Displacement, shifting land occupation and land disputes

During the North–South civil war (1983–2005) in Sudan, multiple displacements took place in the County which over time resulted in drastic reordering of land occupation and a reshuffle of the governance structures that existed prior to the start of the civil war. As SPLA forces were advancing towards Yei town by the late 1980s, most urban residents fled and settled in surrounding villages or crossed to neighbouring countries, for fear that they might be considered legitimate targets by the advancing SPLA forces. These fears originated in a common belief that the SPLA had grudges against the people of Equatoria for their support to decentralisation policies in the early 1980s, which had resulted in severe violence against Equatorians after the 1983 rebellion (see Scott Reference Scott1985; Branch & Mampilly Reference Branch and Mampilly2005). In January 1990, SPLA forces succeeded in temporarily taking control of residential areas in Yei town before being forced out by the SAF. While withdrawing, SPLA forces forcefully took along any remaining civilians in the town, and resettled them in the border town of Kaya, which they had captured a few days earlier.

Yei town remained a battlefield between SPLA and SAF until it was captured by the SPLA in 1997 and turned it into its headquarters (JZ 2012 int.). This attracted displaced people from other war-affected areas who were sympathetic to the movement to settle in the area. Alongside, soldiers moved in, either to join their commanders or families (see Sluga Reference Sluga2010). Effectively, successive movements of populations resulted in an almost complete replacement of the pre-war inhabitants of Yei town by a combination of soldiers and civilians from other communities, most of whom were from the Dinka communities. Importantly, the residential areas that came about since the arrival of displaced people and migrants developed largely along ethnic lines, each being mainly inhabited by people with shared ethnic backgrounds. This had important consequences later on.

During the interim period (2005–2011), the relative peace and security brought about by the CPA encouraged most of those who had fled Yei during the war to return. In most cases, returnees found their houses and land occupied by soldiers, civilians and migrants from elsewhere. As mentioned earlier, the Land Act of 2009 stipulates that land unlawfully occupied by others should be returned to the pre-war owners, with due compensation for investments made on the land. It should be observed that many returnees and displaced people manage to come to agreements, either through negotiated settlement or through arbitration. Those who could pay for the needed compensations did so and those who could not abandoned their claims altogether (IPCS 2012 int.). Nonetheless, in a significant number of cases, the restitution process was problematic and contested.

First of all, attempts by the pre-war owners to reclaim their land were faced by strong and sometimes violent resistance from the ‘new settlers’, both soldiers and the IDPs (De Wit Reference De Wit2004; Pantuliano Reference Pantuliano2007). Often, soldiers resisted restitution of the land, claiming that ‘we will return your land [only] in exchange for buckets of blood’ (see Leonardi Reference Leonardi2011), phrases interpreted by returning pre-war landowners as threats to kill. Local narratives recount how various returnees lost their lives in the process of reclaiming their land. As a result of the history of repopulation of the area during the war, soldiers frequently reside alongside the IDPs and migrants from elsewhere. This contributes to strong relations between the two groups, who share a feeling of having stayed together as ‘comrades’ during the wartime. Moreover, frequently, IDPs in most settlements belong to the same ethnic group as the soldiers. Consequently, soldiers sometimes come to the aid of IDPs and migrants in resisting land claims of the returnees (AD 2012 int.; JE 2012 int.; PS 2012 int.). As a result of this, land disputes often pitch communities of returnees against communities of displaced (see Martin & Sluga Reference Martin and Sluga2011: 11). Though the SPLA is often depicted as Dinka-dominated, not all soldiers, displaced people and migrants are Dinka. Even then, among the returnees – many of whom are Kakwa – displaced people, migrants and soldiers are increasingly perceived as all belonging to the same group involved in land grabs and violence against host communities (MT 2011 int.).

Moreover, displacement-related land disputes have become persistent, as displacement has become more or less permanent. Many displaced people who arrived during the war are still around, while violence in other parts of South Sudan during the interim period resulted in new arrivals (ICG 2009). In addition, various returning refugees preferred to settle in Yei County rather than to return to their home areas. The relative peace in the area brought economic activity, which further stimulated migration of people from elsewhere, as well as a movement from the rural areas to the town.

