Nasredeen Abdulbari, LLB, LLM (Khartoum University, Sudan); LLM (Harvard University); is a Doctor of Juridical Science candidate at Georgetown University and former lecturer on law, University of Khartoum.  

This is the final instalment of a two-part interview on the background to his interest and research in women and South Sudanese citizenship law.

BBKLR: South Sudan often makes the news in the UK, but rarely is that news positive. However, your article paints South Sudan as progressive – at least in the realm of women’s citizenship. Would you say this progressive nature is reflected in other legal areas as well?

NA: I would say this is true of some other legal areas of South Sudanese laws that I am familiar with such as constitutional law and passport and immigration law, while it is not of some others—I cannot speak to all the other legal areas, as there of course are many laws in South Sudan.

The Passport and Immigration Act of 2011, which I had the honour of reading when it was a draft is now as progressive as the nationality law. The Transitional Constitution of 2011 does clearly reflect a variety of progressive aspects of any modern constitution in that it does not adopt a single identity for the new nation—the National Constitutional Review Commission looked into the constitutional experiences of some states such as South Africa and probably India.

Modern state constitutions are based on citizenship, not on ethnic, religious, or cultural identities, although they contain provisions whose objective is to organize and protect these identities. In addition, the Transitional Constitution, respecting multiculturalism, adopts in Article 2(1) all the indigenous languages of South Sudan as national languages.

This recognition and adoption would certainly advance and elevate the status of these languages and contribute to promoting and developing them in the end. The adoption in Article 6(2) of the English language (a neutral language in the context of South Sudan) as the official language and the of language instruction at all levels of education, prevents South Sudan from adopting a language that would culturally put one ethnic group or culture in an advantageous position.

The new nation (like all linguistically and culturally diverse nations) had three options in this regard: the adoption of all vernacular languages as official languages and the languages of instruction, the adoption of the language of the largest ethnic group (i.e. the Dinka language), or the adoption of an ethnically or culturally neutral language as the official language.  It opted for the third option.

However, as we very well know, the adoption of progressive or good laws, although a huge step forward, does not alone guarantee stability, harmony, and progressiveness of a nation and its legal and political systems. It is good and important to have progressive laws on the books—but equally important is to ensure that they are respected and implemented. Application of such laws by citizens who are committed to constitutionalism, justice, equality, impartiality, and fighting corruption and nepotism through strong governance institutions is a sine qua none of peace, stability, and advancement. South Sudan is unfortunately tragically missing such institutions. Unless this major challenge and the politicization of ethnicity are properly addressed, South Sudan (and arguably Sudan) will continue to be a source of negative news. I hope this will not continue to be the case.
 
In addition to this discrepancy between law in theory and law in practice, South Sudan has laws that contain some unprogressive provisions. A clear example in this respect is the existence of capital punishment in the Penal Code of 2008 (Section 64 on treason, for example), so South Sudan has not been progressive on the death penalty.

BBKLR: The BBC and other Western journalists describe legal institutions in South Sudan as ‘weak’. Is this your experience too?

NA: In fact, I have not had direct practical experience with South Sudanese legal institutions. However, the experiences of many of my South Sudanese friends or colleagues who lived and worked in South Sudan demonstrate that legal institutions are weak in South Sudan.

These institutions are nascent and the government of South Sudan has not had the time, the willingness, the expertise, and often financial resources to strengthen them since the nation gained independence in 2011.

The country has had a very rocky start and experienced major ongoing conflicts in its first five years. This has unsurprisingly led to the deterioration of the fledgling legal institutions in the country.

The breakout of the civil war in December 2013 and ensuing brutality of civilians and loss of confidence in the government has prevented donors and the operations of several international organizations, which were initially enthusiastic and committed to assist the government of South Sudan to build and strengthen its institutions. 

BBKLR: Do you think that the recent civil war will affect the citizenship laws in South Sudan or is there general consensus around these?

NA: Fortunately, I do not think the recent civil war and ongoing conflict will ultimately affect the citizenship law in South Sudan. The citizenship law was adopted when the two parties (headed by the currently competing President Salva Kiir and former Vice President, Dr. Riek Machar) were in relative agreement.

At the recent peace negotiations, neither of the two warring parties demanded that the citizenship law be amended to give women fewer rights. It is my hope that this will remain the case. South Sudan continues to experience a very dynamic political and security situation.

The composition of the National Constitutional Review Commission and the future of the permanent Constitution are under consideration, which may affect the direction of some other progressive laws.

Despite the current uncertainty regarding some progressive laws, I remain optimistic in terms of the progressive aspects of the citizenship law. 

BBKLR: Thanks very much for your time. We've really enjoyed learning more about this new and fascinating area.

Nasredeen Abdulbari, LLB, LLM (Khartoum University, Sudan); LLM (Harvard University); is a Doctor of Juridical Science candidate at Georgetown University and former lecturer on law, University of Khartoum.  

This is the first of a two-part interview on the background to his interest and research in women and South Sudanese citizenship law.

