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The South Sudan Referendum: Domestic & Regional Security Implications

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The South Sudan Referendum: Domestic & Regional Security Implications
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  The ICC intervention in KenaA challenge of delivering justice and peace The International Criminal Court (ICC), on 15th December 2010, named sixindividuals 1 who are suspected to have had a major responsibility in the planningand execution o crimes against humanity in the Kenyan post election violencein 2007/2008. In making the announcement, the ICC Prosecutor Louis MorenoOcampo was emphatic that: ”These were not just crimes against innocent Kenyans...They were crimes against humanity as a whole. By breaking the cycle o impunityor massive crimes, victims and their amilies can have justice. And Kenyans canpave the way to peaceul elections in 2012.” 2  Prior to this announcement President Mwai Kibaki o Kenya had also announcedon 13th December 2010 that the government will establish a local tribunal andlaunch its own investigation, urther raising questions on the panic response or aninitiative that should taken place much earlier.Previous debates have ocused on whether Kenya should have a local tribunal oropt or the ICC; whether the country should go or the punishment o crimes againsthumanity or peace and reconciliation. With regard to the latter, the two are not nec-essarily mutually exclusive, and any clear separation poses a alse polarization. Thechallenge or the implementation o the demands o both justice and peace lies inthe sequencing and the delicate process o achieving the maximum good. Similarly,local tribunals do not necessarily exclude ICC proceedings. The standard procedurehas been that the local tribunals adopt a hybrid system, and are composed o bothlocal and international judges, and apply both international and domestic laws. Suchtribunals would normally have primacy over local courts.In this article, I argue that the external ICC intervention to Kenyan conict cannothave a long term impact i it is not coupled with the government commitment to endimpunity at the level o violence, corruption and patronized politics. In my analysisI propose the institution o  social-political harmonization mechanisms o justice andpeace between the ICC and government.  Analses q The ICC intervention in KenaA challenge of delivering justice and peace q The South Sudan referendumDomestic & regional securit implications q Anxieties and hopes in the Sudan News and events Resources    H   o   r   n    o   f   A   f   r   i   c   A    B   u   l   l   e   t   i   n 1 Horn of AfricA Bulletin AnAlyses • context • connections DECEMBER 2010     H   o   r   n    o   f   A   f   r   i   c   A    B   u   l   l   e   t   i   n 2 The background of the ICC intervention The ICC is a recent organ that was ounded in 2002 ater the signing o the RomeStatute in July 1998. Kenya ratifed the Statute on 15th March 2005, and it enteredinto orce on 1st June 2005. The ounding o the ICC was built on the previous ad hoc tribunals established by the UN Security Council resolutions in the 1990s,namely, The International Criminal Tribunal or the Former Yugoslavia (ICTY) andthe International Criminal Tribunal or Rwanda (ICTR). Other ad hoc tribunals havebeen ormed or are in the process o being ormed in Sierra Leone, Liberia, Cam-bodia, Aghanistan and East Timor. Coupled with the ICC is the  Responsibility toProtect  (R2P) doctrine, which was adopted by the UN in 2005. The R2P asserts thatnations have the responsibility to protect their citizens and prosecute those responsi-ble or mass crimes within their borders, ailure to which the international commu-nity would intervene.The dispute over 2007 presidential election results led to sporadic ethnic andpolitical violence, causing deaths o 1,133 people. The situation generated a twomonth political crisis that the country has never known since independence. Hithertoconsidered to be a peaceul nation in an unstable region, Kenya’s post election vio-lence exposed the historical injustices, ethnicized politics and politicized ethnicity,economic disparities and patronized institutions o governance. The peace talks be-tween the disputants o the elections represented by Mwai Kibaki, the president andleader o Party o National Unity (PNU), and the opposition leader Raila Odinga’sOrange Democratic Movement (ODM) led to a power sharing agreement.Beside the long term institutional reorms, the agreement recommended thesetting up o a commission o inquiry, ofcially reerred to as The Commission o Inquiry on Post Election Violence (CIPEV), led by Judge Philip Waki. In October2008 the Commission released its fndings, ater three months o investigation, andrecommended the creation o a special tribunal that would “seek accountabilityagainst persons bearing the greatest responsibility or crimes, particularly crimesagainst humanity, relating to the 2007 General Elections in Kenya.” 