Machakos Protocol

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Country/entity: South Sudan
Sudan
Region: Africa (excl MENA)
Agreement name: Machakos Protocol
Date: 20 Jul 2002
Agreement status: Multiparty signed/agreed
Interim arrangement: Yes
Agreement/conflict level: Intrastate/intrastate conflict
Sudan Conflicts (1955 - )
Agreements relate to several distinct dyads, and also the negotiated independence of South Sudan, and subsequent internal conflict in South Sudan. Sudan-South Sudan. The long-standing conflict between the north and the south of the country dates back to colonial times, where the British introduced a so-called ‘Southern Policy’, severely hampering population movements between these big regions. Immediately after gaining independence in 1956, southern movements started to fight for independence; this fight became professionalised in 1983 with the foundation of the soon internationally supported Sudan People’s Liberation Army (SPLA). When the Islamic Front government introduced strict sharia laws in the south after it took over power in 1988 the war intensified. A decade later, the military situation reached a stalemate, enabling internationally facilitated peace negotiations to begin in 1997. After more fighting, a final negotiation push began in 2002, leading to the signing of the Comprehensive Peace Areement (CPA) in January 2005.

Sudan-South Sudan post referendum. South Sudan became independent in July 2011; since then, relations between the two countries are complicated and violent conflict led by the SPLM (North) in the Sudanese Nuba mountains region has since intensified.

Darfur. Other long-standing violent conflicts are in the east and the west of the country. In the east, the Beja Congress, established in 1957, is the spearhead of a currently ‘peaceful’ opposition movement. In the west, the violent conflict in Darfur intensified in the early 2000s and rapidly gained international attention, even resulting in genocide charges against leading figures of the Sudanese government. The situation on the ground is complex, with over a dozen organisations (most notably the Sudanese Liberation Movement and the Justice and Equality Movement) fighting the Sudanese government and allied groups like the Janjaweed – although all parties have switched sides on numerous occasions. Several mediation attempts have not been successful, due to the shaky commitment of the Sudanese central government and the distrust among the armed opposition.

South Sudan - internal
In December 2013, after president Salva Kiir accused opposition leader Riek Machar of attempting a coup, violent conflict broke out between government forces of the SPLM/A and anti-governmental groups. In addition, several other political militias as well as communal militias have joined the conflict. In 2015 the Agreement on the Resolution of the Conflict in South Sudan (ARCSS) was signed. Due to unsuccessful implementation the agreement was revitalized in 2018. In September 2019, Kiir and Machar agreed to establish a power-sharing government after struggles on forming a unity transitional government.
Stage: Framework/substantive - partial
Conflict nature: Government/territory
Peace process: Sudanese (North-South) peace process
Parties: Government of the Republic of Sudan, Sudan People's Liberation Movement/Sudan People's Liberation Army
Third parties: Witnessed by Lt Ge Lazaro K. Sumbeiywo, Special Envoy IGAD Sudan Peace Process and on behalf of the IGAD Envoys
Description: An agreement to restart the peace process in Sudan, with agreed principles on state and religion, structures of governance, and the right of self-determination for the people of South Sudan. Furthermore, the agreements provides for a transition process, which would entail a six (6) year interim period that would include the establishment of a broad power and wealth sharing framework and conclude with a referendum for the people of Southern Sudan to determine their unity or secession with Sudan. Notable texts of the agreement highlight the separation of state and religious practices, including a constitutional review process to guarantee fundamental human and political rights, as well as noting future discussion on a comprehensive ceasefire and a plan for repatriation, resettlement, rehabilitation and reconstruction of the war-affected areas.

Agreement document: SD_020720_Machakos Protocol.pdf (opens in new tab) | Download PDF

Main category: Page 2, PART A: AGREED PRINCIPLES
1.5. That the people of the Sudan share a common heritage and aspirations and accordingly agree to work together to:
1.5.1. Establish a democratic system of governance taking account of the cultural, ethnic, racial, religious and linguistic diversity and gender equality of the people of the Sudan.

Women, girls and gender

Participation: No specific mention.
Equality: Equality→Equality (general)
Page 3, PART A: AGREED PRINCIPLES
1.5. That the people of the Sudan share a common heritage and aspirations and accordingly agree to work together to:
1.5.1. Establish a democratic system of governance taking account of the cultural, ethnic, racial, religious and linguistic diversity and gender equality of the people of the Sudan.
Particular groups of women: No specific mention.
International law: No specific mention.
New institutions: No specific mention.
Violence against women: No specific mention.
Transitional justice: No specific mention.
Institutional reform: No specific mention.
Development: No specific mention.
Implementation: No specific mention.
Other: No specific mention.

