Developing Land Policy in a Post-Conflict Environment: The Case of Southern Sudan

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1 Developing Land Policy in a Post-Conflict Environment: The Case of Southern Sudan Steven Lawry and Biong Deng World Bank Conference on Land and Poverty Washington, D.C April 19, 2011

2 Land so pervasively underpins human activity that it usually plays some role during war and human conflict. John Bruce, 2011

3 The Context and Issues Nearly 25 years of civil war between northern and southern Sudan, from 1983 to 2005, had many antecedents: The imposition of national boundaries that suited the colonial power Imposition of Sharia in the 1980s and struggles for cultural and political autonomy Regional imbalances in development and investment Conflict over control of resources, including Nile water (Jonglei Canal and oil) The erosion of the South s political, social and cultural institutions, including land tenure institutions The Unregistered Land Act of 1970

4 The Comprehensive Peace Agreement of 2005 Signed in Nairobi, Kenya in January 2005 Negotiators recognized land tenure as a source of conflict between North and South. Article 2.5 provides that The Parties recognize that a process be instituted to progressively develop and amend the relevant laws to incorporate customary tenure laws and practices, local heritage and international trends and practices. Article 2.6 establishes a National Land Commission Article 2.7 establishes a Southern Sudan Land Commission (SSLC) The SSLC is mandated to Make recommendations concerning land reform policies [and] recognition of customary tenure and/or law.

5 The Policy Development Process Southern Sudan Land Commission (SSLC) established in Initial focus on developing new land legislation: Land Act of 2009 Criticism that new law proceeded policy process SSLC and USAID enter into an agreement in late 2008 to support a land policy development process. Principal USAID land tenure program staffer strongly advocates for a broadly based and structured consultative process. (This is agreed but there remains consistent pressure from the Commission to produce the policy quickly.) USAID-funded Sudan Property Rights Program (SPRP), executed by Tetra Tech ARD, launched in February 2009 to support SSLC in developing a land policy. Three elements: Public Consultation, Research, Oversight and Drafting

6 Public Consultation Workshops held in all ten states. Participants included state and local officials, traditional leaders, educators, business people, civil society representatives. (June 2009 to March 2010) Attendance and participation by women weak in initial workshops; steps were taken to increase women s participation in subsequent meetings. Workshops on Women s Land Rights and Private Sector Investment two topics meriting particular attention and deemed not adequately treated in state consultations were convened in May SSLC and SPRP presented analysis of guidance provided by state-level workshops to a national Validation conference, held in Juba in July Participants, coming from every state, produced a set of 12 land policy principles to guide work of policy drafters.

7 Contested Issues Returning refugees and Internally Displaced Persons Women s land rights Conflicts between pastoralist and agricultural land uses Large-scale investment schemes and implications to community land rights Boundaries between North and South and rights to oil revenues

8 Research The Nile Institute for Social and Development Studies was contracted to commission research by Southern Sudanese researchers on key topics: The performance of GoSS land institutions, identifying administrative, regulatory and capacity problems. The performance of customary tenure institutions and the evolution of customary law. Land rights issues in informal urban settlements Land and resource-related conflicts between pastoralist and agricultural communities

9 Oversight and Policy Drafting Land Policy Steering Committee (LPSC), chaired by Chairman of the Land Commission, met periodically to review progress and suggest program adjustments. Sub-committee of the LPSC established in October 2010, to guide drafting of policy, undertaken mainly by SPRP staff. Draft Land Policy handed over for review to the Ministry of Legal Affairs and Constitutional Development in a ceremony in Juba on February 18, 2011.

10 Key Features of the Draft Land Policy 1.6 The Principal Policy Problem: Widespread Tenure Insecurity An extensive process of public consultation, primary and secondary data from research, and anecdotal evidence all indicate that insecure rights to land are a concern for people throughout Southern Sudan. People s concerns about tenure insecurity reflect larger anxieties about a political and economic environment characterized by weak institutions, continuing insecurity and violence, and inconsistent governance and protection of rights. Widespread tenure insecurity and violation of land rights Impedes achievement of peace and security; forestalls individual, community and public sector efforts to increase wealth and reduce poverty; and can undermine the authority of new government institutions.

