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AN INCOMPLETE DIVORCE

With independence, South Sudanese thought that peace had finally come. They were now masters in their own house. However, the greatest challenge for the new country remained relations with Khartoum. Agreements for a border-monitoring mission had been signed in July and August 2011,1 but many issues, including border demarcation, the fate of Abyei, oil resources and use of the oil pipeline remained. As SRSG in Juba I had no role in these talks, which were conducted by the African Union High Level Panel (AUHIP), supported by my UN colleague, Special Envoy Haile Menkerios.

Tensions had increased following the take-over of Abyei by the Sudanese Armed Forces (SAF) on 19 May 2011, and Khartoum’s subsequent unilateral dissolution of the Abyei Administration.2 The situation in Southern Kordofan and Blue Nile, although not directly related to secession of the South, impacted relations between the two countries. On 5 June fighting broke out in Southern Kordofan between the SAF and remaining elements of the SPLA, followed by massive SAF aerial bombardment.3

Prior to independence, a meeting of the SPLM Leadership Council had adopted resolutions transforming their all-Sudanese movement into a South Sudan political party. Comrades in the Nuba Mountains/South Kordofan and Blue Nile had been integral to the SPLM/A from the mid 1980s, and in its leadership. They now vacated their seats in the SPLM’s highest organ, and created their own Northern party, SPLM-N.

A few days after Independence I attended a farewell dinner for Malik Agar, governor of Blue Nile State and Yasir Arman, secretary-general of SPLM/N. Both had hoped for a political solution to the problems of the border regions, in accordance with the Protocols of the CPA. But nothing had happened. Khartoum had rejected proposals to integrate former SPLA fighters from the North into the SAF, and instead ordered them to disarm without further dialogue. It seemed that the political avenue was closing.

They were now establishing SPLM-North to fight for a New Sudan and for justice in the marginalized areas. The third Northern leader, Abdel Aziz Adam El-Hilu, had already departed for Kordofan and the Nuba Mountains, following the fighting. A pragmatist at heart, Malik Agar wanted to avoid war in Blue Nile and give the political process another try. On 31 August 2011 he travelled to Khartoum with the Ethiopian Prime Minister, Meles Zenawi, to meet President Bashir and propose a process for negotiating issues related to the future of Blue Nile. According to Malik, Bashir showed no willingness to find a solution.4 And sure enough, on 1 September, the SAF launched a major offensive. The surprise attack started in Damazin, the capital of Blue Nile, and Malik himself had to flee his compound in his slippers.5 The SPLM-North was banned.

Comrades in arms

With an escalation to civil war in Kordofan and Blue Nile, relations between those regions, and between the rebel forces and South Sudan, became complicated.

Increased intelligence from several sources indicated that South Sudan, despite promises to the contrary, was providing old comrades with military support which, if confirmed, threatened to undermine relations between the two countries and fuel a continuing proxy war. President Obama raised this issue at his first meeting with Salva Kiir in September 2011. George W. Bush had met the South Sudanese leader eight times, but Obama had not engaged in the same way,6 and Kiir needed to establish good personal relations with the American President. But in New York Kiir denied that his government was supplying the SPLM-N. The Americans knew this was not true, and despite an apologetic letter he wrote later,7 Kiir continued his denials. Other members of the Security Council, with their own sources of information, likewise criticized South Sudan in bilateral meetings.

On 8 October 2011 Salva Kiir paid his first visit to Khartoum as President of South Sudan. He was for the first time received at the airport by President Bashir. Their discussions centred on remaining issues related to the secession. Kiir tabled financial proposals. To compensate for Sudan’s loss of oil revenue and to assist with the transition of the battered Sudanese economy, South Sudan would offer $2.04 billion as an interim financial package.8 In return, however, South Sudan would expect concessions on the final status of Abyei, border demarcation, trade relations, settlement of debts and division of assets.9

As late Ethiopian Prime Minister Zenawi would remind me when we discussed these issues, on almost all of them Bashir was expected to give way. He would need something substantive in return. The only ‘hook’ South Sudan now had in relation to Sudan and President Bashir, he said, was oil. With a net loss of 20 per cent of its oil revenue, Sudan faced an economic crisis. But Bashir did not accept the offer.

The issue of South Sudanese support to the SPLM-N was looming. In Khartoum Kiir, with a straight face, continued to deny that his government was providing such assistance. President Bashir would later tell me how betrayed he felt: ‘I accepted the referendum and independence of South Sudan to finally get peace in Sudan, at great cost to my country and my people. But what I got instead was war.’10 But the conflicts in Southern Kordofan and Blue Nile were not of South Sudan’s making. They were a result of Khartoum’s own policies; the CPA had addressed them; the conflicts were a consequence of non-implementation. Sudan, moreover, had long denied its own support for numerous Southern rebels. This rendered such frustrations limited credibility, despite feelings of betrayal.

The parties made no progress on Abyei. Sudan had promised to withdraw its forces by 30 September 2011, only to renege when it made withdrawal conditional on full deployment of the United Nations Interim Security Force for Abyei (UNISFA). Other measures in relation to Abyei were therefore stalled. Only on 1 November were 3200 UNISFA troops deployed, even as some 800 SAF soldiers remained. Even after their withdrawal, Khartoum maintained a military presence under the rubric of ‘oil police’.

On 9 November I received reports that SAF Antonov planes had made bombing raids across the border into South Sudan, first on Guffa and then on the refugee camp at Yida. Observers were shocked, and the Security Council was urgently convened. The Permanent Representative of the US, Susan Rice, and most other members condemned Sudan, but failed to agree on a statement. It was generally assumed that the incidents were linked to fighting between the SAF and SPLM-North in Southern Kordofan, the camps in South Sudan being seen by Khartoum as ‘harbouring rebels’. Crossing the border and hitting a refugee camp was an entirely different story, however. UNHCR had photos of the bomb craters, and UNMISS representatives sent to both locations returned with evidence, pictures and eyewitness accounts.11 Similar incidents took place during the next few months, escalating tensions between the two countries.

In a meeting of the African Union High Level Panel at the end of November, South Sudan presented its proposal for transitional financial arrangements.12 Observers were pleasantly surprised by their approach: accepting to pay $2.6 billion over a period of four years, an increase over their original proposal.13 Khartoum did not grasp the opportunity. Instead, Sudan asked for pipeline user-fees, demanding $10 billion, which most observers found unreasonable. The South Sudanese delegation understandably rejected this out of hand.

Worse was soon to come. In late November Sudan’s parliament passed a resolution that implied a pipeline user fee for South Sudanese oil of $35 per barrel. (Standard fees elsewhere were between 10 cents and $3.50 per barrel.) Khartoum’s position was so extravagant that observers hardly knew what to make of it.

In December, a border incident occurred, near Jau, north of Pariang, in the vicinity of the north-eastern corner of Unity State. South Sudan accused Khartoum of violating its sovereignty, and Sudan returned the favour. Both sent letters to the Security Council.

Oil – the sharpest sword

In December, Sudan announced that if South Sudan refused to pay the pipeline user-fees demanded, Khartoum would confiscate the oil as payment.14 At a meeting prior to Christmas, Sudan promised it would not execute this threat; negotiations would resume on 17 January. Juba meanwhile awaited agreement on user fees before paying anything. In the absence of an agreement they declined to recognize the unilaterally stipulated fees set by the Sudanese parliament.

Most external stakeholders in Juba were now focusing on the International Donor and Investment Conference in Washington in mid December, and had not closely monitored the pipeline dispute. At UNMISS, however, all eyes were on Jonglei, where a major crisis was developing.15 On Christmas Day Sudan broke its promise, started confiscating oil from the pipeline and, according to our information, was selling it on the international market. Messages were sent to Khartoum, insisting on resumption of normal transfers, and urging Sudan to stop what was perceived as literally stealing the oil. These appeals were not heeded.

In early January 2012 it appeared that something was about to happen. I understood there were disagreements about the transfers, with government officials being upset with Khartoum. There was a lot of secrecy surrounding the deliberations in Juba, however. On 6 January the South Sudanese cabinet discussed six options provided by technical experts in the Ministry of Finance. Two were discarded at the outset as unrealistic, of which one was a shutdown of oil production.16 An alternative oil pipeline circumventing Sudan might take five years to build and become operational.17 There were no conclusions from this discussion, other than that another attempt would be made to address the situation with Khartoum before the cabinet’s next meeting.

Meanwhile the Juba Government asked neighbouring countries to intervene with Khartoum. According to South Sudan, their northern neighbour had by now ‘stolen’ oil worth more than $800 million.18 (Experts I consulted in Juba calculated that a more likely figure was about $685m, but that was bad enough.) If Khartoum did not relent, the South Sudanese said that they would be forced to shut down oil production. Vice President Stephen Kalonzo Musyoka of Kenya went to see President Bashir to make a personal appeal. Kalonzo told me about the interview: Bashir’s response was that South Sudan had not paid its transit fees, and confiscation of oil was Khartoum’s way of getting payment; they would not change their position.19 Ethiopian contacts, which reportedly included a telephone call from Prime Minister Meles, likewise failed to move President Bashir.20

On 13 January the Government of South Sudan signed a so-called Transitional Agreement with oil companies from China, Malaysia and India, by which, among other things, the companies were partially responsible for the safe transit of crude from the field to vessels of the designated buyers at Port Sudan. Senior representatives of the Chinese Government then proceeded directly to Khartoum for further discussions. The visit was unsuccessful; Khartoum was unwilling to change its approach.

