Posted on behalf of Paul De Wit and Jeffrey Hatcher

The need to address the issues of access and ownership of land, and land claims and disputes is recognized in the Comprehensive Peace Agreement (CPA), the Darfur Peace Agreement (DPA) and the Eastern Sudan Peace Agreement (EPA). New land policies and laws must respond to the realities of the different populations; failure to do so will only perpetuate historic grievances linked to resource rights. So far, efforts in Sudan to conceive new directions in land policy and management have been weak, not to say inexistent. The National Land Commission mandated by the CPA, a potential driving force that should advise on land policy is not yet established, while the DPA-mandated Darfur Land Commission’s status is unclear. The DPA does provide, however, for the restoration of land rights lost due to the conflict and the recognition of hawakeer and rights based on historical occupation or use — blanket and simple prescriptions for difficult problems.

Initiatives to reflect on land policy development in Darfur were organized in April-May 2006, when a series of local workshops were held. Three state level seminars on land tenure and management were organized by the Centers for Peace and Development of the Universities of El Fashir, Nyala and Geneina. The major objective of the seminars was to establish a platform to share information on the issue of land in the Darfur region and to gauge ideas, basic principles, approaches to contribute to the peace building process with land/natural resources use and management as an entry point. These events were followed by a 3-day workshop later in 2006, where customary leaders representing all factions of the Darfur conflict participated along with national policy makers, national land and law experts.

The openness, frank though sometimes controversial exchange of ideas, respect for the opinion of others, and apparent desire to compromise stridently contrasted with other harsh realities. A better understanding of what the Darfuris consider important regarding land rights and management, might help us better understand what has gone wrong in the past and how the rights problem fits into the current conflict. This post will try to capture the most salient points of consensus arising from these gatherings.

The meetings resulted in a package of four complementary proposals to respond to the current lack of participatory, efficient and legitimate land administration in Darfur. The DLC could take on the role of the institutional forum to promote the following Dafuri proposals.

a. Recognizing and legalizing customary land rights.

There is no doubt that recognizing and legalizing customary land rights would constitute a major step forward in securing access to land and natural resources for rural populations in Darfur. Customary rights over land and natural resources continue to be the legitimate backbone of land management for all Darfuris, including pastoralists. The DPA does not leave doubts about this when it states under article 158 that " tribal land ownership rights, historical rights to land, traditional or customary livestock routes, and access to water shall be recognized and protected". The only way to achieve this is to register these rights and put them on an equal footing with rights prescribed by the state. This might control some arbitrary state interference and limit intervention to occasions when the state has a compelling reason to do so.

The registration of historic or customary rights over land (including access to natural resources and livestock routes), cannot be considered in isolation of a number of processes, such as rural development, wealth sharing, local administration, conflict prevention and dispute resolution. The registration of rights is not a mechanical, technical survey or cadastral exercise, but a process that will need to deal with issues of substance, which may have a significant impact on the daily life of millions of Darfuris and on the future state of affairs.

The registration of rights over land and natural resources should support a development vision that is based on mobility, resource sharing, and renewing synergies between different systems. This model should thus avoid at all costs cutting off population groups from using, on a negotiated basis, resources that are "held" by other groups. This calls for an "open border" rural development model, which can be realized by considering a package of land tenure reform measures. An open border model implies cultivating synergies between different groups, such as local agriculturalists and pastoralists, as well as private sector actors. It is not separating agriculturalists and pastoralists by walls or fences (there are reports of fences being put up along migration routes).

The registration of customary land rights is not the same as tracing back old hakura charters, identifying the boundaries of 18 and 19th century hakura holders, and surveying and registering these rights. It is more of a process that entails different aspects of land tenure reform and will bring along fundamental discussions on the nature of customary rights (hakura rights are diversified; other customary rights of a different nature exist), the rights but also obligations of right holders and communities, the role of the state in land tenure management.

b. Administration of customary land rights

Until recently, local community leaders administered land and natural resources use. Since independence this capacity has been partially replaced by different forms of the state apparatus, but it was never successful in promoting a legitimate and efficient type of management. The synergies that existed between different land uses and production systems are being replaced by a polarization of land use, eventually resulting in isolated patches of development and others areas of hardship and conflict.

Strong politicization of land management and competition for control over natural resources is at the heart of the Darfur conflict. A management approach based on the technical aspects of land use and mobility is needed to disentangle the issues defining subsistence livelihoods and those related national/regional politics. The community must take on a more pronounced role of land manager, and the appropriate legal and administrative conditions must be established to ensure the community’s decision-making power is legal and enforceable.

The community as a land manager implies that the self-defined community is responsible for administering the land in its territories while remaining a politically neutral body. The administration of the territory can be undertaken by a body of community members that organizes meetings, documents customary rights, collects fees for the maintenance of water holes, sets regulations for communal grazing, promotes environmental sustainability and facilitates community discussion and planning on land management. Any such body, however, needs to ensure an equitable representation of the community’s groups (e.g. customary leaders, youth, women, elderly, and minorities) and should be elected through some form of democratic process. Considering the high number of returning women-headed households to Darfur, it is essential that the community land management body represents the interests of this group.

