PART 1- POWER SHARING
1. Presidency
1.1. There shall be: A partnership and collegial decision-making
process
within the Institution of the Presidency in order to safeguard the
Peace
Agreement;
1.2. Until such time as elections are held, the current incumbent
President (or his successor or nominee) shall be President and
Commander-in-Chief of the Sudan People's Armed Forces (SPAF). The Vice
President shall be the current SPLM/A Chairman (or his successor or
nominee) who shall at the same time hold the post of Chairman/Head of
the Government of Southern Sudan and Commander-in-Chief of the Sudan
People's Liberation Armed Forces (SPLAF), the armed force previously
referred to as the Sudan People's Liberation Army (SPLA);
1.3. The President shall be elected in national elections; the position
of Vice President shall be filled by the person who has been elected to
the post of Chairman/Head of the Government of Southern Sudan.
However, in the eventuality that a person from the South wins the
Presidential elections, the non-southerner with the most votes from the
Northern States in the Presidential elections shall become the Vice
President.
1.4. In respect of the following matters, the President shall take
decisions with the consent of the Vice President, namely:
1.4.1. Declarations of states of emergency or states of national
defence
and their respective termination;
1.4.2. All appointments that the President is required to make in terms
of the Peace Agreement and the Legal and Constitutional Framework
governing the Interim Period on (e.g. the Interim National
Constitution)
including, inter alia, appointments with respect to Courts of Law, the
Council of Ministers, and National Commissions; and
1.4.3. Summoning, adjourning, or proroguing the National Legislature.
1.5. Should the post of President fall vacant, the office of the
President shall be filled by a person elected by the National Assembly.
Should the post fall vacant in the period prior to the elections
referred. to in the Peace Agreement, the post shall be filled by a
person nominated by the National Congress party. Pending the elections
of the new president by the National Assembly referred to above or the
swearing in of the President nominated by the National Congress Party,
as the case may be, the function of the President shall be assumed by a
Presidential Council comprising the Vice President, who shall be Head
of
State, the Speaker of Parliament, and the Minister of Defence who shall
be Commander in Chief of the SPAF. The Presidential Council shall take
its decisions by consensus.
1.6. The Interim National Constitution shall detail the mechanisms
necessary for decision-making on an urgent basis.
1.7. If the President and the Vice-President agree, particular
functions
of the President or Vice President may be allocated to a Minister or
other Government official to exercise.
2. Government of Southern Sudan Executive
2.1. Until such time as elections are held, the current SPLM/A Chairman
(or his successor or nominee) shall be Chairman/Head of the Government
of Southern Sudan (GOSS). He shall at the same time hold the post of
Vice--President of the Sudan and Commander-in-Chief of the Sudan
People's Liberation Armed Forces (SPLAF). The Vice-Chairman of the
GOSS
shall be appointed by the chairman. The Southern Assembly shall ratify
such appointment by a simple majority vote.
2.2. The Chairman and Vice Chairman of the GOSS shall be elected by the
people of Southern Sudan. Such election shall be held at the same time
as elections at all other levels of government.
2.3. Should the post of the Chairman of the GOSS fall vacant in the
period prior to the elections referred to herein, the post shall be
filled by a person nominated by the SPLM/A. Pending the swearing in of
the Vice Chairman as Chairman or the swearing in of the Chairman
nominated by the SPLM/A, as the case may be, all functions of the
Chairman of the GOSS shall be assumed by a Chairmanship Council
comprising the Vice Chairman, who shall be Head of the GOSS, the
Speaker
of the Southern Assembly, and the Minister of the GOSS responsible for
defence matters who shall be Commander-in-Chief of the SPLAF. The
Chairmanship Council shall take its decisions by consensus.
