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Land Based Conflicts In Somaliland Politics Essay

Info: 5460 words (22 pages) Essay
Published: 1st Jan 2015 in Politics

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Land based conflicts has been a continuing threat to peace and stability in most of the sub-Saharan African countries. In Eastern African countries the situation becomes worth due the dominance of clan structures and the lack of effective legal framework to regulate it. “Often, the land disputes lead to; civil strife, loss of lives, population displacement, destruction of property and international humanitarian crisis” ( Kalande 2008 : P 1).

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In Somaliland during the post civil war era, land disputes have been the major threat to peace and stability. In addition to this there are no effective legal frameworks that can be used to contain the problem. Sometimes small disputes over the use and accessibility of rural land can turn into widespread violence. “Because of the weakness of the state and the dominance of clan structures in Somaliland society, land disputes between individuals can escalate into clan conflicts and, against the background of the wide spread circulation of small arms, turn violent” (APD 2010).

The major challenge is the ineffectiveness of the legal authorities who are supposed to regulate and resolve the land based conflicts. It is against this backdrop that this paper tries to shed light on the reasons that account for the ineffectiveness of legal authorities. The paper will also try seeking possibilities of engaging the traditional structures and traditional mechanisms of solving conflicts to complement the efforts of the existing legal institutions that are involved in planning, managing and resolving land based conflicts.

Throughout the paper, i will be guided by the following research questions and hypothesis.

Main research Question: How can the Traditional Conflict Resolution Mechanisms contribute to the solution of land based conflicts in Somaliland?

Specific research Questions:

What reasons account for the in-effectiveness of the formal court systems in handling land based conflicts?

Are there traditional conflict resolution structures in Somaliland?

What role can the traditional leaders play, in resolving land based conflicts in Somaliland?

What are the weaknesses of the traditional conflict resolution mechanisms?

How can the traditional conflict resolution mechanisms be integrated into the formal conflict resolution mechanisms of land based conflicts?

Hypothesis: Traditional Conflict Resolution Mechanisms can provide durable solution to land based conflicts in Somaliland.

Statement of the Problem

Land-based conflict has been a source for violent conflicts in Somaliland since when it declared it is independence in 1991. For instance a survey on Newspaper coverage (2005/2006) carried out by the Academy for Peace and Development (APD) revealed evidence of 23 land related conflicts in different parts of Somaliland. The formal judiciary systems that was supposed to handle such conflicts is not effective and it is often hampered by corruption, lack of expertise, limited personnel and infrastructure. Land cases are open in the courts for more than two decades. In this regard, many people have lost their trust in the formal court system, they argue it is only for those who have money and can bribe.

Apart from the judiciary, the local council/Government officials have a role to play in the resolution of land issues. According to the “Regions and Districts Law” (No.23/2002, Article 32), the local district councils shall have sub-committees for peace and conciliation (responsible for the resolution of disputes arising within the district and for the maintenance of the public order) and land (responsible for the use of land for all purposes). However, in practice, much of these tasks are just in written form but they are not implemented. The staff assigned to this role is always corrupt and un-trained enough. In view of this, the ability to solve conflict and manage land issues seems to be very limited.

This bad reputation of handling land-based conflicts proposes the need for non-formal mechanisms to resolve land-based conflicts. This is coupled by how the current traditional conflict resolution structures are salient about the issue. It is against the aforementioned key problem and the lack of empirical data on the role in which the traditional structures can play in resolving land-based conflicts that necessitates conducting an in-depth study on how the traditional structures can contribute to the solution of the land based disputes.

Reasons that account for the ineffectiveness of legal framework to regulate and resolve land based conflicts.

Unclear Relations among the state institutions involved in land planning and management.

There are a number of different parallel authorities in charge of planning, managing and resolving land based conflicts and more particularly the urban land. For instance the urban land planning and management, both the local municipalities and the ministry of Public Works, Transport and Housing are involved. In the cities many people have been allocated a plot which has been already allocated before. The situation remains today where one might have been allocated a plot by the municipality while someone else has received a title for the same plot delivered by the Ministry of Public Works. This practice has been the source of recurrent land based conflicts in the major cities of Somaliland, most particularly the capital city where land value is higher than any other place. This is partly due to the booming real estate market, often driven by investments from the Diaspora and partly due to the local booming business.

