III. LAND OWNERSHIP, ALLOCATION AND MANAGEMENT IN SUDAN

More than 95% of Sudanese land legally belongs to the State.lxxiv The conditions of life in Sudan are such that land use by rural communities and pastoralists is upon land over which they have no legal rights. Instead, these communities have what is described as legitimacy of use.lxxv The Government’s view of land management is that: “When land belongs to the Government there is generally no problem regarding access or tenure security. If there is a problem, the Government will solve it” (Legality of tenure).

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However, land management in the south was viewed differently: “All rural land belongs to the people and is held under customs. To date there is no major problem with this system” (Legitimacy of tenure).lxxvi Therefore, customary land use whilst considered legitimate, was without legal rights.

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The Sudanese Unregistered Land Act, 1970lxxvii was passed to permit the legal acquisition by the State of large tracts of land for agricultural schemes. The purpose at the time was to enable Sudan to develop its food production more effectively for its people. All unregistered land including that used by rural dwellers and pastoralists, was transferred to the government, permitting it to assign it for development to any public or national enterprise, as well as to farmers on a leasehold basis. The Act applied throughout the country, even in the South where there was no system of land registration in force.lxxviii Article 8 states: “If any person is in occupation of any land which is registered or deemed to be registered in the name of the Government, the Government may order his eviction from such land and may use reasonable force if necessary”.lxxix This provision meant that prior users lost the right to use, or be compensated for, land rights incorporated into any planned agricultural programme. Traditional farmers had to be relocated, often to less productive areas. There they may have found little infrastructure and few water resources, causing them in many cases to move again in search of resources. Over decades, the process of continued expanding agricultural production meant that extensive areas were placed under mechanised cultivation in the bid to increase food production.

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Whereas entrepreneurs, urban dwellers and elite groups were able to use the legal system to obtain new rights over land through leaseholds, such procedures were not familiar to the great majority of the people, nor well adapted to their needs. The customary system was used by the majority of land users to secure their existing rights. Although these may not have been legally recognised, the rural population considered them legitimate. This gap between the legality of the state’s system and the legitimacy of the customary systems was the main reason why tenure over land was not secure.lxxx The State was able to impose mechanised farming over large areas of northern Sudan. Thus, thousands of people were expropriated without compensation and lost access to the land where they had lived and made their living. Pastoralist tribes, who were often the poorest and most vulnerable to conflict, lost their tribal homelands as a result of business-driven agricultural activities. The result was that such groups of summarily displaced people were permanently on the move, in turn provoking conflict as they passed through new lands.lxxxi

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IV. OIL AND MINERAL RIGHTS

A general provision of the Civil Transactions Actlxxxii provides that the owner of land owns the adjacent soil below it to the extent of its useful limit. With respect to petroleum products, including oil and natural gas, legislation, including the Petroleum Wealth Act 1998 provides that all such products are deemed to be the property of the state, for which no one may search or produce without a licence or lease granted by the government.

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The 1998 constitution established that “natural resources under or on the surface of the earth and in territorial waters is public property regulated by law and the State shall provide plans and appropriate conditions for the development of the financial and human resources necessary for utilising such wealth”, provisions similar in a majority of countries in the world.lxxxiii Other legislation recognises that “things discovered” on privately held-land may belong to the land-owner but since 95 per cent of the land belongs to the state a combination of the provisions in the Civil Transactions Act and the Constitution will ultimately prevail against the claims of others.

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V. LIVELIHOODS AND CONFLICT

Overall, Sudan and southern Sudan should have had great potential both in terms of resources and cultivable land. It should have been capable of achieving food self-sufficiency,lxxxiv exporting food to diverse markets and benefitting from the huge quantity of natural resources available. However, for decades it has lacked peace, political stability, infrastructure, capital, and expertise to reach its investment potential.lxxxv

