Base de Datos Género y Derecho a la Tierra


Derechos consagrados en la Constitución

  • The Interim National Constitution (INC), approved in 2005:

    - In the 2005 interim national Constitution, the Bill of Rights (Articles 15 and 32) explicitly ensures women and men equal rights for the first time (14).

    - Article 15, dealing with family and marriage, states that “the State shall emancipate women from injustice, promote gender equality and encourage the role of women in family and public life” (14).
    - Article 32 states that “the equal rights of men and women to the enjoyment of all civil and political rights and all social, cultural and economic rights, including the right of equal pay for equal work, shall be ensured” (14).

    - Article 7(2) says that “every person born to a Sudanese mother or father shall have a non-alienable right to enjoy Sudanese nationality and citizenship”. Since the first Nationality Law of 1957, nationality had been granted to an individual based on the nationality of the father only (14).

    - Article 43(1) states that “every citizen shall have the right to acquire or own property as regulated by law”. Women’s equal right to own property is not explicitly mentioned (14).

Derechos de la mujer de propiedad y uso de la tierra en los Códigos Civil, de Familia y del Trabajo

  • The State has historically abdicated its legal role in family matters to its Islamic, Christian, and traditional African-believing communities. Women’s civil rights in matters such as marriage, divorce, inheritance, maintenance and financial custody of children and alimony depend on the religious community to which they belong, which tends to be Muslim in the north and traditional in the south (15).
  • The Comprehensive Peace Agreement (CPA) of 2005 and the Constitution did not address the issue of women’s equal civil rights. In the name of religious freedom, the CPA and the Constitution have left the civil rights of women to the religious communities in the country (16).
  • Civil rights of Muslim women are regulated by the codified Islamic family law in the Muslim Personal Status Act of 1991 (16).
    - A man is allowed to marry up to four wives.
    - A woman needs a guardian, or wali, to validate the marriage.
    - The bridegroom must pay the bride a dowry which is the property of the wife.
    - The man is the financial provider of the family.
    - A man can deny his wives rights to work outside the home, even though he fails his financial obligation.
    - The husband has the unilateral right to a divorce, or talaq, while the wife has to obtain a divorce in court – a tatliq.
    - The mother has the custody, or hadana, for a girl until she is nine years old and for a boy until he is seven years old (15).

Mecanismos legales de herencia

  • According to the 2005 Comprehensive Peace Agreement (CPA) and the Interim National Constitution “all personal matters, including marriage, divorce, inheritance, succession and affiliation may be governed by the personal laws  – including Sharia or other religious laws, customs and traditions – of those concerned” (16).
  • The Muslim Personal Status Act of 1991:
    - A woman is entitled to half the inheritance of her brothers (15).

Legislación de tierras

  • There is no unified legal framework of land tenure across the country. 
  • In the north, legislation is essentially founded on colonial land laws. In the south, the Sudan People’s Liberation Movement (SPLM) and, later, the judicial systems of the Government of Southern Sudan (GoSS) have been largely based on customary legislation, especially when regulating access to land and dealing with land-related problems. During the civil war, the SPLM rejected statutory law in its areas of control (11).
  • The Power Sharing Protocol of the Comprehensive Peace Agreement (CPA) of 2005 enshrines parallel legal systems in the northern and southern parts of the country, but the situation in the contested areas of Southern Kordofan and Blue Nile and in Darfur remains unclear (11).
  • The CPA does not address issues regarding the ownership of land and natural resources, but calls for the incorporation of customary laws and establishes a National Land Commission – one for the southern part of the country and one each for Southern Kordofan and Blue Nile states – to arbitrate claims, offer compensation and recommend land reform policies. 
  • Similarly, the Darfur Peace Agreement (DPA) of May 2006 has delegated the resolution of land issues to a future Darfur Land Commission (DLC). However, all Land Commissions are yet to be established (17).
  • Since the colonial period, successive laws and decrees have undermined the land rights of rural communities, small farmers and pastoralists. The most notable was the Unregistered Land Act of 1970, now repealed, in which unregistered land was to go to the State and could not be acquired through long-standing use. These land grabs led to massive displacement (17).
  • The Civil Transaction Act of 1984 and its Amendment of 1990:
    - Repealed the Unregistered Land Act of 1970 and identified different forms of land and property rights such as land held in undivided shares, family ownership, etc.
    - States that registered usufruct rights are equal to registered ownership.
    - Regulates inheritance, compensation for land required by the state, usufruct rights and the possibility of registering easement rights, or rights of way.
    - Legalizes elements of Sharia law and confirms the role of the State as a landowner (4).
  • The 2004 Agreement on Wealth Sharing During the Pre-Interim and Interim Period and the Protocols on the Resolution of Conflict in Southern Kordofan/Nuba Mountains, Blue Niles States and Abyei include important sections on access to land and natural resources and provide for land commissions at different levels to deal with land claims and engage in land policy and law development (17).

Medidas políticas/mecanismos institucionales que refuerzan o limitan el derecho de la mujer a la tierra

  • The national gender machinery is operating within the General Directorate of Women & Family Affairs (GDW&FA), under the Ministry of Welfare and Social Development, with focal points and/or women’s units in most ministries. However, coordination among these units is not institutionalized and does not lead to comprehensive planning. 
  • The mandate of the GDW&FA is to:
    - set up strategies, policies, plans and programmes concerning the promotion and advancement of women;
    - establish a comprehensive database providing gender profiles and a review of national, regional and international commitments concerning women’s empowerment;
    - create linkages across all sectors and connect decentralized structures at the state level with governmental organizations and NGOs and develop capacity-building programmes (10).
  • The Comprehensive Peace Agreement (CPA) recognizes existing land tenure procedures as a de facto situation and neither signatory to the agreement − the National Congress Party and the Sudan People’s Liberation Movement/Army − are keen to establish the Land Commissions. Moreover:
    -  the commissions are not binding on either party or on government policy;
    - the CPA does not provide for the representation of pastoralists and farmers, who are the majority of direct land users, in the commissions;
    - it is unclear how claims to rights are to be submitted, legitimated or contested, whether such claims are to be made on an individual or collective basis, and, if collectively, who will represent communities and with what basis of legality or legitimacy;
    - each state has the right to develop, conserve and manage its natural resources but does not have the institutional arrangements for inclusive and equitable use and management of land and natural resources;
    - in Abyei, neither the Protocol on the Resolution of Conflict in Abyei nor the main administrative body, the local Executive Council, addresses the issue of land (17).
  • There is extremely limited public awareness about the CPA in general and the Land Commissions in particular.

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