VZCZCXRO3359
OO RUEHROV RUEHTRO
DE RUEHKH #0634/01 1331436
ZNR UUUUU ZZH
O 131436Z MAY 09
FM AMEMBASSY KHARTOUM
TO RUEHC/SECSTATE WASHDC IMMEDIATE 3765
INFO RUCNIAD/IGAD COLLECTIVE
RUEHGG/UN SECURITY COUNCIL COLLECTIVE
RHMFISS/CJTF HOA

UNCLAS SECTION 01 OF 03 KHARTOUM 000634 
 
DEPT FOR SE GRATION, S/USSES, AF A/S CARSON, AF/E 
NSC FOR MGAVIN 
DEPT PLS PASS USAID FOR AFR/SUDAN 
ADDIS ABABA ALSO FOR USAU 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PREL PGOV PHUM EAID KDEM KPKO AU UNSC SU
SUBJECT: SPLM DRAFT REFERENDUM ACT FOR SOUTHERN SUDAN 
 
REFS:  A. KHARTOUM 240 
   ¶B. KHARTOUM 562 
   ¶C. KHARTOUM 626 
 
¶1. (SBU) SUMMARY: Government of Southern Sudan (GOSS) ministers 
maintain that the SPLM is open to outside assistance in crafting 
pre- and post-2011 referendum scenarios, but the responsibility for 
organizing such an endeavor must fall to Secretary General Pagan 
Amum.  In the view of the GOSS, the NCP continues to undermine SPLM 
efforts to finalize the Referendum Act; the last discussions between 
the two parties on the issue occurred in February 2009.  The SPLM 
draft Referendum Act strictly limits the definition of a Southerner, 
but provides significant space for freedom of expression and 
association, in addition to broad provisions for international 
observation and monitoring at all stages of the Referendum process. 
Voters would be presented with the option of either "secession" or 
"confirmation of Sudan's unity" in January 2011, with full 
implementation of the Referendum's outcome (consolidation or 
dissolution of Sudan's many militaries, relevant legislative 
reforms, preparation for continued con-federal status or statehood) 
complete by July 9, 2011. END SUMMARY. 
 
¶2. (SBU) GOSS  Minister for Legal Affairs and Constitutional 
Development Michael Makuei passed to Acting Consul General Juba the 
SPLM's yet-to-be accepted draft of the Southern Sudan Referendum 
Act.  The latter hand-over  followed  a multi-hour, multi-minister 
dinner discussion in which GOSS contacts maintained that it is the 
SPLM, not the GOSS, which must convene a working group on pre- and 
post- referendum arrangements.  While wholly supportive and 
receptive to outside  assistance in crafting actionable referendum 
scenarios, GOSS Labor Minister Awut Deng Acuil, Cabinet Affairs 
Minister Luka Tombe Monoja, SPLA Affairs Minister Nhial Deng Nhial, 
and Makuei himself emphasized that there has been little internal 
planning to date.  In particular, Labor Minister and Kiir confidante 
Acuil maintained that neither of the two most recent SPLM Political 
Bureau meetings had  focused on the issue due to  growing SPLM 
doubts about NCP commitment to the 2011 Referendum.  She also opined 
that Secretary General Pagan Amum, notorious for his poor attention 
to the party's internal communications, "had not yet sufficiently 
empowered either his national secretariat or his deputies to tackle 
such issues -- or delegated them to 'trusted individuals' within the 
party's National Liberation Council." 
 
¶3. (SBU) Makuei has been the backbone of SPLM negotiating efforts on 
the Referendum Act via the joint SPLM/NCP Executive Committee talks, 
first commissioned by GNU Presidnet Bashir and GOSS President Kiir, 
and then delegated in late 2006 to their deputies:  GNU Vice 
President Ali Osman Taha and GOSS Vice President Riek Machar.  Three 
years after their inception, the "ExecComm Talks" are supported by 
fourteen sub-committees capable of carrying out simultaneous 
negotiations focused on issues ranging from technical-level 
implementation to a political settlement on the crisis in Darfur. 
Vice President Machar presented the SPLM's draft Referendum Act to 
his NCP counterparts in August 2008. 
 
