An Analysis of Legal Issues Related to Land in 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 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

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. 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 supported by judicial commission. The judiciary is headed by the chairman of the supreme and constitutional , which is the highest court of the land. According to the , 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 and its boundaries are defined by the in the north, main Somalia in the east, in the south-west, and the Republic of 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 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 -, 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 2

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 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 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 3

1.2. Objectives and methodology

The main purpose of the present legal assessment to analyze the 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 , policies and other materials, key-informant interviews, filed observations and focus group discussions.

2. Somaliland legal system

Following independence in 1960, Italian Somaliland and 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 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 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 . 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 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 , customary law () and sharia law.

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The constitution determines the statutory laws to be set down by a . It includes primarily Acts of parliament, administrative 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 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 and help mediate and decide cases using . 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 ()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 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 5

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 . This legal structure is said to have the structure of restricting access to 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 and with . It further states that Somaliland shall respect the Universal Declaration of . 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 .

12 Official version to refer is the Somali and it has same meaning as in this English version (Somalilandlaw.com) 6

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 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 7

verification) contributed to the success of the programme and its impact on peace. For example, , 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 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 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 has the authority to issue 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 10

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 11

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

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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 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 () 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,

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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/, 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 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 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; is a key factor that leads to the complexity of land dispute resolution, because fragmentation of laws can accommodates constant conflict of institutional

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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 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

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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

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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 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.

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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.

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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 Law in the early stage of 1 development (informal draft development (informal draft available) available) Policy in formal adoption Draft law in formal adoption 2 process (formal draft available) process (formal draft available) Policy formally adopted Law adopted 3 Element of policy appears in Element of law appears in 4 multiple implementing policy multiple implementing legal instruments (strategies, plans, instruments programme, etc.)

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Guiding Principle 1: Recognition and respect of all tenure rights holders and their rights Legal recognition and allocation of tenure rights and duties VGGT Policy Law Sect. VGGT Indicator Basis for assessment Recommendations Deegaan/clan Law: territory National Constitution: (customary) land Art. 12: rights should be The land is a public considered and property commonly addressed in any owned by the nation, and land policy and the state is responsible for law to be it developed

Art. 31: The term property The law “Every person has the right needs to be recognizes all to own private property, if defined clearly in existing tenure it is acquired lawfully. land policy rights, Private property acquired document and including 7.3 1 1 lawfully shall not be to customary expropriated except for show if it includes tenure rights, reasons of public interest land. whether and provided that proper recorded or compensation is paid” All existing draft not. policies on land

Policy: should be brought There are sector-specific together with a policies, e.g. a draft land view come up tenure policy and a land with a policy discussion paper, comprehensive but they do not address land policy, which land governance in a recognizes all holistic manner. tenure rights, in a participatory process. Law: Harmful customary Under the Constitution: practices law, men and Art. 36: including those women have The rights, freedoms and affecting women’s 7.4 the same 0 3 duties laid down in the rights to land tenure rights, Constitution are to be should be including in enjoyed equally by men abolished by customary and women save for policies and systems. matters which are legislations. The

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specifically ordained in elders declared Islamic Sharia. about the Art. 31: pending inter and Every person shall have intra conflict cases the right to own private to be resolved, property, provided that it properties looted is acquired lawfully. 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

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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 The law or

policy Urban Land Management Rules of provides for Law No. 17/2001 procedure to the systematic Art. 15 (1): manage legal Plots shall be distributed in allocation process recognition accordance with the and tenure and principles of equality and governance allocation of justice as all citizens enjoy should be tenure rights equal rights designed to of men and 7.4 0 4 reduce abuse of women, Agricultural land power families and ownership law No 08/1999: communities Art. 13: Inheritance law to provide full When an owner dies, land should provide opportunities ownership will be procedures of to acquire transferred/distributed to recognizing legal the heirs according to the inheritance rights recognition of Islamic law of both women their tenure and men rights. 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 The Agricultural land Administrative registration ownership law No 08/1999: regulation to system Art. 4 clarify process and 17.1 organises the 0 4 After the Land and Water steps on recording, department of the Ministry recording, updating and of Agriculture prepares updating and publication of ownership documents, it

