Water and Agriculture, and Federalism and Self-determination in … · 2016. 4. 1. · Sudan...

Consultation Report No. 2

Water and Agriculture, and Federalism and Self-determination in the Sudan

The Sudan Peace-Building Programme

African Renaissance Institute (ARI)

&

Relationships Foundation International (RFI)

Hemel Hempstead, United Kingdom

July 2001

Table of Contents The Summary Discussion Notes included in this document were compiled under the Chatham House Rule. They do not reflect the opinions of anyone participant but are drawn from the range of views expressed, nor do they necessarily reflect the views of the African Renaissance Institute or the Relationships Foundation International.

Part Page PREFACE i Table of Contents 1 I. Summary of the Second Consultation 4 II. Letter from Professor Richard Hassan Kalam Sakit on Behalf of Sudanese Participants 6 III. List of Participants Attending the Second Consultation, in a Personal Capacity 7 IV. Background Papers to the First Consultation and Summary of the Ensuing Discussion 9

1. International Agreements: General Principles in Relation to the Management of, and Abstraction of, Water from International Rivers 9

a. Paper presented by Mr Ian Sinclar 9

b. Summary of discussion 23

2. River Flow Available to the Sudan: hydrological and environmental implications 25

a. Paper presented by Mr Roger Belshaw 25 b. Summary of discussion 42

3. Poverty-Reducing Agricultural Development in the Sudan: an outline of preparations for the next Nile Waters agreement 43

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a. Paper presented by Professor Deryke Belshaw 43 b. Summary of discussion 63 4. The Current State of Agreements and Consultations on the Nile

Waters with Special Reference to the Sudan 65 a. Paper presented by Mr Ian Sinclair 65

b. Summary of discussion 84 5. Specific Negotiating Issue to be Resolved Within the Sudan

Relating to the Nile waters 85 a. Paper presented by Mr Ian Sinclair 85

b. Summary of discussion 102

6. Political Transitions: a Relational Analysis 103 a. Paper presented by Dr Michael Schluter 103 b. Summary of discussion 110 7. Alternative Interim Frameworks for Transition in the Sudan 111 a. Paper presented by Dr Edward A. Christow 111 b. Summary of discussion 131 8. Alternative Interim Frameworks for Transition:

International Experience 135 a. Paper presented by Professor Murray Forsyth 135 b. Summary of discussion 141 9. Alternative Interim Frameworks for Transition: Options

for Revenue Distribution 142 a. Paper presented by Professor Kenneth Davey 142 b. Summary of discussion 147

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10. Strategies for Facilitating, Enabling and Sustaining a Mutually Agreed Transitional Framework 149

a. Paper presented by Dr Jeremy Ive and Dr Edward A.

Christow 149 b. Summary of discussion 177

V. Notes on the Way Forward for the Sudan Peace-Building Programme 179

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I. Summary of the Second Consultation

“It gives us hope to know that there are quiet and effective persons who feel strongly about the suffering of their fellow men and devote their time and energy to contribute towards its

solution. The five days of meetings… and the background papers clearly indicated the serious efforts made by the authors. Our thanks and appreciation go to them… please double your

efforts and add the Sudan to the growing list of your achievements.”

Letter from Dr Richard Hassan Kalam Sakit on Behalf of Sudanese Participants A. Participants and Venue of the Second Consultation The second consultation brought together 17 Sudanese participants, 2 Sudanese discussants, 5 international consultants and 9 international facilitators, who all attended in their personal capacities. The Sudanese participants came from the following constituencies in the Sudan: Beja Congress, Civil Society, Democratic Unionist Party, Federal Alliance, National Congress, National Democratic Alliance, Women Groups, Sudan African National Union, Sudan Communist Party, Southern Front, Sudan Human Rights Group, Sudan Law Society, Sudan Peoples’ Liberation Movement, Sudan Peoples’ Liberation Movement-United, Sudan Trade Unions, Umma Party and Union of Sudan African Parties. B. Introduction 1. Introduction of participants to the Sudan Peace-Building Programme Introduction to the background, purpose and modus operandi of the Sudan Peace-Building Programme, the background of the African Renaissance Institute and the relational thinking which underpins the work of the Relationships Foundation, the parent body of the Relationships Foundation International.

2. Participant introductions Each participant gave a brief personal history of themselves and their current involvement in the Sudanese situation.

3. Update on Recent Developments in the Sudan and the Horn of Africa There was a discussion of the position of the country highlighting the need for peace and providing an update on recent developments in the Sudan and in the Horn of Africa. This included a review of the IGAD process to date and responses to the recent Libyan-Egyptian proposals. C. Areas Covered by the Second Consultation During the consultation a total of ten papers were presented by experts on water development and legal agreements, as well as on the issues of federalism and self-determination in the light

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of a number of transitional scenarios. External consultants, discussants and an internal team prepared these papers. There was vigorous and informed discussion on each paper. 1. Nile Waters and Some Issues Relating to Agricultural Development a. International Water Agreements b. River Flow Available to the Sudan: Hydrological and Environmental Implications c. Poverty Reducing Agricultural Development in the Sudan: an Outcome of Preparations

for the next Nile Waters Agreement i. Implications of Sudan’s Crop and Livestock Production Potential for a Nile Waters

Agreement ii. Problems and Solutions:

• Developments in Neighbouring States • Regional Inequalities within the Sudan

d. Current State of Agreements and Consultations on the Nile Waters with Special Reference to the Sudan

e. Specific Negotiating Issues to be Resolved within the Sudan relating to the Nile Waters 2. Federalism and Self-determination a. Political Transitions: a Relational Analysis b. Alternative Interim Frameworks in the Sudan c. Alternative Interim Frameworks: International Experience d. Options for Revenue Distribution e. Strategy for Facilitating Enabling and Sustaining the Mutually Agreed Transitional

Framework D. The Way Forward for the Programme After thorough discussion on the way forward, the participants agreed that the process has become self-sustainable and that, funding permitting, they should continue to meet every four months. The participants also decided to form a small interim working group to work on issues relating to the Nile waters (as a pre-requisite for a new international agreement involving the relevant riparian states) and agriculture in the Sudan. This group is to be made up of a number of Sudanese experts reflecting different regional perspectives and will follow-up the research initiated by this consultation through regular meetings. E. Review of the Next Consultation and Review of other Topics to be Included in the

Programme Funding permitting, the next meeting will look into (1) Oil and Gas Sectors and (2) Religion and the State. The fourth consultation will take place in March 2002 and look into (1) Security and Military and (2) Internally Displaced Persons. Papers will be prepared by a combination of Sudanese and international contributors.

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II. Letter from Professor Richard Hassan Kalam Sakit on Behalf of Sudanese Participants

Professor Washington Okumu, Crispin Viscount Brentford, Dr. Michael Schluter, Members of the Secretariat of the Sudan Peace-Building Programme. Dear Ladies and Sirs, I am honoured to be asked by my friends and colleagues to say a few words in their behalf at the end of this instructive meeting. We all thank the organisers, Africa Renaissance Institute (ARI) and the Relationships Foundation International (RFI), for bringing us together, to know each other, and appreciate the depth of the conflict and suffering that our Sudanese Nation has, and is still going through. It gives us hope to know that there are quiet and effective persons who feel strongly about the suffering of their fellow men to devote their time and energy to contribute towards its solution. I first learnt of the Sudan Peace-Building Programme from a soft telephone call from a man, who said he was speaking from London, and asking me if I was free to be able to come to the next meeting. I accepted when I heard the word “Peace” and was more relieved when I saw the name of Professor Yusif Fadl Hassan in the first lot of persons, which he sent me. These five days of meetings were great, and the background papers clearly indicated the serious efforts made by the authors. Our thanks and appreciation goes to them. We all hope that since the subject of the next meeting in the United Kingdom (UK) will cover the areas of Oil, Religion and State, consultants from the Sudan may be asked to make a contribution. We are sure the village of Hemel Hampstead was chosen as a venue of this meeting after careful thinking. This great, beautiful and peaceful English village reminds us what a beautiful world God has given us: but what have we done to ours in the Sudan. With your enthusiastic but quiet help we shall dedicate ourselves to reverse this sad trend. Your organisations have brought peace and joy to many parts of the world: please double your efforts and add the Sudan to the growing list of your achievements Thanks and God Bless You! Professor Richard Hassan Kalam Sakit

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III. List of Participants Attending the Second Consultation in their Private Capacity

The following Sudanese and international participants attended the second consultation of the Sudan Peace-Building Programme1, which took place from 16 through 20 July 2001 in Hemel Hampstead, United Kingdom. A. Sudanese Participants 1. Professor Yusuf Fadl Hasan 2. Professor Hassan Makki Mohammed Ahmed 3. Ms Amira Yusif Adam Haroun 4. Professor Faroug Mohammed Kadouda 5. Professor Richard Hassan Kalam Sakit 6. Mr John Luk Jok 7. Ms Rebecca J. Okwaci 8. Mr Monyluak Alor Kuol 9. Mr Abdon Agaw Jok Nhial 10. Professor Hammad Bagadi 11. Dr Fadil Shibeika 12. Dr Alhassan Mustafa Ahmed Onoor 13. Dr Samson Wassara 14. Dr Priscila Joseph Kuch 15. Dr Shafir Harir 16. Dr Taisier Mohammed Ali 17. Mr Reafee Sbu Jamoona B. Apologies from Sudanese Participants 1. Col Dominic Dim Deng 2. Dr Sayed el-Khateeb 3. Mr Hussein Wali Mohammed C. Sudanese Discussants 1. Dr Peter Nyot Kok 2. Dr Awad Al-Sid Al-Karsani D. Apologies from International Discussant 1. Mr Brian D’Silva 1 The Sudan Peace-Building Programme process is a partnership between the African Renaissance Institute (ARI) and the Relationships Foundation International (RFI).

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E. International Consultants 1. Professor Kenneth Davey 2. Professor Murray Forsyth 3. Professor Deryke Belshaw 4. Mr Ian Sinclair 5. Mr Roger Belshaw

F. International Participants 1. Professor Washington Okumu Chairman 2. Viscount Brentford Co-Chair 3. Dr Michael Schluter Research Director 4. Dr Jeremy Ive Executive Director 5. Dr Edward A. Christow Executive Secretary 6. Ms Sarah E. Maclure Administrative Assistant 7. Ms Lindsey D. Birks Volunteer 8. Ms Catherine J. Bromwich Friend of the Programme 9. Mr Sameh Metry Arabic Interpreter Translator

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IV. Background Papers to the First Consultation and Summary Ensuing Discussion

1. International Agreements: General Principles in Relation to the Management of, and Abstraction of, Water from International Rivers a. Paper presented by Mr Ian Sinclar

A. Introduction

‘Without water, there is no life’. This stark, but completely true, statement explains why the management of, and in particular the abstraction of water from, rivers is so vital to the life and economy of any country. In a series of three papers, I will attempt to explain how such matters have been dealt with in other countries which have similar water related situations and problems to those of the Sudan. In my first paper, I will deal with countries other than the Sudan, and will try to examine & explain the treaties and agreements which have been used to help solve and settle competing interests of different countries and groups in the common river or watercourse. I will look at those treaties and agreements and consider how general principles (which affect all watercourses which are used by different countries and groups) relate to the particular situation. I shall not attempt to do this in my first and second talks, as it is for the readers to make their own application of the principles to the facts of the situations with which they a re involved. However, in my third talk, I draw more particular lessons from precedents which are applicable to the matters which affect the Sudan. In my second paper, I will examine some of the major treaties that have been entered into in the past which affect the Nile and which are of concern to some or more of the nine countries through which the Nile flows. This will explain how the present situation has arisen, and draw attention to present initiatives which are in being to try to solve the problems and competing and increasing demands for an ever decreasing water resource. In my third paper, I will try to examine some of the problems which are of particular relevance to the situation in the Sudan, and which would have to be discussed and settled before any form of autonomous governments for the North & the South of the Sudan could be accomplished. B. International rivers

It is estimated that there are some 261 inter-national rivers (namely rivers that run in more than one sovereign country), and that they cover almost one half of the total land surface of the world. These rivers provide much opportunity for political, social, economic and legal tension between the states involved. However, so far, it is pleasing to say that war over water is not strategically rational, hydro-graphically effective or economically viable. As a result, it is estimated that there have been some 3,600 successful negotiated agreements for the sharing of the use of international rivers. Fortunately, once co-operative viable water regimes have been established, it is found that they are impressively resilient over time, even between otherwise hostile regimes, and sometimes even though war is waged over other issues. To

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date it appears that shared interest along an international waterway seems to outweigh other conflict-inducing characteristics. Solutions should focus on creative joint management of the resource, circumventing any territorial imperative. C. Factors causing problems affecting international rivers

However, it has to be recognised that water is, and will continue to be, one of the main concerns and sources of instability in many regions of the world. Some of the problems and causes of concern are as follows:

1. The existing and accelerating population growth, with resulting water demand growth

rates.

2. The limited contribution of the natural, renewable and supplementary water resources.

3. Most of the major surface, and part of the ground, water basins in the area are often shared by one or more countries.

4. The relative power, wealth, political influence, and the level of development of

different countries in the river basin.

5. The absence of a comprehensive overall basin agreement reached between all the riparian counties regarding water allocation and/or management of the water basin in the region.

6. Where treaties have been made in the past, they usually were made between two or

three countries (and in the case of the Nile, such countries were the colonial powers, rather than the present riparian states). They were designed often for a particular geographical location and against a very different situation (politically, socially, etc). Also, they took into account very different uses and requirements to those which exist at the present time.

7. Such agreements and treaties which may exist are not now in accord with modern

thinking on inter-national justice or in accordance with currently accepted international practices or conventions.

D. International attempts to provide solutions

Many of these factors are appropriate for consideration in connection with the present situation on the Nile. This is partly why there is so much international interest in the Nile, and has led to an on-going series of initiatives by different bodies and countries trying to come to a solution which is acceptable to the parties which are involved. The parts played by international agencies such as the Nile Basin Initiative, the United Nations (in particular the Food & Agriculture Organisation of the United Nations), and the World Bank will be considered later.

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4.1. The 1966 Helsinki Rules2

The Helsinki Rules were formulated by the International Law Association at their meeting in Helsinki, Finland, in 19663. These rules provide a set of guidelines for the proper utilisation and administration of international rivers, especially those where there are no specific agreement or traditional norms of conduct by the involved riparian states. These principles deal with issues such as the utilisation of the waters for irrigation, navigation, transport of goods and certain aspects of water pollution. However, they do not deal with many of the issues that have become of increasing importance in the last 35 years or so, such as those considered at the Rio de Janierio (especially Agenda 21) and Kyoto Summits. In particular, they do not address the world’s environment as a whole. Thus, these rules, while still important and of developmental value, are in practice being superseded by the ‘1997 United Nations Convention on the law of the non-navigational uses of international watercourses’. In particular, since the making of the Helsinki Rules, four major factors have become of increasing importance and relevance, namely:

1. Shortage of renewable resources – for example, on the Nile, there is great concern at

the variability in rainfall and so availability of water for use, both in the Blue Nile and in the White Nile.

2. Unequal distribution of water between the riparian states – for example, on the Nile,

these have been based on historical arrangements (both practical and under treaty obligations) which do not bear a true relationship to existing and future requirements of those states.

3. Water quality and pollution – on many rivers with a decease in flow, pollution has

been concentrated; with modern disposal methods and increasing use of chemicals and oils, there has been a major deterioration in water quality. On the Nile, in addition, there is the problem of the water hyacinth, i.e. with natural pollution.

4. Construction of dams and the making of diversions – on the Nile this relates to the

effect of existing dams, and the desire to construct more dams and create further diversions.

4.2. Matters of concern which have arisen since 1966 Since the making of the Helsinki Rules, greater importance has also be given to two major theories of river management, namely:

1. The theory of community of interest, namely that the interests of all riparian states

should be taken into account when dealing with the proper management and administration of a river basin system, and that this can only be achieved by joint planning and consultation. This will also only work in practice if there is a common

2 In considering the general position, attention is drawn to Samir Ahmed, ‘Principles and precedents in

international law governing the sharing of Nile waters’ in ‘The Nile – Resource Evaluation, resource management, hydro-politics and legal issues’, pp. 225-238 – proceedings of the Conference held at the Royal Geographical Society & the School of Oriental & African Studies, University of London, 2-3 May 1990 - prepared for publication by PP Howell & JA Allan. ISBN 07286 0167 2

3 Samir Ahmed, ibid.

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joint management body, but that, in turn, must be subject to appeal to an outside independent body, such as a Court of International Justice.

2. The theory of equitable utilisation of the resource. This has now been incorporated as

a General Principle into the UN Convention as Article 5, as mentioned below. This principle, in turn, implies limited territorial sovereignty, as it precludes any one riparian state doing exactly what it wishes against the interests of other riparian states.

There is a dispute in practice between the principle that a state should not ‘cause any significant harm’ to the interests of other watercourse states, whether upstream or downstream, (as incorporated as Article 7 of the 1997 UN Convention), and the principle of equitable utilisation (as incorporated in Articles 5 & 6). In general terms, upstream states are in favour of the enforcement of the ‘equitable utilisation’ provisions, while downstream states are in favour of the principle of ‘causing no significant harm’. These questions are of increasing practical importance and it is important to work out how the principles can be applied in practice and how the standards of interpretation and enforcement are to be set.

4.3. The 1997 United Nations Convention (IT1) In view of many of the problems that have been already mentioned, the United Nations passed the 1997 Convention on the law of the non-navigational uses of international watercourses. This Convention set out to deal with many of the problems that had occurred in the past, but it was based on the premise that it was necessary and desirable to protect not only the use of water (its management and abstraction) but also the whole of the water environment connected with the relevant international watercourse. The following references in the preamble to the Convention (which sets out some of the recommendations of the Working Group to the General Assembly of the UN) are of particular significance : • ‘Considering that successful codification and progressive development of rules of

international law regarding non-navigational uses of international watercourses would assist in promoting and implementing the purposes and principles set forth in Articles 1 & 2 of the Charter of the United Nations,

• Taking into account the problems affecting many international watercourses resulting from, among other things, increasing demands and pollution,

• Expressing the conviction that a framework convention will ensure the utilisation, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable utilisation thereof for present and future generations.

• Aware of the special situation and needs of developing countries • Recalling the principles and recommendations adopted by the United Nations Conference

on Environment and Development of 1992 in the Rio Declaration and Agenda 21…..’ 4 Thus the emphasis is to move aware from merely present patterns of water use, but to have regard to the effect of the use of the appropriate watercourse on the environment as a whole. The UN Convention of 1997 is divided as follows:

4 Preamble to United Nations Convention of 1997 (IT1)

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Part I Introduction – Articles 1-4 Part II General Principles – Articles 5-10 Part III Planned Measures – Articles 11-19 Part IV Protection, preservation and management – Articles 20–26 Part V Harmful conditions and emergency situations – Articles 27-28 Part VI Miscellaneous provisions – Articles 29–33 Part VII Final clauses – Articles 34–37 Annex Arbitration – Articles 1-14

While the whole Convention is of primary importance when considering how to develop a new Treaty to deal with the problems of the Nile on a catchment/river basin approach, of particular significance are those Articles which deal with General Principles. These are: • Article 5 Equitable and reasonable utilisation and participation • Article 6 Factors relevant to equitable and reasonable utilisation • Article 7 Obligation not to cause significant harm • Article 8 General obligation to co-operate • Article 9 Regular exchange of data and information • Article 10 Relationship between different kinds of uses E. The 1999 Treaty for the Protection of the River Rhine (IT 2)

The only major treaty which covers an important international river which has been made since the 1997 UN Convention is the up-dated Treaty for the Protection of the River Rhine. The River Rhine is the longest river in Northern Europe, being 1,200 kilometres in length, rising in Switzerland, then flowing through France and Germany, and entering the North Sea in the Netherlands. In the Middle Ages and into the 18th, 19th & 20th centuries, it was (and still is to some extent) of critical importance for navigation. However, its importance is primarily as a source of drinking water for about 20 million people in those 4 nations. This source was negatively affected by the pollution that was poured into its waters, and by 1970 the river was virtually dead from such pollution. The leaders of those nations realised that something radical must be done, and so now, some 30 years on, the position is very different. One important factor was the culmination of the process in the signing of the update treaty in 1999 by all four nations. Although the population in the catchment areas is mainly urban, and its cities are served by modern sanitation and advanced treatment works, this treaty can, in some respects, be regarded as a model for the protection of other rivers in the world. To be fair, if four of the most advanced and prosperous nations in Western Europe cannot make a success of such a project, there is not much hope for other countries. The importance of this Treaty is that the primary concern is now the protection of the eco-system and the water-based environment of the catchment basin. This principle of the protection of the environment is contained in Article 3 of the 1999 Treaty. However, there are lessons of general importance to be learned and examples to be followed:

1. In the course of the past 30 years, the principle governing the use of the river and its catchment has changed from sustainable development by each riparian state to a joint consideration and concern for equal and appropriate use of the water by each of the

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four states. Of course, the matter was eased in this case in that the major problem of concern was not water scarcity (in general) but the flooding of land and premises along the river valley and the effects of pollution on water quality. The question of pollution was highlighted by the massive, almost total pollution which travelled for many miles down the river, from the fire in the Sandoz factory in Switzerland. Another such incident would have be totally disastrous so that remedial and permanent measures had to be taken.

2. The 1999 Treaty replaces and integrates all previously existing Treaties which dealt

with separate sectors (such as flooding, pollution, water abstraction, etc). The river is considered as a whole, and there is one document which alone deals with the River. Thus one Treaty cannot be set against another, neither can one interest be in conflict with another – the whole has to be considered and dealt with within the context of the one Treaty which is now relevant to the present situation. The whole is governed by the Common Set of Principles.

3. The obligations which apply to the Rhine are not viewed as trans-boundary

obligations. All four states have equal obligations to protect the river, rather than an issue being considered as the responsibility of the upstream or downstream state. In other words, the river is regarded and managed as a whole, and so dealt with in the interests of all the riparian states acting for their mutual common interests.

4. The obligations of the new Treaty apply to the River Rhine system and catchment and

river basin as a whole, and not just the channel of the river and the water within it. Thus, this Treaty affects the whole drainage basin and all the smaller watercourses which run into, or inter-connect with, the River Rhine. The obligations apply to the land areas which adjoin and drain to the river. This means that the dykes which were built to control river levels and other flood control measures have to be considered for their effect on the river system. In practice, this has meant in some places, that the dykes which were originally built to give local flood control and protection have been reduced in height or removed, and that river-side land is now used for natural flood spill areas.

5. Pollution control, and enforcement of pollution regulations has been given greater

importance. The quality of the water in the river has been realised as being of vital importance. It is better to prevent pollution at source, rather than to try to get pollution out of the water once it is there. This is much more cost-effective, so that the quality of water is preserved for downstream users. This means that less has to be spent on water treatment for use in agriculture and also for drinking water.

6. The Treaty also directs attention to the more difficult question of ‘diffuse sources of

pollution’, rather than ‘point sources’, such as the discharges from sewage works, individual factories and from other ‘pipe discharges’. Diffuse sources relate to pollution leaching out from land drains, waste tips, and other causes such as agricultural and forestry practices on land. These are more difficult to find and to treat, but chemicals and other harmful substances used in such ways can have a dramatically adverse and detrimental effect on many downstream users of the water.

7. This Treaty would not work unless there was significant on-going institutional co-

operation between the four riparian states. This is formalised within the mechanism

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for the implementation of the Treaty which is through the International Commission for the Protection of the Rhine. This works as the individual states report to the Commission, and the Commission discusses with those states what measures should be taken to make the Treaty even more effective.

8. The involvement of both the public and the private sector in the implementation of the

Treaty is most significant. For example, there has been involvement of public interest groups and NGO’s (non-government organisations) in discussion and they participate in rule-making for the further implementation of the Treaty. They are brought into the process and they are able to see that there are great benefits to the community within the state in seeing that the Treaty provisions are observed and enforced. Thus, the Treaty is not seen as being imposed on the people, but they can see that all benefit from the observance of its provisions.

As always, no Treaty is perfect and it would be a mistake to try to apply the provisions of one treaty to another part of the world. Any new Treaty has to be specifically tailored to the problems and situation in the river basin to which it is to be applied. But there are many lessons that can be learned from how the 1999 Treaty came about and how it is being applied. Its consideration can help towards the creation of a common set of principles which can be applied in different situations, such as the River Nile basin.

F. The 1995 Mekong River Basin Agreement5

Both the Rhine and the Mekong are now governed by significant and wide–ranging treaties, which are modern and up-to-date and deal with the major problems. From an operational point of view, both rivers have an organised joint framework within which problems can be resolved. The Mekong is the 12th longest river in the world and is the 10th largest in the terms of annual discharge. It is to be hoped that in the not too distant future similar arrangements will be made for other important international rivers, including the River Nile. It is useful to contrast and compare the Rhine Treaty with the Mekong Treaty.

1. The Mekong Treaty was made in 1995, which was before the 1997 UN Convention

was made. Thus, it was based upon the concepts set out in the Helsinki Rules, and not the UN Convention The Treaty was a long time in its creation and preparation. The formal start was the establishment of the Committee for the Co-ordination of investigations of the Lower Mekong Basin on 17 September 1957; thus it took nearly 40 years for the Treaty to be agreed and signed.

2. The Mekong Treaty does not involve ALL the riparian states. It was made between

Cambodia, Laos, Thailand and Vietnam, namely the four lower, downstream states. China, which is the major upstream state, and Myanmar were not parties. This may well have a significant impact in the years ahead as China is not bound by its provisions, and so might well build dams and divert water which would have a significant effect on flows in the Mekong.

5 Agreement on the co-operation for the sustainable development of the Mekong River Basin (done/signed at Chiang Rai, Thailand) – 5 April, 1995

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3. The declared object of the Mekong Treaty is to enable the signatory states ‘to co-operate in a constructive and mutually beneficial manner for sustainable development, utilisation, conservation and management of the Mekong River basin water and related resources’. Article 1 states that the riparian states are ‘ to co-operate in all fields of sustainable development, utilisation, management and conservation of the water and related resources of the Mekong River Basin including, but not limited to, irrigation, hydro-power, navigation, flood control, fisheries, timber floating, recreation and tourism, in a manner to optimise the multiple use and mutual benefits of all riparians and to minimise the harmful effects that might result from natural occurrences and man-made activities’. Thus the objects are different in certain respect from the Rhine Treaty, but they do cover certain fields such as recreation and tourism which are not specifically included in the Rhine Treaty. These provisions are worthy of study as it would be important to ensure that any new Nile Treaty was as widely based as both Treaties.

4. In the same way as the Rhine Treaty lays much emphasis on its implementation so

does the Mekong Treaty. The Treaty is operated through the Mekong River Commission which has a three-tier structure, provision for which is made in Chapter IV entitled ‘institutional framework’. It consists of the Council (the supervisory body, at Ministerial level from the participating countries), the Joint Committee (the executive organisation), which is serviced by the Secretariat (the body which has the administrative and organisational powers). The method of implementation is through the ‘basin development plan that would be used to identify, categorise and prioritise the projects and programs to seek assistance for and to implement at the basin level’. These significant words appear in Article 2 entitled ‘Projects, Programs and Planning. It commences ‘ to promote, support, co-operate and co-ordinate in the development of the full potential of sustainable benefits to all riparian states and the prevention of wasteful use of Mekong River Basin waters, with emphasis and preference on joint and/or basin-wide development projects and basin programs’. It is this Object that is to be achieved through the formulation and implementation of the ‘basin development plan’.

5. In the same way as the Rhine Treaty recognises the great importance of protecting the

environment, so does the Mekong Treaty. Article 3 ‘protection of the environment and ecological balance’ states as its object ‘to protect the environment, natural resources, aquatic life and conditions, and ecological balance of the Mekong River basin from pollution or other harmful effects resulting from any development plans and uses of water and related resources in the Basin’. Article 3 should be read alongside Article 7, which will be seen does not, as such, incorporate the ‘no-harm’ rule.

6. Further significant agreements between the parties are set out in the following

Articles: (which form the remaining articles in Chapter III - ‘Objectives and Principles of Co-operation’) :

Article 4 Sovereign equality and territorial integrity Article 5 Reasonable and equitable utilisation Article 6 Maintenance of flows on the mainstream Article 7 Prevention and cessation of harmful effects Article 8 State responsibility for damages Article 9 Freedom of navigation

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Article 10 Emergency Situations 7. One significant factor in the Mekong Treaty (which is not so in the Rhine Treaty) is

the working of the ‘Mekong balance’. This is the balance of power and influence and relationship to need which has been worked out between the participating nations, but is always in a state of change – it is a process of ‘give and take’ so that each nation feels it is obtaining a fair share of the cake’, or rather an appropriate use of the waters of the Mekong River, and in particular the agreed balance between use of water according to need and the effect on the environment. Such balance is reached because, in the particular circumstances, some permissible environmental harm is envisaged under the Treaty

8. Both Treaties demonstrate that it is essential to have a proper and workable

organisation and institutional structure, and that this involves the even-handed, fair and just administration of the Treaties, and the enforcement of its provisions.

Of course, neither Treaty is perfect, and, before any new Treaty was drafted for the River Nile, it would be necessary to investigate the detail of both the wording and the practical operation of both Treaties. This would enable a full understanding to be made of the relevance of each Treaty to the Nile situation. The implementation of both treaties has demonstrated the operation of the principle of sustainable development in a watercourse and river basin context, laying emphasis on the integration and balance between quantity and quality of water. Conclusion This review of some of the developments which have taken place in the regulation and management of international watercourses in the past century has shown that real progress and improvement can only be made effectively if certain events take place. What is required is the whole hearted co-operation of all the riparian states on an international watercourse to come together and agree on a new all-embracing treaty that is related to the over-all situation on, and needs of, the river and those dependent upon it. To state the obvious, it is important for all the negotiating states to know exactly what they need in the interest of the requirements of the people and land of their respective countries, as well as being prepared to compromise and see the needs of others. Roger Belshaw, in his paper, (which will be given immediately following this one), entitled ‘Implications of Sudan’s Hydrology and Environment for a Nile Water Agreement’, will explain why such a new treaty is desirable and necessary from the point of view of the physical operation of the River Nile system. When agreement has been reached, the agreed provisions should be formalised in a legally binding treaty to which all the affected states give formal assent. In addition, it is important to set up a proper and comprehensive organisation and administrative structure and machinery for the implementation and operation of the new treaty, with appropriate powers and sanctions. Sanctions may take the form of financial penalties, withdrawal of quotas, suspension of the agreement or whatever sanctions may be agreed between the parties at the making of the agreement to ensure that it is enforced in a just and fair way.

18

The legal position in relation to the existing treaties relating to the River Nile as they affect the Sudan will be examined in the next talk. However, it is my general assessment that the present situation is not satisfactory and the legal position needs to be up-dated to the real requirements of the riparian states, having regard to the environmental and other interest of the people and land of the Nile River Basin. This will involve the making of a new treaty and I trust that this paper has directed attention to some of the more important aspects that have to be considered. It is for those affected to ‘work out their own salvation’ and not for solutions to be imposed from outside by other nations that are not directly affected. © IC Sinclair 11.07.2001

19

APPENDIX I

List of books, documents and papers used or referred to by Ian Sinclair in his three lectures for the Second Sudan Consultation -16-20 July, 2001

Books B.1. “The Nile – Resource Evaluation, resource management, hydro-politics and legal issues” – proceedings of the Conference held at the Royal Geographical Society & the School of Oriental & African Studies, University of London, 2-3 May 1990 - prepared for publication by PP Howell & JA Allan ISBN 07286 0167 2 B.2. “The Nile- sharing a scarce resource – an historical & technical review of water management & of economical & legal issues” – Cambridge University Press Edited by PP Howell & JA Allan - ISBN 0 521 45040 3 B.3. “The Jonglei Canal – impact & opportunity” - edited by PP Howell, M Lock & S. Cobb - Cambridge studies in applied ecology & resource management ISBN 0 521 30286 2 B.4. “Journey to the source of the Nile” – Christopher Ondaatje - published by Harper Collins Publishers Ltd- 1998 - ISBN 0-00-638623-7 Legal Documents and International Treaties (copies available) L.1. Convention on the law of the non-navigational uses of inter-national water-courses – 57th Session of the United Nations – Agenda Item 144 – 11 April 1997 L.2. Agreement on the co-operation for the sustainable development of the Mekong River Basin (done/signed at Chiang Rai, Thailand) – 5 April, 1995) L.3. The Treaty for the Protection of the River Rhine, signed on 12 April 1999 Relevant Papers RP.1. Nile Basin Water Resources – GCP/INT/752/ITA – Regional Training Workshop on international water law, negotiation skills, and conflict resolution Cairo, Egypt – 25 April – 1 May, 2001 RP.2. “The impact of the river Nile on the politics of the Riparian states” by Aggrey O. Oyat & Mohammed Nuri-el-Amin – from “Sudan Notes & Records”. No 3, New Series, Khartoum, 1999 RP.3. “Policy Guidelines for the Nile River Basin Strategic Action Program “

– produced by the Council of Ministers of Water Affairs of the Nile Basin States – – available on the Internet “http://www.nilebasin.org?Documents/TACPolicy.html”

Australian Inter- stateTreaties AIT.1. Murray-Darling Basin Act 1992 – No.65 (up-dated 11 May 1995) AIT.2 Lake Eyre Basin Inter-governmental Agreement Act 2001 – No 36, 2001 Treaties & Agreements affecting the River Nile T.1. 1891. Protocol between Great Britain and Italy for the demarcation of their respective spheres of influence in East Africa from Ras Kasar to the Blue Nile (15 April 1891)

20

T.2. 1902 Treaties between Great Britain and Ethiopia, and between Great Britain, Italy & Ethiopia relative to the frontiers between the Sudan (sic), Ethiopia & Eritrea (15 May 1902) T.3. 1925 Exchange of Notes between the UK and Italy respecting concessions for a barrage at Lake Tsana and a railway across Abyssinia from Eritrea to Italian Somaliland (14-20 December, 1925 ) T.4. 1929 Exchange of Notes between the UK and Egypt in regard to the use of the waters of the River Nile for Irrigation purposes (7 May `1929) T.5. 1949 Exchange of Notes constituting an Agreement between the UK and Egypt regarding the construction of the Owen Falls Dam, Uganda (30-31 May, 1949) T.6 1950 Exchange of Notes constituting an Agreement between the UK (on behalf of Uganda) and Egypt regarding co-operation in meteorological and hydro-logical surveys in certain areas of the Nile basin (19 Jan, 28 Feb & 20 March 1950) T.7. 1952/53 Exchange of Notes constituting an Agreement between the UK & Egypt regarding the construction of the Owen Falls Dam in Uganda, (16 July 1952 & 5 January 1953) T.8. 1959 Agreement between the Sudan and the UAR (Egypt) for the full utilisation of the Nile Waters (8 November 1959) T.9. 1993 Framework for general co-operation between the AR of Egypt and Ethiopia (1 July 1993) T.10. 1994 Convention for the establishment of the Lake Victoria Fisheries Organisation – made at Kisumu, 30 June 1994 – Kenya, Uganda & Tanzania – - FAO 61 – pages 122 –141 T.11. 1995 Protocol on shared watercourse systems in the Southern African Development Community (SADC) Region – signed at Johannesburg , S.A., 28 August 1995 – FAO 61 – pages 146 – 153 Legislative Studies produced by the Food & Agriculture Organisation of the United Nations (FAO) FAO.52. Preparing national regulations for water resources management – principles & practice – by Dr Stefano Burchi – Rome, 1994 – ISBN 92-5-103462-1 FAO.58. Readings in African customary water law by Marco Ramazzotti – Rome, 1996- ISBN 92-5-003813-5 FAO.61. Treaties concerning the non-navigational uses of international water-courses – Africa- Development Law Service – FAO Legal Office – Rome, 1997 – ISBN 92-5-004079-2 © IC Sinclair – 06.07.2001

21

APPENDIX II

More detailed information on issues raised in the three papers of I.C. Sinclair The Sudan Peace-Building Programme

Second Sudan Consultation - 16 – 20 July, 2001

1. The Helsinki Rules The Heksinki Rules were formulated by the International Law Association (after 15 years of study) and were adopted at Helsinki in 1996. They are a set of rules which provide guidelines for the proper use and administration international rivers, especially in those cases where there are no specific agreements or traditional norms of conduct among the relevant riparian state. These principles are concerned with the use of such rivers for irrigation, navigation, pollution and transport. The Rules distinguish between territories within the drainage basin (which are entitled to priority benefits) and those outside the river basin (which are not). A significant exception is that the Rules do not prevent a riparian state from diverting a part of its water allocation to its own territories outside the river basin.

The most important Rules comprise:- 1. The governing factor is stated to be the equity of water between riparian states. 2. Equity does NOT mean distribution by equal share, but by “fair shares” which are to

be decided by the following factors :-

• The topography of the basin & in particular the size of the river basin within each riparian state

• The climatic conditions affecting the basin in general • The precedents about past use of the waters of the basin, up to present usages • The economic and social needs of each riparian state • The population of each riparian state • The comparative costs of alternative means of satisfying the economic and

social needs of each riparian state • The availability of alternative water resources for each riparian state • The avoidance of undue waste and unnecessary damage to other riparian states

So far as the Nile is concerned, the definition of “international drainage basin” or “river basin”, which is used in the Rules, includes, so far as Egypt north of Cairo is concerned, means that the basin extends eastward to the mountain ranges in the Sinai. The fact of the existence of the Suez canal does not prevent this definition being applied as such Canal is mainly man-made and is not a natural barrier.

3. The most important principles on which the Rules are founded, and which are to be observed by all riparian states which sign an agreement which incorporates these Rules, include:-

• Co-operation in the most effective use of the waters of the river • Proper consultation and co-operation over proposed projects • Adequate compensation for any possible damages affecting a riparian state as a

result of the improper (or unauthorised ) use of another such state

22

• The settlement of disputes in a peaceful way among riparian states, as that arises from being good neighbours

2. The Convention on the law of the non-navigable use of international watercourses

This was adopted by the United Nations as Agenda Item 144 at the 51st Session on 11 April 1997. The text of the Convention is attached. The explanation of its contents and significance is set out in Para 4.2 of the First Paper of IC Sinclair (entitled “ International agreements affecting international rivers”)

3. Subject headings for the draft declaration on the equitable utilisation and sustainable

development of the waters of the River Ganges 1. Sovereign equality and territorial integrity 2. Equitable and reasonable utilisation 3. Priority to vital human needs 4. Protection and preservation of eco-systems 5. Prevention, reduction and control of pollution 6. Prevention and cessation of harmful effects 7. Establishment of a permanent water commission 8. Consultations 9. Reporting requirement 10. Data and information vital to national defence or security 11. Settlement of disputes

© IC Sinclair – 06.07.2001

23

b. Summary of discussion 1. The participants underscored the need to consider the needs of both the upper and lower

riparian states and make special arrangements for the Nile River as well as the lakes, which are sources of the river.

