Identity and citizenship

A distinction should always be drawn between one's identity and citizenship. Identity can be shared by people belonging to several states while citizenship is shared only by those belonging to one state. In other words, people who share an identity can be spread across several states and equally one state can have people with several different identities living within its borders. An obvious example is the Arabic identity shared by several Arabic speaking and generally Muslim nations in the Middle East and North Africa, who are connected with one history and culture but have different nationalities. Nationality therefore expresses a legal relationship between an individual and a state. In this context, the term citizenship is usually used to give the same meaning as nationality.Footnote ¹

The modern concept of a state connects enjoyment of some civil rights and freedoms, and subjection to certain duties, to being a member of a state. It is that membership which makes a man or a woman eligible for certain civil rights and freedoms. An example is the right to vote which is only exercised by citizens although there are certain states, such as the United Kingdom, that allow citizens of other states to vote.Footnote ² Although people do not differ on this principle, they do differ on the criteria used to determine whether someone is or can be affiliated with a certain state, ie they follow inconsistent rules to determine who is a citizen of a particular state. The reason why they differ is that international law, before the emergence of international human rights norms, used to leave this area to be covered by domestic constitutions and laws. There are fundamental objective legal rules that are adopted by states to give their nationalities to persons, but arbitrary rules are also wide-spread and followed to nationalize and denationalize individuals mostly for political reasons. This normally happens in times of problems and crises, when laws and legislation are used by the powerful as instruments to weaken rivals and achieve political objectives. In other situations, ethnic, religious or cultural bigotry or gender discrimination can make states lay down legal rules and principles that deliberately exclude people who do not belong to a certain group from holding citizenship of a state.

In many areas around the world, the inability or failure to appreciate or follow this nuance between the concept of nationality and that of identity has caused serious political and security problems. Sudan, where there are Arab-African and North-South identity complexities, is an obvious example. Even before the country's independence in 1956, the Sudanese started fighting because the South felt the policies of the various central governments were exclusionary in terms of identity, as they had Islamic and Arabic tendencies. Initially, it was thought by many inside and outside Sudan that the war was over political and economic power only, but the renowned Sudanese diplomat and academic, Francis Deng, was the first to draw the attention of the Sudanese to the fact that the problem is one of identities and visions: that there is a conflict between the Southern Sudanese African identity and the Northern Sudanese Arab-Muslim identity.Footnote ³ Southern Sudanese in Sudan feel that it is not nationality that determines their status in their country, but identity.

In spite of the controversy, disagreement and wars over the identity of the Sudanese nation, there is no debate or dispute at all, at least in theory, over who is classified as Sudanese. This is indeed something that all leaders of the Sudanese political and military organizations should be credited for. As Alex de Waal eloquently puts it: “[d]espite all the internal wars which the Sudanese people have fought in their search for a collective identity for their nation, and the fact that some ideologies have been inherently discriminatory, no political party has ever mobilized to try to exclude another group from being Sudanese altogether. Sudanese do not disagree on the fact that they are all Sudanese”.Footnote ⁴

However, this does not mean that all nationality rules in Sudan are consistent with international human rights conventions. Sudan's Interim National Constitution of 2005 (Interim National Constitution)Footnote ⁵ and nationality laws clearly define a citizen of Sudan. Before discussing the rules provided for in that constitution, one should mention that, before 1948, a Sudanese was any person who was subject to Sudanese jurisdiction.Footnote ⁶