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tenure rights will be passed to the publication of and duties of Minister to ensure and tenure is needed. the holder, then return it the Ministry of including his department to complete Agriculture uses or her family registration process of the GIS coordinates status and agricultural land and generate associated certificate with the spousal rights. information, but Art. 6 the procedure Only one ownership should always be document will be issued written for the newly acquired land of any family or individual

Urban land management Land law No. 17/2001 Administration Art. 27 regulations should 1. The local authority provide for a of the town shall keep harmonized and registers for recording the centralized Land different types of plots and Register and the titles to the buildings Cadastral for the thereon. entire country (in 2. The registration of the land registry, plots shall be based on land use legal title documents or demarcation other documents should be made certifying ownership of the before). 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

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traditional materials does not require titles) Land administration services are accessible and the personnel have the appropriate knowledge to deliver Law: No relevant provision information on could be located in 17.3 the tenure 0 0 existing legal framework rights of men and women, including spousal rights and the capacity to ensure that woman’s tenure rights are protected. Provision for Law: No relevant provision systematic land The law on land valuation could valuation requires be located in the existing procedure should 18.4 transparency 0 0 legal framework but the be provided in in valuing law allows sale of land as land policy and tenure rights. per below sections relevant legislations. The law Any reform in land ensures that valuation should valuation not undermine systems take tenure and not be Law: No relevant provision into account could be located in the counterproductive non-market existing legal framework. to free market values, such There are no laws on the principles 18.4 0 0 as social, valuation systems of land. cultural, It is only market which religious, determines, and market is spiritual and mainly unregulated environmental values where applicable.

Sale prices Urban land management 18.4 and other 0 3 law No. 17/2001: relevant Art. 25 (1, 2):

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information 1. Anybody who has are recorded, been given title to land for analysed and permanent use and has made paid all annual taxes due accessible to may sell, donate, transfer provide a or use the plot for any basis for legal purpose. accurate and 2. Individuals who reliable occupy vacant land for assessments speculative commercial of values 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 Valuation information Law: No relevant provision 18.5 and analyses 0 0 could be located in the are available existing legal frameworks to the public

Guiding Principle 2: Protection of tenure rights against threats and infringements Expropriation and compensation VGG Polic La T VGGT Indicator y w Basis for assessment Recommendations Sect. Law: Land use planning Constitution: should be provided for Art. 31: in land policy and Private property legislation and should acquired lawfully clarify land use The legal shall not be planning in rural and framework expropriated except urban areas. provides a clear for reasons of public definition of the interest and Terms and condition 16.1 0 3 concept of provided that for land expropriation expropriation proper should be clearly for public compensation is defined in policy and purpose. paid. law. Procedures for expropriation should Urban land take into consideration management law land rights of No. 17/2001 individuals or groups Art. 1(1,2): that have legitimate

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Guiding Principle 2: Protection of tenure rights against threats and infringements Expropriation and compensation VGG Polic La T VGGT Indicator y w Basis for assessment Recommendations Sect. 2. The President claim over the land of Somaliland, after targeted for consulting with the expropriation. Cabinet and the National (Urban Land) Planning Committee, has the authority to issue 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 The legal Urban land Government valuation framework 16.1 0 4 management law system needs to be provides for defined in land policy prompt and just No. 17/2001

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Guiding Principle 2: Protection of tenure rights against threats and infringements Expropriation and compensation VGG Polic La T VGGT Indicator y w Basis for assessment Recommendations Sect. compensation to Art. 5(4): and a land valuation the affected 4. The National unit should be tenure right Planning Committee established by a legal holders, including National Urban instrument. to subsidiary right Planning Committee Qualifications of land holders such as is responsible for the valuers should be the spouse. evaluation of the clearly defined in the costs and payment law to ensure that non- of compensation for professionals do not the properties take responsibility for affected by the re- land and property planning valuation Investments No law that addresses the issue Investment in directly could be communal/deegaan located, but territory should be

