Base de Datos Género y Derecho a la Tierra


Tenencia de la tierra- formas predominantes

  • There is no unified legal framework to deal with land issues in the country, where competition over land and natural resources has long been a source of tension between different groups. Prior to the 2005 Comprehensive Peace Agreement (CPA), existing land legislation determined that more than 90 percent of the country’s land belonged to the State, but in reality customary, communal types of tenure were in practice in many parts of the country (12).
  • Two parallel systems of land rights exist in the country – the statutory legal system and the indigenous system of tenure based on customary rights. The former served larger rural entrepreneurs, urban dwellers, foreign investors and elite groups to obtain land through secure leaseholds, while a large majority of land users depended on the latter, which did not ensure formal security of tenure.
  • Customary rights continue to enjoy legitimacy among diverse ethnic groups and sub-groups of rural people in different parts of the country (12).
  • Even though customary tenure varies in forms across the country, it has some common fundamental characteristics:
    - The authority to allocate community land lies with a system of local chiefs and individuals and groups have rights to land through membership in the community;
    - Land, once possessed by an adult male in accordance with existing rules, can be inherited by his son;
    - Women have access to land only through male relatives;
    - Rights of herders to the commons operate on the same principle of membership to the community.
  • There are power relations and inequalities within the community, reflected in the different sizes of herds owned and the extent of land cultivated. Resource conflicts are normally handled by local institutions, but these institutions have been finding it extremely difficult to handle resource conflicts caused by war-induced mass displacements of pastoralists and farmers (12).
  • The question of land needed by millions of returning internally displaced persons (IDPs) and refugees poses new challenges for the GoSS, which is also dealing with competing demands for land and its other resources, such as oil and minerals, from international and domestic sources and companies (12).

Instituciones nacionales y locales que ejecutan las disposiciones jurídicas sobre la tierra

  • The Wealth Sharing Agreement provides for the establishment of a National Land Commission (NLC) and a Southern Sudan Land Commission. Their proposed functions can be divided into two major conceptual categories:
    - judicial functions, which include the facilitation and enforcement of land claims through arbitration; and the assessment of compensation.
    - policy-making functions, such as making recommendations on land reform and land-use policies, recognizing customary rights, advising on coordination of sector policies and studying and recording land-use practices (13).
  • The NLC was to be established after the approval of the Interim National Constitution and the enactment of a National Land Commission Act. A Commission Preparatory Team was established in 2005 to prepare a draft of the NLC Act. However, diverging views between the former ruling party, the National Congress Party, and the SPLM prevented progress. The task of drafting the enabling legislation for the NLC returned to the National Constitution Review Commission (NCRC), which appointed a Senior Legal Expert to produce a draft act. The act was submitted to a wide range of stakeholders for discussion and revision at a high-level workshop in Khartoum in late February 2007. No progress has been made since (11).
  • The Government of Sudan (GoS) and the newly established interim Government of South Sudan (GoSS) have established their land commissions to address issues of land policy, including the ownership of land and subterranean resources, at the central and regional levels. The GoSS is still in the early stages of developing a comprehensive land policy (12).

Instituciones de administración de la tierra y cuotas para la mujer

  • The Government of South Sudan (GoSS) is trying to adopt ad hoc arrangements to deal with emerging land issues. The existing information base on the land tenure systems in South Sudan is very limited and the field surveys commissioned by the GoSS have so far covered only some parts of the region. Thus the Southern Land Commission lacks adequate information on existing land tenure and land-use systems in all of the ten states (12).

Disposiciones de financiamiento que garantizan a la mujer transacciones de tierras


Otros factores que influyen en los derechos a la tierra diferenciados por género

  • Women are often marginalized when land or household property is transferred, as transactions take place without their consent (19).
  • In the case of the death of the husband, a woman needs to present a death certificate to qualify for a land plot under leasehold. While this seems simple at first, it is often difficult to get such a certificate. This complicates access to land in gazetted town areas for female-headed households, which represent up to 45–50 percent of the community of internally displaced persons (IDPs) and refugees (19).
  • In addition to a long-term land conflict between nomadic pastoralists and farmers, many land disputes took place in 2006 as a consequence of the constant return of IDPs from Khartoum to South Kordofan and Blue Nile states. Former residents tried to reclaim property without a legal mechanism in place to fully address grievances (20).
  • Existing customary institutions and structures exclude women and are accused of being weak, undemocratic and discriminatory (17).

Fuentes: los números entre paréntesis (*) se refieren a las fuentes que están en la sección de Bibliografía