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A Short Reply to Mr. Mousa M. Elbasha By Charles Deng

8/5/2005 9:28 am

In an article titled The Legal Background of the Principles of Self-Determination and the Illegitimacy of Secession, Mr. Mousa attempts to argue against the RSD for the people of the Southern Sudan under Machacos Protocol. Mr. Mousa cites a number of international and regional conventions, and further argues that the principle of RSD is a right of colonized peoples, peoples inhabiting Trust Territories and other non-self-governing territories under international law, as provided under the Charter of the United Nations and other international conventions. Dr. Mousa concludes by stating, Secession may be considered legitimate only if it is formally accepted by the governing authority of the particular independent state in which such action is proposed and if such acceptance is then ratified by popular vote of all citizens of the said state. He therefore states that RSD sought by southerners, exclusively for their region is illegitimate, and that the military dictatorship of General al-Bashir is not representative of the peoples of Sudan and has no legitimate authority to accept the terms of Naivasha peace, and that the referendum provided for to determine the future of the Sudan is invalid because only residents of southern Sudan are allowed to vote.

I do not have any quarrel with Mr. Mousa citation of the provisions of the international and regional conventions, the illegitimacy of the General al-Bashir government, or of the lack al-Bashir power to act on behalf of the Sudanese like him. My only quarrel is summarized as follows:

First, I deplore the effort of Mr. Mousa for a job so poorly done and researched. Citing provisions of conventions is not meaningful if they are not considered in the light of the facts obtaining on the ground in the Sudan in the last fifty years. As such, Mr. Mousa leaves his readers wondering as to the extent of the application of these provisions to the situation in the Sudan since 1956. Indeed, first year law school students could have done a better job than Mr. Mousa, a scholar who holds an academic title of a PhD.

Second, as controversial as they may be, the facts of the last fifty years could be used and argued in such a way to justify RSD in the manner precisely provided under the cited conventions. It is a well-known fact that Sudan has never been united under one ruler since time immemorial. There have been, throughout the history of Sudan, isolated fractious kingdoms such as the ancient Christian kingdoms, the kingdoms of Musabaat and Sennar, the Turkish Egyptian rule, the Madhya, and lastly, the Anglo-Egyptian rule. Neither of these systems could claim at one time that it had brought the whole Sudan under its rule, except for the British colonialists. Even the British had to struggle for several years to bring the territory now call the Sudan under its effective rule. In the process of doing that, the British colonialist had to introduce the closed districts ordinance, and until that time they were thinking of annexing the South to greater East Africa. However, their huge strategic interest in the Suez Canal made them to reverse themselves in 1947 and accepted the untenable unity between the North and the South.

Third, al-Bashir government came to power through a coup, not instigated by southerners, but by the squabbling Arab-Islamic elite who has exclusively arrogated power and wealth to themselves and marginalized the rest of non-Arab Sudan population in the last fifty years. It is the power struggle between the members of Arab-Islamic elite that gave al-Turabi/al-Bashir the opportunity to grab power in order to stop the implementation of Garang-AlMirghani Peace initiative of 1988. Southerners had no role in al-Bashir coming to power, nor did southerners have any role in the earlier al-Nimeiri or Abbouds coups. As the great thinker John Garang used to saywe are practical politicians not revolutionary romanticists Hence, southerners have dealt with each of these successive Khartoum governments, as governments of the day. They did not care about their legitimacy or how representative they were of the Arab-Islamic elite. For the southerners that has been an issue of that elite.

Fourth, I wish Dr. Mousa could go back to the drawing board, and consider the applicability and non-applicability of these conventions and the tenets of international law to the issue of the Sudan, in the light of facts obtaining in the Sudan. The inviolability of the colonial borders sanctioned by the defunct OAU and its successor AU is shrouded in illegitimacy, because OAU itself was a club of dictators, and I, for one, contest their legitimacy to decide on behalf of those us who were suffering from their dictatorial rule. Moreover, Mr. Mousa should consider other international law principles that provide that the ability of any new government to extend its control over the territory and for a reasonable period, without any resistance shaking its legitimacy, is enough to have such legitimacy and representation in the eyes of the international community. Al-Bashir has been in power for more than sixteen years, and the Arab-Islamic elite has not even attempted to remove. On the contrary, it is southerners who fought al-Bashir for fifteen years.

Fifth, I believe Dr. Mousa is of the mark when he splits hair by making distinction between RSD and secession. Dont you agree with me that RSD leads to secession in some of the cases you yourself recognized as legitimate such as the agreement of a sovereign country to break-up? Is what North has been exercising in the South for the last fifty years not colonialism? If not, as would be your obvious response, what is the definition of colonialism in your view? Dont you think that the colonialists for their interests drew these boundaries for Africa, without regard to cultural, historical and geographical links between the peoples brought together by mere chance? What is the legal value of the erstwhile OAU and the present AU conventions in legitimizing these colonially drawn boundaries? Should not the newly independent states of Africa, or, for that matter, peoples all the ex-colonies, be allowed peacefully to redraw the colonial borders for the benefit of peace and rapid socio-economic advancement of the peoples of Africa or those ex-colonies?

Sixth, the conventions Mr. Mousa so heavily relies upon have been frequently short-circuited since the collapse of the Soviet Union and the collapse of Yugoslavia. This raises legitimate question such as: Was the velvet divorce between the Czechs and Slovaks tainted, although it was by mutual agreement? Was NATO acting illegally by forcing the break-up of the former Yugoslavia, and forced Serbia out of Kosovo? With Mr. Moussa fine distinction between RSD and secession, would still Pakistan have a legally valid claim over Bangladesh?

Finally, Mr. Mousa advances the thesis that secession cannot be considered valid unless the governing authority of such state formally approves it and is ratified by popular vote of all citizens of the state. If that was the case, Bangladesh, Croatia, Slovenia, Macedonia, the Baltic States etc. are illegally in existence. According to Mr. Mousas interpretation of the conventions, the Russians, for instance, should have had a say by ratifying the independence of the Baltic States, or Serbia should be allowed to vote with the Kosovars in deciding whether Kosovo should be independent or not. I do not see therefore northerners participating in the southern vote provided by the Machacos Protocol. Period.

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