The secession of Southern Sudan following the referendum on self-determination is imminent. Despite the 2005 Comprehensive Peace Agreement (CPA) prescribing an interim period with a programme of legal reform to address long-standing grievances, no real, conscientious efforts were made to make unity realistic for southerners. Many outstanding areas that the CPA was designed to address – lack of development and opportunity, the use of sharia, and exclusion from governance – are still in place throughout Sudan, and underscore gaps in women’s experiences in the North. The CPA itself has been accused of not including a gender perspective, and women feel as if their needs have not been adequately addressed in post-referendum negotiations and Darfur peace talks.

Southern Sudanese women line up to vote in Juba on January 9, 2011, the first of seven days of referendum polling. (photo by Jenn Warren/USAID)

Both the independent South and the rest of Sudan will have to renegotiate their constitutions and international commitments. Negotiation of outstanding CPA issues and a host of post-referendum issues surrounding state breakup has the potential to rectify gaps for women living in the North in the following areas:

Lack of Remedy for Gender-based Violence (GBV)

Many women are hesitant to report GBV rape due to stringent sharia-based law. The evidentiary standards for rape are four male witnesses to prove that the act was nonconsensual, without which there is no distinction between rape and zina (adultery), which carries harsh sentencing. The coalition Alliance 149 has noted , legislation governing sexual violence has no deterrent effect and discourages women, as it can lead to counter charges. Members of the Sudanese Armed Forces and police are protected by immunities in the law for acts committed in their service, despite use of rape being well-documented.

Additionally, women often have nowhere to turn due to the Northern regime’s lack of tolerance for the work of civil society. Since the expulsion of thirteen international and three national organisations from Darfur in 2009, there have been no GBV services in Darfur.

Repressive Public Order Laws

In a speech given in late December, President Bashir stated that the North would return solely to sharia law, a troubling sign of things to come. Sharia namely affects women through Public Order laws, which criminalise acts “contrary to public morality.” It is left up to the discretion of authorities what constitutes these violations, making application inconsistent and arbitrary. The law is inherently discriminatory by disproportionately impacting women ( men have also begun to be targeted at increasing rates, often when they have acted against gender roles), and lack of due process guarantees. Individuals tried are often not given the right to defend themselves and are detained till trial, where if found guilty they are flogged immediately and publicly.

Public Order laws also have ethnic and political undertones in their application. A piece by Sudanese intellectual Nada Ali, stated that “it is women from marginalised areas, such as Abyei, who live in the North, who are most affected…most are unaware of their legal rights, do not speak Arabic well, and often have to bribe police officers”. There have been reports of poor women and Southerners becoming pregnant shortly after being arrested, namely for selling alcohol (the most lucrative business for destitute Southerners) as their bodies are seen as “ the only currency they have .” Women who cannot pay associated fines are detained until they can do so, preventing them from accessing jobs and livelihoods.

Suppression of Civil and Political Rights

Lastly, attempts at reform and democratic transformation in the North are happening in a highly repressive environment. Peaceful demonstrations organised by the No to Women’s Oppression Initiative and aimed at delivering a memorandum to the Ministry of Justice led to mass arrests in December. Security agents used tear gas and arrested 52 activists who were exercising constitutionally recognised rights to freedom of expression.

Those arrested (including six men) were held until the end of the day before being released on bail. While in custody, the group was singing. This also highlights a divergence in women’s experiences –members of civil society are often educated and well aware of their rights; however, the mass of women arrested do not know that they are entitled to a lawyer and the right to appeal, and would prefer to simply accept the penalty rather than risk further detention.

What will the Future Bring?

Of course, the post-CPA South should also ensure gender equity; though generally more enabling, women suffer from GBV and lack of opportunity through customary practices which have influenced the developing legal system. This will be a fascinating area to watch.

The resolution of arrangements surrounding state-breakup will also determine the future relationship between the two states. The quota system in place will expire with the CPA, and it will be up to the two respective new states to re-establish entry points for women’s participation. Women have a unique role to play in democratic transformation and state building, particularly as the Southern nascent state and the new Northern state develop concurrently. Post-referendum arrangement negotiations and constitutional renegotiation should use a broad, consultative process and should endeavor to ensure that all human rights, the rule of law, and non-discrimination are respected for all Sudanese – including women.

This piece has been cross-posted by our partner site, World Policy Journal's blog .