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11/22/2005 7:50 am


Part 2

III. Terms of Reference

The Parties Sudan Liberation Movement/Army and the Government of Sudan (SPLM/A and GOS) to the Comprehensive Peace Agreement (CPA) met in Nairobi between March 10-12, 2005 to agree on the terms of reference for the Abyei Boundaries Commission (ABC), under Abyei Protocol (the Protocol) at Naivasha May 26, 2004, and as modified by Abyei Annex December 17, 2004, as follows:

A. Mandate: The area is defined in the Protocol under article 1.1.2 as The area of the Nine Ngok Dinka chiefdoms transferred to Kordofan in 1905. The ABC shall confirm this definition.

B. Structure: Pursuant to article 5.2 of the Protocol, the Abyei Boundaries Commission (ABC) is composed as follows:

(i) One representative from each party, the GOS and the SPLM/A.
(ii) The parties would ask the USA, UK and IGAD to nominate five impartial experts knowledgeable in history, geography and any other relevant expertise. ABC would be chaired by one of the five experts;
(iii) Each party will nominate two from present two administrations in Abyei area;
(iv) The GOS shall nominate two from the Messeriyya;
(v) The SPLM shall nominate two from the neighboring Dinka tribes to the South of Abyei area.

C. The Rules of Procedure: (see the Report).

IV. Land Occupation, Land Rights and Land Use (Appendix 2)

The ABC began its deliberations by assessing the principles of law applicable to the territorial boundaries between the Ngok Dinka (who were in Bahr-el-Ghazal) and the Messeriyya (who were in Kordofan) in 1905, especially the two communities effective connection to land is evidenced by established land use patterns. The ABC therefore considered it advisable to take into account land rights as opposed to land ownership by the communities. The former is more inclusive and may entail multiple forms of occupation and use rights, including but not limited to settlement/residential rights, grazing rights, watering rights, hunting rights, fishing rights, initiation sites, crop farming rights, burial rights etc. It also accommodates conflicting, overlapping or shared rights in land, including commonages.

Land ownership as understood under transplanted official colonial legal system that was inherited at independence tended to create two principal divisions:
(i) The so-called Crown/State/Government land ownership that may be occupied and used by private persons or communities short of ownership; and
(ii) The private freehold or leasehold to natural or juristic persons.

Under this paradigm, customary and/or established use is not considered to be ownership. As such pre-colonial forms of land rights were subordinated to the colonial model by the denial of indigenous peoples understanding of ownership and imposition of tenancy status on those who occupied and used land. In other words, land that previously belonged to them was turned into property of the Crow/State/Government. The introduction of land registration of titles further distorted and weakened tenure security of the indigenous. This was made applicable all across the British colonies and protectorates, including the Sudan.

In 1905, there existed between the two (Ngok Dinka & Messeriyya Baggara) communities three main categories of rights of occupation, land rights and use. They are:
(i) Dominant occupation, land rights and land use by a community that were exclusive to members of the community and permitted no concession of secondary rights to non-members of the community;
(ii) Dominant occupation, land rights and land use by a community but allowing for non-members of the community to acquire limited land use rights on seasonal basis or sporadic periodprimary and secondary rights paradigm; and
(iii) Shared Secondary occupation, land rights and land use by members of two or more communities in within a territory marking the boundaries between themthe conflicting or no-mans land or the Goz.

The evolution and development of Dar, loosely translating as land of in the Sudan various tribal communities describe the first category of dominant and exclusive typology above. During colonial rule, dar rights had developed and evolved to include secondary rights of those outside the community. The accommodation of outsiders was necessitated mainly, but not exclusively, by changing climatic conditions that forced migration into the territories of other communities. In case of Sudan, the British colonial administration sometimes secured secondary rights for some communities in the land of other communities by formal agreement.