CHAPTER I

THE MACHAKOS PROTOCOL

SIGNED AT MACHAKOS, KENYA ON 20TH JULY, 2002

THE PREAMBLE, PRINCIPLES, AND THE TRANSmON PROCESS

WHEREAS the Oovemrbent of the Republic of the Sudan and the Sudan People's Liberation Movement/Sudan People's Liberation Army (hereafter referred to as the Parties) having met in Machakos, Kenya, from 18th June, 2002 through 20th July, 2002;

and

WHEREAS the Parties are desirous of resolving the Sudan Conflict in a just and sustainable manner by addressing the root causes of the conflict and by establishing a framework for governance through which power and wealth shall be equitably shared and human rights guaranteed;

and

MINDFUL that the G;onflict in the Sudan is the longest running conflict in Africa, that it has caused horrendous loss of life and destroyed the infrastructure of the country, wasted economic resources, and has caused untold suffering, particularly with regard to the people of South Sudan;

and

SENSITIVE to historical injustices and inequalities in development between the different regions of the Sudan that need to be redressed;

and

RECOGNIZING that the present moment offers a window of opportunity to reach a just peace agreement to end the war;

and

CONVINCED that the rejuvenated IGAD peace process under the chairmanship of the Kenyan President, H.E. Daniel T. arap Moi, provides the means to resolve the conflict and reach a just and sustainable peace;

and

COMMITTED to a negotiated, peaceful, comprehensive resolution to the conflict based on the Declaration of Principles (DOP) for the benefit of all the people of the Sudan;

NOW THEREFORE, the Parties hereby agree as follows:

PART A:

AGREEDPRINCIPLES

1.1 That the unity of the Sudan, based on the free will of its people democratic governance, accountability, equality, respect, and justice for all citizens of the Sudan is and shall be the priority of the Parties and that it is possible to redress the grievances of the people of South Sudan and to meet their aspirations within such a framework.

1.2 That the people of South Sudan have the right to control and govern affairs in their region and participate equitably in the National Government.

1.3 That the people of South Sudan have the right to self-determination, inter alia, through a referendum to determine their future status.

1.4 That religion, customs and traditions are a source of moral strength and inspiration for the Sudanese people.

1.5 That the people of the Sudan share a common heritage and aspirations and accordingly agree to work together to:

1.5.1 Establish a democratic system of governance taking account of the cultural, ethnic, racial, religious and linguistic diversity and gender equality of the people of the Sudan.

1.5.2 Find a comprehensive solution that addresses the economic and.

social deterioration of the Sudan and replaces war not just with peace, but also with social, political and economic justice which respects the fundamental human and political rights of all the Sudanese people.

1.5.3 Negotiate and implement a comprehensive ceasefire to end the suffering and killing of the Sudanese people.

1.5.4 Formulate a repatriation, resettlement, rehabilitation, reconstruction and development plan to address the needs of those areas affected by the war and redress the historical imbalances of development and resources allocation . . ·

1.5.5 Design and implement the Peace Agreement so as to make the unity of the Sudan an attractive option especially to the people of South Sudan.

1.5.6 Undertake the challenge by finding a framework by which these common objectives can be best realized and expressed for the benefit of all the Sudanese.

PART B:

THE TRANSITION PROCESS

In order to end the conflict and to secure a peaceful and prosperous future for all the people of the Sudan and in order to collaborate in the task of governing the country, the Parties hereby agree to the implementation of the Peace Agreement in accordance with the sequence, time periods and process set out below.

2. There shall be a Pre-Interim Period, the duration of which shall be six (6) months.

2.1 During the Pre-Interim Period:

a) The institutions and mechanisms provided for in the Peace Agreement shall be established;

b) If not already in force, there shall be a cessation of hostilities with appropriate monitoring mechanisms established;

c) Mechanisms to implement and monitor the Peace Agreement shall be created;

d) Preparations shall be made for the implementation of a comprehensive ceasefire as soon as possible;

e) International assistance shall be sought;

and

f) A Constitutional Framework for the Peace Agreement and the institutions referred to in 2.1 (a) shall be established.

2.2 The Interim Period will commence at the end of the Pre-Interim Period and shall last for six (6) years.

2.3 Throughout the Interim Period:

a) The institutions and mechanisms established during the Pre-Interim Period shall be operating in accordance with the arrangements and principles set out in the Peace Agreement.

b) If not already accomplished, the negotiated comprehensive ceasefire will be implemented and international monitoring mechanisms shall be established· and operationalized.

2.4 An independent Assessment and Evaluation Commission(AEC) shall be established during the Pre-Interim Period to monitor the implementation of the Peace Agreement and conduct a mid-term evaluation of the unity arrangements established under the Peace Agreement.

2.4.1 The composition of the Assessment and Evaluation Commission shall consist of equal representation from the GOS and the SPLM/ A, and not more than two (2) representatives, respectively, from each of the follow.ing categories:

2.4.1.1 Member states of the IGAD Sub-Committee on Sudan (Djibouti, Eritrea, Ethiopia, Kenya and Uganda);

2.4.1.2 Observer States (Italy, Norway, UK and US);

and

2.4.1.3 Any other countries or regional or international bodies to be agreed upon by the Parties.

2.4.2 The Parties shall work with the Commission s:

luring the Interim Period with a view to improving the institutions and arrangelltents created under the Agreement and making the unity of Sudan attractive to the people of South Sudan.

