An Analysis of Legal Issues Related to

Land in Somaliland With reference to the VGGT

NIMCO HERSI, CAROLINA CENERINI & SISAY YESHANEW

Final Draft Report

April 2016

Acknowledgement

This report is the outcome of collaborative work of the team for the “Rebuilding

confidence on land issues” project with technical guidance and support of FAO

HQ. Credit goes to Nimco Hersi and Carolina Cenerini who relentlessly reviewed

several laws and bills of Somaliland related to land governance. The support of

Margret Vidar and Sisay Yeshanew in reviewing and providing technical inputs

as legal experts is much appreciated. The effort of the project team members,

in particular Michael Oyat (Land Tenure Officer) and Ashebir Bekele (Territorial

Development Consultant for their inputs into the analysis. Last but not least,

much appreciation to Paolo Groppo, Lead Technical Officer for the project for

his endless guidance and support to all aspects of the project.

The analysis has been possible by the generous contribution made by the

European Union.

Disclaimer

FAO Legal Papers is a series of articles and reports on legal issues of

contemporary interest in the areas of food policy, agriculture, rural

development, biodiversity, environment, land and natural resource

management

The designations employed and the presentation of the material in this

document do not imply the expression of any opinion whatsoever on the part of

the United Nations or the Food and Agriculture Organization of the United

Nations or the funding agency, European Union concerning the legal status of

any country, territory, city or area or of its authorities, or concerning the

delimitation of its frontiers or boundaries.

The positions and opinions presented do not necessarily represent the views of

the Food and Agriculture Organization of the United Nations or the European

Union.

Contact:

FAO Somalia

Ngecha Road Campus

Nairobi Kenya

FAO-SO @fao.org

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Contents

Acknowledgement ........................................................................................................ 0

Disclaimer ......................................................................................................................... 0

1. Introduction .............................................................................................................. 2

1.2. Objectives and methodology ....................................................................................... 4

2. Somaliland legal system ......................................................................................... 4

3. Recognition and allocation of tenure ................................................................. 6

4. Protection of tenure rights against threats and infringements ......................... 9

5. Land administration .............................................................................................. 10

6. Dispute resolution mechanisms ........................................................................... 13

7. Gender and minority clan issues related to land ............................................. 15

8. Conclusion and way forward .............................................................................. 15

Annex I: Case studies ................................................................................................... 17

Annex II: ANALYSIS OF LEGAL FRAMEWORK FOR LAND – SOMALILAND (LAT) ..... 19

REFERENCES ................................................................................................................... 40

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1. Introduction

In 1991, the Republic of Somaliland declared itself as an independent state from

Somalia, but it has not been recognized as such by other states. Somaliland

adopted presidential form of government with bicameral legislative houses

(Guurti and Representatives) and a judiciary supported by judicial commission.

The judiciary is headed by the chairman of the supreme and constitutional court,

which is the highest court of the land. According to the constitution,

administratively, the Somaliland is structured as a unitary republic and

decentralized into regions and elected local councils.

The total area of Somaliland is 137, 600sqkms, and it has a coastline which is

850kms long. The population was estimated at 3.5 million in 20111, and consists

of nomads (55%) and urban and rural dwellers (45%). The population density has

been estimated at 28 persons per square km. It is situated in the Horn of Africa

and its boundaries are defined by the Gulf of Aden in the north, main Somalia in

the east, Ethiopia in the south-west, and the Republic of Djibouti in the north-

west. It lies between Latitudes 8° and 11° 27’ North and Longitudes 42° 35’ and

49° East; it has mountain ranges rising up to six and seven thousand feet in the

center and in the east of the country respectively2.

The country has three main geographical zones which include the coastal plain

(Guban) southward from the Red Sea with elevations ranging from sea level to

600m; hills and dissected mountains of rugged topography rising to more than

1,500m (Oogo); and plateau with large areas of gently undulating Plains (Haud).

The plateau is suitable for agriculture and livestock particularly camel herding.

The total arable land area is estimated at around 350,000 ha3. This is

concentrated largely on the northwestern plateau (Southern Awdal and

Maaroodi-Jeex regions) and contains the main rain fed agricultural zones which

is further sub-divided into the following main sub-zones:

1. The high potential rain-fed farming land, which covers the land on the

plateau along the main road Hargeisa-Borama, and the area surrounding

Borama town and Qulijeed village. The size of the cultivated farm ranges

between 1.5-5 hectares for bigger farmers and between 0.5-1.5 ha for small

farmers, and

2. The land which covers the northwest of Borama and the south and the

east of Hargeisa, which has a small proportion of the agro-pastoral population.

Cultivated areas range between 0.6-1.5 hectares, and from 0.4-0.6 hectares.

1 National Development plan 2012-2016 2 Somaliland in figures, 7th edition, 2010 3Somaliland food and water security strategy, 2011

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The coastal plain has little agricultural potential and is sparsely populated. The

eastern plateau (Togdher region) has very limited rain-fed and irrigated

agricultural potential. There is also limited irrigated agricultural potential along

seasonal streams with associated shallow aquifers. However, the eastern

highlands of Sanaag around Erigabo which benefits from greater precipitation

during the rainy season do have the potential for both subsistence and

commercial farming. Currently, the rain-fed farming accounts for 90% of the

total area cultivated, while the area under irrigation constitutes only 10%4. The

arid hilly terrain of the Far East (Sool) has practically no agricultural potentiality5.

The economy of Somaliland mainly depends on livestock production, which has

historically and culturally been the mainstay of livelihood for the majority of the

people. The livestock production system in Somaliland is predominantly pastoral

and agro-pastoral, employing over 70% of the population. Livestock production

contributes 60% of the GDP and about 85% of foreign export earnings6.

Land is mainly used for livestock production/rearing or mixed farming (crop and

livestock production). The use of different zones at different seasons is greatly

influenced by fodder/pasture and water availability and by the seasonal activity

of biting flies and ticks. The coastal grasslands are used for extensive livestock

grazing especially in the dry season as water is more available in these areas

than in the wood land. The bushy grassland areas provide a good source of wet

season grazing and are favored for camel and goats because of their browsing

habits. Rain fed agriculture is the main agricultural production system, and is

currently practiced for most of agricultural production7.

There are multifaceted land governance challenges in Somaliland that

emanate from increasing population? Pressure on land, enclosures of public

land, deforestation for the production of charcoal, incidences of conflict,

multiplicity of legal regimes and the functioning of? Administrative structures.

The present legal assessment seeks to analyse the normative and practical

aspects of land tenure governance in Somaliland. It examines the existing formal

and informal legal frameworks and their implementation with a view to see the

strengths, weaknesses and gaps in the system of recognition and allocation of

tenure rights, the administration of land and the resolution of disputes. The

analysis of national laws and policies and their implementation in practice is

carried out based on internationally accepted standards and best practices

that are enshrined in instruments such as the Voluntary Guidelines on the

Governance of Tenure and the Framework and Guidelines on Land Policy in

Africa.

4 National development plan 2012 5 Somaliland food and water security strategy, 2011 6 National development plan 2012 7Somaliland food and water security strategy, 2011

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1.2. Objectives and methodology

The main purpose of the present legal assessment to analyze the law and

practice relating land tenure governance in Somaliland with a view to identify

legal gaps and ways in which communities can realize and exercise their tenure

rights.

In particular, the analysis attempts:

To assess and analyze the field context in terms of access to land and

related legal implications;

To deepen understanding of uncertain dynamics of customary system.

The methodology used in this research included: desk review of legislation,

policies and other materials, key-informant interviews, filed observations and

focus group discussions.

2. Somaliland legal system

Following independence in 1960, Italian Somaliland and British Somaliland were

unified under the Republic of Somalia. One of the major issues at the time of

unification was the diversity and contradictions between the two legal systems

inherited by the two entities, for this reason a constitutional referendum was

organized establishing the predominance of Italian civil law system, and that

existed until 1991 when Somaliland announced independence and designed a

new constitution.

In 2001, Somaliland approved a new Constitution in a public referendum and it

serves as the supreme law of the land. The Constitution presents general

principles relating to separation of powers and the powers of the three branches

of government. The president acts as the head of the state and government;

the legislative branch is composed of selected upper house of parliament

(Guurti) and elected lower house of parliament (representatives) to make the

laws including those determined by the constitution; and the judiciary is

mandated over any disputes of judicial nature and the application of law in

general. The courts are structured in a hierarchy starting from district or regional

courts to the regional courts of appeals to the supreme/constitutional court.

