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By Daniel Deng, Deng Simon Garang and Okello James (Juba, South Sudan) Returning back home is a crucial part of Southern Sudan’s new peace, still settling after years of brutal war in Africa’s largest country. But like many others who have tried, Rose Bernard Opiny has had to settle for just being close to home.
Opiny fled her house in the Eastern Equatorian town of Magwi in 1983 after Sudan’s north-south war broke out. She returned a year after the 2005 peace deal, but found an army captain living on her plot. She demanded that he leave: he threatened to shoot her. She has since filed a case but county authorities suspended a ruling in her favor because they are too afraid to bring to officer to book. Her last hope is that she may get justice in the state capital of Torit. “I want my plot. I did not plant that mango tree for an intruder but for myself,” Opiny said.
She is not alone. Wartime refugees returning to fast-growing towns across the region have found people on their land, causing conflict and stymieing development. Typically themselves displaced during the long conflict these “intruders” are now many years later well-established on land they found uninhabited. Across the Equatoria region, land disputes have often been colored by ethnic differences between returnees to the area and internally displaced people (IDPs) who settled there during the war. This friction is especially important as the South heads towards a referendum next year on unity or secession from northern Sudan that will likely result in a new independent country, one still struggling for a sense of identity that overrides ethnic differences.
At least Opiny has been to court. A lack of knowledge and understanding of the 2009 Land Act, including by officials, has meant many do not even know that people whose land is occupied must make their claim by mid-February 2012.
“People who have not read the land act may not know that time for restitution is limited,” said Butrous Apollo, a Senior Inspector at Southern Sudan Land Commission. “It is a problem.”
Who is to help?
The Sudan People’s Liberation Army/Movement signed a peace deal in January 2005 with Khartoum that ended more than 20 years of war. The deal gave southerners oil revenues, the much-awaited referendum and their own southern administration. But ordinary people still find government services missing or hard to access and land is no exception.
Monica Sanchez from the Norwegian Refugee Council said that there is a lack of institutions to deal with the land problems that face former refugees. The Southern Sudan Land Commission has lacked resources and capacity to set up state-level offices to mediate disputes. The few high courts have not set up land divisions, Sanchez said, and so most cases go to understaffed county courts where magistrates, often trained in Islamic Law in Khartoum, do not know or understand the new land law. “This explains why many cases take long or are unresolved,” Sanchez said.
To some extent land has highlighted highly emotional differences between groups of people: those who fought in the war, or who stayed, versus those that fled.
“The military … is also accused of building on plots it does not own and illegally selling plots in urban areas. Many boast that they take precedence in ownership of land over those who fled the war, since they were the ones who fought to get the land back,” a report on land in Sudan by the UK independent think tank the Overseas Development Institute said.
“The court might say this plot has to go back to the individual, that person who has returned but then how do you enforce those court decisions?” Sanchez said. “The police will not go against a soldier.”
In the face of the lack of clarity and institutions some communities have formed their own organizations to try to protect their interests.
Odendi Alex is a tough-talking older man who is living in congested, green Nimule town. His new home is a couple of miles away from his original land, now jam-packed with other people’s huts. Alex is Chairman of Nimule Land Board, a group established by returnees looking for a way to get their land back. “IDPs from Magwi have occupied my home … I found them on my plot,” he said. Thousands like him have been affected he added.
His position on the Magwi IDPs – people from a nearby area in his own state – that they should return to their own land now that the war is over, is typical of many in his situation across Southern Sudan. Although individual Southern Sudanese under the constitution have the right to live anywhere in the country the movement of large groups from one ethnic group into land customarily owned by another community is resented.
But many of those who moved into Nimule during the war do not want to leave, especially not back to rural areas where they will face a severe lack of schools and clinics.
Families classified as IDPs by Alex include people like Akoi John who arrived in Nimule as a baby with parents who fled fighting in Jonglei. “My parents are buried in Nimule. I have been in Nimule for over fifteen years. I don’t know anything about my original state. So I prefer to stay here,” he said.
But challenged with this, Alex’s reply is stark. “We buried very many people in the refugee camps and yet we don’t claim that land,” he said. Alex is also a witness to growing tension between the current occupants and those coming back to land they once owned in Nimule. “Even the chief of Nimule Central Boma was beaten seriously by IDPs,” Odendi said. “They ask: ‘where were you during all those years of war?’”
