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3/14/2006 11:29 am

By Charles K Deng

In a recent, article titled: The Fallacies and Inconsistencies of the Non-mandated Report of Abyei Boundaries Commission: Who Bears the Responsibility Mr. Adam B Elhiraika, PhD, contends that the Abyei Boundaries Commission (the Commission) had overstepped its mandate. Dr. Hiraika further argues that, assuming the Commission had acted within its mandate, the report contained inconsistencies that cast doubts on its conclusions and recommendations.

Dr. Hiraikas claimed inconsistencies in the report can be summarized as follows: Dr. Hiraika claims that the Messeria representatives attended the Naivasha peace talks as part of the Government of Sudan (GOS) delegation, and were only allowed to give a nonbinding opinion to the GOS; that in the constitution of the Commission, the Messeria were underrepresented; that the Commission was constituted by Christians, who saw the dispute with Christian-versus-Muslim lenses; that the Commission admitted its inability to identify the boundaries of Abyei area; it nevertheless went ahead and demarcated the area in accordance with what Dr. Francis Deng and Abyei intellectuals dictated; that its findings were so generous to the Ngok Dinka that they surprised even the Ngok Dinka; that the Ngok Dinka never lived except in the town of [Abyei Num] Abiemnom; that it was the agreement of peaceful co-existence between Messeria and Ngok Dinka that allowed the latter to cross Kiir River/Bahr-el-Arab. Dr. Hiraikas evidence is that Messeria folktales never mentioned any Messeria land grab from the Ngok Dinka. Another historical fact that he believes supports his argument, is the allegation that a small tribe known as Shatt, which gradually moved over the years to the Nuba Mountains, were the occupants of area inhabited by the Ngok Dinka. I will show latter that his assumptions are a-historical and cannot be defended however ingenious the presentation. Dr. Hiraika further alleges that the Commission had falsified evidence in order to take away the Messerias land and give it to the oppressed Dinka people. Dr. Hiraika believes that land occupation, land rights and land use should not be the grounds to demarcate the boundaries between Messeria and Ngok Dinka. The remaining part of the article is an unsubstantiated demonization of the Commission. I will, nonetheless, touch on these allegations as part of my general comments when discussing the salient points mentioned in the article.

Although Dr. Adam B. ElHiraik does not support any of the above-summarized points with historical facts, documentary or popular oral evidence offered by credible analytical individuals who testified before the Commission, I still feel duty-bound to thank him for his efforts, whatever their worth. With little or no effort, he has managed to make a point banking on religious rhetoric hoping he would ignite hostile sentiments between the Messeria and their supporters against the Commission and the Ngok Dinka. Sacrificing academic integrity for false gains is a popular technique among Messeria intellectuals. Though himself a victim of this pervasive intellectual malaise, Dr. Kiraika still merits some commendation and I really intend to conduct a cool headed discussion with him. Unlike someif not manyMesseria intellectuals, he refrains from heaping insults, intimidating remarks and disrespectful comments on the dignified people of Abyei/Ngok Dink (as I shall use these two terms interchangeably). Dr. Hiraika at least shows respect for the long historical ties between the Ngok Dinka and the Messeria Baggara.

To begin with, Dr. Hiraika alleges that the Commission had overstepped its mandate by issuing the report demarcating the Abyei area in the manner it decided. Unfortunately, Dr, Hiraika fails to refer us to any specific provision of the Abyei Protocol (the Protocol) and the Annex thereto (the Annex), the Terms of Reference (the Terms), or the Rules of Procedures (the Rules), which the Commission had violated or overstepped. It would have helped explain the issues in contention between the Ngok Dinka and the Messeria. With no reference to specific articles of the Protocol, Annex, the Terms or the Rules, it becomes therefore harder to have an intelligent discussion of those provisions, which Dr. Hiraika alleges the Commission to have overstepped or violated.

