Playing the Nationality Card

As mentioned earlier in this Chapter, when the CPA was about to enter its final phase, by late 2010, a series of important issues were still to be settled, and citizenship was one of them (International Crisis Group, 2010: 1).

It was in 1957 that Sudan had its first Nationality Act, whereby a person was Sudanese if he or his father was born in Sudan, and he or his direct male ancestors had been resident in Sudan since the 1924. Naturalization was possible on a 10-year residence period and women married to Sudanese men could become naturalized based on two years residence (Manby, 2012b: 16). In 1993 a new Sudan Nationality Act (SNA) was drafted and enacted one year after, and remained in force in the RoS, with the amendments in 2005 (with the adoption of the Interim National Constitution), and in 2011 (with the secession of SS)(

ibid.). The 1993 SNA main amendments were that: the required period for a resident in Sudan to become a naturalized Sudanese citizen was reduced to five years (SNA, 1994:

Chapter 3 (1)(c)); and the applicable date for claiming nationality by birth based on

domicile of a male ancestor moved to 1956 (ibid: Chapter 2 (1)(bii)). Nevertheless, gender

discrimination in the transmission of nationality to children and to spouses remained (ibid.,

Chapter 2 (1)(bi)).

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In 2005, within the framework of the CPA, an Interim National Constitution (INC) was adopted. Article 7 (2) of the new Constitution maintained the gender-neutral rules introduced in the 1998 Constitution for the transmission of nationality, while article 7(4) explicitly allowed dual nationality and article 7(3) delegated rules on naturalization to legislation. In 2005, the 1994 Sudan Nationality Law was amended, whereby for the first time gave the child of a Sudanese woman and non-Sudanese father the right to apply for nationality (SNA, 2005: Chapter 2, 4(3)).

Such was the situation until the January 2011 Referendum, when South Sudan voted for its secession from the RoS, officially obtaining its independence on the 9

^th

July 2011 (Sikainga, 2011: 11), and implementing on the very same day the South Sudanese Nationality Act 2011 (SSNA). Under this act, and more specifically Section 8, attributes South Sudanese nationality by birth: to individuals born after the enforcement of such an act with one parent, grandparent or great-grandparent born in South Sudan, and to individuals belonging to one of the indigenous ethnic communities of South Sudan; to those who (or whose parents or grandparents) have been habitual residents of South Sudan since 1956; to those whose any parent was a South Sudanese National by birth or naturalization at the time of the birth of that person; and to deserted children of unknown parents (SSNA, 2011:

Section 8). Section 10 of the law establishes the acquisition of nationality by naturalization on 10 years’ residence and other conditions. As opposed to the SNA, Section 13 of the SSNA determines that a man or a woman married to a South Sudanese may acquire the spouse’s nationality after five years’ residence in South Sudan.

Nevertheless, as it happens in cases of state secession, the change of territorial sovereignty from the predecessor to the successor state entails several legal consequences for both sides, the predecessor state (RoS) and the successor state (RoSS) (Scherr, 2011: 100).

Indeed, as stated by international law, in cases of state succession, both states must prevent statelessness (Manby, 2011: 39). On the one hand, the successor state shall attribute its nationality to persons with their habitual residence in its territory, as well as to those with an appropriate legal connection to the successor state. On the other hand, the predecessor State may withdraw the nationality of persons qualified to obtain the nationality of the Successor State, only after such persons have acquired the nationality of the Successor State (ILC Draft Articles, 1999: art.24 and 25).

In the case of Sudan, there ought to have been an agreement between the two countries

to resolve the nationality status of those with a connection to both of them before the

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official independence in July. Although the big number of southern Sudanese living in the North (be it as IDPs or as labour migrants)

¹⁴

, led to the establishment of a nine-month period of grace so that ‘Southerners’ living in RoS could regularize their status by the 8

^th

of April 2012 (Manby, 2012a: 1), the lack of political will has led both sides to separately and uncoordinatedly pass laws to regulate the lingering nationality questions (Scherr, 2011:

100).

For instance, an important aspect to consider is that despite the fact that in Sudan dual citizenship has been allowed with any other country since 1993, one month after the enforcement of the SSNA in 2011, an amendment of the Article 10 (2) of the Sudanese Nationality Act 1994 on loss of nationality was passed, whereby “Sudanese nationality shall automatically be revoked if the person has acquired, de jure or de facto, the nationality of South Sudan”, had direct effects on a series of public policies and social programs in areas such as health care, education, and job access. These are, indeed, central aspects of state nationalism and the basis to strengthen the national community defined by the state, which usually comes with a discourse about collective identities with nation-building effects.