Crucially, the displacement-related land disputes are difficult to deal with as land-governing institutions lack legitimacy, or the power to enforce legislation, while there is disagreement about who should be in charge of land governance, and how to determine legitimate claims to land ownership.

Displacement and contested land-governing institutions

Before the start of the civil war in 1983, land governance in Yei was based on local customs prevailing among the Kakwa ethnic community, which constitutes a large part of the population. As in other parts of South Sudan, land in most parts of Yei was communally owned, and an individual's land rights were acquired through one's membership of the land-owning community. A land custodian, locally known as ‘Monye Menu’, managed this community land and advised chiefs or government institutions in relation to land matters. Outsiders could enjoy secondary land rights as long as they adhered to the traditional norms of land use (RL 2013 int.). In contrast, residential pieces of land in Yei town were allocated and regulated by the local government authorities. Unlike in rural areas, land allocated by local government authority was usually gazetted, demarcated and registered. Local government authorities charged service fees and taxes (AD 2012 int.). If more land was necessary, government authorities negotiated this with surrounding land-owning communities in return for traditional ‘gifts’ locally known as ‘kewatat’ (AD 2012 int.).

As described earlier, when SPLA forces advanced to Yei in the late 1980s, most chiefs and other authorities involved in local (land) governance fled the area. To address the institutional vacuum created by their absence, SPLA appointed new chiefs, some from local communities and others from communities of IDPs who settled in Yei. While the earlier chiefs were acknowledged by their community for their ability to negotiate and pass convincing judgements, the SPLA was more concerned about chiefs' capacities to provide young conscripts for SPLA-allied militias, and collect food for the SPLA's fighting forces (e.g. Leonardi Reference Leonardi2007). Additionally, with the return of stability after 1997, and the incremental settlement of displaced and migrant communities in town, the new residents started to elect chiefs from their own ethnic groups, or appointed chiefs from among the local residents who had not fled. In addition to their roles in conflict mitigation and resolution, these ‘new chiefs’ were also tasked with the re-allocation of the vacated lands to the new residents.

The Land- and the Local Government Acts of 2009 acknowledged these parallel systems of land governance. The Acts give chiefs the authority to solve land conflicts in rural areas and peri-urban centres, as well as small-scale land conflicts in urban areas. The jurisdiction of government courts is limited to registered lands in urban centres. In the case of Yei, this implies that the authority of the government court to deal with land conflicts is restricted to a few residential areas within the town. In most parts of Yei, land disputes fall under the responsibility of chiefs' courts, which base their judgements on ‘local custom’ of the traditional landowners.

Nonetheless, the multiple displacements that occurred in the area during the war periods had a significant impact on the legitimacy and authority of land-governing institutions. In the first place, parties in land disputes invoked different notions of legitimate land claims (cf. Badiey Reference Badiey2013). During the interim period and after independence, most returnees tried to reclaim their former landholdings with reference to the pre-conflict allocations by local government authorities if they lived in the town or with reference to traditional land rights if their lands were in rural areas. Migrants, displaced people, and particularly the soldiers, legitimised their land claims in various ways. Displaced people and migrants referred to the fact that land had been allocated to them by the authorities in place when they arrived in the area. Force plays an important role in how such claims are made. For instance, soldiers ignore claims from returnees, arguing that they ‘liberated’ the lands from the ‘Jalaba’,Footnote ³ and thus have the right to perpetually settle on these (see also De Wit Reference De Wit2004; Pantuliano Reference Pantuliano2007).

Unfortunately, the Magistrate's Court in Yei town could not resolve most of such cases. The Magistrate's Court is overwhelmed with land disputes, and it often takes a long time before cases are attended to. In addition, the Magistrate's Court has limited means to ensure that decisions taken by the court are implemented in practice. Moreover, resolving a land dispute is particularly problematic if one of the parties is a soldier: soldiers often ignore calls to appear in court, claiming that soldiers cannot be prosecuted in civilian courts (RL 2013 int.). There are no military tribunals in the County that might intervene in such cases. Even if the government court passes judgements on cases between returnees and those occupying their land, these are often not enforced. This is because the court lacks institutional capacity to enforce punishments, or because wealthy convicts may ‘buy their way out’ through bribery. Moreover, it seems that those with good connections to political elites or the military are often left unpunished for fear that their sentencing might result in ‘insecurity’ or ‘instability’ (RB 2011 int.).

