5.1 Current Policies and Laws Governing Natural Resources
Since the signing of the Comprehensive Peace Agreement (CPA, 2005) and the subsequent independence in July 9, 2011, the Government of the Republic of South Sudan has developed laws and policies governing Natural Resources (land, water, forestry, etc.) along with establishment of institutions aimed at restoring peace and stability. Institutions such as the Statutory and Customary Courts and the Lands Commissions were established at the three levels of governments to respond to legal matters including disputes over water point, grazing land, wildlife, fishing points and forestry which are common in CES. Below are some of the reviewed existing laws, policies and acts on Natural Resource Management.
5.1.1 The Transitional Constitution of the Republic of South Sudan, 2011
At Independent in 2011, the National Legislative Assembly of the Republic of South Sudan amended the Interim Constitution of Southern Sudan, 2005, it was adopted and thereafter referred to as the “Transitional Constitution of the Republic of South Sudan, 2011,” and shall be the supreme law by which the independent and sovereign South Sudan shall be governed during the Transitional Period, and undertake to abide by, respect and defend it.
Under Article 14 “The Environment” the Transitional Constitution states in part (1) that every person or community shall have the right to a clean and healthy environment. While in part (2) states that every person shall have the obligation to protect the environment for the benefit of present and future generations. And, in part (3) every person shall have the right to have the environment protected for the benefit of present and future generations, through appropriate legislative action and other measures that: (a) prevent pollution and ecological degradation; (b) promote conservation; and (c) secure ecologically sustainable development and use of natural resources while promoting rational economic and social development so as to protect genetic stability and bio-diversity. Also, in Part (4) that all levels of government shall develop energy policies that will ensure that the basic needs of the people are met while protecting and preserving the environment. Therefore, this NBSAP is in sync with the expectations of the current constitution of the Republic of South Sudan.
5.1.2 National Biodiversity Legislation
220.127.116.11 Pending legislation and policies
Many of the key national legislations for biodiversity management in South Sudan are still in the form of Bills before the National Legislative Assembly. The Bills include: the National Environmental Protection Bill 2013; The Draft Wildlife Bill 2013 and the Wildlife Conservation and Protected Areas Bill 2015; The Water Bill 2013; and the Forests Bill 2009. The Draft Policies include: the Draft National Environment Policy 2013; and the South Sudan Wildlife Conservation and Protected Area Policy (Draft of June 2012);
The Environmental Protection Bill 2013 is a key pending legislation that aims to protect the Environment in South Sudan and to promote ecologically sustainable development that improves the quality of life. It grants the right to a decent environment to every person and the concomitant right to bring an action to enforce that right if it is threatened as a result of an activity or an omission. The Bill if enacted into law will empowers the Ministry of Environment and Forestry to supervise and co-ordinate all matters relating to the environment and to be the principal instrument of government in the implementation of all policies relating to the environment including biodiversity. This will include stock taking of the natural resources in the country and their utilization and conservation; examining land use patterns to determine their impact on the quality and quantity of natural resources, and; carrying out surveys which will assist in the proper management and conservation of the environment. That means establishing an Environmental Information Centre that will undertake an inventory of South Sudan’s biological diversity and ecosystems as a priority for the Ministry.
The Wildlife Conservation and Protected Areas Bill 2015: The Bill covers all matters concerned with Wildlife Conservation, the establishment and management of protected areas and the sustainable management and conservation of South Sudan’s natural heritage and wildlife for the benefit of its citizens.
The Draft Wildlife Bill 2013 establishes an autonomous South Sudan Wildlife Service (SSWS) as proposed by the Constitution with a board of trustees and headed by a Director-General both appointed by the President. One of its key functions will be coordination with other relevant authorities of all issues affecting wildlife management including issues of security, infrastructure, private investment and land use planning. This will be done by ensuring the enforcement and implementation of the law with respect to the use of wildlife, the management of protected areas and other uses of natural resources.
The Forests Bill 2009 is meant to operationalize the Forestry Policy covering all matters concerned with all forests and woodlands and all forest reserves in the country. The Forests Bill provides for a governance structure for all the forests in the country, national sustainable forest management standards, certification systems and schemes, and private and voluntary standards; procedures and decision-making processes, and; complaint and appeal mechanisms.
