LAND GOVERNANCE ASSESSMENT FRAMEWORK IN SOUTH SUDAN THEMATIC AREA 1: LEGAL AND INSTITUTIONAL FRAMEWORK

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1 LAND GOVERNANCE ASSESSMENT FRAMEWORK IN SOUTH SUDAN THEMATIC AREA 1: LEGAL AND INSTITUTIONAL FRAMEWORK

2 Theme 1: Legal and Institutional Framework Indicators Dimensions LGI-1: Recognition of rights LGI-2: Enforcement of rights LGI-3: Mechanism for recognition of rights LGI-4: Restriction on rights LGI-5: Clarity of institutional mandates LGI-6: Equity and nondiscrimination Rural tenure rights Urban tenure rights Rural group rights Urban group rights Opportunities for individualism Communal land records Individual property registration in rural areas Individual property registration in urban areas Women s rights formalized Condominium common property Compensation with use change Non-documentary evidence Recognition of possession Formal registration fees affordable Registration without informal fees Urban formalization feasible Possession recognized Institutional roles separated Overlap (horizontal) Overlap (vertical) Information sharing Restriction in urban land Restrictions in rural land Clear land policy Policy includes equity goals Policy based on cost/benefit Policy implementation monitored

3 LG1-1 Recognition of a continuum of rights This indicator assesses the extent to which the existing range of rights is recognized by the law.

4 LGI 1, Dimension (i) - Rural land tenure rights are legally recognized This dimension assess the extent of the legal recognition of the rights held by households in rural areas. Assessment A Existing legal framework recognizes rights held by more than 90% of the rural population, either through customary or statutory tenure regimes. B Existing legal framework recognizes rights held by 70% - 90% of the rural population, either through customary or statutory tenure regimes. C Existing legal framework recognizes rights held by 50% -70% of the rural population, either through customary or statutory tenure regimes. D Existing legal framework recognizes rights held by less than 50% of the rural population, either through customary or statutory tenure regimes.

5 Findings Some recognition of rural land rights in law. Customary land rights equal force in law to other forms of land tenure (e.g. leasehold). Pastoralist rights recognized. Women s inheritance rights recognized. But gaps in law and policy and inconsistencies among laws mean only partial recognition in practice (explanation of score). Why isn t Land Act being implemented? People see it as provisional legislation (i.e. the chicken or the egg of law and policy) Poor dissemination initially, but recent efforts have tried to compensate. No implementing regulations.

6 Recommendations SSLC and RSS MoL should develop roadmap for implementing land-related law and policy. Include timelines and estimated costs. Sequence activities for those that are achievable in the short-, medium- and long-term (e.g. legislative reforms, change of institutional responsibilities, institution building). Move ahead with Land Policy and Regulations. Consider simplifying rules to allow policies to be developed outside of legislative process. Develop more targeted and specific policies (e.g. Policy on Women s Land Rights).

7 LGI 1 Dimension (ii) - Urban land tenure rights are legally recognized Assesses the extent of the legal recognition of the rights held by households in urban areas. Assessment A Existing legal framework recognizes rights held by more than 90% of the urban population, either through customary or statutory tenure regimes. B Existing legal framework recognizes rights held by 70% - 90% of the urban population, either through customary or statutory tenure regimes. C Existing legal framework recognizes rights held by 50% -70% of the urban population, either through customary or statutory tenure regimes. D Existing legal framework recognizes rights held by less than 50% of the urban population, either through customary or statutory tenure regimes.

8 Findings Urban land rights managed through lease agreements with state governments. Existing registration processes are not able to cope with demand and people are forced into informality. Rights of people residing in informal settlements (i.e. unregistered land) have little or no legal recognition. Land Act says that people residing in an area for 30 years or more will be given rights, but not implemented. Panel participants estimated more than 50% of urban land in South Sudan is unregistered.

9 Recommendations Need to adopt a clear approach to recognizing rights in informal settlements in urban areas. This should be clearly stipulated in the law. The Land Act s provision regarding 30 years occupancy of unregistered land should be applied consistently. For those who have not resided in an area for that length of time, the law must clearly stipulate who s rights will be recognized.

10 LGI-1 Dimension (iii) - Rural group rights are formally recognized Assesses the extent to which regulations concerning group rights in rural areas define how user groups can organize themselves, impose internal rules, interact with the outside, and call on external agencies to enforce rules. Assessment A The tenure of most groups in rural areas is formally recognized and clear regulations exist regarding groups internal organization and legal representation. B The tenure of most groups in rural areas is formally recognized but ways for them to gain legal representation or organize themselves are not regulated. C The tenure of most groups in rural areas is not formally recognized but groups can gain legal representation under other laws (e.g. corporate law). D The tenure of most groups in rural areas is not formally recognized.