The traditional (chief's) court system often has problems of legitimacy. Chiefs traditionally from Yei argue that they can legitimately deal with returnee-related disputes, as they base themselves on the customs of the people of Yei, and that their authority is acknowledged in the Land- and the Local Government Acts. However, displaced people and migrants often disqualify the judgements by traditional chiefs as being prejudiced against them. They argue that those chiefs, who are mostly Kakwa, are more sympathetic to the claims of their own ‘tribesmen’ or lack understanding of the norms and conventions of other ethnic communities. A related complication is that some displaced communities have been around for so long that some have appointed their own chiefs to resolve disputes and allocate land. This turns problematic when the land they have distributed is now reclaimed by returnee communities (PS 2012 int.). Moreover, returnees do not recognise the authority of these ‘new chiefs’, and object to attending their courts (GB 2012 int.; PS 2012 int.; SA 2013 int.).

Finally, there is contestation about the authority of chiefs that have been appointed during the war by the SPLA. By the end of the civil war, most SPLA-appointed chiefs kept their positions, and were acknowledged as part of local government through the Local Government Act (AM 2012 int.). However, these non-traditional chiefs often operate in disconnect from the traditional land custodians, the Monye Menu, and fail to involve them in land allocations. Returnees tend to consider decisions on land by these SPLA-appointed chiefs as illegal, and thus claim that the land should be returned to the pre-war owners. Soldiers and the IDPs on the other hand consider that the new chiefs are recognised by the state as part of local government, and that land allocations by them are thus legitimate.

To deal with the contestation about their authority, most chiefs' courts in Yei have started to organise joint court sessions, which include traditional leaders, elders and chiefs from both parties involved in such conflicts (PL 2012 int.). Though this approach has been instrumental in resolving some disputes, it is not always effective on land conflicts. Often, migrant chiefs decline from attending land-related court sessions (CC 2012 int.; PS 2012 int.).

Displacement in Yei has thus come down to a drastic reorganisation of how land is occupied, and to contestation about its governance. Obviously, part of the struggle about land-governing authority is about the efforts of the civilian administration and the judiciary to re-assume their ‘normal’ roles in a situation where there is uncertainty about these roles and the prerogatives of the different institutions involved. It is problematic that this contestation takes place in the context of an uneasy transition from military rule to civilian administration, in which the military have difficulties in getting adjusted to their new role, with the risk of such contestations turning violent.

Such contestation about displacement-related land disputes and their resolution may become strongly connected to larger political conflicts. We will illustrate this by the case of a land conflict in Giru village that broke out at the end of 2012. In this case, competing claims over land between returnees and displaced people were re-interpreted in terms of grievances of the past, and resentments against other ethnic communities, and eventually to IDPs in general. As a consequence, a local dispute that started between neighbouring families quickly escalated to a wider conflict that threatened the security of the entire town.

The politics of identity and perceptions of displaced

Identity has come to play an important role in the tensions around land between returnees, displaced people, migrants and soldiers. To returnees, changing land occupation and land governance effectively comes down to a consolidation of identity and hence of authority over territories by people from outside their community. In the context of Yei, the result is that returnees started to question the extent to which displaced people are vulnerable victims that genuinely fled civil violence elsewhere, or instead are part of a political agenda to grab their land. Such suspicions were especially aroused about displaced people belonging to the Dinka ethnic community, but are increasingly being associated with those displaced from other ethnic groups.

To understand this dynamic, we need to take into account the political history of South Sudan, notably the historical grievances by the people of Equatoria against the Dinka and fears of imminent ‘Dinka dominance’. This fear is a legacy of the period following the Addis Ababa agreement of 1972, which ended the first North–South civil war in Sudan. The agreement resulted in the establishment of a semi-autonomous Southern Regional Government. Yet, elites from other ethnic groups perceived that the Dinka were overrepresented in the regional government (e.g. Dreef & Wagner Reference Dreef and Wagner2013). This resulted in vigorous campaigns, particularly by political leaders from Equatoria, to administratively decentralise the South in order to achieve ethnically balanced representation in government institutions (Scott Reference Scott1985; Dreef & Wagner Reference Dreef and Wagner2013). This proposal was opposed by Dinka politicians, and resulted in a rift within the regional government along ethnic and regional lines (e.g. Johnson Reference Johnson2003). Even then, it was pushed through by President Nimeri, who decreed to divide the South into the regions of Equatoria, Upper Nile and Bahr el Ghazal, serving the interests of northern elites who had been opposed to a semi-autonomous status for South Sudan in the first place (Scott Reference Scott1985; Branch & Mampilly Reference Branch and Mampilly2005: 5).

