OF SUDAN AND CUSTOMARY LAND CONFLICTS
The eruption of violence in parts of Sudan reflects attempts by communities to maintain their customary land rights, contends Felix Oladeji
The recent few years have been characterized by conflict, violence and insecurity in much of Africa. Whether these conflicts are a product of governance failure, environmental decline, shrinking natural resource base, unequal distribution of power and resources, land is and will remain one central issue. Modern ruling elites in Africa have often encroached on customarily communally-owned land for commercial farming and mining. As a consequence whole communities have been deprived of their customary land use rights, their livelihoods eroded and have been relegated to poverty and marginalization; creating much disenchantment, grievance and violent conflicts.
The land policies have resulted in ambiguity and dualism in land tenure in Sudan. This dualism, which incorporates both modern statutory land ownership and customary tenure features, places communal lands held by most rural Sudanese communities under customary tenure under constant threat of expropriation by the state for private business interests both local and foreign. The paper further suggests that although state encroachment on customary land use rights has been manifested differently in different regions, the common denominator is an increasing state denial of communal rights and the weakening of local governance structures regulating them. This reflects power imbalance between modern elites in control of the state and businesses allied to them on the one hand, and the rural communities on the other. In some respects the eruption of violence in parts of the Sudan over land issues reflects attempts by communities to redress this imbalance, and regain or maintain their customary land rights; contributing to a decline in peace and security.
In much of Africa customary land tenure systems have been influenced by changing socio-economic, environmental and political conditions. Where cash crop production has been introduced, customary tenure systems have changed either by deliberate colonial or post-colonial state actions or gradually yielded under the pressure of commercialisation and commodity production that incorporated African peasant communities into the expanding capitalist market. However, customary land tenure still prevails among most African communities despite attempts by the state to bring it under control.
Customary land tenure in Africa is characterized by flexibility and capacity to continuously adapt to changing socio-economic, political and environmental conditions; resulting in significant variations in forms and rules of tenure over time and space. Land ownership according to African customary tenure arrangements is vested in the community or the group (which could be the tribe, clan or village), but never in the individual, who would only have the right of use. Individual access to land under customary tenure is thus linked to need and actual use of the land and it follows from this that while communal control over land is maintained, individual retention of usufruct rights depends on effective land use and continuous occupation.
In Sudan, most lands adjacent to the Blue Nile, the White Nile and the main Nile rivers, are registered in freehold titles (private ownership) according to previous state legislation; particularly under colonial rule. However, some lands away from the rivers in rural Khartoum are still held in communal ownership by village communities under customary tenure and utilized for seasonal rain-fed farming. In recent years these lands have been sites for violent confrontations between the government and the local communities when former attempted to enforce its legal ownership of lands customarily owned by the latter. Pursuing a ruthless policy of selling and leasing lands to foreign investors, the government has often invoked earlier legislation giving it legal ownership rights over communally-owned land; disposing of it at will without regard for local communities’ interests in land and their pre-existing rights. In the absence of transparency and accountability mechanisms, communal lands are often disposed of to investors in deals unknown to the public and the communities concerned. In most recent cases of land allocations conflict erupted between the local communities and the government. The police were deployed by the ruling elites to enforce evictions; placing these land cases in the media spotlight that attracted much public attention.
One of the high profile cases that gained wide publicity is the violence that erupted in Omdoum over communally-owned land. Omdoum neighborhood is located in East rural Khartoum, whose land was allocated by state authorities in 2013 to a Gulf investor. The land, estimated to be about 1000 feddans in size, is not far away from the Blue Nile to the East. It was formerly used for rain-fed sorghum farming under customary tenure. Given the dual land tenure system in Sudan which gives the state legal ownership over unregistered but customarily communally-owned land, conflict was bound to arise when the law was put into effect. When the investor started construction work on the site, Omdoum community members obstructed the construction work in defense of their land rights. Armed police were sent to the scene, engaged with the unarmed but enraged protesters and violent clashes erupted and ensued for a few days. A protestor was killed and many others injured from the police and the protesters. These events were highly publicized, turned into a hot political issue and Omdoum community gained wide public sympathy; constituting a strong political pressure on the governing elites. The top political leadership intervened, the Gulf investor withdrew and the land reverted to the community to be distributed as a residential extension to Omdoum neighborhood.
