In July 2008 the National Assembly and the Presidency of the Government of the Sudan enacted and signed into law new legislation governing the conduct of national elections. The National Elections Act 2008 marks a critically important milestone for electoral reform in the country in the context of implementation of the 2005 Comprehensive Peace Agreement (CPA). The United Nations, the African Union and key international supporters of the CPA hailed the passage of the legislation as an important step forward.

Starting around December 2007, during my time working to support the UN-AU Mediation Team for the Darfur Political Process (then led by UN and AU Envoys Jan Eliasson and Salim Ahmed Salim), I began asking the question of how the electoral reform process enshrined in the CPA would impact efforts to mediate between the parties to the conflict in Darfur.

Since first starting work on Darfur in 2005 I had become fascinated with the culture, the people and the politics of Sudan. It struck me that the electoral reform process would influence the Mediation Team’s work to facilitate dialogue between the parties to explore pragmatic options for possible future power-sharing in Darfur. I had seen “˜close up’ the evolution of the Northern Ireland conflict, and had experience of the cross-community power-sharing arrangements put in place by the 1998 Belfast Agreement. I saw also that the failed Darfur Peace Agreement of May 2006 provided only a minority role for the opposition movements in the States Legislatures in Darfur and I wondered whether some of the approaches used in Northern Ireland, Burundi and elsewhere could usefully inform exploratory discussions on power-sharing arrangements in Darfur.

In essence, my question was: Would electoral reform in the Sudan bring the people of Darfur closer to peace? … or would it make peace more elusive?

Studying the National Elections Bill, and later the National Elections Act, I have resolved that the legislation has several critically important implications for efforts to reach a negotiated agreement to resolve the conflict in Darfur. Surprisingly, many of these implications have yet to be fully considered by the Government of National Unity, international actors supporting the political process and other stakeholders.

I will present here five of the most important implications of the National Elections Act:

1. Types of electoral system specified in the Act

The first implication of the National Elections Law for the Darfur Political Process concerns the type of electoral system to be used for elections throughout the Sudan. The Act specifies the use of a combined majoritarian- (“˜winner takes all’) and proportional representation (PR – seats allocated in proportion to votes received) type system for election of members to the National- and State Legislative Assemblies. Because sixty percent of seats in the National- and State Legislative Assemblies will be allocated based on a majoritarian system using single-seat geographical constituencies (with the remainder to be filled using proportional system by candidates from party- and women’s lists) the system may not effectively accommodate non-homogeneous political views at the constituency level in Darfur. Within each constituency, the majority view will carry the day!

While this may not present a difficulty in many areas of Sudan outside Darfur, it could potentially lead to political disenfranchisement, particularly of minority or opposition groups/parties, in Darfur.

2. Membership and decision making of the National Elections Commission

The National Elections Act established a National Elections Commission to oversee the conduct of elections. The Commission will make decisions – including those on demarcation of constituency boundaries – by majority vote of its members. An alternate, consensus-based decision making system and the nomination of a representative from Darfur to the Commission may assist in ensuring that decisions of the Commission reflect the broadest possible cross-section of interests of the population throughout the Sudan.

3. Opportunities for power-sharing in the National Legislature and State Legislative Assemblies

The State Legislative Assemblies will be one of the primary potential foci of political- and legislative influence for representatives of the people in Darfur. However, the National Elections Act does not provide for any special types of representation for Darfur opposition groups/Movements or minority parties at the level of the State Legislative Assemblies. Other potential consociational- or consensus-type models of representation could better accommodate minority and opposition views in the State Legislative Assemblies.

4. Representation from each State in the National Assembly

Largely as a result of the relative incompleteness of the Fifth Population Census (2008) in parts of Darfur, which will be used as the basis for determining geographical constituencies for Legislative Assembly elections, Darfur (and indeed Southern Sudan) may be allocated proportionally less seats in the National Assembly that their populations would otherwise enjoy.

