EMMANUEL ADIL ANTHONY’S LAND GRABBING CONTROVERSY: A GOVERNOR AT WAR WITH CUSTOMARY LAW IN CENTRAL EQUATORIA STATE

At the heart of this controversy lies a fundamental constitutional doctrine: land belongs to the people of South Sudan. Articles 169 and 170 of the Transitional Constitution (2011, as amended) does not whisper this principle, it proclaims it. The State, therefore, is not the owner of community land; it is its trustee. And a trustee who converts trust property into private or administrative gain without due process is not governing, it is trespassing under the colour of law.

The attempt by the Government of Central Equatoria State through the office of Governor Emmanuel Adil to dismiss the allegations as “false, baseless, and politically motivated” is, with due respect, a rhetorical refuge devoid of legal substance. Courts do not adjudicate reputations in land; they adjudicate rights. And the rights in question here are neither speculative nor ornamental, they are anchored in customary tenure, fortified by statutory law, and sanctified by the presence of ancestral graves.

Let us be unequivocal: burial grounds are not decorative relics; they are juridical signposts of historical possession. While common law prudently refrains from treating graveyards as conclusive proof of absolute ownership over entire parcels of land, it accords them immense evidentiary weight as proof of long-standing familial occupation and control.

This principle is not novel. In Alexkor Ltd and Another v The Richtersveld Community and Others [2003] ZACC 18; 2003 (5) SA 460 (CC), the Constitutional Court of South Africa affirmed that customary land rights constitute real rights equivalent to common law ownership, arising from exclusive beneficial occupation regulated by indigenous law. This is a landmark South African Constitutional Court judgment that recognized indigenous communal land rights, including mineral rights. It established that indigenous rights survive colonial annexation and are fully protected under the Restitution of Land Rights Act.

Similarly, in Omito & 5 Others v Attorney General [2017] UGHCLD 85, the High Court of Uganda held that actual possession, through residence, cultivation, or burial, constitutes prima facie evidence of customary ownership. In this case, the High Court of Uganda, Land Division reaffirms the legal protection of customary land tenure against unlawful state encroachment. The case established that the government cannot forcibly occupy customary land without giving prior, fair compensation, and held the state vicariously liable for tortious trespass committed by its military personnel.

In addition, the High Court of Australia’s ruling in Mabo v Queensland (No 2) [1992] HCA 23 legally overturned the doctrine of terra nullius ("land belonging to no one") by establishing that Australia was inhabited and governed by indigenous laws prior to British settlement. By declaring terra nullius a legal fiction, the landmark 6-to-1 majority decision introduced the doctrine of native title into Australian common law.

In Australia, when British colonists arrived in 1788, they acted as if the continent was empty or lacked a civilized system of law. This concept used to be part of international legal assumptions the British Colonists used to justify the absolute acquisition of both sovereignty and land ownership by the Crown. Thus, it is the same concept, which the former Liberators of South Sudan and their collaborators are trying to apply in Equatoria Region.

However, the drafters of the Transitional Constitution of South Sudan were aware of the true position of the law in this area. Hence, they made sure that every land irrespective of where it is located, belongs to the people. This is supported by the fact that every land bears the traditional name of those who are found where it is located. This is the justification of the recognition of customary land.

Indeed, the law is very clear in drawing a line against exaggeration when it comes to the proof of the ownership of or interest in the customary land.  In Kiwalabye v Senjobe (Civil Appeal No. 17 of 2021) [2023] UGHCLD 245, the court held that burial grounds create a family encumbrance that must be preserved, even where broader ownership is contested. Thus, while graves may not crown ownership absolutely, they erect an impenetrable legal barrier against arbitrary state interference.  Against this jurisprudential backdrop, the actions attributed to the State authorities of Central Equatoria of surveying, allocating, or attempting to repurpose land containing ancestral graves without transparent consultation, are not merely irregular; they are illegal.

The Land Act, 2009, is unambiguous. Section 8(6) elevates customary land rights to equal status with statutory titles. Section 63 prohibits the allocation of such land without prior, informed, and meaningful consultation with the community. Sections 74, 75 76 and 77 further mandate fair, prompt, and adequate compensation before any compulsory acquisition and even going to court in case the owner is dissatisfied with the processes and procedures of acquisition. These are not procedural niceties; they are conditions precedent. Their violation renders any purported allocation not just voidable, but constitutionally suspect.