3  The fndings show that both sides o the political divide instigated the violencethrough the unding and incitement o their supporters. Judge Waki delivered anenvelope with ten names o politicians and business people suspected to have hadhigh responsibility in acilitating the post election violence. Kenya was given theoption o setting up a local tribunal or the envelope would be delivered to ICC. OnJuly 9th Kof Annan the Chairman o the AU Panel o Eminent Arican Personalities,delivered the sealed envelope and supporting materials to the Prosecutor o the Inter-national Criminal Court (ICC), Luis Moreno Ocampo, who subsequently named thesuspects on 15 December 2010. ICC vs. local justice mechanisms While opinions have been divided on whether to opt or a local tribunal or the ICC, theKenyan cabinet compromised or an option to use the Kenyan courts. However, a mo-tion in Parliament in support o this position was deeated and the ICC option carriedthe day. It is important to note that the trials at the International Criminal Court (ICC)at The Hague do not necessarily preclude the ormation o a local tribunal. They canboth run concurrently, even though it would be more eective to have a local tribunalwhere victims can engage their perpetrators, and the nation can reect on a nationalhealing process. In his press conerence on 15th December 2010, Ocampo, the ICCProsecutor, clarifed that part o the reason ICC moved to initiate investigations on thepost election violence was that there were no court proceedings taking place in Kenya. International mechanisms of justice: What can the deliver? The principle question that we should pose here is: What mechanisms should be put in place to end impunity and ensure a more sustainable peace in Kenya? In otherwords, the choice or social-political change does not lie in the external structures     H   o   r   n    o   f   A   f   r   i   c   A    B   u   l   l   e   t   i   n 3 o international law but on the political will and channels o dialogue or change.This would imply seeking ways o punishing the oenders, restoring the victimsand reconciling the nation. This process could vary rom retributive legal processes,restorative reconciliation and reparation, to a combination o both through hybridmechanisms. Besides, addressing other orms o impunity such as corruption,insecurity and patronized politics are undamental to the stability o the country.Institutional reorms in the executive, judiciary and legislative sectors are crucial toaddressing these impunities.According to Article 17 o the ICC’s Rome Statute, a state should only resort toICC i it does not have the capacity to try the cases. However, the ICC Prosecutoris aorded  proprio motu (Latin or, “on his own impulse”) power, which authorizeshim to initiate an investigation without the recommendation o the state. The majorconcern is whether the international law, which has no enorcement mechanisms,would be eective in addressing the post election crimes in Kenya. A lot will dependon the cooperation and commitment o the government o the day.The previous ad hoc tribunals had two major characteristics: they took placein the post-conict settings, and were executed by new government regimes. Thismeant that the investigations were carried out on individuals who enjoyed neithermilitary nor political protection. As such, the impression so ar has been that theinternational law in criminal justice has been executed as a victor’s peace , much tothe expense o the losers.However, with regard to the ICC, our out o the frst fve cases are in Aricancountries. In act, all the 22 individuals wanted or crimes against humanity arerom Arica: Uganda (4), Darur (6), DR Congo (5), Central Arica Republic (1) andKenya (6). Out o these, 16 individuals have been indicted in the frst our coun-tries. 