I also feel duty-bound to explain my dissent comprehensively not only because the litany of negative observations I have just enumerated would of itself warrant a full exposé but equally because this is no ordinary arbitration. Its outcome will, in all likelihood, have a profound impact on the future of the Sudan as a State and the peace and well-being of all its long-suffering citizens regardless of their ethnicity or creed.
"Permanent villages, and cultivations are set along the higher ground north of Bahr el Arab, while dry season grazing grounds are for the most part in the open grassland (toich) south of the river. Villages are usually built close to the river or to one of the main watercourses, since water is more easily available during the early part of the dry season, either in pools or in shallow wells dug in the river bed. Clusters of homesteads each consisting of several living-huts (ghot) and one or more cattle byres (luak) are built in an almost continuous line along these rivers."8
"The Ngork Dinka... occupy an area along the middle reaches of the Bahr el Arab. They border the Rueng Alor Dinka in the south-east and the Twij Dinka to the south, and with both of these peoples have close cultural affinities. To the south-west are the Malwal Dinka. North of the Ngok are the Baggara Arabs of the Messeria Humr, with whom they have direct and seasonal contact...".9
"The real area of shared grazing was further south, in the Bahr. There, the two groups co-existed for a fairly short season - but this was not a 'hostguest' relationship. At this season it was the Dinka who, apart from a few caretakers, left to go south as part of a transhumance pattern rather than one of nomadism."17
"However, a close reading of the evidence shows that an expansive view of the area occupied by the Ngok Dinka, such as to encompass the Bahr up to, and as far east as, Lake Keilak and Lake Abiad, is not warranted. Rather, the evidence indicates that Ngok territory occupation was concentrated approximately between the longitudes provided by Howell, up to latitude 10° 10'N."19
"In Cunnison's analysis, the Ngok Dinka permanent settlements are in fact mostly located around the Bahr river system, which includes the Bahr el Arab, the Ragaba Umm Biero, and the Ragaba ez Zarga, and 'numerous winding watercourses all connected eventually with the Bahr el Arab'. While this area does not go beyond latitude 10° 10'N - where as noted by Professor Cunnison there is no significant collective presence of the Ngok Dinka (in the north west, in the goz, in north east, in the upper Bahr region towards lake Keilak and Abiad) - Howell's lines of latitude do encompass and coincide roughly with much of the three main rivers and intricate network of smaller waterways of this portion of the Bahr, as shown on the Tribunal's Award Map."22
Here, the majority rely on Cunnison's reference to "numerous winding watercourses, all connected eventually with the Bahr el Arab".23 Remarkably, when Cunnison was describing the Bahr using this phrase, he was doing so in the context of depicting where Homr presence was. Furthermore, within that area under its expansive definition, Cunnison distinguished between the "Regeba" and the "Bahr proper". Cunnison noted that the part of the Homr dry-season watering country known as "[t]he 'Bahr' proper" was located "mainly around the largest watercourses, the Regeba Umm Bioro and Regeba Zerga".24
a. The area of the Bahr in its upper reaches certainly does not go beyond 10° 10' N (the Bahr el Arab enters Kordofan from Darfur at 9° 52' N, the Ragaba Um Biero's upper reach and the Ragaba ez Zarga's upper reach are not free of controversy)26 but in any event they do not go to 10° 10'N.27
b. Even if they did, there is no evidence or suggestion by either Cunnison or Howell that the Ngok had reached the upper reaches of these watercourses even in the mid-20th century, let alone in 1905.
c. Howell expressly maintains that the Ngok Dinka are along the "middle reaches" of the Bahr and the two Ragabas.
d. Assuming there were Ngok Dinka settlements on the upper reaches of the Ragaba Um Biero, the distance from there to the eastern Howell "line" where it intersects 10° 10'N would be roughly 150 kilometres. It would be roughly the same from the upper reaches of the Ragaba ez Zarga and even greater from the Bahr el Arab. What is the special quality of Ngok dug dugs that can generate so much entitlement to territory?
e. Howell's longitudinal references are expressly stated to be approximate. He never described them as extending to 10° 10'N. On top of this considerable uncertainty, the defence for the 29° E and 27° 50'E lines is that the area coincides roughly with Howell's limit. Thus an approximate description of an area along the middle reaches of the river and the Ragabas is mysteriously understood to reach 10° 10'N in the face of contrary evidence from the quoted authority, and, as if this is not enough, an area described by Cunnison is interpreted without reason as roughly corresponding to Howell's eastern and western limits, and, by being quoted out of context, is superimposed on the Howell "lines" to produce the eastern and western borders. If this is not frivolous reasoning, nothing is. I do not think the whole history of delimitation has attested a more vague criterion on which to effect territorial delimitation.