2. It is difficult to sign an agreement between ten countries on one river and that is why it

might be easier if a core group of countries sign a protocol which could act as a stepping-stone to a more comprehensive arrangement. Sometimes countries like China have opted not to sign an agreement because they refused to have any restrictions placed upon them. Applying sanctions is a difficult process even though there is an International Court of Justice. In order for the sanctions to be effective requires the agreement and co-operation of all states. Sanctions will not work completely but it is worth trying to implement them. For example, even though the League of Nations was a disaster its members learnt a number of lessons on the basis of which they established the United Nations. The problem of applying sanctions could be exacerbated by non–signatory countries. One way of ensuring that all countries would sign a treaty would be to take away certain benefits from non-signatory states. For example the World Bank and other international lenders and donors could withhold aid or international assistance and to encourage them to sign the agreement.

3. Historical rights may affect the future composition of a treaty but any agreement would

have to be comprehensive and consider the needs of each country as well as their plans to develop their water resources. If there were a planned system it would have to apply to all countries. The Sudan-Egyptian treaty deals only with two countries and pays no attention to the other riparian states. Uganda and Tanzania did not like it when agreements excluded them or were imposed on them by their colonial power. Historical positions are crucial to dealing with complex situations. Concurrently, agreements should never be made divorced from facts. Prior to signing a comprehensive agreement a great deal of research would need to be done first. All nations would also need to be satisfied with the treaty. However, no treaty would be perfect.

4. As a water control system, Lake Nasser has not been very effective and efficient because

of the high rate of evaporation and the silt problem which has affected the lake itself and other parts of the river downstream.

5. When we talk about a catchment area we are referring not only to surface but also to

underground waters. Underground water depends on two sources: rainwater and water from underground. Conserving underground water is important because it contributes to the ground and surface water availability.

6. As far as pollution of the Nile Waters is concerned, there are two major risks, which

come from urbanisation and industrialisation. Since pollution will pass from one country to another, the riparian countries would need to ensure that local and international controls are in place in order to ameliorate the consequences of pollution. In the Sudan, Khartoum is the largest and most heavily industrialised urban centre. If there were an accident polluting the Nile it would be limited to northern Sudan. Pollution could be controlled through dams but the Roseries and Jebel installations are barrages. Since oil exploration and exploitation in southern Sudan occurs along the banks of the Nile, if pollution occurs there then the companies should be penalised should they fail to meet the

24

environmental requirements set by the Government of the Sudan (GOS). There might be further problems owing to politically motivated inflation of any pollution problems, as in the case of Nigeria.

7. The riparian states may also enshrine a regime for non-riparian states benefiting from the

Nile waters. For example, if riparian states want to be paid for any water which might be taken out of the system for the benefit of Israel, Saudi Arabia and Chad then the former countries may sign an agreement which could stipulate that if water is taken out then they would have to be compensated. The compensation, which each country would receive, would depend on the terms of the agreement. The agreement may also stipulate the amount of water allocated to each state and then they could do whatever they want with it. They may use it or sell it back into the river system.

25

2. River Flow Available to the Sudan: hydrological and environmental implications a. Paper presented by Mr Roger Belshaw 1 Introduction

This part of the presentation describes the magnitude and timing of the flows in the rivers of the

Nile Basin (and the way that they have varied through the twentieth century), examines the factors

that control flow in space and time, reviews how far modification of the existing patterns is

possible and explores the implications for the environment of these possibilities.

2 The Physical Setting

The Nile Basin covers about one tenth of the area of Africa. It extends from central Burundi,

nearly four degrees south of the equator, to the delta in Egypt on the southern edge of the

Mediterranean Sea, and from the Sudan/Chad border in the west to the Blue Nile/Awash

watershed in Ethiopia in the east (Fig.2.1). It includes all of Uganda, most of the Sudan and

parts of Egypt, Eritrea, Ethiopia, Kenya, Tanzania, the Democratic Republic of the Congo,

Rwanda and Burundi.

The regime of the Nile is the product of the series of diverse climatic zones that cut across the

Nile Basin. The different climatic inputs and configurations of the basins of the White Nile

and its left bank tributaries (White Nile system) on the one hand, and of the mainly Ethiopian

origin rivers (Blue Nile system – see page 3 below) on the other, produce different discharge

characteristics which are superimposed on the White Nile flow pattern north of the Uganda

border.

The White Nile system flows through a series of very wide shallow basins separated by short

steep sections. The Inter-Tropical Convergence Zone (ITCZ) gives two rainy seasons to the

tributaries of the White Nile lying around Lake Victoria. Run-off and direct precipitation

into the Lake just exceed evaporation, allowing a surplus to overflow northward. The

enormous area of the Lake provides considerable immediate storage and introduces a time lag

between changes in input and output, reflected in gradual variations in lake level. Lakes

Kyoga, Edward and Albert to the north have similar but lesser effects, so that by the time the

water enters the Sudan the river has a remarkably constant flow. However, right bank

torrents flowing down from the mountains of south-western Ethiopia to join the White Nile

north of the Uganda border have one rainy season, so their waters gives a seasonal peak as the

White Nile flows into the Sudd basin.

26

Fig 2.1 Discharges in the Nile System

Here the steady flow from the Lakes supports a large area of permanent swamp while the

peak from the torrents add three times as large an area of seasonally flooded grassland.

27

About 50 percent of the White Nile discharge is lost in these swamps and grasslands, along

with almost the complete flow of the left bank tributary, the Bahr-al-Ghazal. The result is

that the right bank Sobat, another Blue Nile system river, joining the White Nile just north of

the outflow from the Sudd, supplies as much water as the White Nile itself and introduces

another seasonal peak.

The Blue Nile system rivers rise in the mountains of Ethiopia and Eritrea between eight and

sixteen degrees north of the equator, at the northern end of the annual swing of the rain-

inducing ITCZ. Rainfall is concentrated in the period from May to October. The most

extreme form of seasonally concentrated river flow is exhibited by the Atbara, which between

June and October supplies thirteen percent of the annual Nile flow at Aswan, but which dries

up for most of the rest of the year. The lack of storage in lakes or on floodplains and the

steep gradients from the highlands allowed these rivers to rise dramatically after rain, and the

flood peak to pass downstream rapidly, providing most of the waters of the annual flood that

historically formed the basis of the Egyptian civilisation; early agriculture used the saturated

land that was exposed as the flood receded – irrigation was a later development.

Because of the time taken for water to flow through the White Nile system and the substantial

losses of water in transit due to evaporation from open water surfaces and to transpiration by

plants, it is difficult to compare discharges in different parts of the basin. The solution

adopted by water engineers of the Egyptian Ministry of Irrigation was to standardize river

flows over a certain period of time in terms of the amount of water arriving at a common

point of reference. Thus flows quoted for locations in the Nile Basin are based on averages

for the period 1900-59 and are calculated as the residual amounts of water that would arrive in

one year, after losses, at Aswan in southern Egypt. In the 1950’s climatologists believed that

climate variability was a very short-term phenomenon and that a 30-year sequence of flows

was sufficient to remove the effect of extremes and to characterise the long-term conditions.

The available sequence of 60 years was considered a very dependable summary of conditions

and the mean annual discharge of 84 km3 yr-1 was used as the basis for the 1959 Nile Waters

Agreement. Figure 2.1 above, therefore, shows the actual mean discharges at key points in

the system and, in brackets, the flows standardised as their input at Aswan.

28

3 The Inherent Variability of Rainfall in the Region

There are, however, serious problems of thinking in terms of averages for a given period.

Firstly, actual flows can vary severely from the mean. Between 1900 and 1959 there was a

discharge at Aswan of 112 km3 in 1917 and one of 45.5 km3 in 1913. An additional feature

of this variability is that the sequence of events is not random. Extremes of the same type

tend to be clustered; for example, an extremely low flow is more likely to be followed by

another lower than average rather than by one higher than average. This is known as the

‘Hurst phenomenon’.

Secondly, it is difficult to decide which period to use. There was a discharge of nearly 130

km3 in 1879, with the last 30 years of the 19th Century experiencing a mean discharge of over

100 km3yr –1 (Evans, 1994). There is evidence throughout the historic record of flood levels

of the Lower Nile of groups of events more extreme than these. Some of the early Dynastic

records include extraordinarily high flood peak marks at Semna (Bell, 1970). It is difficult to

relate these discharges to current understanding of atmospheric conditions (Evans, 1994) so

they have tended to be excluded from consideration. The records for the period for the last

1000 years suggest that averages of flood maxima have been remarkably consistent in height,

but variation from year to year has become steadily more marked. The 60 years used in the

1959 agreement experienced particularly variable flows in spite of a high long-term average.

The last 35 years have exposed a further dimension to the variability. In the Sudan and

Ethiopia there has been a longer-term downward trend in rainfall totals common to the Sahel

as a whole, causing discharges of the Blue Nile system to decline by 16 percent (8 km3yr-1).

In the same period two short but very wet periods over central Africa have given an increase

in the average discharge of the White Nile system of 30 percent (also 8 km3yr-1). Opposing

trends in rainfall in the two main source areas have tended to cancel out north of Khartoum

(Hulme, 1988); recent evidence has not challenged this view.

The effects of man-induced global warming add a further factor to the already complex

natural causality when trying to use past data for future allocations. Global warming is likely

to increase the flow of heat from the equator to the poles, making the wind systems more

intense and the difference between the seasons more sharply defined. To date, computer

models of global climatic systems are neither sufficiently sophisticated nor spatially

disaggregated to allow dependable predictions of future changes in rainfall; larger computers

with better programs and more thorough climatic observations are required (Houghton, 1994:

29

77). This leaves an unsettling degree of uncertainty about possible changes in the magnitude

and variability of Nile flows in the future.

Fig 3.1 Nile flows at Dongola, 1870 – 1994. (from Sutcliffe and Parks, 1999)

It has been argued that any new negotiations should be based on a cautious reduction from the

1900-59 averages (Chesworth, 1994) used in some previous agreements. Analysis of

discharges between 1960 and 1989 suggests that average flows at Aswan were about 78

km3yr-1, while others suggest that 72 km3yr-1 may be a more realistic long-term figure (Evans,

1994). In the light of the independent trends in rainfall in the two main source areas it would

seem that separate allocations for each of the White and Blue Nile systems rather than an

aggregated one would form a better basis for agreement in a period of global climatic change.

Such variability and uncertainty are a major threat to the wellbeing of all the riparian states.

The fact that there is so little long-term storage means that Egypt in particular is very

vulnerable to a succession of below-average flows in the Blue Nile system. The network of

regulatory schemes proposed in the early part of the 20th Century covering the whole Nile

Basin was designed to remove this threat to Egypt by providing sufficient storage in the

systems as a whole to allow the delivery of a discharge at Aswan each year very close to the

calculated mean of 84 km3.

Annual Flow at Dongola

0

50

100

150

1870 - 1994

cub

ic k

ilom

etre

s

30

Before examining some of these schemes in Section 8 and 9 it is necessary to understand the

factors that control how much water is available and how long it takes to flow through the

different parts of the systems.

4 Factors that Control the Quantity of Flow

In its simplest form, river flow is generated when more rain falls on a water surface

Fig 4.1 Water balance for the surface of Lake Victoria

than is lost by evaporation. This is clearly seen in the graph of the data for rainfall and

evaporation for Lake Victoria (Fig 4.1). The quantity of rainfall excess is usually greater

than the quantity of evaporation excess so there is a net surplus that flows from the Lake via

the Owen Falls.

River flow generated on land is more complex, as the soil and some rock formations are able

to store water like a reservoir. If rainfall exceeds evaporation the surplus is used first to fill

the soil reservoir and then the excess runs off over the surface. At the end of the rainy season

the soil moisture is quickly exhausted either by evaporation from the soil surface or by

transpiration from plants which tap the reservoir. Once the soil reservoir is empty the

estimate for annual evaporation loss is meaningless as there is no more water to evaporate.

Strictly, these estimates should be termed “potential evapotranspiration” indicating the

quantity that would have been lost had it been available.

0

50

100

150

200

250

300

350

Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec

mm Rainfall

Evaporation

rainfall excess

evaporation excess

31

The highland areas surrounding the river basins experience higher rainfall and lower

temperatures leading to lower evaporation rates. They are therefore the main areas of net

surplus that generate the Nile flow (Fig 4.2).

Fig 4.2 Water balance typical of the Ethiopian Highlands

Moving from the highlands into the basins sees a decrease in altitude that quickly tilts the

balance in favour of net water losses because temperatures rise and rainfall decreases. The

whole of the river system below the highland rims therefore experiences a net loss of water

(Fig 4.3).

Fig 4.3 Water balance in the Sudd Region, typical of lowland areas

0.0

50.0

100.0

150.0

200.0

250.0

300.0

350.0


mm

RainfallEvaporation

0

50

100

150

200

250


mm

Rainfall

Evaporation

32

The amount of loss from the river itself depends on how wide it is and over what length of

time the water is exposed. The Blue Nile system rivers are generally fast and narrow so they

lose little of the flood peak before it reaches the Main Nile. The White Nile water, however,

flows for much of the time in broad shallow basins where flow is slow and the surface area is

considerable. This explains the very high evaporation losses in this region (Fig. 4.4).

Fig 4.4 Monthly flows into and out of the Sudd

The construction of the Aswan High Dam has created an enormous expanse of open water in

an area where the rainfall/evaporation deficit is over 2.5 m yr-1 (Fig 4.5). An initially full

reservoir loses about 15 km3 a year.

Fig 4.5 Water balance typical of the Lake Nasser/Nubia area

0.0

50.0

100.0

150.0

200.0

250.0

300.0

350.0


mm rainfall

evaporation

0500

100015002000250030003500

Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep Oct

Nov

Dec Jan

mill

ion

s o

f cu

bic

met

res

Inflows

Outflows

33

5 Factors that Affect the Timing of Flows

Speed is clearly an important factor in the movement of water through the system and the

amount of loss it suffers. Speed is determined by the slope of the water surface, the depth of

the flow and the resistance of the river bed and the banks to flow. The steeper the slope, the

deeper the water or the smoother the bed and banks, the faster the water flows.

The steep gradient of the Blue Nile system is actually made up of alternating pools and rapids.

Floods fill in and join up the pools increasing the gradient of the water surface so that rains

from the Ethiopian highlands arrive at Aswan very quickly. The White Nile system,

however, is noted for large areas with very little gradient at all. The pools are very long. In

such areas a positive rainfall/evaporation balance, or inflow from an upstream part of the

system, must be passed on by an increase in speed, but it cannot be achieved by an increase in

gradient. The only variable available is an increase in depth.

In the Sudd the landscape is so flat that the increase in depth caused by the arrival of a flood

makes the river spill over onto the floodplain. The shallow depth on the floodplain and the

obstruction caused by vegetation cause the water flow to slow down almost to a standstill

exposing it to intense evaporation. In time the increased flow in the channel allows the flood

to pass and lets any water remaining on the flood plain rejoin the main channel if there are no

levees in the way. The only way to make the water move faster in such areas is to deepen the

channel so that the base is well below the level of the floodplain. In engineering terms it is

much easier (and cheaper) to by-pass the Sudd with a channel dug on dry ground where the

soil can be used to form levees at the sides. This was the intention of the Jonglei Canal, work

on which was started in 1978.

6 Flow and Sediment Movement

The section of the Jonglei Canal that was completed revealed an important aspect of speed of

flow. The plains to the east of the Sudd are so flat that the rainfall excess does not flow fast

enough to cut channels in the landscape but creeps as a sheet several centimetres deep across

the whole width of the plain to join the water in the seasonally flooded grasslands. The canal

interrupted this flow causing extensive flooding along its length.

Water flowing at very slow speeds does not erode material and soon deposits any sediments it

may have picked up when it was previously flowing faster. The White Nile system with its

34

succession of lakes and swamps carries very little sediment load. The Blue Nile system,

however, carries hundreds of millions of tons each year until it reaches the still waters of a

reservoir or the distributary canals of an irrigation system. Coarse material is deposited

immediately but silts and clay will travel some distance before coming to rest. Accumulation

of sediment in the dams at Rosieres and Sennar and in the irrigation schemes at Gezira and

Managil is a major problem. Barrages on the Blue Nile can be managed to reduce the rate of

sedimentation but only at the risk of failing to store enough water for the following year.

Sediment-free water leaving a reservoir picks up sediment rapidly to compensate for the load

it has lost. The Atbara below the Khashm-el-Ghirba Dam has eroded deeply into the

floodplain removing previously productive agricultural land and disrupting communications.

To stop extreme flood events, which would be too large to be stored in Lake Nasser/Nubia,

causing such a problem on the Nile below the Aswan High Dam, the Toshka Spillway was cut

in 1978 to divert excess flood water into the desert. This has ensured that the speed of flow

passing down the Nile below the Dam could be kept below the threshold at which erosion

starts, and so safeguard the extensive system of barrages and distributary canals in Egypt.

7 The Response of Plants to Seasonal Changes in Water Level

Flat areas that experience regular changes in water level show a distinctive zonation of plant

assemblages. Permanently flooded areas are usually dominated by papyrus that floats while

its roots penetrate the base of the swamp. It does not tolerate areas that dry out. Grasses

dominate as soon as ground is exposed for any length of time, the type depending on the

depth and duration of flooding; the more tolerant ones fringe the swamps while the more

sensitive ones merge into the dry grassland. Small repeated variations in the relief of the

floodplain produce a mosaic of plant assemblages that support a diversity of animal, bird and

insect life and provide dry season grazing for the herds of nomadic pastoralists.

8 Possible Water-based Options Available to the Sudan

There are two classes of scheme that could be adopted to improve the utilization of the waters

of the Nile ;

(1) Schemes to reduce losses from evapotranspiration could be applied to the swamps of

the White Nile and its tributaries in the Southern Sudan; .

(2) Schemes to increase storage and reduce sedimentation could be applied to the Blue

Nile and its tributaries in Ethiopia, Eritrea and eastern and northern Sudan.

35

While work on the White Nile swamps could be undertaken independently of any

international scheme, the work on the Blue Nile would be far more effective if co-operation

with Ethiopia and Egypt were achieved as it is difficult to deal with problems of

sedimentation that originate outside one’s political boundaries and there are considerable

gains in water saving available from storage at high altitudes rather than in the Nubian Desert.

8.1 Schemes to Reduce Evaporation Losses

Work by the Egyptian Ministry of Irrigation in the early part of the twentieth century

indicated that there were considerable losses from the swamps and seasonally flooded areas of

the Bahr el Jebel, the Bahr el Ghazal, the Sobat and its main tributary, the Pibor. A recent

analysis (Sutcliffe & Parks, 1999) of the hydrology of these areas suggests that the long-term

decline in the rainfall of the Sahel region has reduced the gains to be achieved from all but the

Bahr el Jebel to a level where investment on a large scale to supply water to other regions

would be likely to be uneconomic.

There are important additional gains to be made from some form of regulation on the Bahr el

Jebel as the severe damage caused by the uncontrolled flooding of the Sudd area following

the high rainfall excess on Lake Victoria in the 1960s demonstrates. The increased flow of

the White Nile produced an almost 500 percent increase in the area of permanent swamp in

the Sudd, causing immense hardship to the local inhabitants, while the area of seasonally

flooded grassland rose by only 30 percent.

Before the Aswan High Dam was built the proposed schemes needed not only to increase the

supply of water but to change its time of delivery to gain the maximum benefit to Egypt. The

most beneficial schemes involved regulatory systems at the outflows of Lakes Victoria and

Albert to reverse the seasonality of flow through the Sudd, flooding it in the dry season and

depriving it of water in the wet season. The ecological and economic effects of such

management would have been considerable.

The construction of the High Dam removed the requirement to change the timing of the flow.

The scheme started jointly by the Sudan and Egypt in 1978, known as Jonglei I, consisted

only of the diversionary canal with no supporting long-term storage, intended to be operated

on a “run of the river” basis. It is calculated that this would have produced about 4 km3 yr-1

of extra water at Aswan, to be divided equally between the two countries. Sudan’s share of

36

over 2 km3 yr-1 would have been used to safeguard its abstraction of the waters of the Blue

Nile in periods of low flow for irrigation schemes in eastern and northern Sudan.

Regulation at the inflow end of the Jonglei Canal would allow choices to be made between

different objectives. Calculations made after the start of Jonglei I considered what effect

constant extractions of 20 m3 x 106 day –1 (Ia), and 25 m3 x 106 day-1 (Ib), and seasonally

adjusted ones of between 15 m3 x 106 day –1 and 25 m3 x 106 day –1 (Ic), would have on

water saving and the extent of permanent and seasonal swamp areas. It was claimed that

option Ic could minimise the disruption to the wetlands “with little effect on the predicted

benefit downstream” (Sutcliffe & Parks 1999, 87).

Fig 8.1 Possible effect of the Jonglei Canal on flood areas in the Sudd

Jonglei II would have similar possibilities for variations in operation to achieve different sets

of objectives, but would require regulation of the East African lakes, especially Lake Albert,

to be effective.

8.2 Schemes to Increase Storage and Reduce Sedimentation

The rehabilitation of the regulatory and irrigation facilities and the initiation of new schemes

on the Blue Nile has been discussed for some time. These range from removing sediment

from the irrigation networks on existing schemes to heightening the dams at Sennar and

Rosieres. Although in the past the Sudan appears not to have used fully its allocated share of

water, any unilateral development would soon come up against the limits of water availability

to the Sudan on the Blue Nile. Co-ordinated development of the whole Blue Nile system for

storage, sediment control, power production and irrigation appears to have great long-term

0

5

10

15

20

25

30

35


tho

usa

nd

s o

f sq

uar

e ki

lom

etre

s

1905-1960without canal

1905-1960with canal

1960-1981without canal

1961-1980with canal

37

advantages to all the states involved, as it could eliminate the need for long-term storage in

Lake Nasser, reducing considerably the 15 km3 yr-1 lost by evaporation and seepage. It is

hoped that attention will be focused in this direction as quickly as possible (Whittington, et al,

1995).

9 Hydrological Aspects of Irrigation Schemes in the Sudan

The distribution of the irrigation schemes and their water requirements is comprehensively set

out in the Master Plan of the Nile Water Study (1979) and is summarised by Knott and

Hewett (1994). See Table 1 below.

The Country Paper presented by the Sudan to the Fifth Nile 2002 conference in 1997 (Anon

1997) stated that

“by the time of the completion of the irrigation and power projects currently under

implementation the Sudan will have used its whole share of the Nile waters (20.5 km3

at Sennar). The potential demand of the Sudan from the Nile waters for food security

and essential basic uses by the year 2002 is 32 km3.”

LOCATION

EXISTING

PROPOSED

AREA WATER 103 feddan km3

AREA WATER 103 feddan km3

WHITE NILE N Nimule to Malakal

Malakal to Khartoum

BLUE NILE

ATBARA MAIN NILE RESERVOIR EVAPORATION

20 0.05 640 1.90

2980 11.8 450 1.62 350 1.20 0.53

1170 4.0

TOTAL

4440 17.10

Table 1: Areas of Irrigation in the Sudan and their Water Allocation

38

Hydrologically the dominance of the Blue Nile in these figures is explained by there being

sufficient gradient to allow gravity fed schemes with efficient drainage avoiding problems of

salination. In addition alluvial soils derived from the Ethiopian Highlands allow large-scale

mechanised farming in spite of siltation problems.

The White Nile north of Malakal and the Main Nile run through areas of similar soils, but

pumping is necessary to maintain the water supply to the schemes. Suitable areas tend to be

discontinuous requiring smaller schemes to be implemented.

The White Nile basin immediately south of Malakal suffers from such low gradients that large

gravity fed schemes are impossible and there is a great potential for salination problems.

Highly variable seasonal flooding, creeping flow and heavy clays also militate against large

schemes near the rivers (Howell and Lock, 1994). In this area the greatest potential is for

small-scale schemes supplementing rainfed agriculture in the higher parts of the basin. Since

evaporation losses in the Bahr el Ghazal swamps approach 100 percent it is unlikely that such

developments in the far south would reduce the amount of water available to other areas

further north.

10 Hydro-electric Power Generation

Existing power generation plants are combined with storage reservoirs for irrigation schemes.

The Blue Nile system rivers, the Main Nile and the White Nile between Nimule and Juba

have the necessary gradients to support efficient new power production plants. All the areas

have evaporation loss problems and all but the latter area have sedimentation ones as well.

This favours the development of “run of the river” schemes that require little storage capacity,

although they suffer from seasonality of flow. The power potential on the White Nile could

best be considered within an overall “Jonglei II” type plan where flow control for both power

production and water export could be co-ordinated.

11 Conclusions The White Nile south of Malakal has limited potential for large-scale irrigation schemes but

could be a provider of water to other areas of the Sudan by reducing evaporation loss from the

marshes, hopefully with environmentally sensitive management and with equitable

compensation to the area. Small scale irrigation schemes in the Sudanese tributary

headwaters to the west should not affect international allocation calculations significantly.

39

The Blue Nile system rivers from the Sobat to the Atbara have the greatest potential for the

development of irrigation and power production. However, their highly seasonal regimes

would require additional storage reservoirs which would suffer seriously from evaporation

loss and sedimentation problems if they were established within the Sudan. Increased

abstraction could be allowed for in a limited way by transfers to the Main Nile from the Sudd

but the greatest gains are to be had from fully integrated international development that

eliminates the major part of the immense water losses from Lake Nasser/Nubia.

The Sudan Country Paper to the Fifth Nile 2002 Conference observed that:

“The economics of joint projects such as storage dams, hydropower projects or

watershed management projects implemented in the upstream riparian states for the

benefit of both the upstream and downstream riparian states is no doubt attractive and

recommendable on a bilateral or multilateral basis.”

The White Nile north of Malakal and the Main Nile with their more regular flow could

support the expansion of irrigation and development of power production without major

storage construction, subject to adequate pumping facilities and seasonally fluctuating power

output. Increased abstraction without affecting Egypt’s allocation could be compensated

internally from reduced losses in the Sudd folowing completion of the Jonglei Canal or could

be included in the integrated development of the Blue Nile system, where storage in Ethiopia

would generate additional timely river flows.

40

APPENDIX 1 Potential Water Savings in the Nile Basin Scheme Estimated Savings Jonglei I (completion) 4+ Jonglei II (L Albert, etc) 10+ Jonglei III 0 – 10+ Machar/Pibor 2 – 10+ Hafirs in Rainfed Zone 24 – 30+ High Level Storage in Ethiopian Highlands instead of L Nasser/Nubia 6+

41

REFERENCES Anon, (1997) Country Paper – The Republic of the Sudan. Fifth Nile 2002 Conference,

Addis Ababa.

Bell, B. (1970) The Oldest Records of the Nile Floods. Geographical Journal, 75, 1-36.

Chesworth, P. (1994) History of Water Use in the Sudan and Egypt. In Howell, P.P. and

Allan, J.A. The Nile: sharing a scarce resource. Cambridge: Cambridge University

Press.

Collins, R.O. (1990) The Waters of the Nile: hydropolitics and the Jonglei canal. Oxford:

Clarendon Press.

Evans, T. (1994) History of Nile Flows. In Howell, P.P. and Allan, J.A. The Nile: sharing

a scarce resource. Cambridge: Cambridge University Press.

Georgakakos, A.P., Sadaka, T. and Barr, T.W. (1992) Tradeoffs in the Regulation of the

Equatorial Lakes, Water Resources Development, 8, 1, 10-6.

Houghton, J. (1994) Global Warming: the complete briefing. Oxford: Lion.

Howell, P.P. and Allan, J.A. (1994) The Nile: sharing a scarce resource. Cambridge:

Cambridge University Press.

Howell, P.P. and Lock, M. (1994) The Control of the Swamps of the Southern Sudan:

Drainage schemes, local effects and environmental constraints on remedial

development. In Howell, P.P. and Allan, J.A. The Nile: sharing a scarce resource.

Cambridge: Cambridge University Press.

Howell, P.P., Lock, M. and Cobb, S. (1988) The Jonglei Canal: impact and opportunity.

Cambridge: Cambridge University Press.

Hulme, M. (1988) Changes in the Wet Season Structure in Central Sudan, 1900-1986. In

Gregory, S. (ed.) Recent Climate Change. London: Longman.

Knott, D. and Hewitt, R. (1994) Future water Development Planning in the Sudan. In

Howell, P.P. and Allan, J.A. The Nile: sharing a scarce resource. Cambridge:

Cambridge University Press.

Said, R. (1993) The River Nile: geology, hydrology and utilization. Oxford: Pergamon.

Sutcliffe, J.V and Parks, Y.P. (1999) The Hydrology of the Nile. Wallingford: IAHS.

Whittington, D; Waterbury, J. and McClelland,E. (1995) Towards a New Nile Waters

Agreement among Riparians. Ethioscope, 1,1, 11-7.

42

b. Summary of discussion 1. The back flow of the water does not affect evaporation in the Sudd. The problem is that

the back flow does not reach the Sudd. This is an issue in some areas where the Blue Nile blocks the White Nile. The two rivers need to be effectively controlled and regulated. The importance of the White Nile cannot be overstated because it fluctuates less than Blue Nile and contributes water during dry seasons.

2. Eighty-four percent of all waters that come to Lake Nasser come from Ethiopia.

However, in 1980s the contribution of the Blue Nile decreased by eight percent whilst the White Nile grew by the same amount. Records on the Nile go back 3,000 years, however, with more detailed information being available from 1870. Nevertheless, whatever happens to Blue Nile will affect the White Nile and vice-versa since the two are part of the same system.

3. If the Jonglei canal became operational today it would contribute 4 cubic kilometres of

water to northern Sudan and Egypt. However, this action may have consequences on the people who live in southern Sudan, as the water from the Sudd, which would be channelled into the Jonglei Canal, is important especially during the dry season for cattle as well as for the human population. There might also be wider environmental consequences of the Jonglei canal. Ethiopia is sensitive to this issue because it thinks that large part of its rainfall in the southern highlands is a result of dry westerly winds passing over the Sudd and collecting moisture from there. Scientifically, this theory might not be totally accurate because when the Sudd was full of water in the 1970s the Ethiopian highlands received sixteen percent less rainfall than normal. Some scientists think that the Ethiopian highlands’ main source of moisture could be the Indian Ocean.

4. A canal could be built from White Nile to western Sudan but it would have to go uphill.

If an artificial lake or dam were constructed in western Sudan the evaporation would be high. The White Nile waters could arrive in western Sudan with the help of giant water pumps or if the waters are taken from head-waters, which have adequate pressure to transport the waters to other regions.

43

3. Poverty-Reducing Agricultural Development in the Sudan: an outline of preparations for the next Nile Waters agreement a. Paper presented by Professor Deryke Belshaw

1. INTRODUCTION

According to a recent pro-Khartoum Government press release of United States origin

(Global Tribune, 2001 : 1):

‘Reforms introduced by the government of President Omar Hassan al-Bashir have

paved the way for foreign investment to support a program of economic development

in Sudan, the largest country in Africa. The hope is that the move to a free market

economy and a more openly democratic system of government will help Sudan to

emerge from years of isolation and civil war in the southern part of the country.’

A multi-party political process and a measure of devolution under a federal constitution ‘to 27

autonomous states to which the central government has devolved considerable powers’

(Global Tribune, 2001 : 3) are major aspects of these political reforms. Economic growth is

being boosted by oil production, currently running at 200 000 barrels per day and expected to

rise to 450 000 barrels in ‘several years’ time’; expected reserves are variously estimated at

between 1.7 and 3.0 billion barrels; ‘large reserves of natural gas’ are also expected to be

located (Global Tribune, 2001 : 2). Previous costly oil imports have been replaced and both

petroleum and natural gas exports have commenced. Nevertheless, agriculture is still seen as

‘the powerhouse of the economy’; improved food security and large-scale production of

sugar, cotton and gum arabic (the last two commodities would boast export earnings) are the

reported priorities (Global Tribune, 2001: 1; 6). The recent resumption of relations between

the IMF and Khartoum provides another hopeful signal for further progress towards a

negotiated settlement of the civil war.

These developments inside the Sudan have proceeded in parallel with progress in technical

examination of the options for water storage, regulation and use across the Nile Basin as a

whole. Funding from the World Bank and bilateral donors for seven feasibility studies,

costing $140 m, was agreed in the last month under the Nile Basin Initiative’s ‘shared vision’

umbrella; these studies ‘will be followed by loans worth at least $3 bn. to finance the projects’

(Financial Times, 2001).

44

The purpose of this paper is to explore the impacts that possible options in the use of water for

agricultural development within the Sudan, in the context of Nile Waters negotiations more

broadly, could have on food security, employment creation and other forms of poverty

reduction.

The second section of this paper describes the two main sources of underlying geopolitical

tension in the Nile Basin. These are (i) the risk of ongoing or even growing violence

connected with geopolitical tension not only in the Nile Basin itself but arising from the

Israel-Palestine conflict and further power struggles between different groups of Muslims;6

and (ii) growing competition over water (for irrigation and electricity production) and oil

resources in the context of differential rates of growth of the populations of the Nile’s riparian

states.

The third section reviews the possibilities of agricultural intensification in the Sudan using

appropriate technology for both rainfed and irrigated systems. The fourth section looks at

issues arising from international and internal negotiating and decision-making processes

which may unduly restrict identification and freedom of choice re development options within

the Sudan. The final section summarises the preceding analyses and focuses attention on the

major considerations which require further examination.

2. EXTERNAL CAUSES OF INSTABILITY: GEOPOLITICAL TENSIONS, POVERTY AND NATURAL RESOURCE SCARCITY

Quite apart from its internal political tensions and rivalries, Sudan’s location astride the Nile

Basin and on the fringes of both the North African/Middle East and sub-Saharan Africa

macro-regions fuels international geopolitical and economic pressures which appear likely to

accentuate instability in both the short and long-term. The first set of causes of instability in

the Nile Basin are short-term geopolitical tensions. These are mainly associated with the

activities of Muslim movements in frontline confrontational positions in the ongoing ‘Middle

East Conflict’. A secondary set of factors underlies the so-called ‘Great Lakes’ crisis

originating in Rwanda and Burundi and spreading into the Democratic Republic of the Congo.

The key effects on the Nile Basin countries are as follows:

6 For example, Omaar and de Waal describe air attacks by Sudan Government forces on mosques and Muslims in the Nubian mountains in areas which are outside Government control (African Rights, 1995). Fighting on the ground in this area has intensified in 2000/2001 (Guardian Weekly, various issues).

45

(i) The accession to power of a hardline civilian Islamic regime in the Sudan. This event

was not unconnected with the fact that the Sudan’s economy was (until the recent

exploitation of oil resources) the third most severely dependent on external creditors in

the world. In 1992, the net present value of Sudan’s total external debt was thirty

times the value of annual exports (World Bank, 1994: Table 23). Although 72 per

cent of debt was on non-concessional terms, the debt service ratio (debt service as a

proportion of exports) was running at the surprisingly low level of 5.4 per cent in

1992. The Sudan is indebted to Libya, Iraq, Iran and various Islamic multilateral and

bilateral development banks; repayment of these loans was continuously deferred,

which placed the Sudan in a situation of extreme dependency on its creditors;

(ii) Until recently, Sudan was in conflict with Egypt due both to disputes along the

common border and through clandestine aid to terrorist groups working within Egypt

to overturn the moderate Mubarak regime. According to a variety of press reports

these Sudanese operations were financed by Libya and Iran, and to a greater extent by

Iraq. Egypt, on the other hand, has been the largest recipient of US food aid over a

long period, and also receives major financial aid from Saudi Arabia, another

moderate (and also the wealthiest) Muslim state7;

(iii) The Khartoum government also exacerbated the civil war in the southern Sudan

through the extension of Sharia law to Christian and animist peoples and the

introduction of Arabic and Islamic syllabi in their schools. Military operations were

similarly financed by external Muslim countries funding militia from hardline groups

as well as Government forces. From 1995, conflict has frequently spilled over the

Uganda-Sudan border with incursions taking place in both directions8 Also, for

several years from 1996 Ugandan, Ethiopian and Eritrean army units were involved

alongside the forces of the Sudan Peoples Liberation Army. The discovery by the

Chevron oil company of a major oil field near Bentiu in the Southern Sudan in 1970

provided a powerful explanation of the north’s desire for undisputed control of the

south (Viorst, 1995). On the other hand, the exploitation of a nearby oil field in a

7 On the other hand, Egypt has received no loans from the Islamic Development Bank since 1978 when Egypt supported the ‘Camp David’ Israel/Palestine peace accord (Wilson, 1989).

46

friendly country would be of considerable benefit for the land-locked oil-importing

economies of Uganda, Rwanda, and Burundi;

(iv) In Ethiopia, the fall of Mengistu’s military regime in 1991 and the moves towards

ethnically-based regions (finalised in May, 1995; see Transitional Government of

Ethiopia, 1994, for the English translation of the Amharic Constitutional Document)

led to friction over land between Muslims and Christians at local levels. For

example, in 1993 World Vision Ethiopia reported the destruction of its Antsokia II

settlement scheme in Wello by Muslim force majeure and since 1995 eastern

Hararghe in Oromo Region, including the city of Harar, has been in a state of

considerable disturbance, with the central government losing control of the rural areas

to armed Oromo Muslims. Major investments made in Afar Region by a foreign

Arab businessman were suspected to have Islamic proselytising motives. These and

other developments contributed to an increase in apprehension amongst the Christian

majority resident in the Central Highlands that earlier episodes in their history of

Muslim conquest or attempted conquest were about to recur;

(v) The involvement of Ugandan troops in the north-east of the Democratic Republic of

the Congo (formerly Zaire), first in support of Kabila’s victorious forces and latterly in

support of Congolese Tutsi and other rebels, was expected to provide further western

bases for pursuing anti-Khartoum war objectives. The confused state of the anti-

Kabila movement from 1998/99 onwards, however, led to the turning of the tables by

Khartoum (see, for example, Amici, 1999);

(vi) Apart from its strategic interest in underpinning the Israel-Palestine peace accord, the

Government of the United States has specific and significant technical assistance

commitments in Ethiopia, Kenya, Uganda and Tanzania. It also plays a back-up role

to a group of NGOs concerned with food security and famine preparedness activities

across what has been termed the ‘Greater Horn of Africa9, a region which embraces all

8 The previous incursion into Uganda by armed forces from the north occurred in the 1880s, when Egyptian hegemony was proclaimed over the upper Nile Basin by a force despatched into the Kingdom of Buganda by the then Governor-General of the Sudan, C.G. Gordon Pasha. 9 As Frey has pointed out (1993: 56), an emphasis on improving food security rightly places the issue of ‘water supply’ in greater prominence. It is surprising, therefore, that the “Greater Horn” document recognises neither the importance of water availability for improved food security nor the implications of the historical claims of Egypt and the Sudan over all Nile water for potential food security and poverty alleviation interventions in other Nile Basin states.