The Water Bill 2013: provides for the protection of water sources from pollution, erosion or any other adverse effects by creating Protected Zones within a catchment draining to, or above any water facility forming part of a water supply or any catchment, lake, reservoir, aquifer, wetland, spring, or any other source of water (section 34). The Bill aims to develop procedures for prioritizing allocation of water resources for different social, economic and environmental uses, efficiency, system reliability and environmental sustainability principles. It also aims to conserve available water resources, to manage water quality and to prevent pollution of ground and surface waters; manage floods and droughts and mitigate water-related disasters, and; establish appropriate management structures including mechanisms for inter-sectoral coordination and stakeholder participation.
The goal of the Draft National Environment Policy 2013 is to ensure the protection, conservation and sustainable use of the natural resources of South Sudan without compromising the tenets of inter-generational equity. This includes maintaining the balance between the environment and development needs through sustainable use of the natural resource base; creating public awareness of the importance of protecting the environment; and providing the basis for formulation of biodiversity and ecosystem protection and management policies, laws and guidelines.
The South Sudan Wildlife Conservation and Protected Area Policy (Draft of June 2012) Envisions an effective and professional Wildlife Service that will guide the sustainable management and utilization of natural resources, including land, water, fauna and flora for the benefit and enjoyment of the people of South Sudan. It provides for the formulation of legal frameworks for rationalizing the protected area system and wildlife utilization and benefit sharing. It also recognizes and addresses the following:
18.104.22.168 Current policies and legislation
The Land Policy
According to CPA peace process, Sudan and South Sudan recognized the need to develop land policy, legislation, functioning institutions and supporting services related to land resources. The CPA mandated the establishment of the National Land Commission (NLC) and the South Sudan Land Commission (SSLC) to develop land policies and draft legislation to clarify and strengthen land administrative systems and the rights of landholders.
The Transitional Constitution of 2011 states that all land in South Sudan is owned by the people of South Sudan, and charges the government with regulating land tenure, land use and exercise of rights to land. The constitution classifies land as public, community or private land, and requires the GRSS to recognize customary land rights when exercising the government’s rights to land and other natural resources. The constitution does not clarify the extent to which customary rights can limit government’s rights, but does require that all levels of government incorporate customary rights and practices into their policies and strategies. As a result, the Land Act (2009), the Local Government Act (2009) and the Investment Promotion Act (2009) were developed to establish the institutions and mechanisms of governance that would address pressure points and fill vacuums created by conflict, uneven development and lack of transparency and accountability in resource governance (GRSS 2011).
The three laws mentioned above established the fundamental framework for the fair and transparent administration of land rights in South Sudan. For example, the Land Act regulates land tenure and equally recognizes rights to customary, public and private tenure; the Local Government Act defines primary responsibilities of local government and traditional government authorities in the regulation and management of land, which includes charging customary institutions with particular responsibilities for administering community land rights.
On the other hand; the Investment Promotion Act establishes procedures for facilitating access to land for private investment, including by foreign investors, in ways that balance the interests of both current right holders and investors. Although a framework has been developed, government officials have a poor understanding of the laws and lack the capacity to interpret and carry them out. There is also a lack of awareness by the population as a whole, which further impedes progress (GRSS 2011).
The SSLC also developed a draft Land Policy that strengthens the rights of land holders, communities and citizens within the new framework and guidelines established by the Land Act (2009). It emphasizes the importance of access to land as a “social right,” a feature of many customary land tenure systems that allows community members to access land irrespective of wealth or economic status (Deng and Mittal 2011).
The Customary laws have governed the use of land in South Sudan for centuries, with each ethnic group applying its own laws relating to land and land rights within its own territory. Land laws enacted by governments in Khartoum throughout the colonial and post-colonial periods do not appear to have seriously affected customary tenure systems in the South. Thus, on the whole, customary laws and practices remain largely intact. Although they vary from community to community, customary institutions and traditional mechanisms continue to govern the access, use and allocation of land (USAID 2010).
In line with the above, some of the highlights of the Land Act, 2009 of South Sudan are as follows:
Section 58 states that community Land may be registered in the name of:
• A Community, or a family, in accordance to customary practice applicable;
• A clan or a family in accordance with the customary practices applicable;
• A community association and a traditional leader in trust for the community and with the consent of the members of the community’.
Section 63 provides that: Activities to be carried out by the investors on communal land shall reflect an important interest of the community or people living in the locality; the project shall contribute economically and socially to the development of the local community; the concerned national and state government institutions including investment authorities will consult with the communities concerned on any decision related to the land that the project intends to acquire and the view of the community will be duly taken into consideration.
