Community Land: A critical socio-economic factor to temper with in South Sudan

By James Okuk

March 7, 2008 — Until I have experienced the sensitivity of land tenure and ownership (like Thomas in the bible when he touched the nails’ holes in Jesus’ risen body), I couldn’t imagine that land was so valuable like the human life itself. When I use to see (as a child) some elders quarrelling over the borders of their villages and demarcation of their farms, I thought it was a simple thing like our children case when we constantly pinch and fought each other during interactions and plays. Even during my Primary, Secondary and Tertiary education, I just regarded ‘Land’ as a simple factor of socio-economic production along side with ‘Capital’, ‘Labour’ and ‘Market’. I was wrong!

1. LAND IS THE LIFELINE OF THE COMMUNITY

It was only in 2004 when I travelled with a team of researchers under funding of Norwegian People’s Aid (NPA) and supervision of SPLM that I discovered I was mistaken in my previous perception on land. Our team comprised of Dr. William Kon Bior (who was by then the Undersecretary of the New Sudan Legal and Constitutional Development Commission), Dr. Elizabeth Akinyi Nzioki and Mr. Michael Ochieng Odhiambo (who are professional Kenyan researchers on community land issues). Some scrupulous SPLA MIs in Loki suspected me of carrying messages to the field in support of Cdr. Salva Kiir’s loggerhead with C-in-C Dr. Garang but they didn’t know that I was in that mission with recommendation from Cdr. Oyay Deng Ajak. We went to different sample parts of Southern Sudan and in every interview we conducted I felt the importance of community land ownership. Tribes of Southern Sudan believe strongly in the respect and safeguard of their motherland. They revere and sanctify the graves of their ancestors under the soil without remorse. Africans are known of communicating with the spirits of the dead ancestors in the graves and they do not joke about it. When bad luck stroke a family or a village, people go to clean up the ancestors graves; asking for mercy, forgiveness and prosperity.

For unbiased judgment, let me give these excerpts from our 96 pages Report of that qualitative research finding. Please, it is a must to read it because there is a lot of sagacity and commonality with different tribes in our villages; very interesting!

e) Existing opportunities and Challenges within the Land Tenure Systems

i) The Returnees:
Discussions with communities revealed that there is no problem for returnees because these people know where they came from and they will go back where they belong. The customary handling of members of the community is very clear and those returning home will be accommodated.

However, they do not want planless arrangements for returnees without consulting with communities. This will not be accepted. “The role of any NGO repatriating refugees into Southern Sudan should remain only at the level of transportation and logistics but not resettlement. This will be the responsibility of the community. We will only follow our customary land allocation system to resettle the returnees. We would not accept to follow any other new method imposed on us by any organizations or government”

For the Collo (Shilluk), those who have been internally displaced, and the returnees will be allotted land by communities where they came from so that they can perform Ywok –a ceremony to appease the sprits of the dead before the returnees can settle down in peace. The returnees from the Collo are free to go home and be given their land back because they left from specific villages. Their families are known and the Chiefs together with the elders can settle them in their ancestral lands.

For the Dinka of Bor, the returnees will go back to their families. These families will know the procedures of allotting land to them according to the Dinka customs. “The refugees left from their land and they have to go back to their land when peace comes. Those who do not know their places will be directed by their relatives.” For the Dinka of Yirol County, those coming back after the war must go back to their families and ancestral land. “We only want our own children from here to come back here and not anybody else from Southern Sudan. You either come back with your parents or if they are not there, you have to know the names of your grandfather.”

For the Dinka of Malual Kon the community knows how to take care of the returnees. “They are members of our community and we know that they left this country from us. Each will go back to his family land. If the all the members of the family are dead, the clan knows how to direct those returnees from our land to their original places. There will be no be problem as long as they can remember their roots and ancestors.” However, a returnee is expected to know his roots.1

The Nyuei will accept their sons upon return. The clan and family of the returnee will be traced and they will be allocated land by the elders. “But everyone who returns must go back to their own clan land. They go back where they came from – the land of their clans and ancestors. Everyone from Southern Sudan, every community have their own land. Akot belongs to the Nyuei and it does not belong to everyone in Southern Sudan. The Nuer, the Bor Dinka, the Anuak have their own land and their own airports where the returnees can be taken. The origins of those being returned must be established before they are brought back, so that they are directly taken back to their places. If some people do not want to go back to their communities, there must be an acceptable reason. Otherwise why would the person refuse to go back to his own clan? We do not want such people to be settled among us, for we do not know why someone would not want to go back to his family if there is peace there. If we are in Akot we shall say NO”
ii) Consultation with the Community with Regard to Land

It is expected that the New Government of Sudan will consult with communities, whenever the government want to use their land to provide services, or to lease out to investors.