3. Seat of the National Government and- National Legislature
3.1. The National Capital shall be a symbol of unity that should
reflect
the diversity of the Nation. Khartoum city shall be the Capital of the
Republic of the Sudan. A district within the city of Khartoum, within
which the buildings and offices of the national government are
situated,
as well as the site of the National Parliament, shall be known as the
Capital District of the Sudan. This district shall be precisely
designated by the parties during the interim Period;
3.2. All human rights and fundamental freedoms as specified in the
Machakos Protocol, including respect for all religions, beliefs and
customs, and the text on religious rights, shall be respected and
enforced in the National Capital, as well as throughout the whole of
Sudan, and shall be enshrined in the Interim National Constitution;
3.3. Religion shall not be used as a divisive factor, and in
particular,
free access to the seats and locations of the National Government and
National Legislature shall be accorded to all Sudanese on the basis of
citizenship and no Sudanese citizen shall be discriminated against or
subjected to harassment on the basis of his or her religion, beliefs,
or
customs;
3.4. The National Assembly shall be responsible for the administration
of the Capital District and in enacting laws, and bylaws, shall take
into account the religious and cultural diversity of the Sudanese
people.
3.5. Pending the comprehensive enactment of laws: and bylaws for the
Capital District, all existing legislation applicable to the District
shall be reviewed by a joint Committee of both houses of the National
Legislature.
3.6. There shall be a National Capital Police which shall be
responsible
for law enforcement within the area of the location of the National
Government and the National Legislature. More detailed responsibilities
will be elaborated in Security Arrangements.
3.7. The National Assembly's power to administer the Capital District
may be extended to such other districts comprising a concentration of
national government offices and institutions, whether in the Southern
Region or outside it, as the national legislature decides by a
two-thirds (2/3) majority in both houses. Such capital areas shall have
a special status and shall not be considered a state or part of a
state.
Should the National Assembly decide that a national judicial, executive
or legislative function shall be undertaken from a city other than the
Capital City, the locations where such functions are undertaken should
also be administered by the National Assembly.
4. Percentages
4.1. With respect to the distribution of civil service posts and
targets, the Parties recognize that:
4.1.1. Imbalances and disadvantages exist which must be redressed;
4.1.2. Merit is important and training is necessary;
4.1.3. There must be fair competition for jobs in the National Civil
Service.
4.1.4. No Government department shall discriminate against any
qualified
Sudanese citizen on the basis of religion, ethnicity, religion, gender,
or political beliefs;
4.1.5 The civil service will fairly represent all the people of the
Sudan and will utilize affirmative action and on the job training to
achieve equitable targets for representation within an agreed time
frame; and
4.1.6 Additional educational opportunities should exist for war-
affected people.
4.2 In order to create a sense of national belonging and address
imbalances in the National Civil Service, a National Civil Service
Commission shall be established with the task of:
4.2.1. Formulating policies for recruitment into the civil service,
targeting between twenty-five -percent to thirty-five percent (25% to
35%) of the positions for people of the South who qualify. Such figures
shall be confirmed upon the outcome of the census referred to herein;
4.2.2. Filling not less than twenty percent (20%)) of the middle and
upper level positions in the National Civil Service (including the
positions of Under. Secretaries) with qualified persons from the South
within the first three years and achieving the final target figure
referred to in 4.2.1, above, within five years; and
4.2.3. Reviewing, after the first three years, the progress made as a
result of the policies and set new goals and targets as necessary,
taking into account the census results. Where targets have not been met
as the result of the absence of qualified applicants, the Commission
shall so indicate and set out recommendations in respect thereof. The
said review shall be placed before the National Legislature within six
(6) months of the period referred to in this sub-paragraph.
4.3. With respect to the composition Legislature: National Assembly and
Council of States, the Parties recognize that:
4.3.1. there should be equitable representation of the South in both
legislative chambers.
4.3.2. relevant considerations should be taken into account in
determining what constitutes equitable representation;
4.3.3. A population census shall be conducted prior to' -elections, and
in any event, no later than the end of the first half of the Interim
Period;
4.3.4. pending elections, the National Assembly shall consist of such
members in the below designated proportions:
4.3.4.1. Sixty-six and two thirds percent (66.6%) being members
representing the North of whom fifty one (51%) of the total number of
Assembly members shall be from the current National Assembly and
fifteen
and two-thirds percent (15.6%) shall be from otherwise unrepresented
forces or parties so as to promote inclusiveness and stability; and
4.3.4.2. Thirty-three and one-third percent (33.3%) being members from
the South of whom twenty-six percent (26%) of the total number of'
Assembly members shall be appointed by the SPLM/A and seven and
one-third percent (7.3%) shall be from other forces, parties or sitting
members from the South so as to promote inclusiveness and stability.