5. Voter registration and potential disenfranchisement of displaced persons

The requirement for- and process of voter registration specified in the National Elections Act could potentially disenfranchise a large number of displaced persons in Darfur who may not be able to meet the necessary requirements because of their situations of displacement.

These implications of the National Elections Act are a manifestation of the fact that the legislation reflects the interests of the NCP and SPLM in the context of the CPA; The Act does not adequately reflect the need to provide for special arrangements for Darfur to accommodate the views of all parties to the conflict and to guarantee voter enfranchisement.

One of the primary potential foci for legislative influence and decision making by minority- or opposition groups in Darfur will be at the level of the Darfur States’ Legislative Assemblies. This is because: (1) representatives of Darfur elected to the National Legislature will have limited legislative influence at that national level; (2) regional authorities (such as the Transitional Darfur Regional Authority established under the DPA) are perceived as impotent due to incomplete implementation; and (3) “˜Advisor’-type positions for individual leaders within the Executive Branch of the Government of National Unity are also viewed as largely “˜nominal’ positions.

The National Elections Act does not, however, address this dilemma: The Act has specified a system of representation for the State Legislative Assemblies which will make it more difficult to accommodate minority or opposition views in the State Legislatures. If the Darfur State Legislative Assemblies necessarily represent a primary focus for potential power-sharing between the parties to the conflict in Darfur, options must now be developed to inform future negotiations between the Parties in this area.

So what can be done to address these consequences of the Act and to ensure that any mediation efforts have the best chance of reaching a negotiated settlement?

I am presenting here some observations intended to assist in initiating dialogue and debate on possible avenues for genuine power-sharing and enfranchisement of voters in Darfur:

First, the Government of National Unity may wish to consider delaying some of the elections in Darfur – especially the elections that require the use of (sub-State level) geographical constituencies, such as the elections for members of the National- and Darfur State Legislative Assemblies – until such time as a framework- or comprehensive peace agreement is secured between the Parties to the conflict. The eventual return or resettlement of displaced persons would provide them with the opportunity to vote in their original or resettled locations. Postponement of geographical constituency-based elections would also enable a peace agreement to include specific provisions to mandate power-sharing at the level of the State Legislative Assemblies in Darfur (as opposed to a fait accompli of potential majority domination in the Legislative Assemblies by virtue of the current electoral system).

Second, any future peace negotiations between the Government and the opposition Movements should include, as an early and high priority, negotiations on how the parties would share power in Darfur; Power-sharing addresses a central cause of the conflict – actual or perceived exclusion – while compensation for those affected by the conflict and security arrangements are primarily effects of the conflict.

Third, in formulating any future peace agreement the Parties could consider including a requirement to amend the National Elections Act to facilitate consideration of special arrangements for election of members of the State Legislative Assemblies in Darfur.

Fourth, In formulating any future peace agreement the Parties could consider including a requirement for the three State Legislative Assemblies in North, South and West Darfur to amend their rules of procedure to put in place consociational-/consensus-type decision making arrangements.

Fifth, the National Elections Commission in Sudan should include a representative from Darfur and should also consider adopting consensus-type decision making procedures instead of simple majority decision making.

Finally, in addition to these implications of the electoral law there are other issues to be considered that relate to the electoral process and electoral reform. One such issue relates to the sequencing of elections and any possible referendum in Darfur on the status of the Region (whether to remain for administrative purposes as three separate States or whether to form a single State/Region of Darfur).

If elections for the State Legislative Assemblies are held in Darfur in advance of a possible future referendum, and if the outcome of that referendum were to be a decision to form one region of Darfur, all of the electoral processes and legislation would have to be amended to establish a single Legislative Assembly for the Region of Darfur. This would again significantly set back the realization of equitable power-sharing as a key component of peace in Darfur. In such a scenario, prospects for building peace may be enhanced by holding any referendum on the status of Darfur in advance of elections.

Gerard Mc Hugh is President of Conflict Dynamics International, Inc.