National Constitution clarified in land policy The legal Art. 12 and legislations. framework ……The protection sets ceilings and the best means Any land based on permissible of the exploitation of investment should land these natural respect the existing, transactions resources shall be customarily-defined to protect determined by law. rights of local people legitimate and communities to tenure rights, land and land related human rights, 12.6 0 0 Urban land resources livelihoods, management law It could also set food security No. 17/2001 ceilings on permissible and the Art. 16: land transactions environment 1. Anybody who from risks that desires land for the could arise implementation of from large- special projects scale which are part of transactions in the development of tenure rights. the country, such as

factories, educational institutions, tourist hotels etc. shall

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Guiding Principle 2: Protection of tenure rights against threats and infringements Expropriation and compensation VGG Polic La T VGGT Indicator y w Basis for assessment Recommendations Sect. 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.

Government should establish and maintain a legislative

environment and The legal institutional framework arrangements to large requires Law: No relevant scale land based parliamentary statement could be 0 0 investment and to 12.6 approval for located in the protect the rights of transfers existing legal relevant stakeholders. exceeding framework. The arrangement the ceiling. should have to keep the parliament in the loop National constitution Art. 11 (1,3): Foreign Investment The legal 1. The state shall lay Law should be framework down the national amended in light of provides economic policy this VGGT principle incentives for based on the and ensure legitimate investors to 12.6 0 4 principles of free tenure rights of seek enterprise and the individuals or partnerships joint working of communities are not with local private property, infringed on by the tenure right public property, the need of supporting holders. national wealth and foreign investments. foreign investment

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Guiding Principle 2: Protection of tenure rights against threats and infringements Expropriation and compensation VGG Polic La T VGGT Indicator y w Basis for assessment Recommendations Sect. so as to realize the The government growth of should be responsible productivity, the to promote raising of the transparency of all standard of living, parties throughout the the creation of jobs, investment process. 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 legal Foreign investment framework law No. 29/2004 Laws for encourages Art. 4(d): local/domestic 12.8 0 4 responsible Priority shall be given investments should be investments foreign investment in provided framework that respect those areas where it: including investments

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Guiding Principle 2: Protection of tenure rights against threats and infringements Expropriation and compensation VGG Polic La T VGGT Indicator y w Basis for assessment Recommendations Sect. human rights, d) Contributes to in agriculture, promote food regionally balanced livestock, fisheries and security and socio-economic mining. sustainable development, this use of the refers especially to The legal framework environment. foreign investment should control and in, or closely related guide large scale land to: based investment to I- Agriculture make it commercially II- Livestock viable and profitable III- Fishing business, structured to IV- Mineral provide maximum resources benefit for the national V- Industrial economy and improve activities using the livelihood of local significant amount communities 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,

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Guiding Principle 2: Protection of tenure rights against threats and infringements Expropriation and compensation VGG Polic La T VGGT Indicator y w Basis for assessment Recommendations Sect. dealing, exporting of wild life and species of birds The legal Foreign investment framework law exists but, no requires specific provisions agreements for directly addressing investments to 12.8 0 0 this issue could be clearly define located the rights and duties of all parties to the agreement. Foreign investment Standard and detailed law No. 29/2004 investment agreement Art. 10(3): templates (like MoU…) 3. The Board based on the law and shall notify, through carrying the rights and The legal the office, the duties of all parties framework approval of a should be designed requires foreign investment with community agreements for by issuing a involved in its investments to 12.8 0 4 “certificate of designing stage comply with national Foreign Investment legislation and in an approved investment enterprise”. Such laws. approval shall be construed by the foreign investor as being eligible for registration under this law. The legal framework Policy and legislations provides for the Law: No relevant should clarify the consultation of statement could be procedures for land all stakeholders located in the acquisition by prior to the 12.9 0 0 existing legal government and transaction of tenure rights, framework. private investors. including Somali customary partnership rules and Sharia Land information agreements. require consultation system need to be set to be done on issue up

