Disputed Areas: The challenge of historical evidence
By Luka Biong Deng
On 2nd October 2006, President Salva requested Dr Douglas Johnson to prepare for the Government of Southern Sudan (GoSS) a technical background paper on the Southern Sudan borderlines. This background paper was to define the North-South and international borderline of Southern Sudan and to provide as well detailed cartographical and mapping references for the Southern Sudan borderlines. This was one of my first assignments when I was newly appointed as a minister in the Office of the President of GoSS.
This request of Dr Johnson to prepare this position paper came in recognition of his central role in the Abyei Boundaries Commission (ABC) and his enormous wealth of knowledge about history and archives of Sudan, particularly that of Southern Sudan. Dr Johnson was also asked by President Salva to provide technical assistance to the members of GoSS on the North-South Border Committee that delayed to finalize its report by 9th July 2005. One would say that GoSS by then did not take seriously the work of the North-South Border Committee in terms of representation and support and we are seeing now the consequences.
In August 2007, Dr Johnson presented to President Salva the requested background paper with detailed cartographical and mapping references for Southern Sudan borderlines and with specific findings and recommendations. In September 2007, this paper was presented to the GoSS Council of Ministers that resolved to share the report with the public. On 15th September 2007, the Office of the President in collaboration with the Southern Sudan Legislative Assembly organized a public hearing for Dr Johnson to share his findings on the Southern Sudan borderlines. This event attracted the attention of the public as people came in large numbers and the main hall of the parliament was full to the brim. This event is not only one of memorable events that I am proud to organize but it also underlined how much importance the people of the South attached to the border issues.
The main findings of the report include that much of the North-South borderline estimated to be around 2000 kms was not surveyed. The Report recognizes that there are some sensitive and disputed areas where the records will have to be checked very carefully and they include: the Rizeigat Arab–Malwal Dinka grazing boundary south of Kiir/the Bahr el-Arab (the 14 miles area); the right angle bend between Unity and Southern Kordofan states (Panthou area); and the northernmost boundary between Upper Nile and White Nile states. The Report highlights that the demarcation of the North-South borderline will re-open boundary disputes among the peoples along the border as many of whom (in the South as well as the North) have objected to previous boundary demarcations.
Unlike ABC that rightly adopted tribal interpretation of its mandate to define the area of the nine Ngok Dinka Chiefdoms as of 1905, the North-South Border Committee adopted the territorial and administrative interpretation of its mandate to define and demarcate the borderline between the North and South as of 1st January 1956. In fact the Government of Southern Sudan by then and for practical reasons accepted the North-South provisional boundaries, and not the tribal boundaries, as they were on 1st January 1956 as the basis for delimiting and demarcating the North-South borderline. It is critical for our government to clearly convey to the people along the borderline with Sudan this fact that it has accepted administrative boundaries rather than tribal boundaries in defining and demarcating its borderline with Sudan so as to manage and rationalize their expectations.
The real challenge of the administrative interpretation of the borderline is that much of the provisional boundaries are not surveyed and if they are surveyed such records are only found with the Sudan Survey Authority in Khartoum. Unlike the situation of ABC and Abyei Tribunal where oral testimony and community land mapping were used as evidence, the historical and colonial archives, records, maps and written reports and description of provisional boundaries will be critical for making a case for the disputed and claimed border areas. Defining the borderline with Sudan is less about what our people believe to be their traditional, tribal and ancestral land, but it is more about availing historical and administrative evidence of the provisional boundaries as accepted by our government.
Although our people along the border with Sudan were disappointed by the temporary demilitarized border zone, the real challenge now is that the disputed and claimed border areas including Panthou are likely to be resolved through international arbitration. One would say the recent Communiqué of the AU Peace and Security Council on the disputed and claimed areas is a victory to the people of the South, particularly the people along the border with Sudan. I was really concerned that the Cooperation Agreement did not handle well the resolution of the disputed and claimed border areas.
Specifically, Article 4 (1) of the Cooperation Agreement states that: “The Parties shall strive to complete, expeditiously, the negotiation of the outstanding CPA issue of the disputed and claimed border areas”. With this provision the issue of the disputed and claimed border areas was taken back to an endless negotiation process that what the AU Roadmap intended to avoid. Good enough the AU Council in its last meeting corrected this issue of the disputed and claimed border areas and put it on the track of the AU Roadmap.
In particular, the AU Council calls on the Parties, under the facilitation of the AU Panel, to reach agreement, within two weeks, on the process for the negotiations for the resolution of the disputed and claimed border areas. The AU Council further decides that, in the event that the Parties fail to reach agreement on the process for the resolution of the disputed and claimed border areas, the AU Panel will present a proposal to the AU Council, which will then make a final and binding determination and seek the endorsement of the UN Security Council of the same.
It would be logical and sensible for the Parties to accept the final and binding international arbitration for resolving the disputed and claimed border areas. This will require early preparation by the people along the border with Sudan and our government should start planning for this huge task of arbitration. My humble experience as the SPLM Co-Agent for Abyei Arbitration is that international arbitration requires dedicated and motivated people with focus and knowledge as well as organizational skills and ability to manage time and meet deadlines and to communicate well with people.
Also gathering historical evidence for the international arbitration will be a real challenge to our government and people in the disputed and claimed areas. Most of the records and archives are all in Khartoum and even the records and archives that we have in the South are poorly managed. Some of our leaders in the South during war behaved like Islamists in Mali and decided to burn to ashes our historical archives. Even after peace and independence our archives became homeless and only sheltered in appalling conditions in tents from which they have been recently removed and placed in storage containers.
Paradoxically, we will be bound to resort and dig in these mismanaged archives to find historical evidence to support our legal case for the disputed and claimed areas in the international arbitration. A nation is judged not only by how it deals with its present and future but also by how it deals with its past. Despite the recent good efforts by our government with support from Norway to build national archive, the limited investment in the management of our archives deserves national scrutiny and attention.
As a co-chair of the sub-committee on debts and assets, we managed to include in the recently signed Agreement on Certain Economic Matters not only the transfer to the South any part of an archive which relates to the territory of the South but also ensured access of individuals or groups of people to information about their history and cultural heritage. Although accessing public information was even difficult before the secession of the South, the people in the disputed and claimed border areas and our government have the right under this agreement to ensure access to historical information related to provincial boundaries. During Abyei Arbitration, the SPLM team was denied access to records and archives in Khartoum and the Abyei Tribunal had to issue a court order requesting the government of Sudan to avail such information to the SPLM team.
Winning the case of the disputed and claimed border areas will be an uphill task that will require a lot of preparation and planning. I am happy that Governor Taban Deng and Governor Paul Malong have taken some concrete steps in gathering historical evidence for Panthou and Mile 14 area respectively. Our government should now form technical teams for the disputed and claimed border areas as well as a high level legal and border experts team to start now the preparation for the international arbitration. Our government should also identify now and contract a competent legal firm to represent the South in the border arbitration. Availing the right historical evidence about provincial boundaries with good planning and preparation for the arbitration will be the only way we can secure the claimed and disputed border areas as part and parcel of the territory of our new nation.
Luka Biong Deng is a senior member of South Sudan’s ruling Sudan People Liberation Movement (SPLM) and the Co-Chair of the Abyei Joint Oversight Committee. He can be contacted at email@example.com. This article was published first by the New Nation Newspaper – New York, US