Consequently, the ABC ruled that evidence gathered from the maps, the historical records, published studies and testimonies indicated that where the territory of the Ngok Dinka had established occupation, land rights and land use of the first (primary) and second (secondary) categories, such areas fell squarely within boundaries that were transferred in 1905. The boundaries of the two communities (the provinces of Kordofan and Bahr-el-Ghazal) as at the time of transfer in 1905 must have fallen within occupation, land rights and land use regime within the third category terrain of the shared secondary land. ABC ruled, therefore, that the official maps that appeared after the event as from 1907 were not accurate in delimiting the boundaries of the nine chiefdoms of Ngok Dinka that were transferred to Kordofan

Applying the principles of equity, substantive justice and fairness, the implication is that the drawing of line(s) within the shared secondary rights that separates the land of the nine chiefdoms of Ngok Dinka and the Messeriyya is the approximate Abyei boundaries.

GOS and SPLM Presentations (Appendix 3)

The ABC heard presentations from the GOS and the SPLM in Nairobi: the first one between April 11-12, 2005, and the second between April 16-17, 2005 respectively. Ambassador Dirdeiry Mohammed Ahmed made the presentations for the GOS, and Cdr. Deng Alor Kuol, on behalf of the SPLM.

GOS Position: Ambassador Dirdeiry presented the position of the GOS based on evidence from variety of sources that included: a) information obtained from the field visits undertaken by the ABC in April 2005; b) contemporary maps of the period between 1908 and 1936 that reflected the state of affairs associated with the 1905 transfer; and c) historical notes depicting Abyei as an area characterized by co-existence between Ngok Dinka and the Messeriyya Arabs. Ambassador Dirdeiry agreed with the ABC that the oral evidence of Ngok Dinka and the Messeriyya Arabs was generally not helpful but should not be completely ruled out. He also reminded the ABC that the evidence observed from the field visits supported his position and that of the Messeriyya.

Ambassador Dirdeiry outlined the evidence gathered from the field visits as follows:
1) Visit to the shrine of Sultan Arop Biong: that the visit to the tomb of Arop Biong at Mathiang, near Agok, supported the locality mentioned by Major Wilkinson in 1902, and substantiated the position of the GOS that Sultan Arop and his people lived south of Bahr-el-Arab/River Kiir in 1902 (despite the fact that Wilkinson was proved wrong, see Part I).
2) Differences observed between settlement, production, vegetation cover and topography north and south of Bahr-el-Arab/River Kiir: GOS underlined that Major Percival, in his visit to Sultan Arop Biong, crossed the Bahr-el-Arab/River Kiir and found Arops village at 2.5 km south of that area was never inhabited either before or after Wilkinsons visit. On the other hand, the locality south of the river manifested ample human settlement and large-scale farming of dura (also Percival labored under the same mistake of Wilkinson, see Part I).
3) ABCs visit to the tombs of Deng Majok and his son Abdalla Deng in Abyei: With the exception of the of these two tombs and Deng Abot, no other Ngok Dinka chief was buried in Abyei. For GOS, this meant Abyei was not the seat of Ngok Dinka prior to incumbency of Deng Majok as a paramount chief.
4) The need to consider oral testimony of Messeriyya and Ngok Dinka during the field visit: The Messeriyya testified that their fight against Mahdiyya prior to 1905 took place in Abyei area. The inauguration and knighthood of the Messeriyya paramount chief, Babo Nimir (was he ever made a Sir? And when?), in the Abyei area of Lau and Abyei Town attested to the claim that the territory in question is part of Dar Messeriyya. Besides, the lack of mention in Ngok Dinka testimony of an area of settlement for them during the Mahdiyya, the absence of knowledge on the part of Ngok Dinka as to what happened in 1905, lack of certainty whether Abyei was a part of Bahr-el-Ghazal, and the non-existence of boundary between Messeriyya and Ngok, affirmed the GOS position.