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Guiding Principle 2: Protection of tenure rights against threats and infringements Expropriation and compensation VGG Polic La T VGGT Indicator y w Basis for assessment Recommendations Sect. before agreements/adopti on

Professional There should be assistance is land information available to Law: No relevant system and ensure that statement could be community support men and located in the units at 12.9 women are 0 0 existing legal national/regional/distri aware of their tenure rights framework ct levels and can participate in consultations. The legal Any assessment should framework involve communities requires an affected by the independent planned land assessment to Law: No relevant acquisition for large be carried statement could be scale investments out, to identify located in the the potential existing legal Environmental Impact 12.10 positive and 0 0 framework Assessment (EIA) negative should be a impact of prerequisite to large-scale planned investments transactions of tenure rights on men and women’s tenure rights. The legal The law must framework accommodate the requires an results of rigorous, independent Law: No relevant holistic and assessment to statement could be independent 12.10 0 0 be carried out located in the environmental and to identify the existing legal social impact potential framework assessments of large positive and scale land based negative investments that must

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Guiding Principle 2: Protection of tenure rights against threats and infringements Expropriation and compensation VGG Polic La T VGGT Indicator y w Basis for assessment Recommendations Sect. impact of be utilized to confirm large-scale the desirability of large transactions scale investment prior of tenure to their approval rights on food security and the realisation of the right to adequate food. Agricultural land Land policy has to The legal framework ownership law No. provide for a requires 08/1999 decentralized land legitimate Art. 16 administration but also formal and Ministry of unified centralized informal tenure Agriculture will keep land registration and 12.10 0 4 rights of men agricultural land cadastral system – to and women to master plan and centralize information be identified registry to record the on tenure rights. and recorded, details of owners including and land allocation spousal rights. conditions This VGGT principle Law: No relevant should be reflected in statement could be land policy and Under the located in the legislations to ensure law, investors existing legal investors recognize have the framework and respect tenure 12.12 obligation to 0 3 rights of indigenous recognise and Foreign investment and other people respect law No. 49/2004 tenure rights. does not compel The investment law investors to respect should be amended to tenure rights reflect the VGGT principle An effective Based on a law, the system is in Law: No relevant government should place to statement could be have to develop and 12.14 monitor the 0 0 located in the implement an M&E implementati existing legal framework and on and framework associated impact of standardized

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Guiding Principle 2: Protection of tenure rights against threats and infringements Expropriation and compensation VGG Polic La T VGGT Indicator y w Basis for assessment Recommendations Sect. agreements Investment law is indicators as a tool for involving also silent on setting lesson learning and large-scale up a monitoring ultimately for the transactions in system to monitor improvement of the tenure rights. the impact of effectiveness of large agreements scale land based involving large-scale investment transactions in tenure rights. Agricultural land Arbitration and ownership law No. mediation 08/1999 mechanisms should be A put in place and reflect practices in Art. 19: existing functional The competent systems (including court may try land customary A grievance dispute cases mechanisms) while mechanism is relating to this law rules of procedure are in place to laid down and due ensure that Customary rule process requirements 12.14 affected 0 4 Clan protection is an are met parties can informal agreement seek that the parties use corrective to safeguard their action. interests, and clan elders are usually standby to respond such grievances

Sharia rule Infringement of individuals or group rights is prohibited.

