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Sudan’s Exclusive Comprehensive Peace Agreement and what it meant

A street in central Khartoum. Photo: AFIS
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A street in central Khartoum. Photo: AFIS

Is there any likelihood of peace being restored to the Sudanese region — the Sudanese state in the north and the newly constituted state of South Sudan declared 9 July 2011? Al-Harith Idriss, analyst and former ambassador, looks at the latest developments in international efforts to restore peace in the Sudan region.

‘…Peace… is certainly a far more complex affair than war. Hobbes bleakly defined it as a period when war was neither imminent nor actually being fought…but peace as generally understood today involves much more than this. Positive peace implies a social and political ordering of society that is generally accepted as just’ (Michael Howard: The Invention of Peace, Reflections on War and International Order, Profile Books, London, 2000).

The CPA 2005: There is no hard and fast rule whereby comprehensive peace agreements have been defined (hereinafter CPA). As such, there is no final definition of CPA. CPAs‫ ‬have been defined in many ways with relative discrepancy and their comprehensibility is attributed to two factors: firstly, the involvement of the major parties to the conflict in the negotiations process; secondly, the inclusion of the substantial issues that underlie the conflict in question in the negotiation process. Henceforth, the peace process and the outcome of the negotiations thereof are considered the key factors that shape the nature of the comprehensiveness. Admittedly, in this respect, the realisation of comprehensive peace does not matter in depicting a peace agreement as comprehensive; what matters most according to academic definitions is the inclusivity of the major parties to the conflict (Lenore Vander Zee et al).

The US Institute of Peace (USIP) approach to comprehensive peace agreements seems to have preferred to define a CPA as an agreement “signed by the major contending parties ending inter-and intra-state conflicts worldwide” (op cit, p3). What matters here is the final outcome which is the ending of the conflict; in the Sudanese case this means stopping of the civil war.

Definition of peace Agreements
Christine Bell has defined a peace agreement as a ‘substantive blueprint with pre-determined elements that constrain local actors’, whether they are aware of the mechanisms of constraint or not’. Peace agreements normally have a concomitant causal relationship with, and they are a product of, peace processes. They are according to Christine Bell poised ‘to resolve the core issues through a direct pact as contracts’ or ‘…broader normative frameworks that will assist on-going conflict resolution’ (Christine Bell: 2008, p19).

However, the CPA was the archetype post-war peace-making agreement between the state and a non-state group. It has provided the main belligerent non-state group with an autonomous regional status and a partnership of the Federal Government. The CPA that ended the longest violent conflict in Africa that continued over more than 50 years; through the frameworks designed ‘to accommodate the competing demands of the conflict’s contenders’; has apparently approached negative peace in its Greek sense of the world ‘Eirene’, which is a relative equilibrium and period of tranquillity between two wars, or the UN’s approach of taking ‘action to bring hostile parties to agreement, essentially through such peaceful means as those stipulated in Chapter V1 of the UN Charter .The CPA has focused exclusively on a top-down negotiation process including the armed groups and the State; and adopted a bottom-up solution premised not only on a regime of financial incentives but secession.

The peace deal was launched by broad influence from liberal western circles as an instrumentality heralding the break-up of the ‘old’ Sudan when the war failed to effect a regime change, and the regime failed to achieve a decisive military victory over the SPLM/A. The peace brokers and the IGAD’s friends had ignored this aspect that culminated into what John Young saw as the failures of liberal peace-making in Sudan.

Comparably, in eight post-conflict peace agreements in Africa and elsewhere, eg, Angola in 1991, Mozambique in 1992, Liberia in 1997, and Ethiopia in 1991 presidential and legislative elections were conducted, with exception of the CPA, where a proration system was applied. This means depriving the excluded non-CPA parties from having access to post-war, democratic governance, transparency and accountability, to rectify the under-representation of other social and political groups, aggravating the possibility of an effective non-CPA opposition in the National Assembly a part from the limited marginal representation of some of the NDA groups. The taxonomy of similar African peace accords was successful compared with the CPA; they have involved most of the parties to the conflict. As Robert Cooper has put it ‘securing lasting change is something that require going beyond negotiation about interests’ (Robert Cooper: 2003).