The constitution is founded on the Sharia. According to its Article 5, the laws of

the nation shall be grounded on and shall not be contrary to Islamic Sharia. The

Constitution does not explicitly recognize the role of customary law on any

sector of life. However, in practice, it is the most dominant source of law

including in land issues and sometimes government rely on it in resolving disputes

that may affect security. That is why generally Somaliland is considered to have

pluralistic legal system composed of statutory law, customary law (xeer) and

sharia law.

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The constitution determines the statutory laws to be set down by a legislature. It

includes primarily Acts of parliament, administrative regulations and municipal

by-laws.

The customary law (xeer) has its roots in the nomadic pastoral societies; it has

been established in pre-colonial period and continues to be the most used legal

system in Somaliland and supported by the social clan structure. The xeer

consists of a set of unwritten agreements and social practices reached by the

clans, and derived from elders’ experiences and memories, or are the set of rules

and obligations developed among traditional elders to facilitate relations

between clans and sub-clans. It has traditionally a mixture of more general

prescriptions on behaviors, such as the appropriate behavior towards guests

and vulnerable groups (Lewis, 1960; Gundel, 2006) and more specific contracts

between clans or sub-clans on how to act towards each other, levels of

compensation for conflicts or disputes and how to manage disputes among

different clans or sub-clans.

Under xeer, elders serve as judges and help mediate and decide cases using

precedents. There is no central authority that establishes xeer rules, but

generally, clan rules are basically the same, with slight variation in the

interpretation and application of xeer among different clans.8 The laws that are

widely accepted by the community are called xeer guud and those particular

to a specific clan are referred to as xeer tolnimo. As with legal systems in Western

states, the xeer legal system also demands a certain amount of specialization of

different functions within the legal framework. Thus, one can

find odayal (judges), xeer beegti (jurists), xeer yaqaano (lawyers)9.

The challenges faced in xeer are many, as xeer and the rulings of xeer are not

based on equal representation of all groups. Although all men can, in theory,

participate in negotiations and take part in the mediation, access has normally

been open only to men of a certain age (not young men) and no access is

allowed to women or minorities10 (Lewis, 1961). Women can only be represented

by male relatives.11

Sharia law is the course that must be followed by a Muslim. It brings together

elements from the Quran and the Hadith (a collection of the deeds and words

of Prophet Mohammed). Islamic sharia does not strictly provide specific legal

procedures to each and every step, but it provides certain guidelines to both

statutory and customary systems which have to be observed. Moreover, Sharia

interpretations vary between cultures and depend on each particular

circumstances, but also on the school of thought that one has. This means,

8 UN-Habitat. 2006. Somaliland, Puntland State of Somalia. The land legal framework 9APD 2007. Land-based conflict project 10Lewis, I. 1961. A Pastoral Democracy: A Study of Pastoralism and Politics Among the Northern Somali of

the Horn of Africa 11 IDLO. 2010. Evaluating the effectiveness of legal empowerment approaches to customary law reform in

Somaliland and Puntland

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statutory rules or customary practices which are not against the given guidelines

by Sharia, will be regarded as sharia approved laws. Age and gender-based

equality issues arise also in relation to sharia law.

Within the pluralistic legal structure of Somaliland, there are often confusions

resulting from overlapping and even conflicting sources of law. This legal

structure is said to have the structure of restricting access to justice for some

marginalized groups such as women, who are less conscious about their rights

and less able to capitalize on different development opportunities. The unclear

legal structures also appears to have allowed some individuals to take

advantage of the situation for their personal interests. In addition, in spite of

good political organization at national level, there are few competent

government institutions at the local level responsible for implementing and

enforcing the multiplicity of laws. This has led to traditional structures and elders

becoming the most influential and effective political bodies to address almost

all issues in the rural areas and even urban centers.

According to Art. 10 of the Constitution, all treaties and agreements entered into

by the former state of Somalia with foreign countries or corporations will be

observed, provided that these do not conflict with the interests of Somaliland

and are in conformity with the United Nations Charter and with international law.

It further states that Somaliland shall respect the Universal Declaration of Human

Rights. Consequently, human rights and other treaties that are relevant to the

governance of tenure in land and are ratified by Somalia apply in Somaliland

with the aforementioned caveats.

3. Recognition and allocation of tenure

The Constitution contains provisions related to land as a national property and

establishes the state responsibility for the land and natural resources. Article 12

says, “The land is a public property commonly owned by the nation, and the

state is responsible for it12”, and shall take all possible steps to explore and exploit

the natural resources which are available in the nation’s land or sea. The

protection and the best means of the exploitation of these natural resources

shall be determined by law.

Article 31of the Constitution recognizes that every person has the right to own

private property, if it is acquired lawfully, and that such property may not be

expropriated except for reasons of public interests in the exchange of proper

compensation. The private property ownership includes land in which Art. 2(1)

of Law No. 8/1999, and 19(a) of Law No. 17 established private ownership of land

with the title deed.

12 Official version to refer is the Somali and it has same meaning as in this English version

(Somalilandlaw.com)

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Under the constitution, people have equal rights and obligations before the law,

and shall not be discriminated on the grounds of clan, birth, gender, property,

status or opinion (Art. 8).

Article 36 of the Constitution recognizes that women and men enjoy equally the

rights, freedoms and duties laid down in the Constitution, “save for matters which

are specifically ordained in Islamic Sharia”. It further provides that the

government shall encourage and legislate for “the right for women to be free of

practices which are contrary to sharia and which are injurious to their personality

and dignity”; women have the right to “own, manage, oversee, trade in or pass

on property in accordance with the law”. In light of this, women can legally own

and control land but there are many cases in which customary rules prevail over

statutory law, especially in rural areas where traditional social systems

discriminate against women and impede them from owning and controlling

land. This constitutional principle for women’s rights need to be interpreted into

practice and mainstreamed into programs within the public sector delivery of

services.

There are several legislative instruments that have been adopted to govern

specific sectors related to land. Prominent among them are the Agricultural land

ownership Law No. 8/1999 and Urban land management law No. 17/2001. There

are also other laws on mining, livestock, water and environment that are

relevant to land governance.

Although it was adopted before the Constitution of Sierra Leone, Law No. 8/99

is still the law that currently applies to agricultural land, and there has not been

more specific regulation on its application and enforcement. It defines

agricultural land as any land that is suitable for farming. According to Article 4,

the Ministry of Agriculture can issue ownership titles for farms. Individuals and

families can acquire only one new title deed each, with the exception of those

people who owned agricultural land before the enactment of the law, in which

case they are entitled to as many titles as their land amounts to.13 The maximum

plot size of new entitlement is restricted to eight hectares for rain-fed farms and

four hectares for irrigated farms.14

Despite the absence of clear procedures for the classification and registration

of lands, the Ministry of Agriculture has been implementing the law by

conducting surveys, demarcating farms and issuing titles. For instance, in 2004,

the Ministry with the technical support of Somaliland Cadastral Surveys Limited15

has surveyed over 10,800 rain-fed and irrigated farms, and produced maps,

certificates of registration, title deeds, computerized photo IDs, and boundary

markings. The community-based methodology of the surveys (involving elders in

13 Article 6, Agricultural land ownership 14 According to Article 7, The maximum new agricultural land entitlement that can be

allocated to an individual or family may be 8 hectares in rain fed areas and 4 hectares in

irrigated areas 15http://www.mbali.info/doc402.htm

8

verification) contributed to the success of the programme and its impact on

peace. For example, Gabiley, which is one of the most settled communities in

Somaliland, has not experienced open conflict for more than ten years.

Law No. 17/2001 establishes for the acquisition, ownership, transfer and

allocation of urban land. Article 1 provides that, in principle, apart from Allah,

the responsibility of the land lies with the state (in accordance with Article 12(1)

of the Constitution). Therefore, the authority of its management, transfer of

ownership and the proposition to enact laws for such land is vested solely on the

Government. More specifically, the management and issuance of plots in urban

centers is for the local authority (The Executive Branch of the local authority).