4 This has raised questions on whether the ICC has been battling or relevanceby ocusing on Arica as a sot target. There are other investigations under way inColombia, Aghanistan and Georgia.The most controversial o all the ICC warrants o arrest has been the one againstPresident Omar El Bashir o Sudan who is being charged or “fve counts o crimesagainst humanity... two counts o war crimes (and)...three counts o genocide” 5 com-mitted in Darur. This is the frst time that a sitting head o state has been interdictedor crimes against humanity. The Arican Union has protested against this warrantarguing that it sets a wrong precedence against sitting heads o state, and imposesthe western cosmopolitan and legalistic conceptualizations o governance on sover-eign nations in Arica. Besides, given the coming reerendum in Sudan in January2011, creating a avourable climate o dialogue and understanding is crucial or thestability o the country.Articles 27 and 28 o Rome Statute deny immunity to any individuals, and holdthose in positions o power to be responsible or crimes committed under theirwatch, by commission or omission. However, given that ICC has no power to ar-rest and thus relies on the good will o the signatory members, implementing suchan article on the Kenyan suspects, some o whom are still in government and holdpolitical power, could turn out to be an enormous task. What is the wa forward? The question o whether justice should be pursued at all cost bears a heavy moralresponsibility on the leaders o the nation and international community. The chal-lenge or ICC and international law mechanisms is to institute a air legal processthat takes into account the rights o the accused and the reparation demands o thevictims. The ocus and attention has tended to be on the prosecution o crimes at theexpense o the victims o the crimes. The passionate drive against impunity ought tobe met with the same measure o justice or the victims o the crimes. Commitmentto institutional reorms and implementation o the new constitution as well as endingcorruption, insecurity and patronized politics are crucially important. The orming     H   o   r   n    o   f   A   f   r   i   c   A    B   u   l   l   e   t   i   n 4 o the local tribunals will be aced with the challenge o instituting an internationalcriminal law regime based on diverse procedures and personnel rom dierentcountries. The process or justice has to seek to achieve peace, and similarly, a peaceprocess has to take into account correction o injustices. Elias Omondi Opongo  , SJ, is currently a PhD research student at University o  Bradord, U.K. and the ormer director o Jesuit Hakimani Centre, Nairobi. He canbe reached at    eliasomondi@gmail.com 1 The six named are: Deputy Prime Minister and Finance minister Uhuru Kenyatta, suspendededucation minister William Ruto, Industrialization minister Henry Kosgey, radio executive JoshuaArap Sang, secretary to the cabinet Francis Kirimi Muthaura and ormer police chie MohammedHussein Ali.2 INTERNATIONAL CRIMINAL COURT (15 Dec. 2010) Kenya’s post election violence: ICCProsecutor presents cases against six individuals or crimes against humanity http://www.icc-cpi.int/ NR/exeres/BA2041D8-3F30-4531-8850-431B5B2F4416.htm (Accessed 15th Dec. 2010). ICC-OTP-20101215-PR6153 MAC DAID, C. (2009) Kenya’s Post-Election Violence and the International Criminal Court http:// www.internationallawbureau.com/blog/?p=398 (Accessed 10 Dec. 2010).4 ICC, “Situation and Cases” http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Cases/ (cited 16Dec 2010)5 ICC, “Case: The Prosecutor v. Omar Hassan Ahmad Al Bashir” http://www.icc-cpi.int/menus/icc/ situations%20and%20cases/situations/situation%20icc%200205/related%20cases/icc02050109/ icc02050109?lan=en-GB (cited 17 December 2010).  References 1.BRANCH, A. (2004) International Justice, Local Injustice: The InternationalCriminal Court in Northern Uganda.  Dissent  , (summer), 22-26.2.ICC, “Case: The Prosecutor v. Omar Hassan Ahmad Al Bashir” http://www.icc-cpi.int/menus/icc/situations%20and%20cases/situations/situation%20icc%200205/ related%20cases/icc02050109/icc02050109?lan=en-GB (cited 17 December 2010).3.ICC, “Situation and Cases”: http://www.icc-cpi.int/Menus/ICC/ Situations+and+Cases/Cases/ (cited 16 Dec 2010)4.MAC DAID, C. (2009) Kenya’s Post-Election Violence and the InternationalCriminal Court http://www.internationallawbureau.com/blog/?p=398 (Accessed 10Dec. 2010)5.INTERNATIONAL CRIMINAL COURT (15 Dec. 2010) Kenya’s post electionviolence: ICC Prosecutor presents cases against six individuals or crimes againsthumanity http://www.icc-cpi.int/NR/exeres/BA2041D8-3F30-4531-8850-431B5B2F4416.htm (Accessed 15th Dec. 2010). ICC-OTP-20101215-PR615n. The South Sudan referendumDomestic & regional securit implications Background The Comprehensive Peace Agreement (CPA), signed on 9 January 2005, ended22 years o brutal war, waged rom 1955 to 1972, and again rom 1983 until 2005,between the northern National Congress Party (NCP) and the