Business and Human Rights  |  Audrey Foo

Land Acquisition in Sudan and South Sudan: Emptying the Bread Basket

Land acquisition is a food security strategy used by countries to produce food for domestic consumption on land overseas. In both Sudan and South Sudan, the absence of land legislation, government corruption and the unequal bargaining power of foreign investors has led to an asymmetric distribution of costs and benefits in land acquisition deals. This article will explore how land acquisition has endangered Sudan’s population and the crucial role lawyers play in maximising protection for local communities, landowners and workers.

An Empty Basket

Under the blazing sun in the country of Sudan, food crops are abundant: rows upon rows of wheat stand tall and proud, whilst tomatoes grow red, ripe and plump. This is a fitting image for Sudan’s title as the ‘bread basket’ of the Arab world due to its agricultural potential: over 200 million acres of land are arable, and the country has access to roughly 25% of the Nile’s water. Yet, despite impressive agricultural growth, Sudan remains ridden with food insecurity – a stark contradiction to the plentiful number of food crops it boasts. In her book, The Political Economy of Arab Food Sovereignty, Jane Harrigan notes that in 2010, Sudan was one of the three largest recipients of food assistance from the World Food Programme. Estimates indicate that more than 80% of the population cannot afford basic food items needed for their daily sustenance, resulting in chronic malnutrition in over 40% of children in 11 of 18 states. Furthermore, the 2011 Sudanese Civil Conflict which embroiled both Sudan and South Sudan, severely hampered economic growth and disrupted trading and market activities. The mass displacement of civilians fleeing war resulted in widespread loss of crop ownerships, such that over 7.1 million South Sudanese faced extreme or deadly hunger. In a time where Sudan and South Sudan are facing their separate food security issues, land acquisition has been detrimental for the populations of both countries.

Land Acquisition: Win-Win?

Land acquisition has been a choice food policy used by Middle East and North African (MENA) countries to solve food shortage issues caused by food price volatility in the global market, as well as climate change and population increase. Developing countries are often the target of these bilateral agreements, evidenced by the number of land acquisition deals in developing countries. According to Harrigan, Sudan exports crops to Egypt, Jordan and Saudi Arabia. The cost calculus of ‘land acquisition’ is meant to be ‘win-win’ on both the investing and recipient country: in exchange for the use of land to grow food crops to be exported back to the investing country, the recipient countries receive capital, infrastructure, agricultural knowledge and opportunities for local employment. This facilitates an exchange of knowledge, skills and resources, in order to benefit both sides party to the deal. In reality, land acquisition deals take place within a murky legal and business environment, ultimately hurting the local population.

Land Law in South Sudan

There is limited legal infrastructure to properly allocate land rights and ensure that they are respected. South Sudan’s post-independence land law is extremely underdeveloped. The country’s pre-independence constitution allowed ethnic communities to possess land through customary practice rather than holding legal land tenure. Today, this land can be leased by government institutions to foreign investors as there is no formal legal recognition of the rights of many current landowners to their land. No law has been passed since South Sudan’s independence from Sudan in 2011 to address the gaping hole in land rights. Moreover, land authorities tasked with reformation of land policies are non-existent or ineffective – some states in South Sudan do not have an operational county land authority, known as ‘Ayam Land Council’, to deal with such issues. There are also contradictions within existing land law: the 2009 Land Act stipulates that land leases are to last for a maximum of 99 years, whilst the 2009 Investment Promotion Act only allows a land lease of 30–60 years. What little legal infrastructure there is concerning land rights is rife with discrepancies – overall, there is minimal legal protection for local landowners as their right to land is often unrecognised by the state government.

Lawyers may have a role to play in assisting in the establishment of land authorities across the country to ensure individual states have the administrative and legal capabilities to enforce land policies. This will create the legal infrastructure needed to oversee the process of land acquisition. Landowners should also seek legal land tenure to assure them of their rights to their land, rather than relying on pre-independence customary laws. Lawyers may assist landowners in this transitionary process to ensure that landowners are given sufficient legal protection.

