Land Ownership and Conflict of Laws in the Republic of South Sudan
By Ajo Noel Julious, Juba, South Sudan
July 27, 2015 (SSB) —– Land in South Sudan is a prickly thing, complicated even further by the confusion associated with legal land ownership. The parallels and discrepancies between provisions in the laws and practice on the ground have driven the confusion. The absence of sound government policy on land ownership has made it even worse.
Starting at the beginning, economists divide the factors of production into four categories: land, labor, capital, and entrepreneurship. The first factor of production is land, including any natural resource used to produce goods and services. Thus, land is an essential element of any well-functioning economy. In this piece, I will focus on land as the first factor of production, but will specifically address the plots, hectares, acres, and miles of land used for establishing residential houses or businesses.
Under the Transitional Constitution of the Republic of South Sudan 2011, the people of South Sudan own all the country’s land and its usage is regulated by the government in accordance with the Constitution and Law. The applicable law in this case is the Land Act of 2009.
First, Constitution prescribes a three-category land tenure system divided in to public land, community land, and private land. Public land means all land owned, held or otherwise acquired by any level of government. This classification includes land owned by Bomas, Counties, States and federal government or administration and all land that is not otherwise designated as community or private. Hence there is no such thing as no-mans’ land in South Sudan because land unclaimed by an individual or community belongs to the government by default.
Community land includes all lands traditionally and historically held or used by local communities or their members. This category could include communal grazing lands for animals, hunting grounds, or locations of traditional sacrifices and worship.
Private land includes registered land held by any person under leasehold tenure, investment land acquired under lease from the government, and any other land designated as private land in accordance with the law. The assumption implicit in this framework is that all investment land (Land for businesses) is acquired from the government through the leasehold tenure.
The difficult question thus becomes: from whom are we getting the lease title to our land if the land belongs to the people of South Sudan? Under the Constitution, the government can only lease its own land – public land – to private investors, which is not conceivable because the government does not have enough land. It does not possess original ownership rights in the land of South Sudan. The people do. However, the fact remains that, despite the Constitution saying that the people own all land and establishing the elaborate land tenure system, private land ownership is through leasehold system. How did the quandary come about?
As I have indicated in other situations, the reasons are partly historical. Before South Sudan broke away and became independent, land belonged to the Government in the Sudan. Under this legal regime, people witnessed widespread displacement of settlements as the government gave away land for investors. Scenarios like these informed the pronouncements in the Interim Constitution and the Transitional Constitution that land belongs to the people.
However, people in power also carefully crafted the Transitional Constitution. It gave the People the right to own the land by one hand and took that right away by the other. It explains that land belongs to the people yet one can only own a lease from the government. The reality is that the government owns the land and all of us today hold leasehold titles over our plots.
Second, the government enacted the Land Act of 2009, pursuant to Article 170(1) of the Constitution enabling governmental regulation of land usage. The Land Act reiterates the Constitutional provision that the people own all land in South Sudan. However, the Land Act tenure system is quite different from that of the Constitution.
The Land Act prescribes that land may be acquired, held and transferred through Customary, Freehold and Leasehold tenure. All citizens hold freehold titles to their lands. Non-citizens may acquire leasehold for specific periods but may not possess land in freehold, according to Section 14 of the Land Act.
The Land Act looks sound compared to the Transitional Constitution. In an ideal world with clear land laws and Constitution stating that land belongs to the People, citizens would hold a freehold or fee simple title to their pieces of land. These titles would be held by the owner in perpetuity and would be transferable through bequest from one generation to the next. In these circumstances, the individual owners would grant leaseholds to foreign investors and, in some instances, nationals who have strategic interest in the land. However, if the owner did not desire a sale, he would retain the ownership interest and grant the lease for a specific period. The Land Act clearly designates that land belongs to the people and, as such, all citizens hold freehold titles to their land. This arrangement can facilitate economic growth, as citizens will be in position to transact in land and use it as collateral to secure loans.
The difference in the statutory and Constitutional tenure systems is borne of the fact that the Land Act was enacted under the Interim Constitution of Southern Sudan. When the Transitional Constitution was enacted, it did not take cognizance of the existing Land Act and changed the whole tenure system.
The shift in the Land tenure system through the Transitional Constitution is unfortunate. The Interim Constitution of Southern Sudan and the 2009 Land Act had come up with a very elaborate land tenure system guaranteeing rights informed by historical practices and events. The back and forth shifts in the tenure system has made land as a first factor of production elusive, stifling many developmental projects. Land and title acquisition are arduous tasks, largely due to the absence of clear land policy and consistent land laws.
What can be done in the situation that has befallen us? It is important that the government makes itself clear in terms of the policy that shall influence the question of the land ownership. South Sudan is in the process of putting up the permanent Constitution and it should be able to clearly define whether land belongs to the government or the people. This basic definition will lay the foundation for a strong Land Act and land policy that will propel economic growth. Laws like the Transitional Constitution must be avoided. A law that fails to clearly define what the government policy on land is not sound.
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The Author, Ajo Noel Julious K., is an Attorney/Advocate, a graduate of UCU and Harvard Law School. He also holds a Post Graduate Diploma in Legal Practice from Law Development Centre, Kampala Uganda and is a winner of the Attorney General Award of Excellence. He can be reached on noeldinah@yahoo.com, akenyi@ajoadvocates.com or legal@ajoadvocates and visit www.ajoadvocates.com for details
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