southern SudanesePeople’s Liberation Movement (SPLM). The CPA, which is based upon the Declara-tion o Principles (DOP) sponsored by IGAD and its partners, recognized Sudan’sracial, ethnic, religious and cultural diversity, right to sel-determination, politicaland social equality, secularism, and air sharing o wealth.The CPA provided or a six-year interim period, during which, democratic elec-tions must be conducted, an interim national unity government- with a power-shar-     H   o   r   n    o   f   A   f   r   i   c   A    B   u   l   l   e   t   i   n 5 ing scheme that allocated 52, 28, 14, and 6 percent to the NCP, SPLM, oppositionparties in the north, and opposition parties in the south respectively-, a reerendumin the newly established autonomous South Sudan administration, alongside equalsharing o oil revenues between North and South, must be made.Most importantly, the CPA required the reerendum in which only the peoplerom the South will participate to decide whether to secede or remain united with theNorth to take place at the end o the six-year interim period. Evaluation of the CPA’s implementation Signifcant agreements o the CPA include demarcation o the North/South border,establishment o the commissions or the upcoming South Sudan and Abyei reer-enda, due to be held in January, the demobilization o the NCP’s proxy militias inSouth Sudan, and popular consultations in Blue Nile and South Kordoan. Althoughthe fnal year o the six-year interim period the CPA authorized is just about to end,little signifcant progress has been made in implementing several o its critical com-ponents. Notably the demobilization o the NCP’s proxy militias in South Sudan, thedemarcation o the North/South border, especially in and around the oil rich adjacentareas, the transparent disbursement o oil revenues, and establishment o the reeren-dum commission-- are still outstanding.Even with respect to elements o the CPA that have already been implemented,the outcomes have largely remained to be debatable. Cases in point are the censusand the April 2010 national elections. 1 The Government o South Sudan (GoSS),South Kordoan, and the Justice and Equality Movement (JEM) have rejected thecensus, claiming it has been manipulated to over-represent NCP constituencies,while the SPLM alleges the April national elections to have been rigged.That said, it was encouraging to have witnessed that, by the end o December2009, the Sudanese parliament adopted a major legislation that sets the stage or thereerendum on the independence o Southern Sudan which provides that an independ-ent Southern Sudan will be recognized i it is approved by 51% o voters at the 2011reerendum, i there is a 60% turn out o voters. Taking cognizance o the impact thecivil war had on the population that was orced to relocate to neighboring countries,the new legislation incorporated “a contested provision”, demanded by Southern poli-ticians, which requires Diaspora southerners to cast their ballots in the reerendum.The provision stipulates that Southern Sudanese living outside the south, andborn beore January 1, 1956, the date o Sudan’s independence, must vote in thesouth. But those living outside o the south and born ater that date, would be ableto vote in their place o residence, whether in the north, south or abroad. 2 Currently,three million southerners have just undergone registration to vote in January onwhether they want to remain part o the Sudan or secede. 3 Post CPA peace strategies, sstems and mechanisms Although southerners are expected to vote in the reerendum on independence, comeJanuary 2011, no one seems certain about what will happen beore, during, or aterthe reerendum. Analyses that the South will overwhelmingly vote or secessionabound, nonetheless. 4 Whatever the fnal outcome would be, the leaderships in Northand South should keep their attentions and capacity ocused on ensuring respectto their avowed commitment to accept the outcome o the impending reerendum,rather than on speculations about the probable result o the impending reerendum.What is more, both o the parties to the CPA need to prepare themselves in advanceor peaceul resolution o post-reerendum disputes as long as such disputes alloutside o the purview o the CPA.In this connection, the international community has to see to it that both the NCPand SPLM live upto their promises in respecting the popular will as expressed byvotes in a ree and air reerendum as well as that the latter realize the need to settlepost-reerendum disputes in a peaceul manner. Since the mandate o the CPA will
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