a El legicentrismo y la concentración de las fuentes del derecho en el Estado

There seems to be a confusing mixture of overlapping land laws in Sudan. Modern legal systems have co-existed with legally adopted customary land laws and the colonial regime instituted legal and tenure dualism by enforcing ‘settler interests and adopting minimalist approaches to land tenure and management by indigenous people’ (Adams & Turner 2005: 1). Independent governments have dealt with tenure dualism by restricting it through policies of nationalization and the conversion of freehold to leasehold. ‘The cumulative effect of these legal reforms has been that not only has political power been concentrated further in the central government, but control of the very land on which people live and depend has been transferred to those with access to that power’ (Johnson 2001: 2).

During pre-colonial Sudan’s successive indigenous Islamic kingdoms, land tenure was based on communal ownership, with the right to control land allocation vested in tribal

chiefs. Land was given by Sultans (kings) to tribal chiefs to ensure their loyalty and support. To prove their ownerships, tribal chiefs were issued with a seal bearing

Wathiga, which delineated their authority to manage land that falls within the territory

of their tribe, known as dar or homelands. The wathiga also indicated the boundaries of

the land being granted. The power and authority of the tribal chiefs over livelihood means of their communities was therefore boosted (Shazali & Ahmed 1999: 4). How- ever, the authority of tribal chiefs tended to be highly variable, with land often being used by the Sultans (kings) to settle scores with tribal chiefs through withdrawing the right to land from one chief and giving it to another. In addition, the grant of dar land was never

permanent and could be affected by changes in the monarchy, in tribal power centres or in tribal structures (Shazali 2003: 4).

The first Titles to Land Ordinance in Sudan were issued in 1899, and stipulated that almost the all the land in Sudan was government property. The Land Settlement and Registration Act 1925 that followed continued to state that ownership must be proven by registration. In effect, the government is the discretionary owner of all land of Sudan. There have been several programmes of registration ever since and the process has still not been completed. The 1925 Act gave legal support to standard colonial legal principles and remains effective to this day (McAuslan 2006: 12). By law, only riverine land that was ‘always farmed’ was considered the private property of the cultivators. 'Unsettled' and ‘uncultivated’ rain lands of central, eastern and western Sudan and all lands in southern Sudan were categorized as government-owned lands. Government-owned land was divided into two categories; land subject to ‘no right’, and land subject to ‘usufruct rights’ of tribes. The category of land subject to no right was used by the government when it

wanted to appropriate land for both public and private agricultural production schemes (Shazali & Ahmed 1999: 5). Leases and usufructs were primarily granted to ‘northern Sudanese and foreign investors from other countries in the region’. Such power has been exercised extensively in Southern Kordofan and Blue Nile States (McAuslan 2006: 12).

The 1970 Land Act was issued at the dawn of the socialist military government and customary land was abolished and land was nationalized. The role of traditional leaders in local land management was also replaced by People’s Councils. Since land occupied by local communities thus belongs to the state, traditional land rights are in no way a form of land ownership. In many rural communities, people have retained their allegiance to the native authorities and disregard any decisions on land made by government representatives. This has often created tensions between state representatives or new land owners and those who traditionally have authority over decisions pertaining to land. Although the native administration made a comeback in the 1980s and 1990s, this time government representatives were mostly made up of corrupt and centrally appointed personnel (Rahhal & Abdel Salam 2002: 4).

The Law of Criminal Trespass was issued in 1974 to strengthen the rights of leaseholders to their lands, further limiting the right of access by nomads and smallholding farmers. The 1990 Civil Transactions Act continued to state that all unregistered land was the property of the state and the state retained full right to allocate leases regardless of who was actually living on the land. The Act was amended to rule out the recognition of customary land rights in courts throughout county. The result has been the removal of vast areas of forests, swamps, villages and individually owned land previously owned under customary tenure by huge mechanized farms. These laws have had an unduly negative impact on the urban poor and internally displaced persons. In particular, the provision of Decree 941 of the 1990 Land Act which states that ‘the government “shall immediately destroy” temporary housing that has been built on land not owned by the people inhabiting it’ (Curtis Doebbler 1999: 6-7 cited in Global IDP/NRC 2005: 191).

While these laws have compromised the livelihoods of the poor, women, the landless and traditional producers, they have on the other hand catered for the interests of commercial farmers and state development schemes (D. Johnson 2001: 2). The confis- cation of land took place with the intention of transforming large areas for commercial farming. This has allowed ‘wealthy and powerful individuals, usually with connection to government’ to gain control over large areas of land (Rahhal & Abdel Salam 2002: 2). It has been argued that subsistence farmers have experienced a steady process of

marginalization due to the rapid horizontal expansion of commercial farming. By the end of the 1970s, around 1.6 million hectares (4 million acres) had been turned into commercial farms, with the landholdings of each farm averaging 400 hectares (1,000 acres). In 1982, this number had shot up to 2.5 million hectares (6 million acres). How- ever, the land used for traditional farming remained constant throughout this time at 3.6 million hectares (9 million acres) despite the fact that the population who depended on

land for their livelihoods increased (Stephenson & DuFrane 2002: 174). The expansion

of commercial farms was blamed for such problems as the reduction in area under forest cover and the reduction of land available for subsistence farming.

