Rights to Land under Land Act 2009: The Case of the Demolition of Sherkat Settlement in Juba, South Sudan

By Bior Mayom Deu, Juba, South Sudan

Tuesday, December 3, 2019 (PW) — The commotion of yesterday’s demolition of Sherkat settlement has promoted this piece. Under Land Act, 2009, rights to land are provided under section 13 as hereunder:

1. That right to land shall not be denied by the government of South Sudan, State government or Community on the basis of sex, ethnicity or religion 

2. That every person shall have access to land for housing, cultivation, pasture, grazing, or fishing as shared resources as shall be regulated by the Land Act, 2009, rules and regulations. 

3. That any person may have access to land for investment purpose under the same act and the investment law. 

4. That women shall have the right to own and inherit land together with any surviving legal heir or heirs of the deceased as stipulated under Article 20(5) of the Constitution.

Derivative rights to land

These rights are provided under section 17 of the same act and they are as follows:

1. That a derivative rights to land shall confer the right of occupancy or usage upon a person or Community and shall be registered by the Land administration. 

2. That derivative rights to land shall include lease, sub-lease, usufruct, easement and interest analogous to these rights 

Resettlement Plan

The same legislation provides for resettlement plan under section 72 as follows:

1. That the government of South Sudan, State Government or private company shall proceed with a resettlement plan for the communities affected by an expropriation plan describe in Chapter XII  of the same act, or by any investment activity.

2. That internally displaced persons shall be consulted and shall have opportunity to participate in planning and implementing resettlement programs.

Expropriation of land for public interest. 

Article 73 of Land Act, 2009 provides reasons for expropriation of land for public interest as such:

1. That the government of South Sudan, State government and any other Public Authority may expropriate land for public purposes subject to compensation and upon agreement as prescribed by the Land Act.

Procedure for Expropriation

Article 74 of Land Act, 2009 provides procedures for Expropriation as following:

1. That the procedure for Expropriation shall be based on a consultative process with the communities or individuals concerned prior to conception of the plan of Expropriation 

2. That a public hearing may be carried out before expropriation for public purposes for large scale development. 

3. That the history of the acquisition of the ownership shall be considered, whether community, individual or private.

Compensation

Article 75 of the same stipulates that compensation shall be just, equitable and shall take into account the following factors:

a) the purpose for which the land is being utilized;

b) the land market value; and

c) the value of the investment in it by those affected and their interest.

Subsection two provides that compensation shall be in cash or in kind or both according to the agreement.

Land rights restitution and compensation

Article 78 provides for the general principles for land rights to restitution and compensation as following:

1. That a person may be entitled to restitution of a right in land if he or she lost her or his right after an involuntary displacement as a result of the civil war starting from May 16th, 1983. 

2. That restitution may be done regardless of whether the right in land referred to was taken over by an individual or the government. 

3. That in addition to the primary owner of the land, subsidiary parties such as family members at the time of the displacement, spouses and legal heirs and any other person having interest in the land, shall have their rights recognized in restitution. 

4. That any claimant shall have the right to submit a request to regain the rights in this section within 3 years from the date of commence of the land act. 

Statute of limitation.

Article 82 of the same act stipulates that:

1. Any person who in good faith occupied a land belonging to another person or group of persons may not be deprived of the right therein without compensation. 

2. Without prejudice to the provisions of here above, claims base on good faith shall be addressed on case by case basis. 

Unlawful occupancy

Article 84 of Land Act, 2009 provides procedures for resolving unlawful occupancy as such:

1. That proceedings for eviction may be instituted against any person who unlawfully occupied a piece of land in contravention of the provisions of land act or any other law.

2. That for the purpose of this section, any person who settles or occupies a land without a customary or legal title or occupies a land without a customary or legal title or without the express consent of the owner or person legally in charge of the said land before the commencement of the land act, shall be considered an unlawful occupant. 

4. An unlawful occupant as defined in sub-section (2) here above shall be evicted from land by a Court order. 

Notice of Eviction

Article 85 of the same act provides procedures for eviction notice as hereunder:

1. That any public authority, owner or person having right of ownership over land who intends to evict an unlawful occupier shall give him or her not less than one calendar month written notice of the intention to file an order of eviction.

2. That the notice shall determine a suitable date, time and circumstances on which such occupant shall vacate the land. 

Eviction Order

Whereas article 86 provides eviction order as follows:

1. That the court may Grant an order of eviction if it seems it just and equitable to do so after considering all the relevant circumstances.

2. The order of eviction shall determine:-

(a) a just and equitable date on which the unlawful occupier shall vacate the land; and 

(b) the date on which an eviction order may be executed if the unlawful occupant did not vacate the land on the date contemplated as in paragraph (a) above.

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