11 Findings As noted above, customary land tenure is recognized in law. This applies to the vast majority of landholdings in rural areas. Legal personality for community landholders is possible, but the process is not well regulated. Some communities have registered as cooperatives or other forms of association (e.g. Bari Community, Mukaya Payam Cooperative), with mixed results.

12 Recommendations Need for a process by which communities can represent themselves (i.e. sue or be sued, enter into contracts, etc.) or designate legally authorized representatives. Community Protocols could play a role. Already being tried in locations. Community Trusts - Trustee or board of trustees manages collectively owned community assets (including land) on behalf of the community (e.g. Ingonyama Trust or Alaska Permanent Fund) Also consider use of trust models for 3% of oil revenue and compensation payments given to communities in oilproducing areas.

13 LGI-1 Dimension (iv) - Urban group rights are recognized in informal areas This assesses the extent to which regulations concerning group rights in urban areas define how user groups can organize themselves, impose internal rules, interact with the outside, and call on external agencies to enforce rules. Assessment A Group tenure in informal urban areas is formally recognized and clear regulations exist regarding the internal organization and legal representation of groups. B Group tenure in informal urban areas is formally recognized but ways for them to gain legal representation or organize themselves are not regulated. C Group tenure in informal urban areas is not formally recognized but groups can gain legal representation under other laws. D Group tenure in informal urban areas is not formally recognized.

14 Findings There is no formal recognition of the land rights of people residing in informal settlements (i.e. unregistered landholdings) in urban areas. However, individuals and group may apply to have their lands surveyed, demarcated and registered. Individuals residing on areas designated for public use, however, can be evicted without being provided compensation or alternative resettlement.

15 Recommendations See previous recommendation concerning the need for a more clear legal recognition of informal landholdings.

16 LGI-1 Dimension (v) When desirable, opportunities for tenure individualization exist and are accessible This assesses whether the law provides adequate mechanisms to accompany the transition of customary or collective tenure towards individualization if so desired by land users. Assessment A When desirable, the law provides opportunities for those holding land under customary, group, or collective tenure to fully or partially individualize land ownership/use. Procedures for doing so are affordable, clearly specified, safeguarded, and followed in practice. B When desirable, the law provides opportunities for those holding land under customary, group, or collective tenures to fully or partially individualize land ownership/use. Procedures to do so are affordable and include basic safeguards against abuse but are not always followed in practice and are often applied in a discretionary manner. C When desirable, the law provides opportunities for those holding land under customary, group, or collective tenures to fully or partially individualize land ownership/use. Procedures are not affordable or clear, leading to widespread discretion or failure to apply even for cases where those affected desire to do so. D Although desirable, the law provides no opportunities for those holding land under customary, group, or collective tenures to fully or partially individualize land ownership/use.

17 Findings The Land Act lays out a process for registering customary land rights, but it is not yet available. There is no way to formalize individual rights in areas that are under customary land tenure. But in peri-urban areas, land held under customary land tenure can be converted into urban land and distributed to individuals (including individuals from the community) through leaseholds. Due to the inability to register individual rights on collectively owned land, panel participants felt the most appropriate response was C.

18 Recommendations Take stock of pilot efforts and develop an approach for upscaling. Target peri-urban areas, land designated for investment, development projects (e.g. pipeline) and other high demand locations. Compile existing studies (e.g. FAO s land use mapping, NPA s COREMAP, etc.) into a database that is made available to people. Consider coordinating these efforts with NBS.

19 Theme 1: Legal and Institutional Framework Indicators Dimensions LGI-1: Recognition of rights LGI-2: Enforcement of rights LGI-3: Mechanism for recognition of rights LGI-4: Restriction on rights LGI-5: Clarity of institutional mandates LGI-6: Equity and nondiscrimination Rural tenure rights Urban tenure rights Rural group rights Urban group rights Opportunities for individualism Communal land records Individual property registration in rural areas Individual property registration in urban areas Women s rights formalized Condominium common property Compensation with use change Non-documentary evidence Recognition of possession Formal registration fees affordable Registration without informal fees Urban formalization feasible Possession recognized Institutional roles separated Overlap (horizontal) Overlap (vertical) Information sharing Restriction in urban land Restrictions in rural land Clear land policy Policy includes equity goals Policy based on cost/benefit Policy implementation monitored

20 LGI-2 Enforcement of rights Assesses whether the rights recognized by law are enforced (including secondary rights as well as rights of minorities and women).

