitioners reporting accurately, timely priority issues facing the New State.

Henry Maina is the Director, ARTICLE 19 Eastern Africa. ARTICLE 19 is the lead international human rights organisation on freedom of expression. It has worked in the Sudan for over two decades. This story is part of a forthcoming publication ' Perspectives on South Sudan Independence' commissioned by the East African School of Human Rights. Contact email.henry@article19.org or eajournal@email.com

South Sudan Independence implications for Regional Security and Diplomacy

Impact of South Sudan independence on Regional Security and Diplomacy

 

Ambassador Boaz K. Mbaya

 

The independence of South Sudan on the 9^th July, 2011, is expected to bring to a close the systematic discrimination and subjugation her people have endured since independence. When Sudan became independent in 1956, it immediately became clear that certain elements in the Arab and Islamic north were not keen on religious and racial harmony. They quickly embarked on systematic religious and racial segregation and discrimination against Southerners. Boxed into a corner, Southerners began a struggle for equality and equal opportunity. Significantly, their struggle underlined the extent to which religion and race dominated national politics in Sudan. Attempts to resolve the conflict resulted in many agreements often dishonoured by Khartoum including Anyanya I and II. After decades of struggle, the Government of Sudan and Sudanese Peoples’ Movement/Army (SPLM/A) concluded the Comprehensive Peace Agreement early 2005 which took effect in July of the same year, thanks to the efforts of IGAD, the African Union and the International Community. The commitment and role of neighbouring countries such as Kenya were crucial in the process.

 

The most determined effort by the South to assert its rights started in earnest in the early eighties when Col. John Garang defected from the Sudanese Army to form the SPLM/A. Initially, the movement sought to fight for equal citizenship and opportunity within a “New Sudan”, but when it became clear that fundamentalists in Khartoum were pushing for Islamic law in the country, the largely Christian South began to seek independence to secure their rights. The conflict took more than two decades to negotiate resulting in the Comprehensive Peace Agreement which provided for an implementation face of six years. It also provided for a referendum for self determination by the people of South which they did with an overwhelming vote on 9^th July, 2011. The result did not surprise observers and could well be the most successful conflict resolution effort through a process designed and managed by IGAD, with the support of the international community.

 

The independence of South Sudan will come as a welcome relief to a region known for conflict, insecurity and political instability. However, until the outstanding issues are resolved, the threat of war will not completely evaporate. Issues such as; the status of Abyei, sharing of resources notably oil, and, in its absence, non availability of export route for the South require immediate action. That notwithstanding, South Sudan’s independence is likely to cause a shift in regional politics and diplomacy. South Sudan is bound to look southwards to the East African Community for long term engagement, but maintain cooperation with the North, in the short term, to secure international markets for her oil via the existing pipeline infrastructure in the North. She will certainly seek membership of the Community almost immediately. Such move will provide her with a new platform on which to launch her foreign policy adventure as a new actor of international law. It will also strengthen the Community’s integration process and consolidate its role as a building block for the proposed African Economic Community.

 

It will be interesting to see how South Sudan treats the issue of the Nile waters as a riparian state. The 1929 Nile Treaty between the United Kingdom on the one hand and Egypt and Sudan on the other and gives them a disproportionate use of the waters of the Nile. Two things may happen. South Sudan could opt to stake claim for similar quota as the North or join the other riparian states to the south and Ethiopia to the east in challenging Egypt and North Sudan on the 1929 Treaty urging them to accede to a new treaty already concluded by the by former on the equitable use of the Nile waters. Either scenario has implicationsi for South Sudan. Chances are that South Sudan will go along with countries with whom she is likely to pursue her foreign policy objectives more cordially to secure her national interest.

 

Perhaps, the most important development will be how South Sudan deals with the aftermath border issues with her neighbours. Abyei presents the most sensitive issue for attention by the new nation. The dispute has the potential to cause war between the North and the South. A separate referendum scheduled to place on the 9^th January, 2011, was shelved due to sharp differences on the voters register. The situation recently degenerated when the North invaded Abyei prompting sharp criticism by the South and the international Community. The UN Security Council demanded an immediate withdrawal. The stand off could well define the short term relations between Khartoum and Juba.

 

Further south, South Sudan faces unresolved border issues with Kenya. Two areas stand out. The Elemi Triangle which has been under Kenya’s administrative control since the 1930s will be, particularly, tricky deal with. Kenya’s involvement emanates from a decision by two former British Governors in Khartoum and Nairobi when the former requested his counterpart in Nairobi to look after Elemi Triangle because the area was too remote to control from Khartoum. The status quo has been maintained by the independent governments in Sudan and Kenya till now whereby the latter maintains administrative and security outposts. Attempts to resolve the matter in the intervening period never took off because of the war in the south. This is clearly a matter that both Kenya and South Sudan will need to address immediately through negotiations and arbitration.

 

Finally, South Sudan and Kenya need to resolve issues surrounding the remainder of the common border up to the border with Uganda. The international border lies about thirty kilometres north, parallel to Nadapal. Initially the border had no issues until the SPLM/A intensified its war with the North. In the past, Sudan claimed that it was impossible to police the border due to SPLM/A war. It, practically, remained in limbo, a no man’s land. The area, however, provided sanctuary for SPLM fighters away from northern forces. This made it easy for Kenya, a major player in the peace process, to challenge any accusation of support for the SPLM/A. Kenya and the South Sudan understand the situation very well. On that understanding, it should not be difficult to delineate the border, install beacons and secure it. It is in the interests of both countries to undertake this exercise immediately South Sudan gains her independence to facilitate meaningful bilateral relations and consolidate regional security and stability.