The unclear relations of who is in charge what, is not only based on the above mentioned two institutions, but the ministry of Environment and Pastoral development and the ministry of agriculture are also contesting over the management of rural lands. The district officials and regional authorities sometimes contest over the management of land. In addition to this it is also worth mentioning that the role municipality’s land management committees in resolving land based disputes overlaps with the role of district courts in handling the same disputes.

Inadequate and Unclear Land law

In Somaliland there are few legal documents to regulate and manage land. The few existing ones are not well detailed and do not capture all the required aspects of land planning and management. This incomplete legalization of land issues leaves the legal authorities unable to effectively undertake dispute resolution activities. Although the government of Somaliland developed, land law No: 17/2001 that was amended in 2008, yet the document does not improve the general legal basis for the management of land, and more particularly rural land.

Weak Enforcement

“In Somaliland, the enforcement of legal evictions remains very weak. State institutions lack financial and human capacity to effectively enact sanctions against culprits. Particularly in the periphery, security forces do not have the material means (vehicles, fuel) to restore security and maintain authority (APD 2007: P 14). Though I would agree with this argument on the weaknesses of the state institutions and the lack of human capacity to enforce legal evictions, yet I would not see that the lack of financial capability may hinder the state institutions to effectively restore security and maintain authority. However, to a smaller extent it may indirectly impact on the ineffectiveness of the officials as they would seek bribes and tend to be corrupted due to the low incentives and salaries that they are currently paid.

The law enforcement institutions such as the police and the military are not well trained and do not always well handle the land based conflicts. According to APD (2007: P 14) Report “Somaliland’s police force and local authorities have not been very effective in resolving land-based conflicts. In some cases their forceful evictions resulted in confrontation with armed groups that were defending the disputed land. The lack of enforcement may take some weary plaintiffs to resort to armed confrontation to secure their rights and thereby capitalizing on clan mobilization”.

Shortage of skilled personnel: In Somaliland, there are few if not absent of trained and skilled district courts and local municipalities’ officials. These officials are the fore fronts of resolving land based conflicts. However due to the limited knowledge that they have it is often evident that they are less efficient, less effective and often complicate the situation. This shortage of human resources leaves the authorities to lack the capacity of effectively undertaking local affairs. And hence in this regard many un-resolved land based conflicts remain filed in the courts and local council offices for more than two decades.

Corruption

Due to a combination of factors, there is a chronic corruption among the formal officials involved in planning, managing and handling conflicts related to land. These factors include, the high values for the land and booming business involved mainly in the urban setting due the establishment of real state markets either by the Diaspora or the business people. Another key critical factor is the affiliation and association of the officials to their clans. In this respect, people from minority clans and the poor people suffer under this corrupted formal system and their properties are easily taken as they do not receive a transparent legal framework that can provide justice to them.

Influence of clan on Land Management

In Somaliland Clan structures continue to be the predominant organizing principle of society. This is not an exception to land planning and management. The main issue to take note here is the land ownership. In Somaliland the pastoral land is only communally owned. This means that every clan in a certain territory claims the ownership of that area, through the principle of “Deegaan”. According a ( APD 2007, P 7) report “Because of strong clan solidarity, and facilitated by the link between private land ownership and the “degaan” principle, local land disputes between individuals or families over access to natural resources bear a high potential to escalate into wider inter-community conflicts that involve clan segments of both parties. In this regard most of the recurrent conflicts are land based”.