f. The habit of quoting out of context and misinterpreting is repeated. The 1912 Kordofan Handbook is misquoted: according to the Award it "locates the Ngok Dinka in the centre and the west of the area extending from the Bahr el Arab to Lake Abiad".28 The statement in the 1912 Kordofan Handbook locating the Ngok Dinka is worth quoting in full:
"The three main divisions are: -- On the east, the Ruweng section under Sultan Anot; in the centre, the followers of the late Sultan Rob, who are now under his son, Kanoni; and to the west, a number of Rob's ex-followers, under another of his sons named Kwal."29
It is plain that these words mean that the Rueng, a Dinka but not a Ngok Dinka tribe were to the east, and to the west of them were two Ngok groups: in the centre the followers of Kanoni, son of Sultan Rob (whose presence on the Kiir in 1905 is beyond dispute) and yet to the west of that were the followers of another of his sons. How this is transformed into "additional evidence" to confirm the western and eastern "lines" attributed to Howell30 is based on anything but contradictory reasoning is beyond my comprehension.
a. A remark recorded in 1954 by Michael Tibbs that the area around Gerinti very close to longitude 27° 50' E is "Ngok territory, although the Arabs used to graze in it in the spring".32 This clearly means that the area was a shared grazing rights area and described the position around his time. It is difficult to see how it can be transposed back to 1905 when more contemporaneous evidence, such as that of Willis,33 points to a much more limited presence of the Ngok being the case. To fit, at any cost, the 1905 reality with the position around Howell's times, the earlier and naturally more pertinent evidence is either ignored or misinterpreted. Sultan Rob's statement that there "are only Humr" west of him is dismissed as "equally unhelpful" or in the SPLM/A pleadings as "dissembled",34 words which in themselves reveal how result-driven the exercise is. Of course it is unhelpful because Sultan Rob, the Paramount Chief of the Ngok Dinka, was reflecting the simple truth. He was not interested in being helpful to the Tribunal in trying to build its house of hope by drawing unreasoned straight lines in the sands and ascribing them to Howell.
b. Tibbs’s remark that "while the Dinka tolerated the Misseria, neither of them wanted the Rizeigat from Darfur there".35 This means only that two pastoralist tribes from the same "dar" did not want an "intruder" from a different dar (dar-fur). This statement relating to the 1940s or 1950s should be read in context. The exact relationship between the Misseriya and the Dinka was explained more thoroughly by Cunnison than anyone else. His explanation merits reproduction in full:
"The real area of sharing was further south, in the Bahr. There the two groups co-existed for a fairly short season - but this was not a 'host-guest’ relationship. At this season it was the Dinka who, apart from a few caretakers, left to go south as part of a transhumance pattern rather than one of nomadism. As I noted in my book (p. 19) 'much of the Bahr has permanent Dinka settlements, although during most of the time that the Humr occupy it the Dinka are with their cattle south of the Bahr al-Arab’. I never observed the Humr asking permission from Dinka to come to the Bahr, and they did not consider themselves as visitors there. The whole region was regarded by the Humr as their 'dar’ or country."36
a. The Award quotes Robertson's study of Kordofan in 1933-1936 in which Robertson describes a tribal incident that occurred in that period when the people of the Western Nuer District in Upper Nile Province "had crossed the Ragaba and built their big cattle luarks - thatched huts - on the Kordofan side of the river, thereby trespassing on the Ngok Dinka lands" and he gave orders to burn the huts and make the intruders "go back to their own tribal lands".40 The facts are undisputed but they do not support the conclusion drawn. The Nuer, or to be more precise those who came from the western Nuer district, in Upper Nile must have crossed the Ragaba ez Zarga around 29° E, Howell's alleged "line", but they must have crossed around 9° 45'N (unless they went up to 10° 10'N and then down again to 9° 45'N in order to be more helpful to the Tribunal and only then crossed the Ragaba), and by this time there is no disagreement that the Ngok Dinka were (at these locations) on the Ragaba ez Zarga. This is confirmed also by the map bearing the title "Native Administrations of Kordofan Province" and dated 1941.41 But it is clear that official action was taken only after the intruders from Upper Nile crossed the Ragaba. However, the Ragaba ez Zarga does not go at this longitude up to 10° 10'N, which is 50 kilometres due north, but flows in a westerly, then slightly north-westerly direction. Moreover the fact that the Nuer crossed the Ragaba confirms clearly that the Ngok, even at this location, were on the southern side of the Ragaba. The use of this evidence is not only ill-advised; it is contradictory with the result sought.
b. The second remark I wish to make relates to another inference drawn from this tribal incident. In the same place, the Award goes on to state:
"This description (of 29° E) is more useful to this Tribunal than Dupuis' sketch which merely suggests that the Ngok Dinka's southeastern border is with the Rueng, a border in any event confirmed by Howell. It is also a more reliable and better indication than the village of Etai, which the GoS claims is evidence of the Abyei area's eastern limit."42
"If the Tribunal determines that the ABC experts exceeded their mandate, it shall make a declaration to that effect, and shall proceed to define (i.e. delimit) on map the boundaries of the area of the nine Ngok Dinka Chiefdoms transferred to Kordofan in 1905, based on the submissions of the Parties."