Additionally, such programs involve mechanisms of inclusion and exclusion in order to build the ‘in-group’ of national community, creating bonds between citizens, and giving real-world existence to ‘imagined communities’ (Kpessa et al, 2011: 2118). In Sudan, deprivation of citizenship has proved to be a mechanism of exclusion in several socioeconomic areas, such as the impossibility to work in the public sector, property owning (since the Constitution protects the right to property for Sudanese nationals) (2005 Interim Constitution: Part II, section 43) or access to education and public health care, which is also restricted to nationals (ibid: sections 44 and 46).

This aspect is obvious in the new SSNA, which for the very first time introduces an ethnic definition into Sudanese nationality law, moving away from previous nationality definitions in the country, where it based on birth and residence in the country

¹⁵

.

14 During the first civil war (1956-1972), around 800,000 people were internally displaced in the country.

Amongst them there were students, for instance, who continued their upper education and consequently established in the North. During the peace period 1972-1983, many Southerners, attracted by urban facilities such as education or health services, migrated to the North as labour migrants. It was in 1983, with the resumption of civil war, that massive forced flows started to occur.

Between 1983 and 1991, some 3 million people were estimated to have fled the South, 1.8 million of whom settled in Greater Khartoum (El-Nager, 2011).

15 See Chapter III, art. (1)(b) of the new SSNA and Chapter II, art. 4.(1), (2), (3), and (4) of the SNA, 2005.

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Moreover, it assumes that South Sudanese citizenship is awarded automatically to those eligible even if they live outside of RoSS and/or have no wish to obtain it (Scherr, 2011:

101). It can be argued that, while the broad provisions of the SSNA reduce the possibility of statelessness for those resident in RoSS, and it is probably the most viable way to grant nationality in this case (mainly due to bureaucracy issues and the problems of obtaining civil documentation of birth and residence), the situation is more complicated for those ethnically Southerners living in the North. Indeed, those who actually ‘look’ southern Sudanese but live in the North and have no wish to obtain the Southern citizenship or have weak connections with the South, are not provided with any explicit procedure to renounce the Southern nationality and retain the Sudanese one (Manby, 2012a: 2).

Moreover, the SNA does not provide any right of appeal against a decision to withdraw Sudanese nationality. While there is the possibility to apply for an administrative appeal or a judicial review or to challenge such decision before the Constitutional Court, most of these processes are likely to be inaccessible to most affected individuals (Manby, 2012b:

31).

The Amendment 10(2) to the SNA 2011 contradicts Article 15 of the ILC Draft Articles, 1999, in that it discriminates people on grounds of national origin, and also violates Article 25 of the same instrument, in that it automatically withdraws the nationality even to those who have only de facto the nationality of RoSS, even if that person has not acquired (or is not willing to acquire) de jure the nationality of the successor state. Moreover, it does not respect the issues of habitual residence and appropriate connection states in the same article. This situation could translate in the loss of citizenship of many people with only weak links to RoSS (and strong ties in the North), and of those not being able to prove their right to Southern nationality due to their week ties to SS. The amendment to the SNA implies that a person with one Sudanese and one South Sudanese parent will lose their Sudanese nationality, which conflicts with the Section 7(2) of the 2005 INC.

Since the separation, both RoS and RoSS have implemented contradictory Nationality

Acts, whereby citizenship is based on ethnic and tribal affiliation, instead of on inclusive

and non-discriminatory criteria, which would avoid rendering many people vulnerable and

stateless. Indeed, the insistence of RoS on granting single nationality to southern Sudanese,

while allowing double citizenship to other nationalities, is in clear contravention to

non-discriminatory criteria, as established in the ILC Draft Articles, for instance. Instead of

basing citizenship issues on ethnic affiliation, both countries should consider other more

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viable possibilities, such as the previously mentioned stake-holder principle or jus nexi.

Besides the legal dimension, the often arbitrary deprivation of citizenship poses additional socioeconomic hardships which undermine human security. As it appears, both Governments have been using each other’s citizens living in their territories as a set of cards to be played according to the political situation at the higher tops. The transportation problems, the denial of job opportunities and property owning, the inflammatory media, as well as the restrictions to access to education and public health care, have been arbitrarily applied since the separation.

It could be argued that this situation has not only had an important socioeconomic impact on individuals, but a general negative impact on both countries. While the RoSS is rich in natural resources, which are scarce in the North, the RoS not only counts with the necessary infrastructure to make use of such resources, but also with the necessary human and material capital (namely, Universities, hospitals, schools, roads), which up till now, are still very scarce in the South.

3.3 CONCLUSION

This Chapter has provided the reader with the necessary background on the protracted

crisis of identities Sudan has been facing since time immemorial as well as with the current

situation in both countries, whereby new identities are being shaped in a context where

citizenship and nationality are used as exclusionary tools. Bearing this in mind, the

following Chapter gives an account of the approach and methods used in this dissertation,

before moving on to the next Chapter, where the fieldwork findings are analyzed.

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In document Going ‘Home’ for the sake of a nation? The challenges facing Southern Sudanese women in post-secession Khartoum (sider 47-52)