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A Road Map to Land Disputes in Somalia:
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Since the collapse of the central government in Somalia, land dispute cases have become common and widespread in the country. This is particularly so in the northern region of Somalia (“Somaliland”). “Somaliland” has experienced a history of massive population shifts: In the 1980s Hargeysa, Borama and other cities in the north have absorbed significant numbers of displaced refugees from the Somali Regional State in Ethiopia during the Somali war with Ethiopia. After over a decade of establishing live in the northern region, the 1988-90 came with the civil war and the collapse of the Somali State which prompted the return of refugees from the northern region back to Ethiopia. This also led to the repatriation of northern refugees to Somaliland. Such shifts of populations, plus the pull factor that Hargeysa presents, where many nomads flock into major cities and Hargeysa’s emergence as the only livable city in the entire northern region, have generated a perfect environment for land disputes. Those who owned in the past vs. current legitimate owners/occupiers of urban land are straining the power of the authorities in “Somaliland”.
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Hargeysa - the major Urban Center in Somaliland |
In the south the illegal occupation of residential homes and farm properties particularly in Mogadishu and lower Shabelle region highlights the dire need to address the land dispute.
While most disputes may be resolved peacefully through existing local traditional or judicial processes, there are cases that may get out of control and lead to potential violence with serious consequences for peace and the maintenance of law and order. This is so when the dispute is amongst members of the same clan or clans that place claim on Hargeysa and its suburbs.
A case in point is the incident that took place in Hargeysa in December 2005, when a long-standing dispute over a plot of land escalated to a violent shooting where one of the claimant parties was killed. The incident soon generated hostilities between the relatives of the two parties, which led to a wider inter clan tension and mob riots in the city.
In an effort to keep the peace, the police opened fire on the crowd, and as a result, many were wounded with serious casualties. The attempt of the authorities to use force further intensified the tension. But thanks to the timely intervention by the “Somaliland” House of Elders (Guurti), peace was restored and the problem was tackled through appropriate traditional mediation mechanisms.
The Hargeysa land dispute incident represents only one of the large numbers of similar pending cases which, if not resolved, could seriously disrupt the peace and stability of the entire Somali peninsula. There are also reports of the illegal possession and occupation of personal properties including residential homes, farms, etc in Mogadishu, Merka, and several places in the Shabelle regions, Kismayo etc., which could give rise to legitimate civil suits and claims. How Hargeysa solves this nagging land dispute could be a lesson for future efforts in tackling this problem in the more complex situation of the South.
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Surveying, delineating and registering land boundaries in the farming areas of Gebiley District. |
So far, in “Somaliland,” the main problem of land dispute cases originates essentially from the incapacity of competent local institutions to intervene and the weakness of the courts to effectively exercise their authorities properly and expeditiously. The difficulty at present - aside from a legitimized and generally accepted legal system - is the need of some process to begin to sort out rival claims to land and resources. It is therefore of paramount significance and urgency to set up a Land Dispute commission to establish principles upon which local land disputes should be settled, but surely the problems have to be dealt with at the local level, which calls for some grass-roots procedures and mechanisms to be put in place.
There seem to be two aspects that have to be discussed, agreed primarily by the stakeholders and implemented. a) The first is the procedures that have to be used and the second b) is the institutions to apply these procedures.
On the first of these, local Somali procedures that have traditionally been used to settle land ownership disputes in the past might well be adapted for use in the future, along with some more established western legal processes that could be applied to fit present circumstances. It might be possible to construct some hybrid processes that would be acceptable to adversaries; principles on which a solution might be based (i.e. the combination of long term occupancy, productive use, historical title, previous wards by a court, etc) and then to proceed with invoking these agreed principles to the actual details of the case in question. The whole point about such procedures is that they are actually facilitated by a three party negotiation rather than strict legal process of rule of application.
Of course, the question is how to operate such processes and who gets to facilitate these negotiations, or mediate disputes? One suggestion here might be to adopt procedures to establish a system which gives adversaries a choice of which option of legal procedures, mediation, binding or non binding arbitration, facilitated negotiations or some traditional Somali methods for settling disputes. In some parts of the US, like Washington DC, for example, this is known as the multi-Door Court house and the metaphor is a court with several options each of which uses a different procedure for dealing with a dispute whether through a judicial, arbitration or mediation process.
Although traditional methods for conflict resolution have been and continue to be used in land dispute cases, this cannot be a substitute to formal state legislation on the subject. For one thing, traditional methods are informal and unwritten and could create problems. If specific laws to regulate land property are not enacted and enforced disputes over land will continue to increase.
In the past, before the collapse of central authority, Somalia had a land tenure system and registration, which contained specific provisions to regulate land use and ownership. All land, both urban and rural, was declared to be state property and government had the legal authority to issue title deeds, transfer land, impose restrictions or acquire land for public uses (for institutional uses, schools, hospitals, parks, etc). Land use was also classified in different land use categories (residential, agricultural, commercial etc). The Ministry of public works, through local Governments and municipalities and the Minsitry of Agriculture, rigorously enforced land policy and legislation and imposed appropriate penalties for violation of the law.
Four years ago the “Somaliland” House of Representatives approved law No. 17/2001, which laid down the necessary administrative provisions and modalities to be followed to ensure proper registration of land property by local government authorities. This was a good move by the ““Somaliland”” authorities, but regrettably due to pressure by few interest groups, the draft law is still pending and needs to be implemented.
It is of paramount importance that national land tenure legislation is drafted, and be modeled after the proposed draft law No. 17/2001. Once a national government is achieved, such law should expeditiously be implemented at the federal level. The adoption of such legislation would establish a coherent systematic legal procedure on land use and ownership, prevent illegal claims and reduce land dispute cases in the future. This is a major challenge awaiting the TFG, “Somaliland,” “Puntland” and other semi-autonomous administrations. It is indeed imperative that land tenure be considered a priority issue in the legislative program of the Somali Transitional Parliament. The “Somaliland” land dispute and how it is tackling to regulate land tenure through legislation offers some valuable lessons to all regions