21 LGI 2 Dimension (i) - Surveying/mapping and registration of rights to communal land Assesses the extent to which Boundaries to communal land have been surveyed / mapped and the communal rights registered. Communal land is land over which a rural group or community has rights or access to. Such land may be held under customary tenure and in some cases, occupants may belong to indigenous communities or their equivalent (e.g. scheduled tribes in India) as defined by law. Assessment A More than 70% of the area under communal or indigenous land has boundaries demarcated and surveyed and associated claims registered. B 40-70% of the area under communal or indigenous land has boundaries demarcated and surveyed and associated claims registered. C 10-40% of the area under communal or indigenous land has boundaries demarcated and surveyed and associated claims registered. D Less than 10% of the area under communal or indigenous land has boundaries demarcated and surveyed and associated claims registered.

22 Findings Land Act recognizes customary land rights whether or not they have been formalized, but it also lays out a process for surveying, demarcating and registering community lands. Aside from a few pilot efforts, this process has not yet started and there is no concrete plan in place for when and how it might be done. One obstacle to registration lies in defining community.

23 Recommendations RSS Ministry of Lands should take the lead in spearheading registration of community lands, in consultation with statelevel Ministries of Physical Infrastructure and Local Governments. Incorporate dispute resolution element in the process to manage disputes that may arise between neighboring communities and within communities themselves.

24 LGI 2 Dimension (ii) - Registration of individually held properties in rural areas Assesses the extent to which majority of individual properties in rural areas are formally registered. Here registered does not necessarily mean that the final certificate or title has been issued. Registered may mean that the rights are recorded unambiguously in the land administration system and there are generally few disputes over the recorded information. Assessment A More than 90% of individual properties in rural areas are formally registered. B Between 70% and 90% of individual properties in rural areas are formally registered. C Between 50% and 70% of individual properties in rural areas are formally registered. D Less than 50% of individual properties in rural areas are formally registered.

25 Findings Rural areas are almost entirely held under customary land tenure. There is no registration of individual rights. Sometimes you will find small marketplaces and residences of local government officials at the county and payam level. These landholdings may be recorded in a kind of ledger, but it does not rise to the level of formalization found in urban areas.

26 Recommendations See recommendation above concerning survey, mapping, demarcation and registration of community lands. Consider targeting individualized registration in marketplaces in county and payam headquarters. Anticipate problems.

27 LGI 2 Dimension (iii) - Registration of individually held properties in urban areas Assesses the extent to which majority of individual properties in urban areas are formally registered. Assessment A More than 90% of individual properties in urban areas are formally registered. B Between 70% and 90% of individual properties in urban areas are formally registered. C Between 50% and 70% of individual properties in urban areas are formally registered. D Less than 50% of individual properties in urban areas are formally registered.

28 Findings Panel participants estimated that more than 50% of urban landholdings in Juba were on unregistered land. Most of the registered land in Juba is found in the town center ( Old Juba ), where the residences for administrators and government offices were built. Other areas are mostly unregistered. In other urban areas, there is an even higher percentage of unregistered urban lands.

29 Recommendations Need to overhaul urban registration processes. Do a complete documenting of existing registration processes and identify where gaps arise. Develop formalization processes that are tailored to suit user demands (e.g. cost). Conduct civic education campaign to introduce the redesigned process to people. Clearly stipulate procedures and fees. Take satellite maps of each of the ten state capitals and more developed county headquarters (e.g. Yei, Renk, etc.) and identify which land has been registered. Use that as a starting point to chart progress. This requires access to state level land administration institutions. MLHPP and the SSLC should take the lead and lobby for support from state governments.

30 LGI 2 Dimension (iv)- Women s rights are recognized in practice by the formal system (rural/urban) Assesses the extent to which the tenure rights of women are enforced through the registration of land in their names or jointly. Women s rights may be registered individually or jointly, where jointly means that a woman is registered with others in the records. These others may be a husband or other family members or may include members of a wider group. Assessment A More than 45% of land registered to physical persons is registered in the name of women either individually or jointly. B Between 35% and 45% of land registered to physical persons is registered in the name of women either individually or jointly. C Between 15% and 35% of land registered to physical persons is registered in the name of women either individually or jointly. D Less than 15% of land registered to physical persons is registered in the name of women either individually or jointly.

31 Findings TCRSS, Land Act and Land Policy recognize women s equal rights to property. Indicator refers to land rights in the formal system. There is some geographical variation, but it is relatively rare in most places to find women with land registered in their names. Usually the land will be registered in the name of her husband or a male relative. In some locations, women can buy land and have it registered in their names. Far less able to access through government distribution, inheritance or property distribution in cases of divorce. A lot of discrimination in the registration process. Officials may be afraid of disgruntled male relatives. Some evidence of evolving attitudes on the matter in places (e.g. recognizing women s role in the struggle).