At this point a South Sudanese delegation travelled secretly to Addis Ababa to meet Sudanese counterparts to resolve the impasse, but this meeting too was to no avail. The South Sudanese Government made no attempt to inform other foreign stakeholders. The Norwegians, who had played an important role in supporting the development of the petroleum administration in South Sudan, knew nothing. Even the Americans had no idea. None of us had been asked for advice, or to explore other strategies, including the possibility of linking measures to the talks sequentially, increasing the pressure.

At about noon on 21 January I learned that the South Sudanese cabinet had decided to shut down oil production the evening before. I could not believe it. I immediately called Kosti Manibe, the minister of finance, to inquire whether this was a negotiating tactic, but no, Kosti told me, the decision had been made. The complicated process of halting production would be completed within two weeks.

I still thought that the government could be convinced to delay implementation and use this decision as a card in the negotiations. But the South Sudanese argued that since Khartoum was stealing all the oil, the result of a shutdown would be effectively the same. It would also at least deprive Sudan of revenue and force it to negotiate. South Sudan’s oil crisis had become a game of chicken on a grand scale.21

I started working the phones, followed by meetings at the highest levels. Closing down production was not only senseless, I argued, it also implied throwing away an important negotiating card. I pointed out that a phased shutdown in conjunction with pressure from the international community had a better chance of success and with less risk to the South Sudanese economy. I had long discussions with Vice President Riek Machar, the petroleum minister, Stephen Dau Dhieu, the minister of cabinet affairs, Deng Alor, and Kosti Manibe. But they were intransigent. South Sudan could not accept more stealing by Sudan. It was a matter of national pride; it was better that the oil remain underground for later use. What they wanted was ‘economic independence’ from Khartoum. They would rather suffer in the meantime.

Listening to the President’s statement to an emergency meeting of the National Legislative Assembly, and to members’ euphoric responses – shouts of ‘SPLM Woyee’ after every verbal attack on Khartoum – I realized that the liberators were now back in the trenches. The parliament seemed totally oblivious to the implications of the decision, as were the crowds shouting slogans against Khartoum outside the parliament. It was distressing, knowing that these poor people would soon enough realize that this was one of the least thought-through decisions that the leadership would ever make. And they would be the ones to suffer from it.

As a former MP from the oil capital of Norway, I knew quite a lot about pipelines in the petroleum industry, how long they could take to build, and how much they might cost. So it was astounding to hear Riek Machar, an engineer by training, claim that they would have an alternative pipeline operational to ports in Kenya or Djibouti (through Ethiopia) within ten months, and referring offhandedly to experience with the pipeline to Port Sudan. I told him that there was no comparison, since no preparatory analysis or feasibility studies had been done, a new pipeline would have to cross international borders, and the terrain presented many practical difficulties. It would also be very expensive. Unless deals had already been negotiated with oil companies, studies already completed, and funding lined up, a new pipeline could possibly see the light of day in years, not months. And it was unlikely to compete in economic terms with the existing route through Sudan.

Even more astonishing was that the advice of technical experts in the ministries of petroleum and finance also appeared to have been ignored. Whatever my arguments, nothing helped. Not even Dinka wisdom seemed to apply – ‘If you have only one cow giving milk, you don’t slaughter it.’ It seemed obvious that the government’s decision had been political, or even merely emotional, another phase in the South Sudanese liberation struggle. The oil had become the sharpest sword, for both sides.

After further persuasion, both the President and Vice President agreed to hold off irreversible steps until after the African Union summit in Addis Ababa in a week’s time. I had warned that a shutdown of oil production – in addition to all the other strikes against it – could be suicidal in relation to the AUHIP talks, which we hoped would be nearing a final deal on finance in the margins of this meeting.

On 21 January the AUHIP put forward a roadmap to resolve the impasse and reach final agreement on all oil issues within 90 days. The impact of moving ahead without giving the talks a chance was devastating, and it seemed that my appeals, and those of others, helped. Prime Minister Meles called an IGAD summit for 27 January, to help negotiate a solution in cooperation with the AUHIP. However, to the dismay of the South Sudanese delegation, the AUHIP abandoned its own compromise proposal. Following the shutdown of oil, at the summit the AUHIP tabled yet another proposal calling upon South Sudan to provide more than double the wealth transfer to Sudan for the same four-year period: from $2.6 billion to $6.5 billion. Indeed, this was more than a 150 per cent increase from the AUHIP’s original proposal. The South Sudanese believed the AUHIP had abandoned them. Prior to the summit, South Sudan had rejected the new proposal.22

The IGAD summit ended in disarray. From multiple sources we were told that President Kiir had accepted the AUHIP’s proposal for financial transitional arrangements at a meeting chaired by Prime Minister Meles Zenawi in the margins of the IGAD Summit.23 When Zenawi, the Chair of IGAD at the time, announced the good news to the plenary meeting of IGAD heads of state, however, Kiir declared that his delegation was still discussing the matter and might not be able to sign.24 Meles told me: ‘Salva clearly could not carry “the traffic”’, meaning that other members of the leadership had put up too much resistance.25 De Waal and other observers were certain that the ‘real reason’ for the South Sudanese decision was regime change in Khartoum,26 giving Pagan Amum the blame.27 This analysis was in my view far too simplistic. While the liberators would not regret negative consequences in Khartoum, South Sudan was much more dependent on the oil income than Sudan. People with knowledge about the internal discussions in the South Sudanese delegation also say that the opposition to the AUHIP proposal was strong, given the substantive reasons mentioned above.28

Not only were the AUHIP members and its chairman Thabo Mbeki upset, but as stories whirled about at the AU summit the following day, these events also damaged the reputation of the South Sudanese leadership.29 Observers and mediators alike now expected the talks to be stalled for quite a while.

Pagan Amum, the chief negotiator and secretary-general of the SPLM, whom I met during the AU summit, maintained that the South Sudanese delegation had made the right decision, but admitted that the situation was serious; they had lost the public-relations battle, and steps were now necessary to recapture lost ground, not least with friends in the region and internationally.

The South Sudanese had shot themselves in both feet, with the shutdown of oil, and the debacle of the AUHIP talks did not help matters. I went to Brussels immediately after the Addis Ababa meetings, and the message from the High Level Representative of the European Union at the time, Catherine Ashton, was clear: there would be no help from the Europeans in managing this self-inflicted economic crisis. The same message echoed in most donor capitals. The decision to shut down oil production also had ripple effects as far as the Chinese, Indian and Malaysian governments, whose companies had major stakes in South Sudanese oil fields.

The South Sudanese, for their part, were offended that their ‘shut down’ was not understood by the international community, and they questioned why people were not angry at Khartoum, who had stolen their oil. By the beginning of February, all production wells had been closed in cooperation with the oil companies.

The South Sudanese followed up with legal proceedings against anyone trying to purchase or ship the ‘stolen’ oil.30 World-class advisers from Skadden Arps were contracted, and Sudan was unable to monetize the oil. (For its work, Skadden Arps was named ‘Litigation and Dispute Resolution Team of the Year’ at the African Legal Awards 2013, and was also commended by the Financial Times in its 2013 ‘Innovative Lawyers’ report for Europe.)31

Oil shutdown – Doomsday?

The decision to stop producing oil would soon have an impact on the economic situation in South Sudan. The Government established an Austerity Committee, and a separate sub-committee was tasked with preparing a revised budget on the basis of worst-case predictions. At the time of the shutdown, South Sudan had reportedly only $1 billion in reserves in foreign accounts. Analysis by the World Bank and IMF showed the danger of a total collapse of the South Sudanese economy. They had never seen a situation as dramatic as this; it appeared that the leadership of the country had not fully absorbed the implications of their decision, or did not care.32 A strictly confidential World Bank presentation, including worst-case scenarios and meant only for the President and ministers of economic departments, leaked to the media and made headlines around the globe. The presentation estimated an 82 per cent decline in GDP, and depletion of foreign reserves within eight months.33

Now the South Sudanese Government finally realized that the timelines for an alternative pipeline were unrealistic, and that they needed a revenue stream to fund both short-term and medium-term needs. Appeals to traditional donor countries got nowhere,34 and international financial institutions turned down their informal requests for assistance.35 The leadership found it difficult to understand that a decision to stop Khartoum from ‘stealing their oil’ should lead to their being ‘punished’. Ministers went on a flurry of foreign trips, hunting for loans, primarily against future oil income.

First on the itinerary were the home countries of the oil companies, China, India and Malaysia. Visits were paid also to South Africa, Angola and the Gulf countries. Delegations came and went. South Sudanese officials were inquiring, not only about loans, but – when they approached Japan and Russia – also about investment in alternative pipelines, construction of refineries and the like. Half the cabinet seemed to be on the road at the time, hunting for money in one form or the other, while the other half travelled back and forth between Juba and Addis Ababa for negotiations with Khartoum. Hardly anyone remained to concentrate on running the government. South Sudan was back in crisis-management mode.

The results of this flurry of activity were not at expected levels. In the end, the three oil companies with operations in South Sudan provided some advances against the future sale of oil, reportedly some $450–500 million. Limited emergency loans were also forthcoming from the United Arabic Emirates in the order of $200 million. Later, a commercial loan was obtained from Qatar National Bank.36 In total these amounts were far from what the government needed to keep itself afloat.