The Government’s reliance on administrative actions, such as cancelling prior allocations or invoking urban planning, does not sanitize illegality. Administrative power is not a magic wand that transforms illegitimate acts into lawful ones. Under the principles of administrative law, any decision tainted by procedural impropriety, illegality, or irrationality is liable to be quashed under Article 20 of the Transitional Constitution of South Sudan read together with Sections 290 to 295 of the Code of Civil Procedure Act, 2007. The State cannot cure a defective title by issuing louder press statements.

More troubling, however, is the subtle normalization of force over dialogue by the Governor and the Government of Central Equatoria State. The suggestion, implicit or otherwise, that the State may proceed with land activities while disputes remain unresolved is a dangerous flirtation with arbitrariness. In constitutional democracies, disputed land is not seized, it is litigated. The High Court, particularly its Land Division or the Court with jurisdiction over land in Central Equatoria State, exists precisely to arbitrate such conflicts with impartiality and legal rigor as it is provided for under sections 6 (4) and (5), 7(2)  8, (3) to (7), 11,  13, 15, 16, 17, 47, 51, 61 to 64, 74, 75 and 77 of the Land Act, 2007.

Indeed, the jurisprudence of East Africa reinforces this principle. In Kampala District Land Board & Another v Venansio Babweyaka & Others (Supreme Court Civil Appeal No. 2 of 2007), the Ugandan Supreme Court emphasized that customary ownership must be proven through specific customs, historical acquisition, and community recognition, a process that only a court of law can fairly evaluate. Similarly, Ephrahim v Pastory [1990] LRC (Const) 757 underscores that even customary practices must align with constitutional principles of justice and fairness.

Ephrahim v Pastory [1990] LRC (Const) 757 is a landmark constitutional law decision from the High Court of Tanzania that established the primacy of constitutional human rights over discriminatory customary laws. In this case, the Court ruled that customary laws prohibiting women from selling or inheriting clan land violate the constitutional right to equality and non-discrimination based on sex.

The question in the present case is, what, then, is the lawful path forward? It should be noted onset that the conflict in the case is not mere propaganda, intimidation nor administrative fiat. But it is all about due process to protect the customary rights of the complainants in the land in question. As a matter of fact, there is overwhelming evidence pointing to the fact that the land in question is owned by the Nyori Vosokari family. This is because the family is armed with clear and customary evidence that points to the existence of ownership.

Thus, the pieces of both documentary and other circumstantial evidence in the custody of the Nyori Vosokari family that consists of the SPLM General Secretariat communications, the office of the military intelligence attestations, the legal instruments drafted by Yasmin & Advocates, the readiness of th eyewitnesses to testify over the ownership of the land in question and the silent testimony of ancestral graves on the land, have crossed the evidentiary threshold required to demand for judicial protection. Their claim is not a political slogan; it is a justiciable right.

Therefore, if the State genuinely believes in its own narrative that may enable it to take the land in question, then, it must submit itself to the jurisdiction of the courts. Hence, let evidence confront evidence and let law interrogate power in court. Anything less than this, is an admission, not of innocence, but of fear and taking the land under these circumstances, can constitute land grabbing by the governor and the government of Central Equatoria State. This is because when a government begins to treat customary land as disposable and burial grounds as negotiable, it ceases to be a custodian of the people’s heritage and becomes an architect of dispossession or land grabbing.  And history is unkind to such architects.

In the final analysis, this is not merely about a parcel of land in Jebel Nyoka. It is about whether the rule of law in South Sudan is a living doctrine to protect the fundamental rights of individuals or a ceremonial phrase that can be followed at the whim of the authorities. If the Constitution is to mean anything in South Sudan, then the graves of the dead must command more respect than the ambitions of the living. The law is clear. The evidence is mounting. The courts are waiting. Let the State choose: to either be governed by law, or to be trespassed by power.

The writer, Hon. Juol Nhomngek Daniel, is a South Sudanese legislator, constitutional lawyer, Administrative Law and human rights advocate. He is Academic, Lecturer and Deputy Dean at the College of Law, Starford International University College in Juba. He is the member of the Sudan People's Liberation Movement-in-Opposition (SPLM-IO).