Federal constitution and laws

The first nationality law in Sudan's legal history was the Sudan Nationality Act 1957 (1957 Act), which was passed one year after the formal declaration of Sudan's independence and amended in 1974.Footnote ⁷ It remained effective until the Sudan Nationality Act 1993 (1993 Act) was passed as a provisional decree.Footnote ⁸ One of the major changes that the 1993 Act made to the previous law was the removal of adopted children from the definition of “children” for the purposes of nationality acquisition.Footnote ⁹ This change followed the tendency of the government to apply Islamic legal principles (Sharia laws) which prohibit adoption as it is practised in the world today.Footnote ¹⁰ Another amendment was that the 1993 Act provided for the grant of nationality to children of unknown parents. In 1994, the Sudan Nationality Act 1994 (1994 Act) was issued, also as a provisional decree. It was later passed into law by the National Assembly on 2 May 1994 and amended in 2005 (the Sudan Nationality Act).Footnote ¹¹ The 1998 constitution purported to remove gender discrimination, but the 1994 Act was not amended until the Comprehensive Peace Agreement (CPA) was concluded and the Interim National Constitution was adopted. The basic provisions of the 1994 Act and those of the 2005 amendment will be critiqued in detail later in this article.

Consistent with the modern concept of a state and universal human rights principles, the Interim National Constitution illustrates, inter alia, that nationality is the determinant of rights and duties. It also gives women the right to pass their nationalities to their children. Article 7 of the Interim National Constitution states:

This article essentially repeats article 22 of the repealed 1998 constitution in relation to nationality by descent; however, whereas article 22 provided for an explicit right to naturalize based on residence in Sudan, the Interim National Constitution simply delegates regulation of naturalization to other laws.

Article 7(2) provides for the right of every person born to a Sudanese father or mother to have Sudanese citizenship, whether or not they were born on Sudanese soil. This reflects the principle known as jus sanguinis [right of blood]. Historically, this principle often had an ethnic or racial component, whereby citizenship was based on membership of the dominant ethnic, racial or religious group in a country. In Africa, several countries, notably the Democratic Republic of the Congo (DRC), Liberia, Malawi, Sierra Leone and Uganda, still include an explicitly racial or ethnic basis for citizenship.Footnote ¹² However, in most African countries today, as in most (though not all) other modern legal systems, the jus sanguinis principle has lost its ethnic basis: citizenship is granted to those who are born to a parent who is a citizen including, for example, a parent who has acquired citizenship by naturalization and may not be of the same ethnicity, etc, as the dominant group. The Sudanese constitutions of 1998 and 2005 follow this more modern usage.

The provisions of article 7 do not, however, provide for one of the common ways of acquiring nationality, that is, acquisition of nationality based on birth on the territory, also known as jus soli [law of soil] in public international law.Footnote ¹³ As we will see, however, the Sudan Nationality Act contains provisions which allow the acquisition of nationality based on birth in Sudan in some circumstances. The jus soli principle can be traced back to at least 1608 in English common law, when in Calvin's case the court decided that “a person's status was vested at birth, and based upon place of birth - a person born within the king's dominion owed allegiance to the sovereign, and in turn, was entitled to the king's protection”.Footnote ¹⁴ The USA adopted the same principle, as noted in the Rhodes case of 1866 by US Supreme Court Justice Noah Haynes Swayne: “[a]ll persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country … since as before the [American] Revolution”.Footnote ¹⁵ The USA retains the principle in its pure form today, whereas the United Kingdom has significantly modified it so that birth on British soil does not guarantee British nationality. Usually, there is an exception for the children of representatives of diplomatic missions born in the countries where their parents serve.Footnote ¹⁶

The Interim Constitution of Southern Sudan 2005 (Interim Southern Constitution) defines who a Southern Sudanese is for the purposes of the referendum on self-determination, not for the purposes of acquiring nationality: Southern Sudan is not yet an independent state, and nationality and immigration issues are still organized by federal laws in Sudan and Southern Sudan. Article 9(2) of that constitution states:

The Interim Southern Constitution also repeats paragraphs (1) and (2) of article 7 of the Interim National Constitution verbatim. The only difference is that the former makes a cosmetic change by reversing the two paragraphs.Footnote ¹⁷

Article 9(2) of the Interim Southern Constitution was repeated in the South Sudan Referendum Act (Referendum Act), which will be discussed later in this article. The insertion of the provisions of article 9(2) in the Referendum Act sparked huge debate in the Sudanese Parliament between the National Congress Party (NCP) members who wanted a much broader definition, on the one hand, and the Sudan Peoples' Liberation Movement (SPLM) members, who wanted this definition of a Southern Sudan, on the other hand. This was animated by Southern fears of Northerners impacting the vote.