"following the principles of equity in accordance with law, when an arbitral award embraces several independent claims, and consequently several decisions, the nullity is one without influence on any of the others, more especially when, as in the present case, the integrity and good faith of the Arbitrator are not questioned".69
"any administrative boundary as may have existed did not or could not have coincided exactly with boundaries of land use rights of sedentary or pastoral peasant communities whose tenure rights and obligations overlap in the absence of concrete walls separating the communities".80
"It is critical in interpreting the established occupation, land rights and land use of the two communities to appreciate the sociological fact that by 1905 there existed three main categories of such occupation, land rights and land use:
(i) Dominant occupation, land rights and land use by a community that were 'exclusive’ to members of the community and permitted no cession of secondary use rights to non-members of the community;
(ii) Dominant occupation, land rights and land use by a community but allowing for non-members of the community to acquire limited land use rights on seasonal basis or sporadic periods - the 'primary’ and 'secondary’ rights paradigm;
(iii) 'Shared secondary' occupation, land rights and land use by members of two or more communities within a territory marking the 'boundaries' between them - the so-called 'conflicting': or 'no man's land' or the 'Goz'."81
"... the most articulate and elaborate definition of dar rights has been that of Hayes.
After hearing a great deal of oral evidence concerning the traditional and customary conception of 'Dar rights', and after collecting extensive corroborating evidence from provincial and district files, Hayes, who was a high court judge in the Sudan between 1944 and 1953, defined dar rights as follows:
If I had to declare what these [Dar] rights comprise, I should have said that, where there is no settled government outside the Dar and with authority over it, Dar rights are almost the same as the right of sovereignty, the only substantial difference from normal State sovereignty being that, with the nomads, boundaries are drawn with less precision. Where, however, there is a settled government, as in the Sudan, Dar rights are restricted to the extent of the State's encroachments upon them. The principal rights brought to my notice, apart from rights of normal user, were:
The right to admit or refuse strangers to water and graze in the Dar, and the right to impose conditions on such entry.
The right to build permanent buildings in the Dar.
The right to cultivate.
The right to sink new wells, or dig out old ones.
The right to beat the nuggara (drum), and to put wasms (tribal marks) on trees and rocks.
As to cultivation, the holder of the Dar is entitled to exact from strangers admitted the same tribal dues on cultivation - known as sharaiya - as he exacts from his own tribesmen.’
During my field work, I asked the present Nazir, the Paramount Sheikh of the Shukria, Mohamed Hamed Abu Sin, to describe the nomadic pastoralists’, the small cultivators’ and their leaders’ conceptions of dar rights and how these conceptions have been continuing and changing over time. The fit between his definition of dar rights and the definition given by Hayes is astonishingly analogous."84
"As I noted in my book (p. 19) much of the Bahr region has permanent Dinka settlements, although during most of the time the Humr occupy it the Dinka are with their cattle south of the Bahr al Arab. I never observed the Humr asking permission from Dinka to come to the Bahr and they did not consider themselves to be visitors there."89
"As I note at pp. 146-147 of the book, the Humr did not have any conception of individual or collective legal title to grazing land. They regarded all the grazing land they used as public land, open and available to them."91
"Unlike in northern Sudan where dar rights are said to antedate the advent of the Funji kingdom, in southern Sudan the concept of dar was alien to the culture and land tenure systems of the Nuer and Dinka peoples. In addition, to borrow Johnson's eloquent formulation, among these societies the border is '... a transitional zone where one system merges into the other: a border without a boundary'."93
"For the tribes, abstract imaginary lines marked on maps were devoid of meaning. For them not only were boundaries porous, they were also naturally represented in the form of river courses, large trees, mountains or hills. The most natural boundary was one marked by a river course. That was the reason why in the pre-reconquest period and for some time after the reconquest, both the northern and the southern tribes perceived the Bahr al-Arab as forming the natural frontier separating the northern and the southern tribes."94
"Proposition 8: There was a continuity in the territory occupied and used by the nine Ngok Dinka chiefdoms which was unchanged between 1905 and 1965, when armed conflict between the Ngok and the Misseriya began. (Ngok oral testimony and SPLM/A presentation)"101
"The administrative record of the Condominium period, along with the testimony of persons familiar with this area at the end of the Condominium, establishes that there was a continuity of Ngok Dinka settlements in the area of the Bahr el-Arab/Kir, the Umm Bieiro, the Ragaba Lau, and the Ragaba ez-Zarga/Ngol."102
"For instance, in 1909 Kordofan official C.A. Willis wrote that Ngok settlements were found all along the Gurf (Bahr et-Arab) and that Dinka influence extended a considerable distance further North at one time. Michael Tibbs states categorically that there was continuity of the Ngok settlements up to the end of the Condominium. Ian Cunnison was equally definite in stating that the general area in which the Ngok maintained their permanent settlements remained the same over the years. At the peace agreement between the Misseriya Humr and the Ngok Dinka in March 1965 both sides agreed that the Ngok could return to their homesteads at 'Ragaba Zarga and other places where they used to live' and that the Arabs would have unrestricted access to all ragabas that they had been frequenting before the outbreak of hostilities."103
"The Dinkas have a certain number of slaves. I gather some were obtained in the famous year of starvation; others from the Rizeigat and Nuer (and possibly Nubas, though I saw none; Dinka influence extended a considerable distance further North at one time)."107
"Quite definite in stating that the general area in which the Ngok maintained their permanent settlements remained the same over the years. There were a lot of Dinka villages around Lau, and upstream along the Bahr el-Arab, and also eastward.