Invisible Communities in South Sudan

The absence of legislation has led to widespread dispossession of land and displacement of communities. In 2008, the Texas-based firm, Nile Trading and Development, signed a 49-year lease with the Mukaya Payam Cooperative, an entity representing the local Mukaya Payam community, to conduct large-scale agriculture, oil exploration and timber harvesting on local lands. Three years later, it was discovered that the supposed Cooperative was merely comprised of three influential Mukaya Payam natives, who had not consulted the Mukaya Payam community prior to signing the agreement (Nazemroaya, The Globalization of NATO). Only after successful petitioning by a commission made up of traditional government leaders, elders, religious leaders and the youth of the Payam community, did South Sudanese President Selva Kiir cancel the agreement. This prevented the forced displacement of 600 families from their ancestral land. However, communities like the Mukaya Payam community are often disenfranchised from representation during land agreements.

Lawyers overseeing land acquisition agreements need to act as the middle man between communities and foreign investors to increase communication from both sides. This is crucial in obtaining informed and prior consent from communities before using their land, as well as setting into place a grievance mechanism which communities can use to address concerns which may potentially occur.

Who’s to Blame in the Race to the Bottom?

The law is often an extension of the state. Land acquisition in Sudan and South Sudan is problematic not only due to flaws within its legal infrastructure, but the state system itself. Corruption is rampant in Sudan: in 2016, Sudan was ranked 170th out of 176 by Transparency International’s Corruption Perceptions Index. Government officials who are swayed by economic interest and prioritise profit over equity participate in the ‘race to the bottom’ by lowering their requirements for land acquisition to compete with other land suppliers. In Sudan, land fees are cheap, but leases on land are extensive and can be valid for up to 99 years.

However, the ‘race to the bottom’ is also a cyclical problem compounded by the actions of both foreign businesses and local governments. Agribusinesses seek out and exploit concessions such as low wages and unregulated working environments to lower production costs, a demand that local governments are far too willing to make in order to attract foreign investment. However, this has detrimental effects on local workers who are meant to gain employment from the opportunities presented by agribusiness. There is currently no requirement for investors to employ Sudanese workers, allowing an influx of imported foreign labour to grab the jobs initially meant for locals. In his book, Oil for Food: The Global Food Crisis and the Middle East, Eckart Woertz highlights the Zayed al-Khair project as an example, which used Sudanese land to grow wheat and alfalfa, but brought in workers from Egypt, Pakistan, and the Philippines. Thus, not only does the local population face imminent land dispossession, unemployment is also a potential threat they must brave.

Clear guidelines regarding working conditions need to be set out in land acquisition deals to ensure that local workers are being guaranteed decent wages and working opportunities in appropriate work conditions. Although international codes of conduct, such as Responsible Agricultural Investments and Voluntary Guidelines for Governance of Land Tenure have been established by organisations including the World Bank and the UN Food and Agriculture Organization, such guidelines are often non-binding and thus yield little results in reality (Harrigan, The Political Economy of Arab Food Soveriegnty). Lawyers need to apply greater pressure for codes of conduct to be ratified and enforced locally. Increased awareness of such guidelines amongst the legal community can also help lawyers involved in land acquisition deals to negotiate for fairer conditions in recipient countries.

The Influence of MENA Countries

Perhaps the lack of incentive from the Sudanese government to properly regulate land acquisition deals also stems from their inability to do so. Foreign investors often hold greater bargaining power in the process of negotiating land acquisition deals, as host countries also seek investment for reasons such as economic growth and inward foreign direct investment flows. MENA countries, in particular, have the upper hand in land acquisition deals. A common strategy for the ruling elite to remain in power is to extend the political influence of their coalition into as many sectors of society as possible and grant favours where necessary. Hence, many companies in the private sector are owned by members of the royal family or the ruling party in MENA countries. This circumvents the issue of shareholder accountability and reduces the need for investors to ensure that land acquisition is sustainable and equitable.

What’s Next for Lawyers?

What was meant to be a win-win food security strategy for Sudan and South Sudan has instead been detrimental to the livelihoods of communities, landowners and workers. Many have accused investing nations of ‘land grabbing’, rather than land acquisition. Lawyers have a crucial role to play in helping communities to gain land tenure, ensuring communities have sufficient legal representation and grievance mechanisms, as well as pressuring governments and foreign businesses to ratify and enforce codes of conduct for land acquisition. Most importantly, a shift in perception is needed on part of investing nations to ensure they are willing to work alongside, rather than against, recipient nations.

Audrey Foo