For the whole of Sudan, the effective nationality law today is the Sudan Nationality Act.Footnote ¹⁸ The 2005 amendment implemented the terms of the CPA and provided details to supplement the Interim National Constitution. Many of the 1994 Act's provisions contradicted article 7 of the Interim National Constitution (and indeed article 22 of the 1998 constitution). Unfortunately, despite the 2005 amendment, the 1994 Act still contains discriminatory provisions, for instance, regarding gender.

Acquisition of Sudanese nationality by birth is organized by sections 4 and 5 of the 1994 Act (as amended). These two sections, which are titled “definition of a Sudanese by birth” and “nationality of deserted infants” respectively, determine the situations where a person could be considered Sudanese by birth:

In addition, sub-section 7(1)(d) of the 1994 Act reduced the time required for a Sudanese resident to become a naturalized Sudanese citizen from ten years, as provided in the 1957 Act (as amended in 1974),Footnote ¹⁹ to five years. The provisions of this sub-section are in line with the more generous legislation elsewhere on the African continent, and make it much easier for foreigners who reside in Sudan to obtain Sudanese nationality.

The 1994 Act still has no provision for children born in Sudan who would otherwise be stateless to obtain Sudanese nationality, in violation of international norms such as those enshrined in the Universal Declaration of Human Rights 1948, the 1961 UN Convention on the Reduction of Statelessness,Footnote ²⁰ the International Covenant on Civil and Political Rights (ICCPR) 1966,Footnote ²¹ the UN Convention on the Rights of the Child (CRC) 1989Footnote ²² and the African Charter on the Rights and Welfare of the Child (ACRWC) 1989.Footnote ²³ Though Sudan is not a party to the Convention on the Reduction of Statelessness, it is a party to all these other treaties. Article 6 of the ACRWC specifically requires states parties “to ensure that their constitutional legislation recognizes the principles according to which a child shall acquire the nationality of the State in the territory of which he has been born if, at the time of the child's birth, he is not granted nationality by any other State in accordance with its laws.”

The continuing gender discrimination (in that a child of a Sudanese woman has to apply for nationality and does not obtain it automatically) also contradicts the provisions of the Interim National Constitution and international norms. Nevertheless, children born to Sudanese mothers and alien fathers are partially enfranchised by the 2005 amendment to the 1994 Act. The 1994 Act now stipulates that such children born to a Sudanese mother are entitled to obtain Sudanese nationality by descent whenever they submit an application to the competent authorities. This is the first Sudanese nationality act ever to give this right to children born to alien fathers. This is an improvement on the pre-2005 situation but is still discriminatory, because children of Sudanese fathers acquire nationality automatically while those of Sudanese mothers do not. It is also unclear whether or not this amendment could be applied retrospectively to allow those who were born previously to apply to be recognized as citizens. It is worth noting here that the Child Act 2004 conspicuously provides that “every child born to a Sudanese mother or father shall have a prerogative to enjoy Sudanese citizenship and nationality”. This is consistent with the ACRWC, the CRC and the ICCPR.Footnote ²⁴ The ACRWC provides that “[e]very child has the right to acquire a nationality”. This is to be read in conjunction with article 3 on non-discrimination, which provides that “[e]very child shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in this Charter irrespective of the child's or his / her parents' or legal guardians' race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.”

