Community Response to Land Conflicts under the Transitional Constitution (South Sudan)

Introduction: Background and Driving Forces

South Sudanese community members, led by church clergy, are calling for responsible and smart land management intervention; a return to a traditional system of land management, where communities take active ownership and management and role (Radio Tamazuzj, 2019; Land Act 2009).

A few months before the January 2011 referendum for secession from Sudan, talks around land reform were already suspended between two camps. On the one hand were the aspiring government elites spearheading campaigns for separation from Sudan, and on the other hand, the community openly demanding resolution of illegal land occupations and threatening to vote for unity if this was not achieved. The voices of the elites echoed the same voices of concerned NGOs at previous functions in Washington D.C. prior to the independence of South Sudan. Just a few weeks after the success of the referendum, the same divided voices resurfaced at the ceremony for handing over the Draft Land Policy 2011 to the Ministry of Justice. Speeches from representatives of the land line NGOs/international agencies and the South Sudan Land Commission (SSLC) echoed the sentiments of those aspiring elites. In contrast, the undersecretary for the Ministry of Justice voiced his reservations consistent with the community’s position. The controversy over which systems, government, or community management actually lead to smart land management, set the stage for this chapter on the two conflicting camps.

After attending numerous NGO-sponsored land related meetings, workshops, and conferences with representatives of government and several communities, as well as visiting the National Archive, it became apparent that South Sudan already had a working traditional system of land governance. Those traditional structures have found ways to manage tribal divisions well so they don’t lead to extreme conflict (Grazing Agreement, 1958; Brosche, 2012). However, during the war of the Sudan People’s Liberation Army/Movement(SPLA/M) against the government of Sudan, traditional land governance systems were suppressed by liberation propaganda, and force was used to influence ownership and land access in Greater Equatoria (Pinaud, 2016).

Faced with the challenges of addressing the land issues such as: illegal occupation and refugees/ IDPs, as well as forced marriages and killings to gain access to land, the government initiated land reforms. The success induced by the reforms was the recognition of community ownership of land, while government led the management (Land Act 2009). However, as community land ownership was affirmed, and greater trust in the government began to develop, a few land speculators began to take advantage of the newly forged relationship. Certain groups within the aspiring elites became land speculators; they hid behind the government and began to exploit community land through illicit land deals. When as a result, the Mukaya land scandal erupted (Deng, 2010), and the rampant conversion of public land to private ownership by aspiring elites became known, community trust in the government was lost. Stories of illegal land claims made by refugees/IDPs from the liberation period to the post-independence period began to impact on the government, who were reluctant to resolve the refugee/IDPs/army crisis.

As the government affirmed absolute management of land, issues surrounding land management went from good (Land Act 2009), to bad (Transitional Constitution, 2011), and then to worse (Draft Land Policy 2011). Communities began to avoid government officials suspected of corruption, while continuing to implement collaborative projects with trusted government officials and NGOs. However, the aspiring elites, with their power and influence, began to manipulate the government and fabricate stories insinuating that the communities disrespected the government. They even convinced the government to relocate the capital to Ramciel on the grounds that the Bari community in Juba had refused to hand land to the government. During the land reform period 2005-2011, all previously and newly acquired public land in urban centers (Juba, Yei, Yambio, Bor, etc.) across the country, ended up in the hands of individual aspiring elites.

The aspiring elites were able to influence the key decision-makers assigned to review the Transitional Constitution 2011. With the support of these decision-makers, land ownership under the Transitional Constitution shifted from the community to the people (Article 170(1) TC2011). The government, and no longer the traditional authorities, were in charge of all land management. Under the transitional land reform, via restitution and resettlement programs, rights of (refugees/ IDPs) and illegal occupants to land ownership and access in the communities of their choice, no longer by birth, was recognized (Land Policy 2011). The South Sudan Land Commission and the independent government arbitration body can now secure land for the government through powers of eminent domain (Land Policy 2011).

Reviewing the development of land conflict in South Sudan, it becomes clear that it resembles closely the scenarios of land conflicts in neighboring Kenya, and also as far away as Nigeria. In this respect, land grabbing by the ethnic groups of people in power, and taking over of land by the government through constitutional reform, are both apparent in South Sudan. Both scenarios, as foreign as they are, by their adoption have contributed to the initiation and continuity of land conflict; however, the solutions to the land conflict lie within the traditional land governance systems. The community land management system that has an in-built self-regulator)' mechanism counterbalancing influences by which aspiring elites are regulated, ensuring that political power to manage and control land is not concentrated in the hands of individuals or politicians. Therefore, the community response to land conflicts under the transitional constitution is to prevent individuals from abusing their community-given privileges while permitting access to land and its resources through community-accepted norms and practices.

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