Ocampo’s Indictment of Al-Bashir is Risky for the CPA
By James Okuk
I came across a great article in Sudan Tribune Website from a great elder of South Sudan (call him Prof. Isaiah Abraham). It was titled “JEM proposal for Sudan Interim Govt must be rejected.” I read the article with relish from paragraph to paragraph as I found a lot of political wisdom in it. The author presented deep political analysis and straightforward strategic presentation of South Sudan benefits from the Comprehensive Peace Agreement (CPA) whose implementation is guaranteed only through a sincere partnership of Sudan People’s Liberation Movement (SPLM) with National Congress Party (NCP) during the interim period (2005 – 2011). With this article of mine, I would like to shed more light for “Peace before Justice.” I will do this in opposition and rejection of the hasty proposals of the International Criminal Court (ICC) Prosecutor and Justice and Equality Movement (JEM) for the Regime Change in the Sudan.
At the dawn of the media announcement of the too-ambitious proposal of the Prosecutor of the ICC for issuance of arrest warrant to the sitting president of the Sudan, the JEM also announced the proposal for Regime Change as part of implementation of Ocampo’s ulterior motive and envy of the CPA progress under the leadership of President Al-Bashir and his two deputies, H.E. Salva Kiir and H.E. Ali Osman. The gist of JEM’s text reads:
There can be no doubt that the ICC indictment of Albashir has created a new reality and political dynamics that have to be taken into account. The indictment erodes Albashir’s legitimacy as a President and destroys authority of his ruling party (NCP) which has colluded in his denial of genocides, war crimes and murder alleged in the indictment.
The erosion of legitimacy of the current Sudanese government obligates all political parties and forces to intervene in a responsible way and prevent the country from sliding into chaos, anarchy and constitutional vacuum.
It is a duty of all to act courageously in order to preserve national, regional and international agreements that are crucial for maintaining peace and stability in the country.
The current state of uncertainty and lack of legitimacy provide an environment conducive for escalation of ongoing corruption, lack of security, lawlessness and dictatorship.
In order to overcome these challenges and save the country from an eminent collapse and disintegration, JEM proposes an immediate formation of a transitional government of national unity (TGONU) with the following objectives:
1) Institution of rule of law and preservation of citizens rights;
2) Preservation of unity of Sudan and its people;
3) Putting an end to war, compensation of war victims and initiation of reconstruction of war affected areas;
4) Institution of freedom and embarking on transition to democracy;
5) Restoration of good international and neighborly relations based on mutual interests;
6) Implementation of fair division of power and wealth, and
7) Commitment to international conventions and cooperation with international organizations.
Without hesitation, JEM proposal for a new system of rule in the Sudan (aimed to get its wishful effectiveness after Al-Bashir has been locked up behind bars in The Hague) must be rejected categorically by peace-lovers (especially the SPLM and Southerners) for the following reasons:
Firstly, this proposal nullifies the current Interim Constitution of the Sudan, throws it in the garbage of history and then presents a new constitution whose nature is unknown (but probably it is suspected to be an Islamic constitution).
the proposal presents contradictory statements because it repeals the current constitution while at the same time it says that the rights of the people of Southern Sudan shall be reserved (as stipulated in the CPA) by the new TGONU.
even within this contradiction, the proposal does not mention directly the guarantee of self-determination for the people of Southern Sudan in 2011.
Fourthly, the proposal does not specify
who will be the head of the TGONU: is he going to be Dr. Hassan El-Turabi or Dr. Khalil Ibrahim or Mr. Abdel Wahid Al-Nur? What it specifies is that there shall be seven regions in the Sudan with seven vice presidents, each presiding over one of them: Northern Region, Central Region, Eastern Region, Southern Region, Khartoum Region, Kordofan Region and Darfur Region.
Fifthly, this proposal is in the line with the Confederation System of Governance in the Sudan that was proposed by H.E. Malik Aggar last year (October 2007) and welcomed by Darfuris movements and New Sudan activists who are spending sleepless nights (by so many means) to abort the constitutional right of the people of Southern Sudan to determine their future destiny in 2011 (without repeating the mistakes of the past at the eve of the first independence of the Sudan from Anglo-Egyptian Colonialists).