The report further argues that “The state can hardly remain outside of clan politics over land. To the contrary, its institutions, e.g. security forces, ministries, the judiciary, regional and local administrations, are composed of clan members who in the case of inter-clan conflict can hardly maintain neutrality. This is one of the reasons limiting the state’s ability to resolve such conflicts (APD 2007: P 7)

Functioning Traditional Structures

Somalis, have had traditional structures and a kind of traditional governance system, well before the colonial powers came to the land and they are currently well in place and used in all regions of Somalia. According to a CRD (2005) report, “They have survived the challenges of the forces of time by different dominating forces and it owes it is existence and survival to the positive social capital (trust, accountability and honesty) of the Somali society towards the “xeer”.

In Somaliland, the traditional governance structures played a critical role in the settlement of many disputes and during the reconciliation process after the civil war. Establishment of the house of elders (Representatives of clans) as the supreme legitimate body after the president of the state is also seen as one of the pillars of peace and stability that Somaliland has enjoyed.

In the rural areas of Somaliland, traditional structures dominate formal administrative structures and elders, using traditional xeer, Somali customary law; have managed to keep peaceful relations between and among many communities.

Legal Reference of the Traditional Structures

Xeer, the Somali customary law, has been the legal framework for the traditional structures. The xeer is regulated by the traditional leaders through clan-sub-clan system. The xeer is a contractual agreement that is not written but orally agreed and abide by all members of that clan-sub-clan. Through the xeer the traditional elders observe and address disputes.

The “xeer” is derived from two main sources, the traditions and the religion. However, the xeer itself may in some cases conflict with the Sharia. According to Gundel (2006), “Xeer can be contracted into – and out of – and, according to need, contracts can be abrogated, modified, rescinded or new ones made”. In this regard Xeer has always been an evolving concept through time; however it is importance remains in both the rural and urban domains. “The importance of the xeer is indisputable, as the xeer are applied in solving perhaps 80-90% of all disputes and criminal cases” (Gundel 2006).

Organizational Structure

The traditional Somali governance system had its own structures and hierarchy (CRD 2005). There are hereditary crown lineages in each clan or sub-clan. Traditional leaders inherit their leadership. Although different areas of Somalis use different names of the traditional or clan leaders, in Somaliland the ranks of the leaders is as follows: Boqor/Ugas- Sultan-Chief Aqil-Aqil-and Oday. Boqor/Ugas (King) has the highest powers in the rank followed by the Sultan and the least in the rank is the Oday who may be the leader of an extended family. These leadership positions are based in clan-sub-clan system. The Boqor is the leader of a bigger clan, while the Aqil is the leader of sub-sub-clans.

There are technical committees constituted to deal with certain issues such as Committees (Guddi), conflict resolution committees or peace keepers (Nabadoono), these are usually selected from the clan or community in a certain territory on the basis of their familiarity and experience towards the Xeer. The function of this group of elders is to mediate between the conflicted parties and participate at the negotiation tables which are usually held under bigger and shady trees. “Their deliberations, in the exercise of their authority, include the arbitration of sprouting differences within the clan and/or negotiating with other clans when needed” (CRD 2005).

Although, the traditional justice systems (like the customary courts) are more evident in the rural areas, in the present day in Somaliland, it is also practiced in the urban settings. “In a customary court, the ‘Guddoon’, nominates the Judges known as the ‘Garsoor’, and an equivalent of today’s attorney general named ‘Xeerbeegti’ (CRD 2005). These are a group of experts on the customary codes, and they are tasked to analyse the issue in hand in accordance of the “Xeer”. The guddoon are the decision makers of the clans and they are selected by the Aqil or Chief Aqil of the clan. Under the Guddoon, there are sub-committees knows as the Ergo (Envoy).

Relations of the traditional leaders with the religious leaders and Scholars

Although the traditional structures are preferred and mainly practiced in the rural areas, where there are limited formal administrations, however it is evident that, the traditional structures are equally important and used in the urban settings. More so the traditional structures do not operate as a standalone system; however they are closely related with the religious leaders, who are normally represented in the meetings of the traditional elders/leaders. As it was mentioned above that religion is one of the sources of the Xeer, and in this respect, the Imaas/Ulimaa (religious leaders) are always consulted in setting up of new rules or agreements and in the solutions of certain issues that may require the considerations of the religion.