The post-CPA settings had under-performed in respect of regulation of the incompatibility over many key issues including demarcation of new borders, or the establishment of a new peace order conducive to radical, political, economic, legal and cultural restructuring. The optimal peace relationships are not confined to the ‘bullying parties’ from a military perspective as Pax Americana has suggested, that is a bonus-driven cessation of hostilities by the arithmetical division of power and wealth amongst the fighters involved in the long-running war, with abysmal disregard to deep-seated inequalities, governance, promotion of democracy and creating a culture of peace to minimize recourse to violence or even organise workshops for the Islamists to help unlearn their inherent recourse to ‘violent reform to strike those who resist [their] innovation’ (National Strategy: 1992-2000).

Be that as it may, it was impossible for the CPA as a blueprint for a new post-war Sudanese order to deliver more than it has been designed for, that is, the bilateral and exclusive agreement for fragmentation of the Sudan, due to the failure of the CPA to offer a comprehensive resolution to the crisis of national identity (Francis Deng: 2010).

The CPA by securing the share of its sole parties has failed to manage the conflicting interests and the collective aspiration of the Sudanese people; leading to the fare-up of a new paroxysm of tribal fighting; in what the marginalised or war-affected areas that became a breeding grounds for and escalation of ethnic or tribal confrontations and arms proliferation among communal groups.

The Sudanese People are now either ‘belligerent’ or ‘bellicist’, responding aggressively to the continuity of dissatisfaction and violently to the status quo, thus, hegemonic regulation and mechanistic distribution of power and wealth have been scanty and conceptually flawed, because, they tended to be a mere means of power maximization for autocracy that was less concerned with achieving the human and state security, let alone the state engagement in realising of peace as a teleological target per se.

It culminated in a disorganised game of power-struggle between the repressive North-centric regime with its highly motivated political contenders and armed challengers in the periphery. There seems to be a total failure of the peace process; peace-keeping, peace-building and/or peace-making if we apply certain methods of lead peace researchers.

Although the CPA after it has been incorporated in the interim National Constitution of 2005 has become a post-war norm or major legal bedrock for peace-making but, it had swung the Islamists back to their comfort zone.  After the South secession it became a proximate ‘casus belli’ that negatively affected the stability and peace dynamics. The basic issue here is how the Sudan can withstand a piece crash? There was no proof that the Sudanese peace process has been built on solid edifice, benefited from hard lessons learned from similar peace processes in Africa or other countries.

Exclusivity and under-inclusivity of the CPA
Rather than recasting the Sudan to the operational drawing board, to promote its post-war brand of multi-racial and cultural identity, the CPA has frozen the post-war Sudan’s political order by tipping the scale towards empowering the two bullying parties; thus creating few winners and marginal majority losers.

The CPA, as modus vivendi, has aimed at resolving core issues that were central and substantial to every Sudanese, but its monopolistic and restrictive new module of peace accord aiming at resolving the shortcomings of nationhood legacy has exacerbated the likelihood of discord by introduction of the legal formula of ‘one country, two systems’ which has entrenched dissention and disaccord among the bullying parties. Yes, the war had stopped but only to be replaced by ferocious political war.

By misjudging the important priority of Darfur crisis, and rather than loosening the tight grip of the North-centric Islamists regime on power, by breaking the NCP’s monopoly on the State’s resources and economic activities, and endorsing a robust and participative democratization process and system of governance, it shored up its ranks, strengthened its power base, and had intentionally weakened the democratic opposition and the Sudanese grassroots by shutting them out of the peace dividends. The CPA in this respect was little more than an inherently monolithic process, confined to as the Americans had designed, the ‘two bullying parties’, to maintain the status quo and its balance of power; till the end of the transitional period in January 2011.

CPA and its power and wealth sharing regime made the national democratic parties look like collaborators in their own marginalisation because they had to accept the agreement reluctantly rather than be seen as nonchalant to the war termination and be in a collision course with the US broker-ship of peace.

It worth mentioning that after the signing of Machakos Protocol; the SPLM had convened meetings about the ‘active participation of NDA in the peace process as the regime in Khartoum does not in principle refuse such participation’. The SPLM had even wanted to make the NDA an essential political alternative within their alliance in the new Sudan. What went wrong then when the CPA was mutually signed?

John Young contended, on the one hand, that ‘the NCP and SPLM leaderships shared with the Americans the same desire to restrict participation narrow the focus of negotiations, give short shrift to democratic transformation and reconciliations….to ensure the that the CPA was not comprehensive’ (John Young: 2012, p9). On the other hand, Alex de Waal asserted that Africa Rights exerted huge effort to expand the range of the tight CPA to include other political actors but their efforts were doomed to failure, without disclosing the side that blocked the expansion of the peace partnership (Alex de Waal: 2013).