Such wrangles over land have stopped some people from coming home. A Sudan Human Rights Association report quoted one refugee, Christopher Taban a native of Kajo Keji, as saying: “I do not have land or any property so cannot go back to begin from nowhere. People are killing themselves because of land and wrangles are everywhere in the country.”
Some of these tensions have had repercussions that promise to worsen land confusion in the future. Taban Augustine from the Magwi radio station said the indigenous community in Nimule has stopped surveying of land there because they are worried that this will legitimize the IDP community.
Land disputes with strong overtones of ethnic tension have sometimes been quickly muddled into local politics. One example is the long-running row over the boundary between Torit and Magwi Counties in Obbo Boma of Palotaka Payam. The Iyire people, who form majority of the residents, are recent immigrants and want to be under Torit. They faces serious opposition from the indigenous Acholi people, who want them to leave.
Cows and crops
Tension between IDPs and returnees is heightened further when cattle and crops meet in areas historically farmed but now also used by IDPs to graze cattle. Jackson Taban, a farmer at Anzara Boma in Nimule, is worried about hunger his family may face if cattle destroy his fields as they have in previous years. Despite a local government order prohibiting the free mobility of cattle and pigs passed last year his crops still may not be safe.
As in Opiny’s case, violence or the threat of violence plays an important role. Hungry cattle that have wandered onto a farmer’s fields are sometimes “arrested” in the hope that their owners will pay for damage done. “(But) they come with guns when their cattle are caught,” Taban said.
Can the government be “the people”?
In 1978, Sudan’s President Jafer Nimeri introduced a land law that put all untitled land, including areas held by communities for generations, into the government’s hands. This infuriated Southern Sudanese adding fuel to the insurgency, making “the land belongs to the people” one of its most cited slogans.
The South’s 2009 Land Law clearly protects community ownership of land. However officials in the new government have become frustrated because they have found it hard to get hold of un-surveyed land, claimed by communities or chiefs, to accommodate growing towns. Tension over land has grown not just between communities but between communities and government.
The land between the road to Kiliu and the river Kinati in Torit town is left unutilized because the host community has said it cannot be allowed to be sold to anyone, despite its initial allocation for residence. “About 1,000 plots, both first and second class … were allotted to people, but later on the indigenous inhabitants of Kiliu insisted that the land between the road to Kiliu and River Kinati will not be granted to anyone because it belongs to their grandfathers,” said Paul Okot, former Chairman of the Lands and Natural Resources Committee in the State Legislative Assembly.
In some cases government bodies in main towns in the South say they face slow progress just because the community and the government are at loggerheads over land ownership. “Sometimes, periods for certain government projects expire before land is acquired. This has led to decreased development,” revealed Emmanuel Mono Duku, the Executive Director of Magwi County.
Under the law land should be given over to public interest but only with consultation with communities and together with proper compensation. But, especially as knowledge of the land law is so scanty; these concepts are poorly understood and sometimes just ignored.
Abui George, the landlord of Magwi Boma, said they gave land to the government on an agreement that the community would receive benefits. But no form of compensation ever materialized. “They gave us zero … Once given land, the government forgets its promises to us. This has made us hesitant to give out land to them,” he said.
But one of the main causes of disappointment goes back to the government’s failure to facilitate resolutions of land disputes. Lucy Mura’s Magwi family is embroiled in such a dispute. “My brother’s land has been grabbed. … We took the case to the court, but the case is hanging. This will affect us negatively because our area will remain undeveloped,” she said. A family brick-making business has ground to a halt while the case remains unresolved.
A lack of surveyed land has meant many people moving to towns, bursting out of their old boundaries, are living in un-surveyed land.
Taking advantage of their position as custodians of land that falls outside the town boundaries, in many areas chiefs have sold off land. “In semi-urban areas the chiefs are taking a lot of money from plots that belong to the community,” Sanchez said, speaking about cases in Central Equatoria.
Adding to the confusion: government against government
The many layers of government and a lack of clarity over who has the right to oversee urban land or land around urban areas, has added to the confusion. This is especially the case in the Southern capital of Juba but similar problems plague Eastern Equatoria’s towns.
In Torit County one level of government has accused another of deliberately changing the ranking of groups of plots to generate more cash. “In, Hai Kuku, all are third class plots and supposed to be under the jurisdiction of county authorities, they are now being upgraded to second class so that they can be under the control of the ministry,” David Eriga Enodius, Executive Director of Torit County, said, adding that this means that the county authority misses out on cash and is planning on suing the state’s infrastructure ministry. (In response, Longoya Tito, the Director for Roads in the State Ministry of Physical Infrastructure, said that it was not possible for his ministry to provide the county authorities with cash directly.)