Traditional farmers were displaced from the land they had once depended on as a major source of their livelihood. As mechanized farms started to concentrate on cash crops for export, subsistence farmers became more reliant on purchased food and became vulnerable to food inflation as well as job availability (Stephenson & DuFrane 2002: 174). As a result and due to the scarcity of opportunity for livelihood diversifica- tion beyond this sector, some farmers were relegated to land areas which are prone to climate related risk. Others become landless labourers or move to urban areas in search of informal-sector jobs there (Eltigani 1995: 4).

Clearing large areas of land for commercial farming has also resulted in the further reduction of access for the poor to fodder, fuel wood and other forest products. For pastoralists, the result has been a clearing out of large areas of pastureland and the blocking off of their traditional corridors and access to watering points during the dry season (Stephenson & DuFrane 2002, Eltigani 1995, Shazali & Ahmed 1999). Recently, the demarcation of large tracts of land for oil exploitation has also resulted in the further forced removal of populations around the oilfields (Global IDP/NRC 2005: 22-23).

Most conflicts in Sudan are subsumed into a broader dichotomy of ethnicity and dispute over access to land resource. Conflicts over the jurisdiction of land and compe- tition over land issue often arise between traditional producers with different tenurial rights under different systems of land tenure. In most areas, livestock owned by pastor- alists far exceeded the carrying capacities of the marginal land that the pastoralists occupy. In addition, a lack or deterioration of existing water sources has negatively impacted on the capacity of the grazing areas to support herds without encroaching on the cultivated area. This has often led to conflicts between farmers and pastoralists. On the other hand, there have also been conflicts amongst pastoralists as a result of competi- tion for a dwindling 'stock' of grazing land as agriculture has expanded (Shazali & Ahmed 1999: 8-15). The increasing availability of modern weapons has increased the intensity and violence of these disputes. In recent years, the escalating civil strife that the country has witnessed, particularly across the ethnic divide, has reconfigured herder/farmer conflict in new and more brutal ways, with the Darfur crisis being a good example.

In summary, the land-tenure regimes currently found in Sudan are a product of historical and socio-political forces whose effects vary between different regions and localities. Overall, the land law did not provide a solid platform for full tenure security for a large section of the population. The outcome has been increased conflict and social dislocation resulting from insecurity and the loss of land, rural employment, crops and lifestyle.

Women’s land rights

The development of land tenure has been a complex process involving traditional leaders, the modern political and legal system as well as Islamic law.Women have very limited access to land under statutory, customary tenure systems and Islamic law. Customary rules have excluded women from access to land and impact negatively on their ability to make a living particularly in the rural areas. In recent years, with the increased commercialization of land and problems of land scarcity, local leaders have experienced increased pressure to protect the tribal system and have imposed greater constraints on women's access to land. In several communities around the country, the position of women with regard to customary land rights is inferior to that of men. Quite often ‘women cannot own land in their own right, or engage in land transactions, or inherit land’ (Rahhal & Abdel Salam 2002: 4). Furthermore, based on Islamic inheri- tance laws, women face a wide-ranging denial of access to land (Rahhal & Abdel Salam 2002: 8).

The introduction of land registration and the privatization of land after independence represented a setback for women, leaving them in a state of even greater insecurity and with poorer prospects of accessing land. Modern legal reforms that attempt to formalize customary tenure systems have contributed to the erosion of women’s customary rights. Rahhal & Abdel Salam (2002: 4) note that ‘even in the relatively few cases where women have customary rights to land, women have extreme difficulty in having their rights recognized in the registration process’. They further note that the current system ‘has been used to selectively preserve practices that ensure the loss of these rights’. For most women in Sudan access to land is via a system of explicit ownership through men: as husbands and fathers (Rahhal & Abdel Salam 2002: 3). In urban areas for example, while a male government employee is entitled to land allocation in the cities, his female colleague is not, as her allocation is given to her husband. At the same time, a family’s secure land rights do not necessarily translate into secure rights for a woman within that family. Not only does the husband retain full rights over any urban land owned by the family but on divorce a woman is not entitled to any of her marital home’s fixed property including land (Rahhal & Abdel Salam 2002: 12).

In summary, the security of women’s land rights depends on whether these rights are legally and socially recognizable and enforceable. Within these contexts, women have extreme difficulty in having their rights recognized compared to men.