Anybody who receives title to land with permanent use must build a permanent

building in one year, starting from the date of issuance. If the owner does not

build the land within that time, he/she shall be obliged to pay the unified tax

tariffs of the local authority. Land with temporary use can be allocated for those

who need, and they must build in three months. If the recipient of land does not

build on the land, and does not pay due taxes for two consecutive years, he/she

shall lose the right to own that land, and the land shall become public property

(Art. 12). Local authorities are required to distribute land on the bases of justice

and with respect to the equality of citizens (Art. 15). The period for the ownership

of permanent land for anybody who fulfils the conditions in this law, and who

builds real state on the land, shall be unlimited16.

Owners have the right to turn their agricultural land into urban land use purpose

and upon the request of the owners, local governments may plan for residential.

According to Art. 7 of Law No. 17/2001, farms that conform to the Agricultural

Law No. 08/99, and now included in the town plan can be used for residential

plots, and they should be owned by those who held the titles legally. 30% of the

farm areas extended to by towns shall be deducted from the owners of such

urbanized lands and will be reserved for public purposes and that shall be

indicated in the town plan.

The laws of Somaliland do not formally recognize communal land rights, but

“Deegaan” implies informal recognition of clan habited areas that can be

alternative to the communal land. All Somaliland people are composed of clans

and sub-clans and each is concentrated into a specific areas called Deegaan.

The system of Deegaan is among the potential source of conflicts that led to

number of armed violence in the last years in Somaliland. But it also has its own

merits. There are increasing land enclosure issues between communities,

particularly among pastoralists. This needs to be strategically prevented to

protect communities against violations from outsiders (e.g. land grabbing) and

rather promote communal land rights. In such cases, community boundaries are

defined and land titles are registered in the name of the whole community. In

the case of Somaliland, where the majority of the land is communal, recognizing

16 Art. 19 of Law No. 17

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communal land title seems the most suitable option, allowing the community to

undertake its own land management, including the allocation of rights to land

within its boundaries.

These laws of Somaliland do not necessarily reflect the customary system. This

means that they are developed regardless their consistency with the customary

rules laid down by the society and existed for long time. This contributes to the

existence of parall legal regimes which potentially complicate initiatives for

better land tenure.

There are common types of Islamic land tenure which are also accepted either

in statutory or customary law. These are:

Mulk or milk: freehold; this is also accepted under customary law but also

under the statutory laws on agricultural land ownership and urban land.

Miri: state owned land; this can be the public land stipulated in Law No.

17

Waqf: similar to a trust, used to create charitable endowments in

perpetuity (e.g. hospitals/schools); this kind of law is also given in Law No.

17, and

Mewat: “dead land”, individuals have a right to reclaim the mewat land

that he turns into life, provided that there have been no previous reclaims.

This practice is also recognized under Law No. 08/1999.

4. Protection of tenure rights against threats and infringements

Article 8 of Law No. 8/1999 provides that if agricultural land is nationalized for

public use, the state has to pay compensation to the previous owner within three

months. The law does not specify the remedial procedures to be followed in

order to ensure fair compensation is received by the previous owners. Urban

land may similarly be expropriated for public purpose subject to compensation

to owners. Under Art. 1 and 6 of law No. 17, the President of Somaliland has the

authority to issue decree transferring land for the public interest or town re-

planning after consulting with the Cabinet and the National Urban Land

Planning Committee. Public interest means the use of land for the construction

of new roads, extension of existing roads, bridges, electrical and communication

lines, offices and government buildings and any other reason deemed

necessary. The presidential decree will be circulated through official channels.

The National Land Planning Committee is responsible for the evaluation of the

costs and payment of the compensation for the properties affected by the re-

planning, and an owner shall also receive a plot that is equal, in terms of size

and location, to the plot that is expropriated.17

17 23 of law No. 17/2001

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Under the agricultural land ownership law, agricultural land can be sold by its

private owner with the approval of the Ministry of Agriculture only three years

after receiving the ownership18 title, but it is prohibited to use the land for

enclosure purposes. According to Article 17 of Law No. 8, pastoral land can’t

be allocated for rain-fed farms, but irrigated farms can be allocated for rain-fed

farms provided that this allocation does not block routes for livestock watering,

and movement of livestock to the water wells, or berkads19.

In relation to pastoral land, the law fails to define the nature of pastoral land, its

practical boundaries, and how it is going to be regulated. In the absence of that

clear definition of pastoral land in Law No. 8 or in any other law, the authority of

the Ministry of Environment to allocate grazing land to pastoralists can be rather

arbitrarily. As a result, communal land use and user rights of pastoralists are not

secured within the legal system. Such land gapping for private enclosures,

extension of unnecessary urban areas and charcoal burning will finally make

pastoralists vulnerable and, at the same time, can trigger conflicts over land use.

The absence of clear demarcation between agricultural, pastoral and urban

land, and the un-clarity of mandates of the different ministries and state

agencies may fuel land use problems.

Sale of land is very common in the urban areas although the transactions are

not properly regulated. The Urban land law permits sale of land. Anybody who

has title for permanent land and has been duly paying the due annual taxes

can sell, donate, transfer or use the plot for any legal purposes.20 However,

individuals who use the land as a lucrative shall not have the right of sale, if such

act is verified by the judiciary authorities or by the Municipality. The law does not

provide any viable means to differentiate between the two type of sales, and

this can create a confusion and open the door for abuse of power and perhaps

corruption.

5. Land administration

As mentioned above, under Art. 12 of the Constitution, the state is responsible

for land administration, but this part will examine how the administration is

delegated to different authorities including Ministries and local authorities.

According to Art. 3 of Law No. 08/99, the Minister of Agriculture is responsible for

the administration of agricultural land on behalf of the government, and at the

same time, the Ministry issues title deeds and makes registration of farms.

On the other hand, Law No. 17/2001 established the National Urban Land

Planning committee21 which is responsible for urban planning, approval of

master plans and extension of towns. The Committee is comprised of six Ministries

including Minsters of agriculture and rural development and the Minster of Public

18 Article 9, Law No.8/99 19‘Berkads’ are small wells that provide water to communities during dry season. 20 Art. 25 of law No. 17/2001 21 Art. 3 of Law No. 17/2001

11

Works chairs the committee. While the Committee does general planning, the

local authorities are mandated to allocate urban land based on the plans of

the committee.

The Regions and Districts Law (Law No. 23/2002) divides the country into regions

and districts. Article 12 of this law states that the District Council, which is elected

for a five years term, is the governing body at the local level. It is in charge of

national and regional policy implementation and public affairs regulation,

including conflict and security issues and the use of land for all purposes. In rural

areas, the authority of District Councils is very limited due to the influence of

Council of Elders that remains the most accessible and utilized mechanism in

dealing with land issues.

The Prevention of Degradation and Deforestation Law No. 04/1998 recognizes

the responsibility of the Ministry of Pastoral Development and Environment to

protect the environment. In consultation with the Ministries in charge of water

and mineral resources, livestock and agriculture, the Ministry of Pastoral

Development and Environment has the authority of allocating and confining

farming land and grazing land for pastoralists, and it is responsible for issuing

permits for the construction of berkads22 and other water reserves in rural areas.

The law states that not more than 35 berkads can be built in an area and

consequently, illegal water installations shall be destroyed23.

In terms of new legal developments, there is a draft Law on Forests Conservation

and Fauna (Law No. 69/2014) which categorizes land into pastoral land, fodder

production land, agricultural land, reserve water land, pastoral land, and

research land. This draft law is meant to replace the law on fauna and forests

conservation issued in January 1969 by the Republic of Somalia and has been

regarded effective in Somaliland despite its comparatively low-level of

implementation. The draft law has been passed by the House of Representatives

in December 2014 and it has to be accepted by the House of Elders before the

President sign it into law. The later may be a long and difficult process as the

Elders may revise it and return it back to the Representatives leading to restarting

of the process.

