Opinion: The doctrine of 'terra nullius' is not applicable to South Sudan: The case of Ramciel
Since the formation of the Government of South Sudan in 2005 that was followed by the formation of the government of independent South Sudan, the relevance of doctrine of terra nullius has become apparent. Terra nullius is a common law doctrine later adopted in the international law. It according to Latin terra nullius means a "land belonging to nobody."
The issue of whether any land in South Sudan belongs no one was never an issue during the liberation struggle period of 1983 to 2005. But with the formation of the Government of Southern Sudan in 2005 and the formation of the government of independent South Sudan in 2011, the discourse over the land in South Sudan changed as seen in the plan to build Ramciel as the capital city of South Sudan.
Currently, there is a heated debate on social media that Ramciel is no man’s land. Those who claim that Ramciel is a no man’s land based their reasoning on the fact that Ramciel is a vast land with no inhabitants on it and because of that it is the land that belongs to no one. This argument is a reminiscence of the British colonial masters’ argument during the colonial period.
That time the British colonialists argued as they grabbed African land that since the land was not occupied permanently by any community then it belonged to no one or if the land was occupied by “uncivilized communities” in their understanding of civilization, then it is terra nullius, meaning land belonging to no one. It was under that argument the British colonialists grabbed African land and put it under crown hence large part of African land became Crown land owned by the Queen or King of England as was seen in Kenya and Uganda. This was in 18th and 19th Centuries.
In 21st Century however, we are struggling with the same question of terra nullius in South Sudan. The issue of terra nullius is still coming up as seen in the ongoing debate in the case of Ramciel in which some people are arguing that Ramciel is a no man’s land. Though this discussion can apply generally to South Sudan, I have decided to discuss the issue in the narrow sense in respect to Ramciel.
Notwithstanding anything in the above paragraph, this does not mean that what I will discuss here should not be applied to other communities in South Sudan under threats of land grabbing. The principles of law I am going to refer to during this discussion are applicable to all communities’ land under threat of grabbing in South Sudan based on specific facts prevailing in that particular case.
Coming back to the subject of this discussion, I must begin with the location of Ramciel. Ramciel is located in the former Lakes State and it currently becomes part of Eastern Lakes State in South Sudan. Ramciel is located about 250 kilometres (155.343 mi) north of Juba. It is also located on the western side of the White Nile.
Majority of the inhabitants of Ramciel are cattle keepers, which is a means of their livelihood. They move from place to place looking for pastures as the weather changes. This makes Ramciel appears as if it belongs to no person. But some people should not be misled by the fact that if the inhabitants of Ramciel lack permanent settlement on that land then Ramciel belongs to no person or no man’s land as many argue.
The implication of the argument that Ramciel is a no man’s land is that it is a territory which is up for grab. Those who put forward this kind of argument appear to suggest or invoke the principle of Terra nullius in South Sudan that it should be applied to all land which appears to belong to no one. If that is the case, then I must say that this argument is wrong and the people of Eastern Lakes State are justified to defend their land in Ramciel because the whole argument is intended or an attempt to grab the land in disregard to the pre-existing community rights.
The doctrine of Terra nullius they are trying to invoke in the case of Ramciel is no longer a good law as courts in different jurisdictions have declared it invalid. This was held in Australian case of Mabo v Queensland (No 2)HCA 23. This was a landmark decision of the High Court of Australia in 1992, which recognized a native title in Australia for the first time and ruled that the argument that when the British came to Australia the land there was terra nullius was erroneous. The ruling in this case is to the effect that indigenous land rights which had not been extinguished by subsequent grants by the Crown continued to exist in Australia up to the present.
In that case five judgments were delivered and all judges, except one, agreed that: there was a concept of native title at common law; the source of native title was the traditional connection to or occupation of the land; the nature and content of native title was determined by the character of the connection or occupation under traditional laws or customs; and native title could be extinguished by the valid exercise of governmental powers provided a clear and plain intention to do so was manifest. The decision in this case recognized that the indigenous population had a pre-existing system of law, which, along with all rights subsisting thereunder, would remain in force under the new sovereign except where specifically modified or extinguished by legislative or executive action.
The decision in Mabo case clearly shows that the indigenous communities like those in Eastern Lakes State and other parts of South Sudan have inherent rights to their land though such land may not be effectively under their occupation but as long as there is something showing that the land belongs to them then they have a right to own it. The proof of the customary ownership by the indigenous people can be shown through cultivation and marks where cattle are kept such as cattle camps. Once proved that land belong to a particular community as in the case of Ramciel, it can only be taken away in accordance with the law as provided for under the Local Government Act of South Sudan.
The court ruling in Mabo case was in December 2004 applied in the Noonkanbah people’s case in which the Court recognized the rights of the traditional owners of a 1,811 km©˜ plot of land in Western Australia. Applying the same principle in the Northern Territory, the Government granted 40 per cent of the land, which put most of its coastline in the hands of Aboriginal peoples in Australia.
Moreover, on 26 June 2014 in the case of Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para. 69, the Supreme Court of Canada in its unanimous decision made clear that “The doctrine of terra nullius (that no one owned the land prior to European assertion of sovereignty) never applied in Canada, as confirmed by the Royal Proclamation (1763), R.S.C. 1985, App. II, No. 1.”
The Supreme Court of Canada in the same case further held that the Crown title as coined by the British Colonialists, however, was burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival. … The Aboriginal interest in land that burdens the Crown’s underlying title is an independent legal interest, which gives rise to a fiduciary duty on the part of the Crown.”” This means that the interests of indigenous people in traditional land as seen in Ramciel are protected by customary law is recognized by the Constitution of South Sudan.