During this modern era it has also become evident that some of the issues may require the attention of the educators and community scholars. In this regard the traditional structures do not hesitate to engage with the community scholars and some of the complicated cases that require skills are usually consulted with the scholars.

Functions of the traditional leaders

Settling and resolving disputes

One of the key functions of the traditional leaders is the settlement and resolution of conflicts. These conflicts could range from as small as the individual or family level to community and societal level. The nature of the conflicts in the Somali context has always had a component of clan conflict. It may either be between two clans or between sub-clans.

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In Somaliland, the role played by traditional leaders in creating and maintaining peace is indisputable. After the prolonged civil that ended in 1991, the country was still in conflict of warring clans mainly due to grievances that developed during the war and grapping and illegal occupation of land. What was remarkable here was the localized peace talks that were initiated by the traditional leaders in conjunction with the very weak administration established by the rebel movements after they won the war against the Siyad Barre regime (Last President of Somalia, before the collapse of the central government). The use of Xeer and the traditional codes is worth mentioning in the localized peace talks. At the time several “Shirbeeleed”, (clan assemblies) were conducted, and almost all of them were centering on peaceful co-existence with the neighboring clans.

Through the establishment of the house of elders (Guurti)-Clan represents, Somaliland has managed to solve many conflicts. Gundel argues that the traditional authorities are the guarantors and creators of the relative peace and stability that exists in Somaliland, Puntland and locally in the South Central and their xeer is the glue that prevents a collapse into anarchy (2006 P 43).

Overseeing the implementation of the Xeer

The xeer or the traditional customary law is very important for the Traditional Governance Structures (TGS). The traditional leaders are tasked to oversee the implementation of the Xeer. They oversee the adherence to the Xeer by the fellow clansmen. Any person who tries to break will be punished in accordance of the Xeer.

As it was earlier mentioned in this paper, the Xeer is an evolving concept through time based on the circumstances at the time. New rules are developed based on the need and this is done by the traditional leaders. Since religion is one of the sources of the Xeer, the traditional leaders consult with the religious leaders on the development of new Xeer. However this is not always the case and as we have seen above new rules can as well be derived from the traditions.

Diya/Mag paying (Blood compensation or blood money)

“The most basic and functional lineage unit is the mag-paying group or diya-paying group as they are mostly known in English language.” (Gundel, 2006, p. 6) Mag-paying groups are “the most important level of social organisation for each individual. In this regard it is the task of the traditional leaders to organize and mobilize members of the clan to pay the blood money. This is a very important but difficult task for the traditional leaders. According to Gundel, Mag-Paying group, is a small corporate group of a few lineages who reckon descent to a common ancestor some 4 to 8 generations, and is sufficiently large in numbers (few hundred to a few thousand men) to be able to pay the mag (according to Sharia: 100 camels for homicide) if need be. Hence, all men are defined by their belonging to a mag-paying group, and their social and political relations are defined by contracts called xeer – the Somali customary laws – that are entered within and between mag-paying groups.” ( 2006, p. 6)

Efficiency and effectiveness of the traditional leaders usually depends on how they are able to collectively undertake such a heavy task of paying such huge resource (100 camels) often in a shorter period of time. Although still the 100 camels are used as a measure, it is often paid in cash which may not necessarily be equivalent to a liquidated 100 camels. However every camel is measured on an agreed upon and defined fixed amount of cash by the Xeer.

Qaadhaan ( Social safety net)

Although, currently the function of Qaadhaan (Social Safety Net) is one of the mostly hit and affected practices of the traditional governance system, it is still practiced in some areas of Somaliland. This effect is primarily due to the prolonged draughts and the increased urbanizations that is taking place in Somaliland. According, to a CRD Report (2005) “‘Qaaraan/Qaadhaan – (Social Safety Net) is mandatory collection of money and valuables for and from every member of the clan. It is managed and mandated by the authority ostensibly to be utilized for the good of the community”. Although this argument is partly true, yet some times the Qaadhaan is also used for war preparations against another clan.

Reliability and the relevance of the Traditional Conflict Mechanisms in resolving land based conflicts.

