Here’s a paradox: the Sudan government and the armed movements–both SLAs and JEM–reached agreement on the land clauses in the Darfur Peace Agreement in the weeks leading up to the conclusion of those talks in May 2006. This should be a cause for optimism–a rare case of actual agreement between Khartoum and the rebels. But not only are the DPA’s land provisions weak, they have arguably even been the cause of renewed conflict. To understand why this happened—and why there are good reasons for re-opening the land negotiations, but also good reasons for keeping the agreement as it stands—we need to look into the nature of Darfur’s land conflicts, and also how the DPA was negotiated.

The first point to note is the diversity of land issues in Sudan as a whole and in Darfur as well. The major land problems in Kordofan and Blue Nile are associated with the encroachment of mechanized farms (backed by official land registration documents) on areas of smallholder cultivation, grazing and forest commons. The major land question in southern Sudan has been who owns the rights to the oil beneath the land. In Darfur, the main land problems are associated with migration, livelihood changes and administrative jurisdiction. A substantial part of the disagreement over land issues in Sudan stems from the fact that different writers are referring to different things—and there are different problems and different solutions in different places.

Migration issues in Darfur include the southward migration of people who have been moving out of northern areas because of drought and ecological change and the immigration of Chadians. This has different configurations in different areas. For example, around Jebel Marra and Wadi Saleh, the Fur are objecting to the settlement of Arabs, while in parts of eastern and southern Darfur, groups including Birgid, Berti, Ma’aliya and Habbaniya have had difficulties with the settlement of Zaghawa.

Livelihood changes include the settlement of former nomads, the expansion of irrigated agriculture along wadis and hence the pressure on livestock migration routes and summer pastures. An undercurrent is the overall increase in land under cultivation and livestock numbers. In many more parts of the region, land is becoming a scarce commodity. But right up until the outbreak of intense hostilities in 2003, it was remarkable how much land was still open for claim on the basis of clearing the bush.

Questions of administrative jurisdiction over land are the most contentious in Darfur. It is not the actual possession of land itself, but the political-administrative control over it—increasingly defined in ethnic terms—that is the major source of dispute. Most Darfurians recognize that land tenure and land use must be subject to change—the controversial question is, who supervises that change? Two main positions exist. One is that citizenship alone is the basis of a right to land, and hence the state should have the authority to allocate land to all who need it on the basis of the law. The second is that communities have historic rights to certain territories and this primacy should be respected. Unsurprisingly, it is migrants and settlers who espouse the first view, and those with historic claims to the best land who espouse the second–provided that it is they who retain the administrative authority. Many contenders frame their claim to land jurisdiction not with reference to the land statutes but to competing claims to indigeneity and authentic tribal authority.

The divide doesn’t follow Arab-non-Arab lines—the Zaghawa have much to lose from an assertion of "tribal land ownership" because the majority of them have settled outside their historic homeland in the far north, while the Baggara Arabs of South Darfur are often assertive defenders of what they describe as the traditional system. But in the DPA negotiations, the movements united around positions in favor of the pre-colonial hakura land system (or to be precise, their interpretation of it).

The most powerful sentiment guiding the negotiators in Abuja was that refugees and IDPs should have the right to return home and that anyone who had seized land by force during the hostilities should not automatically retain a right to settle there. This is asserted at a number of points in the DPA, notably Paragraph 159 which reads:

"All displaced persons and other persons arbitrarily or unlawfully deprived of rights to land shall have those rights restored to them. No person or group of persons shall be deprived of any traditional or historical right in respect of land or access to water without consultation and compensation on just terms."

This is buttressed by some other provisions in the DPA. But the movements’ delegates insisted that the agreement go further, and recognize what they regarded as traditional ownership rights. Paragraph 158 indicates that Sudan’s land laws must be reformed in order to take better account of customary land rights:

"Tribal land ownership rights (hawakeer), historical rights to land, traditional or customary livestock routes, and access to water, shall be recognised and protected. All levels of government shall institute a process to progressively develop and amend the relevant laws to incorporate customary laws, practices, international trends and practices and protect cultural heritage."

For the government, this was a major concession. In the CPA it had agreed to review land tenure systems but the wording of the DPA is more radical and definitive.