However, implementation of the decentralisation policies became very contentious. Rather than an administrative decentralisation as suggested by its proponents, communities and government institutions in the three regions started to send away government officials to their regions of ‘origin’, sometimes violently. Even if such measures were meant as purely administrative and to promote lower-level officials to work in their respective regions, in practice, members of ethnic groups were forced to return to their ‘ancestral regions’. This resulted in increased tensions within the South among different communities (Branch & Mampilly Reference Branch and Mampilly2005). Many people in Equatoria came to believe that the 1983 rebellion by the SPLA, which was dominated by the Dinka, had primarily been to take revenge on the Equatorians for pioneering the division of the South, rather than to liberate Sudan from the grip of the northern ruling elites (Scott Reference Scott1985; Dreef & Wagner Reference Dreef and Wagner2013). Such perceptions were consolidated by the high levels of brutality and cases of human rights violations by SPLA soldiers in various parts of Equatoria during the early stages of the civil war (e.g. Branch & Mampilly Reference Branch and Mampilly2005).

Against this historical background, to many of the returning refugees in Yei, the large presence of Dinka among the displaced and soldiers in Yei and elsewhere in Equatoria is not a mere coincidence but rather a political strategy to reverse the decision that chased Dinka communities out of Equatoria more than three decades ago. Further evidence for this is found in the continuation of Dinka resettlement in Yei even after the 2005 peace deal, their involvement in various cases of land-grabs, and the support displaced people get from presumably Dinka soldiers to resist evictions by returning landowners. Statements used by some soldiers such as ‘we liberated you and the land’ or ‘you must pay buckets of blood to get back your land’ are often quoted by returnees to justify these perceptions. The recent presidential order to increase the number of states to twenty-eight is another confirmation to some Equatorian elites that the central government aims to ‘wipe out’ the name Equatoria, as none of the newly created states bears this name.

This history certainly came to play a role in the conflict in Giru as well. It is important to mention that the SPLA-officer, the main protagonist in this conflict, was not the ‘usual suspect’ of a displaced Dinka, but belonged to the Kuku ethnic group, a Bari-speaking community, just like the Kakwa, to which the family of returnees belonged. But playing on the historical grievances between the people of Equatoria and the Dinka and generally the military, the SPLA-officer came up with the allegation that the Kakwa community was planning to attack ethnic groups that had come from outside Yei. This allegation turned the conflict into one between Dinka and Kakwa, as well as between the army and the people of Equatoria. And when the violence reached its climax, the soldiers patrolling the streets of Yei, who were mainly from the Dinka community, harassed and assaulted everyone from Equatoria they came across, irrespective of whether they belonged to the Kakwa community or not.

Likewise, the evolution of land governance in the area is interpreted as serving the interests of displaced and migrants. As described earlier, after the take-over of Yei by the SPLA, in the absence of the original inhabitants and their chiefs, the military authorities appointed new chiefs, some from local communities, others among the displaced and migrants. The new chiefs were also given the authority to allocate pieces of land to the needy displaced and soldiers, effectively bypassing other authorities customarily involved in land allocation, notably the traditional land custodian, the Monye Menu. In the case of Giru, the headman appointed by the SPLA happened to be from the Kakwa, and related to the traditional landowners before the war. Nonetheless, the original residents disqualified his role in allocating land without properly consulting the Monye Menu. In the eyes of most returnees, land allocated by the new chiefs is irregularly acquired, amounting to land grabbing, and must be returned to the pre-war owners. For the soldiers and the displaced on the other hand, the new chiefs are recognised by the state as part of the local government, and whatever land they allocate is legal. When making his case at the magistrate court in Yei, the SPLA officer involved in the Giru conflict argued that he had legally acquired the land from the legitimate headman of the village, who after all is recognised by the SPLM establishment.Footnote ¹¹