SPLM Position: Contrary to GOS position and claim, SPLM/A argued that Ngok Dinka had arrived in Abyei in 1710 (Howell, Tibbs and Cunnison) and occupied the area north of River Kiir before 1905. It provided documentary and oral evidence to support the case of Ngok Dinka and the SPLM/As position as follows:
1) Published authorities (W. Lloyd, Mahon, Howell, Robertson, Henderson, Tibbs and Cunnison) supported their claim that Ngok Dinka migration into Kordofan took place in the 18th century and preceded that of the Messeriyya Arabs, and that Ngok Dinka followed a route into Kordofan that took them along the Ragaba ez-Zerga/Ngol, north of the Bahr-el-Arab/River Kiir (Wilkinson and Percival, as corrected by R. C.Bayldon).
2) Contemporary government reports that placed Ngok Dinka north and south of Bahr-el-Arab before 1905.
3) Locations of shrines and graves of Arop Biongs ancestors, and noted that these were all north of Bahr-el-Arab/River Kiir.
4) Evidence showing that the Goz was no-mans land separating the Ngok and the Messeriyya.
5) Their own interpretation of the maps submitted in support of GOS case and produced their own sketch map showing the territory they claimed was occupied and used by the Ngok Dinka, giving Dinka place names and the initiation sites of previous age sets-ranging from Tabeldiya in the north to Abyei in the south

V. The Oral Testimony

A. The Messeriyya Baggara and Ngok Dinka Testimony

Introduction: Between 14 and 21 April the Abyei Boundaries Commission (ABC) held fourteen public oral testimonies for the disputing parties, the Messeriyya Baggara and the Ngok Dinka. These public hearings were held in Abyei town, Muglad, Agok, and Khartoum 21 April, United Kingdom 6 and 8 May 2005 and some other places. Those held in Abyei and Muglad involved 68 Dinka and 57 Baggara, respectively. In each hearing, the Chairman of the ABC explained its mandate and procedure. In each location of hearing the leaders of the Government of Sudan (GOS) and the Sudan Peoples Liberation Movement/Army (SPLM/A) were given a chance to make presentations. After this each and every witness testified, under oath. In all the hearings the ABC reserved the right to ask question or seek clarifications.

The Summary of the Evidence

The Messeriyya: The testimony given by the Messeriyya at the hearings stunned all Ngok Dinka. The gist of the Messeriyya evidence claimed that they had been in Abyei since the middle of the 18th century (1750). The Turks, Mahdiyya and the British colonialists found them in their Dar. To prove this, they cited and named gravesites where their ancestors were buried, such as Abunafiesa/Akur, across the river.

According to Messeriyyas testimony the Ngok Dinka came to Abyei in about 19th century. Ngok Dinka migrated from Zeraf Island in the East. They (Ngok Dinka) were a troublesome lot who quarreled with the Nuer and Twich!! These quarrels, which resulted sometimes into armed conflicts, forced them to seek refuge among the Messeriyya. It was Ali Jullaa Messeriyya leaderwho permitted them to cross the river!!

Because of the generosity of the Messeriyya, there developed close relationship between the two communities. There were occasional marriages, which created alliances against their mutual enemies. In addition, they assisted the sons of Abyei in education, particularly those of Chief Deng Majok; this peaceful co-existence made Ngok to regard themselves as part and parcel of Messeriyya community. The relationship was exemplified by the close co-operation that existed between Deng Majok and Babo Nimir. Twice the Ngok chose to remain in the Kordofan Province rather than joining their fellow Dinka in Bahr-el-Ghazal Province. Furthermore, there were no boundaries between the Ngok and the Messeriyya. The only appearance of boundaries they could recall was when the roads were divided into sections, which were allocated to different chiefs for repair. To their recollection, boundaries only existed between them and Nuba, Nuer and Twich. In any event the area fell under the jurisdiction of Kordofan, to which they paid their taxes.

Some witnesses asserted that they never heard about Ngok Dinka at all; and hence the Ngok Dinka could not own any land in Abyei. To them, the educated Ngok Dinka created the current dispute. They also asserted, contrary to the well know view, that the Messeriyya were also farmers as well as pastoralists. They grew millet and cotton, besides keeping livestock.