¶4. (SBU) Direct talks broke down in November 2008, following 
Makuei's surprise assertion to his GNU Justice Minister counterpart 
that the SPLM would be willing to assume "appropriate portions of 
Sudanese national debt" as a condition of Southern independence. 
According to the SPLM, the NCP has failed to respond with its 
preconditions for signature, despite its insistence that decisions 
on the division of national assets and liabilities post-2011 be made 
before it will agree to the draft law.  SPLM Secretary General Pagan 
Amum told Acting CG on April 17 that the SPLM would not submit its 
own position until:  1)  it has received the NCP's proposals, 2) it 
is certain that these reflect what the NCP has  agreed upon 
internally in terms of  what it wants.  Makeui maintains that the 
NCP has refused to renew discussions on the SPLM's draft since 
February 2009. 
 
¶5. (U) The following paragraphs summarize main components of the 
draft law.  The forty-seven page document has been sent to S/USSES 
via e-mail. 
 
--- --- --- --- --- --- ---- 
REFERENDUM OPTIONS: ONLY TWO 
--- --- --- --- --- --- ---- 
 
¶5. (SBU) The SPLM's draft "Southern Sudan Referendum Act" calls for 
a referendum to occur in January 2011, with results announced 
three-days after balloting, and full implementation of the CPA's 
referendum arrangements to be completed by July 9, 2011.  (COMMENT: 
We find announcement of results merely three-days after balloting 
potentially problematic, given inclusion of "mobile voting centers" 
for the South's nomadic populations, and the ever-present logistical 
 
KHARTOUM 00000634  002 OF 003 
 
 
and communications challenges of the South.  END COMMENT.) 
 
¶6. (SBU) According to the Act, should Southerners vote to secede, 
referendum arrangements include a review of the Interim Constitution 
of Southern Sudan and the laws of the South, disbanding of the 
nation's Joint Integrated Units, GNU/GOSS "national asset sharing 
along a proportional basis with due consideration to the level of 
development in each part," and calls upon the CPA signatories to 
make the "necessary arrangements to facilitate transition of 
Southern Sudan to a sovereign State." 
 
¶7. (SBU) On the other hand, should voters opt to "confirm the unity 
of the Sudan," the SPLA, SAF, and JIUs would be integrated and 
transformed into a National Army, the Interim National Constitution 
and national and Southern laws would be reviewed "to conform with 
Sudan's new status, and unity would occur "in accordance with the 
provisions of the Comprehensive Peace Agreement."  (NOTE: The draft 
act assumes, but does not specify, that the South's autonomous 
status is to continue in this event.  END NOTE). 
 
--- --- --- --- --- --- -- -- 
"SOUTHERNER" STRICTLY DEFINED 
--- --- --- --- --- --- -- -- 
 
¶8. (SBU) The SPLM's draft strictly limits voting to "Southerners," 
defined as: i) a person or person whose parent/grandparent was/is a 
member of any Southern Sudanese indigenous community existing in 
1956, or ii) whose ancestry can be traced through the agnatic or 
male line to any one of the South's ethnic communities.  It also 
permits voting rights to those with permanent residency in the South 
since 1/1/1956 and any Southern resident 18 years of age or older. 
Proof of "status" can be supported by either documentation, oral 
testimony or a combination of both. .  Local elders or chiefs would 
support oral testimony.  Individuals can   contest the validity of 
"named Southerners" by issuing challenges.  Similarly, those who 
believe they were improperly/unfairly excluded from the voter rolls 
can challenge such exclusions.   Registering at multiple voting 
centers is termed an act of fraud punishable by a $2,500 fine, the 
possibility of six months imprisonment, and the possibility of being 
barred from voting in the referendum. (NOTE: Makeui noted to A/CG 
that language in this section, in addition to curbing SPLM fears 
about a Khartoum-supplied "surge" in "Northerners" into the South at 
the time of voting, is designed to decrease linkage between the 
as-of-yet undefined 1956 North/South border and "residency" within 
Southern Sudan.  It should be noted that GOSS President Kiir has 
offered a different view to interlocutors, frequently linking border 
demarcation and the referendum as an inseparable corollary to each 
other. END NOTE.) 
 