Moreover, returnees increasingly associate the displaced with soldiers, which results in blaming the displaced –alongside the soldiers– for their involvement in land disputes. The identification of one with the other is an outcome of patterns of displacement and resettlement during the war. The fact that the town was deserted by its civilian population when the SPLA ‘liberated’ Yei meant that the displaced communities, who were seeking for security to be settled alongside the soldiers, created ‘camp-like’, mixed settlements. Such camp-like settlements in which displaced people and soldiers lived together resulted in the development of close social relations between those groups. Currently, the social closeness works against the displaced, who are now seen as collaborating with the soldiers in what the returnees consider ‘irregular’ acquisitions of land. Indeed, various instances occurred where soldiers and the displaced cooperated to consolidate their claims to the land they occupied during the war. Again, the fact that a majority of both the displaced and soldiers are Dinka (e.g. Sluga Reference Sluga2010) makes distinguishing the displaced from the soldiers even more difficult, and contributes to blanket generalisations of the misconduct by the different groups along ethnic lines. In the case of Giru, to the returnee community of Yei town, it came as no surprise that the senior SPLA-officer could easily mobilise for violence, and organise demonstrations at the Commissioner's office, as the displaced were seen as his affiliates.

Finally, what contributes to the perception that the displaced and migrants are an occupying force is that temporal displacement seems to turn into permanent settlement. While at the end of the war, pre-war residents hoped that the displaced would eventually return to their areas of origin, they now observe that many of them stay, and that even more displaced arrive and settle in the County. Most of the new displaced fled from violence during the interim period, like in Jonglei State (JE 2012 int.). Local residents argue that, even if the newly displaced genuinely fled from violence, they could as well settle in safe areas closer to the war-affected areas they come from, rather than travelling all the way to settle in Yei (IPCS 2012 int.). Furthermore, some locals believe that some of the new displaced have moved from areas which are relatively safe (CA 2012 int.). Considering the fast urbanisation of Yei at the time of the fieldwork, the continuity in settlement of displaced people is likely a result of economic opportunities in the County. Yet, the continuing arrival of displaced people and migrants contributes to negative perceptions from the returnees. Returnees increasingly raise the question whether the ‘new IDPs’ are actually ‘victims’, being people that have been displaced by violence, or ‘migrants’, that seek economic opportunities at the disadvantage of the returnees (CB 2012 int.).

Unfortunately, these developments – the notion that displacement actually contributes to the reoccupation of territory by the Dinka, a perceived closeness between the displaced and the military, and growing fear among returnees that the displaced may settle in the County on a permanent basis – contribute to the fact that displaced people are now associated with a political agenda of claiming territory. Incidents like the Giru case, which are seen to exemplify the close relationship between the displaced and soldiers, tend to be generalised to the whole community of displaced people, and as such result in widespread violence.

Moreover, such perceptions affect all the displaced: also those that lack the backing of military associates or political affiliations to make claims to land. This has several unfortunate consequences. Even those displaced that are genuinely seeking refuge from violence in their own communities may be denied victimhood. Moreover, such perceptions impact the extent to which their legitimate claims on land are taken seriously, or whether they may be able to get what they are legally entitled to, such as compensation for investments in the lands they return to the owners.

It was evident that such perceptions of the displaced were also shared by representatives from the government and other institutions that intervened in the Giru case, and had consequences for the ways they dealt with the conflict. A clear example is the reluctance of the County authorities to order the police to protect the displaced during the violence resulting from the Giru conflict. Another instance is the apparent avoidance of the Payam court of attending to the complaints from the displaced. The prevailing negative labelling of displaced people might also explain the reluctance of NGOs present in the area to protect the displaced in the Giru case or to assist them to resettle elsewhere.

Such selective intervention by government institutions further fuels an already politically sensitive situation. When the County and Payam authorities failed to listen to their pleas, the displaced in Giru village interpreted this as taking sides with local communities. Moreover, it is increasingly difficult for local conflict resolution institutions to address disputes that are no longer understood as between individuals but as between different communities. The failures of land-governing institutions to deal with these conflicts may contribute to mobilisation along community or ethnic lines, as shown by the case of Giru.