David Deng: Securing Community Land Rights in South Sudan

South Sudan is home to approximately 65 ethnic groups whose territories span the entire region.

There is no terra nullius, or “no man’s land,” in South Sudan. Communities own almost all the land in the country, in the sense that they retain the right to regulate its use according to their own particular rules of customary land tenure.

Land is of central importance to all aspects of people’s lives. Millions of South Sudanese were displaced to live as refugees throughout Africa and the world as a result of the lengthy civil war, and one of the few things tying them back to the country is their connection to their ancestral homelands. Land links people to their shared history and provides an asset that parents can pass to their children in perpetuity. It is therefore an integral component of national identity, in addition to its importance to poverty alleviation, food security and rural development.

There are, however, a number of difficulties that arise when one starts to dig deeper into the practical implications of community ownership in South Sudan. The very term ‘community’ implies a well-defined and cohesive unit and obscures some of the divisions that exist within local societies. In reality, communities are often fractured and ambiguously defined entities. They may host displaced populations or minority groups who may have lived on community land for generations. Divisions may exist between recent returnees and people who remained in the community during the war; host communities and neighboring communities who enjoy rights of access to grazing, fishing or gathering forest products; or permanent residents and economic migrants. Even if one accepts that a semi-cohesive community exists in the case of South Sudan, local governance systems have been undermined by the lengthy civil war. Community leaders may not have the capacity to manage new and complicated land governance issues and the system may be susceptible to self-interested decision-making, elite capture, and simple misgovernance.

Appreciating the importance of community land rights and the conceptual difficulties in understanding what the community is, how does one go about securing community land rights in a place like South Sudan?

Two processes must form a part of any workable solution. The first concerns the formalization of community land rights. In the 2009 Land Act, the Government of South Sudan recognized customary land rights as having equal force in law with freehold and leasehold rights, but the registration of those rights has not yet begun. The registration of community lands, while fraught with difficulties, could add another layer of protection beyond what can be achieved by a piece of legislation.

Such protection is particularly important in South Sudan, where demand for land has skyrocketed since the end of the war in 2005. Community lands in peri-urban areas are facing pressure from population growth and urban expansion. In rural areas, foreign and domestic companies are leasing large parcels of land for the purposes of commercial agriculture or industrial mining. As the Government embarks on the process of demarcating administrative boundaries, communities are being brought into increased competition with one another over the political and economic benefits that are derived from the creation of new constituencies. The registration of community lands could help to check some of these processes and provide security for community lands in the rapidly changing postwar context.

A second process that is integral to securing community lands concerns the issue of legal personality for communities. In the past, the unwritten rules of customary land tenure were sufficient to manage interactions within communities and between neighboring communities, but there are new realities to contend with post-independence. Communities must claim some agency within the process for their rights to be respected.

Community trusts are one approach to securing legal rights for communities providing a legal construct that is able to enter into agreements on behalf of communities. Land ownership is vested in the community in its collective capacity. A trustee, or group of trustees, is designated to make decisions regarding the use of the land and are legally obligated to act solely in the community’s best interest. Through institutional arrangements with local government, community trusts can help to promote democratic accountability and the incorporation of traditional institutions into the formal system of governance. South Africa’s Ingonyama Trust and the Alaska Permanent Fund provide two international examples of community trusts that have been used in other parts of the world.

The end of the civil war opened South Sudan to a new world full of opportunities and risks. The formalization of community lands and the development of legal personality for communities are not a panacea; indeed, each of these processes has its share of pitfalls that could serve to undermine rather than to support community land rights. But South Sudanese must be proactive if they are to protect their rights and maximize the benefits that accrue to local populations from initiatives on community lands. This requires a degree of risk and a willingness to experiment with new and innovative approaches—the kind that I am hoping will be discussed and put forth at the International Conference on Scaling-Up Strategies to Secure Community Land and Resource Rights.

David Deng is the Research Director of the South Sudan Law Society (SSLS), a civil society organization dedicated to promoting the rule of law and respect for human rights in South Sudan. Since obtaining his law degree from New York University (NYU) School of Law in 2010, Deng has organized a multifaceted advocacy campaign on the risks and opportunities of large-scale land investments in South Sudan. In partnership with other civil society actors in the country, Deng has conducted comprehensive field research on land investments throughout the ten states; organized numerous capacity-building and awareness raising workshops for communities, civil society organizations, and government institutions involved with land investments; and developed a handbook on community engagement to help promote responsible investment and sustainable development in South Sudan. Deng is a specialist on South Sudanese land law and land-related human rights issues.