By Dak Buoth Riek Gaak
9 December 2024. On 29 November 2024, Vice President Taban Deng Gai hold the Sudan by the Horns legitimately. During the just concluded 8th Governors Forum held in Juba, Taban stated that there is no govt in the Sudan; and thus, he called on South Sudan govt to take necessary action in order to address the plights of Abyei citizens.
In part, Taban avers that ‘‘We have a very big problem in Abyei. The vacuum is very clear. South Sudanese must know this. The people of Ngok are South Sudanese, and we can’t allow them to suffer the way they are suffering. Right now, there is no government in Khartoum, and they are left that way.”
In the wake of this bold statement, South Sudan found itself in a panicking mood that compelled the Presidential Affairs Minister to convene a press conference purposely to deny these utterances. On 2 December 2024, Presidential Affairs Minister Ambassador Chol Ajongo in his televised address said the views accorded and attributed to Vice President Taban Deng are his own, and that they do not reflect the policy and the position of South Sudan Govt, adding that South Sudan govt does respect the territorial Integrity and the legitimate govt of the Sudan. Minister Ajongo being a senior Lawyer and renowned diplomat carefully opted to be politically and diplomatically smart because sometimes politics takes precedence of the rule of law.
As matter of fact, my main concerns and interests in this exchange was the used of old-fashioned principles of international laws such as the sovereignty and territorial integrity to disown Taban’s.
The traditional principles of Sovereignty, territorial integrity and non-interference are drawn from the maxim in England that says ‘‘The King cannot do wrong.’’ Hence, they are immune and place above the law. For a long time now, these theories of sovereignty and non-interference had been used to fend-off leaders from criticisms over massacres and mass killings in their own countries.
It is for this salient reason that today most constitutions have the provisions which protects the Presidents or Prime ministers from appearing in local courts for any civil or criminal proceedings while still in office. For example, chapter nine Article 143 of the Kenya constitution reads that ‘‘criminal proceedings shall not be instituted against the President or a person performing the function of that office during their tenure of office.’’
In 1930, Mexican Foreign Minister, Genera Estrada introduced a policy which later became known as Estrada doctrine. It was adopted in supported of sovereignty, territorial integrity and non-interference principles of international law. The Estrada doctrine argued and asserted that an independent states like South Sudan should keep away from uttering an opinion that either recognizes or denounces a foreign government.
Under the Estrada rule, states like South Sudan can only express her opinion or rejection of a foreign regime by way of withdrawing or recalling its diplomatic mission. The rationale for discouraging states from giving opinions on foreign government is to avoid influencing the internal affairs of other countries.
For instance, on 9 May 2024, during the launch of Tumaini initiative, the Former Presidential Envoy and erstwhile Chairperson of South Sudan Government delegation Amb. Albino Mathem Ayuel made an unhealthy and undiplomatic statement by applauding the Kenyan President Dr. William Ruto as a ‘blessing to Kenya.’ Unfortunately, he said this that the height of Gen. Z protest against Ruto’s Kenya Kwanza Govt. If anything, Ambassador Albino could have said that President Ruto was a blessing to South Sudan by virtue of his efforts to restore Peace through the recently relaunched Tumaini peace initiative.
Ignorance of the Law
The ignorance of the law is not a defense. The fact that the above-mentioned principles are outdated mean there are new and modern legal theories which are crafted to replace them. Unfortunately, the act of dismissing and disowning the Vice President Taban Deng’s statement based on the aforementioned principles indicates that South Sudan govt is ignorance of the law cited herein.
Inter-dependence of States
In 1930, states ratified the Montevideo convention which provides criteria for statehood one of which is the capacity to exist and enter into relation with other states. In as much as the states are granted sovereignty and territorial integrity over their jurisdictions, they are however prohibited from engaging in activities that jeopardize the lives and interests of other states.
Ndoria Gicheru, in his book entitled ‘Demise and Rebirth of Parliament, opined that sovereign states have no absolute power, for they are bound by the rules of customary international human rights. The second world war reminded us of our cardinal responsibility to not only respect but prioritize and promote Human Rights principle which runs from the preamble up to article 1 of the UN Charter. In this case at hand, the neighboring state of Sudan under Al-Burhan Leadership is threatening the interests of South Sudan through its continuous violation of Human Rights in Abyei region and other parts of the Sudan.
Principle of non-indifference
In 2002, when the Organization of African Union (OAU) changed to Africa Union (AU), member states shifted and changed not just the name but also the old legal system founded on states’ sovereignty. In Africa Union Agenda 2063 provided in the Constitutive Act of the African Union (CAAU), states’ objectives and mandates include but not limited to the promotion of democracy and good governance, the rule of law, the protection of human rights, and the promotion of peace, security and stability in Africa.
In light of this, AU member states migrated from the theory of sovereignty and non-interference to new Pan African principle of ‘non-indifference.’ This new principle became not just a policy but the law. In strict adherence to this law, any member state that failed to abide by the aforementioned AU objectives risked facing fatal military consequences.
In Article 4 subsection (h) (j) of the Constitutive Act 2003, it gives Africa Union a right to intervene in the event of grave cases namely war crimes, genocide and crimes against Humanity. This AU framework accords the right to member state to apply and request military Intervention from Africa Union to restore Peace and security. The AU quickly adopted the principle of non-indifference after it was widely blamed for maintaining silence during the dark eras of President General Idi Amin (1928-2003) and President General Jean Bedel Bokassa (1921-1996) of Uganda and Central African Republic respectively.
From the look of things, the state of Sudan has met the grounds for AU to intervene, because there is already Darfur genocide and war taking place under the reign of the de fact President General Abdel Fattah Al-Burhan. Apart from the continuation of human rights violations, President Al-Burhan’s regime came to power through unconstitutional means contrary to the AU Principle of democracy and good governance.
Finally, instead of South Sudan fearing and running away from her shadow and burying her head in the sand, by disowning the factual statement of vice President Taban Deng Gai, it’s should just go ahead to apply and request the AU to intervene with a view to rescue African citizens of Abyei, Nuba Mountain and Blue Nile who lives like stateless in their ancestral and indigenous homeland, Sudan.
The Writer is the National Chairperson of Legal and constitutional Affairs of the South Sudan People’s Movement (SSPM); he can be reached for comments via eligodakb@yahoo.com