47

the upper Nile states as well as the Sudan and the usual Horn of Africa states

(Government of the United States, 1994). By implication, the geopolitical tensions

between the US Government and the leading anti-Israel states of Libya, Iraq and Iran

may be seen to extend into all Nile Basin countries.

Secondly, in addition to the short-term ramifications of the ‘Middle East’ and ‘Great Lakes’

Conflicts, the Nile Basin states seemed likely to face, in the longer term, the intensification of

uncertainty and potential conflict over the allocation of rights to use its waters for irrigation

and hydro-electric power generation. This results from different rates of population and

economic growth amongst the various riparian states and marked differences in the current

incidence of absolute poverty. Reduction in absolute poverty is now squarely in the

international spotlight after the adoption by the OECD and the United Nations of the objective

of halving global poverty between 1997 and 2015. Solutions to the poverty problem are

constrained in part by unequal allocation of water rights to date, reflecting the exclusion of the

majority of the states from earlier formal discussions and agreements.

Table 1 provides data on population growth, economic structure and performance, and water

use for the major states of the Nile Basin (and also of the Greater the Horn of Africa).

Unfortunately, comparative national data for the Sudan are either missing or dated, and the

effects of oil production on economic performance is not yet reflected in available GNP per

capita and poverty estimates. Nevertheless, some important inferences can be drawn about

the international context in which Sudan is placed. The main contributions to deepening

instability, unless international agreement can be reached, are:

(i) The significantly higher levels of fertility and population growth in all states of the

upper Nile, except Kenya, relative to those in Egypt and, to a lesser extent, the Sudan

(Table 1, cols iii and iv). World Bank data suggests that the projected 1999-2025

addition to population in the upper Nile states will be nearly three times that in the

middle and lower Nile states (World Bank 1994, 2000). While the majority of the

populations of Kenya, Tanzania, Ethiopia and Eritrea do not live within the Nile

Basin, low income families could benefit from irrigation-based livelihoods using

increased quantities of Nile waters. The governments of these countries may see the

creation of such irrigated settlement schemes as a solution to the poverty of these

people. Nor is 2025 the end of the matter. The momentum of population growth

48

seems likely to be considerable, despite the impact of HIV/AIDS, through much of the

21st century in the present high fertility countries;

(ii) Not only do the upper Nile states have economies which are more agrarian than

Egypt’s, their agricultural production performance is poorer (Table 1, cols. vii and

viii). All the upper Nile countries, with the exception of Tanzania, have virtually

exhausted the possibilities of agricultural extensification along the margins of rainfed

agricultural settlement. The avenue of industrial-led development is not yet open to

them due to their weak relative competitiveness in the international market place

(Belshaw & Livingstone, eds., 2001). In five of the upper basin countries dependence

on agriculture is particularly high: the percentage contributions of their agricultural

sectors’ value added to GDP lie between 44 and 52 per cent of the total (Burundi,

Ethiopia Tanzania, Rwanda and Uganda in descending order). Excluding the Sudan,

where data is not available, these five countries contain some 60 per cent of the total

population shown in Table 1 (World Bank, 2000, Table 12). Inevitably, therefore, the

major part of incremental labour force growth must continue to be absorbed on the

land in these countries;

(iii) The customarily low levels of water withdrawal made by the upper Nile states will

need to rise rapidly if an unacceptably high frequency and magnitude of famine

disasters and numbers in absolute poverty are to be avoided. Irrigation, usually in the

form of low-cost small-scale schemes drawing water both from the numerous open-

water sites and from low-lift groundwater, is the primary technological ‘frontier’ able

to provide additional livelihoods in adequate numbers (for added water withdrawals

available to each state, see Table 1, column ix);

(iv) Finally, significantly higher levels of both absolute poverty and economic inequality

are found in the upper Nile states than in Egypt (Table 1, cols. x and xi). The

estimated number of poor people falling below the US$1 international poverty line in

the six headwater states for which there are data (column x of Table 1) was precisely

equal, coincidentally, to the total population of Egypt in 1999. Only 3 per cent of

Egypt’s population, however, falls below the international poverty line. Data for the

Sudan are again missing but the effects of the civil war and the high proportion of

refugees (nearly 400 000 international refugees inside the country in 1998 with a

similar number outside the country; UNDP 2000:

Table 1: Population, Economic Growth and Poverty in the Major Nile Riparian States1 Riparian Country2

i

Population

1999 (millions)

ii

Total

Fertility Rate

1995-2000

iii

Annual

population growth rate 1998-2015

iv

GNP per

capita 1999 (US$)

v

GDP av. annual growth

1990-99

vi

Rural

population % of total

vii

Food

Productivity Index 1996-98

(1989-91 = 100)

viii

Annual water

withdrawal as % total4

ix

Population

below US$ 1 per

person per day (% of total)

x

Consumption

by lowest 40 per cent

of population (% of total)

xi

Egypt

Sudan

Kenya

Uganda

Rwanda

Tanzania

Eritrea

Burundi

Ethiopia

62

29

29

21

8

33

4

7

63

3.4

4.6

4.5

7.1

6.2

5.5

5.7

6.3

6.3

1.5

2.0

1.5

3.1

2.8

2.3

2.6

2.3

2.5

1400

330

360

320

250

240

200

120

100

4.4

n.a.

2.2

7.2

-1.5

3.1

5.2

-2.9

4.8

55

773

68

86

94

68

82

91

83

140

n.a.

105

52

79

100

115

96

124

95

n.a.

7

0

12

8

n.a.

3

2

3

n.a.

42

33

51

51

n.a.

36

31

23

n.a.

15

18

23

16

n.a.

20

18

Sources: World Bank (1994) World Development Report, 1994, Tables 25, 26. World Bank (2000) World Development Report, 2000/2001, Tables 1, 2, 5, 8, 9, 11, 1a. UNDP (2000) Human Development Report, 2000, Tables 4, 19. Notes: 1. Belgium was a signatory to the 1901 Nile Waters Agreement on behalf of the Belgian Congo (later Zaire, now Democratic Republic of the Congo).

This included at the time West Nile District which was later transferred to Uganda. DRC’s potential use of Nile water is negligible. The other riparian country excluded is the Central African Republic, which is also a minor potential user.

2. Upper Nile countries are ranked by GNP per capita 1999. 3. Estimates from WDR 1994. 4. Any year in the period 1980-9

50

Table 27 seem likely to place it in the same poverty/inequality league as the other

most poorly performing countries shown in Table 1. Under current western aid

procedures, each recipient country must draw up at least an interim Poverty Reduction

Strategy Paper (PRSP). To provide the factual basis for this exercise, surveys and

mapping of absolute poverty distribution in the Sudan should receive the highest

priority amongst other needed data collection exercises at local levels (see section 5

Conclusions below).

3. NILE WATERS-BASED POVERTY REDUCTION: THE PRIMARY ROLE OF CROPS AND LIVESTOCK.

3.1 Agriculture as the ‘Engine of Development’:

A dynamic agricultural sector, through raising factor productivity, can deliver four

main types of impact on absolute poverty and income inequality:

(1) Improved self-provisioning food security, providing reductions in

hunger and premature mortality from famine and associated infections

and improved health, raised labour productivity and therefore greater

ability to survive the next period of vulnerability;

(2) Increased marketable surpluses from self-employment in agriculture,

leading to increased effective demand for incentive goods, surplus

funds for investment in farm assets and further increases in family

income and welfare (including more reliable access to health and

education sector services where these are only partially subsidised).

Agricultural systems are moving from semi-traditional to semi-

commercial modes;

(3) Increased wage employment opportunities for landless or partly

unemployed workers. This increased demand for labour may come not

only from semi-commercial and larger-scale commercial farms but

also from expanding rural commercial activity upstream and

downstream from the central agricultural production processes;

(4) Faster growing agricultural regions or zones interact via markets for

agricultural products and inputs with neighbouring regions, causing a

variety of ‘backwash’ and ‘spread’ effects e.g. pulling in labour or

51

investment funds from other, poorer regions or extending incentives,

innovations and infrastructure into other regions.

3.2 Water Management in the Sudan:

Given relatively high ambient temperatures in tropical areas below 2500

metres a.s.l., soil moisture available for plant growth is a key constraint on

plant and, indirectly, on animal growth. This is particularly the case where

rainfall is low, erratic or concentrated in a short season, or it falls on soils

where part of the rainfall is lost by excessive run-off or percolation to

inaccessible levels. The management of water as a scarce factor of production

can take a variety of well-known forms. In typical descending order of cost,

these are:

(1) Large and medium-scale irrigation using surface water either from

river flow (often requiring a reservoir) or by ‘back-pumping’, usually

from lakes;

(2) Small-scale and micro-irrigation based on surface or ground water

(including ‘flood recession’ planting – as, initially, in the ancient

Egyptian civilisation);

(3) ‘Water harvesting’ techniques – bunds or hafirs (‘tanks’)

(4) Use of inter-cropping, agro-forestry, mulching, shade and manuring to

alter plant micro-climates and/or the moisture – retaining capacity of

the soil;

(5) Improving access by animals to natural rangeland by increasing the

density and capacity of watering points.

The extent to which one or more of these water-based techniques have been applied in

Sudanese farming systems varies considerably, of course. Fig. 1 indicates the

relationship between geology and the feasibility of using ground water and surface

reservoirs; this affects agriculture and settlement patterns profoundly. Rainfall, on the

other hand, is available in adequate amounts for single-season plant growth only in

the ‘green belt’ north of the DRC border; parts of the Acholi Hills and the Imatangs;

and the Ironstone Plateau and the Central Hills (Dickie, 1992; Fig.2)

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53

Only in these areas can sustainable agriculture flourish without appropriate water

management. Even here productivity could be raised considerably, however, were

moisture-management techniques used to raise yields and prolong the production

period. Non-irrigated mechanised cereal production in the central savannah zone has

encountered severe problems of sustainability, of course, both environmental and

financial in nature. In general, water management in the Sudan has stressed

techniques 1 and 2, with evolving traditional rainfed cropping and opportunistic

animal grazing movements between wet and dry season grazing areas in non-

irrigation based systems. Techniques 3, 4 and 5 wait to be further applied; they have

the advantages of fitting easily into family-based agricultural and pastoral systems

and making only marginal changes in evapotranspiration rates and, on balance,

stabilising runoff and flooding.

Figure 2 Southern Sudan: ecological areas (After SDIT (1955))

A key issue, however, is the distribution of large and medium-scale reservoir and

river-based irrigation across the Sudan’s provinces and peoples. Davies (1991 : 361;

358), referring to large-scale irrigation projects, observes that:

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“....investment has been concentrated in the eastern and central parts of the

country where irrigation water is available and Port Sudan is accessible. This

has resulted in the lopsided development of the economy...”

and that, citing Ballal, 1987, in support:

“....Investment on irrigation along the Niles and Atbara Rivers has taken place

at the expense of other parts of the country and has been subsidised by the less

developed areas, particularly the west...”

Given the high water loss from the Bahr el Jebel system, the cost to downstream users

of expanding irrigation in the south and in the Sudd area can be kept at negligible

levels.

Large-scale irrigation projects in the south, whether with tenant farmers on Gezira

lines or with outgrowers supplying a nucleus estate’s processing plant, as in

Swaziland or western Kenya, would allow the resettlement of southern-origin

refugees attracted by potential middle-income livelihoods. Southern Sudan’s support

for the completion of a modified environment-friendly Jonglei canal (design 1C, see

Roger Belshaw’s paper) would be an important southern bargaining counter, given the

trade-off the additional water generated for Egypt would provide for the Sudan’s Blue

Nile irrigation schemes. Alternatively, a decision not to use water for irrigation which

is generated in southern catchments could provide a basis for compensation payment

through the inter-regional block grant arrangements in the Sudan or by other

international users of the equivalent amount of water.

Raising agricultural productivity beyond the improved food security stage in the west

and south of the country clearly has to take high transport costs into account. On past

evidence, sugar, and tobacco for domestic consumption, coffee and tea for both

domestic and export markets would seem viable, given the very low production cost

structure under self-exploitation i.e. opportunity costs rather than monetary outlays

result in strong international competitiveness. Replanting with hybrid materials could

lend further support, significantly raising income terms of trade. Recently, export of

surplus traditional foods as ‘hidden organic’ produce has been proposed after a case

study in Western Sudan (Rist, 2000). Improved cross-border trading capacity to the

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south and west of the country could be stimulated by regional/provincial development

programmes based on public-private joint investment partnerships.

4. INTERNATIONAL, NATIONAL AND REGIONAL DEVELOPMENT: STRUCTURES AND IMPLICATIONS

4.1 International-level Development Planning

At mid-2001 the Council of Ministers of Water Affairs of the Nile Basin (NILE-

COM) had established a Technical Advisory Committee (Nile-TAC) under which

working groups will begin to identify and assemble subsidiary Action Programs.

These became the responsibility of national governments, their country activities

taking place within sub-basin frameworks which in turn will be compatible with the

basin-wide framework. The Nile Basin Initiative provides a forum and secretariat for

this work which is funded by the World Bank. The resolution of Sudan’s internal

problems lies outside this framework. There is a risk that important decisions could

be taken at NILE-COM level that will ignore cogent issues and perspectives viewed

from the regional and grass-roots levels inside the Sudan. There are two positive

features of the current work on assembling the overall Nile River Basin Strategic

Action Plan which may mitigate against this:

• Among its objectives is the targeting of poverty eradication, so water-based

measures to assist refugee communities, displaced people, food insecurity-

prone groups and post-disaster situations should receive priority attention;

• An important approach to facilitate the development of real action on the

ground is the principle of subsidiarity – to take decisions at the lowest possible

level (this is deemed to be the sub-basin level; presumably Sobat/Bahr el

Ghazal/Bahr el Jebel, etc.).

Both these statements need further clarification for purposes of facilitating peace-

making and economic recovery within the Sudan. Clearly, identification of target

poverty groups, defined by agreed criteria, and of the rehabilitation and development

measures which would achieve adequate impact have to be very early priorities.

Also, early agreement is needed between the Sudanese interest groups on the political

56

level of dialogue - provincial, district, etc. – consistent with the stated subsidiarity-

embodying ‘sub-basin’ level. This is a high priority even before the Sudan’s

constitutional dimensions are examined and agreed upon.

A worrying feature of the envisaged work on the strategic action plan is its potential

complexity, with the risk that grass-roots priorities will be ignored in the horse-

trading at higher levels between technical disciplines and global interests. Thus, the

large number of possible site-specific conflicts, which require extensive data

collection to understand and resolve, is clear from the following list of possible types

of projects:

(1) Generic Water Resources Management Project Possibilities

• Water Supply & Sanitation

• Irrigation & Drainage Development

• Fisheries Development

• Hydropower Development & Pooling

• Watershed Management

• Sustainable Management of Wetlands & Biodiversity Conservation

• Sustainable Management of Lakes & Linked Wetland Systems

• River Regulation

• Flood Management

• Desertification Control

• Water Hyacinth & Weeds Control

• Pollution Control & Water Quality Management

• Water Use Efficiency Improvements

(2) Other Related Joint Development Project Possibilities

(2.1) Infrastructure:

• Regional energy networks, including power interconnection and gas pipelines

• Telecommunication development

• Regional transport, including: railway and road networks; river and marine

navigation; aviation

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(2.2) Trade and Industry • Promotion of trade (including border trade)

• Industrial development

• Regional tourism development

• Promotion of private investment and joint ventures

• Marketing and storage of agricultural products

• Forest crop harvesting

(2.3) Health, Environment, and Other

• Malaria and other endemic diseases control

• Protection of wildlife

• Environmental management

• Disaster forecasting and management

Given the emphasis on poverty eradication, useful simplification of project lists could

be achieved by asking what measures in each sub-basin are capable of generating

sustainable income gains for the numbers of poor people who need to benefit.

4.2 National and Regional Sector Programmes or Projects

A non-problematic division of development responsibilities is needed to minimise the

level of friction between the centre and the regions. What did and did not work well

during the regionalisation phase before the present civil war should be taken fully into

account. Experience in other African countries suggests the following pattern of

responsibility:

National Programmes Provincial and Local Governments Defence and Foreign Affairs Local Militia, Police Economic and Financial Policy - Petroleum Sector Regulation - Metropolitan and Urban Policy Trading Centres Devolution and Inter-regional Balance - Secondary and Tertiary Education Primary Education Hospitals, Medical Training Dispensaries, etc. and Preventive Medicine Electricity Policy - Inter-regional Transport Rural Major and Feeder Roads Welfare and Insurance Policy -

58

Large-scale Water Projects Small-scale Private Sector Water (State or PPPs) Policy/Regulation Agricultural Research Agricultural Extension,

Demonstrations, etc. (incl. farmers groups private

sector, etc.) Tourism Oversight/Regulation - Mineral Regulation - Large-scale Forests (state or PPPs) Local Community and Private

Forestry Financial Sector Regulation - Aid Negotiations, Debt Management Technical Assistance to Regions;

NGOs Note: PPPs: Public/Private Partnerships The principle of matching the devolution of responsibilities to local taxation and user

charge revenues has to be regulated on an objective and transparent basis, with block

grants to local government and the location of national development projects being

integrated into equitable poverty reduction programmes for each region and district.

For a review of the role of agricultural and rural development activities in poverty

reduction in decentralised structures, with seven country examples, see Belshaw

(2000).

A hazard to commercial agriculture based activities can arise if the scale of petroleum

export earnings and the balance of payments results in the over-evaluation of the

domestic currency relative to the value of trading partners’ currencies. This so-called

Dutch disease effect lowers the price (net barter) terms of trade facing other export

commodities and this upsets the inter-regional and rural : urban balance of economic

growth, employment creation and poverty reduction (see Nigeria’s experience from

1979 to 1986 for an object lesson).

5. CONCLUSIONS

At mid-2000, as a result of collaboration by powerful international forces,

considerable momentum has been building up with respect to reform of Sudan’s

political system and to prospective multi-billion dollar investment programmes in its

petroleum and water sectors. The water sector in turn intimately involves the

agriculture sector in the Sudan which is central to poverty reduction activity. Sudan’s

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water sector is also an integral part of a programme for the Nile waters as a whole and

involves the ten riparian states. Sudan’s domestic regions and districts have not been

participants in the petroleum and water sector discussions; there is a risk that their

interests, particularly of areas whose development has been historically neglected,

will not be reflected in the current preparatory studies and negotiations. The peaceful

resolution of the Sudanese civil war is clearly a precondition for investment which

would release the streams of material benefits from the petroleum and water sectors.

The following additional actions need to be urgently considered if continuing

stalemate and loss of human life are to be avoided:

(1) An ad hoc committee and associated working parties need to be set up where

representatives can assert regions’ reasonable claims and interests in

petroleum, water and agricultural development activity (both in terms of

direct benefits for their regional economies and of a share of central

government revenue allocated to them via a national block grant formula).

Their operation would enable equitable incremental progress to be made in the

measurable reduction of poverty through food security, income generation and

employment creation impacts;

(2) An essential basis for such deliberations to become acceptable by all parties is

reasonably accurate knowledge of the regional scale and distribution of people

in absolute poverty and the size of the poverty gaps;

(3) An additional critical aspect of poverty in the Sudan case are the large

numbers of internally displaced people and international refugees.

Information about their preferred relocation and livelihood choices need to be

assembled and taken into account in regional development and block grant

allocations;

(4) In the war-torn regions estimates of the level of reconstruction required in the

productive and infrastructure sectors will be needed in order to lay the

foundations of subsequent regional development programmes;

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(5) In order to collect the necessary information concerning poverty assessment,

population relocation and recovery/rehabilitation, large-scale assistance for

independent inventory task-forces will be required. Their successful operation

will require cease-fire arrangements to be instituted and monitored in the war

zones;

(6) River sub-basins’ water yields will need to be calibrated with regional political

boundaries as a necessary precondition for calculating regional water

entitlements and for deciding whether regions wish to utilise, or be financially

compensated for not utilising, such potential;

(7) Water-using development activity of all kinds, in the form of large, small or

micro-scale irrigation or water-harvesting and crop intensification activities

using various techniques, should be a product of detailed agricultural

development planning aggregated from a local basis. This would enable

efficient and equitable choices to be made at regional and national levels.

Provisional structures and processes for participatory recovery and development

planning will need to be instituted as early as possible in order to ensure that Sudan’s

presently centrist inputs into Nile Waters studies and negotiations are altered to both

reflect and enable equitable poverty-reducing regional development strategies within

the Sudan. Experience in other countries suggest that the number of planning regions

should tie in the range 8 to 12 (Richardson, 1979; Belshaw, 2000). Above this level,

the complicity of integrating at the centre large numbers of bottom-up proposals

becomes overwhelmingly complex. The present 27 autonomous districts would need

to be reaggregated, therefore, in a smaller number of regions, although their future

role as a stepping stone from out to the community level should be retained.

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REFERENCES

African Rights (1995) Facing Genocide: Nuba of Sudan. London.

Amici, R. (1999) Conflict Resolution in the Great Lakes Region. Paper presented to

the conference on ‘African Diplomacy: achievements, challenges and

prospects’. London: University of Westminster.

Ballal, A.I. (1987) Suffering from Neglect: development in Darfur, Sudanow, 12, 6-7,

23-26.

Belshaw, D. (2000) Decentralised Governance and Poverty Reduction: relevant

experience in Africa and Asia. In Collins, P. (ed.) Applying Public

Administration in Development: Guideposts to the future. Chichester: Wiley.

Belshaw, D. and Livingstone, I. (eds.)(2001) Renewing Development in Sub-Saharan

Africa. London: Routledge.

Craig, G.M. (ed.)(1991) The Agriculture of the Sudan. Oxford: Oxford University

Press.

Davies, H.R.J. (1991) Irrigation Development Programmes. In Craig, G.M. (ed.),

op. cit.

Dickie, A. (1991) Systems of Agricultural Production in Southern Sudan. In Craig,

G.M. (ed.), op. cit.

Financial Times (2001) Nile Nations funded to aid Water Sharing (July 3).

Frey, F.W. (1993) The Political Context of Conflict and Cooperation over

International River Basins, Water International, 18, 54-68.

Global Tribune (2001) Sudan: reform and rejuvenation (July 9).

Government of the United States (1994) Building a Foundation for Food Security and

Crisis Prevention in the Greater Horn of Africa: a concept paper for

discussion (Breaking the Cycle of Despair: President Clinton’s initiative on

the Horn of Africa). Washington D.C.

Richardson, H. (1979) Urban and Regional Economics. Harmondsworth: Penguin.

Rist, S. (2000) Hidden Organic Food Production: a new approach for enhancing

sustainable agriculture in developing countries. In IFOAM 2000. Basel.

Transitional Government of Ethiopia (1994) The Constitution of the Federal

Democratic Republic of Ethiopia: unofficial English translation from the

Amharic original. Addis Ababa.

Viorst, M. (1995) Sudan's Islamic Experiment. Foreign Affairs, 74,3, 45-58.

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United Nations Development Programme (2000) Human Rights and Human

Development: Human Development Report 2000. New York: Oxford

University Press.

Wilson, R. (1989) The Islamic Development Bank’s Role as an Aid Agency for

Moslem Countries J. International Development, 1,4, 444-466.

World Bank. (1994) World Development Report 1994. New York: Oxford

University Press.

World Bank (2001) Attacking Poverty: World Development Report 2000/1001.

New York: Oxford University.

World Food Programme/Save the Children Fund (UK)(1998) An Introduction to the

Food Economies of Southern Sudan. Nairobi.

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b. Summary of discussion 1. In the Sudan, agriculture is still considered to be the powerhouse of economic

development. Fifty percent of the Sudanese population is engaged in agriculture, forty five percent of the country is desert, thirty-five percent of the country is fertile and twenty percent of the country is savannah. However, agriculture has had some negative consequences on the rural population because of the increased mechanisation of farming. Mechanisation programmes have also been criticised because of their high financial costs and the decrease in jobs for the local populace. These programmes have also been used as an ideological tool by successive governments who have tried to legitimise their rule through development in agriculture. The central government has also failed to incorporate local expertise in mechanised agriculture and has generated competition for land and insecure land rights for local inhabitants. Thus, a balance needs to be struck of where and what activities are suitable for reasonable livelihood and what is the appropriate land use?

2. At the same time, many experts think that, agriculture is one of the most

neglected areas of the economy despite its potential. There may be future potential for this sector because the Government of the Sudan (GOS) and the International Monetary Fund (IMF) have resumed their relationship. In addition the World Bank (WB) has funded 7 feasibility studies, at a cost of $100 million, in the riparian countries which could be backed by $3 billion of loans in the future.

3. GOS policies encourage rich and middle level farmers whilst the small farmers

are excluded. One way through which agriculture could become an engine for growth would be if resources accumulated from the oil development are re-directed to all farmers, irrespective of their land holdings’ size. Investment in this sector would lead to food security and lift the people from poverty. GOS could also favour small-scale irrigation because of the efficiency and motivation of the farmers. Participation is essential to embedding new structures and the GOS may try to introduce the farmers to new farming techniques by demonstrating the merits to them on pilot plots. Concurrently, the GOS should also give priority to physical and social infrastructure, which needs to be rehabilitated so that it could support the agricultural development of the country. It should also work with all Sudanese people in prioritising the country’s scarce resources in the most efficient and effective ways.

4. In Africa 350 million people live below the poverty line out of total population of

600 million. In addition, Africa has the toughest job to do if it is to accomplish the 7 development goals, which were set by the international community with the aim to reduce by at least one half the proportion of people living in extreme poverty between 1990 and 2015. The word ‘donor’ is misplaced and refers to the dependency of African states on external financial resources. The IMF and the WB are not donors but are preferred creditors, and the debt owed to them must be repaid.

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5. Sudan is undergoing a shift of agricultural development from the centre to the South. This would have implications on future water agreements and this in turn would require fair dispensation in political and other areas.

6. When people talk about the Nile context they look only at the North-South

context and as a result the conflict is simplified and many constituencies disappear. We should remember that the conflict encompasses the whole Sudan, as does the poverty. The war should be against poverty not against one another. The Sudanese people could remedy the above situation by working towards a comprehensive agreement and by co-operating in defining a common Sudanese position on the Nile Waters.

7. Local communities should be involved in local planning by specifying local

problems and solutions. Whilst it is important to empower the local people, the involvement of these constituencies will have to be done many times before their participation is institutionalised and perfected.

8. If the Sudan is not involved in a future Nile Waters Agreement it will face several

consequences. Under the present circumstances the country does not get a fair share of the waters. In the future the Sudanese people may have to fight on two fronts: one within the country and two outside it. The implication of a Nile Waters Agreement on future Sudanese administrations would depend on what is set within the document, how long the term of the document would be and how applicable the agreement would be. By and large treaties could be re-negotiated by new administrations but this would vary on a case to case basis.

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4. The Current State of Agreements and Consultation on the Nile Waters with Special Reference to the Sudan a. Paper Presented by Mr Ian Sinclair

A. Introduction This second talk will be concerned with the inter-relation and inter-dependence between the River Nile (and use of its waters) and the interests of the Republic of the Sudan. In particular, attention will be paid to the historic position relating to the treaties and agreements which regulate the use of the River Nile. I wish to consider how some of those arrangements affect the Nile, and which are of concern to one or more of the nine riparian countries. I hope to indicate how the present situation has arisen, and I draw attention to some of the recent initiatives which are trying to solve some of the problems, and especially the competing and increasing demands on an ever-decreasing water resource. B. Groupings of the Riparian States The riparian states of the River Nile (based on the natural and geographical watershed and basin on the river) can be placed into the following groups:

1. The most upstream states on the White Nile, the Central African states of the Democratic Republic of the Congo, Burundi and Rwanda. These are all former Belgian colonial states, sharing French as a common second language, and belonging to the ‘French sphere of influence’. Historically, their use of the rivers which form the head-waters of the River Nile has been limited.

2. The upstream states of East Africa, namely Tanzania, Kenya and Uganda, all

of which have frontages onto Lake Victoria Nyanza, and were formerly part of British East Africa, (and so have English as a second language) and at one time formed a federation, and which have common or similar interests. Their need for water from the feeder rivers, Lake Victoria, and the White Nile, have previously not been great, but they have increasing requirements.

3. The upstream states on the Blue Nile, namely Ethiopia and Eritrea. Ethiopia is

the source of the Blue Nile in Lake Tana, and is also the source of other major Nile tributaries, all of which account for over 80% of the Main Nile flow after the junction at Khartoum.

4. The downstream North African states of Egypt and the Sudan. Since their

independence from Britain they have come together in certain ways, illustrated by the 1959 Nile Waters Agreement and the 1974 Charter for political and economic co-operation. Each country has been regarded, as it was and is at present, as one legal entity. Thus, while it is understood that there are different viewpoints within an individual country, the legal fact at the moment is that each country is a legal entity. It is for individual states to consult internally to

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ensure that all the respective interests of their citizens are regarded and protected

It has been claimed that the ‘Core Sector’ of the Nile Basin is constituted by the countries of Ethiopia, the Sudan, Egypt and Uganda. This claim is made as this area has most of the flow of the Blue and White Niles and so the Main Nile. The land area is very large, and there is a large population. These countries are dependent upon the Nile for their development. The position is shown in Figure 1. C. The existing legal arrangements As will be seen from the treaties which were made in the past, previous water arrangements appeared to recognise and give force to the perceived over-riding requirements of Egypt for the waters of the Nile. Of course, it is understood why the downstream countries have naturally regarded their position as being vulnerable and so in need of protection. However, these agreements appear to have been made with almost complete disregard to the needs or rights of other riparian countries. Even the 1959 Agreement between Egypt and the Sudan only mentions other riparian states in vague and undefined terms. The existing legal arrangements which affect the Nile can generally be said to lack concern for the interests of the upstream riparian states, and show undue greater concern for the interests of the downstream states (especially Egypt). It is apparent that questions of use of the Nile waters are dominated by its colonial past. One major problem is that the interests of the upstream countries are not protected by the previous arrangements, and, in fact, they were not even included in the one major legal agreement, namely the 1959 Agreement between Egypt and the Sudan.10 It is not surprising that these upstream countries have never recognised and acknowledged such previous arrangements. In 1986 this agreement was extended for a further 20 years (to expire in 2006) based on the same allocations as in the 1959 agreement. A consequence of this situation is that there are inevitably different approaches and understandings of the existing water arrangements. The downstream riparian countries, particularly Egypt and the Sudan, lay great importance on their ‘rights’, as they see them, as achieved in the past. In practice they pay great attention to the importance of water use and management, although this does not mean that water is necessarily used in the most beneficial and economical way. However, until comparatively recently, the upstream countries have given comparatively little attention to water issues. They are not yet making the best use of water in their countries, although countries like Uganda and, to a lesser extent, Kenya and Tanzania contend that ‘the easy options’ and best solutions have been ‘hi-jacked’ by the arrangements made in the past.

10 See Agreement between the Sudan and the UAR (Egypt) for the full utilisation of the Nile Waters (8

November 1959)

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D. Practical effects of the present situation As is pointed out in the paper, ‘The impact of the River Nile on the politics of the riparian states’11, the practical effects areas follows :

1. Demand for water from the Nile clearly outstrips supply. 2. While, at the moment, demand in the upstream states (namely Tanzania,

Kenya, Uganda, Burundi and Rwanda) is comparatively moderate, the demand for equality of use is rising.

3. Demand for water in the downstream states continues to rise steeply. The

demand in Egypt continues to rise at a fairly steady rate, but it is expected that the demands in the Sudan could rise dramatically when there is a settled state in the country.

Adjustments of demands by each country will have to be reviewed to accord with the available water. This should involve measures for the more efficient use of the water that is available, especially a better use of water for agriculture, and greater attention to ensuring that such water as is returned to the system is not polluted. E. Matters requiring consideration Before the Sudan can take a meaningful part in any negotiations that will lead to a new treaty on using the Nile, attention will have to be given to matters such as the following:

1. The obtaining and recording of reliable data, information and records in relation to water use in the Sudan. What is needed is detailed information and data on water use, and discharge over a period of years. This data would show information on matters such as:

• how much water is used • specific abstraction points, upstream on both the Blue Nile and the White

Nile, and after the confluence • the effective use of the Sudan’s entitlement to water from Lake Nasser, • estimates of future water demand and need related to specific use, (such as

agriculture, industry, etc) • proposals for improvement, both as to the better and more economical use

of the water, what water can be returned as discharges (and, if of sewage works or industrial effluent, what proposals there are for treating, cleaning and improving such discharges).

2. What opportunities there are for more effective joint use, both within a

country and with other neighbouring countries, in possible joint activities such

11 ‘The impact of the river Nile on the politics of the Riparian states’ by Aggrey O. Oyat & Mohammed

Nuri-el-Amin – from “Sudan Notes & Records”. No 3, New Series, Khartoum, 1999.

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as irrigation and hydro-electric generation, as well as major developmental projects in agriculture or industrial projects.

As will be mentioned later, these and other aspects are being tackled through the Nile Basin Initiative.12

F. Existing Legal Agreements The list of past and present legal agreements and treaties affecting the River Nile is as follows:

• 1891. Protocol between Great Britain and Italy for the demarcation of their

respective spheres of influence in East Africa from RAs Kaiser to the Blue Nile (15 April 1891)

• 1902 Treaties between Great Britain and Ethiopia, and between Great Britain, Italy & Ethiopia relative to the frontiers between the Sudan, Ethiopia & Eritrea (15 May 1902)

• 1925 Exchange of Notes between the UK and Italy respecting concessions for a barrage at Lake Stan and a railway across Abyssinia from Eritrea to Italian Somaliland (14-20 December, 1925)

• 1929 Exchange of Notes between the UK and Egypt in regard to the use of the waters of the River Nile for irrigation purposes (7 May `1929)

• 1949 Exchange of Notes constituting an Agreement between the UK and Egypt regarding the construction of the Owen Falls Dam, Uganda (30-31 May, 1949)

• 1950 Exchange of Notes constituting an Agreement between the UK (on behalf of Uganda) and Egypt regarding co-operation in meteorological and hydro-logical surveys in certain areas of the Nile basin (19 Jan, 28 Feb & 20 March 1950)

• 1952/53 Exchange of Notes constituting an Agreement between the UK & Egypt regarding the construction of the Owen Falls Dam in Uganda, (16 July 1952 & 5 January 1953)

• 1959, 1993 Other relevant African Conventions Framework for general co-operation between the AR of Egypt and Ethiopia (1 July 1993)

• 1994 Convention for the establishment of the Lake Victoria Fisheries Organisation – made at Kisumu, 30 June 1994 – Kenya, Uganda & Tanzania – FAO 61 – pages 122 –141

• 1995 Protocol on shared watercourse systems in the Southern African Development Community (SADC) Region – signed at Johannesburg , S.A., 28 August 1995 – FAO 61 – pages 146 – 15313

12 ‘Policy Guidelines for the Nile River Basin Strategic Action Program’, produced by the Council of

Ministers of Water Affairs of the Nile Basin States, available on the Internet http://www.nilebasin.org.Documents/TACPolicy.html

13 There is another statement set out in the essay, ‘Principles and precedents in International Law’ in

‘The Nile – Resource Evaluation, resource management, hydro-politics and legal issues’, pp 356-357 – proceedings of the Conference held at the Royal Geographical Society & the School of Oriental & African Studies, University of London, 2-3 May 1990 - prepared for publication by PP Howell & JA Allan, ISBN 07286 0167 2.

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G. The 1959 Egypt- Sudan Agreement In strictly legal terms, the only formal legal agreement between two sovereign states is the 1959 agreement signed between Egypt and the Sudan. The previous agreements were more statements of government intentions. The 1993 agreement between Egypt and Ethiopia is merely a framework for discussions, the details of which still have to be completed. Thus, the only agreement that requires more detailed study is the 1959 agreement. It is an agreement that was necessary to enable Egypt to dam the River Nile above Aswan and so create Lake Nasser/Nubia, which stretches from Egypt into the Sudan. Thus the agreement was for the maximum utilisation of what was deemed to be the ‘surplus waters’ of the Nile and also the extra impounded water that was created in Lake Nasser. Because of the geographical position and the northern flow of the River Nile, the interests of the southern part of the Sudan received little thought or protection. The calculated average annual flow of 84 billion cubic metres of water was divided between Egypt as to 55.5 billion cubic metres per annum, and the Sudan as to 18.5 billion cubic metres per annum. At that time, it was estimated that there would be a loss of some 10 billion cubic metres per annum in evaporation at the Aswan High Dam from Lake Nasser. At the time of its making, it was regarded as a model water sharing arrangement as it incorporated some advanced ideas relating to co-operation. Of course, time has moved on, and since that date the Helsinki Rules and the 1997 UN Convention have been made. It is true that other nations were mentioned in general terms, and it was recognised that such states might have further claims on larger shares of the Nile waters, but Egypt and the Sudan should agree on ‘a unified view’ in connection with any such further negotiations. After the statement of reasons for the Agreement, the 1959 Agreement is divided as follows:

1. ‘The present acquired rights’ - refers exclusively to the take of water by both Egypt and the Sudan

2. ‘The Nile control projects and the division of their benefits between the two

republics’ – this provides for the construction of ‘the Sudd el Aali at Aswan’ (now called the Aswan High Dam and Lake Nasser/Nubia) by Egypt and the Roseires Dam by the Sudan on the Blue Nile ‘and any other works which the Republic of the Sudan considers essential for the utilisation of its share’. This Part of the Agreement provided for the division of benefits from the Nile, ‘so long as the average river yield remains in future within the limits of the average yield’ … ‘which was estimated at about 84 milliards of cubic metres per year’. The Agreement (in clause 4 of the 2nd part) sets out a formula for calculation of share related to average yield. There are at least two other significant sentences:

• ‘But if the average yield increases, the resulting net benefit from this

increase shall be divided between the two Republics in equal shares’

• ‘ As the net benefit.. ….is calculated on the basis of the average natural yield of the river at Aswan…….., it is agreed that this net benefit shall

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be the subject of revision by the two parties at reasonable intervals to be agreed upon after starting the full operation of the Sudd el Aali Reservoir’

3. ‘Projects for the utilisation of lost waters in the Nile Basin’ This Part of the Agreement commences: ‘In view of the fact that, at present, considerable volumes of Nile Basin Waters are lost in the swamps of Bahr el Jebel, Bahr el Zeraf, Bahr el Ghazal and the Sobat River, and, as it is essential that efforts should be exerted in order to prevent these losses and to increase the yield of the River for use in agricultural expansion in the two republics, the two republics agree to the following: …’

4. ‘Technical Co-operation between the two republics’ This provides for the setting up of ‘a Permanent Joint Technical Commission’ with five specified functions. 5. ‘ General provisions’

This refers to what should happen if other riparian states wish for negotiations concerning the Nile Waters and provides for an agreed unified view between the two Republics.