32 Recommendations Important indicator in measuring women s access to land in urban areas. Need to get accurate measure. Requires access to land registries in urban areas throughout South Sudan. Once data is compiled, monitor periodically to see changes. Amend lease agreements to allow for joint registration of landholdings. Consider ways of encouraging or requiring that both spouses names be recorded on the lease. Determine ways in which women are able to get access to land and where they are being denied (e.g. government distribution schemes, community distribution schemes, land transfers in the open market, inheritance, property distribution upon divorce, gifts, etc.).

33 LGI 2 Dimension (v) - Condominium regime provides for appropriate management of common property An essential element of good governance regarding condominiums is not only that the rights of the dwelling itself are recognized but that there is recognition of, and clear arrangements to manage the common property areas (driveways, parking, gardens, stairwells etc.) that are necessary for the occupants of the condominium to enjoy the full use of the property. Assessment A Common property under condominiums is recognized and there are clear provisions in the law to establish arrangements for the management and maintenance of this common property. B Common property under condominiums is recognized but the law does not have clear provisions to establish arrangements for the management and maintenance of this common property. C Common property under condominiums has some recognition but there are no provisions in the law to establish arrangements for the management and maintenance of this common property. D Common property under condominiums is not recognized.

34 Findings According to the LGAF: A condominium is a collection of individual home units along with the land upon which they sit, also known as strata. Individuals have private rights within the complex/building, but they also have use and access to common facilities, including hallways, stairwells, and exterior areas etc. There are typically common property areas included in the property that require management by the commons. Condominium arrangements are not recognized in South Sudan.

35 Recommendations Consider addressing this issue in the Housing Policy and in amendments to the Land Act.

36 LGI 2, Dimension (vi) -There is compensation for loss of rights due to land use changes Assessment A Where people lose rights as a result of land use change outside the expropriation process, compensation in cash or in kind is paid such that these people have comparable assets and can continue to maintain prior social and economic status. B Where people lose rights as a result of land use change outside the expropriation process, compensation in cash or in kind is paid such that these people have comparable assets but cannot continue to maintain prior social and economic status. C Where people lose rights as a result of land use change outside the expropriation process, compensation in cash or in kind is paid such that these people do not have comparable assets and cannot continue to maintain prior social and economic status. D Where people lose rights as a result of land use change outside the expropriation process, compensation is not paid.

37 Findings Main loss of land rights due to land use changes occurs during urban rezoning (e.g. evictions and demolitions) (see LGI-7). The rights of people living on land designated for public use (whether the designation was made before or after they came to live in the area) are not recognized. Despite provision of Land Act saying people who have lived in a place for more than 30 years since the start of the war in 1983 will be given rights to that area.

38 Recommendations According to the Land Act, people who have been living in an area for more than 30 years should have their rights recognized even if they have settled on land designated for public use. This would require providing them with compensation and alternative resettlement if their land is to be expropriated. Need to develop guidelines for urban rezoning. This should be done by the MLHPP. States should be required to adhere to those guidelines. They should include standards governing the provision of notice, mechanisms to contest decisions, compensation, alternative resettlement, the manner in which evictions and demolitions are implemented (e.g. actions of security contingents), etc.

39 LGI-3 Mechanisms for recognition of rights Assesses the consistency and affordability of rights recognition mechanisms (formalization) with existing tenure practices.

40 LGI 3, Dimension (i) - Use of non-documentary forms of evidence for recognition of property claims Assessment A Non-documentary forms of evidence are used alone to obtain full recognition of claims to property when other forms of evidence are not available. B Non-documentary forms of evidence are used to obtain recognition of a claim to property along with other documents (e.g. tax receipts or informal purchase notes) when other forms of evidence are not available. They have about the same strength as the provided documents. C Non-documentary forms of evidence are used to obtain recognition of a claim to property along with other documents (e.g. tax receipts or informal purchase notes) when other forms of evidence are not available. They have less strength than the provided documents. D Non-documentary forms of evidence are almost never used to obtain recognition of claims to property.

41 Findings Statutory courts in South Sudan ascribe a great deal of weight to documentary evidence in land disputes. An individual that has a registered land lease will often win a court case even when non-documentary forms of evidence provide persuasive evidence of contrary claims.

42 Recommendations Need for additional research to better understand the use of documentary evidence in Juba and other urban areas.

43 LGI 3 Dimension (ii) - Formal recognition of long-term, unchallenged possession Assesses the presence of legal process to recognize long-term, unchallenged occupation of land. Assessment A Legislation exists to formally recognize long-term, unchallenged possession and this applies to both public and private land although different rules may apply. B Legislation exists to formally recognize long-term, unchallenged possession but applies only to one specific type of land (e.g. either public land or private land). C Legislation exists to formally recognize long-term, unchallenged possession but due to the way this legislation is implemented, formal recognition is granted to very few or no applicants for recognition on either public or private land. D Legislation to formally recognize long-term, unchallenged possession does not exist.