11 Sources of Tenure Insecurity Dislocations due to civil war or natural calamities; post-war conflict over land rights Weak land administration and management Lack of transparency and accountability Gender bias and discrimination Informal settlements in cities and towns Conflicts over access to land with pasture and water Land-grabbing; the acquisition of land without regard for the interests of existing land rights holders Disagreements regarding boundaries between counties and payams

12 Chapter 2. The Policy Goal: Strengthening Land Tenure Security for All Citizens 2.1 The Importance of Tenure Security While the benefits of land tenure security to the well-being of individual citizens, men and women, wealthy and poor, are obvious, why does the Government of Southern Sudan give such great importance to fostering land tenure security when the region is facing so many other pressing problems? Tenure security builds peace Tenure security is essential to economic development Tenure security unifies the nation

13 Chapter 3. Guiding Land Policy Principles 3.1 Security of Land Rights 3.2 Equitable Access to Land 3.3 Security of Tenure Provided through a Diversity of Tenure Types 3.4 Transparency 3.5 Accountability 3.6 Participation 3.7 Gender Equity 3.8 Statutory Recognition of Community Land Rights and Institutions 3.9 Clarity of Roles and Responsibilities 3.10 Peaceful Mediation 3.11 Protection 3.12 Appropriateness of Institutions, Methods and Tools 3.13 Subsidiarity 3.14 Efficiency of Land Institutions 3.15 Sustainable Use of Land and Natural Resources

14 Chapter 4. Land Policy Statements 4.1 Policy statement 1: Tenure security will be provided under a diversity of tenure systems. Strategies for promoting land tenure security. The Land Act 2009, Section 7 (2) recognizes three types of land tenure in Southern Sudan: public, community, and private land. The Land Act 2009 and this Land Policy accord all three systems of tenure community land, public land and private land--equal status before the law. To ensure transparency and accountability to the citizenry in the practice of land administration, the Land Policy endorses the principle that wherever possible legally constituted bodies charged with allocating land and adjudicating land disputes should be constituted by citizen members, appointed from various representative bodies. Civil servants should serve as advisors to land authorities, and not as members.

15 Policy statement 3. On restitution of land rights There is no single solution appropriate to everyone. A variety of flexible options are more likely to result in durable outcomes, satisfactory to all parties. The policy offers three broad pathways for restoring and normalizing the land rights of persons displaced during the civil war. Return and re-integration Local Integration Settlement elsewhere

16 Policy statement 7. On the equality of men and women in the exercise of land rights Central and state governments will develop programs to train, recruit, and mentor women in land administration and adjudication roles. Central government will support establishment of paralegal organizations and networks in rural areas capable of providing advice and aid to women on inheritance and land issues. Central government will amend and/or promulgate marriage, inheritance, and related laws to ensure recognition of the equal rights of those women who may not enjoy equal rights under various provisions of customary law and practice (divorced, widowed women, daughters, etc.)

17 Policy statement 10. On mediation of land rights conflicts State Legislative Assemblies will be encouraged to enact appropriate legislation to empower local institutions to deal with conflicts over natural resources. States and counties will develop and apply appropriate tools for managing pastoral based conflicts, including the creation of buffer zones and cattle routes, and demarcation of boundaries. Central government will set standards and assist the states in provision of training in alternative dispute resolution principles and methods Central government and states will establish criteria for determining the appropriate channels and authority for hearing, mediating, or adjudicating claims, conflicts, and cases. Both national-level and state laws shall clearly define the proper circumstances and processes for appealing outcomes to higher levels.

18 Policy statement 14. On extending tenure security to residents of informal settlements. Government at all levels will not remove residents of informal settlements without due process of law. When removal or transfer is deemed absolutely necessary, it should be done only after suitable alternative land is provided, compensation is provided for lost investments in housing, and assistance is provided to re-locate at alternative sites.

19 Policy statement 15. On Community rights to natural resources used in common. This policy makes clear that the ownership of all land within the boundaries of communities is vested with communities, with the following implications: Community institutions will take principal responsibility for ensuring that community resources are used sustainably, for the benefit of current and future generations. Communities, through their county and payam land institutions, will have the legal authority to enter into lease agreements with outside investors for the development of agricultural and other business enterprises. The revenue from these agreements will accrue to local public accounts and will be used for purposes that benefit the public only.

20 Reflecting on the Draft South Sudan Land Policy in Relation to John Bruce s List of Policies Likely to Reduce Vulnerability to Land-Related Conflict (2011) Address land scarcity Address insecurity of tenure Address land grievances Improve land governance Improve land dispute resolution Empower communities, particularly the poor and the marginalized, to pursue their land rights

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