The Meseriyya hailed the Comprehensive Peace Agreement as a golden opportunity to bury the past and live in peace. But if this was not possible, separation of the two communities should take place. In that case, boundaries should be drawn along the River Kiir/Bahr-el-Arab. Finally, the ABC was reminded that documentary evidence to support their case existed. Henderson, Robertson, Powell, Tibbs, Cunnison and others were quoted as cases in point (we have already seen what each of these authorities said).

The Ngok Dinka: The Ngok Dinka started their testimony that they migrated from Upper Nile. They reached Abyei in 1710 and occupied the riverine area between River Kiir/Bahr-el-Arab and Ragaba ez-Zarga/ Ngol. Contrary to the evidence given by the Baggara, they (Baggara) arrived in the Muglad area between 1765-1775, displacing the Daju, Shatt and Alei. Furthermore, they argued that Biong Alor was the first to settle around Abyei Town. Indeed, they were ready to show the graves of their ancestors to any one who cared. To support their case, Ngok Dinka gave a long list of their former permanent homes and grazing pastures. Places such as Nyama, Pawol, Rub, Thigei, Akotok and so on and so forth. They were in these places well before 1905 and until 1965, when the Sudan Government in alliance with the Messeriya Baggara forced them out of their land for the first time. The Ngok Dinka informed the ABC that their absence from these traditional areas is due to expulsion after the outbreak of Anyanya I and the SPLM/A. Dinka names of these places were substituted for Arabic ones. The most significant evidence that these places belonged to the Dinka was the existence of mounds and cow dung ashes, as well as their ancestors graves.

The Dinka Ngok confirmed that the peaceful co-existence between them and the Baggara was a historical fact. They further gave evidence that the Messeriyya Baggara had never had any permanent homes beside Muglad, Babanous etc. For example, they shared River Ngol pastures during the dry season. But Messeriyya practiced transhumance and had no permanent homes along Ngol.

Twich, Rek and Rueng Dinka: The evidence given by Twich, Rek, and Rueng contradicted the claim by the Messeriyya that they never heard of Dinka Ngok and that they had boundaries only with Twich, Rek and Nuer. These three Dinka sub-tribes gave evidence that they never had any direct contact with the Messeriyya Arabs, except the Rezeigat. For that reason, the Ngok acted as their intermediaries between them and the Messeriyya, particularly for trading purposes. In addition, they said that quite often they crossed River Kiir into the land of Dinka Ngok in search of pasture. They also had relatives among the Ngok. In their experience, the Meseriyya were living far beyond Kiir River (north). They also noted that the Dar Messeriya had a yellow soil whereas that of the Ngok land was black. Moreover, if the Messeriyya lived south of Ngol their livestock would have perished because of disease.

The British: Ian Cunnison who lived among the Homr in the early 1950s and Michael Tibbs, the last British District Commissioner of Dar Messeriyya District, 1951-54, were interviewed. They gave evidence corresponding to what is found in their publications. These publications have been set out above.

B. Prepositions

Like in any court procedure, the ABC framed prepositions or issues to assist it conduct the necessary analysis in the light of GOS and SPLM presentations and the testimony of the disputing parties (Ngok Dinka and the Messeriyya Arabs). The ABC found there were nine prepositions or issues in contention between GOS, Messeriyya, SPLM and Dinka Ngok. These prepositions or issues are included in Appendices 4, 5 and 6.

Preposition/Issue 1: That Ngok Dinka territory originally extended to El Oddaya, and the boundary between Ngok Dinka and the Messeriyya Arabs should run from Lake to Muglad. (Ngok oral testimony).

The ABC found lack of contemporary records to support the Ngok Dinka allegation that the boundary should between El Oddaya and Bahr-el-Arab/River Kiir at the beginning of the twentieth century. One of the few documentaries available to the ABC was the itinerary recorded by W. B. Browne in 1794-95, which places the Messeriyya Arabs in Baraka, near Muglad, and the Dinka a five-day walk to the southeast. Moreover, K. D. D. Henderson, who was a district commissioner in Nahud in the early 1930s, confirmed this itinerary. Henderson put the arrival of the Messeriyya Arabs in Muglad in the decade 1765-1775(However, notwithstanding the ABC finding, any person who knows the general Dinka migration along the White Nile to the present places they are found might not have dismissed that some of the sections of the Dinka might have actually reached places like El Oddaya).