However, for the benefit of the readers not directly connected to the work of the Commission and task given it, it is necessary to briefly explain these provisions. The Protocol was signed at Naivasha, Kenya, May 26, 2004, between the GOS and the Sudan Peoples Liberation Movement/Army (SPLM/A). Originally the Protocol provided, inter alia, for the establishment of the Commission and its mandate was to define and demarcate the area of the nine chiefdoms of the Ngok Dinka transferred to Kordofan in 1905, referred to herein as Abyei area (Art. 5.1). Article 5.2 of the Protocol spells out the composition of the Commission and its timeframe in which to complete its mandate. The power to constitute the Commission rested with the Presidency as defined in the Comprehensive Peace Agreement (CPA) and the Interim Constitution of the Sudan. The timeframe in which the Commission should have completed its work and issue a report was fixed as two years.

Perhaps, for reasons to do with the urgency of the issues to be resolved or for the sake of smooth implementation of the CPA, GOS and SPLM/A decided to amend this agreement by signing an Annex to the Protocol on December 17, 2004. Articles 1 and 2 of the Annex drastically amended the Protocol by immediately establishing the Commission upon the signature of the CPA, notwithstanding Article 5.1 of the Protocol. Article 2 of the Annex established the Commission in accordance with Article 5.2 of the Protocol, but modified it. Instead of the Commission making its report in the first two years, Article 5 of the Annex provided that the Commission would present its final report to the Presidency before the end of the Pre-Interim Period; and provided that the report of the Commission shall be final and binding on the parties

Without ifs, buts or parenthesis, the provisions set out above are simple and clear. Where, then, did Dr. Hiraika find the Commission to have overstepped its mandate or violated the provisions of the Protocol, the Annex thereto, the Terms or the Rules? The mandate in Article 5.1 of the Protocol and repeated in Article 1 of the Annex, paragraphs 1.1 and 1.2 of the Terms and paragraphs 1.1 and 1.2 of the Rules clearly gives effect to the intention of the parties (GOS &SPLM/A) under the Annex. In the words of the Commission, these four documents provide for its establishment and composition, define its mandate, describe how it will function, lay out its program of work and denote the disposition of its findings. Examining these four documents, reasonable minds would come to the conclusion that the Commission had in no way overstepped or violated its mandate.

In the alternative, Dr. Hiraika argues and I quote: In fact, even if the ABC acted within its mandate, the fallacies and inconsistencies of its report/suggestions on the future of the area cast serious doubt on its credibility and usefulness in helping the two sides (Ngok Dinka and the Messeria) of the dispute to agree to anything. Dr. Hiraika argument in the alternative means that there is nothing to be gained in continuing demonizing the Commission and alleging it to have overstepped its mandate. Even in the alternative our Dr. Hiraika submits no credible argument that holds water.

Dr. Hiraika accuses Dr Francis Deng and Abyei intellectuals of having dictated the conclusions of the Commission in advance. When he says and I quote: In fact the Commission did not fail to act within its mandate, but rather it did not wish to do so as the evidence was not in favor of the conclusion they wanted to reach, a conclusion which many people believe was given to the Commission by Dinka intellectuals such as Dr. Francis Deng before its work started.

It is to be observed that the Messeria intellectuals have lately and consistently attacked the family of late Chief Deng Majok and Ngok Dinka intellectuals, in an attempt to drive a wedge between that family, Ngok intellectuals, and the Ngok Dinka. Surely, some Ngok Dinka may have complaints against the leadership of that family in lending us into this dispute. Indeed, the Messeria should be thankful to the leadership of late Chief Deng Majok. If it were not Chief Deng Majok, the Messeria would not have enjoyed the privileges of grazing and watering their animals on Ngok Dinka land in the manner they have enjoyed over many years.