The draft law primarily rests the responsibility of its implementation on the Ministry

of Environment and Rural Development. According to Art. 3 of the draft law, the

Ministry’s responsibility include:

o Creation and management of pastoral reserves;

o Skill and knowledge promotion, research, licensing, supervision and

monitoring program and strategies

o Lead reforestation programs with the participation of all social groups;

22 Underground water points constructed by families or individuals in the rural areas, and filled by the rains

and kept for human and livestock use in the dry season 23 Article12, Law No. 4/1998

12

According to Art. 8 of the draft law, private enclosures on pastoral land that is

more than two hectors shall be abolished, and the two hectors should be

licensed by the Ministry, annually taxed and renewed every ten years. Any kind

of enclosure is completely prohibited on the savanna, purely pastoral lands,

forests land and mountainous areas. There will be national, regional, district and

village level committees on forest and fauna conservation. The National

Committee comprises of ten Ministries (Environment and Rural Development,

Representative’s sub-committee on the natural resources, Elder’s sub-

committee on the natural resources, Livestock, Agriculture, Water, Energy and

Mining, Fishery and Industry Ministries). The law under its Art. 13(3) provide land

use rights and incentives to the residents of public reserve areas but not full

tenure rights.

With regard to the institutional structure and mandates relating to land

administration, a draft law on the organization of cabinet24 has been initiated

with the aim of clarifying the responsibilities of the relevant institutions. The draft

law lists the mandates/functional assignments of most of the currently existing

Ministries and national organs in the following manner:

o According to Art. 49 (4 and 12), the Ministry of Agriculture will be

responsible for the creation and administration of accessible services

relating to the agricultural land and issuance of agricultural certificates;

o According to Art. 55 (1), the Ministry of Public Works will be responsible for

the development of policy, standards and regulation for the

administration of urban land and construction;

o According to Art. 64 (4), the Ministry of Environment and Rural

Development shall be responsible for the creation and protection of

reserves and pastoral land.

The draft law on the organization of the cabinet was presented to the

parliament by the Minister of Presidential Affairs in response to frequently

reported conflict of roles and responsibilities of government Ministries and organs

and sometimes in between departments of a single Ministry. The bill is still a draft

and will need approval by the two houses of parliament before the president

can sign into law.

It seems that the land related laws reviewed above have been developed in

separate processes without consultation among the relevant institutions. Each

law has been proposed by a Ministry to draw its statutory mandate with the

approval of the Parliament. On the other hand, most of these laws have not yet

been fully enforced. For instance, only some land owners have title deeds, and

there are many who control land but do not have title deeds and have

difficulties acquiring these documents. Many people exercise ownership of

illegal enclosures and such behaviors negatively affect livestock fodder and

lead to food shortage and conflicts, particularly in the dry season.

24 Law number is not yet labeled

13

There is also clear lack of coordination among the land administration

institutions. The Ministry of Agriculture applies the agricultural land ownership law

to the licensed agricultural lands, however that same licensed land may be

planned for urbanization purposes by the Local Governments under the

supervision of the Ministry of Public Works. In the absence of appropriate

monitoring mechanisms, there are lands that are registered in the Ministry of

Agriculture as farm land while they are at the same time registered with the

respective local governments in the form or urban land.

Similarly, the Ministry of Agriculture and the Ministry of Environment and Pastoral

Development may not have the same understanding on the geographical

areas to be regarded as agricultural land or range/pastoral land. In addition,

the ministries and authorities with land-related mandate do not have a common

platform of coordination. For instance, National Land Planning Committee

established by Law No. 17 have no membership from Ministries of Livestock,

Justice and Finance, and the Ministry of Water and Mineral Resource is now split

into two Ministries, which raises the question of which Ministry (Water or Mineral)

will have membership and this creates further confusion about institutional

responsibilities.

6. Dispute resolution mechanisms

Law No. 24/2003 organizes the judiciary of Somaliland into three levels, namely,

the Supreme Court, the Court of Appeal and the Regional and District Court

(courts of first instances). The territory of Somaliland is composed of six Regions

and 48 Districts. Each region has its own District Court, Regional Court and a

Court of Appeal. The Supreme Court is situated in Hargeisa, and it has jurisdiction

over all types of cases in the whole territory.

According to Law No. 08/99, only the Ministry of Agriculture is mentioned as the

body responsible for the application of this law. However, disputes arising from

the application of the law may be referred to the court.

Law No. 17/2001 establishes an administrative land committee (tribunal) with

jurisdiction over the urban land disputes. According to Art. 28, the first stage of

land disputes shall be resolved by the administrative committee/tribunal, which

will issue its decision on cases submitted to it. The members of that committee

shall have knowledge and experience in land issues. Anybody who is not

satisfied with the decision of the committee has the right to appeal to the court

within one month. The cost of appeal shall be borne by the person disputing the

decision of the committee.

The Ministerial Regulation on Land Dispute, Law No. 01/2014 provides procedural

rules to the administrative land committees stipulated under Art. 28 of Law No.

17. The Regulation25 applies to all administrative cases concerning dispute over

the ownership of urban land under the territorial jurisdiction of the Local District

25According to its Art. 3 and 4,

14

Councils. It restricting the mandate of the administrative land committees to the

resolution of disputes concerning urban areas covered by city master plans. It

mandate does not extend to pastoral and agricultural land disputes. The

administrative land tribunal have not been put in place partly due to problems

in demarcation and the development of town plans.

In addition to the mandate of ordinary courts/tribunals, customary, religious and

public authorities are also involved in the resolution of disputes. In the rural and

more recently in the urban life, clan elders have been active in the dispute

resolution. Practically, the dispute resolution role of religious leaders and

particularly the elders is unlimited unless, it is more taken over by the

government. Respectful elders from clans or sub-clans of disputants come

together to manage disputes of all types. Depending the nature, relationship

and complexity of the dispute, they decide whether it needs mediation or

arbitration, usually, they use later when there is property dispute; they try land

dispute resolution. To decide, elders refer/retrace similar precedents in the

record of the clans that disputants belong to. Their verdict and remedies is

binding to the disputants and no usually, not appeal is taken against. If the

property dispute requires evidences and its verification or there is an injury or loss

resulted from the dispute and remedy is to be established, elders involve religious

leaders and the verdict is based on the rulings of the religious leaders. The clan

elder’s role is regarded as a complementary to that of the government.

The Ministry of Interior is generally mandated to oversee maintenance of peace

and security and the police force acts as the operational arm of the Ministry on

this mandate. The Ministry has a department for traditional clan elders, but also

it has peace building unit which recently adopted peace building policy in

which land dispute is regarded as a major issue and a source of conflict in both

urban and rural areas. The Ministry keeps the register of 2100 chiefs registered at

the Ministry of which almost 1000 of them are paid by the Ministry on monthly

bases. These serves as the wings of the Ministry in maintaining peace, but there

are criticism that chiefs are widely politicized by the government and that this

creates distrust in the traditional structure.

Ordinary courts tend to be more technical and complicated for ordinary

people. Dependence on lawyers and the court fees that need to be paid

create another layer of challenges to the utilization of the court system. Court

processes should be simplified and legal aid services should be provided to

improve access to justice, especially to vulnerable and marginalized group of

people. On the other hand, customary mechanisms offer easily accessible and

amicable mechanisms of settlement of disputes. However, the applicable norms

and procedures raise issues of fairness, especially in terms of gender equality in

dispute resolution, requiring women to rely on men.

These above mentioned mechanisms have basic limitations; legal pluralism is a

key factor that leads to the complexity of land dispute resolution, because

fragmentation of laws can accommodates constant conflict of institutional

15

mandates. Secondly, apart from the courts, the enforcement of the decisions of

clan elders and religious leaders is not clear, and this may escalate a fresh

conflict.

7. Gender and minority clan issues related to land

Land contributes to the wealth of individuals and groups. Reports reveal that

women constitute the majority of the population of Somaliland and also the

majority of the poor people. The latter has something to do with problems with

access to land ownership and exploitation of natural resources. Women and

Somali minority clans should be considered to have a voice in every single

process to address land issues.

Minority clans are considered as relatively small clans scattered in most of the

country. They are not represented in the public sector and socially, people

disconnect. Although, there are no discriminatory laws and policies against

these two social groups, yet they do not support their equity rights, and there is

a need for legislative and technical support to eliminate marginalization and

enable them access to their land and natural resources.

At same time, a number of xeer practices contravene basic human rights and

principles of women’s empowerment. Consequently, the harmonization of

Somali plural legal system may present challenges, particularly in terms of the

accommodation of customary rules into the formal law. This process should

focus on principles that could improve the efficiency of resource use and

reduce ongoing degradation or address inequalities in the allocation of land

and the other natural resources.