This association of community members provides a space for dialogue on managing their territory’s land and natural resources. At the same time, regrouping the community to discuss these issues in a pragmatic way will help transforming the conflict by building community trust. The representative body can interact with neighboring equivalents and local land administrations to foster the complementarities of land uses. The representative body will also act as a focal point for outsiders who wish to have access to land and/or natural resources for developing small businesses.

c. A better management of mobility through participatory land use development

As some form of mobility will continue to be an essential element for the livelihoods of most of the Darfur groups, better management of mobility would certainly contribute to the conflict transformation process.

Some reduction of mobility can be envisaged by promoting a number of "new" production systems, such as gardening and small scale irrigated agricultural in wadis around major towns (the growth in towns/cities like Nyala might already represent a reduction in mobility). The possible impact of these systems on the overall population of Darfur is probably small. Traditional coping mechanisms that emerge when mobility is reduced, such as adapting herd composition (substitute livestock by small stock for instance) and/or herd size (decreasing herd size) have their merit and opportunities to promote these can be encouraged. The sedentarisation of nomads has been on the government agenda on a number of occasions, yet it remains unrealistic and problematic. Nevertheless the idea deserves to be revisited, not on the basis of offering "nomad sedentarisation projects" but rather by promoting an alternative lifestyle.

Creating conditions that allow more control on mobility is another option; it is sometimes addressed as part of the rehabilitation of trekking routes — marahil. It goes hand in hand with putting into place infrastructure such as watering points, improved pasture in concentration areas, and making available veterinary services along the routes. Some NGOs and civil groups are involved in the monitoring of marahil, and encourage the formation of local patrolling teams. It is not clear whether this approach may be successfully replicated in areas of high tensions and dispute. It appears that these days this option has been taken radically out of its context. Fencing off marahil seems to attract more funds than genuinely searching for a negotiated compromise. This approach has failed in other parts of the world.

The major challenge however is to create an enabling environment for supporting highly mobile systems in such a way that there is some form of consensus on the use of space in time among different land user groups. This environment cannot be imposed on Darfuris but should be developed by them as part of an inclusive negotiation process. These negotiations existed before, but are now substituted by arms.

d. Dispute resolution for land and natural resources

The Darfur Land Commission has already been identified as the leading institution responsible for the resolution of conflicts over land and natural resources. The CPA provides a model for land commissions, which are identified as the instrument to "arbitrate between the willing contending parties on rights over land". While the establishment and full design of the DLC will be determined through legislation, the CPA, DPA and Interim National Constitution use the same language for the national, regional and state-level land commissions, which are all preliminarily shaped around the same idea, and endowed with similar powers and functions, taking into account their different territorial jurisdictions. According to this model, the Land Commission, in its adjudicating function, may apply statutory law, customary law, and principles of justice and equity. This means that the Commission will have to make the best use of both the statutory legal framework and the assets of customary rules and regulations in devising its proceedings, particularly mechanisms for inquiry and adjudication.

Statutory law has the advantage of being enforceable against all parties, given its binding nature. However, litigation in courts is a long, expensive, and technically complex process, which requires time, financial resources, and the qualified assistance of an attorney. It is therefore necessary to seek a new forum of adjudication that combines the quality of judicial or quasi-judicial proceedings with the simplicity and expediency needed in the current situation.

The use of customary law is essential for dealing with conflicts and promoting sustainable peace. Rather than adversarial proceedings creating a winner and a loser, traditional resolution mechanisms consider the history of the disputants (individuals, families, clan or entire tribes) and the solution is sought in a compensation perspective whereby all gains and concessions made in the past are brought into the equation of the conflict and weighed in assessing the case in question. In the attempt to create a sustainable peace, traditional mechanisms aim for positive solutions whereby both parties are responsible for implementing a final settlement in the hopes of avoiding a repeat of the incident.

Given the wide range of restitution and dispute cases expected to arise, all existing mechanisms have to be considered, from local customary conferences to ordinary courts. The Land Commission is endowed with the power of devising a hybrid system combining tradition with "the force of law", but this ad hoc form of adjudication has to work in parallel with the statutory and the customary legal systems, not necessarily replace these. The added value of the Land Commission can be, on one hand, to turn customarily-reached agreements into legally enforceable decisions, and on the other hand to receive and filter claims, and hand over to courts those that must be handled by formal litigation.

Where we are now

Despite the real consensus around the need to address land rights and management as an integral part of the peace process (and hopefully someday sustaining the peace), there is little motivation on the part of the ruling bodies to do so. While the creation of the land commissions will surely not resolve all the outstanding and historic grievances over land that are part of today’s violent conflict, their creation would be a step in the right direction. Tackling the heated issues of land rights in Darfur will not be easy by any stretch of the imagination, but they must be addressed wisely and by relying heavily on the Darfuris’ vision for land management.

Perhaps this discussion on proposals for land policy development seems premature given the open hostilities, mass displacement and human rights abuses taking place everyday in Darfur. But, if we don’t begin thinking about these issues, future land policies might be hastily developed thus risking repeating many errors of the past.