For the Kakwa, consultation with the Community over the use of their land is critical particularly with the ‘landlord’ – who is the guardian over the Kakwa land. “If the government wants to lease land for a period of e.g. 30 years the community have to know how they will benefit from those years. They also have to assess whether the old agreements made in the old Sudan are still fine with the community. Pieces of land that have been illegally occupied in the old Sudan should be evacuated. The existing customary land practices and clan boundaries should not to be interfered with without the consultation with communities.”

The Collo will not reject public utilities being put up by the government, like schools, hospitals and roads because this will benefit the community. “But what must be clear is that the land belongs to the King, and anyone who wants to deal with land has to come through the King. It is the King to tell us what to do. Our land can only be taken in exchange of real services. But this does not mean it is totally taken away from the authority of the king and the Collo community. We will only give out land for services but ownership remains that of the community. If you want any land from the Collo, go first to the King. It is the king alone we respect and nothing will happen here in the land of the Collo without his approval.”

For the Dinka land belongs to the community. If the government needs land, it is important that they consult with the community. The community is the overall decision-maker over its land and the guardians over it. The elders cannot be employed by the government and taken away. They are the ones who represent the interest of the community. The elders defend the community and they cannot get into the payroll of the government. Politicians are expected to consult with communities before they make any decisions with regard to community land. “We will not accept illegal issuing of our land to the foreigners or adjustment of our original land even if it is our own children who will try to do this. We would like our customary practices to be our guide in the management of our land. The protection of land is the responsibility of the whole community; not individual. This is why the community volunteered to fight the enemy for over 21 years because foreigners invaded our land.”

iii) Investment on Community Land

Discussions held on investing on community land revealed the following:

For Kakwa: “the Kakwa reserves belong to communities and should not be thought of as empty and no-man land. If the government wants to invest in such reserves or welcome other investors to use it, the community must fully be in the picture otherwise there will be conflict. This is the only way the new government will show itself as different from the old government. That they have to involve the people, consult with them before community land can be used, or any other natural resources.”

“Let the government work with the community with regard to land. The government can rely on the traditional institutions that communities have relied on all this time for the management of their land. The community should be allowed to remain in control of their land.”

“For individual ownership of land, the community need to be made aware particularly with these new challenges likely to arise with regard to individual ownership of land.”

“Evacuation of communities to give way for investments will create problems. The new government has to think through very clearly on how to accommodate customary land practices of the communities.”

“All investors should go through the government who in turn will consult with the community and be made aware/be involved in major decisions that will affect them and their rights in land.”

For the Collo: “private arrangements between the Chiefs and individuals without the knowledge of the King will not be accepted by the community and the King. The authority will come from the King. If the government comes or any investor, they must go to the King who will consult with the chiefs before any decisions are made. Investors who will not benefit community will not be allowed.”

The Toposa Community believe that challenges lie ahead in the grabbing of community land by investors.

f) Individual/Private Utilization of land for market production:

On private utilization of land as a commodity and market production the communities had this to say:

For the Kakwa, no one is allowed to sell community land except in towns where it can be leased for a definite period. Commercial Land is not being used as collateral to get loans despite the fact that title deeds in towns such as Yei are issued by the County Councils. “Land belongs to community and therefore it cannot be used as collateral to get loans.”

When asked if they could sell land, the Toposa Community answered, NO, (it was almost like a protest as to what kind of question we were asking). One old man said, “Land is not like tobacco to be sold anyhow. Land is sacred and thus it is forbidden for it to be sold.”