6. ‘Transitional period before benefiting from the completed (Lake

Nasser/Nubia)’ 7. Coming into force of the agreement

8. Incorporation of Annexes 1 & 2 (these relate to the loans necessary to build

the Dam). G. Diagrams to Illustrate the Position Mr Roger Belshaw, in his paper, entitled ‘River Flow Available to the Sudan: hydrological and environmental implications’, explained how the River Nile system works and how any new agreement much be directly related to the water available in the Nile14. However, I set out below reference to certain diagrams which illustrate how hydrology and law must work together to produce a new viable solution to the situation which is now facing the riparian states in their requirements for water from the Nile. They help to understand the relevance of the information already given in the first talk in its international context, and to assess the importance of what has been said in this talk to this point

1. Figure 1 above shows the nine riparian countries and the course of the White Nile, the Blue Nile and the Main Nile.

2. Figure 2 shows the six main regions into which the Nile basin can be divided.

Also, so far as the Sudan is concerned, it is divided (mainly) between three of 14 Roger Belshaw, ‘Implications of Sudan’s hydrology and environment for a Nile Water Agreement,’ to be presented at Second Sudan Consultation of the Sudan Peace-Building Programme, London, 16-20 July, 2001.

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these regions – going-downstream – the Sudd Region, the Central Sudan Region, and the Cataract Region. There are different physical, and so operational, considerations to be taken into account in the consideration of these regions.

3. Table 1 shows the flow and the amount of water at certain key points15.

4. Figure 3 illustrates the rising demand for the use of the waters of the Nile in both upstream and downstream countries. This shows the considerable growth in irrigated areas, particularly in Tanzania and Uganda between 1980 and 2000. This illustrates the rising demand for water in the upstream states and shows why those states are unhappy with the present allocation for water.

5. The diagrams in Figures 4 and 5 show that the population in Egypt is rising

steadily and fast, and so water is needed both for agriculture and also for drinking and sanitation. See Figure 4. ‘Population growth in Egypt (in historical times up to 1430)’, and Figure 5, ‘Growth of population in cropped areas in Egypt (from 1820 till 1980)’.

6. Figure 6 which shows in more detail the course of the Nile in the Sudan and its

relationship to the major towns. It also indicates the course of the rivers of the Sudd region and the line of the Jonglei Canal.

7. Table 2. Estimated present water use in the Sudan – the figures are for the1985/86 at Aswan.

8. Figure 7. Growth of population and irrigated areas in the Sudan from about

1900 till around 1980.

The final three points above relate specifically to the Sudan. These two trend lines in Figure 7 must be taken together as there is obviously a correlation between the increased population and use of irrigated land and the increasing demand for, and use of, water. This information is not totally up-to-date, but is used to illustrate the size of the problem and the need for a solution. . Any legal solution has to be related to the facts and to solve real problems, not hypothetical situations.

H. The Nile Basin Initiative Certainly some progress is being made on appreciation of the whole of the River Nile basin as one inter-dependent community joined by reliance on the effective use and preservation of the environment of the Nile and its surrounding valley ecosystem. The Nile has to be seen as an indivisible organic natural entity that is affected by the

15 This is merely an indication of the relevance of the question and the whole paper ‘Hydrological data

requirements for planning Nile management’ by JV Sutcliffe and JBC Lazenby should be read, and other more recent data and papers should be considered which will illustrate the decreasing flow in the Nile in recent years.

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natural laws of a river basin, i.e. that what happens in one part of the basin has a direct effect on what happens in another. There is a natural cause and effect. There are encouraging signs that this realisation is becoming more of a reality in the holding of increased inter-communication and co-operation. A prime example of this is the Nile Basin Initiative. In the Policy Guidelines for the Nile River Basin Strategic Action Program (RP3), the Introduction states:

‘The Nile is one of the world’s greatest riches, and is of inestimable value for its peoples – a resource which needs to be held in trust for future generations. Sustainable development and management of the Nile Basin presents a great challenge and there remain many opportunities for growth and development for the future, bringing the promise of regional harmony and economic development. At the heart of this challenge is the imperative to eradicate poverty. Without action to-day, the riparian countries will face many problems including famine, extreme poverty, environmental degradation and rapid population growth. This is a clear challenge for the peoples of the Basin and calls for vision and leadership.’

The Document states that it, ‘sets out guidelines for taking the strategic action which is necessary to realise the potential of the Nile for the good of all. The time has come to move from planning to action.’ The Objectives are stated as follows:

• ‘To develop the water resources of the Nile Basin in a sustainable and equitable way to ensure prosperity, security and peace for all its peoples

• To ensure efficient water management and the optimal use of the resource • To ensure co-operation and joint action between the riparian countries,

seeking win-win gains • To target poverty eradication and promote economic integration • To ensure that the programme results in a move from planning to action’

The Shared Vision is declared to be ‘to achieve sustainable socio-economic development through the equitable utilisation of, and benefit from, the common Nile Basin water resources’. The Shared Vision Program has five broad themes:

1. Co-operative framework 2. Confidence building and stakeholder involvement 3. Socio-economic, environmental and sectoral analyses 4. Development and investment planning 5. Applied training

In the context of this paper, the most important and relevant project, which is to be a part of the subsidiary action programmes, is the ‘Generic Water Resources Management Project’ which explores a wide range of ways by which management of the Nile waters can be improved, including issues such as watershed management,

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pollution control and water hyacinth and weed control.16 The Program will be brought to reality through the ‘Riparian Consultation Process’. The Council of Ministers of Water Affairs of the Nile Basin (NILE-COM) is the main policy and guidance forum for Nile Basin co-operation. That body has established a Technical Advisory Committee (NILE-TAC) as an inclusive, transitional institutional mechanism to co-ordinate joint activities, pending the successful completion of the Co-operative Framework Project. Although not specifically stated in the policy guidelines, a logical deduction from this project is the assumption that eventually there will be a new treaty which will bring together all the relevant parts of the Program and will establish an inter-national organisation for its implementation. This is all within the context of the ‘Shared Vision Program Project Cycle’. This involves the establishment of working groups by Nile-TAC, preparation of consultant Terms of Reference, detailed project preparation, preparation of documentation, giving information to Nile-Com and mobilisation of funding, culminating in implementation. In addition to the Nile Basin Initiative Mechanism, the Nile-COM has requested the World Bank and its partners to organise and host a consultative group – the International Consortium for Co-operation on the Nile (ICCON). The objective of this body is to seek co-ordinated and transparent support for co-operative water resources development and management and other related projects in the Nile Basin. Within this forum, Nile countries will seek funding pledges for projects from bilateral, multilateral and possibly private funding agencies. A further example of international co-operation is the UNDP Development Project, which also has a Plan of Action.17 It is essential that people involved with water issues should keep themselves fully informed and up to date on what is happening on this initiative. It is not enough for any one country or concerned group in that country merely to be passively informed, but it should play an active part in the initiative to ensure that its interests are fully heard and understood. I. Items for Action

The total assessment of the present situation is that if the water demands of all the riparian states are considered against the actual or potential supply capacity of the Nile (particularly in a time of falling rainfall), the supply will be dwarfed by demands. Thus, it is clear that the only efficient long-term solution is to have a completely new, 16 For the full list of project possibilities, see Deryke Belshaw’s, “Poverty-Reducing, Agricultural Development in the Sudan: an outcome of preparations for the next Nile water agreement,” to be presented at Second Sudan Consultation of the Sudan Peace-Building Programme, London, 16-20 July, 2001. 17 For details, see Samir Ahmed, ‘Principles and precedents in international law governing the sharing

of Nile waters’ by Samir Ahmed, “The Nile – Resource Evaluation, resource management, hydro-politics and legal issues” – proceedings of the Conference held at the Royal Geographical Society & the School of Oriental & African Studies, University of London, 2-3 May 1990 - prepared for publication by PP Howell & JA Allan ISBN 07286 0167 2

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fully binding legal agreement, based on the present situation and having regard to the likely future scenario, which will involve all the riparian states in a new system of co-operation. Such a new treaty should cover the whole of the river basin and be for the proper management of the river. It would be based on the principles demonstrated in other major treaties governing international rivers (which were examined in my first talk). Such a new Treaty should aim to avoid the water-based inter-state conflicts which are potentially liable to erupt caused by factors such as:

1. The unequal and different management of the resources of the river basin

between the different riparian states.

2. The unequal (and some would say unjust) operation of the 1959 Agreement.

3. The necessary data (especially long-term data) for the management of the river is unreliable, inadequate and incomplete.

4. The distorting effect of foreign aid which has been granted to deal with the problems of the particular country, rather than the needs of the river system as a whole.

C. IC Sinclair 11.07.2001

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Figure 8: The Nile River Basin

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b. Summary of discussion 1. Many agreements are politically but not legally binding. The only legally binding

agreement between Egypt and Sudan is the 1959 Nile Waters Agreement, which was renewed in 1980s. There is a feeling that at the time of its signing Egypt took advantage of Sudan which was in a political turmoil because of the competition between the political forces and the military. The GOS at that time also wanted to be accepted by the League of Arab States and it needed Egypt’s endorsement. This agreement has been heavily criticised by the Sudanese people as it provided too little compensation ($15 million dollars of compensation was accepted by the GOS) to the country and as lacking parity between the two contractual parties. This agreement was also drawn without any popular participation. The allocation of water under the proposed agreement was more than Sudan required and that is why GOS did not push Egypt for a fairer distribution of water. This complacency was tied to the administration’s foreign policy, which was closely associated with Arabism and Islam. The people who had to make way for the enlargement of the Lake of Nubia were relocated as far as the Ethiopian border. Since the signing of 1959 Nile Waters agreement Sudan has never utilised its share of the waters owing to both internal and external reasons. Prior to the construction of the High Aswan Dam, the Soviet Union insisted that it should be situated within Egypt.

2. Another sensitive issue between Egypt and Sudan has been the question of their

common frontier, which still remains an important issue between them. When the United Kingdom took over Sudan, Egypt was given a large share of the Nile Waters and the Sudanese people were forced to abide by the decisions taken by the British colonial administration. In 1958, Sudan complained to the United Nations concerning its frontier with Egypt but it was forced to shelve this campaign when it came under pressure from the UK.

3. The Egypt-Sudanese relations are on the mend. Last month Sudan asked Egypt to

reactivate the joint defence pact and signed 21 agreements in a day. One of the agreements concerns a plan whereby Sudan will lease agricultural land to Egypt close to their common frontier at a low annual price.

4. Since Independence the elite had lack of vision and kept reproducing colonial

policies. As a result they have concentrated on the Ghezira Scheme and different large-scale agricultural projects without paying due attention to local resources and local practices. On many occasions criticism was voiced but ignored on scientific and political grounds. Historically, the power elites seem to have “northern fixation,” whereby they were more interested in the politics of the Middle East than the country’s civil war. The current conflict has evolved into a civil war which no longer pits the north versus the south but has become one between those who want the current status quo and those who want a change.

5. The Sudanese participants proposed that the results of these discussions be

followed up in the future through the involvement of Sudanese experts who would be commissioned to research and present papers to interested participants coming from this consultation.

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5. Specific Negotiating Issues to be Resolved within the Sudan a. Paper Presented by Mr Ian Sinclair

A. Negotiating Issues and Questions to be Asked In my first paper, I examined general principles that could be discovered from looking at some of the more important recent agreements and treaties that have been made in connection with making the best use of the water resources of a river basin. The purpose of this paper is to examine specific negotiating issues that have to be resolved within the Sudan. However, many such issues are applicable, whether internal to the Sudan or external in the sense that they are international and relate to other countries. In dealing with a Sudan specific issue, it is also necessary to consider how that issue is dealt with in the wider international context. The following is a list of negotiation issues and questions to be asked:

1. Definition of waters under discussion

• What water are we dealing with? • Are the issues limited to the Nile, or can the other water-courses, and

groundwater be used to help solve the scarcity aspects?

2. Use of Water in Agriculture18

• Is the use of water in agriculture as efficient as possible, i.e. can methods, other than e.g. flood irrigation, be used, such as trickle, or even spray, irrigation ?

• Are the crops that are being grown the most efficient, given the decreasing amount of water available?

3. Use of Water in Cities and for Industry

• In relation to industry and domestic use of water, questions should also be

asked as to the most efficient use of water. • A detailed review of existing uses should be undertaken to ensure that

water is not lost by e.g. leakage from pipes, evaporation from open storage reservoirs, illegal connections to the water mains and pipes, losses from stand-pipes, and other related issues.

• In connection with the planning and building of any new developments, care should be taken to ensure that the available water is used as efficiently as possible.

18 These are some of the issues that have been examined by Mr Roger Belshaw and Professor Deryke

Belshaw.

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4. Environmental Issues

• It is necessary to ensure that, while water is being processed, whether as ‘clean water’, before it is put into the water mains for use in domestic or industrial premises, or as it is being processed as ‘foul water’ from the sewers, that water is put back into the main water system, such as the river, in an un-polluted state.

• However, frequent monitoring should also be carried out to ensure that, where water is taken in an unprocessed state, such as direct abstraction from the river, or by extraction from a well or borehole, such water is not lost to effective use when being abstracted, and so permanently lost to the catchment.

5. Water Entitlements

• The proper entitlement of the Sudan to its water, to ensure that such

entitlements are being used properly . For example, is the Sudan making the most effective use of its entitlement to water from Lake Nasser under the 1959 Agreement?

• If not, can that water be used better, either by the Sudan, by building pipe-lines or channels to take water where it is needed? Alternatively, if a new development or town is being considered, the siting of such development close to the source of the water should be a major consideration.

• If the Sudan cannot use its entitlement, can it negotiate with Egypt for the ‘selling’ of part of its entitlement, so that money could be generated and used for other water-using projects elsewhere?

6. Geographic Boundaries

• In any agreement and settlement if there were to be at least two federal or

confederal regions in the Sudan, one in the North and the other in the South, there must be discussion of where the boundary is to be drawn, and what resources are regarded to be within each respective region.

• In the case of water, this boundary issue is important in relation to surface waters (including any dry or rainy season fed wadis) that form the boundary between the two regions or flow partly in one region and partly in another.

• In the case of underground water in aquifers, it is appropriate that the limits of those aquifers should be used for division purposes, or at least there should be specific agreements relating to abstraction from the aquifer, so that the interests of both regions are protected.

7. Abstraction of Water from Swamps

• Another inter-regional matter that would have to be decided was what use

of, and abstraction from, the swamps of the southern Sudan, and how the costs relating to those should be shared.

• Matters relating to drainage schemes, (local effects and environmental constraints and their effect on development whether remedial or

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protective) should be considered and how the costs arising should be apportioned.

• The benefits and burdens should be assessed so that, for instance, just because those swamps were in the southern Sudan region, it should not mean that all cost in relation to those swamps should be borne by the Southern Sudan region. Similarly, that Region might contend (legitimately and reasonably) that it should be compensated for not carrying out measures or development, if the preservation of the existing state of the swamps was more in the interests of the Northern Sudan Region than of the Southern Sudan.

8. Apportionment of Costs for Major Investments

• Another aspect would be the apportionment of the costs already incurred

on the Jonglei Canal I and how the costs in relation to Jonglei Canal II would be handled and apportioned.

• Similarly, consideration should give to other canal projects, such as the canalisation schemes for the South-Western area. These would include the Bahr el Ghazal basin (which receives water from the Nile-Congo divide, virtually none of which is believed to reach the Nile, and the rainfall of which has no correlation with that from which the Bahr el Jebel and the Sudd derives).

• Another practical problem would be how to deal with, and apportion the costs in relation to, the Machar Marshes, that vast area of wetland, in which much water is lost by spill from the Baro, the main tributary of the River Sobat, as well as the numerous torrents flowing into the plains from the Ethiopian foothills. Here again, the rainfall has no correlation with that of the upper White Nile catchment, but with the Blue Nile system further north.19

I do not have the personal knowledge and experience to deal with the issues surrounding the Jonglei canal, but to quote from the final chapter of the book by PP Howell et al20:

‘The construction of the Jonglei canal and development measures for the area around it have become issues in the current confrontation between north and south in the Sudan. The indisputable fact is that the canal is designed primarily for the benefit of users downstream of the Southern Region, whatever the co-incidental advantages it may bring locally, and this had for long been a source of anxiety and resentment for the people of the Jonglei area. Lack of consultation at the very outset, the

19 In connection with these particular practical matters, I have no personal knowledge and reference

should be made to Paul Howell and Michael Lock, ‘The control of swamps of the southern Sudan; Drainage schemes, local effects and environmental constraints on remedial development’ in eds. PP Howell and J A Allan, ibid, pp 243-289. Also to John Sutcliffe and Yvonne Parks ‘Water balance of the Bahr el Ghazal swamps’ in eds. PP Howell and J A Allan, ibid, pp. 281-298.

20 ‘The Jonglei Canal – impact & opportunity’ - edited by PP Howell, M Lock & S. Cobb - Cambridge studies in applied ecology & resource management. ISBN 0 521 30286 2

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seeming inability of the National Council for the Development Projects for the Jonglei Area (a body specifically created to allay these fears) to represent local interests forcefully enough, and the growing realisation of the powers and resources allocated to its Executive Organ, were the cause of mounting concern among rural peoples and their educated kinsmen and leaders. To this was added disappointment over the lack of rapid material progress in canal-related development plans….’

That book concludes with the following sentence: ‘It must be accepted that, in the negotiation of all forms of river control, the aim must be towards ‘the benefit of all the inhabitants of the Nile valley’, even if those objectives are difficult to achieve without substantial compromise’.

B. Matters to be Considered when Making an Agreement It is recommended that where an agreement can be reached, or a viable arrangement can be made, it should be recorded in a written agreement, which will be signed by all the parties to it. Then there will be a written record, which is signed by all parties, dated and duly recorded in all the necessary registers in the relevant authorities, so as to give it the necessary ‘credibility’. Later in my paper I will explore some of the other issues that should be included in such an agreement. It is profitable to consider some of the more recent agreements and Treaties relating to water in Africa. I wish to draw attention to five such agreements, although all of these were made before the making of the 1997 UN Convention and are not as recent as the 1999 Rhine Treaty (which has certain other more recent concepts which should be taken into account). However, they are all worth considering as they relate to Africa, albeit to the southern part of the Continent, involve important river basins, and regulate relations between two or more riparian states. The Agreements are set out in date order21: • 1986 – Treaty on the Lesotho Highlands Water Project between Lesotho and

South Africa • 1987 – Agreement on the Action Plan for the environmentally sound management

of the common Zambesi River System • 1992 - Treaty on the development and utilisation of the water resources of the

Komati River Basin between Swaziland and South Africa • 1994 – Agreement between Angola, Botswana and Namibia on the establishment

of a permanent Okavango River Basin Water Commission • 1995 – Protocol on shared watercourse systems in the Southern African

Development Community (SADC) – between Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

21 The texts of the Agreements are set out in ‘Treaties concerning the non-navigational uses of

international water-courses – Africa’ - Development Law Service – FAO Legal Office – Rome, 1997 – ISBN 92-5-004079-2

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I will consider the 1995 Protocol (listed above) in detail because: • it is the most recent • a large number of states signed it (including Tanzania, which would need to be a

party to any new Nile Treaty) • it refers to modern developments in law and practice • it deals with many of the issues about which each signing state has to be clear

many issues relate to internal, as well as external, concerns. It is strongly argued that a comprehensive settlement of the Nile basin-wide water use issues is the correct solution. As far as the SADC region is concerned, this comprehensive approach is recognised in the Preamble to the 1995 Protocol by the use of the phrases:

• ‘Considering the existing and emerging socio-economic development programmes

in the SADC region and their impact on the environment • Desirous of developing close co-operation for judicious and co-ordinated

utilisation of the shared watercourses system in the SADC region • Convinced of the need for co-ordinated and environmentally sound development

of the resources of shared watercourse systems in the SADC region in order to support sustainable socio-economic development

• Recognising that there is as yet no regional conventions regulating common utilisation and management of the resources of shared watercourse systems in the SADC region’22

The basic problems to be solved and ways to try to resolve them are similar, although different in scale, whether the agreement is between states, provinces, towns, or local areas. For example, if it were politically feasible to divide the Sudan into federal or confederate regions, it would be necessary to resolve the water issues so that there was clarity of understanding between the parties, so as each party could operate with its known resources. For example, examination should be carried out to see whether additional water can be abstracted and used more effectively in a local area, either by making an agreement with a neighbouring ‘unit’ (whether that be a neighbouring country, province or local administration). The 1995 Protocol on shared watercourses within the SADC will be examined below in order to high-light some of the questions that should be asked and so isolate the issues that have to be considered. This Protocol has been taken as an example of what might be done if there were to be such an arrangement for the Nile Basin. Of course , it is only a pattern and any framework or pattern has to be adapted to the particular circumstances of the particular situation. It is sometimes decided to have a Protocol to set out general principles, and then, in complicated cases, it may well be decided then, or later when specific issues require resolution, that those particular matters can be dealt with in a separate Treaty. Such a treaty may involve only one or more (but not all) parties to the Protocol. However, under the Protocol, it would be a condition that all the states who were parties to the 22 Protocol on shared watercourse systems in the Southern African Development Community (SADC)

Region – signed at Johannesburg , S.A., 28 August 1995 – FAO 61 – pages 146 – 153

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Protocol should be consulted first and give their approval. This is necessary to maintain the integrity of the river basin system. C. Case Study based on the 1995 Protocol on Shared Watercourses in the

SADC Region We shall now go through each of the major Articles of the 1995 Protocol on Shared Watercourses in the SADC Region to examine the issues which are contained in the Protocol and made subject to a shared commitment. There are often five stages or levels of agreement which the parties may go through to achieve a treaty. These are as follows: • ‘Heads of Terms’ • ‘Protocol’ • ‘Formal Exchange of Notes’ • ‘Outline (in principle agreement) • ‘Treaty’ (a formal legal agreement). Not all these stages are necessary but it gives an indication of how problems can be solved.

1. Preamble

(a) Type of arrangement A first question is to ask what type of or level of agreement is appropriate, or even more realistically, what is the minimum that can be achieved at the stage of negotiation. It is often better to gain a limited form of arrangement, even though it is not ideal and does not deal with the whole of the situation. If that limited form of arrangement can be made to work, as an initial step, it gives the basis on which a more detailed and ‘tailor-made’ agreement can be reached later.

(b) Scope of the arrangement Similarly, it is often possible to deal with problems in a small limited geographical area, before making the agreement operate on a wider area, whether province or country. Also, it is often possible to deal with a limited issue (e.g. fisheries in Lake Victoria), rather than trying to deal with the whole of the water problems in that area. Thus, the type of arrangement and the scope of the arrangement/agreement need to be made quite clear and defined. An agreement that is not clear is bound to lead to problems in the future. A motto might be ‘start small and grow’.

(c) The parties to the agreement?

Another basic question that has to be answered is who are to be the parties to the agreement. To state the obvious, it is easier to get the agreement of two parties to an agreement, rather than involve many parties. Again, it may be wise to have a policy of ‘organic growth’, namely, to start with having a series of relatively simple agreements, which are between a

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limited number of parties, but such agreement may well be inter-linked in parties, area, subject matter, etc. In this way, an inter-linked series of agreements can be built up, and, when the time is appropriate, it may be possible to have a new all –embracing agreement which will cover all the parties, areas, subject-matter, etc in one agreement. In the case of the Protocol for the SADC Region, Tanzania (a signing party to that Protocol) was also previously a party to the Lake Victoria Fisheries Agreement. Thus, Tanzania has an existing & positive experience of being involved in similar water-sharing agreements. It may be a wise policy when dealing with such matters to start negotiations with a body (whether country, province or local authority) that has experience of dealing with such matters. This can give experience of working in a co-operative way. This will then build up a series of precedents on which other agreements can be made with parties who do not have similar experiences.

(d) Relationship to other precedents or related agreements

The SADC Region Protocol refers to three such previous arrangements • The Helsinki Rules, • The work of the International Law Commission on the non-

navigational uses of international watercourses (which led to the 1997 UN Convention), and

• Agenda 21 of the UN Conference on Environment and Development (the Rio Declaration).

Such references make it clear what are the ‘points of reference’ and where such a new arrangement ‘fits’ within the field of such agreements. Such agreements, as has previously been indicated, give pointers on what type of matters will be covered and how they will be dealt with. In the case of any agreement relating to the Sudan, such a new arrangement should be ‘tied into’ (if it is still to be applicable) the 1959 Agreement with Egypt, but also the Nile Basin Initiative and what developments there have been at the time of making the new arrangement. In other words, any new agreement should use, as its ‘frame of reference,’ any new and up-to-date agreements and developments that relate to it and affect its subject matter. Any such new agreement must not be in isolation, as otherwise the new agreement might well be in conflict with the provisions of a more general agreement. Thus, while carrying out negotiations, it is essential to keep oneself fully informed on developments in related fields and subjects. Linked to this is the reference in the Protocol to the SADC as a body. Any new arrangement has to set in the appropriate political and administrative context. If it were an international agreement, it would have to be in the context of the Nile Basin Initiative. If it were an internal-to-Sudan agreement, it would have to be related to the Constitution of the Sudan. It is understood that, in the Sudan, at the moment water agreements are within the power and authority of the National Government, and so that

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Government would, at the moment, have to make, or at least be a party to, such an agreement. Depending on what is required, it might be necessary to change the constitution to achieve the desired results. Thus, in any negotiations on proposals for federalism and self-determination, such as the creation of federal or confederate regions, it will be necessary to ensure that there is sufficiently wide powers to enable the required water agreements to be made.

2. Interpretation of terms (Article 1 of the SADC Protocol)

To state the obvious, in any agreement or arrangement, it is essential to have clarity of definition, to know exactly what you mean and what you are talking about. The reason why such a clause usually comes at the beginning of a document is that it focuses the mind on the terms used and what they mean in the particular context of that agreement – you cannot assume that the usual use of terms is the meaning given to those words in that particular document. For example, in this Article, several terms have a particular limited use. You have to look at what is included in the definition, but also what is excluded! Needless to say, different people, especially lawyers will disagree on exactly what the terms used mean in that particular agreement & in that context. Not all people will agree with my views on what I think the terms used in this particular protocol mean! Let us consider some of the definitions used in the SADC Protocol.

(a) ‘Agricultural use’ means ‘use for water for irrigation purposes.’

The position here is that this description excludes agricultural uses other than irrigation – i.e. use in another agricultural activity, such as washing crops, use for watering cattle or livestock, use for taking cattle to water, etc. It does include ‘use’, i.e. not merely abstraction for use, i.e. it relates to the use of the water, whether it is in the river or abstracted from the river. However ‘irrigation’ is not defined, so presumably all types of irrigation are included – whether this is direct abstraction by pumps & pipes for spray or trickle irrigation, and also lifting water out by traditional methods and putting it into irrigation cannels, or merely direct diversion of water for irrigation purposes, so called ‘flood irrigation’. Further thought would reveal what may be included or excluded.

(b) ‘Navigational use’ means ‘use of water for sailing, whether it be for transport, recreation or tourism’. The strange aspect of this definition is the use of the word ‘sailing’ – it would clearly include boats using sails and sail power, but it is doubtful if it includes boats that are propelled by human agency, such as rowing boats, or by mechanical means, such as outboard petrol driven engines, or inboard diesel, or oil or nuclear propelled boats23.

23 Not relevant in this context, but it would be if dealing with the sea, it is not stated if the vessels used

are over the water – such as hovercraft, or under the water, such as submarines.

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(c) ‘Riparian land’ means ‘land contiguous to, abutting on or overlying waters of a stream, lake or aquifer or land through which a watercourse passes’. The problem here is that the terms ‘contiguous, abutting or overlying’ are not defined in terms of depth of soil ( i.e. does it mean just the surface layer, or how far down does the land go ?), but, more importantly, it does not say how far back from the banks of the watercourse does that ‘riparian land’ go, or, in the case of a borehole for an aquifer, how far in radius does that land go. Of course, every piece of ‘riparian land ‘ is different, but there should be some method of determining the relevant distance, either in terms of distance, or in terms of relationship to the watercourse. For example, there could be provisions under which the maximum distance from a watercourse could be defined as to be regarded as ‘riparian land.’

(d) What is also important in considering such an Article on interpretation of terms is to look at what terms are NOT defined. The most striking example in this Protocol is the fact that the most basic term of relevance to the agreement is that the term ‘water’ is not defined. This is very strange, and any water related agreement ought to have a detailed and comprehensive definition of all basic terms. You will say ‘Isn’t it obvious ?’ My reply is ‘No, it is not!’ Does the word ‘water’ mean only water in its natural state, or does it mean water that has been used and processed, whether in agricultural use, such as being contaminated by chemical or mixed with other substances? Does it include process- wash-water and/or process water, and sewage, whether before or after processing as effluent? How far does water have to be mixed with other substances to change from being ‘water’ to being another substance? What basic percentage of water has to be retained still to be ‘water’? Is liquid mud still to be regarded as ‘water’? The practical importance of this is seen in the provisions of Article 2 – clause 8, where mention is made of ‘discharge of all types of wastes into such water’, and the further use of ‘will not have a detrimental effect on the regime of the watercourse system’.

(e) It could be argued that a Protocol does not have to be specific, but if so, a clear provision ought to be made in the main document for the making of further more detailed agreements, relating to particular situations or places, which will make these issues explicit. I do not want to labour the point, but a clear and careful and detailed definition of terms used is time well spent to avoid disagreement and problems in the future. Thus, in drafting any arrangement, think through exactly what you want to cover, and then cater, not only the obvious, but also what else might happen. Be prepared in advance – it saves much time, trouble, anger and expense in the future!

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3. General Principles (Article 2 of the SADC Protocol) In many ways, such a clause is the most important clause of the agreement, as it explains what the agreement is meant to cover – it explains the content, the purpose, and the general intention of the parties. In my view, it is always wise to be explicit and deal in detail with what you mean and what you seek to achieve. Politicians often are not totally honest in their intentions (or clear-thinking into the future) and often leave important matters out and then argue that ‘Oh! that was implicit, and there was no need to state it explicitly. Of course the agreement means to cover such and such’. I think such an approach is less than honest and is bound to lead to problems in the future. In negotiations, people are often tempted not to confront matters of principle, on the grounds that, if it were raised, the negotiations would completely fail. However, that may be better than signing an agreement about which the parties have fundamentally different approaches, but which they do not have the courage to explore. Of course, I have over-simplified the issues, and there are ‘rights and wrongs ‘ on both sides, but the fundamental issues remain!

• in negotiations, do you trust those with whom you make the arrangements,

and will they deliver what you think they are promising? • and so the deeper question is, what exactly are both sides promising, and

what do the words mean in a practical and future context?

Thus, these issues must be examined and, as far as possible, these concepts should be clearly spelled out in the ‘General Principles’ of any Treaty or agreement, and the matter should not be ‘left to chance’. It is not proposed to carry out a detailed analysis of each Clause or Article of this Protocol, but I will try to point out some salient points. There is much valuable material in this Protocol and other such Treaties and agreements. In thinking about making any new arrangement related to water, detailed thought should be given to matters of what general principles are to be applied to the particular situation. Some of these are as follows: (a) What do you want to achieve? Look at other similar agreements, and then

produce a ‘shopping list’ of matters of general principle that should be covered in any such agreement. However, in the context of any arrangement that would be made between constituent parts of the Sudan, the wording of Article 2 is particularly relevant : ‘Member States lying within the basin of a shared watercourse shall maintain a proper balance between resource development for a higher standard of living for their peoples and conservation and enhancement of the environment to promote sustainable development’.

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(b) Need for compromise. Any agreement is, of necessity, a compromise, and so a balance between different objectives. A decision has to be made on where that balance should be. In the past, the issues of need to use of the water has taken precedence to the detriment of the environment. This is what, in English, we call ‘ to cut off your nose to spite your face’.

(c) Think long-term. There is always the temptation to take the short-term advantage, at the cost of the long term future; to take the easy way out and not confront the long-term consequences of taking the hard decisions at the right time. What may seem the cheaper short term answer may often in the long term prove to be disastrous and far more expensive in the long run. Thus, the need for having a long term plan is essential, and so any agreements within the Sudan should be taken in regard to the long-tem agreements for the future made internationally, and having regard to the plans of the River Nile Initiative.

4. Establishment of River Basin Management Institutions (Article 3 of the

SADC Protocol)

(a) To make any agreement work, you have got to have institutions to transform the general principles to practical reality. Thus, an efficient, properly constituted, adequately funded body, or a tiered system of bodies, to carry the agreement into positive action, is essential. Such a body must have sufficient legal and practical authority, with powers to police and enforce its decisions and requirements. Any law or institution is only as good as the power to enforce its decisions; thus its own inspection force and its own enforcement powers (including the authority and power to put into action immediate remedies, such as ‘stop orders’) are essential. Of course, there have to be ‘checks and balances’ and rights of appeal, to ensure that there are rights of review of decisions and orders, and that justice is done and seen to be done, and that there are adequate measures to prevent corruption and abuse of power.

(b) One excellent principle set out in this Protocol is the establishment of similar and complimentary organisations at three different levels in each of the participating countries. This means that there is a similar exercise of powers, duties and responsibilities at a similar level in each participating country.

(c) One of the great difficulties in dealing with problems in different countries

is that the institutions and levels of government and exercise of powers are often not the same. In one State, certain matters are dealt with at Ministerial level, while, by contrast, in other jurisdictions, the same subject is dealt with under delegated powers by the local authority at a local level. This makes co-operation, comparability and similarity, as well as practical measures, such as speed of dealing with the problem and who will attend meetings, very difficult.

(d) If there is to be a new organisation, the structures ought to be the same in each party, whether that be national, regional, or local. A frequent

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problem is that the law relating to a matter is so different between different parties – in one case, the matter may be governed by local or tribal law, while, in another jurisdiction, the same matter may be dealt with under national law, or even Provincial law.

(e) Another fundamental problem is that, in some jurisdictions, problems are within the jurisdiction of the criminal law, with sanctions like fines and imprisonment. In other jurisdictions, the matter is within the scope of the civil law; i.e. a matter between the parties involved, without the direct intervention of the Criminal Law Enforcement Body and so the sanctions are a matter of damages or injunctions to do, or not to do, certain actions.

(f) The different systems of dealing with water problems in the Nile Basin States are very diverse; between systems based on the laws of the former colonial governing countries (and between those, there are the British, French, Italian, and Belgian laws) and the different basic systems of law, (whether Sharia’h/Moslem, Common Law, Roman Law, Amharic, or other systems of law). Many years ago, this problem, was recognised by the FAO and I was commissioned to undertake a general review of the main six riparian Nile countries to see what basis there was for harmonisation. This would have been harmonisation of the systems and basic law and outlook in legal matters of dealing with water in those countries, in so far as those aspects impinged on one another in dealing with basin-wide problems. This would have produced detailed recommendations on how similar problems could be dealt with in a similar way in the six different countries. Sadly, at that time, the Sudan refused to have anything to do with the project and, so as far as I am aware, no such study has been carried out.

5. Objectives of the River Basin Management Institutions (Article 4 of the

SADC Protocol) (a) Before entering into any agreement, it is essential to be quite clear what

you want to achieve. As someone said ‘ If you do not know what you are aiming at, you will hit it every time’. Thus, a clear definition of objectives (and not too many of them, as otherwise the energy and finance is not focused or targeted on the main problems) is required to define what has to be done. This will make you think on exactly what is the best way of achieving those objectives. Sadly, so often good intentions become bogged down in bureaucracy, too many staff, too many committees and useless meetings, which serve the objectives of the people who are employed or associated with it. Such people (certainly after the passage of years) often see the organisation as a way of achieving their own personal objectives of power and money, and so lose sight of the organisation’s objectives, and their initial vision, which should be to serve the interests of the people in the country for whose benefit the organisation is set up and to bring about practical, measurable, improvements in the living conditions of the ordinary people, especially the poor and the defenceless.

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(b) To guard against this, there must be built into the system a regular review process which will measure how the achievements have been realised and to what extent the objectives have been fulfilled. From time to time, it may be necessary to alter or revise the objectives, either completely, or to re-order the set of priorities. Thus relevant and detailed questions have to be asked how this will be achieved.

6. Functions of the River Basin Management Institutions (Article 5 of the

SADC Protocol)

(a) It is the experience of many projects that were undertaken in the early years of major internationally funded projects that there was a concentration on ‘the job to be done’ (namely the building of the dam or the creation of the canal, etc) and no effective changes were then made in the organisational or government structures and institutions, in order to deal with the new situation. In those cases, it was found that, as the institutions were not created specifically to deal with the new situation, and were not specifically ‘project based’, those previously existing institutions were not appropriate to the changed circumstances and they were not able to deal with or administer the new facilities. The result was often that there was corruption, inefficiency, and other difficulties; and it was found that the new facilities were not used effectively.

(b) This lesson has now be learned and it is essential to ‘tailor make’ the new institutions to enable them to achieve the objectives of the project. Thus, a careful study and assessment has to be made as to what institutions are required, both to build or ‘deliver’ the project in its inceptual & constructional phases, and then to operate and manage the new facilities and situation in an effective and efficient manner. It is significant that the opening words of this Article in the SADC Protocol are ‘In order to obtain the objectives set out in Article 4,….’

(c) Particular attention should be paid to the five necessary foci of concern and action which should be the responsibility of the new institutions. These are all areas that should receive careful attention in any plans for action that may be undertaken in the Sudan, in order to prepare itself and to be ready to make best use of any opportunities of any proposed agreements or treaties dealing with water. These five areas and functions (as set out in Article 5) are:

(i) ‘with regard to national water resources policies and legislation’

This includes: • harmonisation of national water resources policies and legislation • monitoring compliance with water resource legislation and, where

necessary, recommending amendments to such legislation, and the introduction of new legislation

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(ii) ‘with regard to research, information and handling’ under this heading, five areas of action are specified. It is important to note that what is not being suggested is collecting information for its own sake, but for the purpose of taking right action. Such action should be based on researched, supported by facts and experience, and should be based on ‘integrated master plans for shared watercourse systems’

(iii) ‘with regard to water control and utilisation in shared watercourse systems’

under this heading, six areas of action are specified. What is important is that they are not merely ‘expressions of goodwill and intentions’, but that there is real action in the terms of regulation, control and monitoring. As has been said before, plans and legislation are only any use if they are put into action, enforced and observed and kept by all who are affected by them. The actions of the few have to be controlled in the interest of the benefits to the many.

