understanding land investment deals in africa - Oakland Institute

South Sudan. There is a tendency for educated peopleto look down on their rural counterparts as “backwardpeasants” who are not sophisticated enough to makedecisions about investment on community land.Even in situations where there is some agreementthat the community leaders in Juba will represent thecommunity in negotiations with foreign investors, thedelegation of power to the “intellectuals” tends to be soabsolute that it precludes any meaningful communitycontribution to the negotiations.A Transfer that Exceeds AdministrativeBoundariesThe size of the land parcel that is indicated in the leaseagreements is also puzzling. The project is meant tobe located entirely within Mukaya Payam, which is oneof the five payams in Lainya County. However, LainyaCounty itself only covers an area of 345,000 ha, farless than the 600,000 ha transferred to the company.Meanwhile, none of the other four payams in LainyaCounty or the neighboring counties of Juba and Yeiwere involved in any way with the deal. According to alocal government official:“You see this land [that Nile Trading has leased],stretches over to that side of Mundri [County]. Thisinvolves several communities, and it is only a fewpeople from one clan discussing it, determiningthe fate of almost seven or eight communities.”Lainya County has a population of 89,000 people andwas a frontline between the SPLA and the Sudan ArmedForces (SAF) during the civil war. If the governmentwere to transfer the entire county to a foreign companyit would almost certainly provoke a violent responsefrom the local population. An ongoing border disputein Wonduruba Payam, another one of the payams inLainya Country, has already claimed several lives andgiven rise to a brazen attack on a GoSS minister and hisbodyguards. 91 The community’s willingness to opposea unilaterally imposed investment was reflected in astatement by a Mukaya resident: “We who are livinghere, the poor, we cannot accept for even the presidentor a minister to do any business in this community ifthe community doesn’t know about it.” 92Legal Status of the Investment AgreementThe March 2008 lease agreement predates the 2009Land Act and therefore falls outside the scope ofmost of its provisions. As a result, several aspects ofthe investment agreement that would constitute clearviolations of the Land Act, such as the failure to consultwith the local community and the failure to conductenvironmental and social impact assessments (ESIAs)prior to making any decision about the investment,do not apply. This ambiguity presented opportunitiesfor Nile Trading, Kinyeti and the AETG to legitimizetheir activities in Mukaya. Without applicable law tothe contrary, public officials in the Central EquatoriaState government were able to use their discretionaryauthority to issue the lease to the company. In responseto a question of whether the Central Equatoria Stategovernor had approved the Nile Trading lease, HowardDouglas responded:“In 2008, the administrative procedures would nothave required ‘approval’ by the Governor in the senseof your question. As with many things in political life,the Governor had the authority and access to object tothe land lease if some aspect came to his attention andfound disfavor, for whatever reason.” 93Despite Douglas’s confidence in the legitimacy ofthe deal, the Mukaya community has had some earlysuccess in forcing the government to cancel the lease.In August 2011, a delegation from Mukaya Payam cameto Juba to meet with both Clement Wani, the governorof Central Equatoria State, and Salva Kiir, the presidentof South Sudan. The community delegation, comprisedof 12 community leaders who reside in Mukaya Payam,brought with them a letter in which they “unanimouslywith strong terms condemn disavow or deny” the NileTrading lease. 94 They claimed that “the communityof Mukaya Payam as indigenous inhabitants of theirancestral Land…weren’t consulted on the matterand therefore we are not part and parcel of thedeal negotiated by the two parties.” The letter alsocorroborates the allegations that the Cooperative doesnot represent the interests of the Mukaya Community.According to the letter:“Mukaya Payam cooperative is an individualThe Oakland Institute understanding land investment deals in africa: south sudan | 26