As tensions increased with Sudan, and the shutdown starved government budgets (except those in the security sector), ordinary people were largely dependent on the subsistence economy. They got by as always with animal husbandry, cultivation and fishing. Since oil income primarily had gone to fund public administration and some public services, it was here that the impact was worst. As prices rose, however, the oil shutdown started to affect daily lives. The states bordering Sudan suffered most, because the frontier was closed; prices skyrocketed to three or four times normal levels. For a while the countrywide inflation rate was estimated at 80 per cent, and there was a further significant depreciation of the South Sudanese pound.

But the crisis hardly affected the lifestyle of some government ministers. The budget still paid for their continuous accommodation in hotels in Juba, travels on business and first class and stays in five-star hotels during their desperate trips to request loans and investments. Some still had champagne with their lunches at favourite Juba restaurants.

Some of us tried to argue that the crisis could provide an opportunity to show people that the government could change its ways and implement reforms that had previously been too costly politically. If there was a time when corruption and waste could not be tolerated, it was now. I made specific proposals to the President and relevant ministers, including belt-tightening among senior officials. But it soon became clear that even now there was no political will to take bold steps.

Meanwhile, Khartoum also felt the pinch from the loss of its oil-pipeline revenue and South Sudan’s transitional compensation. When by the end of the year South Sudan’s coffers were said to be almost empty, the situation was also very serious in Sudan. I visited at the end of February 2013, as part of a tour of all South Sudan’s neighbours to discuss issues related to the mandate of UNMISS. I used the opportunity to meet old friends and colleagues from the time of the CPA negotiations, including at the highest levels of government. Many were furious. They had never expected South Sudan to shut down its oil production, and they saw the decision as a strategy for regime change in Khartoum. Sudan was in serious economic problems, and losing the income from the user fees from transport of South Sudanese oil had consequences. They predicted that the Sudan economy had only two–three months before the situation became really critical. This could impact on their political survival. Many felt betrayed by their South Sudanese ‘brothers’, in the same way that the South Sudanese had felt betrayed by Khartoum. Unless they changed their approach, both sides would fall into an economic abyss.

Key players in Khartoum conveyed an important message to me: they were willing to make a deal with South Sudan. It was no longer important whether funds came as lump sums or in the form of user fees for the pipeline. Thus, they were open to reconsider previously rejected proposals, and asked me to convey this discreetly to Juba. From Kampala I telephoned Haile Menkerios; he and Thabo Mbeki were in touch with the parties and preparing the next round of talks. Haile said he had picked up some signals through his own sources. I also called Pagan Amum, South Sudan’s chief negotiator, and cabinet ministers. They received my information with great relief.

The leadership met President Kiir on Sunday evening, 4 March, the day before the negotiation team’s departure for Addis Ababa. In Khartoum the following day, Foreign Minister Ali Karti proposed that the two presidents should meet, and said that Bashir was ready to come to Juba.

Despite some initial grumbling,37 things soon changed. Pagan Amum arrived in Addis Ababa with a strong commitment to change the dynamic of the talks, and found fertile ground with his opposite number. On 6 March a breakthrough was achieved and agreements were initialled in the Ethiopian capital on the process for demarcating the international border and for a framework for the status of each country’s citizens in the other.38 The latter included full acceptance of ‘the four freedoms’ in a similar agreement between Sudan and Egypt, thus granting citizens of both countries freedom of residence, freedom of movement, freedom of economic activity and freedom to acquire and dispose of property. For two countries so closely knit, with interdependent economies and hundreds of thousands of citizens living in each other’s territory, this was the only logical thing to do.

A decision was also made to hold a summit meeting of the two presidents. The two chief negotiators, Pagan Amum and Idris Mohammed Abdul Gadir, were now in frequent contact, and I witnessed the change in atmosphere myself. A South Sudanese ministerial delegation visited Khartoum the same week, from 8 to 10 March, and President Bashir was invited to visit Juba on 3 April, when it was expected that the two agreements would be signed.

But soon another turn of events sent things spinning in the opposite direction. Hardliners in Khartoum had started mobilizing. It was ‘the four freedoms’ that fired them up the most. They were worried that this loss of control would imply an entry point for the SPLM to unduly influence developments in Sudan. Afraid that the freedoms would lead to SPLM infiltration of Khartoum, and totally oblivious to the benefits of the agreements for Sudan’s businesses and people, Bashir’s powerful uncle, al-Tayeb Mustafa made sure that dire warnings were repeatedly proclaimed at Friday prayers in the mosques, and used his influence with the government’s military and intelligence network to try to stop Bashir from signing.39

This reminded me of the talks on the CPA: whenever we had been close to a breakthrough, or to concluding a serious deal, hardliners took action and the whole process would be undermined. In this case it was a border incident that set the ball rolling, and it rolled very quickly downhill. Key players on the South Sudanese side believe that al-Tayyeb Mustafa and the hardliners deliberately sparked the events which happened next.40 We will probably never know.

The Sudans – on the brink of war

On 26 March 2012 we sat in the hall of the Legislative Assembly in Juba, awaiting remarks by Salva Kiir opening the National Liberation Council of the SPLM. Just before he reached the podium someone handed him a piece of paper and whispered in his ear. In the middle of his speech, Kiir deviated from his text to disclose that the SAF was attacking positions at Tishwin, on what South Sudan considered its side of the border. We had heard from our personnel in the area that there had been SAF troop movements, but these had not yet been confirmed.

The attacks were backed up by Khartoum-supported South Sudanese rebels from Unity State, the South Sudan Liberation Movement/Army (SSLM/A) and their commander Bapiny Monytuil. This had prompted a response from the SPLA, which, Kiir said, had chased the SAF back across the border, pursued them and then ‘taken’ Heglig.41 There was wild cheering and applause as the cadres rose to their feet; many raised their fists, and the slogan ‘SPLM Woyee’ could be heard throughout the audience. The majority of the comrades were old freedom fighters, or had participated in the struggle in one way or another. I felt we were back in the bush, celebrating a military victory, and not in a newly independent country trying to find its feet – and in peace with its neighbours.

At a press conference in Khartoum, the Sudanese Government claimed that the SPLA had started the fighting. This led to the immediate cancellation of President Bashir’s visit to Juba; he had already ordered mobilization of all paramilitary forces and announced a committee to undertake preparation of ‘jihadists’.42 Both sides now claimed to hold parts of oil-rich Heglig. Emotions were running high. The next day, Tuesday, 27 March, the SAF took control and launched aerial bombing raids on South Sudanese territory.43 Now both armies regrouped and faced each other in the disputed border area, only a few hundred metres apart.

On Wednesday the 28 March Haile Menkerios telephoned me from Khartoum. He had the chief of staff of the SAF, Ismat Abdel Rahman on the line, while on another line I had the South Sudan’s deputy defence minister, Majak D’Agoot who, in turn, was in direct contact with the SPLA command and those leading the SPLA operations in the border area. Through ‘telephone diplomacy’ we negotiated between the two and managed to prevent further escalation. Both sides agreed to disengage and redeploy to their original positions. We all sighed with relief.

President Salva Kiir, at the end of the National Liberation Council meeting, reported the decision, then ordered a full mobilization to prepare for the defence of South Sudan. He instructed all ten state governors to mobilize 5,000 soldiers each to protect their own people and country. The apparent complacency of the international community was a factor in South Sudanese thinking. In November 2011 and February 2012 a number of bombing raids by the Sudanese Armed Forces had taken place over South Sudanese territory, one of which had resulted in ten deaths.44 But no one had said anything. Now the raids had resumed.45 If they could not count on the Security Council or UNMISS to protect them, they would have to take matters into their own hands. (UNMISS did in fact issue statements when verified incidents impacted civilians.)

The respite did not last long. On Sunday morning, 1 April, I learned that another aerial bombing raid had taken place, this time at Manga in Unity State. This was the home area of Governor Taban Deng Gai, and the SPLA saw it as a clear provocation. At 2.30 p.m., Deputy Defence Minister Majak D’Agoot called me and reported that SPLA troops had come under attack by Khartoum’s ground forces. Worried about another escalation, I called Haile Menkerios. He said that the Sudanese defence minister, Abdul Rahman Hussein would be going to Addis Ababa for the next round of talks in the Joint Political and Security Committee (JPSC), after significant pressure from the mediators. The Khartoum delegation arrived on the 2nd, while attacks were still under way.

In Addis Ababa there was agreement that only one issue should be on the agenda, which was to reduce tension on the border. The Khartoum delegation had decided to take a ‘tell all’ approach with regard to support for proxy militias and insurgents in South Sudan. Dr Ghazi Salahuddin Atabani, the then influential parliamentary leader of the National Congress Party, had hinted at this during my visit to Khartoum in early March. He said that a similar approach had been successful with Chad, when both sides had ‘confessed’ what they had been up to and relations had improved significantly. This gambit should be tried in relation to South Sudan, he said. By now he had taken over the Sudanese government’s committee in charge of relations with South Sudan, and I recognized his influence in the new approach.

