Land rights are an essential human right, especially in a large country like Sudan, where the majority of the people gain their livelihood from the land. In addition violation of people's right land and natural resources by successive governments have been instrumental in the outbreak of wars and conflicts, so a comprehensive and far-reaching settlement of these issues is essential if Sudan is to achieve peace and sustainable human development.
Sudan, like many other African countries suffer from problems of land ownership. It was the largest country in Africa ( before the cession of South Sudan and loss of one-third of its land and two-thirds of its natural resources) covering almost 1 million square mills. This fact has always been used by government officials to justify a very regressive land policy claiming" that there is land enough for everyone" . But in fact, many parts of Sudan suffer from severe land problems.
Sudan has many problems of land ownership in common with other countries in Africa. Customary systems of land tenure , for farmers and pastoralists ,exist alongside "modern" land law. Customary systems are varied ,including the historic land charters of the Nubian ,Funj and Fur states, the semi-feudal systems developed close to the Nile, especially in the areas dominated by the Mahdi and Mirghani families (although since 1964 there was reduction in their areas size), and the unwritten land ownership traditions of communities such as the Nuba and Southern people. These traditions of law were left largely undisturbed by colonial and post-colonial governments who instead introduced an entirely new level of land tenure based on the right of the state to allocate land. While official land law has undergone transformations under successive governments, most recently with the adaptation of Islamic law, it essentially remains founded on colonial land laws. These laws were introduced with the aim of confiscating large areas of land for commercial farming (notably cotton production) and regulating who was able to reside in towns (in order to guarantee the security of the colonial regime).
Land law is important , not merely as an element of natural justice, Sudanese citizens have a right to a secure place of residence and for earning a livelihood. Good land law is essential for preventing conflict. It is also an important element in environment policy. This Chapter will argue that there is an urgent need to examine and even reform land tenure systems in Sudan. However, it also recognize that the variety of Sudanese land tenure systems is important and beneficial, reflecting the very varied circumstances of land tenure in Sudan. There is no single land system that can work for all parts of the country.
Ownership of natural resources in Sudan is further complicated by the politically sensitive issues of water and oil. The water of the Nile are closely regulated by an international treaty with Egypt. Control of water is an important issue at the local and national levels: one of the issues that sparkled the war in 1983 in the South Sudan was the construction of the Jonglei Canal. Rights to oil are also politically sensitive.
Rural Land Tenure
The most basic problem concerning rural land tenure is rooted in the principle introduced by the British colonial power in 1898, that unregistered land is by assumption ,owned by the government unless the contrary is proved. This principle was in fact valid in the Funji, Fur Sultanate, the Turkish and Mahdia States,and all of them also allocated land for political reasons. The limitations of those states, however, didi not allow them to control the land on the scale reached during the Condominium Rule. When Sudan was conquered by Britain 100 years ago, there was two types of ownership. The first was communal / or tribal ownership, namely land owned by the community at large . While this for m of ownership had disappeared in the areas of the former Funj and Darfur kingdoms, it still existed in many rural areas. The second type was individual ownership which was achieved either by the normal evolution process whereby communal ownership changed to individual or by grants by the sovereign (Funj and Fur Sultanates and in the Mahdist state). This represented a small proportion of all the land in Sudan (chiefly along the Nile and a few locations in Darfur), bur included much of the most fertile irrigable land.
While the British accepted customary rules, including Islamic law, as governing land use , title to land was vested in the Government. A policy of limiting land acquisition by merchants and non-Sudanese individuals was adopted but the colonial administration confiscated huge areas of irrigable land in Gezira and Blue Nile the Tokar Delta on the Red Sea, and elsewere, in order to establish cotton cultivation. This was done at the behest of the Lancashir textile industry that needed a secure and cheap supply of cotton. The main legal codification of the colonial government's land law was the Land Settlement and Registration Ordinance of 1925.
Since independence , the state has remained ready to confiscate land, while wealthy and powerful individuals, usually with connections to Government ,have also made use of the colonial and post-colonial laws to acquire large areas of land. Successive legislation on land up to the Amendments of the Civil Transactions Act introduced by the present government ,has not changed this fundamental aspect of the Sudanese land law, but on the contrary strengthened the privileges of the state and those with access to it, at the expense of rural people. Section 4 of the Unregistered Land Act (1970) transferred to the Government in full, ownership of unregistered lands, whether waste ,forests, occupied or unoccupied, which had not been registered before the commencement of the Act on 6 April,1970. All such land is deemed to have been registered in the name of the Government, as if the Land Settlement and Registration Ordinance 1925, has been duly complied with. Only when the Government is satisfied that the application of the Act would cause grave injustice , can it guarantee the rights of person or persons who have been enjoying undisputed use of land f or a long time.
The 1990 Amendments , in the first Article confirmed that all non-registered land should be considered as if registered in the name of the State. The second provision stated that:
" No court of law or any other authority ,is concerned with considering any plea or petition or procedure ,regarding and subject relating to the ownership of State-owned land in accordance with the Act".
Customary Land Tenure
Customary land tenure in rural Sudan usually share certain characteristics:
- 1. Land is not formally registered.
- 2. Use rights predominate.
- 3. Rights lapse if land is not used for a certain period.
- 4. Overlapping rights exists, i.e. one individual or family may be using a piece of land but other members of his family or her family also have rights to the land ,so that the individual cannot be said to have sole title to land.
- 5. Land remain within the clan or tribe and can rarely ,if ever, be sold.
- 6. A native authority chief has the power to allocate land, e.g. to newcomers, and to adjudicate disputes ; and
- 7. Women have restricted land rights .Often they can only own land through heir husbands or fathers and do not have full rights of inheritance. (Though such is the variety of traditional land tenure system that any generalization must be treated with caution).
The colonial legislation made custom one of the major source of Sudanese Land Law. Local and state courts were obliged to implement customary law if they were found to be reasonable, universal ,certain ,and compatible with public order, morality and law. However, this principle was not fully implemented due to the lack of efforts to document land customary law of the various parts of Sudan. But many customs of northern Sudan were recognized and became part of Sudanese land law. Examples, include Haq al-Qusad and the Mirin. By contrast , the land customs of the Nuba of southern Kordofan were never recognized, let alone implemented .
Customs used to be the second source of Sudanese law after legislation. Following the 1983 adoption of Sharia Islamic law, recognition of customary law was restricted to those following and conforming with Sharia, the acts of Sahaba (the prophets disciples) and the Islamic Four Jurors Schools.
These customary land tenure systems ,whether or not based on Islamic law ,can be quite complex and sophisticated. It is important therefore that they are recognized in law. This does not mean dispensing individual title deeds to every smallholdr. There are intermediate options available . The first would be to recognize that land in use by cultivators cannot be alienated, and that the courts should recognize de facto possession over a period of years as amounting to ownership . This requires legislation and access to legal information and if necessary providing legal aid to small farmers.
One option for a Land Commission to investigate the possibilities for land tenure reform, and report to Parliament. Research schemes should be sponsored in order to document customary law land tenure and to suggest some way of including the practical workable customs in the law.
The position of women with regard to customary land rights requires attention. Women's low status under customers land law does not correspond to their important roles in production and land management . In many poor rural areas, men have migrated to the towns or to central Sudan in search of work, leaving women as the principal farmers. But in many cases women cannot own land in their own right, engage in land transactions ,or inherit land. This is not only an injustice but also a major hindrance to the development of workable land tenure systems and to higher agricultural production.
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