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
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