South Sudan - Land Governance Country Profile

2. Policies and Laws Relevant to Land Governance in South Sudan

2.1 The Constitution of the Republic of South Sudan (2011)2.1 The Constitution of the Republic of South Sudan (2011)

Article 3 of the Constitution requires that the authority of government at all levels shall derive from it and the states‟ constitutions and all laws shall conform to it.

The Constitution recognizes the right of women to own property and share in the estates of their deceased husbands together with any surviving legal heir of the deceased (Art. 16). The right to own property is further confirmed in Art.28 which states that every person shall have the right to acquire or own property as regulated by law and no private property may be expropriated saves by law in the public interest and in consideration for prompt and fair compensation.

The Constitution has a chapter on land ownership, tenure and natural resources. Under Article 170 all land in South Sudan is owned by the people of South Sudan and its usage shall be regulated by the government in accordance with the provisions of this Constitution and the law. It classifies the land tenure system in South Sudan shall consist of public land b. community land and private land. The rights in land and resources owned, held or otherwise acquired by the

Government shall be exercised through the appropriate or designated level of government which shall recognize customary land rights under customary land law.

Under Article 172 establishes the Land Commission as an independent commission composed of persons of proven competence, experience, integrity and impartiality.

2.2 The Land Act 2009

The Land Act prescribes that land may be acquired, held and transferred through Customary, Freehold and Leasehold tenure. All citizens hold freehold titles to their lands. Non-citizens may acquire leasehold for specific periods but may not possess land in freehold, according to Section 14 of the Land Act.

According to the 2009 Land Act, “Customary land rights including those held in common shall have equal force and effect in law with freehold or leasehold rights acquired through statutory allocation, registration or transaction.” The Land Act gives special protection to pastoralists, stating that, “no person shall without permission… carry out any activity on the communal grazing land which may prevent or restrict the residents of the traditional communities concerned from exercising their grazing rights.”

The Land Act reiterates the Constitutional provision that the people own all land in South Sudan and its usage shall be regulated by the Government and land may be acquired, held and transacted through the following tenure systems customary; freehold; and leasehold.

The Land Act protects land rights. It states that every person shall have the right to acquire or own property as regulated by law and as stipulated the Constitution and land cannot be expropriated or confiscated save by law in the public interest and in consideration for a prompt and fair compensation.

It ensures security of occupancy of land rights under customary tenure. However, the Land Act tenure system is quite different from that of the Constitution.

The Land Act prescribes that land may be acquired, held and transferred through Customary, Freehold and Leasehold tenure. All citizens hold freehold titles to their lands. Non-citizens may acquire leasehold for specific periods but may not possess land in freehold, according to Section 14 of the Land Act.

The Land Act provides for the registration of Land Rights. It states that land collectively or individually owned in Southern Sudan shall be registered and given a title in accordance with this Act and land owned by different levels of government in Southern Sudan shall be registered.

The Land Act permits community land community Land Registration.It states that upon demarcation, the title relating to community land or other deeds registered in respect of such land shall be endorsed by the registration office in the prescribed form. The community land may be registered in the name of the following a community; a clan or a family in accordance with the customary practices applicable; a community association in accordance with the document constituting the association; or a traditional leader in trust for the community and with the consent of the members of the community.

The Act specifies rights of citizens to land. Under the Act, right to land shall not be denied by the Government of Southern Sudan, State Government or community on the basis of sex, ethnicity or religion and every person shall have access to land for housing, cultivation, pasture, grazing, or fishing as shared resources as by the law.

The Land Act reiterates the Constitutional provision on women‟s right to own and inherit land together with any surviving legal heir or heirs of the deceased.

The Act provides rights of non-citizens to Land. Under the Act individual or collective foreign entities may acquire leasehold or other interest in land for a specified period and not freehold in land in South Sudan, for residential or investment purposes or for any other reasons in conformity with the interest of the people of South Sudan and in accordance with the provisions of the Investment law or any other law.

Under the Act a Traditional Authority within a specific community may allocate customary land rights for residential, agricultural, forestry, and grazing purposes. In consultation with other members of the community, the Traditional Authority shall determine the size and the boundaries of the portion of land in respect of which the right is allocated in accordance with the customary law and practices. Any allocation of a piece of land beyond 250 feddans for commercial, agricultural, forestry, ranch, poultry or farming purposes shall be approved by the Concerned Ministry in the State after transmission by the County Land Authority or the Payam Land Council. If the size of the land is over 250 feddans, the Concerned Ministry in the State or its duly designated representatives shall verify the following the purpose for which land is to be used and its compliance with rules and regulations in the State; compatibility of such an activity with the land use system in the area; consensus on the allocation between members of the community; allocation does not exceed such a size that the Minister finds against principles of equity and fairness; and the social and environmental impact that activity may cause.

