USG SHOULD EMPHASIZE IMPORTANCE OF CONSENSUS ON SOUTHERN

UNCLAS SECTION 01 OF 02 KHARTOUM 000562

DEPT FOR SE GRATION, S/USSES, AF A A/S CARTER, AF/E, AF/C, DRL
NSC FOR MGAVIN AND CHUDSON
DEPT PLS PASS USAID FOR AFR/SUDAN
ADDIS ABABA ALSO FOR USAU

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PGOV PREL KDEM SOCI ASEC AU UNSC SU
SUBJECT: USG SHOULD EMPHASIZE IMPORTANCE OF CONSENSUS ON SOUTHERN
SUDAN REFERENDUM BILL, SAYS STATE MINISTER

Refs: A. Khartoum 240

B. Khartoum 182


1. (SBU) Summary. According to Government of National Unity (GNU)
State Minister of Justice Wek Mamer Kuol, there has been minimal
progress on legislative reform over the past several months,
particularly with regard to the National Security Law and the
Southern Sudan Referendum Bill. The sticking points on the National
Security Law between the National Congress Party (NCP) and the Sudan
People's Liberation Movement (SPLM) remain the same - the NCP wants
the National Security and Intelligence Service (NISS) to retain its
broad arrest and detention authority, while the SPLM says it should
only be an information-gathering service that has the right to
advise other agencies on security measures. There has been no
discussion on the Southern Sudan Referendum Bill since the NCP
insisted that the two parties first hammer out post-2011
arrangements (on wealth-sharing, water-sharing, debt repayment,
etc). The National Assembly is currently debating the press/media
bill and three others. International human rights watch groups have
publicly criticized the reformed press/media bill, saying that it
doesn't adequately lift repressive measures that will allow for an
independent media. Wek said that the USG's assistance is needed in
pressuring the parties to reach consensus on the southern Sudan
Referendum Bill so that it can be tabled for the Parliament's review
during the current session. The Bill is the one piece of
legislation that could cause the parties to return to war, said Wek.
End Summary.


2. (SBU) On April 22, GNU State Minister of Justice Wek Mamer Kuol
(SPLM) provided poloff with an update on key national legislation,
including the National Security Law, the Press/Media Law, and the
Southern Sudan Referendum Bill. Poloff last met with Minister Wek
in late February 2009 for a legislation status update;
unfortunately, there has been very little progress on the
legislation over the last two months, according to Wek (ref A).

STATUS OF BILLS IN THE NATIONAL ASSEMBLY
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3. (SBU) Five bills have been tabled for the National Assembly's
review and ratification since the Assembly's opening on April 6.
Only one of them - the Human Rights Commission Law - has been
ratified; the rest, which include the Media/Press Bill, the Land
Commission Bill, and the Criminal and Civil Procedures Bills -
remain under debate. Before reaching the Assembly, the bills were
agreed upon by the NCP-SPLM joint legal and/or joint political
executive committees, except for the Criminal Procedures Bill (also
known as the Penal Code). According to Wek, the NCP and SPLM had
agreed upon a Criminal Procedures Bill which included a chapter on
humanitarian law (Chapter 18). Chapter 18 addressed criminal
procedures for those found guilty of genocide, crimes against
humanity, terrorism, and other violations of international
humanitarian law. Wek explained that the NCP "smuggled" the
agreed-upon bill minus Chapter 18 into Parliament so as to avoid
having the bill address crimes for which GNU President Al-Bashir and
his henchmen have been indicted by the International Criminal Court
(ICC). According to Wek, there is a big row in the Assembly over
what happened to Chapter 18. "They [the NCP] are doing dirty
things," said Wek.


4. (SBU) Wek was positive about the reformed Media/Press Law, which
went through several iterations between the parties prior to being
tabled for the Assembly's review. Previously, there was
disagreement between the parties on whether a media code of conduct
should be included in the law (reftels). Ultimately, the parties
decided that it wasn't necessary. Wek said the intent with the
reformed law is to create an independent, free media that is not
subjected to the powers of the executive or legislative branch. Wek
noted that the bill could be amended in the National Assembly. As
with all things in Sudan, the proof of the pudding in terms of a
reformed environment for the press/media will be in the
implementation of the reformed law, he said. [Note: Human Rights
Watch and other international rights group have heavily criticized
the latest version of the reformed bill, stating that it retains
many repressive provisions that do not adequately protect the
freedom of speech nor allow for an independent media. This raises
considerable concern that the media environment will not change, and
that the changes adopted by the parties are more cosmetic than
substantive. End note.]