Acceptance of the Traditional Structures by the local communities

“The people strongly believe and trust traditional structures more than in the western designed model of governance, in which the clan identity is not defined and recognized” (Shuke 2005 P 14). Shuke argues that, Traditional structures (clan system and its customary laws) represent people’s cultural value, its traditional history and social norms, which are so deeply engraved in the community’s moral, feelings and sentiments (2005: P 14). “As a result of the inefficiency of formal courts, there is a continuing if not growing recognition of the importance of non-state mechanisms to resolve disputes” (APD 2007: P 13).

Generally speaking, in Somaliland People and most particularly the business communities do prefer to seek conflict resolutions from the traditional structures as opposed to the modern governance system. Gundel argues that “Due to weaknesses in the urban judiciary, businessmen, in the urban areas, tend to trust the aqiil and the xeer more” (2006: P 18). This is on the one hand that the traditional structures are more transparent and more reliable than the formal legal systems and on the other hand the general populace are not familiar with the imported statutory laws such as the penal code, civil codes, security laws in which they suspect that sometimes it is against the religion, and hence they prefer the traditional structures. In addition to this the formal legal system is more bureaucratic and more time consuming than the traditional structures. According to Shuke “formal applications takes long process, tricky procedures and a lot of channels to go trough: police, lawyers, courts, tax collection, political leadership, bribery, corruption and injustice, etc (2005: P 15). “While decisions, made through traditional structures, are direct, fast and visibly carried out without going through process of paper work and difficult channels” (Shuke 2005: P 15).

In the current Somaliland government, the traditional structures through the Representation of the upper house of elders play an important role in the political set of the country. In this regard one cannot not deny reliability and relevance of the traditional structures in involving the local affairs

Accessibility of the Xeer

As mentioned earlier in this paper, the Traditional structures are practiced both in the urban and rural settings. The use of Xeer is more accessible, where there are no formal legal administration systems, more particularly in the rural areas. Thus, the Traditional Structures, through the use of Xeer, have become more accessible and reachable to a bigger portion of the population than the formal administration systems. Even in the modern urban settings with a relatively stronger formal administrative system such as the regional capital cities of Somaliland, the Traditional Structures tend to be more accessible to the average person. This is mainly due to the bureaucratic procedures and malpractices in the formal legal systems.

Weaknesses of the formal legal administrative system.

The formal legal administrative system is hampered by, irregularities, corruption, bureaucracy, untrained, unschooled and unskilled practitioners, who are not transparent and honest about the work they are doing for the people. This makes the system so complicated and so abusive. Thus many people in Somaliland are currently favoring the use of the traditional structures in resolving conflicts as opposed to the formal legal system.

Local Development.

Although the traditional structures are deeply rooted in clan system of governance, yet their contribution to the infrastructural development of the country has been widely observed. With the assistance of the clan members in the Diaspora and the business people, successful local projects has been initiated and implemented in Somaliland. Examples of this kind include building of local educational facilities (such as schools and universities), bridges, feeder roads to main towns, health posts, water reservoirs, boreholes, shallow wells. This sometimes involves huge sums of money, and it is the task of the traditional leaders to organize and mobilize their clansmen in participating such kind of activities. There are instances where every household contributes to such an activity.

Gaps in the Traditional Structures.

Legitimacy in the formal legal framework.

The traditional conflict resolution mechanisms are not formally established and what they only have is traditional legitimacy, but they are not recognized in the formal legal framework. “In principle, their effectiveness is based on traditional legitimacy and the mutual trust of the disputants” (APD 2007: P 13), however the effectiveness of the traditional structures can be criticized on several accounts as follows

The traditional structures are conflicted with the international human rights laws, in the sense that they are built on collective and communal gains rather than individual benefits. It is often feasible that individual’s rights are violated at the expense of the sub-clan.

When verdicts are made on resolution of conflicts, there is no neutral institution to enforce, but instead the disputed sides are supposed to accept and implement the judgment mutually, which in some cases may not resolve the conflict.