44 Findings People residing on unregistered land in urban areas can have their rights formally recognized through the registration process. According to the Land Act, someone residing in an area for 30 years or more since 1983 shall have their rights recognized. There is no limitation on the type of land to which this applies. Adverse possession in South Sudanese law?

45 Recommendations Need to clarify the rights of people in informal settlements in amendments to the Land Act.

46 LGI 3 Dimension (iii)- First-time registration on demand is not restricted by inability to pay the formal fees Assessment A The costs for first time sporadic registration for a typical urban property does not exceed 0.5% of the property value. B The costs for first time sporadic registration for a typical urban property does not exceed 2% of the property value. C The costs for first time sporadic registration for a typical urban property does not exceed 5% of the property value. D The costs for first time sporadic registration for a typical urban property exceeds 5% of the property value.

47 Findings There are two parallel registration processes at work in South Sudan: government registration and community registration. Government process Apply for a lease (costs range from 172 SSP to 752 SSP). Includes survey fee; a token that is issued in the applicant s name designating which plot he or she is to receive; a service fee; a transport fee; and a stamp duty. Register lease in the Land Registry at the High Court (30 SSP 50 SSP plus a 1 SSP stamp duty). Get survey to survey and demarcate the land (172 SSP).

48 Findings Cont d. Community process Tokens issued by communities. Community sometimes gives document only authorizing temporary use of the land. One interviewee said he had to pay 2,650 SSP for the token, followed by a 1,000 SSP registration fee, a 1,000 SSP demarcation fee, a service fee and a payment to the payam authorities. The total cost was approximately 5,000 SSP. Property in government distribution can go for as little as little as 3,000 SSP in Juba. In open market, can be 80,000 SSP to 90,000 SSP and more. Assuming the open market value, registration is less than 5 percent of the property value.

49 Recommendations Need for additional research to better understand land registration processes throughout the country. Research could be geared to capture the range of registration processes that exist, from the regional centers of Juba, Wau and Malakal, to state capitals and larger counties, to the less developed county and payam headquarters. Research should be designed to generate credible data on access, including elements of cost.

50 LGI 3 Dimension (iv) - First-time registration does not entail significant informal fees Assesses as to whether the demand for first time registration is not restricted by demands for unofficial or informal fees. Assessment A There are no informal fees that need to be paid to effect first registration. B There are informal fees that need to be paid to effect first registration, but the level of informal fees is significantly less than the formal fees. C There are informal fees that need to be paid to effect first registration and the level of informal fees is about the same as the formal fees. D There are informal fees that need to be paid to effect first registration and the level of informal fees is significantly higher than the formal fees.

51 Findings Informal fees can include: Facilitation fees to expedite the process; Paying transport costs or providing a foot fee for officials to visit the plot in question; Payment for forms and other documents; Payments to facilitate the survey activities, which are often negotiated on the ground with members of the survey department; and Costs for tea and lunch that officials require prior to carrying out their activities. Can reach 1,000 SSP and more.

52 Recommendations Institutions involved in land administration should have a publicly available schedule of fees. This will help to limit informal payments. There should be a public information officer in each of these institutions who s sole job is to answer people s questions about the process. The institutions could create brochures informing people about what steps to take to formalize landholdings and the different options that are available. A larger civic education campaign can help to raise awareness about the land registration system. Some of these elements can be included in the proposed Land Registration Act.

53 LGI-3 Dimension (v) - Formalization of urban residential housing is feasible and affordable Assessment A The requirements for formalizing housing in urban areas are clear, straight-forward, affordable and implemented consistently in a transparent manner. B The requirements for formalizing housing in urban areas are clear, straight-forward, and affordable but are not implemented consistently in a transparent manner. C The requirements for formalizing housing in urban areas are not clear, straight-forward, or affordable but many applicants from informal areas are managing to satisfy the requirements. D The requirements for formalizing housing in urban areas are such that formalization is deemed very difficult.

54 Findings The requirements are not clear and information is not provided to people. Nonetheless, people are managing to register landholdings. Shows the high demand for land.

55 Recommendations See previous recommendation about overhauling the land registration process. Also need to know which areas are registered and develop an approach for systematically extending registration to all urban areas.

56 LGI 3 Dimension (vi) - Efficient and transparent process to formalize possession Assesses if processes to regularize the informal occupation of land are clearly defined, transparently and efficiently implemented. Assessment A There is a clear, practical process for the formal recognition of possession and this process is implemented effectively, consistently and transparently. B There is a clear, practical process for the formal recognition of possession but this process is not implemented effectively, consistently or transparently. C The process for the formal recognition of possession is not clear and is not implemented effectively, consistently or transparently. D There is no process for formal recognition of possession.