(iv) ‘with regard to environmental protection’ under this heading, for areas of action are specified, mainly concerned with an pro-active role, making up for lost time to repair the damage that has been done in the past and to ensure that mistakes are not made in the future. Thus, here the focus is on ‘promoting’, ‘assisting in the establishment’, and ‘monitoring’. The main function is ‘promoting measures for the protection of the environment and the prevention of all forms of environmental degradation arising from the utilisation of the resources of shared watercourse systems’. Here is a field of activity upon which most action is required in preparation for the future. As has been seen in so many other countries, this aspect of activity only gets attention when it is too late and irredeemable damage has been done. However, it is realised that when desperate measures are required, there is a great temptation to concentrate on what seems to be the immediate problem, without thought to the long-tem consequences. Thus, all who are concerned with water problems should also have a similar awareness and concern for the environment. If attention in not given to the necessary action to protect the environment, there will be long-term damage to the water resources.

(v) ‘with regard to a hydro-meteorological monitoring programme’ Here the emphasis is on promoting such a programme, in consultation with other SADC sectors. In the case of any such water agreement, whether between different regions of the Sudan, or whether between the Sudan and other countries, it is essential that there is an agreed, concerted and integrated programme of action to produce the necessary plans for the future and to assess what is happening, and so keep a full record of what is actually happening, rather than what people think should happen !

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7. ‘Financial and regulatory framework for river basin management institutions’ (Article 6 of the SADC Protocol) (a) This Article requires that a financial and regulatory framework (as referred

to in Article 3, which provided for the establishment of the river basin management institutions) should be attached to the Protocol as an Annex. In the copy of the Protocol I have, that Annex is not included and so I cannot comment on the detail. That does not matter, as each new agreement must have its own, individually designed, framework and adapted to the particular requirements. However both are essential.

(b) It is said that ‘money is what makes the world go round’, and, if an agreement is not specific and detailed about financial issues, it is bound to fail. The 1959 Egypt-Sudan Agreement had financial provision in Clause 2 (Clause 2.6) and Annex 2 (providing for payments in 1960-1963).

(c) For comparison purposes, there were financial provisions in the 1992 Swaziland/South Africa Treaty relating to the Komati river basin. Relevant articles in that Treaty are :

Article 5 – apportionment of the capital cost of the project Article 6 – apportionment of the operation and maintenance cost of

the project Article 10 – financial administration the Komati Basin Water

Authority (Kobwaa) Article 11 – procedure for the re-imbursement of capital cost,

as well as the operation & maintenance cost to or by Kobwa

Annex 2. Apportionment of capital cost This Treaty should also be consulted in relation to the practical arrangement, such as the implementation of the Project and the allocation of water: Article 4 (implementation), Article 12 (allocation), and Annex 3 (water allocation and water data for apportionment of capital cost)!

(d) In the context of both financial and regulatory issues, and allocation of cost for water, the following should also be consulted: • the 1986 Lesotho Highland Water Project Treaty • as well as the 1987 ‘Agreement on the Action Plan for the

environmentally sound management of the Common Zambesi River System’24

8. Settlement of disputes (Article 7 in the SADC Protocol)

(a) This is an essential Article. In this Protocol, it is a short Article of two sub-

Articles. These provides for any dispute to be referred to the Tribunal which was set up under the Treaty which set up the SADC.

24 Refer to Appendix I. FAO 61, pp. 84-112.

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• In the 1992 Komati River Treaty, Article 16 has 7 sub-articles.

• The Lesotho Treaty has Article 16, which is called ‘The prevention and settlement of disputes’- this Article covers nearly 4 pages and has 18 sub-articles. It is good to see this emphasis on ‘prevention of disputes’. The sub-article in the 1986 Lesotho Treaty states that all the parties shall ‘pay due regard to the over-riding consideration that any dispute shall be resolved in a spirit of conciliation and that any impairment of the implementation, operation and maintenance of the Project shall be avoided’.

(b) It should be remembered that most disputes and conflicts are extremely

complicated, and the appearance that they are not complicated may derive solely or mainly from acceptance of the assertions of only one party to that dispute. What is required is not an agenda for compromise, but a recognition that serious differences of view are actually the raw material of human advance, and that the constructive solution of disputes can, and should, promote ideological and intellectual maturity. Authentic peace is the domain and gift of God, but sadly & realistically in view of the human record, such peace is unlikely ever to receive institutional embodiment. A constructive and positive attitude in wanting a project to succeed is the right spirit in which to commence and continue any project. To avoid any disagreement becoming serious, the old maxim that ‘prevention is better than cure’ is the right attitude to adopt.

9. Other Articles (Articles 8 to 16 in the SADC Protocol) These are of a formal, although necessarily essential nature. They have to be in any such agreement, but it is not required that I comment on them here. These Articles are not exhaustive and many other Articles might be necessary, according to the circumstances of the particular agreement. Subjects covered in the SADC Protocol include Signature (Article 8), Ratification (Article 9), Entry into force (Article 10), Accession (Article 11), Amendments (Article 12), Withdrawal (Article 13), Termination (Article 14), Savings Provision (Article 15), Annexes (Article 16).

D. Concluding Comments

1. In this final paper, I have sought to build on the foundations which I laid in the two previous papers. I have tried not to repeat what I have said before, except where I have felt it necessary to add further emphasis. I have sought to draw attention to general matters and principles, which have to be considered when dealing with water matters. Thus the three papers should be taken together.

2. I have not sought to answer specific questions or problems that will naturally

arise in any discussions on water matters between representatives of the Sudan and representatives of the other neighbouring and riparian countries. Far less, as I have never been to the Sudan, and I do not have a detailed or practical

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knowledge of the water problems of that country. or of any particular region, I have considered that it would be presumptuous of me to give my views on subjects about which I have no detailed personal knowledge. That is far better left to those who do have such personal experience.

3. What I have done is to try to encourage thought about general principles that

are applicable to all water sharing and management problems, and to stimulate those involved to ‘set their house in order’ before engaging on discussion with other parties. It is essential to know what you want to achieve, and to be sure what is vital to the interests of the group which you represent. However, no agreement is made without some compromise. Thus, it is also to know and decide in advance on what aspects there is room for adjustment and accommodation of other states’ or groups’ interests. Following on from this point is that there must be a ranking of points and interests in layers or levels of priority.

4. It is important to gather as much information as possible and as will be required in the negotiations on such vital issues. In so far as water is concerned, examples can be given such as:

(a) an accurate history of the past uses and demands for water

(b) the facts of the present, including how much water is abstracted and for

what purposes at different point (c) the expectations and predictions of the future demands and

requirements

5. I hope these talks will have stimulated the hearers to think and to discuss their particular problems and to apply some of the principles. In addition, they should consult the other Treaties and Agreements which can be used as precedents, as so make the best of their position.

May I take this final opportunity of wishing the Sudan peace-building process every chance for success. It is my earnest hope that the destruction, killing and all the bad things that result from war will give way to peace, as so often symbolised by the tranquil waters of a lake or river. Under God, may the Nile be that instrument to bring peace and hope to all who depend upon its life-giving waters. © IC Sinclair 11.07.2001

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b. Summary of discussion 1. What we need is a political system that will carry the interest of all Sudanese

people. The two water agreements between Egypt and Sudan demonstrate that Egypt looks at Sudan as a ‘water tank’ which should not even leak.

2. The current conflict in western Sudan is not over water rights but over land

rights. It is this issue coupled with the region’s history and the centre-periphery relationship during successive administrations that have worsened the situation in the region. Successive governments have exacerbated the situation by transferring land rights from one group of people to another without consultation.

3. The people in eastern Sudan feel that they have no claim to the Nile waters even

though this is a national resource. Alternative ways should be explored so that eastern and western Sudan would be able to tap into Sudan’s allocation of water.

4. In southern Sudan, many hydrological projects have been implemented without

paying due attention to the people, ecology and wildlife. Consequently, the current civil war worsened owing to the Jonglei canal, which has caused numerous damages to the region’s populace, wildlife and environment. In the future, constitutional safeguards should be set up which should specify the roles, responsibilities and benefits to the centre and the different regions prior to, during and after the construction of big projects.

5. The British government could play a major role in fostering an interim Sudanese

agreement on the Nile waters owing to its historical and colonial links and because of the research and physical capacities that are at its disposal.

6. The papers which were presented in this consultation demystified the process

through which the Nile Waters agreements were made and reinforced the need for the leaders to share knowledge with their constituents. This points to a system where the citizen is the principal stakeholder. However, the 1959 Nile Waters Agreement is not based on justice because few people signed it and because the populace did not ‘own’ the agreement, which did not consider adequately their needs. Justice needs to play an important part in future agreements and it ought to be an underlying consideration where the sharing of the water is negotiated.

7. The different Sudanese constituencies could apply the principles included in this

paper to draft good agreements. The problem is that the official delegates that negotiate might have different views and interpretations than those expressed here. There ought to be a system in place whereby these official negotiators would interact with the grassroots and consider the input of experts coming from different constituencies. There ought not to be a gap between the individuals who are involved and those with knowledge and ideas. Thus the different constituencies should strive to create internal stability through different confidence building measures, which in turn would support the long-term stability of the Sudan.

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6. Political Transitions: a relational analysis a. Paper presented by Dr Michael Schluter 1. Introduction The nature of any political structure and process shapes relationships between individuals, communities, political parties, organisations and the organs of government. The long-term viability of any structure or process in turn depends on whether the necessary relationships are in place and capable of sustaining it. The importance of relationships is, however, more fundamental than the viability of political structures since they are the basis of the well-being of both individuals and communities. This paper, therefore, seeks to set out briefly some principles for assessing relationships. These are based on the work of the Relationships Foundation on a wide range of issues. From these principles a number of key questions are proposed against which alternative interim frameworks can be evaluated. 2. The importance of relationships The well-being of individuals and communities can be defined in terms of relationships. This is often neglected in Western political traditions with an individualist approach to rights and narrowly materialistic definitions of well-being and development. There is, however, increasing awareness of the importance of ‘social capital’ which is essentially composed of, and defined by, relationships. The provision of public services, such as health and education for example, depend both upon a whole set of relationships within and between the service providers, and with the communities they serve, as well as the state of relationships within families and communities. Dysfunctional relationships result in both increased demands on services and a weakened capacity to provide them. The quality of social relationships is also important in determining economic performance. This is partly a consequence of the importance of the relationship environment for business efficiency, and partly a consequence of the economic costs of relationship breakdown. For an organisation this may be seen positively in the links between relationships and product quality, innovation and efficiency, with the potential for significant cost savings, value creation, and competitive advantage where relationships are managed effectively. Poor relationships within or between organisations create additional costs. At a national level, growth and productivity may be affected by the way in which businesses are clustered, regulated and supported by healthy relationships in civil society. Finally, and perhaps most importantly, relationships form the basis on which the happiness, security, identity and well-being of individuals depends. This may include relationships within families and communities, working relationships and faith relationships. Measures of happiness and physical health, for example, can be linked to an individual’s social support - the network of relationships of which they are part and on which they depend.

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3. The Importance of a Relational Analysis Given the significance of relationships for social and political well-being, and for the delivery of public services, it is important that any political settlement is analysed in terms of its impact on all the relationships which make up the fabric of a society is considered. Structures should be both politically viable and foster those relationships which will contribute to greater well-being of individuals and communities. This is not to diminish the importance of the political process, and it is of course also important that any framework is viable in terms of the political relationships on which it is built. The relationships between political parties, within parties, and between the political leaders and the communities they represent are perhaps most significant. A relational analysis is concerned with whether the necessary relationships are in place to sustain both the process and the resulting structures and with the impact of both the process and structures on key relationships. Structures which presume a set of relationships which do not in fact exist, or which operate in ways very different to those assumed in model structures, will be more likely to fail or to generate unintended adverse consequences. Structures and processes which are conducive to the development of relationships are more likely to succeed, while those which place intolerable strain on key relationships will be more likely to fail. 4. What is a ‘Good’ Relationship? Assessing relationships involves value judgements. There is no simple model of what defines a ‘good’ relationship in all contexts. For each relationship participants will need to be clear about what attributes and outcomes of the relationships are prioritised. Some, but not all, values will be compatible. Examples of the characteristics of relationships which might be sought could include: • accountability • legitimacy • equity • transparency • stability • inclusiveness • flexibility • minimal risk • maximum opportunity These values reflect different underlying relationships. Again, a reinforcing cycle operates here. A commitment to certain values by one individual or institution influences the conduct of a relationship, not just by that individual or institution but also by other parties to that and to other relationships. This makes the expression of these values more likely. But different relationship structures may foster or undermine different values. So, for example, accountability in relationships is influenced by the power structure and effectiveness of communication processes. This points to another approach to evaluation - assessing whether the preconditions for close and effective relationships are being put in place. These preconditions are regarded as necessary but not sufficient for a ‘good’ relationship to develop i.e. the

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presence of the preconditions does not guarantee a particular relational outcome because that also depends on the actions of the parties to the relationship. But if the preconditions are right then it will be more likely that effective relationships will develop. If the necessary preconditions are not in place then it makes it far more difficult for the right relationships to be sustained. The Relationships Foundation has identified five key factors which are described below. (a) Commonality Any relationship, political or otherwise, needs a foundation of common purpose.

Whether unity is expressed through a strong single national identity or through joint work and agreement on specific issues, the extent of agreement is important. This common purpose must be about real objectives and priorities, those that drive people’s decision-making and about which they are most committed. Generalised statements of agreement which gloss over fundamental underlying differences are insufficient.

Commonality does not mean absolute uniformity. Indeed, difference and diversity

can be seen positively as enriching a relationship, but areas of difference must be within some broader areas of shared purpose and agreement as to how differences may be legitimately and constructively resolved. It also needs to be recognised that objectives will sometimes fundamentally differ. On any given issue a judgement must be made as to whether differences can be accommodated or overruled without destroying the basis of the relationship. If they cannot then it may still be possible to compromise in the light of shared higher-order goals. Different constitutional models may give greater or lesser space for disagreement, and may require different degrees of commonality to operate effectively.

Political processes require commonality to function, but they may also have the

effect of fostering or undermining commonality between the various parties. Commonality in one relationship may be fostered at the expense of a reduction in commonality in another. So, for example, there may be cases where building common purpose between parties may threaten to undermine the unity within parties, or between political leaders and the communities they represent.

Commonality is not just about shared purpose. Shared values and culture are also

important. Again, this does not preclude the recognition of different cultures and traditions, but does mean that identifying and articulating shared values is beneficial. Without some shared values around issues where joint decision-making is required, there will always be a danger of causing offence or proposing unworkable solutions.

Finally commonality can also be an expression of identity. Despite differences

and disagreements, do individuals and groups ultimately see themselves as one, or is there is no meaningful sense of common identity? This commonality of identity is often defined with reference to external relationships. In negotiating with other states, for example, it is important to know whether all groups can (and wish to) feel that they can act and speak as one. A common ‘enemy’ is often used as a

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focus for unity. However, it is important that the ‘enemy’ is not a party or group with whom commonality also needs to be established. There is also a danger that when the ‘enemy’ is no longer in the frame the basis for unity disappears.

(b) Parity The basis of any relationship is also often defined in terms of the way in which

issues of power are dealt with. Parity should be distinguished from equality. There may be legitimate differences of power and influence in a relationship. What matters is the way in which power is used and that any imbalances of power are not so great that trust and confidence are impossible to build.

One aspect of parity is participation and involvement. Different structures and

different ways in which power and influence are exercised can foster participation or limit it. Another aspect of parity is the distribution of risks and rewards. These may be political, or concern the allocation of resources. Power can also be used in ways which reflect the dignity and respect that all are due, or may ride roughshod over people.

Parity in relationships is important for a number of reasons. High levels of parity

tend to foster commitment to a relationship. Low levels of parity lead to disenchantment and disengagement. An absence of parity can breed fear, mistrust and suspicion. The give and take which are a necessary part of all political processes are much easier to sustain if all are confident that outcomes will be at least roughly equitable.

In considering issues of parity it should be noted that there are different types of

power. These include political influence (domestically or internationally), the power to control resources, the power to deliver on promises or public services, the power to mobilise popular support or the power of official position. Different types of power are not necessarily co-located.

Where parity in a relationship does not naturally exist, particular attention to the

constitutional checks and balances is needed. There is a danger that where political or social groups are vulnerable in terms of their parity that the only way that they can strengthen their position will be at the expense of commonality with other parties. This may, for example, be because leaders of vulnerable groups will have to reach out for the support of those with more extreme views if the extent of commonality with other parties leaves them insufficient scope to maintain and develop their support base.

(c) Multiplexity Multiplexity is concerned with the breadth of knowledge in a relationship. At a

personal level this may be a consequences of the differences contexts in which one person meets another, and therefore whether a fully rounded knowledge of the person’s character, values, beliefs, skills, family connections, experience, etc. can be formed. Such breadth of knowledge fosters trust, accountability and understanding.

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In relationships between groups and organisations multiplexity concerns the extent to which the pressures and constraints under which they work are understood. Knowledge of their interests, skills and potential contributions is also important. If this breadth of knowledge and understanding is too limited then a relationship may be founded on many false assumptions. Expectations of what can be done or promised may be unrealistic, and the political agreements may be beyond the capacity of the participants to deliver. Positively, if all parties have a broad knowledge and understanding of each other, then hitherto unrealised areas of joint interest and activity can be identified. Then the potential contribution of all parties can be most effectively utilised rather than being unrecognised and unemployed.

(d) Continuity Continuity in a relationship is about time and stability. Relationships, whether

between individuals or organisations, take time to develop - particularly if trust is to develop. Effective communication requires regular contact. Without sufficient contact there is neither the opportunity for the relationship to develop, or for it to be conducted with full appreciation of the relevant facts. Geographic distance and limited access to communication technologies can make continuity harder to sustain for some relationships than others. There is also a trade off between relationships: time invested in one set of relationships is time not spent on others. So, for example, political leaders may have difficult choices in prioritising time spent on developing relationships with other parties and time spent sustaining their relationships with the communities they represent.

Continuity is also concerned with change and stability in relationships. Frequent

changes of structure or people in a relationship make the long-term development of trust and understanding much more difficult to achieve. Political negotiations and government administration are eased by effective personal relationships. Constant changes in personnel inhibit progress and efficiency. The continuity of political structures is also important. Constant organisational change makes improvement in the delivery of services much harder to sustain. Change in relationships can, at times, be necessary and beneficial but it is important that there are effective processes in place to maintain continuity in the underlying relationships through the change process.

(e) Directness

Directness is about the nature and quality of the communication processes in a relationship. Meeting face to face is important as a basis for effective communication and relationship building. This is because so much communication is non-verbal. The human face is capable of producing ten thousand different expressions. Body language tells you a lot about how the other person is thinking. So vital is eye contact to conversation that we spend up to 75% of conversation time looking at the person we are talking to. It can be costly in terms of travel and time and it is therefore important to make judgements about the stages in a relationship or issues where meeting face to face is most important. It is not possible to meet everybody face to face so it also involves prioritising relationships.

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Communication which is mediated by too may intervening parties risks misunderstandings creeping in and may miss the opportunity to build relationships between those involved. Accessibility and responsiveness in relationships is therefore important. This has implications for the location of decision-making and the way in which people are represented and consulted. It also has implications for the way in which information is communicated. If important decisions which affect you are only heard about indirectly from others they may be misunderstood. Directness can prevent people leaping to damaging false conclusions which undermine trust and confidence.

5. Key Relationship Issues to Consider Evaluating political structures in terms of their impact on relationships will raise the following questions and issues. a) Which relationships are most important for the political goals in view?

Any structure or process will foster some relationships and put pressure on others. It will therefore be important to make judgements about which relationships are so important and/or so weak that any proposal which may put pressure on them is therefore unacceptable, and which relationships are either of lesser importance or sufficiently robust that pressure can be sustained or accepted. Timing will be important here. The importance of relationships will vary at different stages of a political process. Likewise pressures on relationships are not always constant. Where possible the nature of the process and the phasing of developments should be such that the greatest strain on a particular relationship is not placed on it when it is most important for the success of that process.

b) How can adverse pressures or weaknesses on key relationships be lessened?

If it is known in advance that a proposed settlement will put relationships under pressure, it may be possible to identify measures which can be put in place to mitigate the consequences.

c) Are the relationships in place, and are they strong enough, to sustain the planned political change process?

A realistic assessment of which relationships already exist and how they operate is necessary in order to ensure that any proposed structure can in fact operate effectively and as intended. This assessment will need to involve those with actual experience of the relationships.

d) Is continuity being maintained as far as possible?

Changing the pattern of relationships in the political sphere is difficult. Sometimes it is necessary, however - for example if the existing relationships are dysfunctional or inappropriate. Where possible, a political transition process

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should avoid unnecessary changes in the pattern of relationships due to the creation and dismantling of sets of relationships.

e) Are the key relationships of civil society being fostered? It is easy for the evaluation of political settlements to focus on the impact on the participants themselves. While sustaining the political processes is important, it must be remembered that there is a whole set of relationships outside the political sphere which significantly influence the well-being of individuals and communities. These will be significantly influenced by the nature of any interim framework, particularly if interim arrangements are expected to continue for several years. It is therefore important to consider whether each proposed interim political framework is likely to create the necessary preconditions for all the wider relationships of civil society to flourish.

f) Is commonality sufficiently defined?

Different issues require different degrees of commonality at different levels in the political structure to achieve successful transition. Have the issues been adequately mapped out to determine what levels of agreement are needed on each issue at each tier of government?

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b. Summary of discussion 1. The current civil war has affected negatively the relationships between the

different Sudanese constituencies. A number of communities have been destroyed and conflicts have sprung between different tribes and ethnic groups even though these tribes might have had peaceful relationship in the past and despite the fact that they might share common ethnic and religious affiliations. We need to put a lot of work on relationships in the Sudan, especially if we would want to stop the current conflict. One way of achieving this would be to appropriately utilise the media as a resource for creating good and healthy relationships within the country.

2. One common purpose, which the different constituencies could share, would be

to build a ‘New Sudan’ through good and healthy relationships between different constituencies. A number of other important aspects of this relationship could be reflexivity, mutuality and reciprocity. Even though the relationship between different groups might be strained they could continue to relate to each other and work on building a common future for the whole country.

3. In the past there used to be greater interaction between northerners and

southerners. For example there used to be annual meetings between northern and southern tribal chiefs who used to discuss a number of issues. The University of Khartoum used to be diverse and there were more southern students. Currently, most of these students are studying at the University of Juba. During the 1960s and 1970s a number of administrations have tried different policies to inject a new Sudanese identity. In the future mixed education could play a very important role in fostering understanding between different representatives of different constituencies.

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7. Alternative Interim Frameworks for Transition in the Sudan a. Paper presented by Dr Edward A. Christow Summary This paper seeks to sketch out three alternative interim scenarios for the Sudan (Power-sharing with Special Arrangements Scenario, Federal Option: One Country Nine States Scenario and One Country Two Systems Scenario) and assess them in terms of relational principles and practical feasibility. In doing so, it will attempt to focus on the on the alternative frameworks which could be adopted starting from the day the peace agreement is signed until the day the results of the referendum are declared. The paper first sketches out and defines each interim scenario and then outlines the structures, relationships and processes of their interim executive, legislative and judiciary frameworks. It then articulates the checks and balances which could be put in place, as formal and informal limits on the power of the interim executive, legislative and judicial authorities. This next section will provide a brief Relational analysis of each scenario focusing on the desired sets of values, relationships and outcomes that are being pursued and how these would impact the institutions, structures and environment within which they operate. This section will also evaluate which relationships are likely to benefit most strongly under each scenario and which relationships will be adversely affected. I. Introduction The latest conflict in the Sudan has already lasted eighteen years and has seen the loss of more lives than any other current conflict. Over four million people have been displaced and more than two million people have died from fighting or consequent famine and disease. The warring parties and the international observers have long realised that the conflict in the country will never be settled on the battlefield. There is a consensus by all parties that movement towards a state of affairs where the interests of all could be accommodated and protected needs to take place. The question is, how could this be done securely and fairly? One of the main conditions for this to take place would be through a comprehensive agreement which would have a defined interim arrangement through which the interim authority would exercise power until the holding of a referendum. In order for the parties to move to this stage and sign a comprehensive peace agreement it is vital that they agree what framework they would adopt during the interim period. This paper attempts to present three interim scenarios which give concrete examples of how this may be done. They range from a more centralised approach to one in which the greatest possible devolution of power within a single country takes place. It is vital that throughout this process all parties to the political debate have in mind not only the welfare of their constituency but also of the whole country in terms of the social, economic and political structures and relationships at each level.

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Although this paper will examine only three scenarios (Power-sharing with Special Arrangements, Federal Option: One County Nine states and One Country Two Systems) it is obvious that we could have a range of other scenarios, which lie between them, or to have components drawn from each of them within one framework. II. Power-Sharing with Special Arrangements (A) Interim Scenario The nature and vastness of the Sudan poses a great challenge to the country. Geographically, Sudan spreads over an area of 2.5 million square kilometres and borders nine countries over 7,600 kilometres, whilst sharing a coastline of 850 kilometres with Saudi Arabia. Within this territory there are diverse climates and terrain, myriad ethnic groups and languages and three predominant religions (Islam, Christianity and Indigenous Beliefs).25 The “Power-sharing with Special Arrangements” scenario meets this challenge by establishing and vesting all powers exclusively within one central interim authority. This authority is made-up of all political parties, which would be party to a peace agreement, and the interim authority is endowed with a mandate to administer and control the whole territory from the centre through and on behalf all parties. As a consequence, there would be neither regional institutions outside of the control of the centre, nor regional governments or assemblies, and all courts and regional organs would be part of the central interim authority. Given the vastness of the country and Sudan’s plural nature, and in order to ensure that “all who are affected by a decision should have the chance to participate in making that decision, either directly or through chosen representatives,” and that “the will of the majority shall prevail”26, the interim authority should be established through consensus amongst all parties and based on shared interests. One such framework which attempts to ensure majority rule, emphasises consensus instead of opposition, that includes rather than excludes, and strives to maximise the size of the ruling coalition instead of endorsing the rule of the winning party is the consensus model.27 Under the consensus model the interim authority could assume the following characteristics, each having its own challenges to its members and the country as a whole: (1) Executive Power-sharing: grand coalition: Under the consensus model all

parties who have signed the peace agreement share power to govern the country in a broad coalition. In case of the Sudan, the broad coalition may consist of the National Congress (NC), Umma Party (UP), Democratic

25 The World Factbook - Sudan, Central Intelligence Service, Washington, 2000 pp. 1-9 and World Development Indicators Database – Sudan, World Bank, Washington, July 2000 pp. 1-3. 26 Lewis, W. Arthur. Politics in West Africa, George Allen and Unwin, London, 1965, pp.64-65. 27 Ibid., Lijphart, Arend. Democracy in Plural Societies: a comparative exploration, Yale University Press, New Haven and London, 1977 and Arend Lijphart, Democracies: patterns of majoritarian and consensus governments in 21 countries, Yale University Press, New Haven and London, 1984.

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Unionist Party (DUP), Sudan People’s Liberation Movement (SPLM) and other parties. The members of this grand-coalition are not only equally represented in the interim authority but also have the same power and equal access to resources. In this way the smaller parties would be guaranteed a say in all matters and all parties could influence the policies and decisions which may affect them. Decisions by the interim authority would be made on the basis of consensus through consultation and compromise. The interim authority would appoint ministers and government officials and they would be supervised either directly or through the civil service commission which would remain responsible to it. By working together the grand coalition could strive to create political stability at the centre and thus in the country, whilst giving security guarantees to its members.

One of the main fears of the small parties would be that the bigger parties might not treat them as equal partners. At the same time the lack of regional autonomy might create tension between the regional administrations and the central governments because of the top-down approach in exercising control and because of the asymmetric relationship. One way of resolving the above mentioned challenges would be through continuous consultation between and within the centre and the regions through the establishment of consultative bodies and checks and balances at the centre.

(2) Mutual Veto: In case of the Sudan the mutual veto could play an important

role by giving a chance to each member of the interim authority to veto any decision. This would give protection to each member of the interim authority that the majority would not outvote it. This political protection would be given to all parties and they would have the freedom to exercise the veto either on specific or on every matter and occasion. In this way the mutual veto would perform an important confidence-building role by allowing the smaller parties in the interim authority like the Beja Congress, Southern Front and Sudan Allied Forces to exercise it as a security tool. For example, one party may veto and ask for revision of the national curriculum because it does not reflect the multi-ethnic and multi-linguistic character of the country or because it does not pay enough attention to its region.

One great danger of the minority veto would be that members of the interim authority could overuse it and this in turn may strain the co-operation at the centre. This challenge might be dealt through a series of confidence building measures such consultation, negotiation and compromise which in turn would reassure each party and help them recognise the danger of deadlock and immobilism that is likely to result from an unrestrained use of the veto.

(3) Multi-dimensional Party System: The plural character of the Sudan means

that different constituencies might want to express their interest along several lines of cleavage. Unlike the Westminster Model where the principal difference is the divergent socio-economic policies between two or more leading parties, Sudanese politics is also influenced by ethnicity, religion, language and other factors. Parties like the Umma and the DUP might wish to emphasise the religious and socio-political aspects to which they adhere to,

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whilst the Sudan National Party might wish to express its geographic, ethnic and cultural character.

One consequence of having a multi-dimensional party system would be that parties like National Congress, USAP, SPLA, Umma, DUP and SCP would operate in different regions, whilst others like the Beja Congress would be contained in their own regions. In doing so, this system would generate different sets of challenges to each party and their supporters. Although some of these challenges may be shared, such as the adherence to an agreed set of rules and regulations governing all parties, each party might be affected differently by the interim system. For example, the pressures on regional parties might come from one geographic region and might focus on a particular set of issues, like the educational and development policies in the region. The intra-regional parties might have contesting demands based on them, like the call for greater autonomy from the centre and the need for greater resources by their constituents who come from different and sometimes competing regions.

(4) Written Agreement: The first visible measure protecting the rights of each party, region, ethnic, religious and cultural group would be the existence of a single document containing the basic rules of governance during the interim period. This document could specify the structures, functions and powers of each interim institution and the rights of parties and citizens. This agreement would be public and should be made available to each party, government institution, interested groups and individuals and international peace partners It should contain a number of binding institutional guarantees such as freedom to form and join organisations; freedom of expression; the right to vote; eligibility for public office; and alternative sources of information. There should also be special arrangements to ensure that all parties and institutions abide by this agreement, in the form of Ombudsmen and civil service commission. One of the major challenges of having a set of written rules could be that the agreement might only be changed through an agreed mechanism which would be supported by majorities. Amendments might be necessary because events might sometimes overtake certain agreements. Any amendment might be delayed or shelved through a party in the interim authority exercising their veto. Lastly, there might also be tension between the centre and the regions because the latter would only play a consultative role in amending the agreement which might affect them.

(5) Separation of Powers: If this principle is applied to the Sudan, during the transition period, then three separate branches of government could be formally created: interim authority (executive), constitutive assembly (legislative) and the interim judiciary. This would give rise to a number of interesting questions: How should the legislative members be appointed? Will there be fusion between executive and legislature? How would all branches relate to one another?

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There are two ways of answering the above-mentioned questions. In the first instance, there would be only interim authority (executive) and interim judiciary with no constitutive assembly (legislative). The interim judiciary might either be separate or under the authority of the interim authority, but in either case both branches would be ultimately responsible to the written agreement. If there were no constitutive assembly the responsibility of passing laws and running a government would be undertaken by the interim authority. Before passing any laws the interim authority might seek the advice of a consultative assembly which could only play an advisory and/or consultative role. This consultative assembly might be composed of individuals who have been nominated by their parties. If there is no consultative assembly, the interim authority may use other formal and informal advisory bodies (human right commissions, interim committees, etc.) and/or specialised government organs (ministries and commissions) before passing legislation. Another important issue would be whether the judiciary would operate independently or as part of the interim authority. If the judiciary were not independent of the interim authority then the latter would directly supervise it, possibly through the ministry of justice. Alternatively, the judiciary might be granted independence within the written agreement and in this case it would be an independent constituent element of the state. Its powers and duties would need to be spelled out in a written document. The functions of the judiciary may range from administering justice to interpreting agreements made between the parties and also scrutinising the work of the interim authority, its members, government institutions and the constituent assembly. The work of the judiciary may also encompass resolving conflicts between ministries, branches of government, regions, and between regions and the centre. The local courts would remain under the direct authority of the higher and supreme courts and/or ministry of justice. There would be one legal system for all Sudanese which would be based on sources acceptable to all, and should be binding at all levels. In the second scenario there would be three branches of government: the interim authority, interim judiciary and the constituent assembly. Two major questions are how would the powers be divided between the three branches and how appointments would be made? The powers of each branch could be spelled out in the interim agreement, giving independence to each branch and making each one answerable to the other and to the interim treaty. Each party of the interim authority would appoint the members of the executive authority. The members of the interim authority could in turn appoint the members of the legislative assembly or vice-versa. Alternatively each party may nominate their own members for government posts that would then be assigned a place in either branch. Under this scenario there would not be any regional assemblies although the constituent assembly might set up formal and/or informal advisory organs in each region. The powers of the constituent assembly may range from legislating law to supervising the work of the interim authority. Amongst

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others, it may perform the following tasks: scrutinising and approving government plans, policies, budgets, revenue, expenditure, international treaties and interim amendments.

(6) Checks and Balances, Legal Arrangements and Measures to Protect the Rights of Regions and Individuals: One of the main objectives of the interim administration would be to secure an environment which could generate harmony, trust and confidence amongst the Sudanese constituencies. One way of achieving this would be through the establishment of techniques, structures and instruments which aim to secure equality and non-discrimination. Some of the most widely used techniques are as follows: • Bill of rights which would be inserted in the interim agreement. These

confer civil, political, social, economic and cultural rights such as the right to life, civil liberty and to profess one’s faith freely. They would also protect individuals through the provision of rules guaranteeing their trial, right to public office etc.

• Special anti-discrimination provisions and statues which would either

be incorporated within the interim agreement and/or the interim law. These may include access to investigative machinery and deal with patterns of discrimination.

• Special Institutional Arrangements to supervise every branch thereby

ensuring that every decision would be properly and fairly reached, in accordance with the interim treaty and laws. One such institution might be the ombudsmen which could be responsible for investigating complaints about the interim authority, judiciary and/or assembly. Another such institution might be a civil service commission which could supervise, the recruitment, training, promotion and transfer of government employees.

• Judicial and Law Enforcement machinery to secure equality and

fairness under the law. These may include the maintenance of a properly trained police force with good disciplinary and grievance procedures, and independent and properly maintained courts.

• Constituent Assembly Procedures to ensure fairness, equality and non-

discrimination and justice through various procedures, including questions, debates, select committee investigations, etc.

Concurrent with the above mechanisms, the interim authority may take a number of measures, with the aim of protecting the ethnic, religious and cultural groups. This would entail that the interim authority may allow the different ethnic groups to use and promote their own languages. It could also mean consultation in establishing the national curriculum with various groups, equal access to mass media, promotion of ethnic arts and caring for the internally displaced. Alongside the above-mentioned measures, the three branches of the interim government could enact a number of political measures. These would guarantee access to government civil and social services to every person and region, as well

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as rules, regulations and consultative mechanisms between all levels governing land tenure and control over the national natural resources.

(7) Proportionality: Although this principle is most commonly applied in dividing parliamentary seats amongst parties in proportion to the votes they receive, it has a number of other applications. It could also be used as a method of allocating civil service, judicial and legislative appointments as well as financial resources amongst the different segments. This would ensure that all parties are equally represented in each branch and that all regions receive an equal share of the purse.

The proportional composition of each branch would not always guarantee that all parties have a proportional influence over the decision-making process, especially if different parties form coalitions and/or if some policies are controversial. For example, the northern, southern, western and southern parties may form different blocks on issues that they would be in agreement with, like education, health and cultural policies.

There are two techniques, which could be used to provide partial solutions to this dilemma. Firstly, the interim authority could link several issues and resolve them simultaneously through consultations and compromise, in the form of package deals. Secondly, these issues could be delegated to the leadership of each constituency.

(B) Relational Evaluation

This section will not attempt to provide an exhaustive Relational analysis of each scenario but will rather seek to stimulate thought about the desired sets of values, relationships and outcomes that are being pursued and how these would impact the institutions, structures and environment within which they operate. This section will also evaluate which relationships are likely to benefit most strongly under each scenario and which relationships will be adversely affected.

1. To be effective, the “Power-sharing with Special Arrangements Scenario” would require a high degree of common purpose because every party within the interim authority would have to agree or be willing to compromise on each issue. As such this scenario could be a high risk strategy because if people at the top fail to agree then there will be no other context for them to resolve their differences.

2. This strategy also requires a high degree of directness and continuity between the top decision-makers of each community. In order for this strategy to work the leaders of each party and constituency would have to invest much time and effort in their relationship with other parties at the top. This would put pressure on their relationships with their respective constituencies and as a result the leaders might become more distant from their grass-root supporters. The problem is likely to be most acute where the distances are greatest between the centre and the periphery, and where the communication systems are least developed.

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3. Under this scenario the periphery could be at a disadvantage because the regions would not be directly involved in the decision-making which would affect them. Also, there would not be a fair distribution of risks and rewards of power between centre and periphery. This could create a great deal of resentment at the local level because the grassroots would have no say in what happens and also because their needs would not have been addressed or listened to. Furthermore, under this scenario people’s sense of participation is low. The implication of this is that the leaders at the centre would have to exert great efforts to keep in touch with their constituencies to ensure that the latter would support them if they make agreements at the national level.

4. Under this scenario smaller parties and constituencies might enjoy greater parity with their larger colleagues because this scenario would probably give smaller parties disproportionate say in the running of the country.

5. The main benefit of this scenario would be that the current structures could easily be modified to create a centralised power-sharing framework which would maximise continuity and allow the interim authority to push forward with its programme during the interim period. This scenario would also be likely to have economies of scale; it would be less expensive than the other two because it would avoid creating parallel departments and duplication of effort.

6. On the negative side, this scenario might not meet the demands of all political parties which would be calling for devolution of power within a pluralistic multi-state Sudan rather than a unitary nation-state. This framework would concentrate all contentious issues and problems at the centre where the various parties would feel the pressure of national/political conflicts being fought at one level. Furthermore, the regions might feel uneasy about vesting too much power at the centre, thereby giving the mandate to the interim authority to interfere in regional affairs without paying due attention to local feelings and perceptions.

III. Federal Option: One Country Nine States (A) Interim Scenario Under the “Federal Option: One Country Nine States” interim scenario Sudan remains one country, composed of one federal and nine28 (or more states) state governments in such a manner that the all components would be interdependent and the federal and regional government “operate directly on the people.”29 As such both the federal and nine state governments act in unison in certain areas (such as defence, foreign policy, healthcare, etc.) whilst retaining independence in other areas (regional planning, regional education, healthcare and agriculture). 28 The number of federal states was arbitrarily chosen. The author of this paper neither favours this number of states nor wishes to impose his views on the readers. As soon as the number of components states is spelt out the next issue which would have to be examined would be their boundaries, especially the contested frontiers. 29 Wheare, K. C. Federal Government, London, 1963, p. 11.