The areas of Eseilat, Grief, Fteihab, Burrie and Hamadab around Khartoum witnessed similar confrontations between the authorities and communities over communally-owned land. In all these cases deals were struck between investors and the governing elites behind closed doors and communities were surprised with construction works on their lands. However, different forms of resistance by the affected communities; including protest in the face of state violence, have compelled the ruling elites to yield to community demands and communities were able to regain all or part of their customary landownership rights. Community access to the media, educated and enlightened leadership and spatial proximity to the seat of power all played roles in the success of community protests around Khartoum to regain communal land rights. Compared to communal land dispossession in other parts of the Sudan which could reach hundreds of thousands of feddans, the size of land areas around Khartoum by comparison is relatively small but high in value. Subsequently, confrontations were fierce and the political stakes for Khartoum elites were high. While violent confrontations over land in distant marginalized regions which claimed thousands of lives and relatively went unnoticed, conflicts over land around Khartoum received high publicity and were promptly resolved because of the direct threat they pose for those in power. Resolution or non-resolution to land conflict issues in Sudan, and perhaps elsewhere, often seems to reflect the relative political significance and the power positions of those involved.
State encroachment on customary land tenure and the local governance structures overseeing it, in many African countries reflects the unequal power balance between the governing elites and allied local and foreign business interests on the one hand and the majority African rural population on the other. This is a central issue that fuels the dynamics of violent contestations in the countryside where local communities attempt to counteract the power of the state by various forms of resistance including violence, with grave security implications. The case of the Sudan is one in which customary land rights and the governance structures overseeing it have been continuously and consistently undermined by the governing elites through issuing successive land acts that transferred land ownership, in the legal sense, from the rural communities to the state. However, in practice communities that have not yet been effectively dispossessed continue to use land according to customary tenure creating a dualism in land tenure that would continue to be a source of conflict unless resolved. Currently, the potentiality of the governing elites invoking state legal ownership, affirmed by legislation, to gain effective control over customarily communally-owned land, places rural communities in an unpredictable insecure position in which they could be, at any time, subjected to dispossession and displacement. The cases in which this state legal ownership right over communal land was effectively applied the result had been the dispossession, poverty and marginalization of local communities. The grievances and disruptions generated by this process are among the major root causes of multi-layered conflicts in South Kordofan and the Blue Nile; (i.e., between the state and local communities resulting in armed rebel movements, between pastoralists and farming communities and between local communities and outside investors).
In Darfur, governing elites’ attempts to deliberately erode the power of the traditional governance structures overseeing conformity to customary rules undermined indigenous mechanisms that organized farming and pastoralist communities’ access to and use of one and the same land resource. This was a major factor in the spread of violent conflicts between pastoralists and farming communities on an unprecedented scale during the 1990s. These conflicts were a prelude to the Darfur high level conflict, starting in 2003 to the present, in which the central state, Darfur armed movements and other outside forces have been involved as major actors. This continuing violent conflict has claimed tens of thousands of lives, displaced millions and disrupted the livelihoods of almost all Darfur communities. The conflicts created by the dualism of land tenure in Sudan that incorporates state legal ownership of unregistered land; i.e., communally-owned land, and the community practice of customary land tenure have taken a different form around Khartoum. The governing elites’ attempts to acquire communal land for themselves and for foreign investors have often prompted resistance by the local communities and led to violent confrontations with the security forces. The loss of lives and serious injuries that resulted from these violent confrontations gave community resistance wide publicity and sympathy. Public solidarity constituted strong pressure on the governing elites who were often forced to recognize community land ownership held under customary tenure.
However, the tendency of the elites in control of the state to invoke state legislations that deny customary land ownership, and enable them to control communally-owned lands on large scale, in different parts of the Sudan, to lease or sell to foreign investors have been on the increase in recent years. This tendency has been further enhanced by lucrative material and other incentives offered to foreign land buyers and investors. In addition to tax exemptions investors are granted immunity from prosecution and from presence in courts, which all indicate the extent to which Sudanese governing elites could go to promote their interests and those of allied businesses regardless of the dispossession, poverty and suffering of rural communities that might result. Past and current experience indicate that elites expropriation of communally- owned land would continue to be a source of, perhaps more fierce violent, conflicts in Sudan unless the dualism in land tenure is tackled in ways in which communal customary land ownership, access and use rights are recognized, affirmed and formalized in legal terms. This could be a key to reaching a negotiated settlement between the state and local communities that incorporates local community interests into prospective investments.
There is a need to exert effort in terms of research and documentation; i)to identify customary community rights in different parts of the Sudan; community land ownership rights, forms of land access and use, rules governing ownership, access and use rights held under customary land tenure with emphasis on land rights of pastoralists and farming communities; ii) to document community responses to state encroachment on communal lands, state responses to community resistance, factors and forces affecting state responses and explore ways to further strengthen communities’ power position in facing up to state encroachment; iii) the impact of large scale foreign agricultural investment on local communities, (employment, incomes, food production, water provision, services provision), local community attitude towards large scale foreign investment and the possibilities of cooperation between the local communities and foreign investors to serve the interests of both.
Oladeji writes from Lagos