It is very likely that the Dinka lived along the R. Zerga before the Humr came, based on the fact that they were there before the Humr and would have occupied the Zerga as an ecological niche."109
"The substantial nature of Dinka houses means that their settlements have remained similar for a long period - probably from the beginning of the 20th century, or the end of the Mahdiya.
I said to you that Dinka were on the Regeba Zerga before the Humr. But I do have statement from an old Humnawi which suggests that before the Mahdiya, in the Jellaba period, the regeba was unoccupied. (It seems unlikely.)"110
"Both sides agreed to restore normalcy to relations between them to pre-fighting modes of normal interaction; that is, the return of Dinka to their homesteads at Ragaba Zarga and other localities, and that the Arabs shall have unrestricted access to all Regeba’s that they had been frequenting before the outbreak of hostilities.
Both sides have also agreed that each shall hold meetings with the local security authorities at Abyei for the normalization of relations and the execution of the terms of this agreement."111
"In March 1965 both sides agreed that the Ngok could return to their homesteads at 'Ragaba Zarga and other places where they used to live' and that the Arabs would have unrestricted access to all ragabas that they had been frequenting before the outbreak of hostilities."112
"At a peace conference in Abyei in March 1966: Nazir Baboo also claimed that the Ragaba Zarga belonged to the Humur who were kind enough to allow the Ngok to settle there... This is the first time claims on the territory known as Ngokland have been tabled by Misiriyya openly in a conference."113
"There are strong arguments for the continuity of Ngok Dinka settlement along the main waterways of the Bahr el-Arab basin (the Bahr el-Arab/Kir Itself, the Umm Bierio, the Ragaba Lau, the Ragaba ez-Zarga/Ngoi and its tributaries). This is not only suggested by the evidence cited in the previous propositions, but is confirmed by the testimony of two impartial witnesses who were familiar with the area and the use to which its inhabitants put it immediately prior to independence (Tibbs and Cunnison in Appendix 4.3)."117
The Experts' Report continues:
"We do not have a detailed and systematic description of Ngok settlement and land use patterns throughout the Condominium period, because of the seasonality of administrative visits to Ngok territory. Since officials came only in the dry season (between December and April: Tibbs in Appendices 5.7 and 5.13), what few descriptions we do have are of Ngok dry season activities, which were concentrated around the rivers. But there are suggestions from the beginning of the twentieth century that administrators were aware that Ngok Dinka territory extended further north (Mahon 1903, Willis 1909 in Appendix 5.13), and this seems to have been the basis on which settlement and grazing patterns were condoned and managed by subsequent generations of administrators throughout the Condominium period, following the general principle of reviving tribal homelands."118
"There is, as yet, no clear independent evidence establishing the northern-most boundary of the area either settled or seasonally used by the Ngok. The lack of distinctive physical features and the overlapping use of the area discouraged Condominium administrators from attempting to define such a boundary (see Henderson's 1935 comment, quoted above). There is some evidence in the administrative records of attempts to segregate Ngok and Humr communities in some areas: e.g. the expulsion of Ngok and other Dinka from Hasoba in 1932, at the request of both the Humr and the Ngok leaders (Henderson Diary in Appendix 5.13); the allegation that chief Kwol Arop was encouraging the Ngok to settle among the Humr in 1940 (Kordofan Monthly Diary 1940 in Appendix 5.13). But these citations lack either the context or the details that would enable us to draw any firm conclusions from them."123
"The Ngok assertion that the boundary between the two peoples is the Goz belt that separates them has yet to be tested by a systematic survey. There is general agreement from other sources, however, that the band of Goz intervening between the Humr permanent territory and the Ngok permanent settlements is settled by nobody; that it is an area to be traversed, rather than occupied; and that there is regular seasonal use of the Goz by both peoples (Cunnison 1954 in Appendix 5.2 ; Cunnison 1966 in Appendix 5.3 ; Tibbs 1999 in Appendix 5.13)."125
"From Muglad I went to Turda. The people here had a lot of cattle and a fair amount of horses.... From Turda I went south-east to Dehka and there had all the Sheikhs assembled and gave them 3 days to pay their tribute, which they did after a little persuasion.... I then went to Fawel and Um Semina, where I had the remainder of the Homr Sheikhs to meet me to collect their tribute... I next went west to Sultan Rob’s, and was very well received; invested Sultan Rob with a Second Class Robe of Honour. From there I went south to the Riverain country, and north-west to Tosh and the Rizeigat country.... The two chiefs, Lor and Rob, who I made make friends last year after 30 years’ war, were on the best of terms, and one and all Dinkas said how pleased they were that Government had come, because they had not been raided by the Arabs since I was there last year. As proof of that, I met several herds of Dinka cattle grazing right in the Arab country, where they were afraid to go last year."133
Mahon Pasha is unspecific about the latitude of "Sultan Rob’s" in his Report. It might be inferred that he had travelled there due west from Fawel and Um Semina, but this impression is contradicted by other contemporaneous evidence also from before 1905.
