allAfrica.com: Sudan: The Question of Land (Page 1 of 2)

This is the tenth in a series of articles concerning the Darfur Peace Agreement (DPA), explaining how different parts were negotiated, what the paragraphs mean, and how they should be implemented. One of the reasons for this is that it is important for the Sudanese people as a whole--and the people of Darfur especially--to understand the spirit and letter of the DPA, so that it can be implemented so as best to serve the interests of the people and bring lasting peace to Darfur. This article focuses on central question of land tenure. Conflict over land is one of the major reasons for the war in Darfur.

A year ago, the Declaration of Principles for the Darfur peace agreement was signed by all the main parties in Abuja. This made reference to traditional land ownership and how it must be respected. But land is a very complicated issue and the controversies over land ownership cannot be resolved quite so simply.

There is a contradiction between traditional land tenure and ownership, especially the hakura system, and Sudanese land law. According to Sudan's land laws all unregistered land belongs to the state, which can allocate leases without reference to who is actually living on the land. These land laws have disadvantaged rural communities at the expense of commercial farmers and state development schemes which have not brought benefits to the local population. In the Nuba Mountains and Blue Nile this was a major reason for people to take up arms and join the SPLA. In the case of Darfur there are few cases of major commercial farms or mechanized schemes, and in fact the largest rural development projects have promoted smallholder farming. Instead, the main challenge to traditional land tenure has come from migration, especially north to south migration on account of desertification in northern Darfur, which has led to widespread settlement of northern Darfurians on land in other parts of Darfur, and the immigration of Chadians including large numbers of nomads.

Environmental change and migration means that the hakura system must be applied with some flexibility. Traditionally, the concept of hakura is not equivalent to "tribal land ownership." The idea of a tribal "dar" is different. Each hakura was an individual grant of jurisdiction over land. The individual in question could often be a tribal leader in which case he exercised that jurisdiction on behalf of his people, or alternatively people would congregate in his hakura and thereby identify themselves with the hakura (e.g. the Birgid). The hakura system has historically included a principle of hospitality--newcomers are entitled to settle on free land provided that they respect the customs of their hosts. It also made a distinction between the native administration office holder, who adjudicates disputes over land, and the person who actually allocates the land.

One of the causes of Darfur's conflict has been the inability of the land ownership and land management systems to cope with the demand for farms and pasture. The numbers of people and animals have grown while the land itself has become degraded through over-use and because of declining rainfall. Darfur's land can certainly support many more people than the six million people who live in the region today. But for Darfurians to not only survive but prosper, the land must be used more efficiently than in the past. Experience of rural development the world over demonstrates that small farmers are usually the best custodians of the soil--and Darfur is no exception. Darfur's developmental challenge is to enable its capable farmers and livestock owners to apply their skills to gaining a livelihood, without creating conflict and without degrading the natural environment.

The DPA is not a blueprint for social and economic development. But it does provide some important guiding principles that can enable Darfur to achieve sustainable development. At various points the Agreement makes reference to the need for land ownership systems and ecological management to ensure equitable development and avoid environmental degradation. It refers to policies to address the challenges of access to pasture and water and to overcome tensions arising from competition between farmers and herders.

But the DPA's most basic principle is the rights and equality of Darfurians. For that reason, and in line with the 2005 Declaration of Principles, it has a clear bias in favour of traditional land ownership. This is asserted in two main ways. Paragraph 110 clearly recognizes that hawakeer have legal standing and priority over other claims on land. This is a very important concession made by the GoS, which makes it clear that the Government is not free to grant whatever leasehold rights it desires over unregistered land.

The second main principle is the right of return of refugees and IDPs to their places of origin. This is asserted at a number of points in the DPA, for example Paragraph 108. In Paragraph 176, this right of return of refugees and IDPs is fleshed out by specifying that these people must be provided with protection including access to courts. Other provisions for the security of returning refugees and IDPs, such as the community police and the possibility of deploying integrated units in areas of return, have been detailed in the second paper in this series.

While the right to return is deeply enshrined in the DPA, there may be instances in which it is simply not practical for an individual to take his or her piece of land back. For example Paragraph 175 makes reference to major development projects that may be inconsistent with land legislation. Paragraph 159 reads:

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