However, the Toposa will consider giving land to do business e.g. lease for a period of time to build a shop if it is a small piece of land but not a big piece land. They expect that consultations must take place with the community if the government want to use their land. It also expected that the same should happen if the government is giving out land to investors. “Developments that displace a lot of people without giving better option must be carefully checked.”

The Dinka of Yirol County will not only accept investments that are going to benefit the community but they we will not accept investments that will displace their community because, “Where will we go if this happens?” We also do not expect the new government to grant licenses to such investors but to protect the interest of the community. It should be known that people went to war as a result of poor planned investments that were initiated by Government of Sudan which did not benefit the people.”

For the Didinga “Our community do not sell land, because this is where we live. That is why we have Trustees over our land, with powers from God to protect our land. Trustees have this in their memories and the community accepts their decisions”. However, according to them, if anyone wants land for investment, it will depend on how much land the person needs. A small piece of land is acceptable, but the community cannot allow an individual to be given a large piece of land.

On privatizations and investment on land, the chiefs and elders of Collo Kingdom had this to say: “That government must consult with the communities. Three parties must agree: the Government the King and the people, otherwise the government will have trouble with investors when they are rejected by the communities. Land of Collo Communities is not for sale. It is important to recognize the kingdom and its authority However, land for public utility is acceptable “Because this will benefit our communities, but only as long as the King has instructed and given the mandate to the chief to give such land out to the government for development.”

For the Jur Community, there is no buying or selling of land. Any allocation of land to the government will have to be discussed between the government, the Bodo Yay – the guardian of the Jur land – and the Community. Likewise any investor must do the same with the government as a mediator between the community and the investors if the investment will be of benefit to the community. “This is because Bodo Yay got instructions from our ancestors: “Do not sell this land of the Jur or your powers of blessings will go away.”

On sale or privatization of land, the Nuer reported that there is no such a thing as selling of land in that community. Land is given freely to the one who approaches the community and after consultation among members of the clan- but also not such a big piece that can lead to the displacement of members of the community.

According to the Dinka of Bor, “Sale of land by individuals has never been heard of in this community. There is no such a thing as selling of land in the Dinka community. The land cannot be sold even to the members of the Dinka themselves. One is allowed to sell or batter his tukul/Lwak – house but not the land. We do not give out Dinka land to the non-Dinkas.”

On sale of land The Dinka of Malual Kon had this to say: “We do not sale land. Even if a family or an individual try to do this we will stop them because the whole Dinka land belongs to the community. If our land could have been sold, we would have not been here today. It will have been in the hands of those who have money. We can sell other properties like cows and goats because we know we can get some from anywhere but if you sell your land you will not get it back. Even if it is my land the community will not allow me to sell it. Land sale is not in our program at all.”

The chiefs and elders were adamant about investors; “We will not allow a private individual coming with a big company to displace us from our land. The community will not accept to give vast land to an individual. Where will other members of the community get their share of land? All land is for our use, for grazing and for allocation to members of the community.”

For the Dinka of Yirol County: “One cannot sell land that has been allocated to him. The concept of selling land does not exist in this community. One can be allowed to stay as “a guest” for 2-3 years, but not to settle permanently. Thus the land can be shared by other people- in terms of use- but not in terms of ownership by “strangers”. Land cannot be hired out or leased. In towns, only houses are leased.

The same feeling about selling of land was expressed by the Anyuei “No individual is allowed to sell his land. One is allowed to sell the buildings but land cannot be leased or given out to anybody because it belongs to the clan. A friend or ‘guest’ can be given land to stay for a period of time as long as he does not bring about quarrels to the community. Foreign investors will not be allowed unless they consult with the communities. Otherwise, this is what brought about a quarrel between us and the Arabs. They came with tractors taking our land and only leaving us with small portions and wanting only to make us their servants. This will not be acceptable anymore”.

From the above responses, communities strongly feel that land for investment can be leased out and not sold out to investors. For any investment to take place communities must be consulted and made to understand what type of investment it is and how it will benefit them.

My Emphasis: What is interesting in that finding is the agreement of all the tribes we interviewed: They affirmed the SPLM position that “land belongs to the community.” They also converged on the point that “community land cannot be sold.” This made me to believe strongly that Southern Sudan is, in fact, a one nation even when divided by tribal affiliations. No community told us that they would reject government to make use of their land; what they require from the government is only consultations and transparency in what is going to be the outcome from the land use. That is, the government has to involve the community and make it understand the benefits from the use of their land. Not only the government, but we found out that those communities do not have a problem with a stranger coming to live and use their land if it is done with their consultation and consent. What they totally reject is the deception or use of force in acquiring and taking away the land ownership from them.