But when, despite Khartoum’s admissions, South Sudan refused to confirm its support for the SPLM-N, Sudan’s delegation walked out of the talks. Left unsigned, therefore, was a draft calling for cessation of hostilities and withdrawal of armed forces. I asked South Sudanese officials what prevented them from openly admitting something everyone knew. I was told that Juba had been aware of Khartoum’s support for South Sudanese militias for a long time and these posed no significant military threat. On the other hand, if South Sudan were to admit all it knew about the SPLM-N, Khartoum would reap a great military advantage.

After both President Obama and the Secretary-General of the UN called Salva Kiir, South Sudan remained non-committal. In our own meetings he either denied his government’s support for the SPLM-N or remained silent. At the negotiating table in Addis Ababa, Abdul Rahman Hussein was upset. He fumed as he left the room and headed back to Khartoum for ‘consultations’. We knew that relations were now likely to deteriorate.

The occupation of Heglig/Panthou

During the first week of April SAF aerial attacks in the border areas had continued. Given the risks involved, we at UNMISS had already decided to start relocating our staff from Unity State to Juba and abroad. And sure enough, on the 8th we received reports that ground forces were moving ‘across the border’ (a loaded term, of course). SPLA sources claimed that the attacks originated from Heglig/Panthou.46 These were followed by further bombing raids on several locations in Unity State, verified by UNMISS, which were far into internationally recognized South Sudanese territory. At the same time, the mobilization launched by President Kiir had led to thousands of new recruits for the SPLA, who were now advancing towards the border.

On 10 April yet another attack by SAF land and air forces was reported, and it was clear that Heglig/Panthou was a springboard. At this juncture the SAF were allegedly employing both the usual Antonovs and Mig 26s. The SPLA pursued SAF ground troops to Heglig/Panthou, not spontaneously but, this time, according to my sources, with the full blessing of the President and military leaders. The SPLA advance was reportedly supported by forces of the Darfurian rebel group, the Justice and Equality Movement (JEM). This was likely an opportunistic move to get back at their enemy, SAF. JEM had been observed by UNMISS in Rubkona, and close to the border, for several months.47 The SPLA did not stop until it had seized full control over Panthou/Heglig, including its oil fields. Khartoum’s forces put up very limited resistance, and suffered a truly humiliating defeat. South Sudan now proclaimed that it had occupied Heglig. This, Haile Menkerios said on the phone, was a trigger for full-scale war. He was right.

While Heglig, or Panthou was virtually unknown to most foreign observers until this point, it was a place of symbolic importance to South Sudanese. For this was the ancient homeland of the Rueng Dinka of Panaru, which in colonial times had been part of Upper Nile Province, at the time seen as part of Southern Sudan. But after the discovery of oil in the late 1970s Khartoum had (in 1980) attempted to change regional boundaries so that the oil fields were in Kordofan.48 The subsequent civil war prevented exploration, which could anyway take place only after Panaru had been cleared of its inhabitants, a process undertaken in the late 1990s in what the historian Douglas Johnson has called ‘ethnic cleansing’.49

When I first set foot in Southern Sudan in 1998, it was actually Panthou that I went to. Operation Lifeline Sudan, which ran a major humanitarian operation there, certainly considered it part of the South. A famine was under way as a consequence of population-clearing operations of Kerubino Kuanyin Bol, the renegade militia leader. Until 2003 it was generally understood that Panthou or Heglig was under the administration of Southern Sudan’s Unity State. In mid 2004, however, as the CPA talks were drawing to a close, Nafie al-Nafie, Khartoum’s minister in the Office of the Presidency sent a letter to the Governor of Unity State, stating that Heglig belonged to the (northern) state of Western Kordofan, and with an accompanying map approved by the National Survey Corporation.50 If left unchallenged, this move would have obviated the need to share revenue from this very significant oil field under terms of the CPA.

The Permanent Court of Arbitration’s ruling on Abyei determined that Heglig did not belong to Abyei (or ‘the box’, as it is often called).51 Khartoum interpreted this decision as applying to Heglig, and that therefore the territory belonged to them, but the court had not been mandated to rule on Heglig’s status; the court had ruled only on whether Heglig belonged to Abyei or not, a position that South Sudan took in the Technical Committee for North-South Borders, a body provided for in the CPA.

Heglig had been administered by Khartoum during the CPA period and indeed after South Sudan achieved independence in July 2011 – without much protest from Juba. But while Heglig or Panthou to many observers appeared to be a ‘new’ issue, it was not. The status of the area had immediately been raised by South Sudan after the Permanent Court of Arbitration’s ruling and consistently in the Technical Committee for North-South Borders. South Sudan later insisted on adding another category of ‘claimed areas’, including Heglig or Panthou, since this area was not otherwise to be included among the five priority disputed areas. Whatever the case may be, the area accounted for roughly half of Sudan’s oil production of 115,000 barrels per day.52

On 12 April 2012, as the SAF conducted aerial bombardment near Bentiu, President Kiir made a triumphal speech in the National Legislature.53 Although he stressed that his government wanted negotiations and peace, his language on the subject of Heglig was that of a liberation leader. Referring to phone calls throughout the prior evening from world leaders, he stated: ‘The UN Secretary-General gave me an order’ to withdraw immediately from Heglig. ‘I said I am not under your command’, Kiir said to resounding applause, and to the tune of ‘Never Surrender’ from the military band. ‘This time I will not order the forces to withdraw,’ he concluded, as members rose to their feet amid cheers of ‘SPLM Woyee’.54

I had been briefed about Kiir’s conversation with the Secretary-General, and what I had been told did not tally with what Kiir was saying now. He used the occasion to attack UNMISS, too, charging that I wanted to be ‘co-president’ of South Sudan.55 The expression ‘co-president’ had never been used in the public domain, and certainly not by the head of state. Kiir’s comments were seen as unacceptable, and immediately reverberated at UN headquarters in New York.

Through third parties I made the President aware of the need to retract, and his office soon issued a statement differing in tone and content.56 This behaviour was characteristic. Kiir would make strident, and at times rude, off-the-cuff remarks, and subordinates would follow up with soothing explanations of what he had intended to say. But this time the explanation did not mince words over the most important issue, the military occupation of Heglig/Panthou. Observers, including me, knew that Kiir would soon have to eat his words on this one, too.

By using military means to claim territory, South Sudan had shocked the world. As expected, in the days after the President’s ‘declaration’, condemnation came from almost every quarter, Security Council-members, ‘friends’ such as the US and Norway, and the African Union.57 Regional leaders worried. As I repeatedly explained to senior cabinet ministers, whatever the merits of their position with regard to Heglig/Panthou, any reaction from the international community short of condemnation would set a precedent for territorial disputes around the world. The only acceptable way to resolve border disputes was through a political process and peaceful means. Anything else was out of the question.

At a meeting of the Security Council on 12 April a strong presidential statement was unanimously adopted, calling for complete and immediate withdrawal of SPLA from Heglig.58 ‘Further steps’ were threatened if this did not happen. As a small consolation, for the first time the Security Council also called for cessation of the SAF’s aerial bombardments. South Sudanese officials were shocked: Khartoum was the aggressor, and South Sudan had a right to defend itself, they said. But the days when Sudan would always be blamed, while they, the Southerners, were the ‘good guys’, whatever happened – had passed. After only eight months of independence, playing the victim had very limited credibility.

I worked hard to get senior officials to realize the urgent need for the government to withdraw, despite comprehensive security-and-border preconditions set by its National Security Council on 13 April and Kiir’s public statements.59 Telephone calls from world leaders were almost continuous. In a letter to the Security Council on the 14th the South Sudanese undertook to withdraw from Heglig if an international monitoring mechanism were put in place, and it urged a ‘neutral’ force there until final status could be settled.60 But this was not going to happen, and I told them so. They had no choice but to renounce the occupation of territory through military means.

Antagonizing the AU and the UN

Meanwhile, tensions were mounting in the country against the UN. I worked quietly behind the scenes, and through personal contacts, avoiding any public visibility.61 The moderating statement from the President had not been given any play in the local media. Instead, public opinion was being ignited. There were demonstrations in almost all state capitals, with slogans denouncing the UN and the African Union, as well as the Chairman of the AUHIP, Thabo Mbeki. Petitions were handed in to UNMISS bases all over the country.

In South Sudan there is, as yet, no strong democratic tradition. Protests or demonstrations are usually staged through networks of the SPLM and the government. One could often discern when this was not the case. If security forces are not warned through appropriate channels that demonstrations have been organized, and have been permitted, they are not sure how to handle the situation. They usually intervene, and often move from shouting to shooting in split seconds. In this case, however, the security forces remained calm – which indicated support from government circles.

These demonstrations did, however, reflect popular sentiment. They were fuelled by further air raids on South Sudanese territory, now also in Warrap state.62 We got reports from our people all over the country and sounded out various contacts. No one, whether academics, intellectuals, parliamentarians, civil society leaders, bishops or other religious figures seemed to understand why the world was criticizing South Sudan. Knowing that Dinka had always lived in Panthou, they regarded it as undeniably South Sudanese; they were all familiar with the history. But they did not seem familiar with international law, and responded to the international reactions with anger. I got a sense of the depth of feeling when I addressed the All-Bishops conference in South Sudan. The bishops were quite emotional, and it took me a long time to explain the reasons behind the international reactions.