2.5 At the end of the six (6) year Interim Period there shall be an internationally monitored referendum, organized jointly by the GOS and the SPLM/ A, for the people of South Sudan to:

confirm the unity of the Sudan by voting to adopt the system of government established under the Peace Agreement;

or to vote for secession.

2.6 The Parties shall refrain from any form ·of unilateral revocation or abrogation of the Peace Agreement.

STATE AND RELIGION

Recognizing that Sudan is a multi-cultural, multi-racial, multi-ethnic, multi-religious and multi-lingual country and confirming that religion shall not be used as a divisive factor, the Parties hereby agree as follows:

6. 1 Religions, customs and beliefs are a source of moral strength and inspiration for the Sudanese people.

6.2 There shall be freedom of belief, worship and conscience for followers of all religions or beliefs or customs and no one shall be discriminated against on such grounds.

6.3 Eligibility for public office, including the presidency, public service and the enjoyment of all ri ghts and duties shall be based on citizenship and not on religion, beliefs or c ustoms.

6.4 All personal and family matters including marriage, divorce, inheritance, succession and affiliation may be governed by the personal laws (including Sharia or other religious laws, customs or traditions) of those concerned.

6.5 The Parties agree to respect the following Rights:

6.5. 1 To worship or assemble in connection with a religion or belief and to establish and maintain places for these purposes;

6.5.2 To establish and maintain appropriate charitable or humanitarian institutions;

6.5.3 To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief;

6.5.4 To write, issue and disseminate relevant publications in these areas;

6.5.5 To teach religion or belief in places suitable for these purposes;

6.5.6 To solicit and receive voluntary financial and other contributions from individuals and institutions;

6.5.7 To train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief;

6.5.8 To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one's religious beliefs;

6.5.9 To establish and maintain communications with individuals and communities in matters of religion and belief and at the national and international levels;

6.5.10 For avoidance of doubt, no one shall be subject to discrimination by the National Government, state, institutions, group of persons or person on grounds of religion or other beliefs.

6.6 The Principles enumerated in Section 6.

1 through 6.5 shall be reflected in the Constitution.

PART C:

STRUCTURES OF GOVERNMENT

To give effect to the agreements set out in Part A, the Parties, within a framework of a unified Sudan which recognizes the right to self-determination for the people of Southern Sudan, hereby agree that with respect to the division of powers and the structures and functions of the different organs of government, the political framework of governance in the Sudan shall be structured as follows:

3.1 Supreme Law

3 .1.1 The National Constitution of the Sudan shall be the Supreme Law of the land All laws must comply with the National Constitution.

This Constitution shall regulate the relations and allocate the powers and functions between the different levels of government as well as prescribe the wealth sharing arrangements between the same.

The National Constitution shall guarantee freedom of belief, worship and religious practice in full to all Sudanese citizens.

3.1.2 A representative National Constitutional Review Commission (NCRC) shall be established during the Pre-Transition Period which shall have as its first task the drafting of a Legal and Constitutional Framework to govern the Interim Period and which incorporates the Peace Agreement.

3.1.3 The Framework mentioned above shall be adopted as shall be agreed upon by the Parties.

3.1.4 During the Interim Period an inclusive Constitutional Review Process shall be undertaken.

3.1.5 The Constitution shall not be amended or repealed except by way of special procedures and qualified majorities in order that the provisions of the Peace Agreement are protected.

3.2 National Government

3.2.1 There shall be a National Government which shall exercise such functions and pass such laws as must necessarily be exercised by a sovereign state at national level.

The National Government in all its laws shall take into account the religious and cultural diversity of the Sudanese people.

3.2.2 Nationally enacted legislation having effect only in respect of the states outside Southern Sudan shall have as its source of legislation Sharia and the consensus of the people.

3.2.3 Nationally enacted legislation applicable to the Southern States and/or the Southern region shall have as its source of legislation popular consensus, the values and the customs of the people of Sudan (including their traditions and religious beliefs, having regard to Sudan's diversity).

3.2.4 Where national legislation is currently in operation or is enacted and its source is religious or customary law, then a state or region, the majority of whose residents do not practice such religion or customs may:

(i) Either introduce legislation so as to allow or provide for institutions or practices in that region consistent with their religion or customs, or

(ii) Refer the law to the Council of States for it to approve by two-thirds (213) majority or initiate national legislation which will provide for such necessarv alternative institutions as is appropriate.

THE RIGHT TO SELF-DETERMINATION FOR THE PEOPLE OF SOUTH SUDAN

1.3 That the people of South Sudan have the right to self-determination, inter alia, through a referendum to determine their future status.

2.4 An independent Assessment and Evaluation Commission shall be established during the Pile-Transition Period to monitor the implementation of the Peace Agreement during the Interim Period.

This Commission shall conduct a midterm evaluation of the unity arrangements established under the Peace Agreement.