The proposal of the JEM and its connection to the ICC Prosecutors’ move against the sovereign government of the Sudan is an ambition without a rocky foundation. The JEM leaders and the ICC’s Ocampo have failed to understand that the SPLM-NCP partnership is supposed to be a “Catholic Marriage” till the time of the referendum for Self-determination by the people of Southern Sudan under supervision and monitoring by National bodies (Referendum Commission and etc), Regional bodies (AU, IGAD, etc) and International Community (UN and NGOs). By that time the position of Southerners shall be clear: either establishment of new African Republic of South Sudan or continuation of the current Arab and Muslims dominated one Sudan with Southern Sudan as its semi-autonomous decentralized region with freedom of alcohol sale and drinks.
The International Criminal Court (ICC) Prosecutor, Luis Moreno-Ocampo is trying his political best and media publicity to abort the opportunity of the CPA in the Sudan by indicting the Commander-in-Chief of the Sudan Armed Forces, and criminalizing him with a risky proposal for arrest warrant. This Argentinean judge seems to ignore the fact that the CPA shall be defended jointly by the NCP and the SPLM against the possible consequences of his dangerous move on Sudan stability. The world shall not accept to endanger or sacrifice the CPA because of the crisis in Darfur. Ocampo may get disappointed and pressured to resign his post for having miscalculated his investigations, and for subjecting the ICC to become the casualty of his imprudence and impatience.
Up to now the Ocampo’s proposal is being studied by the three women judges (Akua Kuenyehia from Ghana, Sylvia Steiner from Brazil and Anita Usacka from Latvia) in the Pre-trial Chamber of the ICC compound in The Hague. These women are very tough and competent, not only in legal procedures, but also in jurisprudence and promotion of women well-being. They may shame Ocampo by throwing his application (against the sitting head of the largest African State) into a dust bin, and tell him to open a new indubitable investigation de novo (if he insists not to forget about it). These tough ladies know that Ocampo has aimed very high and may fail very low sooner or later, especially with his sexual scandal case with a South African woman journalist. It is known within the ICC vicinity and by some Human Rights Watchdogs that Ocampo wrongly dismissed his media advisor (Christian Palme) for having complained about his misconduct for sexual pleasure with an African journalist.
These ladies judges are now scrutinizing seriously the application against H.E. Mr. Al-Bashir and weighing many possibilities in accordance with the dictates of legal wisdom that balances the interests of the victims of the alleged crimes with the reaction of the indicted victimizers. From their professional experience and concern for the wellbeing of the people of the Sudan (especially the women), these ICC judges will know which path to choose from the following options:
1) Pursuing Peace and Justice at the same time is too heavy and risky to be managed piecemeal in a country that is still characterized by fresh and bitter war memories – both values may be lost at the same time if mismanaged with incompetence.
2) Prioritizing Justice to Peace is dangerous and elusive for the pursuit of socio-political reconciliation and harmony; and
3) Delaying Justice for the sake of Peace is the safer way for managing the differences gradually (step by step) especially when the sovereignty and immunity are still dressed on the indicted individual. Though the option of peace-first-justice-next is a tortoise move yet it is a sure race for a lasting victory.
These wise ladies may opt for the third option because they understand that any hasty and impatient application of justice will be useless as it will destroys peace in the Sudan and the region. They may tell the Prosecutor to go to hell with his charges and leave the Sudanese president alone in his efforts to oversee the stability in all parts of the Sudan within the spirit of SPLM-NCP partnership, and with the help of the UN and AU peacekeeping missions and other friendly bilateral observers.
These women judges are also strong gender activists. For instance, Kuenyehia (who is also the presiding judge of the chamber) has written extensively on gender law and rights of women in Africa. She provided consultancy services to the World Health Organization (WHO) on “Women’s Health and Violence” in 1998. Also she presented a strong paper titled “Gender Challenges of the Rome Statute” at Nottingham University in 2004. The other two judges, Steiner and Usacka, have also written on topics relating to violence against women throughout their careers.
