Published online by Cambridge University Press: 14 September 2011
Affiliation with a political community or entity has throughout history been important for the purposes of protection and belonging. This article discusses the concept of citizenship in Sudan in light of the Sudanese and Southern Sudanese interim constitutions and relevant laws, taking into consideration the international norms in this regard. It also sheds light on the application of the law and possible scenarios when the South becomes an independent nation. It argues that a set of legal rules that organize nationality issues in Sudan and Southern Sudan are inconsistent with general nationality principles and that, if their provisions remain valid until the fragmentation of Sudan becomes a reality, many post-secession violations will be difficult to avoid. It suggests a series of measures that the main parties to the National Unity Government should take to avert such violations and secure peaceful and neighbourly relations in the years to come.
2 This is indeed consistent with the “abstract or pure” concept of human rights. It might lead us at some point in the future to a point where there will be no difference between human rights and civil rights.
3 For further discussion on this point, see Deng, FWar of Visions: Conflict of Identities in the Sudan (1995, Brookings Institute Press)Google Scholar.
4 A de Waal “Who are the Sudanese?” Making Sense of Sudan (previously Making Sense of Darfur) (Social Science Research Council, 14 December 2009), available at: <http://blogs.ssrc.org/sudan/2009/12/14/who-are-the-sudanese/> (last accessed 21 January 2010) (emphasis original).
5 The Interim National Constitution is available at: <http://www.sudan-embassy.de/c_Sudan.pdf> (last accessed 19 January 2010).
6 The Definition of Sudanese Ordinance was passed in 1948. The ordinance abolished the then general rule and practice that anyone who was subject to Sudanese jurisdiction was Sudanese. This ordinance was repealed by the Sudan Nationality Act 1957.
7 This act was the first Sudanese nationality act to satisfy the modern requirements of nationality laws as it contained modern nationality law concepts, norms and principles. It repealed the Definition of Sudanese Ordinance 1948.
8 The act was Provisional Decree no 19 of 1993, pursuant to the provisions of sec 27 of the 5th Constitutional Decree of 1991.
9 1993 Act, sec 3.
10 The Holy Qu'ran, part 21, chap 33, Surat Al-ahzab, verse no 5: “Call them by [the names of] their fathers; this is more equitable with Allah; but if you know not their fathers, then they are your brethren in faith and your friends. And there is no blame on you in that wherein you make a mistake, but [you are answerable for] that which your hearts purpose. And Allah is ever Forgiving, Merciful.”
11 Adopted by the National Assembly on 27 June 2005 and signed by the president of the republic on 6 July 2005.
12 For further information, see Manby Citizenship Law in Africa, above at note 1 at 42.
13 The USA is well known for following this rule. In Africa, only five countries (Chad, Equatorial Guinea, Lesotho, Mozambique and Tanzania) provide for the rule in their laws. See Manby, id at 36 for further details.
14 77 Eng Rep 377 (1608) at 377.
15 United States v Rhodes 27 Fed Cas 785 (1866) at 785.
16 As provided for in art 12 of the Convention on Certain Questions relating to the Conflict of Nationality Law, adopted in April 1930, entered into force on 1 July 1937.
17 Art 48 provides: “(2) Citizenship is the basis of equal rights and duties for all Sudanese in Southern Sudan, subject to art 9(3) of this Constitution. (3) Every citizen in Southern Sudan shall enjoy all the rights guaranteed by this Constitution and the Interim National Constitution. (4) The law shall establish a public registry of every birth, marriage or death in Southern Sudan.” The Interim Southern Constitution is available at: <http://www.chr.up.ac.za/undp/domestic/docs/c_SouthernSudan.pdf> (last accessed 21 January 2010).
18 Issued in accordance with sec 27 of the 5th Constitutional Decree 1991.
19 The 1957 Act (as amended in 1974) is available at: <http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3ae6b56718> (last accessed 10 March 2010).
20 UN Treaty Series vol 989 at 175, available at: <http://www.unhcr.org/refworld/docid/3ae6b39620.html> (last accessed 9 March 2010).
21 Adopted and opened for signature, ratification and accession by General Assembly res 2200A (XXI) of 16 December 1966, entered into force 23 March 1976, in accordance with art 49.
22 Adopted and opened for signature, ratification and accession by General Assembly res 44/25 of 20 November 1989, entered into force 2 September 1990, in accordance with art 49.
23 OAU doc CAB/LEG/24.9/49 (1990), entered into force 29 November 1999.
24 Art 56(3) of the ACRWC and art 24 of the ICCPR.
25 Sec 9 of the 1957 Act (as amended in 1974). The president of the republic, upon the recommendation of the minister of interior, was also entitled to exempt alien women married to Sudanese nationals from the two year residency requirement.