There was also serious fall-out in Sudan from the Heglig crisis. Abdul Rahman Hussein was under serious pressure to resign. Rumours circulated that he had indeed done so, but that President Bashir wanted him to stay. The SAF intensified its bombing, now on a daily basis. More civilians were killed and wounded.63 On 16 April the small UNMISS County Support Base at Mayom was hit, another violation of international law.64 Because the base was under refurbishment and only temporarily manned, no staff were present, and there were no casualties.

On the same day, Sudan’s parliament declared South Sudan an enemy state.65 Relations between the two countries hit rock bottom. Bashir followed up and – with a talent for off-the-cuff remarks surpassing that of Salva Kiir – fired off new insults. In a speech on the 18th, he declared that the people of South Sudan needed to be ‘liberated’ from the ‘insects’.66 Bashir appeared to have meant the SPLA,67 but in South Sudan his aspersion was taken to refer to Southerners in general and was reminiscent of past incitements of ethnic cleansing.

As expected, South Sudan announced on 20 April that it would withdraw its forces from Heglig. According to informed and very credible sources, withdrawal had actually commenced two days before that announcement, in order to allow the SPLA to pull out heavy equipment. When Sudan subsequently bombed the area, expecting to take out SPLA military hardware, the South Sudanese had already evacuated. It is still contested whether they, Khartoum’s forces, or the JEM militia hit some of the oil facilities in Heglig, damaging them in a way that would make it more complicated to resume production.

While South Sudan maintains that the SAF bombed the oil fields, Mohammed Atta al-Moula Abbas, the head of Sudan’s National Intelligence and Security Services (NISS), claimed to have intercepted phone calls in which Taban Deng, the Governor of Unity State, had ordered JEM commanders to attack the fields. Attah was still fuming when I met him in June 2014. Stories were also rife in Juba at the time that Taban had been careless on the phone, and that some information had come out about collaboration with JEM. Whatever the case may be, it is an open question whether Taban’s phone calls were related to coordinating the move to take Heglig, or involved orders to attack the oil fields.

The two countries had been on the brink of full-scale war. But as usual they managed to pull back from the brink at the last minute. It would take several months before temperatures cooled, and another six before oil production could resume. The decision to withdraw from Heglig/Panthou was not popular in South Sudan.

Fighting continued in the border areas after the withdrawal. According to Mac Paul Kuol Awar, South Sudan’s chief of military intelligence, air raids on 22 April were the heaviest experienced in South Sudan since 1995.68 The following day, the bridge between Bentiu and Rubkona was hit. These continuing aerial bombardments, affecting also civilians, prompted statements by the UN Secretary-General and the Mission, calling on Sudan to cease and desist.69 So far, we had registered more than 16 killed and more than twice as many wounded, but the number was likely higher on both accounts, as UNMISS did not have access to all border areas. The bombing was dangerously close to the UNMISS base in Bentiu. I went there a few days later. It was almost surreal to visit the Governor’s office. With the exception of Taban, everyone was in military uniform. Local SPLA commanders had been joined by high-ranking officers from Juba. It was clear that the border operations had been directed from here. I got a real sense that the liberators were back in the trenches, their comfort zone.

The new ‘bad’ guys

Based on events during the first nine months of South Sudan’s independence – support for the SPLM-N, collaboration with JEM, the oil shutdown, and then the Heglig occupation – there was a widespread assumption that the government’s goal was regime change in Khartoum.70 This was also Khartoum’s interpretation, and most certainly that of the AUHIP chairman, Thabo Mbeki, and it influenced perceptions in the Security Council. Not everyone shared this opinion, however, and certainly not most neighbouring countries. The South Sudanese claimed that each decision they had taken was based on the circumstances at the time, in response to what they saw as aggression from Khartoum. But it was a new experience not to be regarded as victims.

On 24 April the African Union’s Peace and Security Council met and adopted a strong statement71 which, coupled with its roadmap for normalization of relations, comprised its most comprehensive statement of policy regarding the two states since South Sudan’s independence. The Council called for cessation of hostilities, including aerial bombardment, within 48 hours; unconditional withdrawal of all armed forces from the border; activation of border security mechanisms and the so-called Secure Demilitarized Border Zone72; cessation of the harbouring or support of rebel forces; an end to hostile propaganda; and redeployment of both sides’ forces from the Abyei area.

The Council also urged the parties to resume negotiations within two weeks. Should they fail to reach agreement on outstanding issues within three months, AUHIP would be empowered to present final and binding solutions for all outstanding post-secession issues. The AU called upon the UN Security Council to endorse its action with a similar resolution. This was unprecedented. The AU had never adopted such a concrete time-bound resolution, and had certainly never called on the Security Council to give the process teeth.

African leaders had seen enough, and so, it seemed, had the wider international community. The United States duly circulated a draft resolution to the Security Council, building on the AU demarche. Security Council Resolution 2046, adopted on 2 May, copied most of the language of the AU and threatened both Sudan and South Sudan with sanctions should they fail to meet its terms.73 It was passed unanimously. China and Russia did not normally support threats of sanctions against member states. Active lobbying against the text by the Sudanese Foreign Minister Ali Karti had failed.

In a short time, South Sudan had the dubious distinction of achieving what very few countries have ever done, the threat of sanctions by the Security Council. While there was some grumbling about the resolution among hardline characters in the government, its negotiating team regarded SCR 2046 as a major asset. Finally, pressure had been put on the parties and, in their view, Khartoum, with appropriate carrots and sticks. They were particularly pleased with the support provided for a solution of Abyei.

The American ambassador at the UN, Susan Rice, would soon be the driving force behind efforts in the Security Council to hold both sides accountable. Every fortnight the UN Secretariat had to report on progress made in implementing the resolution according to the AU roadmap.

A new beginning?

During the period 2–6 May the SAF resumed aerial bombardment on South Sudanese territory. Later in the same week, claims of SAF ground incursions were made. It was not possible for UNMISS to verify these, as the alleged location was beyond our Area of Operations.74 Disagreement on where the border was made it difficult anyway to assess such claims. What seemed clear was that the deadline of 48 hours had not been honoured.

This time, South Sudan did not retaliate. Vice President Riek Machar sent a letter to the President of the Security Council and chairman of the AU reiterating the government’s commitment to implement the resolution in full and listing steps already taken.75 South Sudan also announced a decision to start withdrawing its police forces from Abyei in the following week. These steps were well received internationally.

In my meetings with President Kiir he likewise expressed determination to implement the resolution. He also committed to push his old comrades, the SPLM-N, to the negotiating table, and made it clear that he understood what the relevant language in the resolutions really meant. Thabo Mbeki met both presidents, Kiir and Bashir, preparing for a resumption of talks. The focus now was on establishing a buffer zone of 10 kilometres on each side of the border. Both sides committed to a joint mechanism for monitoring the border and demilitarized zone.

At this point Pagan Amum noted that Mbeki’s panel itself had violated the roadmap of the AU and Security Council by not calling the two countries together before the deadline of 17 May. South Sudan could now not be accused of non-compliance.76 Salva Kiir told me that his delegation would go to Addis Ababa early, and would stay there until Khartoum’s delegation turned up. The threat of sanctions by the Security Council appeared to be working.

While the parties made some progress in Addis Ababa on border security, emotions were too raw for agreement to be reached. Sudan rejected the map for the Safe Demilitarized Border Zone (SDBZ), and aerial bombardment continued. The South Sudanese filed a complaint with the Security Council. Together with other Sudanese rebel groups the SPLM-N had formed an alliance now controlling almost 40 per cent of the border, complicating matters further. In late June, despite misgivings on several fronts, Juba announced unconditional acceptance of the AUHIP map. By this time, things had also calmed down on the border.

On 14 July, in the margins of the African Union summit in Addis Ababa, Presidents Kiir and Bashir discussed a wide range of issues. These included the SPLM-N, border demarcation, opening of the border for trade, transitional financial arrangements, and Abyei. Kiir pressed for solutions, but Bashir focused mostly on the SPLM-N and South Sudan’s alleged support for rebels in Darfur; he was unwilling to address other issues until the most important – for him and the Sudan, namely security – was addressed. Kiir told me that he had repeated his offer to help Bashir negotiate a settlement with the SPLM-N. Despite the lack of progress there was agreement on a timeframe for further talks in August.

Eager to recapture lost ground internationally, South Sudan tabled a comprehensive proposal in Addis Ababa on 22 July. The idea was to get agreement on a ‘strategic framework’ for talks, based on ‘a partnership commitment’ and simultaneous negotiations on all remaining issues, with no sequencing. The presumed point was to return to the status quo ante Heglig and achieve ‘normalization’ on a number of matters, possibly in August. Border issues and Abyei, however, were likely to slide.

On 20 August Ethiopian Prime Minister Meles Zenawi died after a period of illness and was succeeded by Hailemariam Desalegn. This had a significant impact also abroad, and notably on Sudan-South/Sudan relations. Zenawi had been active in all the talks, and was very familiar with the leaders on both sides. It is not unlikely that events could have taken a different course had he lived.

On 4 August, following expiry of the three-month deadline, the parties reported to the AU Peace and Security Council that they had reached a deal in principle on oil transit, processing and transportation fees. To the eagerly waiting press, however, both sides sold the skeleton agreement differently, leading to conflicting reports. Only later would the full agreement be thrashed out and signed.