57 Findings The formalization process itself makes sense (i.e. survey, demarcation and registration) and plays an important role in urban planning. The problem is in how it is managed.

58 Recommendations See previous recommendations about overhauling the registration process.

59 Theme 1: Legal and Institutional Framework Indicators Dimensions LGI-1: Recognition of rights LGI-2: Enforcement of rights LGI-3: Mechanism for recognition of rights LGI-4: Restriction on rights LGI-5: Clarity of institutional mandates LGI-6: Equity and nondiscrimination Rural tenure rights Urban tenure rights Rural group rights Urban group rights Opportunities for individualism Communal land records Individual property registration in rural areas Individual property registration in urban areas Women s rights formalized Condominium common property Compensation with use change Non-documentary evidence Recognition of possession Formal registration fees affordable Registration without informal fees Urban formalization feasible Possession recognized Institutional roles separated Overlap (horizontal) Overlap (vertical) Information sharing Restriction in urban land Restrictions in rural land Clear land policy Policy includes equity goals Policy based on cost/benefit Policy implementation monitored

60 Restrictions on rights (LGI-4) This indicator assesses the justifications of restrictions on land rights.

61 LGI 4 Dimension (i) - Urban Land Use, Ownership and Transferability Restrictions Assess the potentially harmful impact of land rights restrictions in urban areas. Assessment A There are a series of regulations that are for the most part justified on the basis of overall public interest and that are enforced. B There are a series of regulations that are for the most part justified on the basis of overall public interest but that are not enforced. C There are a series of regulations that are generally not justified on the basis of overall public interest but are not enforced. D There are a series of regulations that are generally not justified on the basis of overall public interest and are enforced.

62 Findings Land transactions No formal restrictions on land transactions in urban areas. Land ownership The 2009 Land Act lists freehold as one of the tenure types available in South Sudan, but in practice, there is no land that is held in freehold anywhere in the country. Owner type Leaseholds in urban areas are technically available to both South Sudanese and foreign applicants, but due to the high demand for land and the scarce supply, most leases for new residential areas are allocated to South Sudanese. Foreigners typically gain access to land through subleases with the primary leaseholders. South Sudanese law restricts foreigners from owning land in freehold, although they may obtain leases for up to 99 years.

63 Findings Cont d. Use Land use restrictions not well advertised and followed strictly, though some areas are known to be allocated for public use. Size of holding Land in urban areas is categorized according to the colonial system in which there are three classes of plots. First class plots are typically about 900 square meters, second class are about 625 square meters, and third class plots are about 400 square meters. The size restrictions are not followed strictly, and plot sizes may vary from neighborhood to neighborhood and in different locations in the country. Price No formal restrictions on land prices.

64 Recommendations Restrictions need to be enforced. Courts should be trained on the Land Act and Judiciary should issue instructions requiring them to apply it. If a system of freehold is to be established, a mechanism for proceeding on that front should be developed. Consider the practice of delayed freehold, in which lease rights over a period of time would transition into freehold rights.

65 LGI 4 Dimension (ii) - Restrictions on rural land use, ownership and transferability are justified Assess the potentially harmful impact of land rights restrictions in rural areas. Assessment A There are a series of regulations that are for the most part justified on the basis of overall public interest and that are enforced. B There are a series of regulations that are for the most part justified on the basis of overall public interest but that are not enforced. C There are a series of regulations that are generally not justified but are not enforced. D There are a series of regulations that are generally not justified and are enforced.

66 Findings Land transactions No restrictions on land transactions. Land ownership Most customary tenure systems stipulate that the land belongs to the community in its collective capacity in perpetuity. Owner type Many customary systems do not permit women to own land, or restrict women s ability to own land independently of their husbands or male relatives. IDP groups might only be permitted to settle temporarily until conditions improve in their home areas.

67 Findings Cont d. Use Restrictions managed according to customary law. E.g. chiefs, landlords or other traditional authorities may designate which land can be used for agricultural purposes, which land is allocated as a buffer zone through which people and their livestock may pass, and which land has ritual or spiritual significance. Size of holding Any allocation of a piece of land beyond 250 feddans (105 ha) for commercial, agricultural, forestry, ranch, poultry or farming purposes shall be approved by the Concerned Ministry in the State after transmission by the County Land Authority or the Payam Land Council. Land Act also calls for land ceilings to be put in place. Not yet done. Price No price restrictions.

68 Recommendations Need to stipulate land ceilings in the implementing regulations for the Land Act. Select sizes that could be transferred by local government and those that would require the approval of the state and national government. There should be a ceiling also on transfers by the national government itself.

69 LGI-5 Clarity of institutional mandates Assesses the clarity of mandates of land institutions, effectiveness of the land administration system in avoiding horizontal and vertical overlaps, and the ability to share land-related information.