4.4. Notwithstanding the proportions listed herein, the Parties may, by
mutual agreement, vary these proportions if they determine that such
variation is necessary in order to promote greater inclusiveness.
4.5. Pending elections, the Council of States shall be comprised of two
(2) representatives from each state on the basis that there are sixteen
states in the North and ten states in the South as set out in the
current National Constitution. However, the Southern Sudan Assembly
may
adjust the number of States at any stage during the Interim Period,
including at the outset, so long as the creation of new states
or
reduction of existing states does not have the effect of changing the
proportional presentation of states in the North to states in the South
in the Council of States. Regardless of the number of states created or
reduced, the Southern states shall have nearly as possible the
representation as set out above which is recorded as thirty-eight
percent (38%). The number of states and the representation of such
states must be approved by the Southern Sudan Assembly.
4.6. For voting purposes, a Seventy-five percent (75%) majority of both
chambers sitting separately is required to amend the Interim National
Constitution or any aspect of the Peace Agreement; a sixty-six and
two-thirds percent (66.66%) majority in the second chamber is required
to pass legislation that affects the interests of the states; and a
simple majority vote is required to pass all other legislation.
4.7. National Ministries
4.7.1. Cabinet Posts and portfolios in all clusters, including the
Sovereignty Ministries, shall be shared equitably and qualitatively by
the two parties;
4.7.2. SPLM/A representation in each of the Ministries/clusters shall
be
at least twenty-five percent (25%) (such representation means both
twenty-five percent (25%) of the Ministers and Deputy Ministers);
4.7.3. The National Congress Party representation in each of the
Ministries/Clusters shall be at least fifty percent (50%) (such
representation means both fifty percent (50%) of the Ministers and
Deputy Ministers);
4.7.4. The representatives of other Parties or Forces in the
Ministries/clusters shall be at least fifty percent (50%) (such
representation means both fifty percent (50%) of the ministries and
devolve, the Parties may, by mutual agreement, alter these percentages
if they determine that to do so would promote greater political
inclusiveness and support of the Peace Agreement;
4.7.5. the precise allocation determined once the Arrangements have
been
(incomplete)
5. Appointment of Governors
5.1. Until elections for governors are held, governors shall be
selected
by the state legislature concerned and approved by the Presidency. The
legislature shall submit a shortlist of candidates to the Presidency
indicating their preference and the Presidency shall select a governor
from among the candidates on the shortlist. In the event that there is
no consensus in the Presidency, the view of the President shall prevail
in respect of Governors from the Northern States and the view of the
Vice President shall prevail in respect of Governors from the Southern
States. Special arrangements shall be negotiated in respect of
governors
of the Conflict Areas.
6. Inclusiveness
6.1. The parties recognize the need for inclusiveness so as to ensure
the sustainability of the interim agreements through a broad based
Government of National Unity. In this regard, the structures of both
Northern and Southern States and of the National Government shall
include political parties and forces other than the two Parties to this
Agreement. Both Parties recognize the need to include members of
parties in opposition to the institutions created by the Peace
Agreement
without denying their own respective responsibilities for, and
leadership of, the Peace Process. The Parties shall work together to
identify and agree upon the proper inclusion of the full diversity of
political opinion.
7. Border Commission
7.1. There shall be established a National Border Commission which
shall
have all necessary powers to review any and all changes to the internal
borders of the Sudan and make recommendations to the National
Legislature to determine the internal boundaries and to return all
areas
to the administrative boundaries as they stood on 1/1/56.
8. Amnesty, Reparations, Truth, Justice and Reconciliation.
8.1. In a future dispensation, the Parties recognize the need to
provide
for a balanced, even-handed and holistic
8.1.1. (incomplete)
8.1.2. Truth and understanding in regard to the conflict, its
consequences, its causes, and the identity of its victims;
8.1.3. to promote justice and the prevention of human rights abuses in
the future, without promoting' a spirit of vengeance;
8.1.4. to promote reconciliation, forgiveness without forgetting,
trust,
understanding, national unity, patriotism and mutual respect;
8.1.5. to provide, as appropriate, compensation/reparations for those
who have suffered loss as a result of the conflict.
8.2. The Parties agree to establish and agree upon a comprehensive
mechanism to operate during the Interim Period, which will give effect
to the issues listed above.