Land disputes are not limited to local government. For example, the two state governments of Central Equatoria and Eastern Equatoria have long struggled to be able to resolve a fight over which state the Kit area along the Juba-Nimule road belongs to. The two ethnic groups [Acholi and Madi] in Magwi County in Eastern Equatoria are both claiming Kit area.
Women and land
Some of Southern Sudan’s problems over land could be solved with the establishment of institutions and regulations and the slow and careful work of compensation and mediation between communities divided by ethnicity or war experience. But it will take longer for women in Southern Sudan, who have equal rights to independently own land under the 2009 Land Act, to actually get them.
Albino Achiro, a middle age woman, is a victim of this situation. She lived in Juba before death robbed her of husband, and so her plot. “My brothers-in-law wanted me out of the plot after my husband died. I had nowhere to go with the children. So, we went to the High Court, which ruled that I was the right owner of the plot. But when we came home they insisted that I had no right to inherit their brother’s land,” she said. Her parents in Magwi rescued her. She now lives in the Eastern Equatorian town, far from where she wants to be, on a small piece of land with her two children.
Butrous Apollo, from the Southern Sudan’s Land Commission that wrote the land law, called the issue very contentious. “The issue of women is one of the most difficult issues … (In some areas) women are considered property … Property cannot own property,” he said.
A recent report, ‘Access to Land, Restitution and Resourced Based Conflicts in Eastern Equatoria State’, by the United Nations’ Food and Agriculture Organization
said women were frequently being denied the right to land in Eastern Equatoria. “Woman-headed households access land in rural areas, but more easily through a male relative, be it a father, a brother or an uncle and they only enjoy usufruct rights. Women can neither take major decisions nor are consulted on issues concerning land,” the report said. Many people especially in rural areas incorrectly think that customary law, which often refuses women their land rights, is above the 2009 statutory law.
Women stand a much better chance of owning land in urban areas. But most plot titles belonging to families still only bear the man’s name and women looking to buy their own land still find the going tough.
Lucy, a nurse in a Magwi health center, said women are discriminated against by surveyors. Once allocated land, offers have been withdrawn. “When a woman is given a plot today, the surveyor surprises saying the place belongs to a big man,” she complained. This is specifically the case for first and second class plots because men argue that women do not have the financial capacity to build, she said.
“The majority of the women are not aware of the right to own land,” said Becky Aya, Chairperson of Gender and Child Welfare in Magwi County. She said that in reality the only women who get land there are those who are educated and powerful.
Southern Sudan’s Land Act
The government “shall recognize customary land rights under customary land law.” Customary seasonal access rights are also to be respected. (Chapter II)
All subterranean resources belong to the government. (Chapter II)
“Community land shall be held by communities identified on the basis of ethnicity, residence or interest.” (Chapter III)
Allows foreign entities to acquire land under leases only, not through freehold. (Chapter IV)
Gives women the right to own and inherit land. (Chapter IV)
Allows traditional authority to allocate land but for “a piece of land beyond 250 feddans for commercial, agricultural, forestry, ranch, poultry or farming purposes (this) shall be approved by the Concerned Ministry in the State”. All leases must also be done in consultation by the County Land Authority or the Payam Land Council. (Chapter V)
Promises prompt government compensation for any land used in the public interest, including land for investors. (Chapter IX). Communities should be consulted when land is expropriated for public interest.
“A person may be entitled to restitution of a right in land if he or she lost her or his right after an involuntary displacement as a result of the civil war starting from May 16, 1983”. (Chapter XXXI) But claims must be made within three years of the 2009 commencement of the act.
The Juba Briefings are an occasional publication written by Sudanese journalists and intended to cover issues that are critical to South Sudan, through reporting voices from the field.
The Briefings are supported by SNV Netherlands Development Organization, as a public service and a training programme for journalists as part of SNV’s governance for empowerment programme and in association with a consortium of agencies. The views reported in the briefings are not necessarily shared by SNV, which is not responsible for the editorial content. This briefing was written by Deng Simon Garang, Daniel Deng Bol and Okello James, and was edited by Skye Wheeler. This research was published in 2010.

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