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Under this scenario both the federal government and the nine federal states have an interim authority, interim judiciary and constitutive assembly. (1) Interim Federal and State Executive Organs: Unlike the first scenario, under

the “One Country Nine States” interim scenario there would be ten interim authorities. The federal interim authority would be composed of all parties who work together in power-sharing agreement to govern the country in a broad coalition. The other nine interim organs would be the state interim authorities, composed of all parties within the territory of each state participating in the peace agreement.

At the federal level, the interim authority retains supreme authority over all federal institutions including the federal ministries, departments, commissions, advisory organs, etc and operates throughout the whole country and in each state, subject to the provisions contained in the interim agreement.

The provisions in the interim agreement would distribute powers and responsibilities between the federal and state governments. If the interim agreement favours the interim federal authority then the following powers would be exclusively reserved for it: Foreign Relations and Trade; Currency, Monetary, Fiscal, Financial and Investment Policies; National Defence; Nationality and Immigration; Public Audit, etc.

Furthermore, the central interim authority would also have a dominant role in the following areas through veto: Judiciary; Communications and Transport; National Water Supply and National Electricity; Exploitation of Land and Natural Resources; Weights and Measures, Education and Health Policy, Media, Tourism, Environment, Civil Service, etc.

In this case the following powers would be for the state interim authorities: Supervision and Control of all organs in the state; Control and Supervision of the Police, Prison and Fire Brigades; Collection and Distribution of Fees and Taxes; Exploitation of the State Natural Resources Including Water, Land and Minerals; Urban and Rural Planing; Promotion of Agriculture, Tourism, Industry and Services in the Region, etc.

On the other hand, if the interim agreement favours the state authorities then each state would have autonomy or veto powers in the following areas: Judiciary, Culture, Education, Religion, etc. At the same time each state would have powers to enter into foreign trade, to seek foreign aid, to have its own immigration, etc.

Under the “One Country Nine States” interim scenario the state interim authority would be independent and separate from the interim federal authority. As such each state interim authority would have its own administrative machinery exercising jurisdiction and performing public functions within its boundaries. For example, the interim state authority in Darfur would have its own local government, public institutions and services, which would be separate from the federal organs.

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The nine states would thus have powers to act directly upon the people within their boundaries. For example the Upper Nile interim authority would have power to conduct its own guinea worm eradication campaign in the state. Although the interim federal authority might still retain ultimate powers within the country it would not have the legal right to veto or overrule decisions taken by the interim state authorities which lie outside its specified area of jurisdiction. This is owing to the fact the interim agreement might have established state autonomy beyond central manipulation. This autonomy might be strengthened through specific guarantees in the interim agreement, preserving any division of powers between the interim federal and state governments and encouraging democratic structures at each level.

Whereas in the first scenario, the regions were dependent on the central interim authority, under this scenario the interim federal and state authorities are inter-dependent and operate concurrently on the people of Sudan with neither the centre nor the states having greater authority over the other outside their specified jurisdiction. Consequently the state government of Eastern State would not be able to exercise its authority outside its jurisdiction and it would thus be prevented from operating in Northern State.

(2) Interim Federal and State Assemblies: Under the “One Country Nine State”

interim scenario the federal and state governments have their own independent assemblies, whose powers and functions have been incorporated within the interim agreement. Unlike the first scenario, which had a unicameral assembly, this scenario would have balanced and symmetrical bicameralism which would give equal representation to all political parties at the centre in the first federal interim assembly and special representation to the nine regions in the second federal interim assembly. The two assemblies would only be effective if their members were appointed on a different basis and if both assemblies have the same power, rights and duties. In this case neither would be superior to the other and both the political and the regional interests of the Sudan would be represented. The first assembly would bring together all parties: DUP, Umma, SPLA, NC, PNC, SCP, etc. whilst the second would be composed of representatives appointed directly by Darfur, Northern, Eastern, Central, Khartoum, Kordofan, Upper Nile, Equatoria and Bahr el-Ghazal states. The first federal interim assembly could become the lower legislature whilst the second federal interim assembly could become the upper legislature.

Concurrently, each state could have its own interim assembly. These legislatures would be unicameral and its members would be appointed/elected on the basis of proportional representation. The jurisdiction of every interim state assembly would be confined within the boundaries of the state. These assemblies would not have any responsibilities in foreign affairs; defence, macroeconomic policy, but they would have responsibilities to pass various laws, which have been spelled out within the interim agreement. The legislative powers and functions would be different from the interim federal assemblies. However, each state assembly could initiate their own legislation, its members may relate to the federal assembly.

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The last observation leads us to ask two questions. What powers and functions would be assigned to federal and state assemblies? And what would be the form of relationships between the federal and nine state assemblies? Under this scenario, the interim federal assembly would prevail over the interim state assemblies. The powers of the national assembly may encompass the following tasks: studying, reviewing and approving federal plans, laws, policies, budgets, revenue, expenditure, international treaties and interim amendments. The powers of the state assemblies may encompass the following tasks: studying, reviewing and approving state laws, plans, policies, budgets, revenue, expenditure and amendments to the state interim agreement. Depending on the power and functions assigned to the federal and state assemblies, by the interim agreement, they would act in co-operation, in areas of common interest, and maintain their independence, in areas of specific interest. One of the most important issues would be whether both the federal and state would have power to veto laws in such areas as religion, culture, language, etc. For example the passing of sharia law by the federal legislature would affect the northern states which would be predominantly Moslem and Upper Nile, populated by people adhering to indigenous beliefs and the Christian faith.

(3) Interim Federal and State Legal Systems and Judicial Organs: Under the

“Federal Option: One Country Nine States” scenario there would be federal and state judiciary organs. The judiciary at the federal and the state levels would be independent bodies and would not be under the authority of the executive and legislative organs. As such they would be responsible for the administration of justice through the courts in accordance with the interim agreement and their respective legal systems. The Judicial organs would be organised in two ways. In the first case, the judiciary at state level would be under the authority of an Interim Federal Supreme Court through a hierarchical system. Each state could have Courts of First Instance, Courts of Appeal and State High Courts. Whilst at the federal level there would be a Federal Supreme Court which would act as the supreme judicial institution.

There could be two ways of organising Sudan’s legal system. Under the first scenario, there would be one legal system at the federal and state levels taking into account the interim agreement and Sudan’s plural nature. Here each state would be allowed limited autonomy in interpreting and applying federal law to the state. For example, Kordofan State would be allowed to take into consideration the state’s customs, religion and public opinion. Under the second scenario, each different state would be allowed to have its own legal system, as in the case of Nigeria. For example, Equatoria would follow the common law system which pays special attention to the customs, religion and history of the region whilst Khartoum state would have sharia system. One of the main issues would be that because of the large number of internally displaced people in the country, the southern people living in Khartoum might be under sharia legal system and some northern people residing in Bahr el-Ghazal might be under common law legal system. One way of resolving this

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problem would be to provide access to these displaced people not on geographical but on ethno-religious bases, as is the case in Egypt.

(4) Checks and Balances at the Federal and State Levels and Dispute

Settlement Mechanisms: One of the most important institutions to be set under this scenario would be an independent constitutional court which would not be influenced by the federal or the state organs. The constitutional court would have three main functions: Firstly, it would review, interpret and rule on any parts of the interim agreement. Secondly, it would interpret the interim agreement and decide on any matters concerning both federal, state and intra-state questions and relationships. Thirdly, it could act as an independent authority in ensuring that all parties and federal and state institutions respect the political, religious, economic, social and cultural rights and abide by the terms of the interim agreement.

In addition to the above mentioned mechanism several techniques could also be applied at federal and state levels to ensure that there would be a formal limit on power, the state autonomy would be preserved, limit on federal intervention beyond the control of regions, as well as the inclusion of specific guarantees in various instruments to preserve division of powers between the federal and state organs. These techniques could include a bill of rights, special anti-discrimination provisions and statues, special institutional arrangements (federal and state ombudsmen and civil service commissions), judicial and law enforcement machinery, and federal and state assembly procedures.


1. Some potential benefits a. There would be a greater sense of ‘parity’ between the centre and those living in the regions as many decisions would be taken closer to the grassroots. The sense of government being ‘top-down’ would be diluted. This would probably increase legitimacy of the interim authority in the eyes of the majority of the population and hence increase the stability of the political system. b. Giving to each constituency a stake in the government would act as a disincentive to secession for three reasons. Firstly, secession would be less likely if it could mean a forfeiture of opportunities outside the home region. Secondly, each of the nine states might lose regional investments and subsidies from the federal authority. Thirdly, dispersal of the state population outside its region would lead to erosion of support for secession. c. The opportunity to work together in government at the state level would help to build relationships across ethnic, linguistic and cultural groups within states. This would be especially important among southern states where the diversity is greatest.

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d. This scenario would be likely to lead to greater interactive communication and regular meetings between those involved in the federal government at the centre and those working at the state level than under the centralist scenario. This would expand commonality and encourage co-operation between different ethnic, linguistic, religious and cultural constituencies.

e. This scenario would aggregate sources of political conflict throughout the country and take some pressure off the interim coalition at the centre.

f. The involvement of much larger numbers of people in the decision-making process around issues such as education and setting agricultural development priorities may take longer to achieve commonality and cohesion among policy-makers and slow down the decision-making process. However, there are important benefits at the implementation phase of spending the time to achieve commonality at the planning phase.

2. Some Potential Disadvantages a. The creation of two tiers of leadership in each party – at the national and state levels – could weaken the ability of political parties to sustain unity as their goals and values could more easily start to diverge.

b. This scenario could delay resolution of the conflict because additional problems would have to be settled up-front, such as the precise delineation of state boundaries, and how the revenue from national resources should be shared between states. In some case the division of the country into states might create intra- and inter-state ethnic, religious and frontier conflicts because of the crystallisation of each state’s identity.

c. This scenario would be likely to increase the costs of government administration owing to the establishment of new institutions at the state level in each of the nine states. This would take resources away from other uses. These additional financial costs must be weighed against the relational benefits, which may ultimately translate into financial benefits. d. Another source of pressure on national resources in the interim period arising from this scenario would be the greater urgency to resettle and reintegrate the four million internally displaced persons from their current places of residence to their original states of origin. e. Under this scenario it might well prove more difficult to reach agreement on national investment priorities as states use their new political clout to compete more vigorously for allocation of scarce funds to projects benefiting their state. Also, the compromises required to move forward may not always be in the best economic interests of the country as a whole.

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IV. One Country Two Systems (A) Interim Scenario Under the “One Country Two Systems” Interim Scenario Sudan becomes a voluntary association of two sovereign states, northern and southern, rather than a single state with strong self-governing units linked within a central but limited overarching confederal interim authority. Northern and southern Sudanese states would retain their sovereignty, freedom and independence, power and jurisdiction, and exercise these rights and powers without transferring them to the confederation. Furthermore, northern and southern Sudan would enter into a binding treaty for the common defence and mutual welfare whilst binding themselves to assist each other against all forces and attacks made upon the confederation. Both states have an unconditional right to secession, which would be codified in the interim agreement. This would prevent either state dominating the other; however, should any state break any term of the interim agreement the other would have the option of declaring secession unilaterally. In sum, under this interim framework, northern and southern Sudan would be two sovereign states which would be permanently linked by loose and limited purpose joint interim authority. Both states would have their own executive, legislative and judicial organs and would retain ultimate jurisdiction within their own boundaries. In addition, the two states would have their own and separate constitutions, political and legal systems, armies, police forces, etc. (1) Interim Executive Organs: Confederal, Northern and Southern Sudan:

Under the “One Country Two Systems” interim scenario a binding interim treaty of Northern and southern Sudan would form the confederal interim authority. This interim authority would be composed of an equal number of people from both confederal states. Both states would transfer certain specified powers to the interim authority and the latter would be unable to limit the sovereignty of the two states outside of the interim agreement. In turn, the central interim authority would accomplish the tasks which would be attributed to it by the interim treaty.

Under the “One Country Two Systems” interim scenario the interim authority would be the highest executive organ. There would be two heads-of -state, one from the south and one from the north who together with the interim confederal executive exercise executive authority. The interim executive authority would supervise the work of a number of confederal organs. The powers of the confederal organs could range from co-ordination of foreign, external trade, customs, finance, immigration, security, defence and transport and communication policies, as well as the referendum process, to establishing confederal central bank, foreign, defence, immigration, transport and communication ministries.

If the two sovereign states only co-ordinate their work through a number of joint-commissions then the role of each executive body would be advisory and non-binding. However, if the two sovereign states have established confederal authority then the decisions, policies and directives of each body would be in accordance with the tasks and powers vested by the interim agreement. In this

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case, there would be one central bank which would have the sole authority for issuing currency and for monetary policy throughout the confederation. There would also be one immigration authority which would issue one passport, although each state could have their own nationality and naturalisation policies. There could also be a confederal defence force with a joint high command, but each state would retain sovereign control over its own forces. Likewise, the confederal police authority would facilitate the co-operation between the two police forces, but the latter would retain control over their own forces, as well as responsibility for the protection of their own forces.

These organs could either be based in the confederal capital, or they would be in two or more locations as in the case of South Africa where the presidency is based in Pretoria and parliament in Cape Town. It should be noted that establishing a new capital is an expensive and challenging undertaking, as a number of countries would attest, including Tanzania, Nigeria, Ivory Coast, Brazil, Australia and others.

Internally, the two sovereign states would be able to select their own political and executive systems. For example, if northern and southern Sudan decided to adopt federal systems then Southern Sudan would be composed of three federal states: Upper Nile, Equatoria and Bahr el-Ghazal. Likewise northern Sudan would be made up of six federal states: Northern, Eastern, Darfur, Central, Kordofan and Khartoum.

Each state would have its own executive organs and/or co-ordinating departments with the exception of those that would be under the exclusive jurisdiction of the confederal authority. In all other cases they would have their own parallel departments and institutions for the purpose of co-ordination and collaboration with the confederal authority and the executive organs of the other state. This would allow each state to establish parallel economic, political, cultural, religious and social relationships with other countries consistent with their sovereignty and the interim treaty. Each executive authority would also be responsible for providing the necessary assistance to the confederal authority in order to enable it to discharge its duties and honour its international obligations.

If the two sovereign states have transferred their power to the confederal interim authority they could still retain mutual veto powers and also participate in the preparation of policies which concerns their powers and their essential interests. For example the two states would participate in the preparation of foreign policy through consultation and negotiation as sovereign states. They would do this either through their representatives in the interim confederal authority or by jointly participating, alongside the confederal executive, in international negotiations, as appropriate, and in accordance with the terms of the agreement.

(2) Interim Legislative Organs: Confederal, Northern and Southern Sudan:

Under the “One Country Two States” interim scenario there would be an interim confederal assembly while both states could have a unicameral or bicameral legislatures. As such the interim confederal and states’ interim

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legislature would represent political and regional interests during the interim period. The main feature of this scenario would be that the each legislature would have veto power. This would allow each legislature to raise objections to laws, policies and directives that have been passed and to turn them down. The veto power may be applied in such a manner so that its not contrary to the interim agreement and thus to the interests of the Confederation nor to the laws of the other state.

The confederal assembly would resemble unicameral legislature and would be made up of an equal number of southern and northern representative who have been appointed by their two respective states. This legislature would function within the scope of its powers granted by the interim agreement. Its decisions would not be final and binding and would have to be endorsed by the legislature of northern and southern Sudan. The confederal assembly would approve state legislation where implementation of the treaty so requires and may raise questions and/or objections against treaties, rules and policies by the two states. It would debate and enact rules, policies and laws. It would ensure the implementation of confederal treaty and law, northern and southern laws and treaties and may take the necessary measures. The state legislatures of northern and southern Sudan could either have unicameral or bicameral legislative assemblies which would only bring together the representatives of each respective state. The unicameral assemblies would represent the political rights of all parties at a state level whilst the bicameral assemblies would represent both the political and regional rights. In case of the latter, a bill would not become a law until it passes both assemblies and is signed by the state executive authority. The task of these assemblies would be to implement confederal legislation which would be in conformity with the state’s statues. Each state legislature could use the veto including those matters specifically delegated to the confederal assembly. As such the decisions of the state legislatures would be final and binding but they would have to conform to the state and confederal treaties. The powers and responsibilities of the confederal assemblies would be codified in an interim agreement which would divide the sphere of work and operation of each assembly. For example, the confederal assembly might be empowered to enact legislation which would be necessary to implement the decisions of the executive authority. It could also decide on the resources and amounts of revenues and expenditure for the operation of the executive authority both at home and abroad so that the obligations of the confederal authority could be accomplished both in Sudan and abroad. The Confederal assembly may also approve the confederal budget and decide whether to ratify laws, treaties and amendments to the confederal treaty passed by the northern and southern legislatures. Northern and southern state legislatures could enact laws on matters falling within the powers of each state. For example, they could enact labour laws, which would spell out the labour standards, commercial codes, approve state

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economic, social, cultural, religious and political policies and strategies, endorse confederal monetary and fiscal policies, establish ombudsmen, levy taxes and duties as a source of revenue, approve the confederal budgets. It would also scrutinise the work of the state executive organs and ensure that confederal projects and activities would be implemented on time.

(3) Interim Judicial Organs: Confederal, Northern and Southern Sudan: Under the “One Country Two Systems” interim scenario northern and southern Sudan could have two legal systems. In this case, there would be a Sudanese Confederal Tribunal, which would be composed of equal number of northern and southern judges, who would not be subject to executive and legislative authority. Although the confederal tribunal would not be a permanent court of appeal, it could be vested with jurisdictional power to arbitrate between the confederal and a state or private person, between the two states, between a state and a private person, and to interpret the confederal interim treaty on an ad hoc basis. It could also decide on crimes against the confederation and crimes against the law of other countries. Its decision would be binding and final in areas where the two states have surrendered their powers.

At the same time, northern and southern Sudan would have their own legal systems, which would not be binding on the other state. As such the federal statues and public international law would become the relevant laws for each sovereign state and for all executive, legislative and judicial agencies. Within each state the judiciary would be independent and would not be accountable to the legislature or the executive.

If northern and southern Sudan opt for the federal judiciary system then the highest judicial authority in each country would be the Federal Supreme Court. The Federal Supreme Court would have jurisdiction over all other courts, the Court of First Instance and Court of Appeal, and it would be the last instance of appeal. It would hear cases brought by the federal states and would arbitrate between the states and between a state and a private person. It would also have jurisdiction over complaints regarding violations of treaty rights encoded in the federal interim agreement and violations regarding international and interstate contracts.

The courts of all levels would be free of interference from the executive or legislative authorities. The interim executive, subject to approval by each legislature, may appoint the Federal Supreme Court judges. The legal system of each country would take precedence over confederal law but not over the confederal treaty. Each state would implement its own legal system in conformity with the confederation treaty. As such the Sudanese Confederal Tribunal would respect the sovereignty of each state.

(4) Checks and Balances at the Confederal and State Levels and Dispute

Settlement Mechanisms: As we mentioned in the previous section the Sudanese Confederal Tribunal would act as a “Constitutional Court” which would have jurisdiction to interpret the confederal interim treaty on an ad hoc

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basis. Similarly, northern and southern Sudan would have separate Federal Supreme Courts, which might be augmented by constitutional courts. The powers and duties of these constitutional courts could be the same as those of federal court but their jurisdiction would only extend as far as the boundaries of each sovereign state.

In addition to the Sudanese Confederal Tribunal and the Southern and Northern Sudanese Supreme and Constitutional Courts, a number of checks and balances and guarantees could be applied at each levels to ensure that there would be a formal limit on power. The sovereignty of each level would be preserved, and mutual veto would be respected by confederal and state organs. These techniques would include a bill of rights, special anti-discrimination provisions and statues, special institutional arrangements (confederal, federal and state ombudsmen and civil service commissions), judicial and law enforcement machinery and confederal, federal and state assembly procedures.


1. From a relational point of view, it is not clear what basis of “commonality”

would exist between the two confederal states under the “One Country Two Systems” scenario, i.e. whether the two confederal states would have enough shared interests, objects and values to hold the confederal structure together. This would be a particular concern especially if the major mineral resources were mostly found in one and not the other of the two confederal states.

2. If the major economic resources were shared between the two confederal

states, whether or not they stayed together would depend on whether the two parties perceive that the benefits of these resources are shared fairly between them.

3. The same principle would apply to the central institutions. The commitment

of the two confederal states to stay together would depend on whether they believe the staffing, administration and decision-making of the institutions is operating in a way which reflects their parity as partners in national development.

4. This scenario would also require commitment by both parties to processes

and mechanisms through which the two would stay together. This could be in the form of deepening joint institutions, developing inter-state infrastructure (such as road and communication facilities) which link both confederal states, and in ensuring economic convergence through economic and monetary policy. A key factor would be fostering internal trade between the two states as well as developing common policies and institutions which could be used in accessing and distribution of foreign aid.

5. Under this scenario the benefits of establishing the confederal arrangement would have to be identified, articulated and reinforced. The latter could take the form of joint statements, formation of national radio and television networks, establishing a national curriculum and joint professional

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qualifications which would enable individuals from one state to move freely to another because their qualifications would be recognised.

6. This scenario would also require shared goals, developed jointly, so that the two confederal states would feel that they are sharing in power, in development of economic recovery for the country and in accessing international finance and aid. This scenario would be especially challenging to put in place because it would require forging new administrative structures at several levels, which would require creating new sets of relationships.

7. This scenario would also preserve the unity of the Sudan and allow the northern and southern business enterprises to pursue their commercial activities across the country as a whole. 8. This scenario would also be the most politically challenging and financially demanding framework. It would require new structures which would be expensive, difficult to run and would require financial resources, trained manpower and technical capacity that would be difficult to summon within a short time frame. Since many of the functions and structures would need to be replicated at several levels, this scenario would operate with diseconomies of scale. It might also generate large-scale migration of people and boundary disputes between the two confederal states. However, the relational advantages mentioned above might more than offset the short-term financial costs. 9. Finally, this interim scenario might not be supported by all parties, and some might see it as a step towards the dismemberment of the country.

V. Conclusion The realignment of the Sudanese State would not in itself guarantee that the successor state(s) would be democratic, that war and conflict would not recur and that there would not be any future violence between the ethnic, religious, cultural, linguistic and socio-economic constituencies. In addition, any post-conflict structure would have to cope with the legacy of the previous institutions, the impact of conflict, the large number of refugees and internally displaced people, civilian casualties and violence, unemployment, debt burden, loss of infrastructure, etc. The realignment of the Sudanese state would only work if all Sudanese political parties summon the political will to sign a comprehensive peace treaty and if this peace treaty is supported by all constituencies in the country, and supported by the international peace guarantors.

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Bibliography Bechtold, Peter. Politics in the Sudan, Praeger, New York, 1976 Central Intelligence Agency. The World Factbook – Sudan, Washington, 2000. CSIS, U.S. Policy to End Sudan’s War, Report of the CSIS Task Force on U.S.-Sudan Policy, Washington, February 2001. Lewis, W. Arthur. Politics in West Africa, George Allen and Unwin, London, 1965. Lijphard, Arend. Democracies: patterns of majoritan and consensus governments in 21 countries, Yale University Press, New Haven and London, 1984. ----- Democracy in Plural Societies: a comprehensive exploration, Yale University Press, New Haven and London, 1977. Nwabueze, Ben O. Constitutionalism in the Emergent States, C. Hurst & Company, London, 1973. Salih, Hassan M. and et al (eds.). Federalism in the Sudan, Khartoum University Press, Khartoum, December 1995. Schluter, Michael and Lee David. The R Factor, Hodder & Stoughton, London, Sydney and Auckland, 1993. Wenjin, Deng Awur. Southern Sudan and the Making of a Permanent Constitution in Sudan, University of Juba, Khartoum, 1987. Wheare, K. C. Federal Government, London, 1963. World Bank. World Development Indicators Database – Sudan, Washington, July 2001.

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b. Summary of discussion 1. It is important to specify the length of the interim period but the Sudanese people

should do this themselves. In SPLA’s view it should be approximately two years whilst in GOS’s view it is much longer. The interim period should also be task specific. The structures of the interim period should restore the confidence and trust of people whilst building the administrative capacity which would lead to a referendum. The different parties should try to establish a consensus, which would keep the people together during the interim period. The interim period will only begin if a fundamental change of mind takes place in all constituencies. Another important issue is the question of justice, which must be adequately addressed by all parties.

2. The main policy differences between the Sudanese parties are not over the

interim arrangements but over the state institutions and whether the current administration would be ready to give up power in the interest of peace and justice. Another problem is that Sudan’s social and political forces have not shown consensus on state and nation-building policies and structures. Sudan does not have one language and unity cannot be maintained without one. Currently, there is a great fear of separation. Those who are promoting separatism do it through opposition. If we could establish a minimum consensus, we would see people putting across their cases for and against separation.

3. Looking at the three models, the first model is not a politically viable one because

all constituencies are opposed to a centralised authority, which imposes its views on the people. The third model is not completely out of question but it is complicated because it may give rise to a minimum of six states. Currently, there is a confederal relationship between National Congress-led north and SPLA-led south. The second model is the most attractive one because it could build a national consensus and address the injustices in the country. However, this model should give the people the possibility to opt out of Sudan if they want.

4. The interim period should not be built in vacuum and should not ignore the role

of the military elites. The interim period should be shaped by considering the previous historical interim periods and examine how a new could be established by applying the lessons from the past. The new interim period ought also to pay attention to a new judicial system and it should also look at a number of important factors such as fiscal, monetary and employment policies during this time.

5. Each scenario would have to start from reality. Sudan is not a united country and

the GOS controls only parts of it. The SPLA controls other regions, some of which for the last 12 years like Western Equatoria. We should first think how we could re-unite and reconstitute Sudan.

6. The current federal structure has been built from the above over the past five

years. The current Sudanese constitution, which entered into force on 1 July 1998, was passed by the national assembly and signed by the President. Article 99 of the current constitution gave the 26 states right to make their own law. Article 139 gave rights to states to change the constitution. Article 27 speaks of

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Cultural Groups. The current constitution also respects the right of any group to have their own culture. Currently there is a call for establishing an advisory council for the President, which could evolve into a senate. Historically, the centre has been strong. Currently, the centre keeps 67.5% of the financial resources. The states under the GOS are given minimum amount at the moment but they should get more in the future as their capacity and infrastructure increases.

7. The current system is not federal because laws are not being implemented, and

the administration is inflated and very expensive. There is a lack of qualified personnel in the periphery and the latter is backward and underdeveloped with the exception of the centre. The relationship between the states should be qualified. A just peace needs to be found and Sudan needs to reconstructed. This ought to be achieved through mutual respect, trust, closer co-operation and interdependence. We should start laying the foundations of consensus from now, and be springboard in establishing bridges of trust. We should not be discouraged by the failure of the Addis Ababa Agreement and we should redress the mistakes through a fresh look. This can only be achieved through regular meetings such as this one.

8. Model one has already been experienced in the Sudan during the 1970s. Upon

dismantling this agreement, people did not accept responsibility and as a result southern Sudan rebelled. This option like the others needs trust. One of the most important issues in the second model is the question of powers given to regions. For example, Malakal, which is the state capital of Upper Nile, does not have drinking water, all trees have been cut, the town has been reduced to a village, people are not being paid and resources for development are not available. The third option is not practical at present because the south lacks the prerequisite structures to build a state. The interim period requires an internationally supervised referendum. The words used during the campaigning should be easily accessible to the people and the civil society should be able to partake and understand at what is being suggested. Have we as political leaders done our ‘homework’ to inform them? Are we prepared to take them in a direction and are they ready for it? In order for the above to be achieved we must examine our relationships. Is what we say in front of each other what we really have in our hearts? We need to be frank and examine how we relate to one another. Are we serious and genuine about it and ready to put things into practice?

9. Most of the resources and wealth in the Sudan are located in the ‘Golden

Triangle’. The first model is a non-starter. None of the Sudanese parties want it. No one trusts a unitary state, which hands things down to its states. Since Sudan’s independence many agreements have been dishonoured. There is no trust in a unitary state. There is consensus between the Sudanese political parties that whatever framework is envisaged it should be approached from the principle of decentralisation. Currently there are seven armed groups in the Sudan. The smaller armed groups are making larger sacrifices than some bigger parties. Thus, the NDA is not synonymous with SPLA because there are six other armed movements who are part of it too.

10. Sudan has been at war with itself for over thirty year and as a result the country is in a deep crisis. The character of the state is not synonymous with any political

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group just as the army of Sudan is not a national institution. Even if the GOS and SPLA were to sign a peace agreement today this would not lead to peace because the other parties have been excluded from it. We should look back and draw lessons from two transition periods: 1964 and 1985. One of the very important lessons, which we should keep in mind is that the transition period should be task-oriented.

11. Sudan has defied traditional theories and concepts of rule and politics as the war

has gone on for so long. What we need are new ideas of how we get to the transition itself? In the Sudan we have had several transition periods. In the present we talk about a number of important issues such as power, democracy, military/civilian relationships and other issues. In these there are two important issues: Would armed warfare in northern and southern Sudan result in the NDA wresting power from GOS or reconciling with GOS and then agreeing to be incorporated by it? NDA have already distributed power structures between themselves. Would they involve others in a broad-based coalition? People do not have to carry guns to be recognised. The current federal state has been built on the basis of religion. These foundations would have to be different if any other federal state structure were to succeed. Confederation would only be possible if the Sudanese parties agreed to divorce in order to make a pact. In order for an agreement to be reached the current warring parties must sit at the table and discuss what future framework the country should assume. However, are the parties willing to do so? All warring factions are set to lose something but the main question is whether they would be willing to make such sacrifices. For example, would the GOS be willing to abrogate power or parts of it in favour of a peace agreement and accept the consequences of such an action? Would southern Sudan declare independence and leave the north alone? One of the problems in the country has been that the centre has continuously undermined all the decentralised bodies, which it had created.

12. In order for the first model to work we need consensus. We should set

preconditions for such a future relationship, we should practice participation by all parties in the conflict, we should take into consideration that accountability should be allowed for all mal-practices by all parties, especially in the field of human rights abuses. Above all, the laws of the country should prevail.

13. There are a number of issues, which we should bear in mind. Our communities

are distinct and we have our own structures, institutions and organisations. One of the main causes of the current conflict is the lack of social justice and thus any transition model should incorporate such basic issues as food, clothing and education. The military elites are an important group. How do we deal with them? How do we get them to be part of the system and to work within the already agreed framework?

14. All options in this framework have been tried. The first option was tried a number

of times by successive governments as they sought to complete the nation-building process of the country. The second option was tried in 1972 through the Addis Ababa Agreement. The federal system ought to be studied and applied in a manner suitable to the country. The University of Khartoum has already held a conference looking at the Federal system. We should go further and ask: How

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much power should the centre and regions have? The last model was applied in 1953.

15. Most people like the federal system because it gives the people the right to exist.

People can also have their own laws, and they can contribute to the central government. The new system has given us a right, which we did not have for the past fifty years. The situation in Sudan is difficult and the country faces many problems, amongst them numerous languages, dialects, etc. We should continue to speak about our common problems and find ways to resolve our differences. We should also look at the nature of the state in the future.

16. It is easy to classify the current conflict as resource- and identity-based. If the

current struggle is against the central government, then we should ask ourselves how do we provide solutions, which would be able to resolve the country’s contradictions? If we were trying to address all issues at all levels then we would need a broad solution with detailed contributions from every constituency. We should establish an automatic system for re-distribution of wealth among regions. We should also look at the future viability of regions in terms of economic, geographic, cultural and political criteria. Before we implement any option we must use a combination of criteria to redistribute resources from the rich to the poor. None of the proposed frameworks are perfect but they could be improved and applied through consensus. In the end we must remember that the process, means and ends of achieving this objective will have great consequences for the future of our country.

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8. Alternative Interim Frameworks: international experience a. Presented by Professor Murray Forsyth 1. I have been asked to look at international experience with regard to the kind of

solutions that are being proposed to resolve the problems confronting the Sudan.

More specifically I have been asked to sec what light such experience can shed on the

practicability and effectiveness of the three 'transitional scenarios' that have been set

out in an earlier paper by Dr Christow.

2. I must confess at the outset to having some difficulty with the concept of

'transitional scenario" as outlined- Each of the three scenarios are in effect fairly full

constitutional schemes, sketching the kind of institutional structures that might be

adopted in the Sudan with the advent of peace. At the same time they are described as

transitional, suggesting some final resolution in the future. Constitutions, however

seem to me by their very nature intended to bring a final resolution, to establish

something permanent. The fact that in practice they often do not last should not

distract one from their basic intention and purpose. I would like therefore to treat the

three scenarios not so much as possible short term arrangements, but rather as

possible final arrangements emerging from a future peace pact.

3. Let me stress that I recognise fully the value and indeed necessity of transitional

arrangements, and in particular of some form of transitional regime, after peace is

agreed, to hold the ring and allow any new constitution to be drafted, and to lay the

groundwork for such new constituted structures as are to be constructed in the future.

A transitional period here means essentially a constitution-making period, in which an

institution designed specifically to allow this to happen are set up and then disappear -

not one in which a new constitution framework is already in operation. The paper

mentions a 'constituent assembly' as part of the interim arrangements but does not

seem to lay particular stress on it.

4. This leads one to pose more sharply the question, which is applicable to all three

scenarios: who makes a constitution, and who specifically in the Sudanese case will

make the constitution? Speaking in very general terms, the alternatives would seem to

be as follows. Constitutions are either dispensed from above (i.e. by the existing ruler

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or rulers). Or they are created from below by a special constituent assembly

representing so far as is possible the people as a whole (with the technical drafting

obviously encrusted to a smaller committee but major decisions taken by the assembly

as a whole). Or they take the form of a solemn pact between separate political entities

such as states or quasi-states or even the different sides in a military conflict. The

Peace Agreement of 21 April 1997 in the Sudan, for example, was itself a kind of

constitution subsequently embodied in the Constitution of July 1998, which was, so

far as I can see (I hope accurately) a dispensed constitution- Finally, because few

thing are neat or pure in politics, constitutions may sometimes combine in some

suggestive way, pact and dispensation., or pact and popular creation. In discussing a

future constitutional structure for the Sudan one cannot avoid considering who is

likely to make, or who should make, such a structure. Should, or will, the peace treaty

itself make provision for the summoning of a constituent assembly? Should the

partners to the peace treaty simultaneously recognise that this treaty is the first step

towards an eventual constitutional treaty between them (and perhaps others)? Or

should the existing rulers be entrusted with dispensing a re-modeled constitution that

meets the demands of those making peace?

5. Turning now to foreign experience, clearly it is of importance to look at genuinely

comparable situations and settlements, and at the same time to guard against the idea

that there is some foreign model which simply needs to be imitated for all to be wen.

One can learn from other countries but ultimately the test of a system of government

is whether it meets and matches the demands and necessities and realities of one's

own specific situation.

6. First scenario. Unitary state with special arrangements. The special arrangements

envisaged here are designed essentially to bring into the central government

representatives of all political groups in the country - to give them all a share in

power, something clearly of great concern to those in the south. The provision for

proportionality in appointment to the public services is clearly an important ingredient

but the most striking feature of the scenario is the creation of a central government or

executive which would take the form of a grand coalition of all parties, each

represented equally, and each possessing the power of veto. In other words, the

creation of government by a congress of parties each able to block action with which

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it disagrees. As a form of executive government this would seem to have certain

dangers, not least that of deadlock.

7. Are there working examples of such a government elsewhere? There are certainly

examples of national (or provincial) coalition governments but few if any in the

precise form here envisaged. To take an obvious example, in times of national crisis

there is a generally observable tendency in established parliamentary democracies

(e.g. in the UK 1939-45) for political parties to come together and bury their

differences and form a national government - though without provision for equal

representation and veto. Memory of past internecine strife can also sometimes induce

such a voluntary coming together of parties, e.g. in Austria for several years after the

war. These are temporary arrangements caused by particular situations. As permanent

arrangements one can point to Belgium and Switzerland (though it should be noted

that these are both federal states and not unitary ones). The 1970 revision of the

Belgian constitution provided that the national cabinet (the Council of Ministers)

would henceforth comprise an equal number of the two main language groups

(Flemish and French) in the country. This parity agreement provides an important

guarantee for the smaller of the two communities, namely the French. In Switzerland

the institution of a 'collegiate' executive goes back much farther. Here it has long been

accepted that the seven-man Federal Council (the executive) shall reflect, in its

composition, the linguistic, cantonal, and party-political balance in the country (a

difficult feat!). Again, in Northern Ireland, membership of the 'power sharing'

executive that has recently been established is apportioned in such a.way as to reflect

the relative strength of all the parties in the assembly, Protestant and Catholic alike.

Considerable pressure was needed to secure its acceptance, and it will undoubtedly

take time to settle in, but it could eventually work a real change in the political ethos.

So 'composite executives' combining all major groups (sometimes proportionately,

sometimes in parity) are not impracticable, and can serve to allay fears and satisfy

aspirations.

8. Second scenario. Federal option: one country nine regions. The Sudan is already

formally a federal system, so here one is presumably talking more about remodelling

and reinvigorating such a system rather than instituting something totally new. What

does foreign experience have to tell us? There are a vast number of federal systems in

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the world - though surprisingly few in Africa - and they have been created in order to

meet and resolve a wide variety of problems. One could easily lose oneself in finding

'lessons'. The ground can be cleared somewhat by noting that the federalism

envisaged for the Sudan is essentially federalism by disaggregation in a country that

was formerly a British colony and which is by no means homogeneous regionally,

ethnically, or in terms of religion. To find a parallel one might look at the Indian

federal system, which evolved by way of devolution from a former unitary colonial

structure, and whose member states are based on criteria of language and region rather

than that of nationalities. But surely the most apposite example is that of the Nigerian

federal system, the longest-lived in Africa. Here there has not only been federation by

disaggregation of a former British colony, but there exists a similar dichotomy

between a predominantly Moslem north and a largely Christian south, overlaying as it

were the division into particular states. Nigerian federalism has not been without its

tribulations - attempted secession and prolonged civil war in the late sixties, and

military coups followed by prolonged periods of military rule when the federal system

has been largely suspended. The federal structure has changed over the years - in

place of the original three regions there are now thirty-six states, and a new federal

capital (Abuja) has emerged. But perhaps the most impressive thing is that apart from

one early attempt in 1966 to recreate a unitary state, successive Nigerian

governments, including the military ones that have suspended the federal system,

have remained convinced of the ultimate need for federalism in Nigeria and have tried

successively to restore it in better order. Federalism seems to have struck root.