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In southern Sudan, the prevailing way of life is traditional agriculture and the raising of livestock. This leads to acute competition and conflict over natural resources among the various communities. Farmers and nomadic herdsmen in undeveloped rural areas have historically clashed for long-standing reasons, some unconnected with resources, such as tribal divisions and revenge for real and perceived provocations, such as cattle raiding and fighting over fishing rights.lxxxvi By way of example, between 1993 and 1994, conflicts between the Jikany and Lou sections of the Nuer people resulted in 1,500 dead and 75,000 cattle stolen.lxxxvii These clashes were exacerbated by increases in human and animal populations, other outside influences and the devastating effect of the proliferating presence of weaponry.lxxxviii Armed conflict often involved not only aggression directed towards the opposing group but the destruction of property and environment. However, the reality is alliances were fluid and groups rarely defined along clear lines. They were more opportunistic and based around loose groupings of individuals serving their

own interests over a greater communal cause. The split in the SPLA in 1991 empowered and increased levels of violence and inhibited access to grazing and fishing areas. This drove and reinforced divisions, competition and mistrust.lxxxix Block 5A was no exception to this as the local grievances persisted and continued the historic patterns of conflict.

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VI. INSTABILITY

Despite the KPA, the conflicts in southern Sudan bequeathed a widespread shortage of resources, little or poor access to services, and the disruptive presence of armed combatants whose energies swiftly turned from the wider conflict to destructive action within or outside their communities.xc Refugees from the conflicts, fled into traditionally held territories, increasing competition for resources, fomenting tensions and spawning further violence.xci There was no effective system of justice that would serve as a deterrent to these activities and the customary laws that had previously held these populations together unravelled.xcii

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The prolonged conflicts within and between communities resulted in the destruction of the physical, social, economic, and political infrastructure. Poverty, food insecurity, broken family structures and relationships, greater numbers of IDPs and, inevitably, death and injury followed. In 1983, there were between 6–7.5 million (statistically uncertain) southern Sudanese, by 2000, 3–4 million remained.xciii The inter-factional conflicts in the 1990s are believed by some observers to be responsible for 90% of internally displaced people in Sudan.xciv The impact of these perpetual conflicts was felt in the absence of health workers, teachers, transport and even basic commerce.xcv

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None of these services could be financed except by international aid donors, humanitarian organisations and the churches. Following on from the poor harvest in 1997, 150,000 people moved to Bahr el Ghazal.xcvi The whole region was struck by severe food shortages, famine, with significant loss of human life. Rains arrived late in the affected areas and were followed by severe floods, which destroyed crops on 100,000 hectares of land.xcvii During the Bahr el Ghazal famine, food aid was dropped in an attempt to prevent all the civilians from starving. It was later found that rebel military commanders, clan leaders and local tribal chiefs had appropriated most of the aid.

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VII. DROUGHT, FLOODS, FAMINE AND AID

In his 2001 UN report for the Food and Agriculture Organization, (“Legality and Legitimacy: A Study of The Access to Land, Pasture and Water in Sudan”), Paul de Wit found that “access to land and other resources” was “the root cause of a wide number of present and latent conflicts”.xcviii From the 1980s and through the 1990s, droughts were an increasingly frequent problem, accompanied by the desertification of Sudan. This led to the movement of people seeking to improve their socio-economic conditions and basic chances of survival. Increased conflicts for water, grazing land, and fishing rights, particularly between the major southern ethnic groups, the Dinka and Nuer, were also a reason for and consequence of displacement.xcix

 

Tribal and inter-factional conflict were the main causes of displacement.c The “People-to-People” peace process, which began in 1998, was established to stop these destructive conflicts in the south. The disruption caused by the fighting affected food supply, leading to hunger for hundreds of thousands of people. A report from 1998 refers to how heavy flooding compounded these food shortages experienced by a population already affected by conflict in Western Upper Nile (WUN) and Unity State.ci The availability of international humanitarian aid affected displacement in that it became part of the reason why people moved to areas and chose to stay.cii Desertification occurs as a result of severe environmental degradation caused by agricultural production and livestock rearing. Droughts have been endemic in Sudan, causing conflicts over dwindling available resources, such as water and grazing land for decades. Whilst the reduction in cultivable land, has led to soil erosion, loss of soil fertility and infestation. This, in turn, led to the adoption of pastoralism by a large part of the population as a means to carve out a sustainable living, necessitating movement by the people in search of better conditions. The practice of burning old grass to enhance the fertility of the land was also prevalent in southern Sudan, as noted by Lundin when refuting allegations by Christian Aid of a scorched earth policy:

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“Burning of land in South Sudan, as in many other African countries, serves for agricultural purposes where high grass is burned in dry seasons in order to turn into fertilizer in rainy seasons. People in the area are nomadic and move according to seasons and agricultural requirements which can differ from year to year. “ciii