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 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 1 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 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 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 3 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