9. Genuine federalism by disaggregation is not created simply by the fiat of central

government redrawing the administrative map of a country. The centre has to

recognise that the new territorial unities that come into existence with the creation of a

federation - be they called states, provinces, or regions - have their own rights, just as

much as individuals have rights. They are not the 'subjects' of the centre, not

continuations of the old colonial provincial government, but rather coordinate powers

alongside the centre, to be dealt with by negotiation and compromise rather than by

command. One must immediately add that in a federation the centre continues to

represent the unity of the country, the nation as a whole and that, as such, in an

extreme or emergency situation (an attempted unilateral secession for example, in the

case of Nigeria), it has the right to take what action it deems necessary to preserve

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order and unity, including coercion of a province. This cannot be denied. But the

exceptional situation is not by definition the norm. This reminds one that one of the

chief rights which the member units of a federation possess, apart from autonomy, is

that of being represented as units of equal status (if not of size, wealth etc.) in the

central government - through some form of senate, council or assembly. In this form

the equal representation of groups suggested in the first scenario has its proper place.

10. Third scenario. One country two systems. This concept was first used by

President Deng Xiaoping of China in or around 1984, to describe the arrangements to

be made for the government of Hong Kong after Britain relinquished control of the

territory and it became once again an integral part of China. The concept was

embodied in The Basic Law of the Special Administrative Region of Hong Kong

agreed by Britain and China in 1990, which now applies in the former colony. It

provides for a very large measure of autonomy and crucially stipulates that China's

socialist system will not apply in Hong Kong where the 'previous capitalist system

and way of life shall remain unchanged for 50 years'. It demonstrates that radically

different 'ways of life' can coexist in one state, but of course we are here in the

presence of a giant (mainland China) and a mouse (Hong Kong China), albeit a mouse

of enormous economic importance, hence the motive for the concession.

The concept, as it is used in the scenario, means something different: a Sudan divided

into two political entities, north and south Sudan, linked together by a confederal

arrangement. Confederation, as I understand it is a permanent union founded on a pact

(constitution = pact) between states, i.e. independent bodies of equal statue

establishing joint institutions with designated powers to create a common economic

and/or defence system. Confederation by disaggregation, as suggested here, seems to

me a difficult concept because it necessarily involves a moment of outright separation

into two or more units of equal status and independence, viz. states. The two units

have to break apart before coming together- But once a mait has been recognised as

independent what guarantee is there that it will use this freedom to form a permanent

union with other states? In the first flush of enthusiasm for independence is a new

state likely to enter into a binding commitment of this kind? It is perhaps revealing

that there have been very many proposals over the years for some kind of confederal

arrangement between the two units into which the island of Cyprus is currently

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divided, namely the (Greek) Government of Cyprus and the Turkish Republic of

Northern Cyprus. But the TRNC has constantly insisted that before making any

confederal union of this kind it should be recognised by the Government of Cyprus as

being of equal status to itself and this the Cyprus Government has constantly refused

to do. Status is terribly important in these kinds of situation- A 'bipolar' confederation

would also present some problems, above all inflexibility. Lest this sounds rather

negative, let me end by saying that that were South Sudan to be recognised as an

independent state, and had achieved a secure status, it would open the door to all

kinds of treaties between north and south on matters of common interest, including

the establishment of joint administrative institutions - a water agreement of the kind

suggested in other papers, a transport agreement perhaps, an environment agreement

and so on. It might lead to a customs union, which is a kind of low threshold

confederation, or even a monetary union which is a much more serious matter. But we

in Britain know the emotive significance of having ones own money!

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b. Summary of discussion 1. In making a constitution we should proceed from the general to the specific. We

should not rush too quickly. Constitutions are intentions and they should be made seriously. One should be very careful in modelling other countries.

2. Prior to withdrawing from the Sudan, British policy was on the mend with

southern Sudan. The British realised that their policy had to be altered and corrected in view with the mistakes of the past.

3. There are a number of federal states, which have collapsed, e.g. Yugoslavia,

USSR/Russia, Somalia and Ethiopia and Eritrea. We should examine each country and see how they collapsed? How are they doing now? How do we avoid their mistakes and apply the lessons to Sudan?

4. The South African interim period could be a good model for Sudan because it

was successful and took place in Africa rather than in the west. During the transition period the president had supreme authority. There was one transitional interim authority and the country was not split into different nation-states. In addition to considering the South African transition period the Sudanese decision-makers could consider the example of Nigeria as well.

5. Today, the world is being shaped by globalisation and this has an impact on

Sudan and on every other country. The West must take into account the way economic factors influence the state structures of the third world.

6. Nigeria is a good example of a federal state where there is unity with flexibility,

decentralisation and well-established federal and state structures and responsibilities.

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9. Alternative Interim Frameworks for Transitions: Options for Revenue Distribution a. Paper presented by Professor Kenneth Davey The Constitutional/Political Context 1. I am not aware of generic differences in revenue assignment between

confederations and federations as such. There are, however, significant differences between federations which have formerly been unitary states (often colonial, e.g. India or Nigeria) and those which have been formed voluntarily by the constituent units (e.g. Australia or USA).

2. In the Sudanese context it is perhaps better to think whether the future settlement

will be effectively a basis of divorce or marriage. A confederal arrangement would be a divorce settlement which aims

(1) to provide the minimal amount of resources for remaining joint expenses (2) to divide the remaining resources largely on the basis of origin. Minimal provision would be needed for the confederal expenditures, but the

main aim would be to ensure that the remaining revenues accrue to the regions from which they originate.

3. A federal settlement, on the other hand, would be based on continuing

cohabitation and a greater sense of mutual responsibility, combining (1) adequate provision for the federal government to provide substantial

services nation-wide, and (2) resources for the federal units (states/regions) which allowed each of

them to provide the services for which it was responsible at a comparable level, or at least without disparities so severe as to prejudice peaceful relationships.

4. This distinction is not meant to express a value-laden judgement that marriage is

good and divorce bad. The writer has no base for judging which is the more responsible or realistic course of action.

Fiscal Decentralisation 5. Fiscal decentralisation is concerned with the distribution of expenditure

responsibilities and revenue resources between levels of government (federal/national, state/provincial, district/municipal etc).

6. A central focus is on equalisation. This has two dimensions:

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vertical: correcting mismatches between what each level receives and has to spend

horizontal: reducing disparities between individual provinces, municipalities etc in the cost of service provision or the potential yields of revenue sources

7. A further dimension concerns discretion, i.e. the amount of authority each level

of government has to determine its levels of revenue (e.g. by varying tax rates) and patterns of expenditure.

8. Vertical equalisation is necessary to make any system of government work and

would be essential to any of the constitutional scenarios. How much horizontal equalisation is attempted depends essentially on political objectives - how much priority is given to solidarity, to equality in standards of living and public services. It is likely to feature more strongly in a federal rather than a confederal solution.

Revenue Assignment: Methods 9. Individual revenue sources may be assigned exclusively to one level of

government which sets the tax rate and receives the yield. However revenues may also be shared between levels of government by any of three methods:

(1) surcharging: one level imposes an additional rate on a tax levied by

another level (e.g. a province surcharges the national income tax, or both provinces and municipalities levy rates on property)

(2) origin based sharing: a lower level receives a fixed percentage share of a

tax levied by a higher tier and collected within its territory (3) formula based sharing: a fixed percentage of the total yield of a tax

levied by a higher level government is distributed to lower level governments according to some formula such as population and area.

Tax Administration "Taxability" 10. Questions of tax administration loom large in considering the potential of

revenues in economies such as Sudan. To levy a tax effectively means (1) identifying all those eligible to pay

(2) assessing precisely how much each should pay

(3) enforcing payment. Each of these processes is more difficult in economies where only a minority of

people work for fixed wages and for large organisations, and where much commerce and employment take place outside a large scale formal sector.

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11. In economies dominated by large scale formal organisation and wage employment, direct taxes account for the larger yields of public revenue. In the opposite circumstances, heavy reliance is placed on indirect taxes administered at concentrated points such as ports of entry/exit or factory gates (rather than multiple retail outlets).

12. My knowledge of Sudan is sketchy and out of date, but I suspect that even in

peaceful times the economy of the northern regions is more readily "taxable" than those in the South. This is not just a matter of relative wealth, but of the economic structure and the incidence of formal organisation and employment.

Regional Taxes 13. Levying a tax at state/regional rather than federal/national level adds a number of

administrative requirements: (1) there should be the possibility of states/regions levying different tax rates

without undue administrative difficulty or perverse incentives (to smuggling, for example)

(2) it should be possible to identify who is effectively paying the tax and

where such taxpayer is located (3) there should be adequate capacity to administer the tax at regional level. Revenue Sources 14. The following assignment of revenues under the confederal and federal scenarios

is offered as a basis of discussion only. My knowledge of Sudanese circumstances is too limited and historic to offer any definitive recommendation.

15. Personal Income Taxes These form a natural revenue for regions under either confederal or federal

scenarios, since their geographical origin is clear and they connect naturally with personal services which are likely to be state/regional responsibilities. Their potential, however, will vary according to the percentage of the labour force in formal wage employment.

16. Corporate Income Tax The problem with CIT is that it is usually paid where a company has its head

office, although the taxable profits may be derived from activity in several regions. It might be suitable for assignment to the two states in a confederation, but only if companies operating in both are forced to seek incorporation in both. Otherwise the tax would be suitable for sharing between states or regions, but a formula base of distribution would probably have to be adopted as data on origin may be difficult to develop.

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17. Import Duties I imagine that in any scenario the whole Sudan will be a customs union with

import duties charged at Port Sudan or some other port of entry. It is possible that in a confederation imports destined for the South were transported under bond, in which case duties would be collected at the destination. However, imports might still reach the South after some form of processing or wholesale operation in the North.

18. Assuming that duties are passed on to the end consumer, it is very difficult to

assign the revenue to the point of origin. For this reason it might be better to assign import duties to meet both confederal or federal expenses.

19. Excise, Sales or Value Added Taxes These taxes are normally levied by the state/regional level in a federation (e.g.

USA and India). Differences in rates could encourage smuggling. It might be difficult to levy such tax at the point of retail, however. If the tax is collected at the point of manufacture or wholesale, there would be difficulties over goods then retailed in a different state/region, although this could be adjusted by border inspection. The alternative would be formula based sharing.

20. Property Taxes These are normally assigned to the municipal/district level of government. Their

potential is unlikely to be substantial outside the major towns. 21. Oil Revenues I assume that these will be both a substantial and growing source of revenue.

Since, as I understand the position the regional location of some of the oilfields is one of the major sources of contention, their distribution will be a key element of any settlement. Assignment to the State of origin in a confederation might be feasible if both states contained large oilfields. If not a formula sharing system will be crucial to either confederal or federal solutions.

Enforcement 22. In either confederal or federal solutions states/regions will be heavily dependent

on revenues which may need some redistribution, i.e. which will not automatically accrue to the state or region in which they are collected. They will need faith in the system which allocates the shares and channels the actual yields to the entitled recipient.

23. It is probable that the system will have to be guided by some form of

independent Commission similar to federal finance commissions in Australia and India. This would have to comprise impartial and reputable experts appointed with the approval of all the parties involved.

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24. Once shares in individual revenues have been allotted the collecting agents should route the actual yields direct to the budgets of the entitled recipients without going through another budget. This could be done by the Central Bank (as, I believe, in Nigeria). Alternatively some form of internationally administered Trust Fund might be suitable for some forms of revenue, particularly those from oil.

Kenneth Davey July 2001

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b. Summary of discussion 1. The current Sudanese civil war is a conflict between two forces. The first force is

composed of conservative and hegemonic members who inherited all powers from the colonial state. The second force is composed of disadvantaged members who are fighting for redistribution and restructuring of the Sudanese state. The present reality is that of disparities in the levels of income, infrastructure, services, wealth, political power and capacity between regions. If any redistribution takes place will it take into account the past or will it start afresh? Who would do the redistribution? What should be the role of the centre and periphery during this period? Some people calling for a strong centre. Why should it be strong? The problem is that it has not been know for being fair. One way of resolving this issue is to reduce the role of the state in redistributing the income. During the GOS-SPLA discussions in Abuja, one of the questions was whether the central bank should be in charge of foreign exchange. This became an important issue because the centre had not allocated money to the regions in the past. For example, from 1977 to 1983 the central government met only 47% of its obligations to the southern regions. The failure of the centre to meet its obligations calls for a new deal in wealth-sharing where the centre does not decide the needs of the regions. For example, the centre should not control the whole economy but could allow the regions to collect revenue and forward the pre-determined amount to the former whilst retaining the rest.

2. Sudan lacks resources and few people could pay their tax. The government has

abolished agricultural taxes. For example, 90% of all lecturers in Khartoum University are exempted from paying taxes because of their low income. The current VAT gives 65% of all income to the centre and the rest to the regions. This money is collected into the Local Support Fund, which is administered by the Ministry of National Economy, and then the resources are divided amongst the states’ needs. From 1999, the central government began investing in regions rather than only paying for the salaries of employees. However, most investment comes from the centre. Hopefully, in fifteen years, states would be able administer their own taxes. Currently, poorer localities are assisted by richer states. Concerning the distribution of oil revenue, 40% of the revenue goes to the central government, 35% goes to the Southern Co-ordinating Council, 20% to the particular state. Using revenues from oil, the government has launched an emergency rehabilitation programme in the Sudan.

3. The tax system in the Sudan is causing suffering for many people. This is

compounded by the fact that there are multiple layers of taxation. Currently the GOS faces a double challenge. It needs to address socio-political injustices whilst guaranteeing that regions are able to finance themselves. The centre is also richer than the regions despite the latter’s great potential to become ‘breadbasket’ for the Middle East. The regions have little infrastructure, they have been neglected because of the war and the whole country has lived on emergency programmes. When is the emergency going to end? Why should the South Sudan Co-ordinating Council live on emergency. The country is rich in resources and it exports oil, gold, animals, seeds, gum arabic and other merchandise. In Sudan, value is produced by a combination of material and labour from the marginalised areas. This has allowed the centre to accumulate wealth whilst the regions have

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been deprived of resources to run projects. Consequently, regions are being told that they are too poor to invest and thus they cannot have control over their own finances. The regions should have direct access to international aid, loans and investment, which would have to be beyond the reach of the centre.

4. There is no control of the national and state revenue. That has been admitted by

the Auditor General. Some of these resources have been lost through bribes, and for example $40 million have not reached the coffers. Furthermore, very few people know where the money is directed and how it is spent. That is why it would be a good idea to set up an independent financial authority, which could monitor and administer the central and regional revenue.

5. Sudan requires great investment in infrastructure. For example, when we go to

the rural areas just a few miles away from big urban areas, the villages and cities do not have any facilities and all services have to be provided by national and international Non-Government Organisations (NGOs). Another related problem is the issue of the attitude and actions of the elite who tend to look for benefits rather than their duty. That is why we need to do a lot to re-educate the whole country.

6. Recently many farmers have been driven off their land because they can not

survive on their produce after paying taxes. This is happening whilst the professionals are exempted from taxes. Other farmers have been put in jail because they can not repay their loans to the banks. Currently, the revenue from agricultural taxes goes to the states rather than the centre.

7. Normally, forests are national assets. The land tax could be paid to the centre but

it is normally assigned to local levels though there can be alternative arrangements. Currently, only 3% of UK’s GDP comes from land tax. The Pakistani and Indian governments tend to exempt farmers from paying taxes. This is not fair because some are rich whilst others are poor. Furthermore, in line with the horizontal equity principle, it is wrong to exempt any sector from taxation because the burden is shifted on others.

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10. Strategies for Facilitating, Enabling and Sustaining a Mutually Agreed Transitional Framework a. Paper presented by Dr Jeremy Ive and Dr Edward A. Christow SUMMARY I. There is a need to initiate, enable and sustain the process both internally and externally. This can be done fruitfully at an intermediate level. II. Within the country there needs to be a process of catalysis: that is, a behind the scenes identification of sticking points and ways to resolve them; and consensus-building: that is an informed, cross-cutting process of education on the basis of common principles and the movement towards an agreed goal. III. Outside of the country, the process needs to be supported by the work of international third parties operating as guarantors (sponsors, underwriters and intermediaries). These actions need to be distinguished, but it needs to be presented and implemented as a package in order to achieve the greatest effect. IV. The two processes are complementary, but a fine balance needs to be struck between the independence and integrity of the catalysts and consensus-builders on the one hand, and the concerted action of the international community on the other. I. INTRODUCTION

Peace and governance are both intra- and inter-state, and it is not possible entirely to separate the two. A start can be made with those societies in an acute state of conflict. Both negatively to limit the harm arising out of that situation, and positively, to build up models of what is possible ("plausibility structures" as Peter Berger calls this) and to disseminate the values to inform this and other situations. This process can be conducted in the public arena, as consensus is built up on issues of common concern. It can however, also be promoted behind the scenes, especially in situations where the rhetoric and reality of the conflict precludes clear listening and mutual acceptance, or the recognition of common values which the adversarial nature of debate does not always make possible. These common values need to be of a transcendent nature, that is, they need to be able to transcend particular ethnic, cultural, ideological and indeed party political divisions.

The issue of peace and governance is not something that can be tacked on to the material assistance of the people, but is an integral prerequisite for development. This is not something that has been fully taken into account in the West, where, if is it taken at all seriously, it tends to take the form either of military intervention or alternatively sanctions or externally imposed conditionality. This is not to deny the place of these; but as instruments to promote peace and governance they tend to take up a disproportionate share in the already meagre resources allocated to peace and governance. Further, even the most benignly intended military intervention, or the imposition of external sanctions is profoundly ambiguous in nature; and this ambiguity is heightened if the action is taken in isolation from a more broadly

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constructed package (See Section III or a suggested framework for third-party intervention).

A virtuous cycle of confidence building needs to be set in train, whereby the good relations achieved at one stage provide a secure platform for the achievement of good relations at another. The dynamic cycle, which operates on an individual level can be seen as operating at a social level as well: acceptance leads to sustenance, which flows out as status and results in achievement. In a social and political context this means that the parties involved need to accept the credentials of the others as equal and valid negotiating partners as the first step in process. This needs to then result in proximity in a safe and secure location where the issues are explored on an open basis freed from the pressure of the ongoing struggle for power. The outflow of this is that the parties are given status on an equal and multi-lateral basis with the common purpose of implementing these common deliberations. The implementation is thus not the vindication of a particular party's position, but the working out of a culture of negotiation, which all can celebrate equally. In the process, there are internal as well as external factors. Internally, there is the nurturing of crosscutting affiliations especially through encouraging the development of mediating structures (that is the range of institutions across the nation that can operate as bridges between individuals and groups). This needs to be opened up by a vision of the centrality of relationships shared across the different groups, as the bedrock of a free and dynamic society. The emphasis on individual rights is important in ensuring that all have a stake in society and are able to enjoy the benefits of its overall well being. However, an exclusive emphasis on individual rights without putting it in the context of the need to nurture the richness and diversity of relationships and their development can intensify divisions rather than build a stable but dynamic consensus. Externally, the process can be facilitated by both governmental and inter-governmental agencies as well as informal bodies acting on a neutral basis.

The facilitation of peace and good governance can take place at least three levels:

(a) High-level facilitation, which moves towards formal mediation. This of necessity operates confidentially while in process, but is also high profile, and therefore still in the public and media gaze. This may also be preceded or accompanied by secret preparation of the modalities between the protagonists. The way for this needs to be opened by:

(b) Intermediate-level facilitation, which operates on a low-profile basis. This is confidential rather than secret, and is an informal process to which the protagonists do not make overt commitments, and is deniable by them at any point. Nevertheless it is important in helping to develop ideas and create space for both (a) as well as:

(c) The development of inter-communal consensus. This can take place nation-wide or within a particular region. It takes place publicly.

A considerable amount of work has been done in various contexts at level (c) and there is also a body of emerging accounts of level (a). Level (b) has been much less practised or understood but is a vital link in the chain of facilitation at various levels. It is much more flexible than those of the others, but by its nature is invisible in its

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process and intangible in its effects. Yet, it is capable of drawing on the experience of (c) and creating the conditions for (a) to succeed. This can happen without the high-risk nature of (a) (since should it come to nothing, or becoming public knowledge, it is not itself a negotiation; and therefore does not bear the political freight of the negotiation process itself). It is also freer to explore the overarching value framework that is necessary for any soundly based process of negotiations to succeed.

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II. INFORMAL PEACEMAKERS: CONSENSUS-BUILDERS AND CATALYSTS

While all are called to be peacemakers, there is a sense, as has been suggested in the previous section, that there is also a special task of peacemaking. This consists of building on a common basis for peace for the future, even at the same time as others, and the peacemakers themselves, are calling prophetically for the eradication of present evils and injustices. It is this ‘track’ which we shall be exploring is this section. We shall talk of “catalysts” and “consensus-builders”. The catalysts operate largely behind the scenes. They address and suggest ways to deal those sticking points that need to be overcome in order for peace to be achieved. The consensus-builders build on the foundations of common relational principles and develop a principled community of understanding within which a culture of negotiation can be developed. A. THE PRE-NEGOTIATING PHASE There are two parallel, and mutually supportive, aspects to the peacemaking process in the pre-negotiation phase. The first is that of what can be called a ‘consensus-builder’, namely, the exercise of developing and disseminating a common framework which can be accepted as right by all the parties. The other ‘catalytic role’, is the building up of a network and a continuing process of consultation in a confidential way. This enables contacts to be established across the political divides, and agreements to be obtained among the principals (that is the major players or political groupings in Sudan) in order that the peacemaking process should be continued. 1. Consensus Builders: The formulation and development of a common framework for peace: A framework of principles needs to be developed and disseminated both nationally and in the communities in order to form a consensus about the structures of a future dispensation along lines which all can agree. The framework needs to based on values which bridge the party political divides, and yet is specific enough to provide a concrete basis for a new and just dispensation. This alone can serve as a foundation upon which diverse groupings can build together in order to promote peace in the Sudanese situation. The consensus-builders need to be able to bear public witness to the fact that a framework, such as one built on relational principles, can transcend ethnic, confessional and ideological barriers. Such a framework can at once offer a radical and transforming critique of injustices in the present order, and yet suggest ways forward on which all groups can agree. The aim of the consensus-builders during this phase needs to be twofold. On the one hand, they are helping to create a climate, through a groundswell of public opinion, so that there can in fact be a basis on which negotiations between, or among, the principals can take place. At the same time, they are setting in motion a public debate on the issues, with implications for, and contributions from, the principals, so that when negotiations do take place, there will be a general acceptance in the public mind, about the sort of outcome there needs to be. Above all, the concept that any government must rule under the law within an accepted framework of values needs to be well established.

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2. Catalysts: Pre-negotiation confidence building and the creation of negotiating space While public opinion is being nurtured and educated, the principal actors, both inside and outside the country, need to be contacted by the catalysts to gain their acquiescence for the process to take place. No specific endorsement can be or should be sought from these actors at this time, for the catalysts merely desire to sow seeds for the future; and it is vital that the process should not bear too particular a stamp of any of the principals. The efforts during the pre-negotiation phase must be to establish direct or indirect contacts with the principals to demonstrate to the parties that an eventual settlement is in their interest, for it could further their goals. The catalysts need to suggest to the principals, ways of dealing with sticking points which might otherwise impede negotiations, thus opening the door for the first steps towards the respective parties coming to the negotiating table. The following are examples of the areas that might need to be explored: (a) Water: The issue of water needs to be addressed in such a way that it is seen how all the respective interests, Northern, Southern, Eastern and Western, can be promoted and protected; as well as those of the riparian neighbours. (b) Oil: The division of oil revenues, as well as the mode and mechanisms for the exploitation of oil for the whole country need to be assured. (c) The dominance by any one grouping of the public sector, either nationally or regionally: There is a need to ensure access by all groupings to positions within the public sector to guarantee equitable treatment of all. Those groups not represented need to be equipped with the necessary skills for this purpose. At the same time, the fears of those who are presently employed within that sector that their positions and livelihood could be under threat should access to the public sector be widened needs to be met. Those who may be displaced in this way could be assured of unemployment gratuities or pensions, or technical education programmes could be encouraged so that the persons currently working in the public sector would learn new skills to assist them in supporting themselves in the future. (d) Problems of political fragmentation Political fragmentation is highly problematical in achieving a political settlement. (i) The problem of political fragmentation of the North

The opposition umbrella, the National Democratic Alliance (NDA) has attracted a number of the Northern parties, but is itself in the process of disintegrating, not least with the distancing of Umma Party (UP) from NDA. This is coupled with the process of fragmentation within the northern Sudanese parties with UP, Democratic Unionist Party (DUP) and National Congress (NC) splitting into two or more factions.

(ii) The problem of regional institutional breakdown: Darfur West, Nuba and Beja Umma is both a party with widespread support throughout the North, as well as specific regional interest in the West focussed around the former sultanate

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emirate of Darfur. Their respective Parties represent Nuba and Beja regions.

(iii) The problem of political fragmentation of the South Antagonism created by differences of interest, ideology or strategy often supersede the Southern people’s common bonds and shared values; and this is strained further by the degree of accommodation with or opposition to the structures and policies of the Government of Sudan (GOS). In the light of the escalation of the war it can appear that the only options currently available to the Southerners in general and the SPLM in particular are to either come to the table on terms set for them by the GOS or else to keep enunciating ‘all-or-nothing’ claims.

(e) Addressing issues of State and Religion These need to be addressed to ensure the confidence of all concerned. If a regional or two-systems option were taken, this could involved an appropriate framework for each region acceptable to those in that region. The aim of the catalysts with respect to the respective groupings is to foster agreement within the groupings themselves so that unity might be restored. Communication between the different groupings needs to be encouraged, with an emphasis placed upon discerning common needs and desires. Catalysts can help to focus energy into the creation of a broad agenda and into the selection of strategies that would promote rather than undermine political unity. Disabling hostilities towards one another need to be overcome, so that the respective political groupings can come to the negotiating table as a united front. At the same time, confidence needs to be built with the GOS to encourage the normalisation of the political situation so that leaders and organisations can re-establish contact with their respective constituencies, as well as with one another. This would enable them to negotiate with the North on a basis of equality and thus by acting as genuine representatives of their Southern constituencies, be in a position to ‘deliver’ peace with justice for the common good. Similarly, greater consensus in the North and the other regions would enable the process to take place more smoothly and with more hope of whatever is arrived at staying in place. The catalysts need to gain the trust of all the principal actors as one clearly guided by an agenda which is not itself determined by the existing political dynamic, but which takes its bearings most fundamentally from a concern for the basic principles of justice itself. They must listen attentively to all disputants, showing concern to each of them equally. During the first stages of contact they must establish their bona fides with the principals as they come to recognise their commitment to truth, peace, and justice in their relationship. Their next step would be to suggest ways forward which would accommodate their respective concerns in a just manner. Should these terms not be found acceptable, they must return to their first principles and then work out in consultation with all the parties concerned how an alternative accommodation might develop. B. THE ROLE OF PEACEMAKERS IN THE NEGOTIATION

PHASE As in the pre-negotiation phase, the peacemakers have a parallel role during the actual conduct of negotiations. They need to have available the common framework which

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they have been disseminating in the pre-negotiation phase. At the same time, they need to be in touch with the principals behind the scenes to help act as informal channels of communication. They also need to be willing to offer ideas and suggestions, even if it runs the risk of rejection and even hostility. Unlike the principals, the peacemakers are not bound by a constituency, only by the bounds of truth, integrity and the search for peace. As such, there is a freedom of action motivated by a universal concern, on a non-partisan basis. 1. Consensus Builders: Putting a common framework at the disposal of the principals: It can be taken as generally true that the National Congress Party together with Umma, the DUP, the Popular National Congress Party and the Sudan Communist Party represents the views and interests of the majority of the North. Similarly, the regional based parties, representing the Beja, Darfur and Nuba areas, and the range of Southern groupings alongside the SPLM, can be said to reflect the interests and views of their respective regions. These are the ‘principals’, and any set of proposals put forward by one will almost inevitably be denounced and pilloried by the others. This will either be because it is slanted too much (despite whatever disclaimers may be made) to the interests of one particular constituency at the expense of others; or the constituency concerned needs to rally its constituency to demonstrate its political power vis a vis the others. The simplest and most effective way to do this is to attack or pillory the ‘enemy’. The consensus-builders, from the work they have done in the pre-negotiation phase, now have a set of ideas to offer to the principals, which yet does not bear the imprimatur of any one of them, and thus can be used as the common basis of discussion. Of course, the principals will be making use of a diversity of ideas, but their prime aim would be to represent their respective constituencies in the best way possible. The advantage of such a framework is that in accepting it, neither, or none, of the principals would have to ‘climb down’ to the others, but can find ways to work together with their former opponents for the common good. 2. Catalysts: Acting as an informal facilitator during the negotiating process: During the course of negotiations, stalemates and misunderstandings arise. The catalysts, as independent agencies trusted by all the principals, can work informally behind the scenes to help, perhaps on a shuttle basis, to clarify misunderstandings. They also suggest creative ways around stalemates, taking the risk for failure upon themselves without prejudice to the bargaining positions of the respective principals.

C. THE ROLE OF PEACEMAKERS DURING THE IMPLEMENTATION

OF THE SETTLEMENT The role of peacemakers does not end with the agreement on a settlement. The peacemakers need to continue to uphold and secure the settlement in both a public and a private way. 1. Consensus Builders: Helping to sustain the common ethos and moral framework: The framework developed in the pre-negotiation phase, and which helped to inform the principals in coming to a settlement, must continue to be the basis on which the consensus necessary to sustain the process can be built up. As this

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process continues, so must the process of public understanding and debate, so that a constant sense of living under the protection of law within a constitutional order is maintained and developed in the consciousness of the public at large. The framework must also be the basis for developing a proper system of checks and balances in all areas of life, so that the functions of all institutions: state, and family, as well as all voluntary associations can function according to their proper role. The ‘covenant’- that is, the authority under which the government is placed in power - needs always to be brought to the mind of the people as a whole, so that all breaches of the constitution can be remedied in the courts. 2. Catalysts: Defusing tensions and misunderstandings. The implementation phase is likely to be full of difficulties and misunderstandings. The catalysts need to be on hand to help clarify these and build a climate of general confidence and good will. At the same time they should be drawing attention to those areas where the principles of the settlement have been moved away from, or where further and subsidiary settlements need to be reached between conflicting parties. D. CONCLUSION Negotiations for the achievement of a new political dispensation may come about in Sudan in at least one of two ways: either as a result of worsening domestic or international situations; or as is argued for in this paper, as a result of the parallel pre-negotiation efforts of the informal peacemakers described here, and concerted international third-party initiatives (described in Section 3. below); or, most likely, as a combination of the two scenarios! The key element of the process described and advocated in the paper is the coming to agreement on ways to deal with issues, on the one hand, by the principals and on the other, by the public at large. This will enable a basis to be laid for peace rather than mutual destruction. For consensus-building, the backing of a number of key leaders and other public figures will be needed from across the racial, social, ideological and religious divides. Just as vital, if not more so, will be the building upwards from within the communities themselves, of a general, and easily-grasped set of concepts to inform the debate. Common frameworks of values and applied to specific areas of the political, economic and social structures, will need to be widely agreed to as being the right basis for a future dispensation. Thus when negotiations take place, they will not be doing so in a vacuum, but there can be a set of basic concepts, of sufficiently non-partisan character to be adopted by the respective principals without undermining their bargaining positions. At the same time, a catalytic process needs to be undertaken, whereby the trust and confidence of the principal actors is obtained and space within which free discussion can take place is created. This space takes the form of a general approbation that the consensus-building process should take place, without any one principal or specific groupings giving that process their specific imprimatur (since that night prejudice the approbation of that process by their opposite numbers). It is vital that the catalysts be well-informed and in touch with the dynamic of the domestic and international

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situation, and have close touch with and entree to the principals. The catalysts also need to be pro-active in addressing the basic concerns of the respective principals and indicating to them ways in which they might be met. It cannot be a clinical process, and the catalysts need also to be closely connected to, and deeply empathetic with, all the major constituencies. At the same time they would retain their credibility as a genuinely non-partisan contributor to the overall process, guided throughout by a fundamental concern for truth and justice in the achievement of peace. The peacemakers, both catalysts and consensus-builders need to gain the trust of all the principals as being clearly guided by an agenda which is not itself determined by the existing political dynamic, but which takes its bearings most fundamentally from a concern for the basic principles of justice based on the prime value of human relationships. By seeking peace and by addressing different aspects of an unjust situation they will come step by step towards their goal. The peacemakers must attentively listen to all disputants, showing concern to each of them, even to those with whom they disagree. While they cannot remain morally neutral, indeed they must not, they must be careful not to allow themselves to be co-opted into the political strategy of any one political grouping. During the first stages of contact they must develop trust and credibility as the conflicting persons recognise their commitment to restoring truth, peace, and justice to the situation. Their next step will be to suggest ways forward, which will accommodate their concerns in a just manner. Should these terms not be found acceptable, they must return to their first principles and then work out in consultation with all the parties concerned how an alternative accommodation might develop. Throughout, however, the peacemakers need to be well aware of the limitations of their role, and that international support may well be necessary if the principals are to come together (see Section III below). But the final decision and shape of what ensues must remain with those in Sudan itself. The transformation of thought and action within a framework of values shaped and worked-out in a considered and thorough way needs to take place among those within the country. At present, a negative spiral towards the continuation and escalation of the conflict exists in Sudan. This spiral needs to be counteracted in a positive way, in that those issues that lie at the heart of the anger and frustration of the Southern community need to be addressed in a radical way. This must involve all groupings working out together the sort of structures that need to be put into place. For this to happen, channels need to be created by individuals and informal groups working together to establish networks of confidence and trust between those representative of the respective communities. The individuals concerned must do this within terms of a basic commitment to truth and justice. At the same time a public consensus needs to be built up about the urgency of reaching a constitutional settlement and the sort of principles which will establish a new order within which all can live together in freedom and justice. Both aspects of this peacemaking task are needed now to create a positive movement towards a just and lasting peace in Sudan.

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CATALYSTS

CONSENSUS-BUILDERS

PHASES:

GAIN TRUST OF THE PRINCIPALS AND HELP TO ‘CREATE SPACE’ FOR THE CONSENSUS-BUILDER

DEVELOP AND DISSEMINATE A COMMON

FRAMEWORK

PRE- N EG

COMMENCEMENT OF NEGOTIATIONS

BE AVAILABLE AS A COMMUNICATION CHANNEL AND ‘SCAPEGOAT’ AS NECESSARY

PUT THE COMMON FRAMEWORK AT THE DISPOSAL OF THE PRINCIPALS

NEGOTIA TI O N

IMPLEMENTATION OF SETTLEMENT

HELP TO DEFUSE TENSION AND BUILD COMMON UNDERSTANDING BETWEEN THE PRINCIPALS

HELP TO BUILD A COMMON ETHOS ON THE BASIS OF THE COMMON FRAMEWORK

TRANSITIONAL

IMPLEMENTATION OF FINAL CONSTITUTION

HELPING TO DEVELOP THE COMMON UNDERSTANDING BETWEEN THE PRINCIPALS

HELP TO BUILD ON THE COMMON ETHOS IN TERMS OF THE COMMON FRAMEWORK

FINAL

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III. INTERNATIONAL THIRD-PARTY SUPPORT FOR A SETTLEMENT The position of either other states or of international organisations as international sponsors allows them to play a key role in encouraging a peaceful settlement to the Sudanese crisis. No matter what international organisations, states, or individuals take part in securing a final settlement for Sudan, the significant decisions concerning the outcome must be made by the Sudanese. Although a third party may open doors that formerly were closed, the people of Sudan - through their respective leaders - must themselves select the paths that they wish to take. An outsider cannot dictate the future, but can serve to stimulate the taking of positive steps towards a settlement, and the securing of such a settlement on a sound footing. A. SUPPORTIVE INTERNATIONAL THIRD-PARTY ROLES IN THE PRE-

NEGOTIATION PHASE There are three ways in which international third parties can prepare the way for the negotiation process: -

1. Intermediaries: Developing channels as a potential mediator or ‘honest broker’: The independent status of the third party can allow it to provide a venue for negotiations and will therefore assist in developing a solid framework for a constitutional settlement in Sudan. Such an intermediary will encourage trust and recognition of mutual bonds by opening channels of communication without public exposure. The intermediatory will promote creative options for the principals and act as an intermediary so that they might eventually come together for negotiations.

2. Sponsors: Assembling packages to provide incentives for negotiations: Since economic pressures could affect the success of a negotiated settlement, economic support at crucial points will be necessary for persons in need. The objective is to assure eventual stability and physical security of all Sudanese by working to put together packages that would go into effect following successful negotiations. Financial assistance will both encourage them to come to the negotiating table as well as assist in promoting a smooth transition by relieving some of the apprehension change will bring. Programmes providing for technical re-training, guaranteed civil servants’ pensions and unemployment gratuities, as well as the promise of investment in key sectors in order to facilitate more rapid advancement for Southerners with alternative employment for Northerners, are potential methods of assuring the support of the respective principals. Such efforts will help to reduce tension and encourage communication and understanding, for they will be positive measures with symmetrical effects. They will be a concrete demonstration of the promises offered by the facilitator, one that will foster good will between the parties by meeting their basic concerns.

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3. Underwriters: Building up syndicates of potential underwriters for a settlement: There needs to be a syndicate of third-party underwriters to agree to uphold the settlement once it is agreed upon. The greater the number and the broader the range of third parties forming the syndicate, the more likely the guarantees will be acceptable to the principals (especially if the syndicate is well balanced with the respect to the principals concerned). The promise of such a syndicate will not only encourage all parties to adhere to the agreement, but will also help to uphold stability within the region as a whole. Although the Sudanese themselves must agree upon the actual social, economic, and political structures that they wish to construct, the third party syndicate can play a significant role during the early stages of implementation as the guarantor of the settlement (that is one charged with the specific task of ensuring that the settlement is implemented in full and with effect on all parties to the settlement; and that none defaults and so negates the understanding which brought the settlement about). Effective and verifiable procedures for the implementation of the final agreement need to be identified: such as the need for an internationally-recognised interim government overseeing a timed process of transition, the supervision of free elections, monitoring forces, and an appropriate evaluation process. While the syndicate may not be able, and should not attempt to underwrite the entire process of transition, or to implement all of the details, it can help to shape and guide the process by careful specification of parameters for the implementation of the settlement.

B. INTERNATIONAL THIRD-PARTY SUPPORT DURING NEGOTIATIONS

If and when the principals choose to ‘turn the corner’ and enter into discussions, the pre-negotiation work of the international third-parties will have set the stage through the developing of channels, the assembling of packages of incentives, and the formation of international syndicates to make possible the transitional process.