"I have been some miles up and down the river but can find no trace of inhabitants. The country between here and the Jebela would appear to be uninhabited as I should think that I would be bound to have found some traces of natives if any had been about lately."134
On 27 November he noted that Sultan Rob was "at present" living in Burakol and noted "There are no Dinkas west of Burakol as far as I could see and Sultan Rob told me that there are only Homr Arabs west of him."135 He then noted that:
"The Bahr el Arab [the river which was later identified as the Ragaba ez Zarga] is uninhabited he told us except for occasional wandered parties of Arabs. He knew Chak Chak which he said was the next lot of natives to those he ruled."136
"I have on board now Sheikh Akanon, the son of Sheikh Lar who is dead, he has been a great help to me and wishes to report himself to His Excellency the Governor-General, so, unless I receive a wire to the contrary, I shall bring him to Khartoum with me. He is the biggest Dinka Sheikh in this part of the country and has considerably more people and a much larger stretch of country than Sheikh Rob."139
"Dar Homr, or the country of the Homr Arabs, is situated in the south-west corner of the province of Kordofan. The western boundary is the Darfur frontier, beyond which live the Rizeigat Arabs. On the north, the boundary passes through El Odaiya, now the headquarters of a Merkz, or administrative district, and thence south-eastwards, passing south of Burdia and Jebel Dago to Keilak. El Odaiya is in the Hamr country, the inhabitants being a sedentary tribe of Arabs. Burdia and Jebel Dago are in the Messeria, and Keilak in the Hawazma country. Both these tribes, like the Homr, are Baggara Arabs - that is to say, cattle-owning nomads. The southern boundary is between the Bahr el Arab and the river Kir, the latter being occupied by the Dinkas under Sultan Rob."141
In response to Lloyd, Percival submitted an explanation published in the following of the Geographical Journal, stating that "[t]he Bahr el Arab is the river Kir, and takes this name 'Kir' when it enters the Dinka country either before or after joining with the rivers that join the river Lol below Sultan Rob's".142
"The Western Kordofan Dinkas seem to be divided into three main heads: on the east the Ruweng, under Sultan Qot; in the middle the followers of the late Sultan Lar, under his son Kanoni; and to the west the followers of the late Sultan Rob, under his son Kwal."
"Practically speaking, the Dinkas after the rains are scattered about and mixed up, in so far as their private feuds allow. It is only in the rains that they sort themselves out, and more or less combine in families. Even so, they say there is no hard-and-fast rule by which a sub-tribe always lives in the same place. All along the Gurf are villages consisting of perhaps two or three houses each. The ones I saw at the Ferry by Rob's old village were about a mile apart, and I was told they continued all along the Gurf both ways. Total distance from end to end in which these Dinkas live (Lar and Rob) is not more than two days (say 50 miles). They gather together in the rains in order to combine to make their houses..."145
"As I saw their winter camps only (the villages on the Gurf were empty except for a few old men and women); I did not see the Dinkas in full kit - they had with them only their helmets (Filliul) and their arms.... Just after the rains they go as far North as they think safe from the Arabs (Bongo or El Myat); there they build temporary villages, no doubt owing to the presence of mosquitoes. The tukls are made with the floor rising to a point in the centre... (the Arabs at Sinut and Burdia do the same for their children owing to the mosquitoes).... As the water dries up and the mosquitoes decrease, the Dinkas move towards the Gurf."146
"The Ngok Dinka of Western Kordofan live along the middle reaches of the Bahr el Arab and its tributaries... During the dry season the Homr Messiria mingle freely with them in pastures and they have a long history of contact with the Arab world - probably for at least a century."165
"The Ngork Dinka, whose population is estimated between 20,000 and 25,000, occupy an area along the middle stretches of the Bahr el Arab. They border the RUENG ALUR Dinka in the south-east and the TWIJ Dinka to the south, and with both these Dinka peoples they have close cultural affinities. To the south-west are the MALUAL Dinka. North of the Ngork are the Baggara Arabs of the MESSIRIA HOMR with whom they have direct seasonal contact and they are therefore on the most northerly extremities of the Western Dinka block, lying between the Nilotics of the south and Muslim peoples of the north... Administrative action... has placed the Ngork in Kordofan Province and the Rueng in the Upper Nile Province... The Ngork Dinka of Western Kordofan occupy an area between approximately Long. 27° 50'E and Long. 29° on the Bahr el Arab extending northwards along the main watercourses of which the largest is the Ragaba Um Biero..."166
"The Bahr is the name which the Humr give to the whole of this dry-season watering country. Within it they recognize different districts: the Regeba is the northern part of the Bahr, where the Humr make their earliest dry-season camps... the 'Bahr' proper is the region where the camps are made towards the end of the dry season, mainly around the largest watercourse, the Regeba Umm Bioro and the Regeba Zarga... Finally, much of the Bahr has permanent Dinka settlements, although during most of the time that the Humr occupy it the Dinka are with their cattle south of the Bahr el Arab..."168
Cunnison also wrote that "[t]he way in which the tribal sections move seems not to have varied much since the Reoccupation."169
"[The] Dinka, the great majority of whom belonged to Bahr el Ghazal Province, though by a freak of organization two sections of the tribe, Mareig and Ruweng, were for administrative purposes part of the Western Kordofan inspectorate.