In relation to citizenship by marriage, section 8 of the 1994 Act repeats the provisions of the 1957 Act (as amended in 1974), that granted alien women married to Sudanese nationals the right to apply for Sudanese nationality by naturalization if they lived in Sudan for a continuous period of not less than two years from the date of making their applications for acquiring Sudanese nationality.Footnote ²⁵ The 1994 Act does not mention alien men who are married to Sudanese women; in common with many other African countries, Sudan does not grant women the right to pass their nationality to their husbands.Footnote ²⁶

Sub-section 4(b)(ii) of the 1994 Act changed the applicable date for a claim to nationality by birth based on the domicile of a male ancestor from 1924 as was stipulated by sub-section 5(1)(a)(ii) of the 1957 Act (as amended) to 1 January 1956, the date of independence. The changed date makes it more generous so far as descendants of “immigrants” between those dates are concerned, although the gender discrimination of the provision has been retained.

Rules in South Sudan

As Southern Sudan is not yet an independent state, the Interim National Constitution and the Sudan Nationality Act should be consulted regarding nationality issues. Nonetheless, it is possible to imagine the definition of a Southern Sudanese in light of the provisions of the Nationality Act of the New Sudan, 2003 (New Sudan Nationality Act).Footnote ²⁷ This act provides that a person born before 2003, the date of the entry into force of the act, shall be a New Sudan national by descent if he or she was, or his / her parents or his / her grand and great grandparents were, born in the New Sudan provided that he or she belongs to one of the tribes of the New Sudan.Footnote ²⁸ A person can also be a New Sudan national by descent if he or she, at the time of coming into force of the New Sudan Nationality Act, has been domiciled since April 1994 and his or her ancestors in the direct male line before that date have all been domiciled in the New Sudan. Alternatively, a person can be a New Sudan national by descent if he or she has acquired and maintained the status of a New Sudan national by uninterrupted domicile. In addition, persons born after the ratification of the New Sudan Nationality Act are also New Sudan nationals by descent if their fathers were New Sudan nationals by naturalization at the time of their birth. The act provides that deserted infants are nationals by descent if they are of unknown parents until the contrary is proved;Footnote ²⁹ however, there is no provision for the grant of nationality to an infant who would otherwise be stateless.

A couple of shortcomings can be identified as far as these provisions of the New Sudan Nationality Act are concerned. The first is that the act relates nationality by descent for those born in the New Sudan to being affiliated with a New Sudan ethnic group. This is very obvious from the use of the word “and” to connect sub-section (1)(a)(i) (which provides that a person shall be deemed a New Sudan national by descent if “he was or his parents, his grand and great grandparents were born in the New Sudan”) and sub-section (1)(a)(ii) which also stipulates that he or she must “[belong] to one of the tribes of the New Sudan”. In ideal legal and political situations, sub-sections (1)(a)(i) and (ii) of section 5 should be separated from each other in the New Sudan Nationality Act.Footnote ³⁰ Basing acquisition of nationality on ethnicity or tribal affiliation by sub-section (1)(a)(ii) is not only contrary to the general nationality principles of non-discrimination but also contradicts the “historical plurality and contemporary diversity”Footnote ³¹ notion upon which the whole New Sudan idea is built. In plain English, the notion emphasizes the indisputable fact that Sudan has always been heterogeneous and that at no point in history was it ethnically, tribally, culturally or religiously homogeneous.

A second shortcoming is that the New Sudan Nationality Act discriminates against women. It does not allow persons born in the New Sudan after the commencement of the act to be New Sudan nationals if they depend upon a female line, even if the members of that female line have lived in the New Sudan since before 1994 or have all been domiciled there.

It is also noteworthy that section 9 of the act grants New Sudan nationality by naturalization to foreigners who reside in South Sudan for ten years and acquire adequate knowledge of a Southern Sudanese language. The law requires a 20 year residency period if the applicant does not have adequate knowledge of a Southern Sudanese language. Although laws vary on the number of years required for naturalization, granting nationality on the basis of residency is the rule in many countries, such as the USA, United Kingdom and the vast majority of countries in Africa, where residing legally for a long period of time is alone a sufficient reason to be eligible for the nationality of those countries, regardless of whether one's ancestors in the direct male or female line were domiciled in those countries for a certain period of time. Obtaining that nationality only requires some procedural legal steps. Section 9 is one of the positive aspects of the New Sudan Nationality Act. In relation to the expected secession and rights of individuals in South Sudan, there are two problems: one is the number of years of residency required for naturalization and the second is that the law might not be applied retrospectively if it is adopted after the South becomes an independent state.