26 For detailed analysis on this gender discrimination point, see Manby Citizenship Law in Africa, above at note 1 at 45–54.
27 Available at: <http://www.splamilitary.net/documents/Nationality%20act%202003.pdf> (last accessed 21 January 2010). This act was adopted by the SPLM in a series of New Sudan legislation. This legislation was being applied in the areas that were under the control of the movement in Southern Sudan, Nuba Mountains and the Blue Nile area. It will probably be applied in the South as formal national legislation, following the vote by the people of the South for an independent state in the referendum. The act is not currently effective as nationality issues are organized by national laws. Nor is there any clear-cut indication that the act will be definitely adopted after the formal declaration of the new state. The reason why this act is discussed here is that all New Sudan laws have been adopted by the legislature in Southern Sudan. A circular issued by the Ministry of Legal Affairs and Constitutional Development states: “In Southern Sudan, all the current laws, National and New Sudan laws shall continue to operate in Southern Sudan till new actions are taken.” In addition, it explains that “[a]ll the current laws” shall be interpreted to mean the non-Sharia-based New Sudan Laws. The reason why the New Sudan nationality law is ineffective is because nationality issues are organized by federal laws and legislation. Furthermore, as most of the New Sudan laws were passed by the Southern Sudan legislature into law, there is good reason to believe that it would do similarly with regard to the New Sudan Nationality Act. That is the justification for discussing this law in this article.
28 New Sudan Nationality Act, sec 5.
30 A strong argument could be made that sub-sec (1)(a)(ii) should be deleted altogether to eliminate the need to depend upon ethnicity as a basis for being eligible for New Sudan nationality. Southerners who are currently outside Southern Sudan because of the 25 year civil war would be required by the law to demonstrate that they or their parents were resident in the South for a period that qualifies them to be citizens of the new state.
31 This is a political notion invented by the late Dr John Garang de Mabior, the founder of the SPLM, to address what he calls the “fundamental problem of Sudan”: non-recognition of diversity and plurality.
32 New Sudan Nationality Act, sec 9(f).
33 Malanczuk, PAkehurst's Modern Introduction to International Law (7th ed, 1999, Routledge)Google Scholar at 264.
34 Manby Citizenship Law in Africa, above at note 1 at 63.
35 Sec 11(a) and (d) of a draft nationality bill that was presented to the National Assembly in 2002 expressly provided for that. The bill was not passed by the National Assembly into law.
36 Malanczuk Akehurst's Modern Introduction to International Law, above at note 33 at 169.
37 Text adopted by the International Law Commission at its 51st session in 1999 and submitted to the General Assembly as a part of the commission's report covering the work of that session (at para 48). The report, which also contains commentaries on the draft articles and is available at: <http://www.unhcr.org/refworld/pdfid/4512b6dd4.pdf> (last accessed 18 February 2010), also appears in Yearbook of the International Law Commission 1999, vol II, part two.
38 UN Human Rights Council “Human rights and arbitrary deprivation of nationality: Report of the secretary-general” (14 December 2009) A/HRC/13/34, available at: <http://www.unhcr.org/refworld/docid/4b83a9cb2.html> (last accessed 9 March 2010).
39 Id, arts 50–53.
40 Id, art 54.
41 See part A, art 1.3 of the Machakos Protocol, signed at Machakos, Kenya on 20 July 2002, and part 16, art 219 of the 2005 constitution.
42 The exact number of Southern Sudanese in Northern Sudan regions is difficult to ascertain. For information on this, see: <http://www.internal-displacement.org/> (last accessed 8 April 2010).
43 The Interim National Constitution, for instance, ties particular rights (such as freedom of movement and ownership of property) to citizenship, which means that loss of citizenship automatically leads to the inability to exercise certain rights. This also leads to questions about the rights of “legal residents”.
44 If Southerners who are currently in national civil service lose their jobs after secession, then there arises a question relating to who is responsible for their pensions (largely a debt and assets issue) and whether the government of Southern Sudan can absorb them into its own civil service, which is not yet fully structured or regulated.
45 A Monim El-jak “Identity and urbanism: An exploratory research on Khartoum city as capital for peace and cultural rights” (MA thesis submitted to the American University in Cairo, Department of Anthropology, 2004) at 58.
47 The first was adopted by the Sudanese Cabinet on 13 December 2009 and by the National Assembly on 29 December 2009. The Abyei Referendum Act was adopted by Parliament on 30 December 2009. The residents of Abyei will have to choose between remaining part of the North or joining the South when it becomes independent.