Further, the ABC argues that there is no doubt that Henderson confirms Muglad as: the key to Dar Homr is also supported by the Kordofan Province officials, traveling in southern Kordofan in 1901 and 1902, reported that Muglad was the headquarters of the Homr. They also confirmed that Keilek was in Homr Falaita territory. Ian Cunnison wrote in 1954 that the Muglad is regarded by Humr as their `home. Their arrival there from Bahr is the occasion of great rejoicing and anticipation.

Preposition/Issue 2: That the Messeriyya territory originally extended south of Bahr-el-Arab/River Kiir as far the current Kordofan-Bahr-el-Ghazal border (Messeriya Arabs oral testimony).

The ABC found the main grazing areas of the Messeriyya Humr was along Ngol, not Bahr-el-Arab/River Kiir, much less to the south of Bahr-el-Arab/River Kiir. The Governor of Kordofan Province, Watkiss Lloyd in January and in October 1908, stated that the Humr took their cattle to Bahr el-Humr/Ngol River in the dry season. District Commisioner R. B. Bence-Pembrooke repeated this in a report in 1916: As soon as the grass and fly permits, the [Humr] Agaira disappear to remote watering places on the Bahr el Homr/River Ngol. It was not until some later yearsprecisely in the middle of 1960s for those who know the areawhich the Humr extended their dry season grazing farther south to Bahr-el-Arab/River Kiir. In 1923, Major Titherington of Bahr-el-Ghazal Province complained of Arabs incursions (but this was not about the Humr Arabs rather about the Rezeigat Arabs from Darfur Province). Indeed, the Malwal Dinka complained of Rezeigat Arabs from Darfur Province of incursions southwestern of Bahr-el-Arab/River Kiir. However, the colonial government decision in 1924 came in favor of the Rezeigat Arabs, by giving them a twelve-mile border south of Bahr-el-Arab/River Kiir. No such a decision was rendered regarding Ngok Dinka and the Messeriyya.

Preposition/Issue: That the Ngok Dinka are newcomers to the territory, having left the Zeraf Island in the Upper Nile in the 19th century, and were brought in as destitute refugees at their own request to Humr Arabs leaders (Messeriyya Arabs oral testimony and GOS).

The ABC found that the evidence of W. G. Browne establishes that the Messeriyya were in Muglad/Baraka area, and equally establishes that the Dinka Ngok were settled along Ragaba ez-Zarga/River Ngol before that date. K. D. D. Henderson wrote: Under Kwal Dit of the Abyor section, the Ngork [Ngok] moved west along the Gnol [Ngol]This was one generation before the Baggara came south to Turda. Henderson put the arrival of Kwal Dit on the Ngol at 1745-1755.

Historical research carried out in Upper Nile shows that there is no connection between Ngok migration into the places they now claim and the events surrounding the 19th century eastward expansion of the west Nuer (Lau Nuer) into the Zeraf Island. The ABC that no way was the Ngok newcomers to the places they are presently claiming. Henderson put the actual date of Ngok Dinka migration to the present place which they claim at 1710.

The ABC also found that there is no evidence that Ngok Dinka requested refuge from Abu Gurun or Ali Julla. The latter was carrying slave trade raids against Ngok Dinka and Twic Dinka in the early 20th century and would, therefore, hardly be someone whom Ngok Dinka would make a request of asylum or refuge. On the contrary, at the beginning of Mahdiyya, it was Ngok Dinka who afforded the Messeriyya sanctuary. Henderson attested that non-Mahdist Humr were chased out of their country by the Mahdists, and some survivors found asylum until [1898] with Chief Arob Biong in the swamps of Baralil.

Also the ABC found the assertion that Ngok Dinka was destitute was untrue according to the contemporary observations of the British officials in early in the early 1900. For instance, B. Mahon on a trip from El-Obeid to Sultan Robs country in 1902, he observed that the Ngok Dinka were well off and owned immense heads of cattle. It was in contrast to his other observations that pointed to the relative poverty among the Humr Arabs.

