By Dak Buoth Riek-Gaak,
July 1, 2022 — I wish you a happy new month, July. This month is not only new but also unique in our national calendar due to its historical attachment or connection with our liberation struggle for self-rule.
On 9th July, 2011 South Sudan gained her independence from Sudan. As a result, the United Nations General Assembly and African Union accepted and admitted South Sudan as its 54th and 193rd member respectively.
By the time South Sudan became independent, the Africa Union was under the chairmanship of the incumbent Equatorial Guinea President, Teodoro Obiang Nguema, who first assumed office as a head of his country on 3rd August, 1979. Now President Obiang is Africa’s longest serving head of state followed by Cameroon’s Paul Biya. Mr. Ban Ki Moon was United Nations Secretary General at the time.
Soon after undergoing these legal processes, South Sudan was ultimately granted its full status as a sovereign country in broad daylight. This is after South Sudan met the criteria for nationhood as prescribed in the Montevideo convention 1933.
Just like in the United Nations Declaration of Human Rights (UNDHR) which in article 1 stipulates that, ‘‘we are born free and equal’’, countries under the Montevideo convention Article 4 reads that ‘‘States are juristically equal, enjoy the same right, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.’’
In a nutshell, the manner in which human beings are considered and treated as free and equal in UDHR is the same way states are taken and treated in the Montevideo convention. In other words, human rights are contained in UDHR while rights of individual countries are provided for in the Montevideo convention.
Article 1 of the Montevideo convention gives four criteria that South Sudan meets prior to obtaining its sovereignty. There are four criteria for nationhood namely, the permanent population, defined territory, government and capacity to enter into relations with other states. Below are the explanations on how South Sudan met these criteria prior to achieving her independence. First, the population of South Sudan was intact. It comprised the sixty four African tribes that lived and occupied their ancestral land up to date. Second is the defined territory. South Sudan had a defined territory as was demarcated by the British colonial administration on 1st January 1956. Third is the functional government.
Prior to the coming and forceful occupation by the foreign forces, South Sudanese were governing themselves through the council of elders which applies customary law to administer justice, law and order. When British was later exhausted and pushed out, the region of Southern Sudan was left under the leadership of Anyanya 1 rebel movement led by Gen. Joseph Lagu. And after the latter was absorbed into the system following the 1972 Addis Ababa Agreement brokered by King Haile Selassie, Anyanya 2 took charge of Southern Sudan until when it was overthrown by SPLM/SPLMA after the killing of its leader, Samuel Gai Tut.
Fourth, the rebel government in the Southern Sudan was having the legal capacity to enter into many relations with foreign states.
I fondly remember in friendly countries like Kenya, we used to carry SPLM membership cards which we used as Identity cards for travel movements and other essential transactions. Actually, before the D-day of 9 July, 2011, many financial institutions and international agencies already set foot in Southern Sudan.
However, meeting these criteria is not a panacea for attaining independence. The revolutionary movements which are out seeking independence must strive further to get recognition from other sovereign states. In international law, if a region/s has not earned the recognition of other members of the United Nations, it cannot become independent. That’s the reason why Somaliland, which I believe has obtained the aforementioned criteria, is yet to be declared independent under the UN system.
Relatively, the Jewish state of Israel is yet to become a bona fide member of the United Nations though it has been accorded an observer status at UN. The same applies to Palestine which is not yet independent.
The global legal system does not permit a state to make a unilateral declaration for independence. In 1978, Nigeria’s Biafra state declared itself independence, but it was not successful despite being recognized by more than five African countries including Tanzania included. From the look of things now, the Biafra situation is likely to repeat itself in the Russian speaking regions of Donetsk and Luhansk that have declared themselves independence from Ukraine. I believe the sole recognition of these two Ukrainian regions by Russia is not sufficient despite the latter being one of the world’s superior powers. As always said, law is a law and we must at some point stick to it whether we like it or not.
Nonetheless, Thomas Aquinas, one of the proponents of Natural Law said and I quote “lex iniustanonest lex meanings” an unjust law is not law. Although I stated the position of the law or what the law says with regard to states’ independence, I do not agree in totality with the international law, and especially the part where it says a state must be recognized by another member state.
I’m of the view that law should just stick to the point that each state must meet those criteria. Once the state has obtained these criteria as set out in the Montevideo convention then it should be granted its rightful nationhood straight away. I hold that there is no need for a state seeking independence to be taken around looking for recognition from member states that are not willing for one reason or another.
In this regard, I think the problem between Israel and Palestine should be resolved by granting them their respective statehoods once and for all. Relatively, the state of Somaliland is qualified to be accorded its statehood because it has met the four legal criteria of statehood.
Back to the South Sudan case, a month can pass without necessarily being noticed except July. When this month approaches, especially 9th July, one should do something unique to himself or someone else whom he knows has contributed significantly in attaining our country’s independence after more than five decades of struggle for independence. Finally, another month which comes close to July in terms of historical significance is the month of August.
On 28th August 1991, three leaders of the Nasir Faction namely Dr. Riek Machar, Dr. Lam Akol and Gen. Koang Chuol Kulang broke away from the SPLM/SPLA to wage a new combat for a self- determination which we later achieved on 9th July, 2011. Before then, the SPLM/SPLA under Dr. John Garang was bitterly clamoring for a united, secular and a democratic Sudan.
In 2002, when Dr. John Garang and Dr. Riek Machar reconciled and reunited in Nairobi after years of anguish and antagonism, they agreed on the right to self-determination as an issue or point of negotiation against Omar Bashir’s regime. In Machakos protocol, Bashir’s NCP agreed and assented to the demand for the right of self-determination for the people of Southern Sudan, to be put to vote in the referendum that brings our country’s independence to fruition on 9th July 2011.
The Writer is the Chairman of Liech Community Association in Kenya, the views expressed here are his own, and he can be reached for comments via eligdakb@yahoo.com