Another point regarding the New Sudan Nationality Act is the requirement that naturalization of an alien, who is a national of a foreign country, is conditional upon the applicant's renunciation and divestment of him/herself of his or her other nationality.Footnote ³² In other words, the act explicitly prohibits dual nationality. If this law were actually applied in Southern Sudan today, many of its provisions would be contrary to the provisions of the Interim National Constitution, which allows dual citizenship. Moreover, it is highly likely that many thousands of people who are Southerners by descent but live in the north would want to retain dual nationality following the referendum. In addition, there are thousands of Southern Sudanese who have acquired the nationalities of the states where they currently live and would wish to obtain the nationality of the new state by descent.

In point of fact, dual or multiple nationality was in the past prohibited by many laws in many countries on the basis that a person could only be loyal to one country at a time, although the concept itself is not now as undesired as it used to be. As people are becoming more mobile than ever before, it is both convenient and realistic to allow them to have dual and multiple nationalities.Footnote ³³ Today, not including Sudan, 30 African nations allow dual citizenship, although some apply conditions, including that the government must give permission or that a person must be a citizen from birth and not by naturalization; some other countries allow dual nationality only for women who acquire another nationality automatically by marriage.Footnote ³⁴ The current federal Sudan Nationality Act does not include provisions with regard to Sudanese nationals who acquire foreign nationalities. The author's understanding is that this allows those who are citizens from birth to maintain their Sudanese citizenship. In such situations, it considers them dual or multiple nationals.Footnote ³⁵ Since the Interim National Constitution does not expressly state that those who acquire Sudanese nationality by naturalization cannot retain their previous nationality, the assumption is that the dual nationality permission applies to them as well.

Law on state succession

In public international law, a change of sovereignty over a territory entails several legal consequences. Several questions, including those relating to rights, duties, international claims and the national debt, arise when one state succeeds another's legal responsibilities. Nationality of the affected persons is one of these questions. Statelessness is one of the most serious potential consequences of any state secession or break-up situation. The general international law principle in this regard is that the subjects of the predecessor state, who inhabit the territory, automatically lose their old nationality and acquire the nationality of the successor state. How are the “inhabitants” determined? That is a point over which there is much dispute and difference. One criterion to determine inhabitants is birth location. Another is residency. One might argue that both these criteria should be satisfied by someone in order to be a citizen. Experience demonstrates that the conclusion of agreements is the best way to deal with this issue.Footnote ³⁶

Experiences of the arbitrary deprivation of nationality have made the international community take more serious steps to address the problem. These efforts were necessitated by the problems individuals endured in the former Soviet Union, Yugoslavia, Eritrea and Ethiopia.

The International Law Commission has prepared draft articles that specifically address nationality related problems in succession and break-up situations: the Draft Articles on Nationality of Natural Persons in Relation to the Succession of States (Draft Articles).Footnote ³⁷ Article 1 of the Draft Articles, reiterating article 15 of the Universal Declaration of Human Rights, emphasizes the right to a nationality. It reads: “[e]very individual, who on the date of the succession of States, had the nationality of the predecessor State, irrespective of the mode of acquisition of that nationality, has the right to nationality of at least one of the States concerned.”