The joint Egyptian-Libyan initiative launched in August 1999 has also as a main objective the inclusion of the Northern parties in the peace process with no avail. The CPA had disfranchised more than half a million South Sudanese to take part in the referendum organised in 2011, on the one hand; and requires the deployment of huge numbers of military regiments under the auspices of the UN to keep the peace; on the other the multinational peacekeeping force is still on the ground even though the South has acceded to independence. The CPA as a negotiated settlement for a long-standing intrastate conflict was thus brokered by the US remained influenced by Pax Americana. The American control of the peace process among other things had frustrated the process from shifting to Pax Sudanica, by getting on board more national participants and stakeholders into the peace wagon.

Secession of South Sudan
The CPA has had no mechanism or a strong common meta-legal and cultural forum of boosting the mutual understanding of the parties to resolve differences a part from complaining to the US. The agreement was not only a vehicle for stopping the long-fought war but was a programme for changing the Sudanese order, it enshrined a change of state practice regarding the concept of self-determination which challenged the old African order from a legal and political perspectives. It has also reversed for the first time the established doctrine of ‘Uti possidetis juris’ and the Organisation of African Unity’s State practice pertaining to the inherited colonial boundaries.

The agreement although it incorporates the right of self-determination it has contravened one important aspect of the right in question which is adequate representation of the Sudanese peoples in the post-war government. Although some of the Islamists extremists had commended the breaking-up of the Sudan. It has also neglected the post-secession issues like the state succession in international law and the commitment of the new state vis-à-vis the parent state’s existing commitments.

The CPA by introducing the concept self-determination as the basic vehicle to resolve the long-standing conflict it had marked a distinctive future sweeping change in the existing Sudanese and African order where the  inviolability of the post-colonial regime of ‘Uti Possidetis Juris’ has been reversed.

The introduction of the ambiguous right of self-determination which has developed from political to legal status in modern international law, comparable to its  position during the two world wars period. Recently it became widely invoked especially by ethnic freedom fighters, whose grievances and aspirations for greater autonomy, equal division of wealth, and devolution of power, and reshaping the structure of the existing  African states,  had not being accommodated within the traditional structure of the African statecraft. The right to self-determination, which includes the right to secession, independence and formation of new states, has been accorded to the south associated with popular consultation arrangements, tantamount to internal self-determination.  Francis Deng pointed out that it ranges ‘from degrees of self-determination within the North to a choice between remaining part of the North and joining the South’.

The prime leverage was the introduction of the international concept of the vaguely-defined ‘self-determination’ somewhat anonymous with what Bell has classified as ‘hybrid self-determination’ which was the most categorical element for the settlement of the conflict on the account of territorial integrity; and as such amending the concept of traditional principle of ‘Uti possidetis juris’ without guidelines like those made by Mr Badinter to regulate self-determination in the former Yugoslavia. In this context, the national identity and unity of the territorial state will be re-defined, and consociational government will be formed to accommodate segmental group autonomy, constitutional recognition of excluded groups, political and legal reform conducive to effective participation, robust human rights protection, bi-nationalism; external self-determination and human rights enforcement (op cit Bell: pp106-114).

Within this category, it’s no wonder that a village or town like Abyei can freely decide its future relation-ship with the parent state, The events that have occurred a couple of weeks ago when 63 thousand citizens from Dinka-Ngok conducted self-regulated referendum; declaring the annexation of the area to the Southern Sudan State. Therefore; the CPA, seems to have practically introduced the concept of hybrid self-determination. Since then, power has been disaggregated and dislocated not through a robust multiparty democracy or a system of governance in the North; but by the on-going struggle of the rebellious peripheries. Now the military dispute has expanded to cover the State of Kordofan. Nine out of 16 states in the Sudan, that is around 56percent of the Sudanese landscape, are now considered as war zones. This includes 3 states in Kordofan, 5 states in Darfur and the Southern Blue Nile area.

The concept enshrined in the CPA is flux subject to no limitation or previous pattern; it knows no limitation and no mutual understanding. If nationalism in Europe as Louis Snyder has argued, is a state of mind or strongest emotion owed to the nation state; in the post-war Sudan it has been an unruly sentiment of state of autonomy that cannot be subdued or easily incorporated in the existent pattern of the terminally depleted state, which is controlled viciously by the North-centric Islamists political elite.

It promotes the new ethnic nationalism fomented by the North-centric tendency of domination, it pursues the remaking of the old Sudan and seek the realization of a new promise which is the revival of the pioneer ethnic or indigenous homeland as a stepping stone to the new Pan-Sudanic Sudan. Therefore, this will require the devolution of traditional trappings of sovereignty or statehood to sub-states entities, apparently Southern Kordofan and Southern Blue Nile in addition to Darfur have already become quasi-autonomous regions at least at present.