9. Substantially Agreed Text
9.1. The Parties agree that should there be an agreement on the
outstanding issues as listed above, and without further negotiations
between them, to the incorporation in the consolidated text of the
entire text as elaborated in a document entitled " Final Draft 2
Protocol o Power Sharing.
10. PART TWO: WEALTH SHARING
10.1. The Parties agree that the below provisions shall serve as the
basis for a comprehensive text on wealth sharing: (Guiding principles
in
respect of an equitable Sharing of common wealth.)
10.2. The wealth of Sudan must be shared equitably so as to permit each
level of government ID discharge its legal and constitutional
responsibilities and duties.
10.3. The determination of macro-economic policies shall be a duty and
responsibility of the National Government and shall take into account
the needs of the different parts of the country.
10.4. The National Government shall also fulfil its obligation to
provide grants/transfers to the Government of Southern Sudan.
10.5. The sharing and allocation of wealth emanating from the resources
of the Sudan shall ensure that the quality of life, dignity, and living
conditions of all the citizens are promoted without discrimination on
grounds of gender, race, religion, political affiliation, ethnicity,
language, or region. The sharing and allocation of wealth shall be
based
on the premise that all parts of Sudan are entitled to development.
10.6. The parties agree that the Southern Sudan faces serious needs:
(i)
to be able to perform basic government functions, (ii) to build up the
civil administration, and (iii) to rehabilitate and reconstruct the
social and physical infrastructure in a post-conflict Sudan.
10.7. Southern Sudan, and those areas in need of
construction/reconstruction, should be brought up to the same average
social/economic standard and public services as the Northern states.
To
achieve these objectives will take time and effort to build up local
capacity-institutional, human, and economic. - For this purpose, two
special funds shall be established as provided herein.
10.8. That revenue sharing should reflect a commitment to devolution of
power and decentralization of decision-making in regard to development,
service delivery and governance.
10.9. The development of infrastructure, human resources, sustainable
economic development and the capacity to meet human needs shall be
conducted within -a framework of transparent and accountable
government.
10.10. The best-known practices in sustainable utilization and
control
of natural resources shall be followed.
10.11. This Agreement sets out the respective types of income, revenue,
taxes and other sources of wealth to which the various levels of
government are entitled.
10.12. The parties recognize that during the Interim Period, the
National Government will need to mobilize additi6nal national
resources.
10.13. There is a limit on how much additional national resources
can
be
mobilized and part of the national needs in a post-conflict Sudan will
have to be met by external assistance.
10.14. The National Government shall not withhold an allocation due to
a
state or the Government of Southern Sudan. An Organ or level of
Government may approach the Constitutional Court should any other organ
or level withhold monies due to it. The National Government shall make
transfers to the Government of Southern Sudan based on the principles
established for all states.
10.15. In agreeing to these wealth-sharing arrangements the Parties
signal to the international community that it will have to play a
strong
and constructive role in providing post-conflict
construction/reconstruction assistance to Sudan.
10.16. During the Interim Period and in cooperation with international
organizations the National Government of Southern Sudan will develop
and
implement a program for capacity enhancement in the South. The highest
priority should be public finance and intergovernmental relations in
order to ensure accountability.
11. OWNERSHIP OF LAND AND NATURAL RESOURCES LAND
11.1. For the purpose of this agreement:
11.1.1. Subject to paragraph 11.2, "land" means the surface and
subsurface and includes rights in land;
11.1.2. "rights" includes, but is not limited, to ownership rights;
11.1.3. "subterranean natural resources" means minerals naturally
occurring in the subsurface.
11.2. Without prejudicing the Parties' positions with respect to
ownership of subterranean natural resources, including in Southern
Sudan, this Agreement is not intended to address the ownership of those
resources. The Parties may agree to establish a process to resolve
this
issue.
11.3. The Parties agree that the regulation, management, and the
process
for the sharing of wealth from subterranean natural resources are
addressed below.
11.4. The parties record that the regulation of land tenure, usage and
exercise of rights in land is to be a concurrent competency exercised
at
the appropriate levels of government taking into account the regulatory
principles dealt with elsewhere in this Agreement, such as environment
and water.
11.5. Rights in land owned by the Government of Sudan shall be
exercised
through the appropriate or designated levels of Government.