Having said that, The Messeria should not miss the point that Dr. Francis Deng and Abyei intellectuals are part and parcel of Ngok Dinka community, and they will always be unsuccessful to drive that wedge whatsoever. The NIF and Sudanese Arabs, including the Messeria, assumption of bad faith in Europeans, Americans, Africans, and, generally, any person who does not belong to the Arab and Islamic world, drives Dr. Hiraikas accusation of Dr. Francis and Abyei intellectuals having dictated the conclusions of the Commission. Five foreign experts, who had nothing in common, but their professional knowledge and integrity constituted the Commission. They are not people who could take dictation from whoever, including Dr. Francis Deng and Abyei intellectuals

Leaving aside for later comments Dr. Hiraikas argument that the demarcation of the Abyei area casts doubt on the probability of the two sides to the dispute would agree on anything, we must explain an other equally important but false allegation that the composition of the [committee] was a factor that worried the Messeria most during the Naivasha talks, in which Messeria were never genuinely represented, although a group of Messeria accompanied the government of Sudan. Dr. Hiraika here mixes apples and oranges and ignores or attempts not to know what the Naivasha talks were all about.

The Naivasha peace talks were about the ending of the longest war in Africa, which produced incalculable loss of lives and property, especially in the marginalized non-Arab areas of the Sudan. Even after the signature of the Machakos framework agreement in 2002, those talks took three more years to conclude, with the signature of the CPA in January 2005. The parties to the talks were not the Ngok Dinka and the Messeria, but the warring parties, GOS and the SPLM/A. The Ngok Dinka and the Messeria were only involved in the talks about the three regions, of which Abyei is one of the regions. Hence, the main protagonists needed the advice and input of the people concerned, Ngok Dinka and the Messeria. The Abyei people were therefore not responsible about the quality and the number of Messeria representation.

If there is any complaint, it should come from the Ngok Dinka because the government that is supposed to represent all the Sudanese citizens practically disowned the Ngok Dinka, and chose to represent the interest of one group of citizens, the Messeria. It is a known duty of any government in the world, since there have been governments around the world, to afford equal protection of the law to all its citizens, without discrimination. Nonetheless, what can we say about the NIF government that has always acted outside the norms of comity of nations.

Further, Dr. Hiraikas claim that the Messeria were under represented in the Commission is factually incorrect. Simply, both the Messeria and Ngok Dinka were represented in the delegations of the GOS and the SPLM/A (see p.17 of the report), respectively. If there was a non-Messeria in the GOS delegation it was Mr. Zachariah Atem; he was there because he was co-opted to support the point of view of the Messeria and the GOS. The real representation of Messeria and Ngok Dinka came in the form of witnesses, and the Commission heard under oath the evidence of 57 witnesses from the Mersseria and 67 witnesses from the Ngok Dinka. The disparity in numbers was the wish of the parties to the dispute, and had nothing to do with dictates of the Commission.

Dr. Hiraika other outrageous claim is his unsubstantiated accusation of the Commission that it consisted of 5 Christians who undoubtedly saw the dispute as a religious conflict between Muslims and the oppressed non-Muslims. I have gone over the report of the Commission several times and I have absolutely seen no trace of religious bias or reference to religious affiliation of the parties whatsoever. Dr. Hiraika use of the word undoubtedly means he possesses unimpeachable evidence of that bias. Notwithstanding this accusation, Dr. Hiraika utterly fails to cite from the report of the Commission any single line proving such bias, including the claim that the Commission looked at the so-called dispute in Christian-versus-Muslims lenses.

Dr. Hiraika further accusation of the Commission is that its findings were too generous to the Ngok Dinka to an extent that the findings were surprising to them. Suddenly, Dr. Hiraika becomes the spokesperson of the Ngok Dinka and a psychiatrist (which he might well be) who concludes that the Ngok Dinka was surprised by the findings. Assuming he is a psychiatrist, he has no evidence to conclude that the Ngok Dinka was surprised by the Commissions findings, simply because he has not physically examined or interviewed each and every member of the Ngok Dinka community to determine whether they were surprised by the findings.

