The South Sudan Act of 2009 and Land Regulation 2023 Must Foster the Interests of Local Communities

By Deng Duot Bior-Barr, Dundee, Scotland, UK

Friday, 24 November 2023 (PW) — Land Utilisation is a vital aspect of various nations and often serves as a lifeline for citizens. Land provides sustenance and surroundings for people and is utilised for agricultural and socioeconomic purposes. However, in South Sudan, land is not accessible for public use or ownership, resulting in the inability of many citizens to possess land.

In contrast, some countries have indigenous people who own land as heritage sites passed down from their ancestors. However, the ongoing war and displacement in South Sudan have led to a lack of land entitlement and ownership among its citizens. Therefore, the current government must debate the South Sudan Act of 2009 and Land Regulation 2023 to foster the interests of the local communities.

Currently, land in urban areas is being developed for businesses and residences by government officials, entrepreneurs, and others who can afford to buy it, leaving various citizens homeless without land ownership. Hence, there are questions surrounding how the land was obtained and who the owners are, which are often foreigners and inaccessible for public review.

The institutions responsible for formulating and governing land use and entitlement must be more adequate and present. The current land planning and usage system is characterised by a lack of coordination and cooperation between institutions and a tendency to operate independently and without consultation with other authorities and communities.

Military leaders and political officials sometimes use corrupt practices for personal acquisition, resulting in uncertainty and mistrust of land entitlement, usage, planning, and management. The absence of precise procedural mechanisms and the prevalence of systemic corruption have further eroded confidence in land-use and planning processes.

The South Sudan government must address its land institutions’ entitlement, usage, and governance. Despite progress made since the signing of the Comprehensive Peace Agreement in 2005, South Sudan remains one of the least developed countries in the world. To address the country’s socioeconomic and environmental development challenges, the government must establish guidelines and provisions for properly implementing land use and entitlement. Although the government’s decision-making process may not present problems, it promotes large-scale private investments and provides accessible land to people while simultaneously pursuing rapid economic development.

Recent revelations regarding government leasing land to foreign countries for up to 99 years have raised significant concerns and prompted sufficient enquiries in various studies. This process is said to adhere to the International Standard of Land Acquisition, as outlined in the International Labor Organization’s Conventions on Indigenous People (ILO) 169, Article 7(a), which mandates free, prior, and informed consent. However, it is still being determined whether the government’s strategy for promoting local community empowerment is upheld, as mentioned in the article.

Recent studies have shown that foreign countries and private companies in South Sudan actively acquire land at an alarmingly high rate. Approximately 5.15 million hectares of land have been developed by foreign entities for agriculture, biofuels, forestry, carbon credit, and ecotourism. According to the Oakland Institute, the total amount of land acquired by foreign companies in South Sudan is equivalent to more than 8% of the country’s total land area. These land deals not only threaten the existence and residence of local communities but also undermine the land rights of pastoral communities. These private investments have exacerbated food insecurity, entrenched poverty, and skewed development patterns in some regions, thus adversely affecting local communities.

According to David K. Deng, the land administration system in South Sudan is confronted with significant obstacles. These challenges are systemic and arise from poor planning and policy developments. Therefore, it is essential to address these challenges appropriately. The government must resolve issues such as overlapping land ownership claims resulting from land sales and the entitlement of military generals. The increasing demand for land by foreigners has led to the implementation of necessary limits and procedures to improve the existing poor management and provision systems for granting access to land.

Unfortunately, the current state of land records is dismal. Handwritten documents are often stored in poor condition, making them susceptible to deterioration and damage. Occasionally, information in the registration office needs to be updated or updated. Crucial information about encumbrances, such as mortgages, secondary rights records, and pending lawsuits, should be included in registries.

Basic information about landholdings, such as the owner’s identity, the number of plots, plot sketches, and standard lease agreements, is typically recorded. This highlights the need for proper land usage and provision and insufficient or failed land use systems.

The South Sudan Land Act of 2009 stipulates that all land in Southern Sudan belongs to the region’s people, and the government regulates land use by providing land registration procedures. All land, individually or collectively, must be registered and granted titles. The Act categorises land into three types: public, community, and private. Public land, including land used for offices, roads, rivers, and lakes, is owned collectively by the people of Southern Sudan and is held in trust by the government.

Customary ownership has yet to be established. Communities manage or use community land based on ethnicity, residence, or interest. It may include land registered in the name of a community, land transferred to a specific community, and land held, managed, or used by a community. Private land includes registered freehold land, leasehold land, and any other land declared by law.

Despite the importance and inclusion of local communities, socioeconomic and environmental aspects have been overlooked during land acquisition and usage, regardless of whether the government-owned land is publicly or communally. The former Under-secretary in the Ministry of Legal Affairs, the late Dr. William Kon Bior, questioned the validity of the 2009 land bill as it could deny South Sudanese land ownership, as foreign investors were granted the right to lease community land for 99 years.

 “The Assembly was interested only in the bill. They needed to find out who drafted it or for what purpose. For example, a new idea has been introduced into the bill that a foreigner could own land for 99 years, but traditionally, land use is limited to that particular use. If that use finishes with 20 years, the land goes back to the community, but when you give away land for 99 years, it’s almost like you are alienating land from the community which is supposed to own it.”

 The late Dr Bior advocated for communities, emphasising that their views should be prioritised and incorporated into the land bill or during land acquisition procedures. Martin Aligo Abe, a South Sudanese Legislative Member, highlighted the land bill’s inadequacy in protecting community rights. He underlined the importance of having a law to prevent land grabbing and to ensure the protection of the weak and vulnerable. Without addressing the land issue during the interim period, he warned that the entire region would be grabbed, leaving no protection for local communities. The socioeconomic impact of land usage in South Sudan not only jeopardises the interests of communities but can also have severe consequences for the country’s development.

Therefore, it is crucial to have a framework that encourages participation, consultation, and consideration of the interests of local communities during land acquisition. This framework should apply equally to land acquisition by extractive industries and foreign investors involved in oil and gas production in South Sudan. The constitutionality of land law in South Sudan must be evaluated to consider these principles and ensure that the interests of communities are safeguarded.

Land law in South Sudan is characterised by considerable ambiguity, which may engender unfavourable socioeconomic and environmental consequences for both the local communities and the people of South Sudan. Allowing a foreign entity to possess land for 99 years is equivalent to disengaging the community that owns the land. Therefore, permitting a foreign entity to hold community land for an extended period is imperative. Thus, customary land use must be limited to a single purpose. Any land acquisition by a foreign entity should be restricted to a lease of less than 20 years. Land must be returned to the community upon the expiration of this period.

The author, Deng Duot Bior-Barr, is a South Sudanese PhD law student at the University of Dundee in Scotland, UK, and can be reached via his email address: Deng Duot (PG Research) <j.duot@dundee.ac.uk>

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