The September Agreements

Serious progress was finally made in September. On the 21st, Presidents Bashir and Kiir held what had been intended as a one-day meeting in Addis Ababa.77 As usual, however, things took much longer than expected. In the end, the two remained in the Ethiopian capital for almost a week before they could sign anything. I got a detailed account of those days, and of the dynamics. They hardly met, preferring to give directions to their chief negotiators. Unlike Taha and Garang, who had seemed to enjoy the intellectual challenge of personally hammering out the difficult compromises of the CPA, Kiir and Bashir remained in their hotel suites, as their delegates ran back and forth between them and the mediators.

On the 22nd, the Government of South Sudan provided a letter claiming that they had severed all ties with the SPLM-North prior to independence. Bashir purported to accept this at face value, and within a few days nine agreements had been hammered out. On the 27th the two presidents signed what became known as ‘The September 2012 Cooperation Agreements’,78 providing a basis for resolving most remaining issues related to secession. The impetus for agreement was probably economic necessity more than anything else.

Most importantly, the Cooperation Agreements provided security arrangements including a safe demilitarized zone, and agreement on cross-border trade, citizenship, pensions for pre-secession retirees, and banking arrangements. The two parties also finalized an agreement facilitating resumption of oil production and its transport through pipelines to Port Sudan.

Despite the appearance of a comprehensive settlement, and true to their tendency towards ‘taijility’79 on the most difficult issues, Khartoum and Juba had chosen agreement on process rather than substance. Border demarcation and Abyei remained unresolved. Where did Sudan end and South Sudan begin? And AUHIP’s compromise proposal on Abyei had been accepted by Juba, but rejected by Khartoum.

Regarding the vexed issue of border demarcation Sudan refused to comply with the Security Council’s demand regarding a demilitarized zone, and introduced instead a new condition, the demilitarization of – and thereby SPLA withdrawal from – a resource-rich 14-mile (22 km) area south of the Bahr al-Arab (Kiir river). Mediators pressured South Sudan to concede this. But Southerners in general (and particularly the SPLA) had always claimed the territory up to and even beyond the Kiir river. Under the SDBZ agreement both armies were to withdraw 10 kilometres from the centreline that ran along the Kiir. Now they had been requested to pull back an additional 12 kilometres south to demilitarize the full 14-mile area. Despite significant political risk and his own misgivings, the President agreed. The SPLA was furious, as was one of Kiir’s closest allies, Governor Paul Malong of Northern Bahr el Gahzal.

Malong even went to Addis Ababa to protest against ‘giving up’ the so-called ‘Fourteen Mile’ area, and he publicly criticized the President. SPLA generals who arrived were also very angry about having been kept in the dark by the negotiating team. Kiir held his ground, stating that the issue was not demarcation of the border but only determination of the median line for the buffer zone. But protest demonstrations were staged even in the Bahr el Ghazal region, his homeland. In an unusual show of collective support, and through several meetings, Riek Machar, Deng Alor and members of the negotiating team talked to community leaders of the Bahr el Ghazal region and won them over.80 The Government’s decision was upheld. The AUHIP was informed, just in time to brief the Security Council.81

Demarcation would now be subject to a process by which an independent panel of experts of the African Union would provide a non-binding opinion. The parties could agree to adopt this, but failing that would extend the period of discussion, and refer the decision to international arbitration, or any other binding settlement process, for a final ruling.82

A complicating factor was how the demilitarized zone could work with fighting raging in South Kordofan and Blue Nile. Khartoum had no control over vast areas of the two states, and establishing a demilitarized zone without talking to the forces that were in control there, notably the SPLM-N, would be problematic. This issue had yet to be addressed, sensitive as it was to Sudan, where multiple rebellions threatened the state.

Relations slowly improved. For both, the biggest problem was now economic. The August skeleton agreement on oil had been fleshed out and signed, with South Sudan paying transportation fees of $11 per barrel from Unity, and $9.10 per barrel from Upper Nile.83 The transitional financial payments were now also to be added automatically on a per-barrel basis to the transit fees. This arrangement served two purposes. It would provide an incentive for Sudan to allow the oil to be piped to Port Sudan without interference, and South Sudan’s contribution need not be subject to further debate in Juba, with a high risk of interruption. Providing Khartoum with money when Southern territory had been recently subject to aerial bombardment was not popular.

Oil starts flowing

Despite the desperate economic situation – the government having been without revenue for almost a year – none of the September Agreements were implemented for several months. Oil production had been scheduled to resume on 16 November; President Kiir would go to Upper Nile and personally ‘turn the key’. But Sudan delayed, and he ended up only laying the foundation for a refinery. The message from Khartoum was that the pipeline would not be re-opened until South Sudan cooperated in providing ‘security’, which meant ending support for the SPLM-N in Southern Kordofan and Blue Nile. This new condition had not been negotiated, and was widely criticized – by the mediators, the Troika and members of the Security Council.

Implementation is always the toughest challenge. This had been the case with the CPA, as it was now with the September Agreements. Mediators had to introduce implementation matrixes, denoting specific actions and deadlines, pushing the parties to move forward and enabling international pressure at successive points.

Only on 12 March 2013,84 after months of further negotiation, did Sudan and South Sudan finally agree on an implementation matrix, with timetables for the most difficult issue, security arrangements and the withdrawal of forces from the 10 km buffer zone.85 It was, once again, most likely economic necessity that impelled both sides.

The agreement stipulated that South Sudan would order resumption of production 14 days after ‘D-Day’, which was set at 10 March. Prior to the order becoming effective the oil companies had to check if the oil pipelines were fully functional. I recall how the South Sudanese delegation returned from Addis and Khartoum with smiles on their faces. Khartoum confirmed on 22 March that the pipelines were fit to receive oil, and South Sudan declared the opening of production on 8 April.86

A few days later, signalling a new start, President Bashir visited Juba for the first time since independence. As he drove from the airport and passed the multi-story buildings and all the construction along the road, he was impressed. Paradoxically, Juba had been experiencing a boom, even during the oil shutdown. We could all guess where the money was coming from; it was certainly not from ordinary salaries, but more likely pocketed money from government coffers or contracts. Bashir reportedly laughed and exclaimed: ‘So now I see what our brothers have been up to; they have learnt the trade quicker than I thought.’87

Another sign of the thaw in relations came on 26 April. The South Sudan Liberation Movement/Army (SSLM/A), a Khartoum-supported rebel group dominated by former commanders of the pre-independence Southern Sudan Defense Force from western Unity State, accepted President Kiir’s offer of amnesty and began moving across the border from Sudan to Mayom county in South Sudan. I had been alerted to this a few days earlier. The SSLA was the last major militia group at large, and the only one with any destabilizing potential.

For Khartoum to make this happen, Kiir must have promised something in relation to the SPLM-N or remaining negotiation issues. Some reject this, however, and maintain that the decision to come in was the militia’s alone after solicitations from the SPLA.88

In any case, soon after this, Commander James Gatduel Satluak, in Unity, who was very close to Governor Taban Deng, was replaced. This foreshadowed removal of the Governor himself later in July, and was a sign of rising tensions within the SPLM. The new Governor was Joseph Nguen Monytuiel, a brother of the militia leader Bapiny Monytuiel. President Kiir’s faction suddenly had full control over Unity, the home state of his perpetual rival, Vice President Riek Machar.

While relations with Sudan had been at their worst, the leadership stood united against the common foe, as usual throughout Southern Sudanese history. They knew that splits could easily be exploited by Khartoum, as they had been so often before. As a saying from the struggle goes: ‘If we split like groundnuts, the chicken will eat us all.’ Now, with Sudan apparently appeased, oil flowing, and revenue again accruing to the government, people started to relax. Soon after Bashir’s visit to Juba, tensions within the SPLM started coming out into the open. It would take only a few weeks before the ‘lid’ blew off.

Threat of a new shutdown

Appeasement of Sudan did not last long. On 27 April, the Sudan Revolutionary Front (an umbrella group including the SPLM-N and JEM) took Abu Kershola, an important oil-producing town in the centre of the country. This was unprecedented and shocking to the Khartoum military and security establishment. These rebels had never operated so successfully that far from their bases. A month later, on 27 May, the Sudanese Army claimed to have retaken the town.89 Whether or not South Sudan was directly involved in what happened, Khartoum’s subsequent threats indicated where blame had been placed. President Bashir, appearing in military uniform and flanked by top officials, angrily waved his stick in front of the large crowd and said:

I now give our brothers in South Sudan a last, last warning that we will shut down the oil pipeline forever if they give any support to the traitors in Darfur, South Kordofan and Blue Nile.90

A deadline of 6 September was set. Copnall quotes a source close to Bashir as saying that the President was making up policy as he went along; Bashir’s threat came as a surprise even to his close advisers.91 South Sudan now reiterated that it did not support the rebels. But it is hard to prove a negative.

Whenever Sudanese, Northerners and Southerners, meet, the capacity for jovial pretence is impressive. This had been on display throughout the CPA negotiations; those engaged in the secession talks experienced the same thing. One observes in astonishment how they hug, trade school-day reminiscences, and crack jokes. But the capacity for bitterness reasserts itself proportionally with distance in time and space. And as Copnall observes, the harshest statements usually start with ‘my brother’.92

Other events contributed to the souring of relations. On 4 May, the Ngok Dinka Paramount Chief, Kuol Deng Kuol, was brutally killed in Abyei when his convoy, under protection of the UN force in Abyei (UNISFA), was ambushed by Misseriya Arabs.93 South Sudanese were convinced that Khartoum had ‘organized’ the ambush. The Paramount Chief was a critical participant in consultations to end the deadlock on Abyei. A moderate among his own people, he had the credibility to pursue compromises and generate support. The killing provoked fury all over South Sudan, not only among those from Abyei. It also worsened the UN’s reputation.