All these woman judges understand that if total chaos broke out in Darfur and in other parts of the Sudan as a result of Ocampo’s disturbance of the current tranquility in the country, it will be the Sudanese women who shall suffer most. The angry supporters of Mr. Al-Bashir (after expelling the UN and AU forces from the country) may find a lawless environment to rape the females (male shall not be raped because Sudanese hate homosexuality) and leave so many of them as widows who are burdened with care of the orphans and the wounded. The International Community shall only repeat their famous say (as they are used to) after things have fallen apart in the Sudan: “we are so sorry for what happened and we hope this will never be repeated again in the history of humankind.” There is undeniable evidence that so many atrocities have been committed repeatedly right in the face of the International Community, especially when they failed to work together in coordination with the government of the country of their mission.
Also it is known in the law studies that the judges give verdicts on the already committed and proven crimes. They do not give their judgment on the ‘would-be-committed’ or doubtful crimes. For example, the law does not condemn conclusively a person for an intended murder if he/she did not go out to kill and leave somebody or some people dead beyond reasonable doubt. In other words, the law does not regard somebody who has been threatened with death as a dead person. That is why the deterrence aspect of the law has been falsified not to be justice at all; it is only a threat and pressure on the individuals or communities who may intent to do criminal acts but have not done it yet. The deterrence does not work for the accused or the convicted criminals who are courageous and mindless of the bad consequences or accountability for their heinous acts.
Ocampo and his Franco-Anglo-American friends have failed to grasp that the NCP cadres work best under the pressure because this unite them to move quickly and turn every stone to their side. For example, up to now their security agents work very closely with the American CIA. The NCP got onto the pyramid of decision-making in the Sudan through a crisis. The internal war, the bilateral sanctions and international threats have given these military Islamic juntas more strength than weakness. If the world wants to neutralize the NCP and distance them from power in the Sudan, it should do this by trapping them into a peaceful and liberal environment rather than pushing them into a tide corner of justice where they are very professional in jumping out like cornered cats. Even if Ocampo’s application goes through in the ICC Pre-trial Chamber, the NCP cadres will reduce the issued arrest warrant into a dead letter because no country will risk to tie the bell of international justice on the neck of the big dangerous cat of the Sudan. Al-Bashir will continue to be Al-Bashir with Chine and Russia defending him from his backyard. Nothing is going to happen apart from media noises and political statements.
Ocampo seems to have miscalculated his political pressure on the top official of the government of the Sudan, thinking that he is doing the right think to stop the American defined controversial genocide in Darfur. If Ocampo’s claim of genocide is a past act (of killing 350,000) rather than present activity or future intent, then he should go ahead to indict not only President Al-Bashir but also whoever was a President of the Sudan or leader of a rebel movement during the time of war in the South. Whoever was a C-in-C of an organized armed force who killed the same number of people or more in other parts of the Sudan should be accounted for the same statistics of dead bodies. History records that the war in the South cost 2,000,0000 or more lives until 2005. Should Sadiq El Mahadi be indicted for his share in these killings when he was in the same office before Al-Bashir’s group overthrew him militarily? Or are the lives of these two millions dead southerners valueless because they are not favorites Zaghawa, Fur or Masalit ethnic groups of Ocampo’s concern?
The critical Southerners know it very well that whoever attempts to temper with the right of Self-determination in the CPA deserve to be leveled with a big warning ‘RED MARK’ in front and at the back. They know how to erect a big Red Post at the border with the CPA spoilers to warn them of “INTOLERABLE GREAT ENEMIES OF THE SOUTH.” With the above proposal, no doubt that JEM is a great enemy of the core interest of Southerners, THE UNTOUCHABLE SELF-DETERMINATION. Therefore, all the people of Southern Sudan who are convinced of the value of the CPA - be they in the SPLM, SPLA or in any other political party or as individuals – must unite and stand with President Al Bashir (like they did in Omdurman twin city) to prevent JEM and Ocampo from entering Gordon Pasha Palace in the confluence of the Blue and White Nile in Khartoum in an attempt to spoil the available CPA opportunities for the South. If the CPA becomes dead, it is the Southerners who will be the great losers because they may not get other better option but to return to square one of war of separation and independence.