8. Conclusion and way forward

The lack of a comprehensive land policy, the desperate and to some extent

inconsistent legal frameworks and weak institutional governance in land

administration has shifted public trust from the public institutions to the clan

system where communities feel their land is more secure through clan

protection. For instance, elders have assumed crucial decision-making powers

in land disputes. Sometimes, the police and judicial institutions redirect critical

land cases to elder’s for the later to pass final judgments that are often enforced.

However, even the decisions of elders may be rejected by a losing party and

this can lead to unresolved clan disputes, especially among pastoral and agro-

pastoral communities where clashes over scarce resources lead to conflicts that

are difficult to prevent or resolve.

In the rural areas, the Xeer system is the only accessible and quick option to

manage disputes/conflicts over land. Xeer is mainly inconsistent with statutory

law in terms of procedural and substantive aspects. For instance, one can

acquire land ownership through the membership of the inhabitant clan which is

not recognized under the agricultural land ownership law and this is a common

16

practice. The norms of title to and inheritance of land and the procedures of

hearing of cases are also often in conflict with the precepts of gender equality.

Although work has been undertaken in order to improve the legal and policy

frameworks, there are still many land-related issues in practice, especially in rural

areas. The situation of land ownership is unclear in many contexts. The lack of a

comprehensive policy and legal framework on land issues is a critical and

destabilizing factors that will affect land governance both in the short and long

term. These calls for an inclusive and participatory process to stem potential

conflict between different interest groups and put in place harmonized and

effective policy, legal and institutional frameworks.

Looking at the policy and legal gaps existing in the land administration sector, it

is important to ensure the complementary and consistency between the existing

and proposed laws. The mere passage of laws may not be enough to close the

gaps unless it is responsive to the real needs and it is implemented properly.

In August 2015, a new presidential decree26 established a committee composed

of twelve ministers to prepare a land policy for Somaliland. The decree does not

provide specific directives regarding how the policy will be developed.

Nevertheless, the committee needs to conduct nationwide consultations to

make sure that all land-related issues are captured and that all social groups are

heard. For this purpose, the committee has to come up with appropriate

institutional set up that can enable it to follow a consultative process for better

performance.

Above all, the committee has to gain full political support from all the relevant

government organs including the parliament, Ministries and local authorities as

well clan leaders.

With respect to the legal gaps and limitations relating to land, it is clear that the

current land-related laws have been developed without appropriate interface

or relationship to one another. The newly proposed law of the organization of

cabinet (pending before the Parliament) provides for a list of duties assigned to

each Ministry or authority, but so far there are no consultative processes made

to create more clarity of institutional mandates on land administration. To avoid

future complications, institutional discussion should be initiated and conducted

with a view to create harmony and efficiency rather than competition with

regard to roles and responsibilities.

For land administration, there is no standard/statutory procedure (due process)

that is laid out by any law. In the absence of such a law, officials use their own

discretion, and the practices differ from one officials to another. To address this,

government should come up with uniform procedure through a process that

ensures the participation of the relevant officials. The relevant customary rules

should also be harmonized with the other laws and put in the uniform procedures

26 Presidential Decree No. JSL/M/MG/081/1-3495/082015

17

to avoid fragmentation. At the same time, Deegaan/communal land rights

should be recognized by law. To ensure the inclusion of all stakeholders, there

should be public forum discussions in which people will present all issues (both

known and unknown land issues) and later on all the issues will be sifted, refined

and formulated into a draft policy/law with the help of professionals. All these

can be successful with the leadership of the government.

Annex I: Case studies

Case 1: Land conflict between agro pastoral and farmers.

A land conflict arose between agro pastoral family and some farmers. The agro

pastoral family originally comes from a ‘Deegaan’27 area and they are the

minority clan of this area. To Somali, Deegaan Connotes exclusive control by a

group sharing similar language, identity or clan affiliation of a land area and the

natural resources found there. It can further include an area where one lives,

operates a business, and feels secure enough because of the presence of a

large number of one’s clansmen in the wider physical area.

The agro pastoral family has been settled in the area for 22 years grazing mixed

herds (goats, camels and sheep). On 16 February 2013, 65 farmers originally from

the same clan attacked the agro pastoral family and injured family members.

They also destroyed a house and shelter (xero) where livestock were kept in

order to dispose the agro pastoral family of their land.

Although several clan mediations have occurred, nothing has changed and

contenders have decided to bring a claim of compensation for the damage

and injures of the attacked agro pastoral family to the formal justice system.

The formal justice system has recognized the areas as communal land and the

right of the agro pastoral family to stay there. In spite of this, due to persistent

pressure, the family had to leave their land. At the time of writing of the present

report nothing has changed and no steps have been taken by the security

agencies to support the court judgment to resolve the dispute.

This is an example of a dispute that could not be settled by a customary

mechanism as well as the formal justice system. The failure of the clan mediation

to resolve the matter and the fact that a court judgment could not be enforced

points to how difficult some land-related disputes could be. Such actual and

potential cases could most probably be addressed through more lasting land

administration measures of land-use determination, demarcation and titling. This

would require the comprehensive and more efficient policy, legal and

institutional set up that the report argues for.

18

To this case, all the relevant land dispute mechanisms tried, but not was

successful. The critical issue is the lack of enforcement of the court judgment

and court mediations.

Case 2: Land dispute between agro pastoral

This was a conflict between two neighbouring clans. A man aged 25 years

described the case between his family and another family as follows.

The farm that is the object of dispute is around 50 hectares and has seven

owners. The man and his brothers have all inherited this land from their father

and descendants. They have been settled in the area for 80 years.

The dispute started when the sub-village elders committee purchased part of

the communal land close to the man’s farm in order to build a cosmetic industry.

Consequently, the price of the land has increased and some neighbouring

farmers belonging to a strong clan claimed their right to own the man’s farm.

The dispute has degenerated into physical violence, including shooting. The

Police intervened and arrested two persons from each party for forty days. The

Police intervention did not solve the dispute and thus conflict frequently erupted

and even escalated.

The present case presents a type of land dispute that is likely to arise with more

and more investment in land and the associated appreciation of the value of

land. The problem still relates to the existence or absence of appropriate systems

of demarcation, titling and land-use determination which could provide a more

lasting solution to such disputes. The case also demonstrates the role and

limitations of executive bodies such as the police in dispute resolution. On the

top of that, this indicates the need for proper land policy that provides national

platform to land use demarcation, administrative roles and regulation of land

based investments.

19

Annex II: ANALYSIS OF LEGAL FRAMEWORK FOR LAND –

SOMALILAND (LAT)

Policy – stage of development Law – stage of development Score

Policy absent Law absent 0

Policy in the early stage of

development (informal draft

available)

Law in the early stage of

development (informal draft

available)

1

Policy in formal adoption

process (formal draft available)

Draft law in formal adoption

process (formal draft available)

2

Policy formally adopted Law adopted 3

Element of policy appears in

multiple implementing policy

instruments (strategies, plans,

programme, etc.)

Element of law appears in

multiple implementing legal

instruments

4

20

Guiding Principle 1: Recognition and respect of all tenure rights holders and

their rights

Legal recognition and allocation of tenure rights and duties VGGT

Sect. VGGT Indicator Policy Law Basis for assessment Recommendations

7.3

The law

recognizes all

existing tenure

rights,

including

customary

tenure rights,

whether

recorded or

not.

1 1

Law:

National Constitution:

Art. 12:

The land is a public

property commonly

owned by the nation, and

the state is responsible for

it

Art. 31:

“Every person has the right

to own private property, if

it is acquired lawfully.

Private property acquired

lawfully shall not be

expropriated except for

reasons of public interest

and provided that proper

compensation is paid”

Policy:

There are sector-specific

policies, e.g. a draft land

tenure policy and a land

policy discussion paper,

but they do not address

land governance in a

holistic manner.

Deegaan/clan

territory

(customary) land

rights should be

considered and

addressed in any

land policy and

law to be

developed

The term property

needs to be

defined clearly in

land policy

document and

legislations to

show if it includes

land.

All existing draft

policies on land

should be brought

together with a

view come up

with a

comprehensive

land policy, which

recognizes all

tenure rights, in a

participatory

process.