The reason for this arrangement was that these sections played Cox and Box with the Homr in the occupation of the shallow basin of the Bahr el Arab river, which was the theoretical boundary between the two provinces. When the Homr went south to it in the dry season, the Dinka withdrew still farther south into the Bahr el Ghazal; but when the rains came and the Arabs took their cattle north to the area of El Muglad, the Dinka, whose small bred of cattle had acquired immunity to fly-borne disease, moved up and occupied the river region, where their animals profited from the grass."170
"Further south, the Humr section of the Messeria centred round Muglad and Keilak in the rainy season, migrating in the late autumn southwards to the green pastures of the Bahr el Arab, where water and grass could be found in plenty for their cattle during the dry season. The cattle nomads on the river mingled with the tall Nilotic Dinkas, of whom, one tribe, the Ngok, was administered by Western Kordofan, and other, the Twij and the Malwal, came north from Tonj and Aweil districts of Bahr el Ghazal Province... About eighty miles south of El Odaiya is Muglad, the centre of the Humr Administration, where there was a small office and a police post. From Muglad it is still another hundred miles south to Abyei near the Bahr el Arab, where Chief Kwal Arob presided over the destinies of the Ngok Dinkas... Chief Arob of the Ngok Dinka lived in a buffer area between the Arabs and the great mass of the Dinka to the south..."171
"As I read through the Messeria section of the District files, the task and the distance seemed formidable, I would be looking after an area of 25,000 square miles. Most of this was the territory of the Messeria tribe. They are cattle owning Arab nomads, some 90,000 of them. Also within the area there were three other ethnic races. In the south on either side of the Bahr (river) el Arab, lived the Ngok Dinka, numbering 30,000..."172
"We are left then with the conclusion that the best documentary evidence so far located for the northern boundary of the area of the nine Ngok Dinka chiefdoms in 1905 remains, in the opinion of this historian and as of the date of the present report, Wilkinson's itinerary of 1902, which establishes a permanent Ngok presence on the Ragaba al-Zarqa."173
On being questioned on that statement in cross-examination by Professor Crawford, Professor Daly admitted that he could not point to anything in Wilkinson's itinerary that established, or where Wilkinson said that there had been established, a permanent Ngok presence on the Ragaba ez Zarga.174
"made some of the Sheikhs prisoners and seized cattle and horses to the value of about three times their tribute. I told them that if they liked they could pay and redeem their property, but must pay 40L extra as a fine. They all paid before I left the country."186
It is significant that Fauwel and Um Semina the Homr were not only present, but they were paying taxes to the administration there, and in fact the tax was extracted on pain of imprisonment and confiscation of property.
"I have been up and down the river but can find no trace of inhabitants. The country between here and the Jebels would appear to be uninhabited, as I should think that I would be bound to have found some traces of natives if any had been about lately."188
Percival's notes show that from Keilak up to the Ragaba ez Zarga and up and down that Ragaba, he made sightings of neither Homr nor Dinka.
"Sultan Rob told me that there are only Homr Arabs west of him. The [Ragaba ez Zarga] is uninhabited he told me except for occasional wandered parties of Arabs. He knew Chak Chak which he said was the next lot of natives to those he ruled."190
Percival also described Sultan Rob's authority:
"He seemed to have a good deal of authority & is very loyal I should say. He corresponds with El Obeid and says he has not been fighting the Arabs since the Government came to see him & that the Homr Arabs are fairly quiet, but I gathered that they do not trust each other much yet."
The fact that Sultan Rob was able to make such observations on the quietness or otherwise of the Homr corroborates Wilkinson's evidence that the Homr were located on the Ragaba ez Zarga.
|Homr||Ali Gula (Nazir)||Large and comparatively rich Baggara tribe, owning cattle and horses. At present (1903) pay ££450 tribute.|
|Ageria Walad Omran||Muhammed Khadson||Muglad|
|Agaira Walad Kamil||Masood Iriz||Muglad to Bahr el Arab|
|Felaita||El Hag Wad Yagob||Keilak and Abiad Lakes|
"From Lake No up the Thalweg of the Bahr el Ghazal and roughly westwards along the 9 degree parallel. Sultan Rob and Dar Jange belonging to Kordofan. The western boundary is the eastern frontier of Darfur, which leaves Um Badr and Foga to Kordofan and Kaja to Darfur, thence in a south-westerly direcion to Dam Jamad, thence southwards, leaving Zernak, Um Bahr, Wad Zarag, Gad El Habub and Sherafa to Kordofan. Thence southwards to the Bahr El Arab, leaving the... Rizeigat to Darfur, and the Homr and Dar Jange to Kordofan."
The Homr are thus mentioned in connection with the boundary at the Bahr el Arab so they must have been present on or near the Bahr el Arab for at least some of the year.