The UN Human Rights Council received a report from the UN secretary general in 2009, which, among other matters, addressed the issue of the right to a nationality and arbitrary deprivation of nationality in the context of state succession.Footnote ³⁸ The report reiterates the fundamental principles applicable in secession and succession situations from the Draft Articles. One can identify five principles that would be particularly relevant in Sudan's situation. These are: (a) the above-mentioned principle on the right to a nationality that applies in all circumstances; (b) the principle of non-discrimination; (c) the prohibition of the arbitrary withdrawal by the predecessor state of the nationality from those who are entitled to retain it and of the arbitrary refusal by the successor state to grant its nationality to those who are entitled to have it; (d) the right of children born in the territory of the successor state or states to acquire the nationality of that state or those states; and (e) the right of those who have the option to claim the nationality of more than one state to be able freely to decide which of those nationalities they wish to retain in situations of state succession.Footnote ³⁹

Furthermore, the report supports article 18 of the Draft Articles which deals with the deleterious effects of succession on the right of nationality. It enjoins states to exchange information to identify such effects and whenever necessary to engage in negotiations as a way to sort out them and, in particular, prevent statelessness.Footnote ⁴⁰

Status of “non-indigenous” populations after state succession

The CPA and the Interim National Constitution recognize the inalienable right of the people of Southern Sudan to choose between voluntarily remaining in a united Sudan or opting for an independent state.Footnote ⁴¹ Following the referendum in January 2011, it is now certain that the South will secede. It is at that point in the history of Southern Sudan that the New Sudan Nationality Act could actually be applied, as the new state will have to adopt its own nationality rules to determine who its citizens are or who could qualify to be one of them in the years to come.

Today, there are thousands of Sudanese residing in Southern Sudan who are ethnically and tribally from the Northern part of the country. The great majority of them are merchants who have been living there for several years. Meanwhile, there are hundreds of thousands of Southern Sudanese who currently live in Northern Sudan; many have never seen Southern Sudan.Footnote ⁴² The fragmentation of Sudan is likely to create challenges to those who might wish to stay in either part. One of these challenges is that the Southerners in the North might lose their citizenship and the Northerners in the South may not acquire citizenship.Footnote ⁴³ This would in turn have an impact on Southern Sudanese who are in national service, as they may well lose their jobs following secession, depending on how citizenship is defined.Footnote ⁴⁴ Another challenge is the discrimination that they might face in the future, even if the current laws are amended to conform with universally acceptable nationality rules. In reality, studies demonstrate that many internally displaced persons (IDPs) in and around Khartoum face several human rights violations based on a perception that they are strangers in their own country, because of their cultural and religious differences.

Realization of peace or the division of Sudan into two independent states does not necessarily mean that the Southerners living in the North will return to the South or that the Northerners who live in the South will go back to the North. In a survey of Southerners living in the North asked whether the CPA meant going back to the South, 46 per cent answered no, and 54 per cent answered not necessarily,Footnote ⁴⁵ which means that the majority of the Southern residents in the North might for a variety of reasons decide to remain in the North. They do not think they are residing there temporarily, rather they feel connected to the regions where they stay and do not necessarily think of moving to Southern Sudan if the situation changes. The Sudanese in the North and the South need to recognize this fact and take legal as well as political measures to deal with any human rights related problems that might arise in the aftermath of secession. As a Sudanese anthropologist properly puts it:

In the author's view, the same applies to the Northerners who are residing in the South. There is no indication that all of them will return to the North. Citizenship laws based on ethnic affiliation would, no doubt, make them vulnerable to disenfranchisement. The same measures should, therefore, be taken to ensure that the rights and freedoms of Northerners residing in the South, who may wish to be citizens there in the future, are not violated or derogated from. Furthermore, there is a possibility of igniting and launching ethnically motivated attacks by non-state actors on groups who would be seen as non-indigenous in the North and the South. Government authorities should meet their responsibilities to protect groups from such attacks.