2. SPLM POSITION ON LAND WAS ON THE PEOPLE’S SIDE

Dr. William lectured me a lot of how the case of land definition and ownership was so serious and controversial in negotiating the Naivasha protocol in 2002. SPLM position was that the land (above in the sky, levelled on the surface and below under the ground) should belong to the community and not to the government. The GoS position was that the land should belong to the government and that the government have the authority to evict any settlers out from any land in any part of the country. It was a deadlock for some weeks but the resolution was reached when the SPLM position was agreed to be applied to Southern Sudan while the GoS position will remain operative in Northern Sudan.

The land provision was later included in Naivasha’s Wealth Sharing Protocol (in article 2) but with some distortion out of ‘gentlemen agreement’ which is hidden from the public and which was not there in Machakos. For example, article 2.1 of CPA states: “Without prejudice to the position of the parties with respect to ownership of Land and subterranean natural resources, including in Southern Sudan. This Agreement is not intended to address the ownership of those resources. The parties agree to establish a process to resolve this issue.” Also you can detect the crafty language from article 2.3: “The parties record that the regulation of land tenure, usage and exercise of rights in land is to be a concurrent competency exercised at appropriate levels of the government.” A process to develop and amend the relevant laws is supposed to be instituted by the two partners so that customary laws and practices, local heritage and international trends and practice is incorporated in the land rights and ownership in Southern Sudan (see article 2.5).

SPLM would have done a very good thing to Southern Sudan communities if what was negotiated in Machakos could have been written in Naivasha in 2004 (as it was argued out in 2002). I can understand here why Dr. William Bior got disappointed and decided not to participate in the CPA government because his original ideas for community Land Ownership were distorted by the very comrades he trusted. He is now doing his private consultancy as an advocate and legal broker in Juba (he presented the case of Hon. Telar and Hon. Aleu for appeal in SPLM Political Bureau). He drafted the current operating laws in Southern Sudan, which is different from the Shari’a law applied in Northern Sudan. He is doing a great service to those who are denied justice. He is indeed a treasure in our midst; we need to discover him more. May God increase the age of this honest and straight forward Southern Sudan and SPLM Veteran so that he witnesses the beginning of the real destiny of the independent South Sudan State in 2011.
Nonetheless, even with the distortion that occurred, I hope that GoSS will make what is in the CPA about land ownership in Southern Sudan to mean what it says; even when the ‘Jellaba’ is not there. The law is supposed to be applied impartially regardless of who is who and who is where.

3. COMMUITY LAND MAKES YOU LIVE CLOSER TO NATURE

I know well about the sensitivity of land for the people of Southern Sudan because land is their life as they love to live closer to nature: Take away the land from them and you become their number one enemy even if you are their brother or sister – you threaten their land you threaten their life. I agree with what our veteran journalist Atem Yaak wrote last month in Gurtong.com and Southsudannation.com that H.E. Governor Kuol Manyang was the winner of the SPLM recent reshuffle because he was fortunate to achieve his last wish of going home in Jonglei State to live closer to nature far away from the confusion of the cities: “I envy Kuol Manyang Juuk not for his job as governor of Jonglei State but because his present assignment brings him closer to what he loves best: staying closer to the rural people and bountiful land endowed with natural resources, pristine environment free of pollution and stressful noise. What more could one wish for more than this gateway and prelude to a well deserved retirement?” said uncle Atem.

Governor Kuol is happy because he can live in the land he owns within his community set up. This is exactly the same concern of the Equatorians who are very bitter about their land being occupied by Dinka; they want to live closer to nature in their own land. Where will they go and live if their land is being occupied by a community who has its own original land somewhere unoccupied by strangers? Let our Hon. Governor Kuol Manyang or any other governor do something to bring back their citizens who are said to have occupied other people’s land in Equatoria. I am confident they can do it to calm the tensioning nerves and swallowing muscles of the bitter Equatorians. After all there is no community in Southern Sudan who doesn’t have its own land with pride. I know that those Dinkas who are now living in Acholi, Madi, and etc… lands are also proud of their land and will not have remorse to return, resettle and integrate into their original community motherlands.