"The Arabs, according to the Nuers and Dinkas have been causing trouble again, having taken a lot of cattle and 50 children from the next village above this.... I calculate I am only 40 miles roughly from the mouth of the river. Natives tell me it is one day's march to Sultan Rob's across country, and three days by river in canoes."197
"The Homrs cultivate round Muglad and Baraka, but as soon as the water dries up they migrate southwards to the Bahr El Homr. The Homr Ageira dry season camps and the Badana occupy them as follows, reading down stream from the frontier:
|Bok||Fairom||Wells when dry.|
|Fugara||Dar Um Sheiba||Wells when dry.|
|Goli||Dar Muta||Wells when dry.|
|Bueidat||Dar Salam||" " "|
|Abu Azala||Dar Muta||" " "|
|Abu Uruf||" " "|
|Damsoi||Kalabina and Mizagina||" " "|
|Fagai||" " "||" " "|
|Mellum||" " "||" " "|
|Hasoba||" " "||" " "|
"West of Dar Nuba is Dar Homr, a vast plain extending far beyond the frontier. This plain is sandy north of Muglad, but black soil covered with thick bush to the south. The black mud is, however, crossed by sandy belts running S.E. and N.W. along which are the roads from Muglad and Baraka, where the people have their cultivation, to the Bahr El Homr, where they go in the dry season."205
In the same section, the Report states:
"In the south, about Latitude 10°, is the Bahr El Homr, which rises some thirty miles across the Darfur frontier and flows eastwards to Hasoba, where it turns south-east and joins the Bahr El Ghazal. It flows through a very flat country, but has not a very wide basin. It is on an average about 100 yards wide, and its upper reaches have steep well-defined banks from 10 to 15 feet high; but it is full of grass. When it dries up (about January) wells are dug in the bed, from which the Homr water thousands of cattle, until the rains and fly drive them north to their cultivation area near Muglad. Some thirty miles south is the Bahr El Arab (or Gurf), which forms the southern boundary of the Province."206
"Relations with Arabs - Remain good. Arab and Dinka herds grazing side by side on the lower reaches of the Ragaba Um Biero, and the Dinka (Bongo section) have shown their confidence in the Arabs by extending their permanent villages farther to the North of the Gurf."210
"The Bahr is the name which the Homr give to the whole of this dry season watering country. Within it they recognize different districts: the Regeba is the northern part of the Bahr, where the Homr make their earliest dry-season camps... the 'Bahr' proper is the region where the camps are made towards the end of the dry season, mainly around the largest watercourse, the Regeba Umm Bioro and the Regeba Zarga... Finally, much of the Bahr has permanent Dinka settlements, although during most of the time that the Humr occupy it the Dinka are with their cattle south of the Bahr el Arab..."213
Significantly, Cunnison noted that "[t]he way in which the tribal sections move seems not to have varied much since the Reoccupation."214 The same book includes a sketch map of Homr Migratory Routes, which shows the "areas and migration routes" of the Homr omodiyas (sub-sections), with those of Fayyarin and Salamat (Feilata) situated on the Bahr el Arab and its tributaries; the Ngok Dinka are indicated just south of Abyei and south of the Bahr el Arab.215
"The indications are that the Humr have lived in this area since at least the early 1800s. Their semi-migratory life revolves around the movement of their cattle (I refer to the 1950s, but there is reason to believe that the pattern of life is of long standing). Attached is a map, taken from my book, which depicts the migratory patterns as I observed it and participated in it. During the wet season the Humr lived in settled camps to the north of the Babanusa, as indicated on the map. As the dry season came, they moved first briefly to the Muglad where the cattle grazed on the remains of the millet harvest. They then moved south through the extensive sandy Goz to the area called the Bahr: this is the area around the Bahr al-Arab and the Regeba Zarga. Here, water and good summer grazing are to be found. They lived in scattered camps across this region during the summer months (January-May). For part of this time they shared the area with Dinka, whose permanent houses were dotted around; but shortly after the arrival of the Humr sections, most of the Dinka would decamp further south to their dry season areas. During my time in Western Kordofan, there was a good relationship between Humr and Dinka. I knew the Dinka leader, Deng Majok, who was an impressive man."216
"The Goz overlaps the so-called 'Shared Rights Area' of the ABC Report. In describing that area in this way it seems to me the ABC was fundamentally mistaken. I did not observe this as an area of shared rights at all; nor was the 'dividing line' drawn by the ABC within that area in any way regarded as a boundary between Humr and Dinka. The Dinka were to the south, as I have said. Some Dinka sought employment in Muglad. It was not unknown for individual families to travel north and be, so to speak, 'adopted' into one or another of the omodiyas of the Humr. They might also take surplus cattle north to market. But they did not exercise regular grazing or similar rights in the so-called 'Shared Rights Area'. The real area of sharing was further south, in the Bahr. There the two groups co-existed for a fairly short season - but this was not a 'host-guest' relationship. At this season it was the Dinka who, apart from a few caretakers, left to go south as part of a transhumance pattern rather than one of nomadism. As I noted in my book (p. 19) 'much of the Bahr has permanent Dinka settlements, although during most of the time that the Humr occupy it the Dinka are with their cattle south of the Bahr al-Arab'. I never observed the Humr asking permission from Dinka to come to the Bahr, and they did not consider themselves as visitors there. The whole region was regarded by the Humr as their 'dar' or country. On the map on p. 5 of my book (attached) I show the area I knew as 'Dar Humr': it covers the whole south-western corner of Kordofan and includes an area south of the Bahr al-Arab. The table on p. 22 shows that during 1954, the cattle of one section of the Mezaghna omodiya spent more time, and more continuous time, in the Bahr (142 days) than in any other of the four main areas of Dar Humr."217
"The ABC shall present its final report to the Presidency before the end of the pre-interim period. The report of the experts, arrived at as prescribed in the ABC rules of procedure, shall be final and binding on the parties."219
a. By holding meetings at the Khartoum Hilton on 21 April, 6 May and 8 May with Ngok Dinka individuals, they obviously went beyond the procedural framework under which they were mandated to follow a particular schedule.
