EXECUTIVE SUMMARY
This report focuses on the Somali legal frameworks and institutional systems relating to land and on the historical background of the current landholding and ownership patterns in Somalia. However, it also looks at a much wider range of social, cultural, political, economic, and environmental contexts relating to land and examines some of the theoretical debates on land issues, in order to apply them to Somalia.
Due to security issues and time constraints, it is primarily a summary and synthesis of existing literature on these subjects (which has a number of limitations), but some field research was also carried out as a "reality check" of the desk review. It does not necessarily represent the views or policy of the three agencies that commissioned or funded the research − United Nations High Commissioner for Refugees (UNHCR), Norwegian Refugee Council (NRC), and United Nations Human Settlements Programme (UN-HABITAT).
Many of Somalia's political problems can be traced back to the imposition of centralized nation state structures on to existing decentralized and egalitarian systems, leading eventually to a zero-sum struggle between clans for control of the state apparatus and its resources, including land. Following the collapse of the Somali state, a number of groups have had political or economic incentives to oppose the process of building (or rebuilding) the state and to act as "spoilers" in any peace process. Considerable sums of money can be made by control of key real estate in a conflict economy. Formal governance structures have either limited capacity (as in the north of Somalia) or virtually no control at all (as in the south) and there has been a process of political fragmentation and "radical localization". Traditional governance structures remain very influential, especially in the north. Lack of state control or any other effective form of governance has led to widespread misuse or overuse of Somalia's natural resources and therefore to environmental degradation and damage. Deforestation resulting from the charcoal trade and increasing water scarcity are particular concerns. Somalia is heavily dependent on food imports (especially in the form of food aid, which distorts local markets); agricultural production and general food security are highly vulnerable to external shocks such as natural disasters (which for climatic and other reasons are relatively frequent) or bans on the export of livestock.
Somalia's human development indicators relating to housing and shelter (and related matters) are generally very poor but disguise significant disparities along regional, class, and rural-urban divides. The clan system is a fundamental but deeply controversial factor in Somali society, which can both divide and unite, depending on context. There is considerable debate as to the importance of clan loyalty in Somali politics and its role in the collapse of the state and subsequent civil wars. Some scholars argue that Somali society is by no means as homogeneous as it has been portrayed and that class, race, and other factors are also major "fracturing points". Clan identities can be very fluid and are also clearly influenced by external stimuli such as foreign assistance or the creation of new representation structures. The links between clans and particular "ancestral" areas of land are extremely contentious and have the potential to significantly destabilize any peace settlement, but they also reflect long-standing social dynamics. The various "minorities" include the Bravanese and other coastal groups, the very complex Bantu/Gosha grouping, and the traditional "outcaste" groups, but their exact identities and origins are difficult to clarify. They generally lose out in the power politics of Somali clan interrelations, particularly regarding control of land and access to justice. Women are often disadvantaged by conservative social norms and denied the entitlements or rights that Islam theoretically provides. The civil wars have had some effect on women's socio-economic position and gender relations, not always for the better.
Somalia's economy was "unconventional" well before the collapse of the Barre regime, with a failing and aid-dependent formal economy, a corrupt, centralized, and inefficient public sector, a thriving and mostly extra-legal private sector, and strong transnational trade links. The peculiarities of the pre-civil situation ironically made the configuration of the economy relatively well suited to the conflict economy that developed during the civil wars, but it remains heavily dependent on a high level of remittances and on foreign aid, which has had generally negative social and political effects. Public finance capacity is poor and the likely revenue streams for the state(s) of Somalia are very small in comparison both to the bloated and externally supported budgets of the Barre era and to the level of remittances and foreign aid. The private sector economy is primarily agricultural and remains underdeveloped; the negative effects of recent livestock bans have only been offset by the continuing flow of remittances, which contribute significantly to household income in urban areas and may also fuel land investment.
Somalia experienced major displacement and government-directed resettlement in the 1970s with the 1974–1975 drought and the Ogaden War. The gradual collapse of the Barre regime from the late 1980s onward saw huge displacement, first in the north and then in the south, followed by famine and disease. Those internally displaced within Somalia are among the poorest and most vulnerable in Somali society, but it is very difficult to accurately profile and analyse the caseload because of security constraints, vested interests in keeping numbers high, and lack of distinction between conflict internally displaced persons (IDPs) and other groups such as returnees, economic migrants, the urban poor, and natural disaster IDPs. The limited existing profiling confirms that poverty and other livelihood factors are other key reasons for displacement and suggests that many have lost land or houses; it also highlights wretched current living conditions. Low household income and limited assets, along with ever-increasing economic stratification, make the chronically poor highly vulnerable. Despite (or perhaps because of ) high levels of need, Somalia is a highly problematic environment for humanitarian assistance and requires considerable sensitivity to local political and clan dynamics and the ever-present potential for conflict. Structural issues related to "remote management" of operations from Nairobi contribute to the difficulties.
