Article Index
3. Land Tenure Systems
Somalia was formed from two colonies i.e. British Somaliland and Italian Somalia and this explains the complex nature of the land tenure system at present. The land tenure system in Somalia is therefore complex and not clear. The Agricultural Land Law of 1975 abolished private ownership and was embarking on major conversions to leasehold from the state, but the current position in that country is unclear. The law vested all the land in government and required cultivated agricultural land to be registered with the government in order for the occupant to obtain a 50-year leasehold. As a result, few locals registered and instead the titling system became a means of rewarding a few loyal clans by the then government with valuable leases over land which had been in use by others for generations. The civil war that broke impacted negatively on the land tenure system of the country.
The fall of the central government saw the rise of customary xeer law take the center stage in governing relations between clans. It addresses aspects of land management with a focus on pastoral land use and it views rangelands as a collective clan asset though clans allow other clans to graze on the land in times of need. It prohibits building enclosures or permanent settlements on pasture land.
Somalia has created a new formal legal framework by developing hybrid institutions that blend aspects of customary and formal land tenure which has been well documented. The Somaliland Constitution provides that land is public property, commonly owned by the nation. Government has created means of transferring some land into private hands as private citizens can be granted ownership especially for urban and agricultural land.
South Central Somalia has created formal legal frameworks and institutions that function alongside customary systems for managing land rights. It should be noted that the formal state is beginning to re-assert itself into the land tenure system of South Central Somalia especially Mogadishu.
Apart from the statutory based tenure, there is community-based tenure which has intensified the struggle for land. These struggles are grounded in multiple contexts; the main areas of contestation are local (community membership), regional (rural-urban linkages and pastoral-agricultural interactions), and state or national (government policy, legal and administrative structures). Intersecting all three arenas are the politics of ethnicity and class. As a result, titles were unproportionately issued to outsiders/town-dwellers, while state and cooperative farms resulted in the displacement of small farmers as well as pastoralists.
Community elders do not accept the statutory system of land allocation and there is often active opposition to anyone with a documentary title. Since uncultivated land risked appropriation by the government as well as outsiders, unregistered farmers were forced to clear their bush land although they might not actually have plans for cultivating it.
Within community-based tenure systems, access to, rights to, and/or control over land is most often dependent upon one’s social identity. Land can be acquired by individual clearing, inheritance, request from the village council, by purchase or by gift. Transactions are not entirely matters between the parties, and may require approval by community elders, especially if the transferee is an outsider. Landholdings have many of the characteristics of private property, and as a result, tenure security—provided by communal recognition of land ownership--has been high.
It is important to note that systems of community-based tenure have been created in response to an unpredictable environment. Nomadic pastoralism is one such example, where survival is increased by subsisting on more than one type of land under different climatic conditions. Community-based tenure varies with land quality; oftentimes land suitable only for grazing is overseen by the clan as a whole, while land which produces regularly is controlled by individuals to whom use-rights have been allocated. Land left in bush (uncultivated) by a farmer cannot be claimed by anyone else unless it is clear that the farmer intends to abandon the parcel. The right to bush land is a critical aspect of community-based land tenure, because such land is crucial in terms of population growth, inheritance, and the need to offset potential soil fertility losses on cultivated land.