7.4

Under the

law, men and

women have

the same

tenure rights,

including in

customary

systems.

0 3

Law:

Constitution:

Art. 36:

The rights, freedoms and

duties laid down in the

Constitution are to be

enjoyed equally by men

and women save for

matters which are

Harmful customary

practices

including those

affecting women’s

rights to land

should be

abolished by

policies and

legislations. The

21

specifically ordained in

Islamic Sharia.

Art. 31:

Every person shall have

the right to own private

property, provided that it

is acquired lawfully.

elders declared

about the

pending inter and

intra conflict cases

to be resolved,

properties looted

or taken over in

time of conflict

must be returned

to the original

owners, judicial

judgments passed

to executed

without much

delay by

government and

conduct regular

campaigns by the

traditional leaders

to raise the public

awareness on the

implementation of

the revised

customary law

codes. (Elders’

Declaration of

2006 was the result

of seven day

conference that

has been

organized by the

vice president and

aimed to develop

unified clan rules

and agree on the

principles of the

relevant

legislations)

It should be clear

that discrimination

against women

cannot be justified

by customary and

religious laws

22

7.4

The law or

policy

provides for

the systematic

legal

recognition

and

allocation of

tenure rights

of men and

women,

families and

communities

to provide full

opportunities

to acquire

legal

recognition of

their tenure

rights.

0 4

Urban Land Management

Law No. 17/2001

Art. 15 (1):

Plots shall be distributed in

accordance with the

principles of equality and

justice as all citizens enjoy

equal rights

Agricultural land

ownership law No 08/1999:

Art. 13:

When an owner dies, land

ownership will be

transferred/distributed to

the heirs according to the

Islamic law

The entitlement of

women to

farming, pastoral

and urban land

should be clear in

the applicable

and forthcoming

laws, including by

way of co-titling

Rules of

procedure to

manage

allocation process

and tenure

governance

should be

designed to

reduce abuse of

power

Inheritance law

should provide

procedures of

recognizing

inheritance rights

of both women

and men

In applying Islamic

and customary

rules of

inheritance,

particular

attention should

be given to the

rights of women to

have access to

land

Administration of tenure

17.1

The

registration

system

organises the

recording,

updating and

publication of

0 4

Agricultural land

ownership law No 08/1999:

Art. 4

After the Land and Water

department of the Ministry

of Agriculture prepares

ownership documents, it

Administrative

regulation to

clarify process and

steps on

recording,

updating and

23

tenure rights

and duties of

the holder,

including his

or her family

status and

associated

spousal rights.

will be passed to the

Minister to ensure and

then return it the

department to complete

registration process of the

agricultural land

Art. 6

Only one ownership

document will be issued

for the newly acquired

land of any family or

individual

Urban land management

law No. 17/2001

Art. 27

1. The local authority

of the town shall keep

registers for recording the

different types of plots and

the titles to the buildings

thereon.

2. The registration of

plots shall be based on

legal title documents or

other documents

certifying ownership of the

land, or court order

certifying the ownership of

that plot. Such documents

shall be entered in the

registers at the local

authority and the Ministry

of Public Works.

3. The National Urban

Planning Office at the

Ministry of Public Works

shall keep copies of titles

for permanently (built up

with) plots.

Note: (temporary shelters

made of hats, plastic

sheets, iron sheets or

publication of

tenure is needed.

Ministry of

Agriculture uses

GIS coordinates

and generate

certificate with the

information, but

the procedure

should always be

written

Land

Administration

regulations should

provide for a

harmonized and

centralized Land

Register and

Cadastral for the

entire country (in

the land registry,

land use

demarcation

should be made

before).

24

traditional materials does

not require titles)

17.3

Land

administration

services are

accessible and

the personnel

have the

appropriate

knowledge to

deliver

information on

the tenure

rights of men

and women,

including

spousal rights

and the

capacity to

ensure that

woman’s

tenure rights

are protected.

0 0

Law: No relevant provision

could be located in

existing legal framework

18.4

The law

requires

transparency

in valuing

tenure rights.

0 0

Law: No relevant provision

on land valuation could

be located in the existing

legal framework but the

law allows sale of land as

per below sections

Provision for

systematic land

valuation

procedure should

be provided in

land policy and

relevant

legislations.

18.4

The law

ensures that

valuation

systems take

into account

non-market

values, such

as social,

cultural,

religious,

spiritual and

environmental

values where

applicable.

0 0

Law: No relevant provision

could be located in the

existing legal framework.

There are no laws on the

valuation systems of land.

It is only market which

determines, and market is

mainly unregulated

Any reform in land

valuation should

not undermine

tenure and not be

counterproductive

to free market

principles

18.4

Sale prices

and other

relevant

0 3

Urban land management

law No. 17/2001:

Art. 25 (1, 2):

25

Guiding Principle 2: Protection of tenure rights against threats and

infringements

Expropriation and compensation VGG

T

Sect. VGGT Indicator

Polic

y

La

w Basis for assessment Recommendations

16.1

The legal

framework

provides a clear

definition of the

concept of

expropriation

for public

purpose.

0 3

Law:

Constitution:

Art. 31:

Private property

acquired lawfully

shall not be

expropriated except

for reasons of public

interest and

provided that

proper

compensation is

paid.

Urban land

management law

No. 17/2001

Art. 1(1,2):

Land use planning

should be provided for

in land policy and

legislation and should

clarify land use

planning in rural and

urban areas.

Terms and condition

for land expropriation

should be clearly

defined in policy and

law. Procedures for

expropriation should

take into consideration

land rights of

individuals or groups

that have legitimate

information

are recorded,

analysed and

made

accessible to

provide a

basis for

accurate and

reliable

assessments

of values

1. Anybody who has

been given title to land for

permanent use and has

paid all annual taxes due

may sell, donate, transfer

or use the plot for any

legal purpose.

2. Individuals who

occupy vacant land for

speculative commercial

gain shall not be entitled

to the right specified in

Section 1 of this article, if

such act is verified by the

legal authorities or by the

local authority

18.5

Valuation

information

and analyses

are available

to the public

0 0

Law: No relevant provision

could be located in the

existing legal frameworks

26

Guiding Principle 2: Protection of tenure rights against threats and

infringements

Expropriation and compensation VGG

T

Sect. VGGT Indicator

Polic

y

La

w Basis for assessment Recommendations

2. The President

of Somaliland, after

consulting with the

Cabinet and the

National (Urban

Land) Planning

Committee, has the

authority to issue

decrees transferring

land for the public

interest.

3. Public interest

means: the use of

land for the

construction of new

roads, extension of

existing roads,

bridges, electrical

and communication

lines, offices and

government

buildings and any

other reason

deemed necessary.

The decree will be

circulated through

official channels

Art. 3(4):

4. At least 30% of

any privately owned

land area, a plan of

which is still to be

developed, must be

allocated for the

public utility

purposes specified in

Section 1 of this

article

claim over the land

targeted for

expropriation.

16.1

The legal

framework

provides for

prompt and just

0 4

Urban land

management law

No. 17/2001

Government valuation

system needs to be

defined in land policy

27

Guiding Principle 2: Protection of tenure rights against threats and

infringements

Expropriation and compensation VGG

T

Sect. VGGT Indicator

Polic

y

La

w Basis for assessment Recommendations

compensation to

the affected

tenure right

holders, including

to subsidiary right

holders such as

the spouse.

Art. 5(4):

4. The National

Planning Committee

National Urban

Planning Committee

is responsible for the

evaluation of the

costs and payment

of compensation for

the properties

affected by the re-

planning

and a land valuation

unit should be

established by a legal

instrument.

Qualifications of land

valuers should be

clearly defined in the

law to ensure that non-

professionals do not

take responsibility for

land and property

valuation

Investments

12.6

The legal

framework

sets ceilings

on permissible

land

transactions

to protect

legitimate

tenure rights,

human rights,

livelihoods,

food security

and the

environment

from risks that

could arise

from large-

scale

transactions in

tenure rights.

0 0

No law that

addresses the issue

directly could be

located, but

National Constitution

Art. 12

……The protection

and the best means

of the exploitation of

these natural

resources shall be

determined by law.