Referenda laws

Some of these problems were partially, but only partially, addressed by the adoption by the Sudanese Parliament of the referenda laws, namely the Southern Sudan Referendum Act 2009 and the Referendum Act of the Abyei Region 2009.Footnote ⁴⁷

In this context, the Southern Sudan Referendum Act stipulated that, to be eligible for voting in the referendum, one must have been born to at least one parent who belongs to a group or groups indigenous to Southern SudanFootnote ⁴⁸ or must have been a Southern Sudan resident continuously since 1 January 1956.Footnote ⁴⁹ Any other non-indigenous groups or individuals resident or born in Southern Sudan after 1955 were excluded, obviously for political reasons, from taking part in the historical referendum to determine the future of Southern Sudan.

The Abyei referendum law did not exclude the residents of the region from voting.Footnote ⁵⁰ It provided that a voter must be from the population of Abyei as determined by article 6(1) of the Protocol on the Resolution of Abyei Conflict.Footnote ⁵¹ Article 6(1)(a) of the protocol names two groups as residents: the Ngok Dinka (the traditional owners of the land); and any other Sudanese residing in the area of Abyei. The rules by which a person would be classified as a resident were to be worked out by the Abyei Referendum Commission.Footnote ⁵² This means that all residents of Abyei could participate in determining the future of the region without discrimination as to ethnical, tribal or religious affiliation.Footnote ⁵³

The question in relation to rights and duties is not only who was entitled to vote in the referenda, but also what will be the consequences of the South Sudan secession? What will happen for non-ethnically Southern Sudanese in Abyei after separation, should the Ngok Dinka and the other residents of Abyei decide to be part of Southern Sudan? What are the measures that could be taken to avert human rights violations in such situations? What about the groups that are not considered indigenous in the rest of Southern Sudan? What will be the status of the Southern Sudanese in the North?

Danger of mass expulsions

It is not easy to predict the exact impact of the breakup of Sudan and the aftermath of the Abyei referendum on the rights and freedoms of Northerners who might not be willing to leave the South, or of the Southerners who might wish to remain in the North. In addition to any problems that will arise because of ethnic or tribal based nationality laws in Southern Sudan, there are problems that could be predicted and lessons that could be learned from the Eritrea-Ethiopia experience, where thousands were expelled from Ethiopia to Eritrea and vice versa. It is probably important to note here that, upon Eritrea's independence in 1993, the two nations had friendly relations because of the common struggle that both the Eritrean People's Liberation Front and the Tigrean People's Liberation Front led and endured, with the former aiming to liberate Eritrea and the latter seeking to depose the authoritarian Mengistu regime.Footnote ⁵⁴ One lesson that the Sudanese people need to take from this is that current statements made by NCP and SPLM politicians that no expulsions or problems will happen should not be taken as guarantees for the future.Footnote ⁵⁵

Mass expulsion, which for some of the expelled also means deprivation of their citizenship, is the most common post-secession human rights violation.Footnote ⁵⁶ One of the main arguments of the Ethiopian government for justifying the expulsion of persons of Eritrean descent was that 99.5 per cent of Eritreans resident in Ethiopia registered and voted for an independent, sovereign state. Ethiopian nationality laws do not allow dual nationality. So the Ethiopian government argued that, by voting for independence, the Eritreans and Ethiopians of Eritrean origin lost their Ethiopian nationality by renunciation.Footnote ⁵⁷ It was Eritrea's argument, however, that Eritreans and Ethiopians of Eritrean heritage could not have done so because Eritrea did not then exist. In fact the award of the Eritrea-Ethiopia Claims Commission decided that they acquired dual nationality, therefore agreeing with Eritrea's argument.Footnote ⁵⁸ The Sudan Nationality Act, as mentioned above, permits dual nationality, which will make it difficult for the government in Northern Sudan to invoke the argument used by Ethiopia as there would be no legal basis for it. The New Sudan Nationality Act, however, prohibits dual nationality. Authorities in Southern Sudan, if they were to adopt a similar act on citizenship, could possibly expel or deport Northerners residing in the South on this basis or on the basis that they do not belong to any of the Southern Sudan indigenous groups, unless they were born and resident in one of the Southern territories before 1 January 1956.