Another wild accusation Dr. Hiraika throws at the Commission is the admission by it that it could not accurately and precisely draw or identify the area transferred to Kordofan in 1905. Nevertheless, the Commission went ahead and demarcated the Abyei area. The admission by the Commission of the difficulty to determine the area transferred to Kordofan in 1905 was not due to lack of evidence, historical or geographical, but because at the time of transfer there were no maps to show exactly which parts of Bahr-el-Ghazal were ceded to Kordofan. Even if there were maps, such maps would not clearly mark the boundaries between tribes. It is a fact that the Sudan, since colonial days, has been divided into administrative units like provinces, districts etc. Maps of the Sudan were and are still not drawn on tribal basis.

Several tribes had lived and still live side by side in one district, without any official maps demarcating the boundaries between them. However, each tribe knows what part of the district belongs to it and the neighboring tribes have traditionally respected this. There have been no reported precedents of one tribe claiming the ownership of the area, which traditionally belongs to another tribe. Messeria and Ngok dispute is the first of its kind. Disputes always arise about the resources. For instance, one tribe controlling water or pasture resources, and the tribe lacking in resources is allowed the use of these resources, but it has never given rise to a claim of ownership of the land by the user tribe. This is exactly what the words of late Chief Moneim Mansour, quoted hereunder, describes.

Dr. Hiraika transits to history and claims that Ngok Dinka originally occupied [Abyei Num], probably meaning Abiemnom. According to him, Abiemnom, a small town south of Bahr Al-Arab was the only permanent Dinka settlement in the disputed area prior to their agreement with the Messeria on peaceful co-existence that allowed them to cross Bahr Al-Arab and settle along with some Messeria families from the other tribes in Abyei Town north of Bahr Al-Arab. There are three observations to be made about this statement: first, assuming there is a disputed area, Abiemnom is not a part of the so-called disputed area but geographically and administratively belongs to another province; second, there are no dates or historical landmarks or records to support the statement, which makes it anything but history; and third, the Messeria are know to have originally began their migration from the Arabia Peninsula, via North Africa to west Africa and Sudan and to their present dwelling. Is it logical that a migrant tribe like the Messeria be the grantor of land rights to an indigenous tribe like the Dinka, which has lived in the Sudan since time immemorial?

There is this story about a co-existence pact between the Ngok Dinka and the Messeria Arabs that allowed the Ngok Dinka to cross north of River Kiir/Bahr al-Arab. It is told by some nostalgic Messeria folks of the good old days when peace used to reign supreme between the two communities. However, folkstales are one-thing and concrete historical facts is another? If such pact really existed, the British colonial administrators of the area and the Commission would not have missed it. Therefore, there is no single credible historian who has recorded the existence of this pact. It was the fertile brain of late Chief Babo Nimir that invented this pact, under which he falsely claimed Ngok Dinka, was allowed to cross into the land of their ancestors.

Historians had sighted Ngok Dinka for the first time along River Ngol/Ragaba ez-Zarga before 1710. In the decade of 1765-1775, the Messeria was sighted for the first time in Muglad area. It is therefore perplexing how the Messeria allowed Ngok Dinka to cross River Kiir. The first time we heard about this crossing and the ownership of Abyei Area was when late Chief Babo Nimir made this preposterous claim in Lagawa reconciliation conference in 1966 (see Abdalbasit Saeed, The State and Socioeconomic Transformation in the Sudan and the Commissions report p.190). Babo was thoroughly chastised by the legendary Hamar chief, Chief Moneim Mansour. Chief Moneim Mansour was reported to have told Babo, Why are you after a soil as dark as the Dinka? What do you want from the dark soil of the Dinka? You are a people who simple go after grazing areas in the three months of the dry season. How can a person of three months residence dispute the land with the settlers of all seasons? (See Francis Deng, Dinka Cosmology and the Commissions report, p.188)

The great Chief Moneim Mansour was known for his strong and charismatic character among all the chiefs of Sudan of that time. During my study days in the sixties in el-Nahud, Chief Moneims headquarters, I recall hearing, on several occasions, people talking about his firm justice and impeccable knowledge of the history of Kordofan province and beyond. If death had spared him, one single hour of his testimony might have saved the Commission months of research, compilation of evidence and hundreds of thousands of dollars. Nobody could rebuke late Chief Babo in that manner, except late Chief Moneim Mansour.