b. By "sneaking in" their Report before a meeting of the Commission as a whole had a chance to assemble with the aim of arriving at a consensus. This was a safety valve reflecting the fact that the Presidency of Sudan had not given a carte blanche to the Experts to make decisions affecting the potential disposition of the territory of Sudan as they wished. The suggestion that the Presidency may not have received the Report had it known in advance its contents, apart from being speculative, does not take cognizance of the fact that the ends do not justify the means and that the Experts' mandate could not go beyond the limits of the Parties' consent which clearly circumscribed their mandate by a clear procedural framework. This procedural framework was aptly summarized by Ms Malintoppi appearing for the GoS, and it is worth reproducing this in full:
"It is evident from reading the Rules of Procedure that the experts adopted a chronological approach to the tasks that were to be undertaken, starting with a reference in Rule 2 to the Commission's opening meeting on 10th April 2005, and ending with Rule 16, where the experts would, at the end, appoint technical personnel to survey and demarcate the boundary on the land.
In addressing the requirement that the Commission endeavour to reach a decision by consensus, the SPLM/A basically stops at Rules 12 and 13. Rule 12, it will be remembered, states that the Commission will reconvene in Nairobi at a date in May to be determined, and that the parties will make their final presentations at that time.
At the time of the parties' final presentations the proceedings were essentially at the advocacy stage. Each party was setting out or explaining its position.
Then Rule 13 provided that afterwards the experts will examine and evaluate all the material they have gathered and prepare the final report.
However, that was not the end of the process, for Rule 14 then stipulated that the Commission - and again I emphasise the Commission as a whole -would endeavour to reach a decision by consensus. This necessarily meant that the Commission would discuss the report prepared by the experts, and after the parties' final submissions it would endeavour to reach a decision by consensus. It was only if an agreed position at the time was not achieved that the experts would have the final say.
This step, the effort to reach a consensus on the report prepared by the experts, is the missing link in the actual chain of events. The parties never saw the report before it was presented to the presidency. They were given no chance, as part of the Commission, to attempt to reach a consensus on it.
[...] [T]his was disregard for a fundamental and essential part of the process that was envisaged. And yet, what is the evidence offered by the SPLM/A that there had indeed been efforts at reaching consensus? Nothing other than witness statements which have been refuted by the Government's own witnesses."220
c. The Experts committed an excess of mandate also by consulting a U.S. diplomat about the interpretation of their mandate. The argument that this should be excused because no objection was raised to their consulting Cunnison or Tibbs is unconvincing. The consultation of British Archives and other relevant sources on Sudan, namely, the views of individuals informed about the historical facts, was expressly included in the procedural framework under Article 3.4 of the Terms of Reference of the ABC. But to try to verify an interpretation of their mandate from a third party is outside the procedural rules. If the Experts were not sure about the meaning of their mandate, they should have sought clarification from the Parties but should not have sought to rewrite the agreement of the Parties by resort to a third party.
a. The SPLM/A wanted Abyei, among other areas, to be entitled to participate in the exercise of self-determination which could lead to the secession of the southern provinces of the Sudan. Their argument was that notwithstanding the location of those areas north of the 1956 provincial line as at independence, which was agreed to be the spatial limit to where the right of self-determination was to be exercised, the Abyei area, being of "a southern complexion" was nevertheless entitled to be considered as an exception to that limit.
b. The Government was strongly opposed to this view, arguing that Abyei was the land not only of the Ngok Dinka but also of the Misseriya and others.
a. In 1905 the Ngok Dinka were not just to the south of the Bahr el Arab. They were on the river and north of it, their greatest concentration was in the area between the Bahr el Arab and the Ragaba Um Biero and they were not very far to the west, and were not at 27° 50' E in the west where Howell correctly placed them in 1951. There is evidence that they were slowly expanding to the north, west and east and that they reached some points on the Ragaba ez Zarga by 1965. In this area and indeed south of the river they co-existed with the Homr for a season every year.
b. There is evidence that in the 18th century the Ngok, newly arrived from the east, settled in the Bahr area and when some Ngok Dinka witnesses, including government witnesses, spoke about their particular sub-sections being on the Ragaba ez Zarga they were right. That was in the 18th and probably the early 19th centuries. However the arrival of the Baggara including the Misseriya pushed the Ngok below the river Bahr el Arab/Kiir, and even there they were not safe from Homr depredations, as evident from the reasons cited by the Condominium officials to transfer their Chiefdoms (their area) to Kordofan in 1905.
"Man, a bear in most relations
-worm and savage otherwise,
-Man propounds negotiations,
Man accepts the compromise."252
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