11.6. Parties reaffirm the principle that Sudanese law pertaining to
land, including in Southern Sudan, is based on, among other things,
local customary laws and traditional communal rights to land.
11.7. The Parties agree that a process be instituted to progressively
develop and amend the relevant laws in accordance with paragraph 11.6
and to incorporate international trends and practices.
12. Land Commission
12.1. A National Land Commission (the 'Land Commission') shall be
established in accordance with other provisions~ in this Agreement. It
shall establish state or regional branches in cooperation with
sub-national governments, specifically in Southern Sudan. The Land
Commission and each of its branches shall have the power to investigate
and make recommendations to the appropriate levels of government
concerning:
12.1.1. Content of customary/communal land rights;
12.1.2. the relationship between customary/communal land rights and
other rights in land;
12.1.3. the criteria for recognising customary/communal land rights;
12.1.4. the principles for deciding whether and to whom compensation
should be paid as a result of recognition of customary/communal land
rights.
12.2. The Land Commission and its state or regional branches shall be
independent and exercises its competences. It may be assisted by
appropriate experts.
12.3. The Land Commission shall set national policies to guide the
performance of its functions and that of the state or regional
branches,
and shall coordinate the work of the state or regional branches.
12.4. The Land Commission and its state or regional branches shall be
guided by international best practices and internationally accepted
criteria for recognizing traditional customary law.
12.5. The Land Commission and its state or regional branches may
conduct
hearings and otherwise regulate their own procedures.
12.6. Without prejudicing the jurisdiction of any court, the land
Commission and its state or regional branches may offer to conciliate
among the parties making representation to it in respect of any
question
before it regarding land in order to reach an agreed position with
respect to the recognition of customary/communal land rights, and if
the
parties agree, will so conciliate.
12.7. Any amendment of the law should take into account international
human rights covenants signed by the Republic of the Sudan, and the
recommendations of the Land Commission.
12.8. Each level of government in the Sudan shall support the process
and it is the work of the Land Commission and state or regional
branches.
13. SUBTERRANEAN NATURAL RESOURCES
13.1. The Parties agree that the basis for an agreed and definitive
framework for the sharing of the wealth emanating from subterranean
natural resources shall include the following:
13.1.1. The framework for sharing wealth from the extraction of
subterranean natural resources will balance the needs for national
development and reconstruction and development of Southern Sudan.
13.1.2. Persons enjoying rights in land deserve compensation on just
terms arising from acquisition or development of land for the
extraction
of subterranean natural resources from the area in respect of which the
have rights.
13.1.3. Persons enjoying rights in land shall be consulted and their
consent shall be sought in respect of decisions to develop subterranean
natural resources from the area in which they have rights, and share in
the benefits of that development.
13.2. The state in which development of subterranean~ natural
resources occurs has the right to participate in the negotiation of
contracts for the development of those resources.
13.3. The parties agree that there shall be established a process to
regulate the development of non-petroleum subterranean natural
resources.
14. Petroleum Commission
14.1. The Parties agree that a Petroleum Commission shall be during the
Pre-Interim Period. The Petroleum shall be accountable for its budget
to
the National Assembly.
14.2. The approval of development and exploitation of all petroleum
resources shall only be carried out through the Petroleum Commission.
14.3. Taking into account the provisions elsewhere in this Agreement,
the Petroleum Commission shall be constituted, by the following persons
or their representatives:
14.3.1. Minister of Energy: Chair & Rapporteur; Permanent Member
14.3.2. Minister of finance and National Economy: Permanent Member
14.3.3. Minister of Investment: Permanent Member
14.3.4. Minister of International Cooperation: Permanent Member
14.3.5. Representatives of Government of Southern Sudan: Permanent
Members
14.3.6. Representative(s) of Petroleum Producing State(s): Member(s)
14.3.7. Auditor-General (ex-officio): Permanent Member
14.4. The Petroleum Commission shall have the following functions:
14.4.1. Formulate public policies and guidelines relating to the
development and management of the petroleum sector. These policies and
guidelines shall have regard to:
the national interest and the public good;
the interest of the affected states;
the interests of the local population in affected areas;
national environmental, biodiversity conservation, and cultural
heritage
protection
14.4.2. Monitor and assess the implementation of those policies to
ensure that they work in the best interests of the people of Sudan.