Dr. Hiraika moves on to say that before coming to what is todays Messeria land, there lived a small tribe (he does not refer to the Daju as another tribe that inhabited the present Muglad with Shatt) called Shatt. But intentionally and deliberately misses and specify Messeria land as the area north of Kiir River/Bahr el-Arab in order to mislead people who do not have the geographical knowledge of the Messeria and Ngok Dinka areas. It is a lie the Messeria intellectuals point to repeatedly, wishing that a repeated lie might perhaps become a fact.

According to K. D. D. Henderson (one of the first British district commissioners of Western Kordofan District), the Messeria Baggara came to Muglad around the decade of 1765-1775 (earlier claim was 1700 AD). At that date the Shatt king Deinga lived in Muglad. Also at that time, [Ngork] Ngok Dinka already held the [Gnol] Ngol river (Regeba ez- Zerga) up to Ugnat Abu Urf Hameidan, and Eina El-Gadim, whose help he had sought, easily defeated Deinga. Chief Deinga fled southeast to Turda, whose leading man was [Deing] Deng Torjok, residing at Debbat El Mushback, near Hasoba. [Moindong] Monydang, son of [Kwal Dit] Kuoldit, was Chief of [Mabyor] Abyor. In Hendersons The Migration of the Messiria into Western Kordofan, Ngok Dinka met the fleeing Shatt and drove them west. Malwal Dinka is said to have met the Shatt on the Lol River and absorbed them. The Homr and Ngok Dinka admit that the Shatt were the indigenous people of Muglad [Deinga]. Henderson therefore corrected his first date, 1700, as the date of the Messiria migration to Western Kordofan in general and Muglad in particular as between the decade of 1765-1775, not 1700. As the Messeria Baggara came pushing to Muglad, the Daju hurriedly moved towards the Nuba Mountains, and put up no fight like the Shatts Deinga. Surviving members of Shatt can be found in Aweil District of Bahr-el-Ghazal Province, while Daju tribe can today be found in the Nuba Mountains, respectively. Dr. Hiraikas story that the present Abyei area was Messerias land after Shatt was driven out is therefore baseless and without authorities to back it. In other words, Shatt and Daju never lived in the Ngok Dinka area, but Muglad was the area of the two tribes.

Having scored zero in history and geography, Dr. Hiraika turns to criticize the Commission findings of demarcation itself. He alleges the Commission had unduly rejected records, documents and maps from the colonial era that prove the ownership of Messeria of Abyei area. However, as usual, Dr. Hiraika fails to mention or name one document, record and map from the colonial era submitted either by GOS or the Messeria. The only document or record, which was submitted by the GOS and its clients, the Messeria, was the itinerary of Major Wilkinson (see the report pp 191-194). The GOS and the Messeria, on the one hand, and the Ngok Dinka and the SPLM/A, on the other hand, disagreed on the correct interpretation of the record. While the GOS and the Messeria held the view that the river mentioned in the itinerary was River Kiir/Bahr-el-Arab, the SPLM/A and Ngok Dinka correctly contended that it was River Ngol/Regaba ez-Zarga.