BBKLR:  Hi Nasredeen, thanks for talking to us about your paper, 'Women and Citizenship in
Sudan and South Sudan: A Comparative Analysis'. It caught the eye of the Birkbeck Law Review Editorial Board right away.
 
As one of the world’s newest countries, one would expect there to be a great deal of interest in how legislation develops. Thank you for bringing this very interesting subject to light.
 
How did you come to study this topic?

NA: I came to study this topic of women and citizenship as part of my broader research and studies on citizenship (in general), inclusion, and diversity (be it ethnic, gender, cultural, or religious). 

My relationship with citizenship law and policies first started when I took a course on United States immigration law and policy during my master of laws studies in the United States. My attention was drawn to this particular women and citizenship issue in late 2009 early 2010, when I was, in fact, doing research on citizenship laws in Sudan and post-secession problems—it became clear back then that South Sudan was going to secede from Sudan. Therefore, it was necessary to examine the citizenship laws of Sudan and the future citizenship law of South Sudan to predict the possible scenarios, as far as South Sudanese residing in the North (i.e. Sudan) and North Sudanese residing in the South were concerned. 

The ultimate objective of my research was to ensure that the international human rights of ordinary citizens would not be violated as a result of what was an inevitable breakup between Sudan and South Sudan. After completing my initial research and examination of the Sudan Nationality Act of 1994 (as amended in 2005) and the New Sudan Act of 2003, I came away with a conclusion that the two laws were discriminating on the basis of gender and race. As I was writing generally about post-secession problems, focusing specifically and comprehensively on gender discrimination was beyond the scope of my research.

My thoughts on the question of discrimination against women in citizenship granting and deprivation further developed when I was invited by a local non-governmental organization in Khartoum, Sudan, to speak about citizenship and protection of internally displaced women. It was at this point that I studied the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (also known as the Kampala Convention). It was during this stage, too, that I studied the relevant international conventions that were specifically adopted to address the citizenship problems of women who get married or divorced and those of women whose husbands’ citizenship changes during their marriage (if they are married to an alien man). These conventions aim at protecting women against losing their citizenship as a result of getting married, divorced, or their husband’s change of nationality while they are still married.

I have utilized the research that I conducted and the ideas that I developed during these two different occasions as well as my public international law and human rights background to write this article. The article now, I hope, comprehensively tackles the different dimensions of the question of women and citizenship in Sudan and South Sudan in comparison to the experiences of some other African nations and international law principles and rules.

BBKLR: Sudan and South Sudan have very different attitudes to women and citizenship under the law. Why do you think this has come about?

NA: Sudan and South Sudan are two different nations in terms of culture, ethnicity, religion, and history, and have always been so. Culturally speaking, Sudan is, in general, a mixture of indigenous African and Arab cultures—many people moved from West Africa, North Africa, and the Arab Peninsula into Sudan over different periods of time. Arab and Muslim immigrants who immigrated to Sudan as merchants or preachers brought the Arabic and Islamic culture into the country. Thereby, Islam became the dominant religion in the North, and Sharia has been applied since 1983. South Sudan has been dominantly Christian (about 57%) with the existence of a small Muslim population.

Immigrants from the other parts of Africa came with their own cultures, as well. As for Sudan, the mixture of these various cultures and ethnicities does not, however, negate the fact that there are tribes or ethnicities, in some parts of Sudan that, generally speaking, still maintain their distinct “African” or Arab cultures. Ethnically, Sudan has a mixed Arab and black African population, although the vast majority is still ethnically black African. In terms of religion, Sudan is dominantly Muslim with a minority Christian population and indigenous African religions and belief systems in Blue Nile and the Nuba Mountains (South Kordofan).

Historically, because of geographic, linguistic, and religious ties, the North has been more connected to Egypt and the Middle East, while South Sudan has been increasingly more connected to East Africa. In fact, the British, in the last years of their colonialization of Sudan, considered making South Sudan part of East Africa.

Overall, Sudan and South Sudan, when still united as one country, had disharmonious and usually tense relations, which in 1955 manifested in what was the beginning of the longest African civil war creating further social and cultural disconnections between them.

To address the problem of such relations, the British adopted a policy known as the Southern Policy that prevented Northern merchants from entering into the southern region of Sudan (now South Sudan). That policy arguably helped South Sudanese maintain their languages and cultures.

This brief history illustrates to a wide extent the different cultural and therefore legal attitudes in Sudan and South Sudan towards women. Attitudes of men towards women and of women towards men are normally shaped by religion, culture, and history. Laws, when propagated and applied by the state for a long time—as Sharia has been in Sudan—also contribute to shaping the attitudes of people.

Therefore, differences of history, culture, and religion between the two nations illustrate the difference of attitudes towards women. Given that legislation is in many ways a reflection of cultural and historical notions, the citizenship laws of the two nations are understandably different when it comes to women.

That is why I argue in my article that religious and cultural notions and practices are responsible for the existence of discrimination. 

Part 2 of this article will follow shortly.