Our African veteran freedom struggler, Peace Nobel Laureate, Bishop Desmond Tutu is famous of the saying on land in Africa in reference to colonialists; that when the Christian Missionaries came to Africa they told African to close their eyes for prayers, but after the prayers, when they opened their eyes, they found their land and resources stolen and appropriated to strangers. They have to struggle for decades to regain it back (but after having been exhausted and milked in the darkness). Tutu wisdom has been true in many African countries, particularly Zimbabwe and Kenya whose elections violence was fuelled by retaliation for denial for land ownership to some communities. The bitter Equatorians argument also look like this “The Dinkas are telling us to close our eyes because of the CPA but in the process, they are invading our land so that when we open our eyes everything would have gone without return, and we would not have somewhere of our own to settle and live.”

But as we understand the concern of many Equatorians regarding the possession of their community land, I would like to kindly ask them to be patient a bit and not exaggerate the case and indict all the Dinkas for it. It is not healthy to use the criteria of ‘one onion rots all the onions in a sack.’ The members of Dinka who have occupied some lands in Eqautoria are not the whole Dinka of Bor, leave alone the other Dinkas of Bahr el Ghazal, Upper Nile and Unity States. Even those few individuals Dinkas have not occupied the whole Equatoria or the whole Madi or the whole Achili lands. Therefore, it will not be good and right at all for some Equatorians to exaggeratingly say “over my grave and away with the CPA if the Dinkas continues to be in our community land” without considering other factors.

4. IMPATIENCE WILL HARM SOUTHERN SUDAN

Let Southerners take seriously the warning given by former president of Tanzania, H.E. Julius Nyerere when he addressed the parliament in Juba in 1974 and said that Southern Sudan is a great nation but impatience will not do it any good; it will foolishly destroy its long-term common benefits. Let Southerners avoid proving some Western anthropological theories to be true that “African do not have concept of far future and that is the reason they cannot plan ahead for their long-term living requirements.” This theory seems to be true if we reflect back to our history of the struggle: What we struggled for got delayed because of lack of vision and future imagination from many of our peoples. Even the literate ones couldn’t break this short-sightedness. Problems are never solved rightly through violence and the barrel of the gun. This will only fuel more fire and devastation. How do we now honour those who went before us fighting for freedom, fighting for peace, fighting for human rights, fighting for justice, fighting for democracy? How will we honour our dead who sacrificed their lives for our future? We MUST bury our guns so that we do not point them to each other any more. We MUST become soldiers of peace and lovers of Mother Nature. Otherwise, twenty-two years and millions of lost lives will have all been in vain. If tribal war breaks out now, the world will throw up its arms in defeat and shake its heads in disgust. We will be seen as a hopeless people.

The current contention on land occupation in Southern Sudan is not the issue of who liberated who from the Jellaba’s oppression; it is the issue of who rightly owns what. This land issue in Southern Sudan must be handled with care. If not, the souls of all those who may have died in vain, died for nothing, will be crying eternally in pain. As tribes, we must respect one another. We are unique in our own ways. We must unite as African Southern Sudanese while maintaining our culture, our tribes and our land. We can do this by practising justice and fairness among ourselves. We are beginning to have the opportunity to return home. Most of us define home as the best place of our original tribal land prior to the war. If we all volunteer to honour one another by respecting our rights to our own land, we may have peace and love for each other. But as long as we have animosity toward one another, we will always remain weak and vulnerable to be good for nothing but evil use by enemies of freedom destroyers of human dignity. We will always be subject to destruction by those who wish to smother us as a people. The war was fought by all. No one tribe was immune to the effects of the war. We all suffered together. Now, we must all rejoice together! Our education and literacy should de-stereotype our minds from negative tribal biases and superiority complexes. Long Live the growing forthcoming South Sudan in the womb of the CPA politics!!!

* The Author is a Southern Sudanese pursuing his PhD in the field of Political Philosophy in the University of Nairobi. He can be reached at: [email protected]