48 In the particular context of Sudan, there is no dispute or disagreement about the tribes that are considered “indigenous” to South Sudan. Even from the names, it is very easy to distinguish a Southern Sudanese from a Northern Sudanese. However, there is a problem regarding ethnic and tribal groups that are cross-border with Uganda, Central African Republic etc. A similar example is the situation of cross-border Banyarwanda in both Uganda and the DRC, where people have said that they are not “indigenous” even though historically the Rwandan kingdom stretched into both Uganda and the DRC. Another group that could face serious problems and difficulties is people of mixed parentage: those whose mothers are Southerners and their fathers are Northerners and vice versa.
49 Southern Sudan Referendum Act, sec 25.
50 There is, however, a clear ethnic bias in the Abyei referendum law as the Ngok Dinka were privileged over other residents. There is a reason for this: Abyei consists of the nine Dinka Ngok kingdoms. It is interesting to mention that the Misseriya used the argument of citizenship to challenge the privileging of the Dinka Ngok.
51 Referendum Act of the Abyei Region, sec 25.
52 Id, sec 6(1)(b).
53 Recognizing someone as a resident and allowing them to vote in Abyei is connected to their status in the South as and when it separates. In law, there is a strong relationship between staying or living for a long time in a certain place and rights and duties.
54 H Byrne “Eritrea and Ethiopia: Large-scale expulsions of population groups and other human rights violations in connection with the Ethiopian-Eritrean conflict” Question and Answer Series 1998–2000 (2002, INS Resource Information Centre) at 8. See also Manby, BStruggles for Citizenship in Africa (2009, Zed Books)Google Scholar at 96; and discussion on state succession in Manby Citizenship Law in Africa, above at note 1 at 21–23 .
55 In January 2010, the Sudanese president addressing a southern rally in Khartoum said that, if the South separates, Southerners living in Khartoum would not be expelled. The president of Southern Sudan stated on 19 January 2010 that “the north and south will continue to be economically and politically connected whatever the choice of the people of Southern Sudan”.
56 Mass expulsion is strictly prohibited under international law principles and rules, even under occupation circumstances. For example art 49 of the Geneva Convention of 1949 stipulates, among other things, that: “ Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”
57 Referendum ‘93: The Eritrean People Determine Their Destiny: Report of the Referendum Commissioner of Eritrea (1993, The Red Sea Press Inc) at 183, 188 and 193, cited in Byrne “Eritrea and Ethiopia”, above at note 54 at 10.
58 Manby Citizenship Law in Africa, above at note 1 at 22.
59 Id at 25.
60 Examples of rights and freedoms that are of particular significance to minorities are religious rights and access to education.
61 Sec 67(3) of the act provides: “The parties of the CPA shall enter into negotiations aiming to achieve an agreement on post-referendum substantive issues to be witnessed by the organizations and countries signatories to the CPA such as: (a) nationality; (b) currency; (c) public service; (d) position of Joint Integrated Units, National Security and Intelligence; (e) International Agreements and Conventions; (f) assets and Debts; (g) oil fields, production, transport and export of oil; (h) contracts and Environment in oil fields; (i) water; (j) property; (k) [and] any other issues to be agreed upon by the two parties.”
63 Manby Struggles for Citizenship in Africa, above at note 54 at 117.
64 See “Darfur: Abductions, sexual slavery, forced labor” (report published by the Darfur Consortium in December 2008) at 13.
65 For further discussion, see Manby Struggles for Citizenship in Africa, above at note 54 at 66–80.
66 According to sec 9 of the 1994 Act, the president of the republic, on the recommendation of the Ministry of Interior, has a discretionary power to naturalize anybody notwithstanding the provisions of the act.
67 Sec 7(1)(c).
68 E-mail correspondence and a short document sent by e-mail on 25 January 2010. This supports the report released by the Darfur Consortium (above at note 64) and claims made by Darfurian political groups and some international organizations.
69 Manby Struggles for Citizenship in Africa, above at note 54 at 83.
70 This may also make the new Southern state vulnerable to criticism, particularly at a time when it may be looking for state recognition from the community of nations and membership in key human rights and other international originations and institutions. The political leadership in Southern Sudan will very likely be very sensitive to world opinion once it is in the process of being an emerging state looking for state recognition.
71 As required by sec 67(3) of the South Sudan Referendum Act.
72 de Waal “Who are the Sudanese?”, above at note 4.
73 Manby Citizenship Law in Africa, above at note 1 at 12.