Preposition/Issue 4: That the inclusion of the Abyei area in Dar Messeriyya District is a recognition that Ngok Dinka territory belongs to Dar Messeriyya (Messeriyya oral testimony and GOS presentation).

Once again, the Messeriyya miserably failed to prove that Ngok Dinka took refuge with them. Under 1905 unfortunate decision by the colonial administration to bring Ngok Dinka and part of Twic Dinka under the governorship of Kordofan, Ngok Dinka did not actually move from one territory to another. The action or decision put Ngok Dinka and the Messeriyya Arabs under the authority of the same governor (Kordofan).

The ABC found that despite the adoption of Ngok Dinka of Arab dress and some minor customs of the North, the Ngok Dinka preserved their Dinka culture and customsautonomy. Mr. Tibbs, the last colonial administrator district commissioner, stated that when Ngok Dinka became part of the District Council, joining into with the Messeriyya, they were not members of the Messeriyya tribe, did not come under the jurisdiction of the Messeriyya leadership, but retained their own independent court.

Preposition/Issue 5: That the Ngok Dinka were administered as part of Messeriyya, both in taxation and in the court system (Messeriyya oral testimony and GOS presentation).

The ABC found that the official record shows Ngok Dinka was administered separately. In 1908 in the list of tribute (tax) paid to Kordofan Province, The Ngok Dinka is included separately from the Arabs. There were separate entries for the Ngok Dinka in 1932 Kordofan budget, which also showed the Ngok Dinka paying taxes directly to the Kordofan authority, not through the Humr Nazir. Messeriyya tax lists from 1940s do not list the Ngok Dinka.

The ABC found ample evidence from the Condominium records that Ngok Dinka courts functioned independently of the Messeriyya courts. Chief Kwol Arobs Court functioned informally throughout 1920, until it was designated Court 12 (separate from Messeriyya courts), and applying Dinka customs and traditions, not sharia. J. W. Robertson, the District Commissioner of Western Kordofan District (Nahud), in 1936 described separate court systems for Humr and Ngok. Sir Robertson wrote: the Dinka Court is flourishing concern At the end of colonialism in 1954 Michael Tibbs recorded that the Ngok continued to have their own court.

Preposition/Issue 6: That the Messeriyya claim that specific locations north of Abyei Town (e.g., Goleh/Langar, Pawol, Dembloya/Dak Jur, Umm Bilael/Tordach, Chigei/Thigei, Lukji/Kol Yith, Lau Nyama) have belonged to them since the time of Turkiyya, through 1905, to the present (Messeriya oral testimony).

In addressing this issue, the ABC ruled that it is necessary to establish two types of rights: Dominant and Secondary rights. As such the ABC ruled that the Messeriyya could not establish dominant right over these places, and cite P Howell in his quotation from Major E. B. Wilkinson in 1902 itinerary, when he remarked on some badly built huts of the Falaita Humr at Keilek where the Falaita grazed during the dry season. Major Wilkinson saw no farther Messeriyya settlements south on his trip to Dar Jange [Dinka]. Writing in 1948, P. Howell described the transportable nature of the Messeriyya dwellings and household goods. He made no mention of permanent settlements. Ian Cunnison states the Humr are continually on the move, and do not have permanent houses anywhere. In an interview with two members of the ABC experts, on May 22, 2005, he told them: The Humr had no land claims, no permanent settlements, no houses, unlike the Dinka. However, he added that the Messeriyya do have permanent areas in the Muglad where they cultivate.

The secondary rights of the Messeriyya in all those locations were established, and were not disputed by the Ngok Dinka. For Nyama, it appeared it was a place of utmost importance for the disputing parties. However, neither side could conclusively establish a claim of dominant rights to Nyama. It has been an abundant source of fish for the Ngok Dinka at the end of each rainy season. For the Messeriyya, it was the place where cotton cultivation began in the early 1950s.