It seems as if the Sudanese officials had not read or understood the dichotomous nature of the CPA that they signed; in particular the scope of the self-determination or the concept of popular consultation. No word that can describe the existing situation in the Sudan other than depleted sovereignty or statehood. This idea however fair it might be for the victims of inequality and exclusion but, it’s very belligerent in the sense that it typifies the ethnic groups, the beneficiary of the self-determination which is perceived as a non-subversive activity but a legal entitlement. In the case of Darfur it paves the way for restoration of its past sovereign status because since the 16th century it was recognized as regional and international sovereign player. It has been forcibly annexed to the riverain Sudan by the Anglo-Egyptian condominium in 1918. Where as the concept as it is enshrined in the CPA was a vehicle for empowerment and enfranchisement for the South and its ethnic allies in the periphery; the peace sceptics amongst the NIF regime considers it ‘per se’ as a major challenge to the regime’s existence.

The agreement failed to make the South & North -who were coercively summoned to the peace negotiations- surpass their mutual ideological antagonism and deep-seated distrust. Apparently, the agreement has not envisaged a clear-cut and mutual peace-making process, bridging the hatred gap be it cultural or prejudicial. This open-ended nature could lead in future to a sort of confederation when the warring mentality comes to an end setting the course of the 2 states to consider mutual benefits and common interests. In other words; when the nationhood fervour premised on ethno-nationalism recedes, and the statehood stage premised on mutual interests sets in, both Sudanese entities will ultimately seek functional interdependence and pragmatic détente.

The benchmark of attractive unity
The Interim National Constitution of the Republic of the Sudan, 2005, has enshrined and affirmed the right of the peoples of Southern Sudan to determine their future status in article 219. This constitutional right should be exercised through a referendum. Apparently the two parties must have known beforehand that the general rule was that unity was not at all attractive and therefore it was no wonder that the people of Southern Sudan at the end of the interim period they didn’t confirm the unity of the country by voting for secession as an ultimate constitutional right provided for in article 222(2 a, b).

The CPA had failed the test of unity in diversity. It has been stipulated that efforts should be made to make the unity an attractive option for the South. The attractiveness of the unity has been provided for in article 221 (3) of the Interim Constitution to urge the parties to the CPA to work during the interim period with the independent Assessment and Evaluation Commission to ‘improving the institutions and arrangements created under the Agreement and to make the unity of the Sudan attractive to the people of Southern Sudan’. Francis Deng revealed that the formal discussions about the repercussions of self-determination and forthcoming secession have started too late in 2009. He understood it that the ‘burden of making unity attractive lies with the North’.  Undoubtedly, the ‘attractiveness’ criterion, and the importance of the North to be attractive to the Southerners was subjective and mystical. It combines both an aesthetic and political overtones. Admittedly, it hasn’t addressed the attractiveness of unity benchmark with a view to mitigating the reciprocal hatred, raising the level of mutual trust and enhancing the social capital that have been impaired by the long duration and the intensity of the civil war (Elbadawi I A 2005).

Mr Alan Goulty, the former British ambassador & Special envoy to the Sudan perceived that Machakos protocol signed in 2002, had committed the parties to the accord and the international community to making unity attractive to the Southern Sudanese; and that ‘the agreement was a part of a package; it lays the basis for a comprehensive settlement, it establishes a democratic government and alleviates the poverty rigour of the marginalised areas affected by the war’ (Alan Goulty: 2002). The CPA was riddled with reciprocal distrust and the attractiveness test during the interim period was said to be introduced by the northern party. The southerners mocked it as ‘political niceties’ or ‘diplomatic fallacy’ and as such ‘too good to be true’, but eventually beauty is always in the eye of the beholder (Anders Breidlid et al 2010, pp310-311).

Andrew Natsios, the US Special Envoy to Sudan -2006-2007, wrote that the NCP leaders insisted in private and public after the signing of the agreement to make unity attractive. He further stated that each of the Northern and Southern parties had deemed it to be the responsibility of the other party. President Bashir shrugged it off as the responsibility of the western donors (A. Natsios 2012, p164). However, the GOS and the International community’s input in this regard was at best mediocre or naught.  As the Protocol was drafted by the Americans, it is palpable that the drafters had manipulated the piece process by confining it to the Bullying parties and shutting out what Ambassador Alan Goulty described as non-IGAD parties, in other words, the war negative impact as a destabilising factor of the solid progress of the Sudanese democracy was not reversed exacerbating as such its ‘diminished legitimacy’ and short-lived cycle.