There are caveats. At various points the DPA 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. It mentions that there may be major development projects that are inconsistent with customary land tenure. But the DPA goes further than any other land law in recognizing tribal authority over land. Paragraph 110 recognizes that hawakeer have legal standing and priority over other claims on land.

The DPA sets up a Darfur Land Commission, to oversee all land tenure questions, such as arbitrating disputes over land tenure, establishing and maintaining records of existing and historical land use, the application and reform of land laws, and recommending measures for land use planning. It should also ensure that women’s customary land rights are not lost. The head of the Land Commission is to be a nominee of the movements and its membership is to include representatives of all the groups that have interests in land ownership and use.

It should be emphasized again that land was an area in which agreement was reached during the talks, not one in which the mediators presented proposals to the parties subsequent on their failure to agree. One set of problems with the land sections of the DPA lies with who was represented (or not). The movements were united on pressing for recognition of the hakura system and the government agreed. Darfur’s Arabs were absent. The groups that have the greatest interest in reforming the land system, and which specifically reject the notion of tribal land domains, did not have any input into the discussion. The government implicitly represented their interests–but in practice failed to do so. No sooner had the DPA been signed than Darfur’s Arabs began to voice their discontent, to the extent of accusing the government of betrayal. The mutinies of the Arabs in the last year are in part traceable to this.

Another set of problems concerns how those who were present in Abuja constructed the history of Darfur’s land systems. Negotiators from both sides equated the old Darfurian "hawakeer" system with "tribal land ownership." In fact they failed to make a distinction between hakura—land grant awarded by the Sultan to an individual—and tribal dar—homeland awarded to a tribe for administrative purposes by the colonial authorities, albeit usually based on historic residence claims of some form. Historically, hakura and dar are overlapping concepts—but the reinvented hakura is much closer to the colonial concept of dar than to the historic hakura of the sultanate. The delegates in Abuja were in fact inventing a land history for Darfur and creating a form of tribal land authority—and indeed tribe—that hadn’t existed beforehand.

Why did the government go along with this? Part of the answer was that Khartoum never expects to have to implement an agreement to the letter. As the chief government negotiator remarked in his speech accepting to sign the DPA, "discrepancies will be remedied." Part of it was that the Darfurian Arabs simply weren’t present to make their case—and those who were members of the government and rebel delegations were in the power-sharing talks, not the wealth-sharing. But there is a third reason too. While international thinking on pastoralism has moved on immensely in the last fifteen years, away from the old views that nomadic herding was a primitive way of life destined to be superceded by sedentarism, official thinking in Sudan has remained stuck. Today it remains commonplace when speaking with Sudanese officials to hear proposals for settling and "civilizing" nomads that were the norm a generation ago but have now been discarded elsewhere in Africa. And insofar as they take account of nomadism, such officials want the nomadic routes to be strictly regulated—in scarcely-disguised emulation of the colonial era controls over migration. So while Khartoum’s negotiators in Abuja considered the Darfurian Arabs their allies, they also considered them as primitives whose way of life was an embarrassing anachronism, at best to be abolished and at minimum to be regulated.

In fact it is striking that most of the DPA’s provisions concerning nomadism appear, not in the Wealth-Sharing chapter, but in the Security Arrangements. This is not because negotiators or mediators thought that nomadism was a security issue rather than a socio-economic one, but because the security advisers to the talks insisted that security needed to be provided around nomadic migration routes, to protect both the nearby settled communities and the nomads themselves. It was the military men (on both sides and in the mediation) who had immediate practical concerns over security that made sure there was at least some reference to nomads in the document. (See paragraphs 287-289, which refers to freedom of movement and the protection of the ability of Darfurians to pursue “any peaceful, traditional form of livelihood.”) The wealth-sharing delegates scarcely mentioned pastoralism at all (only in paragraph 149 which mentions the “important problem” of competition for pasture and water).

So the DPA’s agreement on land can be regarded as a false agreement—in need of revision, to take account of the complexities of land tenure and livelihoods in Darfur. But Paragraph 158 opens a window—"a process to progressively develop and amend the relevant laws to incorporate customary laws, practices, international trends and practices and protect cultural heritage." If the communities themselves participate in defining their land tenure requirements, based on their understanding of livelihoods, then there is a chance to develop land tenure practices appropriate for Darfur. These may derive legitimacy from a fictional reading of history, but what is more important is that they should be consensual and should promote livelihoods and preserve the peace.