70 LGI-5 Dimension (i) - There is an appropriate separation of policy formulation, implementation, and arbitration roles Assessment A In situations that can entail conflicts of interest or abuse (e.g. transfers of land rights) there is a clear separation in roles of policy formulation, implementation of policy through land management and administration and the arbitration of any disputes that may arise as a result of implementation of policy. B In situations that can entail conflicts of interest or abuse (e.g. transfers of land rights) there is some separation in the roles of policy formulation, implementation of policy through land management and administration and the arbitration of any disputes that may arise as a result of implementation of policy, but there are overlapping and conflicting responsibilities that lead to occasional problems. C In situations that can entail conflicts of interest or abuse (e.g. transfers of land rights) there is some separation in the roles of policy formulation, implementation of policy through land management and administration and the arbitration of any disputes that may arise as a result of implementation of policy but there are overlapping and conflicting responsibilities that lead to frequent problems. D In situations that can entail conflicts of interest or abuse (e.g. transfers of land rights) there is no clear separation in the roles of policy formulation, implementation of policy through land management and administration and the arbitration of any disputes that may arise as a result of implementation of policy.

71 Findings Land matters are dealt with by an assortment of institutions at various levels of government and there tends to be little separation of roles. State-level executive institutions tend to take the lead in most land matters that entail conflicts of interest. The same institutions are often involved with policy formulation, implementation and arbitration.

72 Recommendations The MLHPP, in consultation with the Land Commission and other institutions at the national, state and local level, could draft an official statement clarifying the roles and responsibilities of all the institutions involved in land governance.

73 LGI-5 Dimension (ii) - The responsibilities of the ministries and agencies dealing with land do not overlap Assesses if there is a clear delineation of institutional responsibilities with respect to the spectrum of land related issues. Assessment A The mandated responsibilities exercised by the authorities dealing with land administration issues are clearly defined and non-overlapping with those of other land sector agencies. B The mandated responsibilities of the various authorities dealing with land administration issues are defined with a limited amount of overlap with those of other land sector agencies but there are few problems. C The mandated responsibilities of the various authorities dealing with land administration issues are defined but institutional overlap with those of other land sector agencies and inconsistency is a problem. D The mandated responsibilities of the various authorities dealing with land administration are defined poorly, if at all, and institutional overlap and inconsistency is a serious problem.

74 Findings Many different institutional actors are involved with land matters, including national ministries, state ministries, governors, local government, etc. Their roles and responsibilities are not clearly understood. E.g. Discrepancies between the Land Act and Local Government Act, CLAs and PLCs.

75 Recommendations See previous recommendation about a statement from the MLHPP clarifying institutional mandates.

76 LGI-5 Dimension (iii) - Administrative (vertical) overlap is avoided Assesses level with which central, regional, and local institutions dealing with land have clearly assigned functions and responsibilities. Assessment A Assignment of land-related responsibilities between the different levels of administration and government is clear and non-overlapping. B Division of land-related responsibilities between the different levels of administration and government is clear with minor overlaps. C Division of land-related responsibilities between the different levels of administration and government is characterized by large overlaps. D Division of land-related responsibilities between the different levels of administration and government is unclear.

77 Findings National government supposed to set policy and states supposed to be the implementers. Land administration is a concurrent competence. But now the states are acting as the primary decision-makers on most land issues, particularly in urban areas. Reporting lines from state ministries to national ministries are not clear.

78 Recommendations See previous recommendation.

79 LGI 5 Dimension (iv) - Land information is shared with interested institutions Assesses whether land-related information, both textual and spatial, is maintained in a uniform way that is accessible at reasonable cost by all the institutions that might have an interest in land issues and need this information. Such public institutions may include land use planning agencies, local authorities, courts, disaster management agency, etc. Assessment A Information related to rights in land is available to other institutions that need this information at reasonable cost and is readily accessible, largely due to the fact that land information is maintained in a uniform way. B Information related to rights in land is available to interested institutions and although this information is available at reasonable cost, it is not readily accessible as the information is not maintained in a uniform way. C Information related to rights in land is available to interested institutions but this information is not readily accessible as the information is not available at a reasonable cost. D Information related to rights in land is not available to interested institutions as a matter of policy or practice.

80 Findings Information about land rights is not shared even within the government. Documentation in the land registry is tightly restricted.

81 Recommendations The MLHPP could develop a timeline for making information in the registries available for public review. A process must be designed for computerizing the information in the registry. The system should allow for joint registration, recording of various public and private encumbrances, more developed mapping, and other types of information. The information could be posted online for easy access. Begin by reviewing land cadastres currently being employed in other countries.