Southerners who value the CPA should not let down the NCP with their crisis of the ICC until the end of the interim period of the CPA era is over. The NCP is the only political party in the history of politics of the Sudan that admitted in Machakos in 2002 and in Nyayo stadium in Kanya on the 9th January 2005 that the people of Southern Sudan have the right to practice their right to Self-determination in an internationally monitored democratic Referendum, comes 2011. If at all there is something called ‘best devil,’ the NCP leaders are the ‘best devils’ the SPLM and Southerners have at this moment because of the CPA deal with them. They may not be very serious in implementing the CPA but they are very serious not to allow it to be killed. They prefer to let the Southerners go in peace to take care of their own beloved land of South Sudan. That is why they are busy building the north from the money that comes from the oil in the South because they know that Southerners will be gone by the end of interim period.
The open-minded Southerners are pretty aware that any other political party or rebel movement in the North (with an Islamization agenda like JEM or with secular Communist agenda like SLM) will not guarantee the inviolable right for Self-determination if the NCP regime is ‘short-changed’ with the help from Ocampo’s ICC double-standard-political-indictments under the cover of international justice to the victims of Darfur’s crisis. If this ill-motivated move for the Regime Change is achieved what will be the fate of the CPA in the unreliable hands of the strange new guards who had nothing to do with Machakos, Nakuru, Nyanuki, Naivasha and Nairobi where CPA was got cooked and engineered? Where will the SPLM get partners to work with in implementing the CPA to its logical end ( in the remaining three years of the interim period) if the NCP leaders are evicted undemocratically from the Presidential Palace in Khartoum and taken to the international prisons in The Hague?
So far it is known that the CPA is only owned by the political parties and people who believe in its value. It is not every Sudanese or every foreigner who is in love with this document. The JEM, the SLM, the Communist, the Umma Party, the Popular Congress, and the etc, do not feel good about the existence of the CPA and are ready to spoil it if they get a chance to enter the Gordon Palace by any means (including the ICC criminology means). It is known that the CPA almost collapsed after the news of the unexpected departure of the unforgettable Dr. John Garang from the mortal world when he boarded the evil Ugandan Presidential Chopper, which took him to the immortal realm of no-return, leaving his scattered burnt body to be put in state casket covered with SPLM Flag of Honor (the flag of Sudan was thrown away later) and laid to rest in his mausoleum near Southern Sudan Parliament in Juba. The whole world had to run up and down to get the Lioness Rebecca Nyadeng, and use her courage of ‘no-tears-for-death-of-my-husband’ to convince the mourners that they should get calm and refrain from returning to war and chaos because their beloved hero is still alive in the CPA. Not only this, but the Lioness said clearly that she will not mourn nor avenge for the loss as long as the CPA remains alive and kicking. Indeed, the people got calmed and allowed Dr. Garang to be alive up to now through the CPA. The Garang’s case is a lively lesson which should not be repeated so easily – with weak memory and short-sightedness – in the form of the current case of the ICC Prosecutor with Mr. President Al Bashir. We don’t want again any burnings and killings in Khartoum or any part of the Sudan as a result of the ICC action on the sitting President of the Sudan.
I am sure that the future of the CPA lies with the SPLM-NCP cooperation, and not really with any other Northern Political parties who have been tasted but failed to acknowledge the destiny of the South. Southerners do not have and will not have any other best alternative than the CPA. For them, the CPA is and will always be the Bible, the Dengdit, the Ngundeng, the Nyikang, the Magic, the Wizard, the Rock, and (name it….) for the six-year interim period (2005 – 2011). They will never accept any compromise on this hard-earned document (from their beloved hero Dr. John Garang de Mabior Atem) even if the Savior Jesus comes back together with the Prophet Mohammed in one flight to make the fundamentalist Muslims of the Sudan become Christians who respect the ten commandments and the Rule of Love and Peace. To convince the SPLM leaders and also the Southerners that the CPA can survive without one of the parties who contributed to its cooking in Kenya, would be like convincing Fanatic Muslims to eat pig meat and pray five times a day while facing Jerusalem in Israel instead of Mecca in Saudi Arabia.
James Okuk is a concerned Southerner and a PhD student in University of Nairobi. He can be reached at
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