1. Intermediaries: Facilitating negotiations as mediator or in proximity: Once the principal actors decide to come together, the method of locating a mediator is flexible. Either the peacemaker of the pre- negotiation stage or a trusted party may serve as mediator. If the participants find it more acceptable, a third party could fill this position as could of status or a statesman of note. Whoever is selected may or may not actually chair the negotiations, but will guide the over-all phase according to the framework and principles set out earlier. The mediator needs to gain the respect of the parties at the negotiating table, for his credibility is the key to opening discussions. He or she must demonstrate equal concern for all sides, creating legitimacy for each by attentively listening to their anxieties as well as to their desires. A successful settlement hinges upon the mediator’s ability to gain the trust of the principals. A notable example of this being President Jimmy Carter’s success in the negotiation of the Camp David accord between Israel and Egypt in 1978 in which Egypt agreed to recognise Israel’s right to exist in return for the restoration of territory conquered by Israel.

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In addition, the mediator must listen so as to take account of the fears and objectives of each party, allowing each to express themselves within the framework established to guide negotiations. A successful mediator will create room within which the parties can manoeuvre, in order to release tension. He will, therefore, allow them to take credit for any progress made while accepting any blame or negative responses himself. By acting as a scapegoat, the mediator can reassure and preserve the integrity of the negotiators. The rights of all persons and interest groups must be addressed during the first stages of negotiations. One group must not dominate another either during the negotiations or in the final agreement. Indeed, the implementation of an extensive bill of rights and the protection of private property should be considered as a prior step in order to bring the principals to the negotiating table. The key at this stage is to appeal to the leaders and to thus gain their commitment to the process, for without their commitment it will be impossible to carry out a constitutional settlement. The aim of the mediator is to bring the principals together, to foster communication and to ensure that plans for discussion are widely canvassed. Creative options for mutual advantage ought to be promoted by the mediator as well. The mediator will serve as the link between the principals so that they might eventually come together and he will initiate movement through both influence and intervention. As a first step, the mediator needs to contact the leaders, build trusting relationships with them, lessen misperceptions, build confidence, and set a positive tone to the proceedings. The next phase involves helping to define the basic issues before the negotiators and setting a broad agenda. Anything, which is merely peripheral, is to be disregarded, for the negotiations will address primary issues alone. Specifics will be dealt with later on, for they tend to stimulate debate and dissension. Strict guidelines of both behaviour and of procedural matters must be agreed upon at this stage, as must the method of reaching the final settlement. Once a broad agenda has been accepted, the mediator needs to work on discovering common ground and on generating possible measures for mutual advantage. These measures need to be created and developed in an uncritical atmosphere by the participants as well, for then they will begin to 'own' the process themselves. Once all possibilities are suggested, each will be evaluated according to its costs and benefits, with only those found acceptable remaining before the negotiators. Although each side must abandon some of its demands, the final settlement must be one in which no one is defeated - in fact, all will ‘win’ from the stable Sudan which they have assisted in creating. By indicating how the basic needs of the people can be met (freedom to have control of their own lives, physical security, the right to well-rounded education, recognition of basic dignity, and economic well-being) as well as by participating in discussions, each party is assured that the particular concerns of its constituents will be addressed and that it will have an assured stake in the outcome. The mediator must then construct a detailed agenda and a timetable to guide through every step of negotiations. From the first contact with the principals to the signing of the final settlement to the implementation of the agreement, a plan of action must be strictly adhered to. The structure of the negotiation must be in such a manner that a chain-

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linkage from one agreement to another is formed. This is so that agreement on, for example, the final constitution will lead naturally to the consideration of the transitional arrangements and then to the resolution of the present conflicts; and once agreement is reached on one point, none of the principals must be allowed to backtrack from it. As the participants recognise their own particular stakes in the settlement, they will more easily accept each point discussed. By participating in each step, the parties will become more involved in the process and are thus less likely to renege on earlier promises. Carefully worked-out plans for discussion, clear goals, and a strong chairman who will maintain momentum of the process are essential. The chairman’s task is to break the issues down so they are more attainable as well as to move the talks ahead with the help and support of the key external parties, to conduct tough one-on-one bargaining, and strictly to allocate discussion time. 2. Sponsors: The placing of packages on the table by the sponsors. A package of aid and assistance can be assembled and placed on the table, or at least made known to the principals either definitely or by implication, as an inducement to begin and continue the negotiation process. However, as is the case with the guarantors, the sponsors of the resulting settlement need to be able to restructure their package of assistance so that it can be applied specifically to overcome possible sticking points in the negotiation or implementation of the agreement, or be planned so that its delivery in phases be linked to the successful implementation to crucial provisions of that settlement. 3. Underwriters: The dual role of the underwriters during negotiations: The syndicates of underwriters, which have been built up during the pre-negotiation phase can be brought into play in two ways. Individual states or groupings of states need to be brought together with an interest in encouraging and sustaining the negotiation process itself. These intermediate guarantors need to be ready to bring pressure on the respective principals so that the parties can be encouraged to come to the table in the first place, and that obstacles encountered at the different stages of the process can be overcome. Underwriters also need to be at hand to guarantee the implementation, in stages, of the settlement itself. The pressures on the principals before they may take part in negotiations needs be structured in such a way that each of them will face equally negative measures should they decide to obstruct or unilaterally withdraw from the agenda and timetable agreed upon by the principals in commencing the negotiations. There will need to be a symmetry of penalties applicable to the principals, so that all have an equal interest in the success of the talks; so that none of the principals will, for the sake of tactical advantage, be tempted to stall or break off the negotiation process. All the principals need to be equally committed to avoid the collapse of the discussion or a reneging on either the intermediate agreements or the final settlement. In the case of a deadlock, the chairman may find it necessary to threaten the parties that he will settle for a ‘second best’ option and the intermediate guarantors need to be at hand to help him put this contingency plan into effect. The prospective guarantors of the settlement itself need to be close at hand during the course of the negotiations, so that they can be ready to underwrite the provisions of the

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settlement as they are agreed upon. Modern communications mean that the consent of the underwriters to the guarantees can be obtained quickly and at the highest possible level. The leading underwriters will have their representatives in close proximity to the discussions; but their brief should be defined in such a way that the guarantees which the underwriters provide can be tailored to fit the successive provisions of the settlement as they are shaped by the principals. C. SUPPORT OF INTERNATIONAL THIRD-PARTIES DURING THE

IMPLEMENTATION PHASE In many African countries where there has been a far-reaching transfer of power, this has been preceded by a transitional period to allow this to take place in an orderly way. Arrangements need to be agreed upon which allow the power-holders to move towards a thoroughgoing transfer of power without losing face, or allowing a breakdown of law and order or the rise of an order which is directly antithetical to their fundamental concerns. Although a dramatic transformation is desired in Sudan, those involved must be willing to adopt a realistic strategy to ensure that the new situation is an improvement. Once a settlement is reached, the question of how to implement, monitor, enforce, and evaluate it comes into play. Rigid control by the interim government and the division of the agreement into short-term goals rather than long-tern objectives may make the accommodation more obtainable. Such a plan, which prepares for the transitional changes which the future might bring, provides for further options for peace and for guaranteeing the success of the actual settlement itself. The transition period may begin with a cease-fire monitored by outside forces, the establishment of an interim government and fair elections. The final phase commences with the transfer of sovereignty to the new state and its government. The transition in Sudan will be one of developing and accepting a framework, and then implementing it with the backing of guarantors and sponsors dedicated to ensure the full and scrupulous implementation of the settlement. The achievement of a constitutional settlement does not guarantee the elimination of conflict, for it does not abolish all conflict but simply reduces and channels it. Two basic factors, however, will add to the chances for maintaining peace within Sudan: constructing a firm foundation for the settlement and creating a climate of good will amongst the parties agreeing to the plan. The establishment of a solid, just and balanced structure will especially help make for a peaceful transition, as will the participation directly and indirectly by all parties involved internally or externally in the present conflict. All participants will need to make sacrifices, so that all may ‘win’ and none may suffer total defeat. Such an accommodation will prepare the people of Sudan for a peaceful and prosperous future. 1. Intermediaries: The informal continuation of the intermediatory’s role after negotiations: The intermediatory’s role strictly ends with the signing of the agreement by the principals, and the support for the implementation of the settlement then passes to the guarantors of the settlement. However, the intermediatory can remain on hand in an informal capacity by maintaining informal contacts with the transitional government and

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the guarantors in order to clarify any misunderstanding which may arise in the implementation of the settlement.; and They will thus help to suggest, by a process of informal representations to the parties concerned, ways in which the terms of the settlement can be upheld and enhanced, say, by the application of further aid to overcome obstacles in the implementation of the settlement, which might not have been foreseen during the negotiation process. 2. Sponsors: The delivery of packages in phases by the sponsors. Packages of aid need to be delivered in phases and linked as far as possible to the implementation of the settlement. This is to encourage and support the working out of the terms of the settlement by all the principals, and the strict honouring of both its spirit and letter by the transitional government. Unlike the trusteeship of the settlement by the guarantors, which ends strictly with the completion of the transitional phase, the sponsors need not cease their delivery of aid with the ending of the transitional period. Although, the strict rationale for continued assistance, namely as an incentive to carry out the terms of the settlement, would no longer apply. In fact, aid can be targeted specifically to follow the achievement of the final stage, and further delivery of aid can, explicitly or implicitly in terms of the settlement, be negotiated in order to overcome any unforeseen obstacles in either the transitional or final stages of the implementation of the settlement. The following areas are those in which the international sponsors can promote the implementation of the interim settlement. (a) Resettlement and Re-integration of combatants Once the combatants have been discharged they would be transported to their destination of their choice and they would be provided with financial and technical assistance in the form of cash, food, clothing and medical care for a period ranging from several months to one year. Since this effort requires large amounts of money, the sponsors would have to ensure that adequate financial and material resources as well as technical assistance are made available to all former combatants on an equal basis and for a uniform duration. Once the combatants have settled in at their destination, the international community and the interim authority would have to ensure that the local community is made aware of the special needs of these individuals. In order for the combatants to become fully integrated into their society they would have to become actively involved in their community and be able to contribute economically. The success of this process would depend both on the skills that the combatant might have acquired through the training programme during the re-insertion period and also on the macro-economic, political and social stability of Sudan.

Throughout the de-mobilisation process special attention must be paid to child and women soldiers, as well as to the wives of ex-combatants who would require special counselling, and support. In some of these cases, women and children would require access to special medical facilities. Children might have to undergo special vocational training courses and they should also have access to learning

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facilities. The international sponsors have a vital role to play throughout the whole process through the extension of financial resources and technical assistance to the institutional structure of the interim authority.

(b) De-mining According to the UN, in 1998 there were two to three million landmines in the Sudan covering some 800,000 square kilometres or 32 percent of the country.30 These landmines have generated three basic problems for the Sudanese population. They are responsible for the increased civilian and military death toll as well as the loss of livestock and wild animals. The mine survivors have been directly affected by the pain and cost of their treatment and the loss of employment opportunities, which in turn has affected the livelihood of their families. During the interim period the international community could support the interim authority in three ways. Firstly, the international sponsors could help increase the de-mining capacity of the Sudanese military. Currently, the Sudanese military have engineer units that are used in de-mining but they are not used in large-scale de-mining operations. The United Nations Mine Action Service (UNAMIS) could train Sudanese combatants in de-mining actives and act as a central point for co-ordinating all mine clearance activities by Sudanese and international bodies. Secondly, the international sponsors could help the interim authority in running mine awareness programmes with the help of International Committee of the Red Cross (ICRC), the United Nations Children Fund (UNICEF), the United Nations High Commissioner for Refugees (UNHCR), the World Health Organisation (WHO), the HALO Trust and other non government organisations (NGOs). These activities would alert the Sudanese people of the dangers of mines and would inform communities of mined areas to be avoided. Thirdly, the international sponsors could provide victims’ assistance to people in need of medical and psychological rehabilitation so that they could become productive members of their communities. One of these activities might include the establishment of artificial prosthetics and limbs factories in every affected Sudanese State. (c) Military Conversion After the conflict has ended the international sponsors could assist Sudan to convert some its military industries into civilian manufacturing facilities. This would not only reduce the cost of military spending in the country but would direct scarce resources to more productive uses. Military conversion is an expensive task that requires careful planning, prior experience and knowledge of the military conversion process. The international sponsors could assist the Sudanese interim authority in retraining people and in converting the military facilities to peaceful use. For example, the mechanical ammunition factories could be converted into agricultural machinery facilities.

30 Landmines Magazine. Sudan: conflict and development, De-mining News from the United Nations, Vol. 2, No. 3, October 1997 and US State Department. Hidden Killers: 1998: The Global Landmine Crisis, Washington, 20 January 2001.

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(d) Reintegrating War-affected Population After the Sudan Peace agreement has been signed, the international sponsors would need to assist the Sudanese interim authority with the repatriation, resettlement and reintegration of the four million internally displaced persons (IDPs), 478,427 Sudanese refugees, and the qualified Sudanese nationals who are abroad.31 (e) Repatriation and Resettlement The repatriation and resettlement of the Sudanese population would require immense financial, logistical and technical resources and capacities. This effort would need to involve at least three UN agencies. The UNHCR would be responsible for repatriating Sudanese refugees who are based abroad, the United Nations Development Programme (UNDP) would be responsible for the resettlement of IDPs, and the International Organisation for Migration (IOM) would be responsible for the return of qualified Sudanese nationals. This repatriation and resettlement programmes would require the close involvement and co-ordination of all concerned stakeholders, the interim authority, international organisations, domestic and international NGOs and representatives of the three groups to be resettled. Prior to repatriation and resettlement all IDPs, refugees and returnee-qualified nationals should receive orientation and be briefed thoroughly. (f) Economic and Social Integration Once people have been repatriated to the location of their choice, the Sudanese interim authority and the international sponsors should aid their economic and social integration. The process of economic reintegration would entail assisting all returnees to become economically self-sufficient and productive members of their communities. If the returnees are engaged in agriculture then the international community would have to assist the interim authority in establishing a land-tenure framework which would resolve any outstanding land rights issues. The international community could also provide a number of agricultural extension services in the form seeds and tools. Other methods would include the provision of micro-credit services to enable people to start-up small enterprises and the extension of training courses to provide or augment specialised skills. If the returnees are highly qualified nationals, the IOM could assist both the individuals and their family in finding jobs as well as the institution that would employ them. This assistance could be in the form of grants to individuals, who would receive salary supplement for 12 months, and institutional grants that would provide further resources to the employing institution. The process of social integration would entail assisting all returnees within their social, religious and ethnic communities. This process would involve both the returning individuals and the communities to which they are returning. During this period the interim authority would have to be aided by the international community in the

31 United Nation’s High Commission for Refugees, Provisional Statistics on Refugees and Others of Concern to UNHCR for the year 2000, Geneva, 2001.

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community building efforts, which must involve everyone. These community building efforts might include the resolution of ethnic or communal disputes, the restoration of trust through equitable access to resources and power, and the elimination of social exclusion. In some regions this would entail the establishment or expansion of new services or facilities which could follow-up this whole process on the ground and act as a source of advice and confidence amongst all stake holders. During the re-integration of the war-affected population special attention must be paid to the needs of three vulnerable groups: women, children and the elderly. Each of these three groups would have their own particular needs that the interim authority and the international sponsors must meet. For example children may need psychological counselling and access to special medical facilities. The elderly would need to be repatriated with care, assisted in finding their family and relatives and provided with social benefits and community support. Women may need to take on non-traditional roles and become the bread earners so as to ensure the economic security of their families. (g) Assisting the Interim Authority(ies) During its work the interim authority would face challenges as it seeks to fulfil its mandate. Some of the biggest challenges would be consequences of the past conflict and would include impaired socio-economic structures and institutions, and damaged physical infrastructure. These factors would prove a challenge to the interim authority as it seeks to carry out its programme of resettlement, re-integration and referendum. The role of the international sponsors in the socio-economic reconstruction during the interim period could not be overstated. Some of the most important areas in which the interim authority would require assistance are listed below.

(i) Institution and Infrastructure (Re)building The interim authority(ies) capacity would determine to a large extend how effective and efficient it would be discharging its duties. That is why it would be essential that the institutional capacity of the interim authority be (re)built and the physical infrastructure be rehabilitated. The international sponsors could rebuild the institutional capacity of the interim organs by identifying the various skill shortages as well as the frameworks, processes and equipment which need to be put in place. Once the above task is completed, the rehabilitated interim institutions would be able to perform their functions effectively, efficiently and sustainably.

The Sudanese civil war has impaired the country’s health, water, sanitation, transportation, communication, education and utility networks. Some of these projects such as the rehabilitation of damaged roads, bridges, hospitals, schools and dams might be beyond the financial means of the interim administration because they require large capital investments and specialist know-how. The international sponsor could help the interim authority to resolve this dilemma by prioritising and sequencing of projects and by co-ordinating, directing and concentrating resources to the most urgent programmes.

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(ii) Debt Relief According to the World Bank, in 1998, Sudan’s debt stood at $15.9 billion. Out of

this total, $6.3 billion was short-term and outstanding debt.32 If the interim authority is to have the means to implement its interim programme it should not be constrained by the country’s large debt. The international sponsors could help the interim authority by writing-off some of Sudan’s debt. They could also help reschedule and reduce the country’s debt through the Paris Club and provide new loans for the interim authority to use in servicing its debt.

(iii) 0fficial Development Assistance (ODA) Throughout the 1980s, Sudan received high levels of official development assistance (ODA), which peaked in 1985 at $1.9 billion. By 1996, ODA dropped to $100 million with 80 percent of donor resources going to relief and emergency operations and only 20 percent to development. This, coupled with the servicing of the national debt, has curtailed national development programmes and has generated such a situation whereby 90 percent of ongoing development programmes are financed by the UN system.33

In order to rectify this situation, the international sponsors must increase the levels of their relief and development assistance and help the interim authority in three ways. Firstly, the international sponsors would have to ensure that the interim authority would have enough resources to deal with any ongoing emergency operations arising from droughts, floods and famines. Secondly, they would have to assist the interim authority’s food security programmes through their support for sustainable rural development. Thirdly, they would have to strengthen the authority’s capacity in planning, resources mobilisation, implementation, monitoring and review of relief and rehabilitation programmes.

(iv) Restructuring the Economic Sector Another important area in which the international sponsors can play a vital and active role would be in the area of the economic reconstruction of the Sudan. The assistance that the partners would provide to the interim authority must be tailored to the specific strategy, devised by the authority. This strategy would have to seek to balance the macro-economic restructuring of the country with its political stability. The areas in which the interim authority could receive financial, material and technical assistance are as follows: fiscal, monetary and inflation planning and policies, foreign exchange policy, savings and investment strategy, foreign and domestic trade, regional economic integration and structural adjustment.

For example, the IMF could help the interim authority to reduce Sudan’s inflation, stabilise the exchange rate and renew debt servicing. The World Bank and the African Bank for Development could assist the interim authority in establishing and streamlining its regulatory framework, push forward with privatisation and accelerate the implementation of export promotion policy. The principal challenge

32 World Bank, Country Profile -- Sudan, Washington, 2000. 33 UNDP, First Country Co-operation Framework for the Sudan: 1997-2000, New York, 23 June 1997, p.3.

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of the restructuring of the economic sector would be to create a stable economic environment that is conducive to local and foreign investment under political and social pressure. The restructuring of this sector would be accomplished if the interim authority has the necessary capacity to plan, implement and co-ordinate its economic adjustment programme.34

(h) Promoting Good Governance During the interim period one of the challenges of the interim authority would be to promote good governance through transparency, accountability, rule of law, participation and combating corruption. These actions would strengthen public institutions, legitimise the interim authority in the eyes of the people and build confidence in the interim process. In each of these cases the international sponsors could provide technical know how and resources to encourage interim officials to disclose all information so that it would be known by the public. This could be achieved either through press releases or through yearly statistical reports. Furthermore, the interim authority should be accountable to ombudsmen, to ensure that it would be operating within a legal framework and would be involving the private sector and civil society. The international sponsors could help in the review of the existing mechanisms, institutions and capacities before deciding on what package could best augment the current capacity. This could take the form of the establishment of new institutions like ombudsmen, training of government officials and the introduction or enhancement of powers of specialist bodies.35 The interim administration could also be aided in tackling government corruption through the review of the existing structures and regulations and the introduction and enhancement of new guidelines, policies, procedures for reporting, provisions for disclosure of financial or other interests as well as training and assessment of government officials. The international sponsors could provide technical expertise to the interim administration to strengthen its capacity to monitor the awarding of public contracts, the allocation of subsidies, licensing, levying fees, privatisation and cross-border transactions.36 (i) Creating an enabling Environment for the Private Sector and Civil Society According to the CIA World Factbook 2000 -- for Sudan, in 1996 only 6% of the country’s labour force was employed by the government, whilst the unemployment rate during 1992/93 was estimated at 30%.37 This underlies the fact that although the Sudanese government is the biggest economic force in the country; it is not the only one. Once the peace agreement has been signed, the private sector could play an important role in the development of the Sudan by generating employment, wealth, tax revenue and hard currency for the interim authority. In order for this to happen the international sponsors would aid the interim authority in fostering sustainable private sector

34 Carbonnier, Giles, Conflict, Postwar Rebuilding and the Economy, United Nations Research Institute for Social Development, 1998. 35 Overseas Development Council, Making Peace Work -- Lessons for the International Development Community, ODC Conference Report, 1996. 36 OECD/PUMA, Survey on Anti-corruption Measures in Public Sector in OECD Countries, Paris, 1997. 37 CIA, The World Factbook 2000 -- Sudan, Washington, 2000, pp. 6-7.

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development through a number of activities. Some of these activities would include the following: • Establishing a stable micro-economic environment through balanced financial,

monetary, and fiscal policies • Ensuring that the private sector has easy access to credit with low interest rates • Providing incentives for domestic and foreign investment through tax breaks and

elimination of red tape • Encouraging and co-ordinating the work of foreign and domestic NGOs in

establishing micro-credit and vocational training facilities in the country • Enforcing the rule of law through anti-corruption programmes • Developing the country’s physical infrastructure The above mentioned programme would need to go hand in hand with a broader policy of nurturing the institutions of civil society, including a free and responsible press, voluntary associations and free civic interaction. This would help to promote social and economic initiative and dynamism and build a positive network of relationships for the future prosperity of the country as a whole. According to the Humanitarian Aid Commission (HAC), 213 non- government organisations (NGOs) operated in the country in 1994. In 1997, the Sudan Council of Voluntary Agencies (SCOVA), published a directory which listed 101 Sudanese and 72 foreign NGOs working in northern Sudan.38 In addition, there are more than 40 foreign NGOs working in southern Sudan. These agencies have been playing a vital relief, rehabilitation and development role in the country. During the interim period, the international sponsors could aid the HAC and the Sudanese NGOs, financially and technically. On the one hand, the international sponsors could strengthen HAC’s regulatory framework by providing consultants to work alongside and/or advice the commission, as well as through briefings, training seminars and physical facilities. On the other hand, the international sponsors could develop the capacity of local NGOs through the provision of necessary office and field equipment, and through the development of their human resource capacity. The development of civil society would not only augment the development of Sudan, but would also provide checks and balances on government power and monitor government corruption. The international sponsors could also aid the work of Sudanese human rights organisations that could assist the ombudsmen in collecting information about human rights violations. For example, the international sponsors could help Sudanese NGOs in running human rights training for police, military and judiciary. 3. Guarantors: The underpinning of the transitional arrangements by the guarantors: During the implementation phase, the guarantors must be available to intervene to the exact extent as has been agreed upon by the principals in reaching the settlement. To that extent, the principals will have chosen to limit the sovereignty of the

38 SCOVA, Directory of the NGOs Working in Sudan, Khartoum, July 1997.

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successor state established by the settlement for the length of time agreed to in the settlement. There are two key areas that the international guarantor would need to underpin: that of the holding of the referendum and that of the implementation of the cease-fire. These need to be put in place at the same time as the monitoring elements, be it specified observers at times of elections, or the presence of an international force to oversee the re-organisation of the army. They must be of such a nature that it is genuinely balanced and non-aligned with respect to all the principals at the time of reaching the settlement. De facto checks and balances, as well as de jure limitations must be built into the terms under which any intervention to uphold the settlement is to take place. For example, any monitoring force could be of a balanced nature, half comprised of elements nominated by one set of principals, and half nominated by the other, each being able to veto nominations made by the other. (a) Monitoring the Referendum The international guarantors have an important role to play before, during and after the referendum. Their support and involvement in this process could be a powerful confidence-building force that would help enhance the legitimacy of the interim authority. The support of the international guarantors could take two forms. The first could be in the form of technical support prior to the referendum. The second wcould be the monitoring and reporting of the referendum. The Sudanese referendum would be an expensive and challenging undertaking, requiring political and financial support from both the transitional authority and the country as a whole. The vastness and destruction of the country’s transportation and communication networks would complicate the task even further. First, the international guarantors could aid the transitional authority to assess whether the interim treaty and electoral system are clearly and adequately framed so as to ensure the free and popular participation of the electorate. If this is not so then the international guarantors, through the United Nations, could provide assistance to the interim authority to draft such legislation. Second, the international guarantors would have to work with the transitional authority in the establishment of an independent Referendum Commission, in accordance with the interim regulations. If this is not the case the international guarantors could extend financial assistance to the interim authority and train its staff. The Referendum Commission must also be provided with the necessary equipment for the referendum, which would primarily include, ballot boxes, ballot papers, polling booths, etc. Third, the international guarantors could assist in the registration of the political parties and voters. This could take in the form of direct financial assistance to the Referendum Commission that would have to be provided with the resources and capacity to undertake this effort throughout the whole country. This process would be particularly challenging for Southern Sudan and some areas in the Eastern, Western and Central Sudan which would not have in place the same administrative structures and capacity. The

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international guarantors would also be challenged by the four million internally displaced people and by one million Sudanese refugees. Fourth, the international guarantors could assist the Referendum Commission and civil society organisations in their endeavours to familiarise the electorate with the purpose of the referendum as well as ensuring that they would know how to vote. If this is not the case the international guarantors should extend financial and technical assistance to the Referendum Commission and the civil society organisations. They would also have to ensure that those vulnerable groups such as the internally displaced people, the illiterate, women and the demobilised soldiers would be able to fully participate in the referendum. Fifth, the international guarantors must ensure that all political parties would be able to get their message across to all voters. This effort might entail the organisation of training seminars and the extension of financial and technical assistance to all parties. The international guarantors could also organise training seminars for the media personnel and ensure that all parties would have an equal access to the radio, newspapers and television In order to ensure that the Sudanese referendum would take place in a free and unbiased environment, the international guarantors could send a team of observers to make an impartial assessment of the referendum, train the Referendum Commission and other bodies in monitoring and reporting on the referendum process. After the international observer team has established its presence on the ground they would begin reporting on the whole referendum process, how registration is proceeding in each region, whether all parties have access to the media and how the Referendum Commission is coping with the process. Concurrently, the observer team would train local referendum observers to supervise the referendum. During the referendum the international and national observer teams would visit different locations to assess voting procedures and the security of the ballot. They would also monitor to see whether there is intimidation at the polling booths and whether the referendum officials have been impartial. Once the voting is completed, the observer team would issue its report that would declare how the process took place and whether there should be re-voting. The observer team could also forward its recommendations to be followed up by the Referendum Commission and other interested organisations. (b) Policing the Cease-fire Re-establishing security throughout Sudan would be the second major task of the guarantors. The multiplicity and number of armed groups and the proliferation of small arms throughout the country would compound this problem. According to the International Institute for Strategic Studies (IISS), in 1997 Sudan’s armed forces numbered 79,700 troops, some 85,000 reservists and 15,000 active irregulars in the paramilitary People’s Defence Forces militia. In 1997, IISS estimated the SPLA to number 20,000-30,0000 troops, Sudan Allied Forces less than 2,000 and 500 Beja Congress combatants 500. In addition to these armed groups, there are a number of other forces operating in Southern Sudan such as the South Sudan Defence Forces which is

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under the South Sudanese Co-ordinating Council and a number of southern trial militias which are either allied to the government or to the rebels.39 Once the Sudan Peace Treaty is signed, a joint Cease-fire Commission would be established, from the representatives of all armed movements in the country. This commission would be under the interim authority and would liase with the international peacekeeping force, which could be sent to the Sudan at the request of the interim authority. In line with UN doctrine and the size of Sudan, the UN force should not be less than 5,000 and it should have a clear and limited mandate with a defined exit strategy and adequate resources to discharge its responsibilities. Once the cease-fire treaty takes effect, the belligerent forces should be accommodated in separate barracks in designated regions and out of range of one another. At this point the armed forces would transfer control of their weapons and military arsenals to the UN peacekeeping force. The UN peacekeeping forces would maintain control of all or part of these weapons either throughout the whole time or for a limited period only. Prior to being discharged combatants would undergo medical examination and orientation sessions, to inform them about the reinsertion segment. The period of trusteeship of the settlement by the guarantors falls away with the ending of the transitional period. D. THE ROLE OF THE INTERNATIONAL COMMUNITY IN THE

RECONSTRUCTION OF THE SUDAN Peace building is a comprehensive and integrated process made up of a myriad of relationships, roles, goals, structures and functions rather than a single activity. The work of the international sponsors would not end with the publication of the referendum report but would be transformed to meet the new challenges of the new polity. Whilst the time dimension of the interim period would be quite short, the long-term reconstruction of the Sudan would be much longer. As a first step the international sponsors would have to embrace and nurture the long-term desirable structural, systemic and relational goals, articulated by the Sudanese people. These goals might include for instance, sustainable peace and development, self-sufficiency, equitable social structures that meet basic human needs, and respectful and interdependent relationships. As a second step the international sponsors would have to ensure that the provision of resources for the reconstruction and transformation of Sudan is not just a matter of giving money, but also involves an interactive partnership between all stakeholders in a strategic commitment. As a third step, the international community would have to aid Sudan in not only meeting people’s basic needs but also in beginning to replace relief and rehabilitation assistance with long-term development assistance to restore and (re)build local and national 39 International Institute for Strategic Studies, The Military Balance 1997-1998, London, 1998, p. 260.

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capacities and the human, physical and financial infrastructure of the country into an infrastructure of peace. IV. CONCLUSION The roles of the informal peacemakers and those of international third parties are complementary and mutually re-inforcing, but it is vital that they be kept distinct. The informal peacemaker needs to be free from institutional links both with the principals within the situation in question, and also with the international third-parties involved. The strength of an informal peacemaker lies in its freedom from such links, since any association will tend to compromise the neutrality which is key to its success. The informal peacemakers operate as either catalysts or consensus-builders, or a mixture of both. For the purpose of clarifying the different ways in which peacemakers operate, the two roles need to be distinguished, but they are inter-dependent and mutually re-inforcing. International third-parties can operate in one or more of three roles: underwriters, sponsors and intermediaries. As with informal peacemakers, these roles take different forms in each of the different phases of the negotiation process. These roles can either be exercised directly or through intermediate actors, agencies or associations. The achievement of peace cannot be done exclusively at any one level or be achieved by any one actor or agency. Rather, it needs to be seen as a multi-dimensional process, proceeding at many different levels and involving the whole range of stakeholders at the same time. The key is that the different roles and agencies should not be seen as in competition, but each needs to re-inforce the other according to the distinctive contribution which each can make. They need to be co-ordinated diffusely by a process of careful consultation across the network of different actors and agencies, including both the informal peacemakers: the international third party actors and the principals themselves. By this cumulative and diffuse process, based on a foundation of common relational principles, true and just peace can be achieved.

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H. SPONSORS

I. UNDERWRITERS

J. INTERMEDIARIES

PHASES:

Figur

ASSEMBLE FINANCIAL PACKAGES AS INCENTIVES TO THE PRINCIPALS AND TO OVERCOME OBSTACLES IN THE IMPLEMENTATION OF THE SETTLEMENT

FORM SYNDICATES TO GUARANTEE THE NEGOTIATION PROCESS AND THE FINAL SETTLEMENT

KEEP CHANNELS OF COMMUNICATION OPEN

PRE-NEGOTIATION

COMMENCEMENT OF NEGOTIATIONS

PUT FINANCIAL PACKAGES ON TABLE AS INCENTIVES TO REACH AGREEMENT

PROVIDING SYMMETRICAL GUARANTEES FOR THE PROCESS AND TAILORING THE GUARANTEES WITH THE AGREEMENT OF THE PRINCIPALS

AS CONVENOR / CHAIRMAN OR TO BE IN PROXIMATE SUPPORT

NEGOTIATION

IMPLEMENTATION OF SETTLEMENT

DELIVERING OF AID IN PHASES

POLICING THE IMPLEMENTATION OF THE SETTLEMENT

ENDS HERE

TRANSI

IMPLEMENTATION OF FINAL CONSTITUTION

FURTHER AID AS NECESSARY TO HELP OVERCOME OBSTACLES

ENDS HERE

FINAL

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BIBLIOGRAPHY

Carbonnier, Giles, Conflict, Postwar Rebuilding and the Economy, United Nations Research Institute for Social Development, 1998. Central Intelligence Agency, The World Factbook 2000 -- Sudan, Washington, 2000.

CSIS, U.S. Policy to End Sudan’s War, Report of the CSIS Task Force on U.S.-Sudan Policy, Washington, February 2001.

International Institute for Strategic Studies, The Military Balance 1997-1998, London, 1998.

Landmines Magazine. Sudan: conflict and development, De-mining News from the United Nations, Vol. 2, No. 3, October 1997. OECD/PUMA, Survey on Anti-corruption Measures in Public Sector in OECD Countries, Paris, 1997. Overseas Development Council, Making Peace Work -- Lessons for the International Development Community, ODC Conference Report, 1996. Rothchild, Donald, Managing Ethnic Conflict in Africa: Pressures and Incentives for Co-operation, Brookings Institution Press, 1997. SCOVA, Directory of the NGOs Working in Sudan, Khartoum, July 1997. UNDP, First Country Co-operation Framework for the Sudan: 1997-2000, New York, 23 June 1997. United Nation’s High Commission for Refugees, Provisional Statistics on Refugees and Others of Concern to UNHCR for the year 2000, Geneva, 2001. US State Department. Hidden Killers: 1998: The Global Landmine Crisis, Washington, 20 January 2001.

World Bank, Country Profile -- Sudan, Washington, 2000.

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b. Summary of discussion 1. The essence of the above paper is good and will cause a lot of discussion. The

information, which we received in this consultation, will go the people who will be involved in the final negotiations. Peace-building is a continuos process involving a range of actors. The involvement of middle range actors in peace building can not be over-emphasised because of their experience and first-hand knowledge of many issues. In the Sudan, lots of very influential people have tried to help bring peace to the country but their involvement attracted more media attention than the ongoing conflict. Often these personalities were ‘bigger’ than the negotiators and as result the former became more important than the latter. The Sudanese people have missed many opportunities when the price for peace was lower in the past because they were unwilling to give up what they had. We, in the Sudan, have paid the price of war and we also know that peace has got a price. During the 1971 conference in Khartoum the participants were not ready to pay the price despite the international donors/lenders pledge for financial assistance because the meeting was not facilitated well. In 1983 the price was the cancellation of the ‘September Laws.’

2. Currently, there are three peace initiatives: IGAD, Joint Libyan and Egyptian

Initiative and the NDA Facilitation Effort. There is a consensus amongst Sudanese constituencies that all efforts would have to be merged so that we can create a new all-inclusive body which could negotiate all issues and bring a comprehensive peace to the Sudan. Instead we have the problem of parallel forums with little co-ordination between them. The above is reinforced by a very old saying which goes like this “Too many rats cannot dig a hole.”

3. This paper reinforces our belief that long and meticulous preparations would have to

be put in place before the final negotiations begin. The final negotiations should involve the whole range of Sudanese actors and constituencies because everyone’s views must be considered and implemented in order for a lasting peace to be arrived at. Although the GOS and the SPLA are both party to the Declarations of Principles (DOP) they are not the only parties who need to subscribe to them and as a result other parties such as the NDA should also be more proactively involved in the IGAD process.

4. Who owns the peace process? The peace process is not only owned by the different

leaders but also by everyone living and connected to this conflict. This paper has also reinforced that other constituencies such as the private sector and civil society should not be left out but should be part and parcel of any peace negotiation. This brings up the issue of social justice and leads us to ask ourselves: How do we broaden the base of participation? We should ensure that everyone’s view is taken into consideration and is not left out because every constituency is important. This calls for the creation of an atmosphere through which we could involve everyone and through which we would be able to reach all people.

5. Sometimes incentives can become disincentives for peace, especially, if there are a

number of parallel peace initiatives or financial solutions, which could be bought by

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the highest bidder. Other times parties agree in principle to certain positions only to reject them at a later time without due consideration to their prior actions. Currently, the major issue is whether the GOS and the SPLA want peace? If they decided that they want peace then they should continue to work secretly towards hammering an agreement. In this sphere, the international community has a very important role to play because it could provide positive incentives to all sides.

6. We must also not forget that there are also beneficiaries, both at home and abroad, of

the current civil war who are benefiting resources and privileges from the fighting and they are set to lose them if the conflict ends. Consequently, these people have vested interests in the continuation of the conflict, which would continue to provide them with privileges and material benefits.

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V. Notes on the Way Forward for the Sudan-Peace-Building Programme During the two final sessions the Sudanese and international participants reviewed the future topics for consideration and the way forward for the programme. A. Future Topics for Consideration During their discussions the Sudanese and international participants noted that the federalism and self-determination part of this consultation has not been completed and that the next consultation should incorporate two papers on self-determination. The participants also re-confirmed that the next consultation should cover the following areas: (1) Oil and Gas Sectors in the Sudan, and (2) State and Religion in the Sudan. A number of participants also expressed their view that the next consultation should also aim to incorporate the issue of gold in the Sudan within the oil and gas sector part. After thorough discussion of several topics which could be considered during the fourth consultation the participants decided that that conference should look into: (1) Security and Military Issues in the Sudan, and (2) Internally Displaced Persons The participants agreed that the papers should be prepared by a combination of Sudanese and international contributors. They also forwarded the names of Sudanese and international experts, proposed a number of issues and topics, which could be covered in the next consultation, and pointed out several sources of information relating to Oil and Gas Sectors and Federalism and Self-determination. B. The Way Forward for the Programme During this session the participants agreed that the process has become self-sustainable and that, funding permitting, they should continue to meet every four months. The participants also formed a small interim working group to work on issues relating to Nile Waters (as a pre-requisite for a new international agreement involving the relevant riparian states) and agriculture in the Sudan. This group is made up of a number of Sudanese experts reflecting different regional perspectives and will follow-up the research initiated by this consultation through regular meetings. The participants also noted that the number of participants should be increased. There was a consensus that the number of participants should not be too big nor should it be too small and the programme should ensure that other constituencies that have not been represented are invited. Future consultation are projected for November 2001 and March 2002.

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As previously agreed, the participants re-affirmed that the organisers of this programme could accept funds from all sources as long as the donors do not set up any ties, obligations and influence the consultation process.

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