Section 69 provides that: ‘Individuals, communities and organizations will protect land in order to keep it in a productive condition in which problems such as land degradation is adequately managed in accordance with the provisions of Article 44 of the ICSS’. Consultation with the local authorities, traditional leaders and other levels of the government in South Sudan is thus very important. In this process, all the stakeholders have a role to play.
The Water Policy
In December 2007, the GRSS adopted the South Sudan Water Policy, which states that access to sufficient water of an acceptable quality and quantity to meet basic human needs is a human right. The policy provides that: the right to water shall be given the highest priority in the development of water resources; rural communities shall participate in the development and management of water schemes; and the involvement of NGOs and the private sector in water projects shall be encouraged. Apart from customary laws governing access to grazing and fishing grounds for communal use at a local level, currently there is no formal system for allocating water resources for different social and economic purposes in the country.
Forestry law and policy
The current legal framework for forest management in South Sudan consists of: the CPA; the Interim National Constitution; the Interim Constitution of South Sudan; a number of laws at the national level enacted prior to the signing of the CPA (including the Forestry Commission Act) (2004), the Forestry Training Centre Act (2004) and the Timber Utilization and Management Act (2003); ministerial decrees and orders; and customary law.
In Forestry Act 1986 (Laws of the Sudan): ‘All gazetted National Forestry Reserve and those that are in the pipeline shall be directly owned and managed by the National Forestry Corporation of the Government of Sudan. This act proved to be weak and no longer reflect the current reality in South Sudan because the law is outdated and geared toward a “command and control” approach, with little reliance on civil society as a partner in forest resources management and biodiversity conservation. Authorities with jurisdiction to manage and protect biological resources (including forest resources) require an up-to-date legal framework to enforce and prosecute illegal activities (GRSS 2011c; GRSS 2010; TerrAfrica 2010; USAID 2007).
In October 2007, the Ministry of Agriculture and Forestry (MAF) produced a policy statement document that reads:
• Under Section 5.3.2 Number 3, the MAF will undertake and build-up databases on plantation and natural forestry by conducting forestry surveys, inventories, and gazette new forest lands.
• Under Section 5.3.2 Number 4, GRSS will assume responsibility of all National Reserve Forests in South Sudan and will ensure that they are protected and managed sustainably.
However, some progress has been made so far. In August 2010, the GRSS approved a new Forest Policy that provides guiding principles and strategies to address sector constraints and challenges to ensure the optimal contribution of forestry resources towards sustainable growth and development of the country. Community land is defined by the Land Act (2009) to include forestland that has been held, managed or used by a specific community.
Other related acts to forestry management include: South Sudan Financial Management and Accountability Act which was passed in December 2011, with the aim of strengthening the process of accountability and ensuring transparency in resource management.
The Environment Protection Act 2001
The current legislation for Environment Protection is the pre-independence Environment Protection Act 2001. This is the principal legislative policy framework of former Sudan that provides uniform rules of substance and procedures on protection of the environment and use of natural resources. The Act also provides definitions and clarifications regarding natural resources management, pollutants and sources of pollution, and endorses the ‘Polluter Pays’ principle. Section 4 sets forth the environmental objectives of the Sudan as follows:
• Protection and preservation of the natural environment, or the basic elements and the social and cultural systems thereof, in achievement of safety and sustainable development for the benefit of future generations;
• promoting the environment and sustainable use of the natural resources, for the purpose of sustainable development;
• linking the issues of environment and development; ascertaining the responsibility of the competent authority for protection of the environment, and promoting the need for achieving such protection; and
• Establishing the role of the competent authority and the organs belonging thereto, and enforcing their roles.
Recently the Ministry of Environment, GRSS has developed a draft Environmental Policy and Environmental Bill (2010) that, if enacted, will provide guidance on sustainable management of environmental resources.
Wildlife Conservation and National Parks Act, 2003
The current legislation for Wildlife Conservation and Tourism is the pre-independence Wildlfe Conservation and National Parks Act 2003. GRSS has maintained pre-CPA Acts that provided for the protection of wildlife and associated habitat in designated National Park Areas. The followings are some of the extract from the acts:
Section 14 states that ‘except with the written authorization of the Director General, of which authorization shall be given only in the interest of the proper management and development of the national park: it is unlawful to;
• Obstruct, divert or pollute any river, pool, lake or other points of water;
• Perform any act or engage in any other activity likely to destroy, endanger or disturb wildlife in the national park or to destroy or shelter or alter its natural habitat and environment’
Section 15 states that: ‘except with the written authorization of the Director General or officer in charge of the national park concerned, and subject to the conditions of any such authorization, no person shall bring into the national park any weapon, ammunitions, explosives, traps, snare or poison, or be in possession of any such articles within the national park’
Local Government Act 2009
This Act stipulates the followings:
• Section 19 (2) States that ‘the traditional leaders shall represent their people in developing legislatures on natural resources management.