BILLS UNDER HEATED DEBATE BETWEEN THE PARTIES
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5. (SBU) Three laws remain under heavy debate between the parties -
the National Security Law, the southern Sudan Referendum Law, and

KHARTOUM 00000562 002 OF 002


the Trade Union Act. The Security Law, which is being debated at
the level of the SPLM-NCP political executive committee (chaired by
GNU Vice President Taha and Government of Southern Sudan Vice
President Machar) is subject to an intense back-and-forth between
the parties. Wek said that the main sticking points have not
changed - the National Intelligence and Security Services' (NISS)
power of arrest and the method of selection for the NISS Director
and his deputies (refetl). Wek showed poloff the NCP's latest
version of the draft bill, which he said was "worse than its
previous version." He pointed to one example as the NCP's change of
wording to refer to NISS as a "regular organized force" rather than
a "service." According to Wek, this is dangerous because it
provides NISS with its own military or police-like authority. Wek
says the two parties continue to disagree on the basic authorities
and responsibilities of NISS. The SPLM contends that it should only
be an intelligence-gathering service that advises and recommends
security measures to other authorities (such as the Attorney
General's Office),while the NCP argues that it should have broad
arrest and detention authorities.


6. (SBU) Wek noted that there has been no progress on the Southern
Sudan Referendum Bill for months. According to the State Minister,
the SPLM is still waiting for the NCP's post-2011 arrangements
proposal before negotiating on the Referendum Bill (a stipulation
made by the NCP). Wek noted that if the USG is to help pressure the
parties into legislative reform, it should focus its efforts on the
Southern Sudan Referendum Bill, so that a Commission can be
established and referendum preparation can get underway. "I would
appreciate it if the USG could emphasize the need for consensus to
be reached on the Referendum Bill, because it is the one piece of
legislation that if not agreed upon, could convince people to go
back to war," said Wek.

BILLS OUTSTANDING WITH THE NCP
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7. (SBU) At least a dozen more bills are outstanding with the NCP
for its review, said Wek. These include laws on public service,
customs, civil defense, telecommunications, civil records, banking,
the Abyei referendum, the popular consultations in Blue Nile and
Southern Kordofan, and others (reftels).

COMMENT
- - -

8. (SBU) The GNU's track record of substantive reform on national
legislation since the signing of the CPA has been disappointing.
The CPA parties have been engaged in a painfully slow process of
incremental give and take on some legislation, while debate on other
legislation is completely stalled, and reform of the media/press law
is not what the international community had hoped. The NCP has
shown that it is completely unwilling to budge on the powers of
NISS. This is not surprising, as NISS is the regime's strongest
tool for retaining control over the state apparatus and staying in
power. Also not surprising is the fact that the NCP has hijacked
the debate on the Southern Sudan Referendum Bill, holding it hostage
in exchange for the SPLM's agreement on post-2011 arrangements; the
NCP would prefer to delay this discussion (and the referendum) as
long as possible. However, it is a risky course of action, since
attaining a free and fair referendum on secession is the core
political objective of the SPLM and ninety percent of southerners
(according to polling data). While the pace and substance of
legislative reform has been sub-par, Wek correctly points out that
the one bill - if not agreed to by the parties and passed by the
National Assembly - that can cause this country to go back to war is
the Referendum Bill. The USG should put emphasis on the parties'
need to reach consensus on this bill quickly so that 2011 referendum
preparation (the end game of the CPA, particularly for the South)
can get underway in a peaceful fashion. This can best be achieved
through trilateral discussions on CPA implementation between SE
Gration, the SPLM, and the NCP. The USG should also emphasize that
post-2011 arrangements in the event of unity or separation are
important and should begin immediately begin, but should be delinked
from the negotiation and passage of the Southern Sudan Referendum
Law. The referendum must occur regardless of what assurances are
provided to the North, though it is in the interests of all Sudanese
to ensure that this is a peaceful process. Assurances on oil wealth
sharing (whether in the form of transit fees or some other
formulation),debt burden sharing, and other issues are the best way
of promoting a peaceful process to the greatest extent possible. End
Comment.

FERNANDEZ