The Commission agreed with SPLM/A and the Ngok Dinka because the misidentification of the river was palpable on the face of the record. Moreover, there were reports by the Bahr-el-Ghazal Province authorities, and later on confirmed by Kordofan Province authorities, that the river was not River Kiir/ Bahr el-Arab as claimed by Major Wilkinson, but the river was in fact River Ngol/Ragaba ez-Zerga. Despite the proved inaccuracy of the document beyond doubt as early as 1916, the GOS and the Messeria nonetheless presented it to the Commission in 2005, as a conclusive prove that the Ngok Dinka was south of the river mentioned in the itinerary (River Kiir/Bahr-el-Arab). In any court of law, even in the third world, or in the NIF courts in Khartoum, a party relaying on such obviously incorrect document must lose. How could the Commission falsify a document authored in January-February 1902?

Dr. Hiraika is totally unhappy with the Commission use of land occupation, land rights and land use as relevant evidence for delimiting and demarcating the boundaries between Messeria and Ngok Dinka; he calls that falsification of evidence. As we referred to earlier that the Commission could not accurately determined the boundaries of the Ngok Dinka that were transferred to Kordofan in 1905 due to the non-existent of maps in those early days of the Condominium Administration for the provinces, let alone maps delimiting and demarcating tribal boundaries. As such, the Commission found it necessary to determine the nature of established land or territorial occupation and/use rights by all the nine Ngok Dinka chiefdoms, with particular focus on those in the northern-most areas that formed the transferred territory. The Commission had to look and assess territorial boundaries between the Ngok Dinka (who were in Bahr-el-Ghazal) and the Messeria (who were in Kordofan) in 1905, their connection to land, evidenced by established land use patterns.

As the oral evidence given by the two communities could not conclusively prove the case of each side and largely contradicted each other, the Commission had to obtain evidence from archives and other sources in the Sudan, the UK, South Africa and Ethiopia. The Commission had to compare the collected written material with oral testimony. The comparison resulted in interesting patterns of land use by the two communities: first, the Commission found that historical record and environmental factors refute the Messeria claim that their territory extended south of the Kiir River/Bahr-el-Arab; second, the Commission also found that despite the failure of the Messeria on this count, they have clear secondary rights (seasonal) grazing rights to specific locations north and south of Abyei Town; their claim to dominant rights to these places is not supported by documentary evidence. It also found there was sufficient evidence to support Ngok Dinka claims to dominant rights to areas along the Kiir River/Bahr-el-Arab and River Ngol/Ragaba ez-Zarga and these are long standing claims that predated 1905 (see K.D.D. Henderson and Ian Cunnison). Further, the Commission ruled that administrative record of the Condominium period and testimony of persons familiar with the area support the continuity of Ngok Dinka settlements in, use of, places north of the River Kiir/Bahr-el-Arab between 1905 and 1965, the date the northern government and Messeria conspired to depopulate the northern-most Ngok Dinka territory from its Ngok Dinka population. Accordingly, the Commission made the findings Dr. Hiraika is so unhappy with. Dr. Hiraika may disagree with Commissions findings but he has no right to accuse the Commission of falsifying the documents, records or the evidence of persons familiar with the area.

To conclude, I would strongly submit that: The NIF theocratic government and the Messeria accept the conclusions of the Commission and implement them, without reservation. Second, thereafter, there can be talk of restoring the old peaceful existence between the Ngok Dinka and the Messeria. Third, the Messeria have allowed themselves to be used by the governments of Khartoum, particularly the al-Mahdi and NIF governments, to uproot and depopulate the Ngok Dinka area by violence since the British left the Sudan in 1956. Since the American oil giant, Chevron, discovered the existence of oil in the Ngok Dinka area, the governments of Khartoum intensified the use of the Messeria, including the genocidal Messeria Murahillin militia, to depopulate the area.

If the government and the Messeria do what is required and implement the Abyei Protocol and the findings of the Commission, reconciliation is very much desirable and is supported by the provisions of Article 9 of the Abyei Protocol: Upon signing the Comprehensive Peace Agreement, the Presidency shall, as a matter of urgency, start peace and reconciliation process for Abyei that shall work for harmony and peaceful co-existence in the Area. Short of implementing of the findings of the Commission first will definitely make the implementation of the said article almost impossible

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