Preposition/Issue 7: That the only area affected by the 1905 decision of the colonial government to administer Ngok Dinka as part of Kordofan was an area south of the Bahr-el-Arab/River Kiir; and that the Ngok Dinka settled in the territory north of the river only after 1905 (GOS presentation).

At the first glance the evidence produced by the GOS in supporting its claim seemed adequate and persuasive. This argument was based on the boundaries of Kordofan and Bahr-el-Ghazal provinces, which states explicitly that the boundary between the two provinces run along Bar-el-Arab/River Kiir. Supporting this are a 1904 map and Major Wilkinson itinerary from El-Obeid to Dar Jange. Unfortunately for the GOS, the Wilkinson itinerary was based on a misconception of Ragaba ez-Zarga for Bahr-el-Arab. When Wilkinson declared that he reached Bahr-el-Arab/River Kiir and that he did not reach Dar Jange until he was 15 miles south of Bahr-el-Arab/River Kiir. For example, Wilkinson recorded that at mile 2611/2 from his starting point, he arrived at Kuek, where he encountered Arab dry-season settlements and many cattle. Ten miles later he reached Fula Hamadai about fifteen miles farther on he came to Fauwel/Pawol. Then fourteen miles to the southeast of Pawol/Fauwel, Wilkinson reached what he termed Bahr-el-Arab/River Kiir. We know now he was absolutely wrong. Wilkinson wrote that some 28 miles to the South of that river, the Kir River, or Bahr-el-Jange is struck, as one reaches the settlement of Sultan Rob [Arob Biong]. In fact, Wilkinson had reach River Ngol, and not Bhar-el-Arab/River Kiir.

Major Percival also made this confusion in 1904. The Major was traveling from Wau to Arob Biongs country and described Kir [Kiir] to be 50 miles south of Bahr-el-Arab/River Kiir. Subsequent reports clearly pointed out he mistook the Ragaba ez-Zarga/Ngol river for the Bahr-el-Arab/River Kiir, and held the view that Kir [Kiir] was a different river. The ABC found out that there was a general misconception about the Bahr-el-Arab/River Kiir and Bahr-el-Ghazal River, at least for the first two decades of the colonial rule. 1905-06 surveys correctly identified the Kir [Kiir] River as Bahr-el-Arab and the Ragaba ez-Zerga/Ngol as the Bahr-el-Humr. Contemporary documentation before 1905 recorded that Ngok Dinka occupied an area that extended from Bahr-el-Arab/River Kiir north to at least the Ragaba ez-Zerga/Ngol. The general displacement the Mahdiyya inflicted on the area made the British to encourage peoples to return to their original homes in order to revive the abandoned rural areas. Evidence which show internal movements within Ngok Dinka territory cannot be taken as conclusive evidence after 1905 of mass population migration from one territory to a new territory.

Preposition/Issue 8: That there was a continuity in the territory occupied and used by the nine Ngok Dinka chiefdoms which was unchanged between 1905 and 1965, when armed conflict between Ngok Dinka and the Messeriyya Arabs began (Ngok Dinka oral testimony and the SPLM presentation).

The testimony of persons familiar with this area at the end of the colonial rule established the issue of continuity of Ngok Dinka settlements, which extended from Bahr-el-Arab/River Kiir, the Umm Bieiro/Nyamoura, Ragaba Lau and Ragaba ez-Zarga/Ngol. In 1909 C. A. Willis, an official of Kordofan Province, wrote that Ngok Dinka settlements were found all along the Jurf (Bahr-el-Arab/River Kiir) and that Dinka influence extended considerable distance further North at one time. Michael Tibbs, the last district commissioner in the area, categorically confirmed that there was continuity of the Ngok Dinka settlements up to the end of the Condominium. Ian Cunnison was equally certain in stating that the general area in which Ngok Dinka maintained their permanent settlements remained the same over the years. At the peace conference between the Messeriyya Arabs and Ngok Dinka in March 1965 both sides agreed that Ngok could return to their homes at Ragaba-ez-Zerga/Ngol and other places in which they used to live,; and the Arabs would have unrestricted access to all ragabas that they had been frequenting before the outbreak of hostilities.

