understanding land investment deals in africa - Oakland Institute

2. LEGAL FRAMEWORKSouth Sudan’s legal framework is characterized bya high degree of legal ambiguity. Since its creationin 2005, the legislative assembly has enacted lawscovering a range of issues, but large gaps in theregulatory framework remain. The few laws that doexist are poorly disseminated and under-enforced.Without rules to guide their activities, governmentinstitutions tend to function through a combination ofdiscretionary decision-making and preexisting practice.The lack of clarity often gives rise to power strugglesamong government institutions when high profileforeign investments are proposed.Shortly after the signing of the CPA, state-levelgovernments began using the provisions relatingto decentralization and grassroots empowermentin the CPA and the interim constitution to claim theright to unilaterally manage land without involvingthe central government. The resulting confusion overreporting lines and jurisdictions among governmentinstitutions introduced opportunities for privatesector actors. Without regulatory oversight from thecentral government, investors were free to negotiateland leases with power brokers at the state level,thereby shielding themselves from national regulatoryrequirements. The fact that investments are managedalmost entirely at the state level also contributes to anoverall lack of transparency, since there is no centralmonitoring body responsible for keeping track of whois investing in what and where.Despite the weak rule of law in South Sudan, the lawsthat have been enacted during the interim periodencompass a number of key reforms, including: ceilingson land acquisitions; 46 limits on lease periods for foreigninvestments; 47 requirements for prior environmentaland socioeconomic studies; 48 requirements for priorcommunity consultation; 49 and prohibitions on nonconsensualinterference with pastoralist communities’grazing rights. 50 If properly enforced, these laws canhelp South Sudanese to begin channeling foreigninvestment toward their own development priorities.Domestic laws such as these will also becomeincreasingly important as a means of determining thereciprocal obligations when the government of SouthSudan and private investors begin to use internationalarbitration as a means of resolving their disputes.Land Act (2009)In February 2009, the GoSS formally committed itselfto community land ownership with the promulgationof the Land Act. The Land Act explicitly recognizescustomary land tenure, putting it on equal footing withfreehold and leasehold rights. 51 It adopts an expansivedefinition of community land, which includes allland “lawfully held, managed or used by specificcommunity as community forests, cultivation, grazingareas, shrines and any other purposes recognizedby law.” 52 The Land Act also allows communities toallocate land for investment purposes so long as theinvestment activity reflects an important interest forthe community and contributes to its economic andsocial development. 53 Section 15 of the Land Act laysout the procedures for allocating community land:(1)…Traditional Authority within a specificcommunity may allocate customary land rightsfor residential, agricultural, forestry, and grazingpurposes.…(5) Any allocation of a piece of land beyond 250feddans [105 ha] for commercial, agricultural,The Oakland Institute understanding land investment deals in africa: south sudan | 13