In late June, Vice President Riek Machar went to Khartoum to calm the waters, and was welcomed with fanfare.94 Rumours in Juba had it that he was up to his old machinations of suggesting himself as a better horse to bet on than President Kiir. My sources at the highest levels in Khartoum rejected these as calumnies, but the rumours themselves signalled that the rivalry was re-heating. Sure enough, only days later, the Vice President told international media that it was time for Kiir to go; he made no secret of his intention of seeking the chairmanship of the SPLM.95 On 23 July President Kiir dismissed the entire cabinet, including Machar. A cabinet reshuffle had been expected for a long time, but the scale of the shake-up shocked observers.

Sudanese I met at this time could hardly hide their pleasure at the list of ministers named on 31 July. Although some were reappointments, most ‘Garang Boys’ and hard-core SPLM leaders were out, while some were ‘old hands’ who had been cabinet members under Khartoum’s National Congress Party or regarded as close to it.

Sudan was monitoring the turmoil with great interest. The ‘Garang Boys’ were regarded as hardliners, and people such as Pagan Amum, South Sudan’s chief negotiator, among the worst. On the Abyei issue Deng Alor, now gone, was seen as most intransigent. Khartoum saw more room for maneuver with close associates of Salva Kiir.

It should be noted that intra-party tensions were not the only rationale for a reshuffle. Given the parlous state of relations with Sudan since independence, there was sense in appointing ministers supportive of rapprochement. That this was a risky strategy, increasing tensions within the SPLM, was obvious, however. Both results – a friendlier yet divided South Sudan – served Khartoum’s interests.

Only a couple of days after appointment of the new cabinet, on 2 August, President Kiir is said to have promised to suspend all aid to the SPLM-North, aid which had anyway always been denied.96 This has not been verified. We do know that the new government provided a fresh dynamic between the two countries.97 On 3 September Kiir went to Khartoum, marking the first time in almost two years that he had set foot on Sudanese soil. According to reports I received from both sides, this proved to be the most successful meeting that he and President Bashir had ever had. It is likely that Kiir gave assurances of disassociation from the SPLM-N and JEM; there were strong indications thereafter that no further support was provided to them.98 Gone too were threats to shut down the oil pipeline.

Bashir would pay a return visit to Juba as soon as 22 October, during which he supposedly offered full support for Kiir’s new government.99 The intention was to cement implementation of the September 2012 oil agreement.100 The thawing of relations at this particular time was notable, and probably also prompted the government to avoid upsetting Khartoum over Abyei. When on 27 October the Ngok Dinka went ahead with a unilateral, self-organized referendum to determine whether Abyei would be part of Sudan or join South Sudan, without any legal basis or international facilitation or presence,101Kiir made it clear that the government would not recognize the vote. But Ngok Dinka in the civil service and security forces who wanted to vote were permitted to go to Abyei and do so.

Former ministers and senior officials from Abyei, including Deng Alor, Luka Biong Deng and Edward Lino were all there to support the referendum; Kiir sent Deng Alor. Majak D’Agoot went later, while Riek Machar, now only a member of parliament, made statements advocating recognition of the Abyei vote.102 Security concerns prompted Kiir to dispatch the inspector-general of Police, Pieng Deng, himself a Ngok, to the contested area to monitor the situation. In the end the referendum took place without incident; an overwhelming majority voted for Abyei to join South Sudan. Khartoum duly expressed unhappiness with the return to Abyei of many members of the security forces, and about their continued presence.

When liberators become kleptocrats

Many of the interim period’s problems of mismanagement outlined in the previous chapter continued after independence. These included graft in contracts and procurement, overspending of public funds, and massive corruption in the security sector, which we will revert to in more detail later. While some lubrication of the machinery of government probably had to be accepted for reasons of politics and patronage, the scale was stupendous. Even basic functions of the state were put at risk.

Ministers operated in a mode of constant crisis management during the first two years of independence, literally a ‘state in emergency’, diverting attention from state-building. To us in Juba, the absence of political will to tackle corruption was clear. Still there were a few important differences between the corruption issues of the interim period and those since independence.

With the oil shutdown there were fewer opportunities to misappropriate funds from the budget, but more at the Central Bank and in the currency market and security sector. Furthermore, while during the interim period economic mismanagement was attributable to institutional weaknesses and lack of political will, the latter prevented state-building processes from succeeding after independence. Legislation on public financial management had been passed, but implementation was a problem. As ordinary citizens had suffered the impact of economic crisis, the contrast between the affluent (and often corrupt) elites and those struggling to get by was even starker.

In ‘When kleptocracy becomes insolvent: Brute causes of the civil war in South Sudan’,103 Alex de Waal notes that the shutdown of oil production made it more difficult to sustain cash-based patronage networks and bargaining arrangements that could keep internal peace. He claims that corruption and patronage are not distortions of the system in South Sudan: they are the system. When the shutdown stalled loyalty payments to keep the system running, it fell apart, he claims, and he seems to regard this as the main cause of the subsequent crisis.104 While his analysis of the scale of corruption to a large extent appears accurate, blaming kleptocracy for the conflict in South Sudan is too simplistic.

As we have seen, President Kiir had launched his five ambitious steps against corruption.105 Two Presidential Orders followed, one on operationalization and implementation, including the repatriation of funds in foreign accounts,106 and the other on declaration of officials’ assets by 30 January 2012.107 Five thousand government officials handed in their forms.108 But most of the liberators in office continued to shrug their shoulders. Some refused cooperation, although this was meant to lead to dismissal.109

This did not happen, however. No action was taken. Attempts to repatriate funds also faced difficulties.110Although the Anti-Corruption Commission pursued a number of investigations, and information declared would warrant further investigations, no cases led to prosecution.111

When belated audits for the interim period were published in 2011 and 2012, shock was expressed but there was little immediate effect. Instead, more and more politicians made fiery speeches about rooting out corruption, probably to immunize themselves. The President now had to choose between criminal investigations and prosecution, and an alternative course. He was also increasingly vulnerable to accusations related to the conduct of his own office.

The politics of corruption

Salva Kiir chose an unorthodox approach. In June 2012 he sent letters to 75 senior officials, giving them the opportunity to ‘come clean’, pay back part of what they had misappropriated, and make a new start.112 The letter was harsh in tone.113 Those who did not cooperate would face accountability processes.

The letter referred to a total of $4 billion unaccounted for during the interim period. This figure appeared to be calculated simply on the basis of oil revenue since 2005 (against expenditures that were unaccounted for) and large-scale contracts that the government had entered into. For 2005–6 alone $1 billion could not be traced.114 For those who returned a significant part of the misappropriated funds, there would be no legal action. While not everyone was suspected, each got a letter – again to avoid the impression of targeting individuals.115 And the letter was made public. It set off a firestorm of enormous proportions in the Assembly and within the SPLM leadership.116 Personal relations that were already strained deteriorated further.

At the same time, this made the President himself vulnerable to similar accusations. The dubious practices at the President’s Office had continued. Significant amounts of cash were stolen from the President’s Office as late as March 2013, and staff were suspended; following inconclusive investigations most were reinstated. Only in June 2015 was action taken against the main culprits, who were dismissed and detained.117 That the South Sudan presidency later appeared to want to resolve the corruption case out of court may, however, be an indication that larger interests are at stake.118 When this book went to print, however, senior officials were eventually charged.119

In a way, the SPLM leaders kept each other in check, since most of them knew about others’ malfeasance. This made progress difficult. Rumours circulated, not only about ministers, but now also the President’s office. Only after the 2013 crisis did the cadres begin to go public with what they knew, primarily to undermine other factions. Corruption became an instrument in internal political battles.

The effectiveness of Kiir’s approach may be judged by the fact that not much happened. The corruption problem in the financial sector actually worsened. It was public knowledge that even more government officials now had shares in banks and foreign exchange bureaus, many in silent partnerships, despite such ownership’s illegality. Learning the identity of actual shareholders is difficult; although the business registry and other relevant documents are ostensibly public, access usually requires ministerial approvals. This opaqueness includes the ownership of foreign exchange bureaus. These were highly lucrative, since the black market in currency had driven down the value of the South Sudanese pound, allowing companies to pocket even more of the windfall from the dual exchange rate.120

The IMF continued to criticize the dual exchange rate, which distorted the economy and reinforced perceptions of poor economic management by fostering corruption and rent-seeking.121 In surprisingly plain language, the IMF wrote of ‘a hidden transfer of resources from the government to those with privileged access to foreign exchange at the official rate’.122 The diversion of dollars to the black market was estimated at three times the amount going to South Sudanese banks.123 Differences in exchange rates made it possible to make up to a 400 per cent profit on every transaction. The number of foreign exchange houses multiplied as a consequence.124 Indeed, stories were rife of top officials in the government and the Central Bank owning or having shares in forex bureaus, characterized by economic experts as an oligopolistic cartel.125 The significant rents totalled around 12–15 per cent of government expenditure or an estimated 3 per cent of GDP.126 Media outlets listed a number of such companies.127 The collective refusal to address this large-scale scam was one of the worst aspects of South Sudan’s corruption problem.