An important collection of studies on changing patterns of land use and land ownership in southern Somalia, edited by Lee Cassanelli and Catherine Besteman, makes clear how closely connected land and politics are and discusses many of the dynamics behind the increasing competition for land and rural resources. It highlights the generally disastrous effects of the Barre regime's agricultural policies and land reforms (and in particular the title registration introduced by the 1975 land law) on customary land tenure arrangements and traditional agricultural patterns. The widespread appropriation of fertile land in the Jubba and Shabelle valleys from its original inhabitants by the Mogadishu elite, and others with links to the regime, set the scene for the "liberation" of these areas by clan militias during the civil wars. State agricultural policies, which sought to fix producer prices to ensure a cheap food supply for the growing cities (especially Mogadishu), had a negative impact on agricultural production; the sector as a whole was underfunded and under-resourced. State grazing land projects in the pastoral north and agricultural resettlement projects for drought- or Ogaden War-displaced people were also generally unsuccessful. In the 1980s, a combination of factors intensified the competition for potentially valuable land in the Jubba and Shabelle valleys, but local inhabitants generally did not have the resources, knowledge, or political connections to register land in their own names. The loss of land to outsiders impacted on their established systems of crop production, which relied on flexibility of labour and diversity of location. Increasing concentration of ownership and larger plantation farms changed the dynamics of the relationship between farmers and pastoralists. Three major state farm projects in the Lower Jubba involved large-scale appropriation of land with little or no compensation and, at a staggering cost in donor funding, achieved no significant productivity gains; corruption, inefficiency, and misappropriation of project funds were rife.
Somalia's urban settlements fall significantly short of the Millennium Development Goals that relate to shelter, water, and sanitation. Urban infrastructure and urban planning capacity are poor, and general infrastructure such as roads and flood control mechanisms has seriously deteriorated in the south. Mines, unexploded ordnance, and explosive remnants of war remain an issue, though there is some dispute as to the extent of the problem. Land titling and administration systems, where they do exist, have very limited capacity. For this and other reasons, land- or resource-based disputes are very common in Somalia, generally involving clan politics or issues over clan "homelands" (deegaan). Competing claims of ownership are common in urban areas, frequently over land that was once public. In the dryland grazing areas, disputes over access to water cisterns (berkads), increasing sedentarization, and enclosure of reserves have led to violent clashes, fuelled by the ready availability of weapons. The land committee of the Somali National Reconciliation Conference has decided that all land acquired by misuse of power between Somalia's independence and 1991 must be returned, that all land occupied by clan militias during the civil wars must be vacated, and that a concerted effort must be made to repossess all government fixed assets and to hold to account those who have profited from their use. These are ambitious objectives and their implementation would be very challenging.
In a section focusing on housing, land, and property "theory", the report sets out the human rights framework behind land issues. It summarizes some of the policy debates in relation to customary land tenure and the arguments for and against formalization of title, which has gone in and out of fashion with donors as an instrument for economic development but is still sometimes recommended as a solution to Somalia's various land problems. It also examines the specific issues related to urban titling programmes and looks at changing policy orthodoxies on the management of communal land and natural resources. Finally, it sets out some suggested best practices in the design of land policy and land administration systems.
The last main section of the report summarizes what is known in relation to the plural legal systems of Somalia. It briefly examines the legal history of Somalia and current constitutional provisions in relation to land and law and assesses the (limited) effectiveness of the judiciary and court systems. It also looks at the anomalous position of Somalia (and Somaliland) under international law and summarizes the key principles and structures of customary law. The legal framework in relation to land in Somalia (or at least the state of our knowledge relating to it) is very patchy and unclear. While Somaliland does have some modern legislation on the subject, much of it is deficient in content and application; much less is known about Puntland's land laws, but it seems that some Islamic land law principles may be applied there. The direct application of sharia law is generally limited to family and inheritance matters, though sharia courts are becoming more common in the south; the overlap between sharia and customary law is somewhat hazy. The customary systems of dispute resolution can be efficient, quick, and cheap, which is why they have retained popular support and legitimacy, particularly in comparison with the deficiencies of the formal sector. However, women and minorities are often not well served by these mechanisms, and customary law has not always kept pace with social changes, though it remains inherently flexible.
Finally, the report sets out the author's own conclusions on land-related programming in Somalia. The author suggests that clan identity is a key (and variable) issue but argues that there are other determining factors in Somali society and that clan determinism should be avoided. Clan claims to "ancestral" land should be treated with considerable caution because of their political and conflict implications. The author advises against large-scale land titling programmes in Somalia but sees a role for registration in some settled rural areas and suggests that document registration may be beneficial in urban areas. He also highlights the complexity of the patterns of land and resource use in rural areas and the dangers of simplistic solutions that do not take these matters into account. While endorsing the decisions of the Somali National Reconciliation Conference in relation to land, the author notes the huge obstacles to their implementation. He argues that land programming should have a strong legal component and should also be sensitive to livelihood and economic vulnerability issues; more data is needed on the displaced caseload and on the levels of homelessness, secondary occupation, and destruction of property. The author suggests that the need for improvement of the three legal systems is greater than the need to integrate them and points to some of the areas where assistance could be provided; he also indicates areas where further research and better interagency coordination are required.