Peculiarity of the legal regime
It has reflected its inherent shortcomings in the Sudanese statecraft; its peculiarity represents the creation of 2 semi-sovereign and fully sovereign systems side by side without sufficient terms of reference or solid background for resolving misunderstandings and soothing the rigour and ambiguity of this novice regime. The ensuing peace dividends, by and large, have been confined to the two warring parties to the conflict: the government and the SPLM.

The settlement has excluded the national parties, secular stakeholders and civil society in both the North and the South. The technical team and international lawyers who drafted the CPA, might not have realised the magnitude of ‘Irreversibilities’ and ‘disequibria’ of the social, economic and political order, shaped by the long-war period, and its impact on the ethnic composition and gender in the Sudan, in particular the war-ridden and new IDPs make-shift camps across the Sudan. The local communities have been shattered, livelihoods have been disrupted and entire villages and indigenous environment have been destroyed, beyond any repair.

The CPA and human rights
The post-war amended constitution of 2005 has enshrined a bill of rights and the international standards of human rights. The promotion for human rights project was a non-starter; on the contrary derogation persisted, and the rule of law hasn’t materialized; the human rights rhetoric during the interim period would have been appealing from a perspective pertaining to the long-standing fighting for freedoms and human dignity. The human rights uncompromising rhetorical force was forestalled at the time to challenge the legal status quo, from a juridical and normative perspective. Its normativity could have formulated a solid basis for architecting alternative institutional practices like entitlement systems or institutionalizing an effective legitimate command of entitlement to basic needs that are legally attainable in an oil-producing country.

Therefore the agreement didn’t substantiate the realization of human rights and abstained from challenging the scanty judicial machinery to help achieve the qualitative shift from moral plane to the legal plane like courts decisions, for human rights to become legally enforceable entitlements and action-oriented. Had that aspiration been achieved it would have reduced impunity and the state autocratic trends, it will engulf the void between mutation from empty legal rhetoric to empowered society that renders the basic needs and welfare aspirations a fact of real life protected by due process of law.

The border deadlock
The secession of Southern Sudan has generated large-scale relocation of thousands of people on ethnic grounds in the two Sudans. Our rural area in the Sudan, El-Jebelein, in the Southern White Nile has now become the nearest locality to the North-south borders; accommodating thousands of Arabs and pastoralists who either lived permanently in the South or had unencumbered access to it. Not only the rigid borders concept could affect grazing rights for the pastoral Arabs of Messeiria in Southern Kordofan, it has already affected sedentary Taaisha and Nazzie, and the roaming Rufaa tribes.

With the expulsion of thousands of pastoralist Mbororo-Fulani from the South to Jebelein area adding to the gruesome realities of secession, the situation of the contiguous zones, border communities, and the forcibly emigrated citizens from the north to south and vice versa do need to be addressed to alleviate the rigour of rigid borders until they are softened. The drastic embargo regime applied by the GOS, has impacted smooth ‘laisser-faire laisser-passer’ of the border trade, the movement of chattels and the existing and mutual economic benefits. However, although recently the bilateral agreements between the two Sudans have been activated, and the dire situation is eased, but their smooth and long-term implementation remained to be seen.

Recently the area received thousands of Southern Sudanese IDPs in the aftermath of the sorrowful events in the South Sudan and inter-ethnic killings.  Henceforth the uneven distribution of access to welfare, wealth and the development schemes had fanned further regional political disgruntlement, over the time, developed into an ardent pursuit of secession or legitimation of regional disparate identification.

The post-independence and ethnically divided Sudan mirrored the deep regional disparity between a core-dominating North or riverain centrism and a disenchanted periphery. The inherent exclusionary aspect of the agreement has only sharpened the bitterness of economic disparity which had already led to the publication of the black book years before it has been signed. The lack of useful interdependence and functional regional integration had weakened the nation’s social cohesion. One can argue that the post-conflict power and wealth-sharing regimes, especially those associated with ethnically-defined peace agreements, are not likely to lead to sustainable peace.

You all remember the military confrontation in Southern Blue Nile and South Kordofan areas that took place two years ago, which are good examples of the post-war relapse as a phenomenon discussed in the works of Paul Collier where a large number of negotiated peace settlements tend to have a history of high risks of relapse.

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Author: Editor

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