The Central Bank’s custody of national resources was hardly water-tight. In late 2012 a senior official of the bank ran off with several million dollars in a suitcase. He evaded a team of security officials and managed to board a flight to Nairobi. They contacted the airport tower to order the plane to return, but it was too late.128 The farce continued in Nairobi, where a pre-arranged reception with allies prevented an arrest. A year later, in a similar incident, the son of a top official at the Central Bank reportedly fled with $2 million. In both cases, no further action was taken against the known individuals.

While the people of South Sudan suffered from the oil shutdown, some liberators tried to gain financial advantage from it (on projects related to refineries, alternate pipeline projects through Kenya to Lamu and through Ethiopia to Djibouti, and the like).129 In 2013 the great majority of the population were unable even to meet the basic needs of their families.130

The President knew how the public perceived the corruption problem, and this was one motive for his long-standing plans for a cabinet reshuffle. We will analyse later the political impact of the sacking of two ministers on corruption grounds in April 2013, the removal of the whole cabinet and the Vice President the following July, and the composition of the new cabinet a week later.

Despite all this, some progress was made in legislative matters. Although there had been question marks about hidden reserves on foreign accounts and dubious loans, probably against future oil income,131 it was also widely acknowledged internationally that South Sudan did in fact pass the test of macro-economic survival posed by the period of austerity.132 The ‘Core Functions under Austerity’ programme helped. With the re-start of oil production, preparations for a New Deal Compact between the government and the donors on delivery across five key peace-building and state-building goals also gained pace.133

The main goal was to protect spending on education and health so that ordinary citizens did not suffer from the austerity measures. An international investment conference was to take place in early December 2013. But progress hinged on South Sudan’s abandoning the policy of parallel exchange rates and approving critical measures such as the Petroleum Revenue Management Act. Regarding the latter, the President hesitated, reportedly over the audit clause.134 This in turn was a prerequisite for IMF support for a staff-monitored programme, and its approval again was a precondition for funds from the World Bank and several other donors. The Minister of Finance and the Governor of the Central Bank decided, with the blessing of the President, to devalue the currency on 11 November, and align it with the black market rate.135 This was done in time for the meeting of the IMF board and the agreed date for launching the New Deal at the beginning of December.

While unification of the currency rate raised genuine problems in the market place and for salaries, it also hit vested interests.136 In parliament Riek Machar denounced the measure and, to international observers’ surprise, held that the legislature’s authority had been usurped. The Finance Minister was out of the country, so the Governor had to turn up in parliament – and caved in. The Government reversed its decision, and formally retained the dual exchange rate policy. With this, the process stopped. The planned financial facility was shelved, and the New Deal Compact was never signed.

According to de Waal, South Sudan’s insolvency because of the oil shutdown made it impossible to buy – and keep – the peace; corruption itself was therefore the underlying ‘brute cause’ of the crisis that erupted in December 2013.137 But owing to domestic security concerns, payments to the security sector and salaries were largely maintained; the austerity budgets did not significantly affect the leaders of the SPLM or SPLA.138 The elites also appear to have misappropriated enough to keep them and their patronage networks going, as the construction boom in Juba during the shutdown indicated. De Waal’s assumption therefore appears misguided.139

The incomplete divorce from Sudan, however, does seem to have mattered. De Waal appears to monetize that relationship too, by averring that Bashir could have cut a deal, buying the Southern elite’s acceptance of a united Sudan.140 On this fundamental issue, however, almost no one in the SPLM leadership was for sale. Even those who at times had entertained links to Khartoum were clear that they would never sacrifice independence. Relations with Sudan remained controversial, however. The SPLM leadership appeared ‘united in war – divided in peace’. And with oil production switched on, tensions escalated.

Drivers of division

Other undercurrents increased tensions and exacerbated South Sudan’s fragility. The elite, whether political or military, depended on ethnic identity as a main avenue to public office. In the absence of functioning public institutions which could provide services, the government’s principal means of redistribution of wealth and mitigating inequalities continued to be the state payroll.141 Ethnicity became one of the main qualifications for receiving a salary, making patronage all-important for access to public finances.

The communities knew this, and agitated for new counties or payams (sub-counties), preferably along ethnic or sectional boundaries. New counties would give more people income through salaries. And if borders followed ethnic lines, they could ensure that their own community would benefit. This was a recipe for division and fragmentation.

Ethnic politics

In March 2012 Riek Machar argued for establishment of no fewer than 400 new counties, five times the current number.142 He contended that this would be a way to distribute state resources more widely. There was a misguided view that such proliferation would create peace: after all, people would be administered by their own communities. But in fact the more counties you have, the more competition you get for resources; and the scarcer the resources, the worse the fight.

As vice president, Machar later sent a letter to all governors requesting the establishment of new counties.143 The CPA and Local Government Act of 2009 did not encourage this; policy generally was to ensure that many counties had mixed ethnic identities.144 Both in the Upper Nile and Equatoria regions, for example, authorities deliberately tried to avoid drawing county boundaries along ethnic lines. Was the vice president now trying to change the law and national policy through the back door?

Some governors followed up on the instructions. And sure enough, UNMISS State Coordinators reported that this was fuelling conflict in several rural areas. Violence was breaking out over land, boundary demarcation and the siting of county headquarters.

The real reasons for this initiative appeared rather obvious: state patronage and competition for political power and resources. Establishing more counties, and along ethnic lines, would provide benefits for any ambitious politician. The number of loyal county officials would be increased, as would influence within the SPLM, the structure of which was based on counties rather than local chapters: the more counties there were, the more representatives the patron would have in party organs. For a perennial candidate for chairmanship of the SPLM, the potential of such a development was clear.

And for other politicians and community leaders down the line, the temptation to expand their own client base was significant. Where would particularism end? Ethnic groups are divided up into clans and sub-clans, and extended families.

President Salva Kiir put an end to this initiative. In his Independence Day speech on 9 July 2012 he said the time was not right to create new counties, and that further assessments were needed. This was received with a sigh of relief by several governors, but it hardly brought an end to patronage politics.

Contrary to the Local Government Act, whereby county commissioners are to be elected by the people and accountable to them, the liberators appointed local authorities, making county commissioners accountable to the Governor and thus to the centre.145 The Transitional Constitution already provided the President with very significant powers, with limited checks and balances. Now, constitutional provisions for electing governors were also increasingly violated.146 President Kiir’s dismissal of three governors and reappointment of two to other positions (in 2012 and 2013), implied that governors were answerable to him. It did not help that Kiir was perceived to progressively give more power to his own Dinka community, in particular in relation to key government institutions such as the Central Bank and the judiciary. This increased tensions.

Centralization of power and fragmentation of the periphery ethnically was politics on the cheap. It implied that rural people and ordinary citizens did not have a collective platform to challenge leaders, no outlet for complaints or grievances. This in turn reduced whatever checks and balances there were on the elite in political office at all levels. But in the end, not everyone could be ‘salaried’ to contentment.

Tightening controls

Another worrying undercurrent surfaced. The first bad omen was the killing of the South Sudanese journalist and blogger Diing Chan Awuol, often called Isaiah Abraham, on 5 December 2012. This was seen as an assassination and sent shock waves through both government circles and the public.147 Rumours were rife that elements in the government’s security apparatus were behind it, but this was never confirmed. Investigations were conducted, but not conclusive. In the end, no one was held to account. In Juba, threatening text messages had been sent to a number of dissenting voices, in particular among civil society activists, young journalists and bloggers. Some fled the country. South Sudan dropped 12 places in the 2012 press ranking published by Reporters without Borders due, in part, to the ‘heavy handedness by security forces in dealing with journalists’.148

Soon after, nine people were killed in peaceful demonstrations in Wau in Western Bahr el Ghazal by government security, and more than 100 arbitrarily detained.149 UNMISS protested publicly, but to no avail.150 We were also unable to complete our investigation, which was impeded by state authorities. When I raised such incidents with the President and higher echelons of government, they usually responded with a commitment to correct things. Yet no one was held to account.

While tensions between Salva Kiir and Riek Machar increased, there was a clear impact on the political climate in the country. There had been relative tolerance for voicing discontent, but government officials now began to warn journalists against publishing criticism of the President.151 By 2013, fewer felt it safe to speak about their ideas in public.152 Threats against the media were frequent, and there were increased arrests and abusive behaviour, including use of torture, by security forces.153

Although the cabinet passed to parliament a package of eight human-rights instruments for accession and ratification,154 three bills tabled towards the end of 2013 showed an opposite trend. One was a media law criticized for being too restrictive. Another was the NGO bill that would seriously impact organizations’ ability to operate.155 A third bill gave the National Security Service expanded powers in several areas, including arrest, monitoring of communications, conduct of searches, and seizure of property,156 despite significant resistance in the National Legislature.157

The tightening of controls made it more difficult for ordinary citizens to voice their concerns. A climate of fear took hold. UNMISS was also affected. Suspicion and mistrust increasingly dominated relations. What had started off as a close collaboration between the newly independent country and the UN Mission mandated to support it was about to go sour. What had happened?