The Act provides specific protection of Pastoral Lands. Under the Act pastoral lands in South Sudan shall be delineated and protected by the appropriate level of land administration and management based on a comprehensive land use planning system. Customs and practices related to land used by pastoral communities shall be taken into consideration as long as they comply with the provisions of this Act and any other applicable law.

Restrictions are imposed on communal Grazing Land. Thus no person without permission is allowed to obstruct the approaches to any water point in the communal grazing land or to other appurtenances installed or constructed at such a watering place; or carry out any activity on the communal grazing land which may prevent or restrict the residents of the traditional communities concerned from exercising their grazing rights; and take any other measure that the community land users find appropriate to take in order to protect such an area.

The Act permits expropriation of land for Public Interests. The Government of Southern Sudan, State Governments and any other Public Authority may expropriate land for public purposes subject to compensation and upon agreement as prescribed by this Act or any other law. The compensation shall be just, equitable, and shall take into account the purpose for which the land is being utilized; the land market value and the value of the investment in it by those affected and their interest.

Under section 91 the Act provides disputes Resolution Mechanisms. In resolving disputes related to land, priority shall be given to alternative dispute resolution which includes dispute resolution processes and mechanisms that fall outside the government judicial process; and traditional dispute resolution mechanisms. Customary law and practice of the locality shall apply to resolve disputes related to land.

2.3 The Local Government Act

The Act has provisions that apply to land management. Sections 88, 89, 90 and 92 provide the mandate of the Local Government Councils to include the following mandates:

• Administer and regulate territorial land which is demarcated and gazette by the Government of South Sudan;

• Administer land surveys and land master plans developed by the State authorities;

• Administer the procedure for acquiring community land within a Local Government Council;

• Enact bye laws to regulate land management on land use control and protection systems, land acquisition, allotment and withdraw systems, land lease and land rights transfer systems and pastoral and agricultural land to guarantee land safety;

• Administer processes and procedures for the maintenance of ownership and derivatives rights of access to land; registration of land rights, cadastral

administration, acquisition  of land for investment purposes and pastoral land.

Section 91 provides for the establishment of Council Land Committees or Authorities to ease the processes of land management and administration within its jurisdiction. The Land Council Committee shall have the following functions:

• Protection of the Council land;

• Organisation of Council Land Development Plans in Consultation with the State Government authorities and the Committee concerned;

• Preparation of local policy guidelines for the development of Council physical and social infrastructure;

• Preparation of policy guidelines for land use rights and the maintenance of Council cadastral systems for keeping up to date records of land registration, allotment, title deeds and statistics;

• Preparation of housing, shelter, human settlement, urban renewal or slum upgrading plans and projects for Council land use;

• Development of land registration, distribution and allocation schemes and schedules for Council land management;

• Mediation of consultation processes of land lease between the community and other investors;

• Supervision of operational processes of land survey, valuation and statistical data collection by government and non-government organizations;

• Establishment of dispute resolution mechanisms;

• Representation of the council during the process of urban and rural planning, land use planning and Land Master Plan development initiated or undertaken by state government of South Sudan; and

• Any other functions assigned to the Council concerned by the State government and or/the Government of South Sudan.

The Council is required to form sub-committees to perform the same functions of the Council Land Committees at Payam or Block Council level and Boma or Quarter Council level.

2.4 Proposed Legislation

• The Community Land Act: This Act intends to clarify the distinction between public and community land, describe the rules and procedures governing the expropriation of community lands, describe applicable standards of women‟s rights under customary land tenure, and describe land administration systems for community lands;

• Town and Country Planning Act: This Act intends to provide an appropriate framework for preparation and implementation of national, regional and local area land use plans and ensure the planning process is integrated, participatory and meets stakeholder needs;

• The Land Survey Act: This Act intends to clarify rules, procedures and institutional roles for land survey and mapping activities. The Act would also provide for the use of modern technology, such as Global Navigation Satellite Systems (GNSS) and Geographical Information Systems (GIS), and streamline survey authentication procedures;

• The Land Valuation Act : This Act intends to set standards for land valuation

• The Land Registration Act: This Act intends to describe a land registration process that recognizes and protects all legitimate rights and interests in land in all categories

• The Land Information Act: This Act intends to facilitate access to and management of land information.

• The Mortgage Act: This Act intends to lay out a regulatory system for property mortgages.