Urban land

management law

No. 17/2001

Art. 16:

1. Anybody who

desires land for the

implementation of

special projects

which are part of

the development of

the country, such as

factories,

educational

institutions, tourist

hotels etc. shall

Investment in

communal/deegaan

territory should be

clarified in land policy

and legislations.

Any land based

investment should

respect the existing,

customarily-defined

rights of local people

and communities to

land and land related

resources

It could also set

ceilings on permissible

land transactions

28

Guiding Principle 2: Protection of tenure rights against threats and

infringements

Expropriation and compensation VGG

T

Sect. VGGT Indicator

Polic

y

La

w Basis for assessment Recommendations

obtain permission

from the

government

agencies

concerned with the

project by

presenting them with

project plans.

2. Land issued

under Section 1 of

this article shall not

be used for buildings

or houses unrelated

to the project.

12.6

The legal

framework

requires

parliamentary

approval for

transfers

exceeding

the ceiling.

0

0

Law: No relevant

statement could be

located in the

existing legal

framework.

Government should

establish and maintain

a legislative

environment and

institutional

arrangements to large

scale land based

investment and to

protect the rights of

relevant stakeholders.

The arrangement

should have to keep

the parliament in the

loop

12.6

The legal

framework

provides

incentives for

investors to

seek

partnerships

with local

tenure right

holders.

0 4

National constitution

Art. 11 (1,3):

1. The state shall lay

down the national

economic policy

based on the

principles of free

enterprise and the

joint working of

private property,

public property, the

national wealth and

foreign investment

Foreign Investment

Law should be

amended in light of

this VGGT principle

and ensure legitimate

tenure rights of

individuals or

communities are not

infringed on by the

need of supporting

foreign investments.

29

Guiding Principle 2: Protection of tenure rights against threats and

infringements

Expropriation and compensation VGG

T

Sect. VGGT Indicator

Polic

y

La

w Basis for assessment Recommendations

so as to realize the

growth of

productivity, the

raising of the

standard of living,

the creation of jobs,

and, in general, the

advancement of the

economy of the

nation.

3. The state shall

ensure the security

of foreign

investment in the

country. Such

investment shall be

regulated by law.

Foreign investment

law No. 29/2004

Art. 3:

Foreign Investment is

exempted from

payment of tax on

profit for a period of

three years from

commencing

operations. In

addition, after the

expiry of the initial

tax holiday period,

foreign investors shall

be entitled to a 50%

reduction of the tax

due for the profit

reinvested.

The government

should be responsible

to promote

transparency of all

parties throughout the

investment process.

12.8

The legal

framework

encourages

responsible

investments

that respect

0 4

Foreign investment

law No. 29/2004

Art. 4(d):

Priority shall be given

foreign investment in

those areas where it:

Laws for

local/domestic

investments should be

provided framework

including investments

30

Guiding Principle 2: Protection of tenure rights against threats and

infringements

Expropriation and compensation VGG

T

Sect. VGGT Indicator

Polic

y

La

w Basis for assessment Recommendations

human rights,

promote food

security and

sustainable

use of the

environment.

d) Contributes to

regionally balanced

socio-economic

development, this

refers especially to

foreign investment

in, or closely related

to:

I- Agriculture

II- Livestock

III- Fishing

IV- Mineral

resources

V- Industrial

activities using

significant amount

of inputs produced,

by afore-mentioned

sectors.

Agricultural land

ownership law No.

08/1999

Art. 17 (1,2):

1. Pastoral land

may not be turned

to rain fed farm

2. Irrigated farm

can be formed in

the pastoral land,

provided that such

farm may not block

routs for livestock

watering or the

yards of the wells

Draft forests and

fauna law No.

69/2014

Art. 21:

Prohibition of

hunting, licensing,

in agriculture,

livestock, fisheries and

mining.

The legal framework

should control and

guide large scale land

based investment to

make it commercially

viable and profitable

business, structured to

provide maximum

benefit for the national

economy and improve

the livelihood of local

communities

31

Guiding Principle 2: Protection of tenure rights against threats and

infringements

Expropriation and compensation VGG

T

Sect. VGGT Indicator

Polic

y

La

w Basis for assessment Recommendations

dealing, exporting of

wild life and species

of birds

12.8

The legal

framework

requires

agreements for

investments to

clearly define

the rights and

duties of all

parties to the

agreement.

0 0

Foreign investment

law exists but, no

specific provisions

directly addressing

this issue could be

located

12.8

The legal

framework

requires

agreements for

investments to

comply with

national

legislation and

investment

laws.

0 4

Foreign investment

law No. 29/2004

Art. 10(3):

3. The Board

shall notify, through

the office, the

approval of a

foreign investment

by issuing a

“certificate of

Foreign Investment

in an approved

enterprise”. Such

approval shall be

construed by the

foreign investor as

being eligible for

registration under

this law.

Standard and detailed

investment agreement

templates (like MoU…)

based on the law and

carrying the rights and

duties of all parties

should be designed

with community

involved in its

designing stage

12.9

The legal

framework

provides for the

consultation of

all stakeholders

prior to the

transaction of

tenure rights,

including

partnership

agreements.

0 0

Law: No relevant

statement could be

located in the

existing legal

framework.

Somali customary

rules and Sharia

require consultation

to be done on issue

Policy and legislations

should clarify the

procedures for land

acquisition by

government and

private investors.

Land information

system need to be set

up

32

Guiding Principle 2: Protection of tenure rights against threats and

infringements

Expropriation and compensation VGG

T

Sect. VGGT Indicator

Polic

y

La

w Basis for assessment Recommendations

before

agreements/adopti

on

12.9

Professional

assistance is

available to

ensure that

men and

women are

aware of their

tenure rights

and can

participate in

consultations.

0 0

Law: No relevant

statement could be

located in the

existing legal

framework

There should be

land information

system and

community support

units at

national/regional/distri

ct levels

12.10

The legal

framework

requires an

independent

assessment to

be carried

out, to identify

the potential

positive and

negative

impact of

large-scale

transactions

of tenure

rights on men

and women’s

tenure rights.

0 0

Law: No relevant

statement could be

located in the

existing legal

framework

Any assessment should

involve communities

affected by the

planned land

acquisition for large

scale investments

Environmental Impact

Assessment (EIA)

should be a

prerequisite to

planned investments

12.10

The legal

framework

requires an

independent

assessment to

be carried out

to identify the

potential

positive and

negative

0 0

Law: No relevant

statement could be

located in the

existing legal

framework

The law must

accommodate the

results of rigorous,

holistic and

independent

environmental and

social impact

assessments of large

scale land based

investments that must

33

Guiding Principle 2: Protection of tenure rights against threats and

infringements

Expropriation and compensation VGG

T

Sect. VGGT Indicator

Polic

y

La

w Basis for assessment Recommendations

impact of

large-scale

transactions

of tenure

rights on food

security and

the realisation

of the right to

adequate

food.

be utilized to confirm

the desirability of large

scale investment prior

to their approval

12.10

The legal

framework

requires

legitimate

formal and

informal tenure

rights of men

and women to

be identified

and recorded,

including

spousal rights.

0 4

Agricultural land

ownership law No.

08/1999

Art. 16

Ministry of

Agriculture will keep

agricultural land

master plan and

registry to record the

details of owners

and land allocation

conditions

Land policy has to

provide for a

decentralized land

administration but also

unified centralized

land registration and

cadastral system – to

centralize information

on tenure rights.

12.12

Under the

law, investors

have the

obligation to

recognise and

respect

tenure rights.

0 3

Law: No relevant

statement could be

located in the

existing legal

framework

Foreign investment

law No. 49/2004

does not compel

investors to respect

tenure rights

This VGGT principle

should be reflected in

land policy and

legislations to ensure

investors recognize

and respect tenure

rights of indigenous

and other people

The investment law

should be amended to

reflect the VGGT

principle

12.14

An effective

system is in

place to

monitor the

implementati

on and

impact of

0 0

Law: No relevant

statement could be

located in the

existing legal

framework

Based on a law, the

government should

have to develop and

implement an M&E

framework and

associated

standardized

34

Guiding Principle 2: Protection of tenure rights against threats and

infringements

Expropriation and compensation VGG

T

Sect. VGGT Indicator

Polic

y

La

w Basis for assessment Recommendations

agreements

involving

large-scale

transactions in

tenure rights.