14.4.3. Approve all oil contracts for the exploration and development
of
oil in the Sudan, and ensure they are consistent with the Petroleum
Commission's policies and guidelines.
14.4.4. Approve development plans and operating budget of the Sudan
Petroleum Corporation.
14.5. The Minister of Energy shall decide how the Petroleum Commission
is to be constituted to perform its functions subject to the following
principles:
14.5.1. In performing national functions 14.4~1, 14.4.2 and 14.4.4 of
paragraph 14.4, the Petroleum Commission must include the Permanent
Members of the Petroleum Commission;
14.5.2. In performing function 14.4.3 of paragraph 14.4, the Petroleum
Commission must include all Petroleum Commission Members.
14.6. Persons whose interests are affected by an oil contract shall
have
the right to make submissions to, and be heard by, the Petroleum
Commission. The Petroleum Commission shall decided~ the mechanism for
receiving submissions.
14.7. In performing the approval function referred to in paragraph
14.4.3 the petroleum Commission shall take into account relevant
considerations, including the following:
14.7.1. the extent to which the contract provides benefits to local
communities affected by the development;
14.7.2. the extent to which the views of the state and affected groups
are incorporated in the proposed contract;
14.7.3. the national interest and the public good;
14.7.4. the national environmental interest, biodiversity conservation,
and cultural heritage protection.
14.8. If the Petroleum Commission decides to approve the contract,
persons holding rights in land who are aggrieved by the decision may
seek relief through arbitration or in a court of competent
jurisdiction.
14.9. If the Petroleum Commission approves the contract, the
Minister
of
Energy must sign the contract on behalf of the Government of the Sudan.
14.10. If a Member whether Permanent or representing a Petroleum
Producing State of the Petroleum Commission disagrees with the decision
of the Petroleum Commission to approve a contract relating to his or
her
state, the Minister of Energy must not sign the contract and must refer
the matter to the council of States. If the council of States does not
reject the member's objection by two-thirds majority within 24 hours
sitting days of receiving it, the council of States shall remit it
within that period to mechanism established by it a two-thirds majority
(2/3), to arbitrate on the objection. The arbitration decision should
be
made within no more than six (6). calendar months of referral to
arbitration. The arbitration decision shall be binding. If the Council
of States rejects the objection by two thirds (2/3) majority, the
Minister shall sign the contract.
15. Existing Oil Contracts
15.1. The SPLM shall appoint a limited number of representatives to
have
access to all existing oil contracts. The representatives shall have
the
right to engage technical experts. All those who have access to the
contracts will sign confidentiality agreements.
15.2. Contracts shall not be subject to re-negotiation.
15.3. If contracts are deemed to have fundamental social and
environmental problems, the Government of the Sudan will implement the
necessary remedial measures.
16. Sharing Oil Revenue
16.1. The Parties agree that a formula for sharing the revenue from oil
resources shall be set forth in this Agreement.
16.2. For the purposes of this Agreement 'Net revenue from oil' shall
be
the sum of the net revenue (i) from exports of government oil and (ii)
from deliveries of government oil to refineries. Exports shall be
valued
at the average FOB export prices during the last calendar month in
which
there was an export sale less (i) the pipeline charge~ that would have
been incurred to deliver the oil to Port Sudan, and (ii) the payment to
Sudan Petroleum Corporation (SPC)1 which cannot exceed five percent
(5%)
of net value of oil before the SPC charge. Additional forms of oil
revenue that may accrue in the future shall also form part of net oil
revenue, as appropriate.
16.3. An Oil Revenue Stabilization Account government oil net revenue
derived above an agreed benchmark price. be established annually as
part
of the changing economic circumstances shall be established from actual
export sales The benchmark price will be established annually as part
of
the national budget; reflecting changing economic circumstances.
16.4. After the payment to the Oil Revenue Stabilization Account:
16.4.1. Two percent (2%) of net oil revenue derived from oil producing
contracts current on the date of the beginning of the Interim Period,
shall be transferred to oil producing states in proportion to output
produced in each state;
16.4.2. Two percent (2%) of net oil revenue from contracts that are
not
producing oil at the beginning of the Interim Period, whether signed
before or after that date, shall be transferred to oil producing states
in proportion to output produced in each state