Guiding Principle 3: Promote and facilitate the enjoyment of legitimate tenure rights VGGT Policy Law Sect. VGGT Indicator Basis for assessment Recommendations Law: No relevant statement 6.3 Elimination of 0 0 could be located in the Land unnecessary existing legal framework legislations

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legal and need to be procedural revised with a requirements view to either related to ensure tenure rights. 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 Policy Law Sect. VGGT Indicator Basis for assessment Recommendations National constitution: Art. 8(1): The legal All citizens of The Constitutional framework Somaliland shall provisions should be guarantees enjoy equal rights implemented by gender- and obligations instituting more judicial equal access before the law, and institutions and providing to judicial shall not be legal aid to improve the systems and accorded accessibility of court to 21.1 statutory or 0 4 precedence on ordinary people customary grounds of colour, dispute clan, birth, language, resolution gender, property, Traditional dispute mechanisms status, opinion etc. resolution mechanism should be to resolve disputes over Article 28: institutionalized through appropriate policy and tenure rights. Every person shall have the right to legislation to manage institute proceedings

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in a competent court fragmentation of legal in accordance with systems the law Procedural rules of mediation and Law of the arbitration should be Organization of adopted to reflect Judiciary No. equality and fair trail 24/2003 principles 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

Urban land management law Administrative tribunal No. 17/2001 should be put in place Art. 28(1): to resolve land disputes 1. The first stage Impartial and in the first instance, competent of land disputes shall including through judicial and be resolved by mandate to hear cases administrative administrative against various bodies provide tribunal, which will implementing agencies 21.1 timely, 0 4 issue decision affordable regarding the Enforcement of land and effective dispute. remedies to dispute administrative decisions or judicial disputes over Land dispute tenure rights. judgments should have regulation No. to be strategized to 01/2014 promote the Art. 19(1): Disputes related to land will be

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adjudicated by land dispute tribunals, in its first instance National constitution Art. 100: Law on the organization The courts of the of the judiciary should Republic of have improve Somaliland shall appealing process from consist of: Supreme the decisions of the Court; Regional administrative/executive Courts of Appeal; organs Regional Courts; and District Courts. Any law governing mediation and Urban land arbitration mechanisms management law should provide for the No. 17/2001 right of appeal to Art. 28: regular courts 5. Anybody who is not satisfied with A right to the decision of the appeal exists tribunal has the right in justice to appeal to the systems, supreme court within 21.1 0 4 including in one month. The cost customary of appealing shall be justice covered by the systems. 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 Clear Law on the 21.5 0 4 mechanisms Prevention of the

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are in place Misappropriation of to prevent Public Assets & on Loopholes in the corruption in Combatting legislation should be dispute Corruption – Law No. eliminated while clear resolution 38/2007 procedures are mechanisms. Art. 7: developed to prevent Prohibition of bribe or abuse of power and to other illegitimate tackle corruption 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 and other government branches (except those stated in Section 1 and 2 of this article) in the management of land is illegal

National Constitution Art. 28(3): The state shall provide free legal in matters which are The law determined by the makes law, and court fees provision for may be waived for 21.6 legal 0 4 the indigent. assistance in

civil Customary: procedures. In the Somali customary rules, the person who is party to a dispute may be represented by someone from his

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clan whom he thinks can advocate for him better

Guiding Principle 5: Prevention of disputes, conflicts and corruption

VGGT Policy Law Sect. VGGT Indicator Basis for assessment Recommendations Elder’s national declaration in 2006 was National Constitution an advisory declaration Art. 36(2): produced by the fast The Government majority of clan chiefs to shall encourage, and support harmonizing shall legislate for the statutory and customary right of women to be rules on Standardizing free of practices the differing codes of A policy which are contrary to the Somaliland supports the Sharia and which are customary laws, Support revision or injurious to their the establishment of 25.3 repeal of 1 1 person and dignity permanent links discriminatory between the traditional legal Note: Judicial reform leaders and other instruments. program has been relevant national adopted in 2013 to institutions such as the improve the quality parliament, police, of services of the judiciary, and the judiciary, but it has ministers of interior, not been fully justice, and environment implemented yet should be addressed and incorporated into legislation and policy development.

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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

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