The ruling of the Australian High is the reflected the position of the international law in respect to land rights of the indigenous communities which have been developed in two key areas. The two areas are seen in the protection of the rights of indigenous people as well the rights of women to land. The protection involves land access and it use, which are frequently tied to the spiritual, cultural and social identities of peoples. Under the International human right law as represented in the Convention 169 on Indigenous and Tribal Peoples, the rights of the indigenous people are protected.
The above Convention was adopted by the International Labour Organization in 1989 purposely to protect the rights of indigenous people to land and to eliminate or minimize the adverse effect of the principle of no man’s land that was used by the European colonialists to grab the land from indigenous people. The Convention 169 is now legally binding on all the States of the world including South Sudan. It is reported that the Convention 169 is the only binding international instrument related to the rights of indigenous peoples and it is relevant in the present case of Ramciel of the rights of indigenous people of Ciec to land is being violated.
The Convention 169 further establishes the right of indigenous peoples in independent countries to “exercise control, to the extent possible, over their own economic, social and cultural development,” in a number of areas. The Convention includes a section on land, and requires States Parties to identify lands traditionally occupied by indigenous peoples like in the case of Ramciel and ensure that the rights to that land are protected.
In addition, the Convention provides that the State Parties (which include South Sudan) must take “measures in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities”. This is the most applicable part to the case of Ramciel.
Even if South Sudan is not a party to the Convention 169, this Convention has become part of the international customary law which is applicable to all countries in the world which are members of the United Nations. The Convention 169 therefore protects the rights of the people of Eastern Lakes State to the ownership of Ramciel.
Under the South Sudan law, the Constitution provides for the right to own land under Article 170 of the South Sudan's Transitional Constitution of 2011, which provides for the land ownership. It provides that land belong to the community. Article 28 of the same Constitution provides for the right to acquire and own property by the communities. Hence, the principles of international human rights law and in particular the principles of law that protects indigenous people as enshrined in the Convention 169 read together with Article 28 put it beyond doubt that Ciec Community in Eastern Lakes State has the right over Ramciel. This put argument to rest that Ramciel is not a no man’s land.
Having concluded that Ramciel is the land that belongs to Ciec Community in Eastern Lakes, then, in the process of acquiring it by the National Government of South Sudan, the provision of law as provided for under section 88 of the Local Government Act of South Sudan, 2009, must be observed. Thus, the authority of the Local Government Council of the County which Ramciel falls under in Eastern Lakes State must be officially involved who must in turn consult the members of Ciec Community. In other words, the Local Government Council administering Ramciel on behalf of the Ciec community must be involve to deal with the State Government and this must be done in consultation with the Community if the government of South Sudan wants to acquire Ramciel to be developed as the city of South Sudan.
After observing section 88 of the Local Government Act, the process of acquisition by the State or national Government of South Sudan of any land not only in Eastern Lakes State but in South Sudan in general must be carried out in accordance with section 89 of the Local Government Act of 2009 of South Sudan. Section 89 provides for land acquisition and the procedure that must be followed. It provides that it shall be the function of the respective council, save that the concerned council shall—
- Respect the existing customary practices, protect local heritage and observe international trends and practices in land acquisition;
- Consult the community concerned on the land acquisition or usage as the case may be; and
- Protect the rights and interests of the communities in areas within the local council, where subterranean natural resources are being explored or exploited, to ensure their rights to share in the benefits accruing from such resources.
Thus, section 89 of the Local Government Act of South Sudan recognizes the right of the communities to land not only in Eastern Lakes State but in the whole of South Sudan which the government of South Sudan must recognize and protect. This means that the government of South Sudan is duty bound to ensure that in case it wants to acquire any land, it must conduct consultation with the local communities before the land in question is acquired. Therefore, the communities have all right to reject the acquisition of their land if their concerns over the land are not properly addressed and met.
In summary, the doctrine of terra nullius is not applicable to Ramciel and South Sudan in General. In South Sudan the concept of terra nullius is not applicable as all the land has been under occupation by different traditional communities even before the independence of South Sudan. The fact that there is no permanent settlement in Ramciel or other land in South Sudan does not justify the other people to make careless statement that such land and Ramciel in particular does not belong to community.
The statement that Ramciel or any other land in South Sudan does not belong to any community stripping citizens (who do not have means to develop their land) of their right to land, which is fragrant violation of their rights to land or property contrary to article 28 of the Constitution of South Sudan, 2011.
What South Sudanese must understand is that Ramciel is a land owned by the people of Eastern Lakes State based on their tradition and customs. This means that land in Ramciel is owned by the Community in accordance with customary law. This customary law is derived from ancestors. This means that all members of a community of Ciec are entitled to land for purposes of deriving a livelihood and within that Ciec Community the right of the clan which own that area must be recognized.
In short, the people of Eastern Lakes should not be misunderstood, what they are claiming is not that the land in Ramciel should not be developed as capital city of South Sudan but their argument is that their rights to land in Ramciel must be recognized before it is developed into the capital city of South Sudan. This means that they must be consulted and assured of any benefits that come with the development of the land. If the communities in State where oil is found are assured of two percent (2%), which not the Ciec Community in Eastern Lakes? The benefits may be in term of employment.
The author, Daniel Juol Nhomngek, is a human rights lawyer and can be reached through email: firstname.lastname@example.org
The views expressed in ‘opinion’ articles published by Radio Tamazuj are solely those of the writer. The veracity of any claims made are the responsibility of the author, not Radio Tamazuj.