• Section 19 (3) states that ‘The Boma shall be the main domain of the traditional authority where traditional leaders perform their administration and customary function.
• Section 19 (4) states that ‘ in the Town Council, the traditional authority shall perform its administrative and customary functions within the quarter council, and the local government act 2009 also defines the traditional authority, customary law, the authority of traditional chiefs in South Sudan .
• Article 174 (1) (ICSS) sates that ‘the institution status and role of traditional authority, according to customary law, are recognized under this Constitution’ and ‘The Legislation of the states shall provide for the role of traditional authority as an institution at local government level on matter affecting local communities’.
• Article 174 (3) (ICSS): states that ‘The courts shall apply customary laws to the Constitution and the law’.
• Article 175 (2) (ICSS) states that ‘Legislation at the South Sudan and States level shall provide for the establishment, composition, function and duties of the Councils of Traditional Authority Leaders’.
• Article 180 (4) (ICSS) states that ‘All lands traditionally and historically held or used by local communities or their members shall be defined, managed and protected by law in South Sudan ’.
The Fisheries Policy (2006 – 2011) was developed after the signing of the CPA by the MARF to provide guidelines, support the fishing structures to better coordinate and harmonies the sector mandate and to implement the plan of action to achieve sustainable development. However, due to inadequate institutional capacity and limited financial resources the policy has not been fully implemented.
Additional General Policies for Agriculture and Forestry (2010)
In order to achieve food security through transforming the subsistence agriculture system to a surplus production system well connected to markets and guarantee households access to food, the ministry had developed policies related to natural resources management. These include the following:
• Declaration of self-reliant food policy for South Sudan.
• Mobilization, organization and empowerment of local farmers, cattle owners, fishermen and entrepreneurs for active and effective participation in agricultural reform and food self-sufficiency program.
• Immediate allocation of at least 10 percent of the oil revenue for agriculture, forestry, fisheries and livestock development.
• Investment in agricultural research and extension services. • improvement of farmers' and entrepreneurs' access to improve agriculture and livestock inputs (technology, seeds, veterinary medicines etc.), services (extension, microfinance, information) and markets such as feeder roads, transport, storage systems and information
• Development of rural and agriculture market infrastructure and services
• Promotion of investment in the agriculture and livestock sector by exemption of agriculture inputs and outputs from taxes
• Promotion of water management and agriculture production under irrigation systems.
• Promotion of private sector and foreign investment in agricultural sector.
• Promotion of environmental protection and conservation by enacting laws and encouragement of good agriculture and livestock production practices.
Minerals law and policy
The Interim constitution of South Sudan states that all levels of government will protect and ensure the sustainable management and utilization of minerals, including oil. GRSS recently signed the Petroleum Act (2012). The Act states that ownership of petroleum is vested in the people and to be managed by the government for their benefit. The Act also emphasizes maximum petroleum recovery within a framework that seeks to ensure the safety, security and protection of the environment, and requires transparency, accountability and ethical behaviour on the part of both licensees and the government (SSIS 2012).
The Mining Act of 2012 provides a framework for the management of the mining sector consistent with international standards, including licensing, environmental protection guidelines and the use of technology to ensure as much mineral resources as possible are recovered from the ground. It also provides for Community Development Agreements for Mining Licenses and environment and social provisions.
The Petroleum Act 2012
The Petroleum Act is relevant because of the increasing adverse environmental impacts associated with petroleum development in the country on the one hand, and the potential to use funds generated from petroleum sales and taxes for biodiversity management: Oil exploration is carried out mainly in the central flood plains of Jonglei, Lakes and Upper Nile States which are also endowed with vast natural resources including forests, livestock, wildlife and aquatic resources. The Petroleum Act provides that a SEIA to be undertaken by that the oil contractor or licensee in compliance with international standards to determine any present environmental and social damage, establish the costs of repair and compensation and determine any other areas of concern.
Whereas the petroleum industry in the country has express a desire for environmental compliance, the Ministry of Petroleum and Mining is still developing policies and measures to safeguards the environment and govern the oil and mining sector to include EIA, environmental sensitivity atlas, multi-institutional monitoring, hazardous waste management, restoration of drilling and campsites, and oil spill contingency plans.