Following decades of civil war, the Comprehensive Peace Agreement of 2005 provided southern Sudanese with the opportunity to exercise their right to self-determination by way of a referendum. In January 2011, voters overwhelmingly supported the call for secession from Sudan.
In the course of the lengthy negotiations that have followed, the future status of more than a million people of southern origin living in the North has emerged as one of the most contentious issues, as has the fate of northerners living in the South.
The question of how nationality and citizenship are to be defined and addressed upon South Sudan’s secession on July 9 has been debated both in the legal and political spheres. Social anthropologists such as Munzoul Assal have also contributed to our understanding by cautioning that nationality and citizenship – while sometimes used as synonyms – have different meanings in different contexts. He indicates that in Sudan, both law and common discourse focus on nationality (jinsiyya in Arabic) rather than on citizenship (muwatana in Arabic). Because it is based on ancestry, the concept of nationality valorizes ethnicity. In multi-ethnic countries like Sudan, where ethnicity provides a basis for stratification, Assal warns that emphasizing nationality instead of citizenship results in disenfranchising the less privileged segments of the population. He therefore underscores the need to shift the emphasis from nationality to citizenship, which becomes particularly urgent as the constitutional foundation is being laid for two new states.
His views echo the calls made by numerous advocacy groups to reject ethnicity as the basis for determining citizenship and instead adopt the non-discriminatory norms established by international human rights law. These groups, such as the Open Society Foundation, caution that the instinctive response to define citizenship on the basis of who is ‘indigenous’ is very poorly adapted to today’s world of post-imperial states, where populations have moved – or been moved – within borders that have since changed. More importantly, they caution that the severe disenfranchisement that flows from citizenship defined on the basis of ethnicity breeds resentment that can ultimately threaten the stability of a nation. The same can be said of discrimination on the basis of ethnicity in administrative practice relating to citizenship, rather than in the law itself. Côte d’Ivoire serves as a poignant illustration of that fact.
Fortunately, Article 45 of the draft Transitional Constitution of the Republic of South Sudan constitutes an important shift away from discriminatory citizenship criteria. The extent of the protection afforded will nonetheless depend on the form and content of the nationality law adopted by the forthcoming Parliament. Given Sudan’s complex history of internal displacements, one of the most important criteria to be adopted in the determination of citizens upon independence will be that of attributing nationality on the basis of habitual residence. While the concept of habitual residence may apply with greater difficulty to pastoralist communities whose grazing territories extend over both states, it remains that the challenges involved are arguably more political than technical. The extraordinary leadership that will be required of South Sudan’s authorities to overcome such challenges cannot be understated. The promise of this new nation nonetheless rests on its ability to ensure that all those with a legitimate claim to South Sudanese citizenship can take part – as equals – in the laying of its foundation.
For further reading on citizenship and nationality in Sudan, please see 'International Law and the Right to Nationality in Sudan' by Bronwen Manby. Open Society Foundations (February 2011).