--- --- --- --- --- --- --- --- --- --- --- --- --- --- -- 
ACT MITIGATES FOR CONTINUED POOR HUMAN RIGHTS ENVIRONMENT 
--- --- --- --- --- --- --- --- --- --- --- --- --- --- -- 
 
¶9. (SBU) The Act compensates for present, slow  progress on media 
reform and protection of human rights in Sudan by providing for a 
maximum of freedom of expression and association extending to the 
general public, all media, and "all registered political parties, 
and all organizations and groupings committed to the CPA." 
Infringements on such liberties are categorized as criminal 
offenses, with "acts of sabotage" carrying a $25,000 fine and 
possible five-year prison sentence. The Act further guarantees all 
IGAD member states, UN, AU, Arab League, EU, and other international 
bodies signatory to the CPA the right to observe and monitor all 
aspects of the Referendum Process.  There also are provisions to 
consider applications by other observer groups not mentioned 
specifically by the Act. 
 
--- --- --- --- --- --- --- --- --- --- 
AND ENHANCED GOSS CONTROL OF COMMISSION 
--- --- --- --- --- --- --- --- --- --- 
 
¶10. (SBU) In a clear move away from current, national-level CPA 
commissions, the Act provides for an independent nine-member 
"Southern Sudan Referendum Commission" headquartered in Juba with an 
office in Khartoum.  Its nine-member committee would have a 
GOSS-nominated majority, with three members nominated by the GNU. 
President Bashir would select all members in consultation with First 
Vice President Salva Kiir Mayardit, save for the Chairman, who would 
be "mutually agreed upon" by the Bashir and Kiir. (COMMENT: 
Significantly, the quorum to hold meetings is set at five, meaning 
that one only needs to assemble the committee's "Southern" members 
to deliberate, act on, and implement policy matters.  In contrast to 
the SPLM's position, the NCP would like the Referendum Commission to 
be headquartered in Khartoum and contain a balanced number of 
Northerners and Southerners.  END COMMENT.)  Similarly, the Act 
 
KHARTOUM 00000634  003 OF 003 
 
 
awards significant decisions on financing and financial oversight to 
the GoSS.  Although noting that the Commission's funding would come 
from equal GNU/GOSS contributions, "donations from the Multi-Donor 
Trust Fund, foreign governments, individuals, institutions, and NGOs 
may be accepted by either the Presidency or GOSS President "as the 
case may be, and on the basis of Commission recommendations." 
 
--- --- --- --- --- --- --- --- --- --- ---- 
SCOPE, SPACE FOR APPEAL IS SOUTH-CENTRIC TOO 
--- --- --- --- --- --- --- --- --- --- ---- 
 
¶11. (SBU) The Commission is charged with establishing a "threshold 
of permissible error;" any error beyond the threshold invalidates 
the results and triggers a recount.  (COMMENT:  The language holds 
that all ballot papers cast, even if blank, constitute an expression 
of intent by the voter.  END COMMENT.)  The GNU must fund any 
recount effort within one week if the Commission rules that 
significant fraud occurred or following a court-issued annulment of 
the entire Referendum.  The bill establishes that the courts alone 
have the right to annul results at individual polling centers. 
Jurisdiction over appeals during any part of the Referendum Process 
is limited to the Supreme Court of Southern Sudan and its 
subordinate appeals courts from the Juba-level through the 
county-level. 
 
--- --- 
COMMENT 
--- --- 
 
¶12. (SBU) While the Referendum draft is a principled law, NCP 
objections to it are obvious and, in some ways, understandable.  The 
definition of "Southerner" virtually excludes all of the South's 
Arab merchant class.  Passage of a bill with such progressive, 
sweeping, protections for human rights and civil liberties may serve 
as a precedent for further legislative reform at the national-level, 
something that the NCP has thus far resisted, but likely would be 
welcomed by Northern opposition parties.  From a practical 
viewpoint, holding the Referendum at the beginning of 2011 (only 19 
months from now) and completing the process of either separation or 
unification just six months after that appearwildly ambitious.  At 
the most recent Assessment and Evaluation Commission plenary meeting 
(ref. C), both sides agreed in principle on the need to delink the 
referendum law from post-2011 arrangements.  Both also agreed, in 
principle, on the need to submit the Referendum Law to parliament 
quickly.  Continued international pressure, especially on the NCP, 
will be required to accelerate the process. 
 
FERNANDEZ