Investment law is

also silent on setting

up a monitoring

system to monitor

the impact of

agreements

involving large-scale

transactions in

tenure rights.

indicators as a tool for

lesson learning and

ultimately for the

improvement of the

effectiveness of large

scale land based

investment

12.14

A grievance

mechanism is

in place to

ensure that

affected

parties can

seek

corrective

action.

0 4

Agricultural land

ownership law No.

08/1999

A

Art. 19:

The competent

court may try land

dispute cases

relating to this law

Customary rule

Clan protection is an

informal agreement

that the parties use

to safeguard their

interests, and clan

elders are usually

standby to respond

such grievances

Sharia rule

Infringement of

individuals or group

rights is prohibited.

Arbitration and

mediation

mechanisms should be

put in place and

reflect practices in

existing functional

systems (including

customary

mechanisms) while

rules of procedure are

laid down and due

process requirements

are met

Guiding Principle 3: Promote and facilitate the enjoyment of legitimate tenure

rights VGGT

Sect. VGGT Indicator Policy Law Basis for assessment Recommendations

6.3

Elimination of

unnecessary

0 0

Law: No relevant statement

could be located in the

existing legal framework

Land

legislations

35

legal and

procedural

requirements

related to

tenure rights.

need to be

revised with a

view to either

ensure

complementary

between

different sets of

laws or to come

up with a

comprehensive

single law with

regulations and

additional

administrative

decrees,

including

transparent and

accessible

procedures of

tenure

recognition,

allocation and

transactions

Guiding Principle 4: Access to justice

Resolution of disputes over tenure rights VGGT

Sect. VGGT Indicator Policy Law Basis for assessment Recommendations

21.1

The legal

framework

guarantees

gender-

equal access

to judicial

systems and

statutory or

customary

dispute

resolution

mechanisms

to resolve

disputes over

tenure rights.

0 4

National constitution:

Art. 8(1):

All citizens of

Somaliland shall

enjoy equal rights

and obligations

before the law, and

shall not be

accorded

precedence on

grounds of colour,

clan, birth, language,

gender, property,

status, opinion etc.

Article 28:

Every person shall

have the right to

institute proceedings

The Constitutional

provisions should be

implemented by

instituting more judicial

institutions and providing

legal aid to improve the

accessibility of court to

ordinary people

Traditional dispute

resolution mechanism

should be

institutionalized through

appropriate policy and

legislation to manage

36

in a competent court

in accordance with

the law

Law of the

Organization of

Judiciary No.

24/2003

Art. 4:

Any person can file a

case before the

competent court

according to law

Note: women’s

access to justice in

customary/traditional

systems of dispute

resolution is still an

issue. Women should

have to have male

representatives to

bring their cases

before the elders,

and therefore, in

many cases women

prefer ordinary courts

fragmentation of legal

systems

Procedural rules of

mediation and

arbitration should be

adopted to reflect

equality and fair trail

principles

21.1

Impartial and

competent

judicial and

administrative

bodies provide

timely,

affordable

and effective

remedies to

disputes over

tenure rights.

0 4

Urban land

management law

No. 17/2001

Art. 28(1):

1. The first stage

of land disputes shall

be resolved by

administrative

tribunal, which will

issue decision

regarding the

dispute.

Land dispute

regulation No.

01/2014

Art. 19(1):

Disputes related to

land will be

Administrative tribunal

should be put in place

to resolve land disputes

in the first instance,

including through

mandate to hear cases

against various

implementing agencies

Enforcement of land

dispute administrative

decisions or judicial

judgments should have

to be strategized to

promote the rule of law

37

adjudicated by land

dispute tribunals, in its

first instance

21.1

A right to

appeal exists

in justice

systems,

including in

customary

justice

systems.

0 4

National constitution

Art. 100:

The courts of the

Republic of

Somaliland shall

consist of: Supreme

Court; Regional

Courts of Appeal;

Regional Courts; and

District Courts.

Urban land

management law

No. 17/2001

Art. 28:

5. Anybody who

is not satisfied with

the decision of the

tribunal has the right

to appeal to the

supreme court within

one month. The cost

of appealing shall be

covered by the

person disputing the

decision of the

committee. The fee

for handling land

disputes shall be

obtained by the

court

Customary:

Appealing happens

in the Somali

customary justice

system, but it is

limited to certain

critical issues that

may have been

identified after the

judgment

Law on the organization

of the judiciary should

have improve

appealing process from

the decisions of the

administrative/executive

organs

Any law governing

mediation and

arbitration mechanisms

should provide for the

right of appeal to

regular courts

21.5 Clear

mechanisms 0 4

Law on the

Prevention of the

38

are in place

to prevent

corruption in

dispute

resolution

mechanisms.

Misappropriation of

Public Assets & on

Combatting

Corruption – Law No.

38/2007

Art. 7:

Prohibition of bribe or

other illegitimate

gain or misuse/abuse

of power in

exchange of

opportunities and the

punishments there to

Urban land

management law

No. 17/2001

Art. 1(3):

5. The

interference of the

Military and other

government

branches (except

those stated in

Section 1 and 2 of

this article) in the

management of

land is illegal

Loopholes in the

legislation should be

eliminated while clear

procedures are

developed to prevent

abuse of power and to

tackle corruption

21.6

The law

makes

provision for

legal

assistance in

civil

procedures.

0 4

National Constitution

Art. 28(3):

The state shall

provide free legal

defense in matters

which are

determined by the

law, and court fees

may be waived for

the indigent.

Customary:

In the Somali

customary rules, the

person who is party

to a dispute may be

represented by

someone from his

39

clan whom he thinks

can advocate for

him better

Guiding Principle 5: Prevention of disputes, conflicts and corruption

VGGT

Sect. VGGT Indicator Policy Law Basis for assessment Recommendations

25.3

A policy

supports the

revision or

repeal of

discriminatory

legal

instruments.

1 1

National Constitution

Art. 36(2):

The Government

shall encourage, and

shall legislate for the

right of women to be

free of practices

which are contrary to

Sharia and which are

injurious to their

person and dignity

Note: Judicial reform

program has been

adopted in 2013 to

improve the quality

of services of the

judiciary, but it has

not been fully

implemented yet

Elder’s national

declaration in 2006 was

an advisory declaration

produced by the fast

majority of clan chiefs to

support harmonizing

statutory and customary

rules on Standardizing

the differing codes of

the Somaliland

customary laws, Support

the establishment of

permanent links

between the traditional

leaders and other

relevant national

institutions such as the

parliament, police,

judiciary, and the

ministers of interior,

justice, and environment

should be addressed

and incorporated into

legislation and policy

development.

40

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Draft Law on the Organization of the Cabinet

Forests Conservation and Fauna Law No. 69/2014

FAO 2005, Participatory and Negotiated Territorial development (PNTD) approach. http://www.fao.org/sd/dim_pe2/docs/pe2_050402d1_en.pdf

Fishery Law No. 24

http://www.somalilandlaw.com/somaliland_constitution.htm

Ibrahim Farah Abdirashid Hussein and Jeremy Lind, 2002 Deegaan, Politics and

War in Somalia

IDLO.2010. Evaluating the effectiveness of legal empowerment approaches to

customary law reform in Somaliland and Puntland

Law on the Organization of Judiciary Law No. 24/2003

Lewis, I. 1961. A Pastoral Democracy: A Study of Pastoralist and Politics among

the Northern Somali of the Horn of Africa

Livestock welfare Law No. 34/2006

Ministerial Regulation on Land Dispute No. 01/2014

Nagaad Network. 2010. Women Human Rights in Somaliland

National Environmental and Disaster preparedness law No.35/2006

National Water Act Law 49/2011

Nuzhat Iqbal. 2001, the concept of land ownership in Islam

Prevention of Degradation and Deforestation Law (Law No. 04/1998)

Regions and District Law No. 23/2002

Somalia Water and Land Information Management, http://www.faoswalim.org/

Somaliland Cadastral Survey http://www.mbali.info/doc402.htm

Somaliland, Constitution, 2001

UN-Habitat.2006. Somaliland, Puntland State of Somalia. The land legal

framework

Urban Land Management Law NO. 17/2001 as amended in 2008

Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries

and Forests in the Context of National Food Security (VGGT), CFS and FAO, 2012