The ABC ruled that Ngok Dinka has established the dominant rights of occupation along the Ragaba-ez-Zerga/Ngol, while the Messeriyya enjoyed established secondary rights of use. Further to north, however, the two communities exercised equal secondary rights to use of the land on a seasonal basis.

Preposition/Issue 9: That the Abyei Area is defined as the territory of Kordofan encompassed by lat. 1035' N in the north to long. 2932΄ E in the east, and the Upper Nile, Bahr-el-Ghazal and Darfur provincial boundaries at the time of independence in 1956 (SPLM presentation).

The SPLM claimed lat. 1035΄ N as representing the north most limit for dominant rights for the Ngok Dinka:
The ABC ruled that the area south of lat. 1010΄ N contains the territory in which Ngok Dinka have dominant rights, based on permanent settlements and land use.
It further ruled that the area between lat. 1010΄ N and lat. 1035΄ N represents the area of secondary rights shared between the Ngok and Messeriyya.
This area closely coincides with the collection of Goz, which a number of sources identify as the border zone between Ngok and Messeriyya.
Based on the legal principles of the equitable division of shared rights, therefore, the northern boundary should fall within the zone between lat. 1010΄ N and 1035΄ N.
As neither the Ngok nor the SPLM have claims to the territory east of long. 293215" E, it is reasonable to take this line as the eastern boundary.

Conclusions: After careful consideration of the issues and arguments put forward by the Messeriyya, Ngok Dinka, GOS and SPL/A outlined above, the ABC concluded as follows:
1. In 1805 there was no clearly demarcated boundary of the area transferred from Bahr-el-Ghazal to Kordofan.
2. The GOS belief that the area of the nine Ngok Dinka chiefdoms transferred to Kordofan laid entirely south of Bahr-el-Arab/River Kiir is mistaken. It is based on British officials reports (mainly, Wilkinson and Percival) which incorrectly concluded that the had reached the Bahr-el-Arab/River Kiir when in fact they had in fact come to Ragaba ez-Zarga/Ngol. Maps that GOS put before the ABC manifested this obvious error.
3. Ngok Dinka claim that the Boundary with the Messeriyya Arabs should run from Lake Keilek to Muglad has no foundation.
4. The historical records and environmental factors refute the Messeriyya Baggara Arabs contention or claim that their territory extended well to the south of Bahr-el-Arab/River Kiir, an area to which they never made a formal claim during the British colonial period.
5. Although the Messeriyya have clear secondary (seasonal) grazing rights to specific locations north and south of Abyei Town, their allegation that they have dominant (permanent) rights to these places is not supported by documentary or material evidence.
6. There is compelling evidence to support the Ngok Dinka allegations to having dominant rights to areas along the Bahr-el-Arab/River Kiir and Ragaba ez-Zerga/Ngol and that these are long standing claims that pre-dated 1905.
7. There is no substance to Messeriyya claim that Abyei area was included in Dar Messeriyya District, it belongs to the Messeriyya Arabs. The Ngok Dinka and the Homr Arabs were placed under the authority of the same governor solely for reason of administrative expediency in 1905. After that transfer, the Ngok Dinka retained their identity and control over their local affairs and maintained a separate court system, separate system of budgeting and taxation and separate hierarchy of chiefs.
8. As claimed by the SPLM/A and Ngok Dinka, the administrative records of the colonial period and testimony of persons familiar with the area confirmed the continuity of Ngok Dinka settlements in, and use of, places north of Bahr-el-Arab/River Kiir between 1905 and 1965.
9. The ABC considered the claim of the SPLM/A that their dominant right lies at lat.1035 N, but found the evidence in support of this to be inconclusive.
10. The border zone between the Ngok Dinka and the Messeriyya Arabs falls, therefore, in the middle of the Goz, roughly between lat. 1010 N and lat.1035 No.

To be followed by an opinion, evaluation and comment.

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