82 Theme 1: Legal and Institutional Framework Indicators Dimensions LGI-1: Recognition of rights LGI-2: Enforcement of rights LGI-3: Mechanism for recognition of rights LGI-4: Restriction on rights LGI-5: Clarity of institutional mandates LGI-6: Equity and nondiscrimination Rural tenure rights Urban tenure rights Rural group rights Urban group rights Opportunities for individualism Communal land records Individual property registration in rural areas Individual property registration in urban areas Women s rights formalized Condominium common property Compensation with use change Non-documentary evidence Recognition of possession Formal registration fees affordable Registration without informal fees Urban formalization feasible Possession recognized Institutional roles separated Overlap (horizontal) Overlap (vertical) Information sharing Restriction in urban land Restrictions in rural land Clear land policy Policy includes equity goals Policy based on cost/benefit Policy implementation monitored

83 LGI-6 Participation and equity in land policies This indicator assesses the equity and transparency of land policy formulation and implementation.

84 LGI 6 Dimension (i) - Land policy is developed in a participatory manner The extent with which land policy statement draws on wide input from different sectors. Assessment A A comprehensive policy exists or can be inferred by the existing legislation. Land policy decisions that affect sections of the community are based on consultation with those affected and their feedback on the resulting policy is sought and incorporated in the resulting policy. B A comprehensive land policy exists or can be inferred by the existing legislation. Land policy decisions that affect sections of the community are based on consultation with those affected but feedback is usually not sought or not used in making land policy decisions. C Policy exists or can be inferred by the existing legislation but it is incomplete (some key aspects are missing or only covers part of the country such as only urban or only rural areas) or land policy decisions that affect some sections of the community are made without consultation with those affected. D No clear land policy exists or can be inferred by the existing legislation and/or land policy decisions are generally taken without consultation of those affected.

85 Findings Several land-related policies are on the verge of official endorsement by the NLA (e.g. Land Policy, Housing Policy, Forest Police, Environment Policy, etc.). Most were developed through participatory approaches (e.g. SSLC went to each of the 10 states), but it is often difficult to obtain the draft texts once they have been prepared.

86 Recommendations Policy documents and legislation should be made available at all stages of development. The NLA should have an office whose sole purpose is to compile legislation and share it with members of the public. The MLHPP could have a similar office for land-related laws and policies. In developing new law and policy, institutions should continue to devote time and resources to securing the input of stakeholders. One approach could be to first conduct a comparative review of legislation in a particular area (e.g. land registration) and then to use that information to structure a series of regional dialogues to discuss the issue with people at the national, state and local level.

87 LGI 6 Dimension (ii) - Meaningful incorporation and monitoring of equity goals in land policy Measures impacts of land policies on equity issues and monitoring. Assessment A Land policies incorporate equity objectives that are regularly and meaningfully monitored and their impact on equity issues is compared to that of other policy instruments. B - Land policies incorporate equity objectives that are regularly and meaningfully monitored but their impact on equity issues is not compared to that of other policy instruments. C - Land policies incorporate some equity objectives but these are not regularly and meaningfully monitored. D Equity issues are not considered by land policies.

88 Findings Women Women s rights are featured in the Land Policy, but still very vague and little data to support policy prescriptions. There is a need for a more targeted policy on Gender and Land Rights. IDPs, Refugees, Returnees Also figure prominently in policies. A central concern in South Sudan. Indigenous Peoples Term not in usage in South Sudan. Not clear how it would be defined. Migrants Interests of economic migrants (foreign or domestic) are not considered. Landless Landlessness sometimes mentioned in relation to widows or divorcees whose property rights are not recognized. Need for more fact-based and empirical analysis.

89 Recommendations Draft more targeted policies addressing issues of concern. Ensure that policies are based on empirical evidence and a full understanding of the issue. E.g. Policy on Gender and Land Rights. Conduct a symposium to explore the meaning of the term indigenous people s in the South Sudanese context. South Sudan should ratify international covenants relating to indigenous people s rights.

90 LGI 6 Dimension (iii) - Policy implementation is costed, matched with benefits and adequately resourced It measures efficiency and transparency by comparing expected benefits of land policies with corresponding costs and availability of adequate resources. Assessment A Implementation of land policy is costed, expected benefits identified and compared to cost, and there are a sufficient budget, resources and institutional capacity for implementation. B The implementation of land policy is costed, though not necessarily based on a comparison of expected benefits and costs. There is an adequate budget, resources and institutional capacity. C The implementation of land policy is not fully costed and/or to implement the policy there are serious inadequacies in at least one area of budget, resources or institutional capacity. D The implementation of land policy is not costed and there is inadequate budget, resources and capacity to implement the land policy.

91 Findings Policies not costed and there are no explicit timelines for implementation. Hampers the effectiveness of law and policy.

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