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The writer is Chairman/CEO, Centre for Policy Analysis. This Article is part of a forthcoming publication 'Perspectives on South Sudan Independence' Commissioned by the East African School of Human Rights.E-mail: bkmbaya@hotmail.com. Send  your comments to eajournal@email.com

South Sudan and River Nile. Which Way Forward in the Nile Treaty Agreement?

South Sudan and River Nile

By

Dr. Kasaija Phillip Apuuli

On the 9 July 2011, South Sudan will become the newest member of the international community. In the January 2011 independence referendum, the region overwhelmingly voted to become independent. The region is rich in natural resource wealth in form of oil and timber among others. In addition, it is also a riparian state of the river Nile. This short opinion addresses the challenge South Sudan faces in the management of river Nile. This river it must be noted is a subject of many bilateral and multilateral agreements signed by Sudan on behalf of all the Sudanese people. Some of these agreements have caused a lot of rancour among the Nile Basin states because they favour Egypt and to an extent Sudan on the utilisation of the waters of the river. How will independent South Sudan behave? Will it attempt to maintain the status quo which favours the lower riparians in the use of the river? Will it renounce the agreements reached by the Khartoum government on the use of the river? Or will it throw its weight behind the upper riparians (including Burundi, Rwanda, Tanzania, Uganda and Ethiopia among others) who have been seeking to adopt the principle of equal utilisation of the river which states that riparian states should use an international watercourse paying due regard to the rights of other riparians. This principle is the opposite of what Egypt and to an extent Sudan have been advocating. The two have argued that the upper riparian states in the Nile Basin should recognise the historical rights which the lower riparians have over the river as conferred by the 1929 Nile Waters Agreement signed between Egypt and the British colonial administration.

River Nile

River Nile is the longest international water system in the world. It flows for 6,700 kilometers through ten countries in North-Eastern Africa before reaching the Mediterranean Sea. The Nile River is composed of two tributaries that converge at Khartoum Sudan. The White Nile originating in the Equatorial lakes region of Central Africa contributes 14% of the waters of the Nile while the Blue Nile originating in the high mountains of Ethiopia contributes 86%. The ten Nile Basin riparian states have a total population of 336 million of Africa’s total of 800 million, and a catchments area constituting 10% of the continent’s land area

Tensions over the Nile have of recent increased as a result of spiraling demand for water to generate hydroelectric power, for drinking and irrigation amid acute poverty, food insecurity wrought by cycles of drought and famine, and growing population. But one of the most contentious issue about the management of River Nile has been the agreements that govern its use. For over seven decades between 1890s and 1960s, the British erected a legal infrastructure that subordinated the rights of its East African territories to use the Nile waters to Egypt, ensuring that no future development deemed to reduce the flow of water to Egypt would be undertaken. For Egypt, control of the Nile is a matter of life and death. Egypt’s historical rights claims over the Nile stem mainly from the Nile Waters Agreement of 1929 which was signed between Egypt and Britain through the Exchange of Notes, binding the latter, and by extension all its colonies, to refrain from any action regarding the Nile that would diminish the volume of water that reached Egypt. Its most important clause provided that “no works or other measures likely to reduce the amount of water reaching Egypt were to be constructed or taken in Sudan or in territories under British administration without prior Egyptian consent.”

When Sudan got independent, it sought to review this agreement. The 1959 Agreement between Egypt and Sudan forbade upstream nations to conduct any activity that threatened the water quotas of Egypt and Sudan, and prohibited the use of even one litre of water by the upstream riparian states. The two agreements (1929 and 1959) have been contested by the other riparian states.

Over the years the Nile Basin states have sought to establish arrangements that would promote the equitable utilisation of the river by all. Many of them however, have not succeeded because of the objections by Egypt and to an extent Sudan. The most recent is the Cooperative Framework Agreement (CFA) 2010 which has been signed by the majority of the upper riparians, but Egypt and Sudan have refused to sign because it does not recognize their historical claims on the use of the river. This has increased tensions with some states like Uganda purchasing military hardware ostensibly to inter alia prepare to defend its interests in the river. Southern Sudan independence comes at a time when tensions are rising in the Nile Basin. If it decides to uphold the position claimed by Egypt and the state of North Sudan that the two have historical rights over the use of the river, it risks offending the upper riparian states who hosted its refugees during the war and who applied pressure for the successful conclusion of the Comprehensive Peace Agreement (CPA).

If the state of South Sudan decided to throw its weight behind the position of the majority of the upper riparian sates that the Nile Basin states should utilize the river equitably, this again will annoy Egypt and the State of North Sudan. Because the two states (North and South Sudan) are contiguous, tensions could escalate at the common border. Moreover, Egypt has over the years during the conflict in the Sudan worked tirelessly to maintain the unity of Sudan. It feared an unstable entity in the south would inter alia pose a threat to its supply of Nile water. Egypt is worried that an independent South Sudan will join the groundswell of states objecting to the standing agreements.

In the final analysis, the state of South Sudan faces the challenge of balancing its own interests to use the river Nile for the benefit of its people, with the interests of other riparians especially Egypt and North Sudan, who may try to cause mischief for the new state, should it adopt a position that does not favour the two in as far as the use of river Nile is concerned. 

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Dr. Kasaija Phillip Apuuli teaches in the Department of Political Science, Makerere University Kampala, Uganda and Chairman Board of Directors, The East African School of  Human Rights [kasaijap@yahoo.com] and eajournal@email.com

This Story was first published in the Financial Journal of  the  East African Standard on Tuesday 12th July 2011