Commentary: Looking for legality

What is the legal definition of a "Southerner" in Sudan? This question comes up whenever issues of nationality, citizenship and membership are on the political agenda. The cancellation of three southern MPs' membership in the parliament led by Ahmed Ibrahim al-Tahir has fuelled the debate, adding another confusing layer to the implications of being a Southerner in the North.

Deputies Gabriel Rorreg Jor Bor (National Congress Party, for Southern Nasr / Khartoum), Fadwa Shewa Deng Yel (NCP, on the women's list for Khartoum) and Anthony Demo Gerfis Yak (NCP, on the party list for Khartoum) are still legal Sudanese nationals, but their exclusion from the National Assembly lifts the lid on a complex aspect of Southern Sudan's independence.

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The decision makers' legal justification for the exclusion of the Southern MPs is the second section of article 118 of the Interim National Constitution of the Republic of Sudan, which stipulates that if the independence referendum were to pass, seats held by representatives of Southern Sudan in the National Legislature would "be deemed to have fallen vacant", while the parliament, "shall complete its tenure to the next elections".

Article 226-102 provides more details: "If the outcome of the referendum on self-determination favours secession, the parts, chapters, articles, sub-articles and schedules of this Constitution that provide for southern Sudan institutions, representation, rights and obligations shall be deemed to have been duly repealed."

Under these provisions, the constitutional justification for cancelling the membership of the MPs from Southern constituencies is clear. The controversy stems from the time frame chosen for the implementation of these decisions.

Faisal Mohamed Saleh

These constitutional provisions do not mandate the immediate implementation of these laws. Furthermore, the 2005 Comprehensive Peace Agreement (CPA) and the constitution specify a six-month transitional period for the implementation of all procedures of separation. The logical deadline for implementing all these procedures, therefore, should be 9 July.

The constitution and the CPA stipulate that in the event of separation, all aspects concerning Southern Sudan must be repealed. This provision includes all districts demarcated by the Electoral Commission; since they will no longer exist within the framework of the Republic of Sudan, they cannot have representatives in parliament. This rule also applies to Northern parliamentarians winning in Southern districts: their membership is not withdrawn because they are Southerners, but because their district is no longer recognised in the Republic of Sudan.

But what about the expulsion of three Southern MPs who won in Northern districts?

Article 7-3 of the constitution clearly stipulates that "the law shall regulate citizenship and naturalisation; no naturalised Sudanese shall be deprived of his/her acquired citizenship except in accordance with the law". Al-Tahir's legal basis for expelling the three Southern deputies from the National Assembly is thus not apparent.

The state has not yet specified its position concerning the citizenship of Southern Sudanese residing in the north. They have been granted neither dual citizenship nor special status. However, a number of Southern Sudanese are entitled to citizenship without any special considerations, such as their place of birth and their period of residency.

The citizenship status of Gabriel Rorreg, Fadwa Deng and Anthony Yak has not been revoked and their constituencies have not been cancelled. The question then remains: what is the real reason for their exclusion from the National Assembly?

Comment written by Faisal Mohamed Saleh