Another argument that could be relied upon to expel individuals is national security. This is of course a very vague ground that governments could use to expel or deport any unwanted individuals. It could also be used by the North or the South, especially if relations become tense. In such situations, political decisions, without attempting to make any legal arguments, could be made to expel individuals or groups of people defined by their ethnicity. Article 12(5) of the African Charter on Human and Peoples’ Rights (African Charter) specifically prohibits the “mass expulsion of non-nationals”, defining mass expulsion as “that which is aimed at national, racial, ethnic or religious groups”.

There are many other egregious violations that usually occur as a result of expulsions. Expulsions are normally carried out in an inhumane manner, property of the expelled is looted or illegally confiscated and their businesses are dissolved, and before expulsion the targeted groups can be illegally detained sometimes for several months without any legal right to challenge their detention. Furthermore, the separation of family members, loss of jobs without any rights and lack of any legal or social protection, are common violations that the expelled undergo in breakup experiences. The African Commission on Human and Peoples' Rights has ruled in several cases that denial of nationality violates article 5 of the African Charter regarding human dignity.Footnote ⁵⁹

Status of the president and vice president

An equally complicated problem with regard to nationality acquisition and rights can be seen from reading article 69(2) of the Interim National Constitution, which deals with the tenure of the office of the president and the first vice president if the people of the South opt not to remain part of Sudan. The sub-article reads: “In the event of a vote for secession by the people of Southern Sudan, the President of the Republic shall continue in office if he / she is from the North; however, if the President is from the South he / she shall be deemed to have resigned and the First Vice President shall assume the office of the President of the Republic to complete the tenure to the next elections.”

The problem comes to mind if one thinks of the nomination for president by the Popular Congress Party of Abdalla Deng Nhial, a Southerner who has lived for decades in the North, and who might choose to remain in Khartoum following secession. Had he won the elections in April 2010 and decided to remain a citizen of Sudan, would he still be deemed to have resigned? This sub-article probably gives one of the explanations why the SPLM nominated Yasir Saeed Arman, who is from the North, to run for president in 2010 as the candidate of the dominantly Southern movement. A literal interpretation of the constitution would lead us to a conclusion that Arman would continue in office if he won, even following secession.

Avoidance strategies

As Southern Sudan's secession becomes closer every day, it is highly important that the NCP and the SPLM start to take necessary measures to avoid the occurrence of these or any other violations. In particular, unresolved issues that might lead to uneasy relations or even war in the future should be addressed as they increase the possibility of mass expulsions or deportations and any other post-secession, citizenship-related violations. In addition, the two parties should develop (in Southern Sudan) and adjust (in Northern Sudan) their citizenship rules. They should also agree on: issues related to property and land for those who will move from the North to the South and vice versa; the status of foreign nationals, including their right to hold property; and the protection of human rights and fundamental freedoms of minoritiesFootnote ⁶⁰ in the North and South Sudan. The South Sudan Referendum Act requires the parties of the CPA to negotiate with the aim of reaching an agreement on post-referendum issues and arrangements to be witnessed by the countries and international organizations that witnessed the CPA.Footnote ⁶¹

One measure that the two parties could seriously consider is signing an agreement between Sudan and the South, similar to the 1976 Wadi El-Nil Agreement (Nile Valley Agreement) and the 2004 Four Freedoms Agreement, both between Sudan and Egypt. The former agreement granted Sudanese nationals the right to enter and exit Egypt without obtaining visas. It also gave them unrestricted access to employment, education, healthcare and ownership of property. The second agreement provides that the two countries will partially return to the 1976 agreement, which had lapsed. In addition, it requires the governments of the two countries to treat each other's citizens like their own citizens regarding freedom of movement, freedom of residence, freedom of work and freedom to own property.Footnote ⁶² Regardless of the problems that the 2004 agreement faces vis-à-vis its implementation, it is a good framework for dealing with any citizenship-related problems that individuals might face in the aftermath of the secession of Southern Sudan.