The traditional structures lack financial resources, since they are only dependent on small contribution from the clan members. Reconciliation processes take longer and require large sums of money, which may not be funded from the clan contributions.

Some of the traditional leaders of today in Somaliland are influenced by the government. The government has penetrated through the traditional structures and most of the traditional leaders are on the government payroll system under the ministry of interiors. Many traditional leaders have become more political and even to some extent they have become corrupted in favor of the politicians.

Women and the traditional Structures

In the Somali traditional governance structures, women are not allowed to be part of the traditional leaders; they are not allowed to participate in the Shirbeeleedyo (Clan meetings). But as the prominent saying or proverb says, behind every great man there is a great woman. Although it is not clear to what extent do women contribute the decisions at the family, it is where women can consult with their husbands and may be pass the pending issues they have to be discussed in the Shirbeeleedyo.

Political Influence (External Influence)

Although in Somaliland the traditional elders or the upper house of elders (Guurti in Somali), operates relatively in an independent manner from the political arena, yet in the recent past, the inclusion of politicians like the current chairman Saleban Mahamoud (Seleban Gaal), and the inclusion of youth and women- one woman is currently a permanent member of the Guurti- who inherited the position because of the death of his/her close relatives, the Guurti has been relatively influenced by the politicians.

The government has also recently been so much trying to influence the traditional governance system. The government through the mobilization of clans by the politicians has successfully penetrated the traditional governance system and in this respect many new traditional leaders such as the Suldans and Aqils were selected by the clans and sub-clans in favor of persons backed up and supported by the government. Some of the newly crowned Suldans and Aqils, have even limited knowledge on the Xeer, but rather they are scholars or politicians. At times there are two Suldans or Aqils for the same sub-sub-clans. In this regard I would foresee two negative implications, firstly this will negatively impact on the legitimacy and trust vested on the traditional leaders, secondly, the use of Xeer will be to a larger extent ignored by the newly crowned elites and politicians who has a limited knowledge on it, at the time when it is most needed, this is because due to the weak state institutions, the traditional elders solve 80% of all cases.

Possible linkages (Integration) of the traditional conflict resolution mechanisms and the formal legal land based conflict resolution mechanisms.

Formally legitimizing of the verdicts reached by the traditional structures.

As clearly pointed out in the above discussions, people’s preference of the traditional conflict resolutions over the formal legal structures in regard to the reasons discussed in this paper is indisputable. Therefore legitimizing the verdicts of the traditional conflict resolution mechanisms by the formal administrative systems is possible. “Most crimes, claims and disputes are solved by using the traditional structures: clan to clan negotiations, traditional elders meetings and through private mediation between the parties in conflict” (Shuke 2005: P 14). Formally legitimizing such verdicts will make concrete solutions to the problems at hand.

Land based conflicts are easier to resolve through traditional conflict resolution mechanisms, this is because the majority of the land based conflicts are related to clan. In this regard, if the formal legal administrations such as the local councilors and the district courts, consider the verdicts reached by the traditional structures as legitimate without trying it through the legal systems, I think many bending conflicts could be resolved in this respect.

Integrating the Xeer into the formal legal documents

Formalizing aspects of the customary law is possible. Shuke argues that “It is amply possible or feasible to formalize aspects of the customary laws and integrate it into the statutory legal system” (2005: P 14). There are two issues that could make this possible, firstly, To a larger extent the xeer, is in consistent with the religion and acceptance of the people as a conflict resolution mechanism is desirable and secondly, The Xeer, is already widely but separately used in all parts of Somaliland, and hence integrating it in the formal legal framework will reduce the current overlaps of the two system (Traditional Vs Modern Conflict resolution mechanisms).

Funding the traditional reconciliation processes and conflict resolution mechanisms

Depending on the nature of the conflict, Conflict resolutions and reconciliation processes always take a longer period of time and without doubt there is cost implications involved in it. Funding by the formal administrative systems in this regard with careful considerations of not creating dependence among the traditional leaders is necessary.

Providing financial support to facilitate the work the traditio

 

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