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Gender and Land Rights Database

Somalia

Rights entrenched in the Constitution

- No constitution is in force at present.
A Transitional Federal Charter was established in February 2004 by the Transitional Federal Government and is expected to serve as the basis for a future constitution:

- Article 1 provides for the establishment of the Transitional Federal Government of the Somali Republic based on the sovereign will of the people.

- Article 3 states that the Charter “shall be the supreme law binding all authorities and persons and shall have the force of law throughout” the country. The Charter will also prevail over any conflicting legal provision.

- Article 8 defines Islam as the national religion and sharia as the basis of national legislation.

- Article 11 [3] provides that, while the new Constitution is being drafted, a National Census be undertaken simultaneously.

- Article 15 [1] states that all citizens are equal before the law and the provisions of the Transitional Federal Charter and have the right to equal protection and equal benefit of the law without distinction of race, birth, language, religion, sex or political affiliation. Equality shall include the full and equal enjoyment of all rights and freedoms.

- Article 18 provides that “no worker shall be discriminated, as each shall have a right to a salary and equal pay commensurate to the work performed and other fringe benefits as shall be stipulated in the employment and labour laws of the country”.
Workers shall have the right to weekly rest and annual paid leave and shall not be compelled to forfeit. The law shall also establish working hours, the minimum age employable and minimum salary.

- Article 19 provides for the freedom to strike, to manifest and to join labour unions or any other association for the protection of the citizen’s interests.

- Article 20 recognizes freedom of expression and freedom of the press and the independent media.

- Under Article 24, education is recognized as a basic right for all citizens. All citizens shall have a right to free primary and secondary education.

- Article 25 provides for the protection of family as it is the “basic unit of the society whereas religion, morals and love of the country shall be the central pillars of the family”.
Parents shall support their children, education and welfare; children, who are of full age, are obliged to support their parents if they are unable to support themselves. Parents or guardians are compelled to register children upon birth.

- Article 26 states that it is the responsibility of the Government:
i. to protect and provide public health, safe motherhood, child care and to control communicable diseases;
ii. to provide for the welfare of persons with disabilities, orphans, widows, heroes who contributed and fought in defence of the country and aged persons;
iii. to encourage the establishment of the civil society and social development institutions for the public;
iv. to promote the social welfare and development of the rural population;
v. to create a positive environment for women to participate effectively in economic, social and political life of the society.

- Under Article 27 [3], the right to own private property is guaranteed by the law, which shall define its contents and the limits of its exercise.
Subsection 27 [4] states that personal property may be expropriated for public interest in exchange for equitable and timely compensation. However, the property shall be returned to the owner or his/her heirs in accordance with the law (17).

 

Puntland:
- The Puntland State of Somalia was established in 1998 by a constitutional conference that produced a provisional charter.
According to the charter, Puntland is part of “an anticipated Federal State of Somalia” and “laws and regulations legally enacted by the previous governments provisionally remain in force until they are replaced by new legislation”.
In 2001, the government produced a new constitution, which has not yet been approved by referendum (14).

 

Somaliland:
Constitution of 1997, ratified by public referendum in 2001:
- Article 5 states that the laws of the nation are to be grounded on and shall not be contrary to sharia.

- The Constitution is “based on Islamic principles” and any law not conforming to the Constitution is null and void, as provided for by Article 128.

- Under Article 8, all citizens “shall enjoy equal rights and obligations before the law and shall not be accorded precedence on grounds of colour, clan, birth, language, gender, property, status, opinion, etc.”. Also under this Article, “precedence and discrimination on the grounds of ethnicity, clan affiliation, birth and residence is prohibited and at the same time programmes aimed at eradicating long-lasting bad practices shall be a national obligation”.

- Article 10 specifies that Somaliland will observe all treaties and agreements entered into by the former state of Somalia with foreign countries and corporations if they do not conflict with its “interests and concerns”. It also recognizes and will act in conformity with the United Nations Charter and international law and will respect the Universal Declaration of Human Rights.

- Article 12 contains the provisions related to land, which give the state control over land and natural resources, subject to the law.

- Article 14 prohibits “usury and commercial practices which are against the interests of the society and unlawful enrichment”.

- Every person has the right to own private property, if it is acquired lawfully. Property may not be expropriated except for reasons of public interest and subject to payment of proper compensation, as stated in Article 31.

- Under Article 36, women and men are to enjoy equally the rights, freedoms and duties laid down in the Constitution, “save for matters which are specifically ordained in Islamic Sharia”. The government shall encourage and shall legislate for “the right for women to be free of practices which are contrary to sharia and which are injurious to their person and dignity”; women have the right to “own, manage, oversee, trade in or pass on property in accordance with the law”.

- Article 115 establishes an independent “Ulema Council” which, among other things, will formulate formal declarations on religious disagreements that may arise and on questions as to whether a matter is contrary to sharia.

- Article 130 provides that existing laws that do not conflict with sharia or with individual rights and fundamental freedoms guaranteed by the Constitution remain in force until new laws are promulgated (14).

Women's property and use rights in personal laws

- At present, the legal system relies on laws codified before the 1991 civil war, Islamic shar’a, customary practices and the provisions of the Transitional Federal Charter.

 

Family Code of 1975:
- The minimum marriage age is 18 years for both parties; females may marry at age 16 with the guardian’s consent. Courts may grant exemption from minimum age requirements in cases of necessity.

- A girl who has reached 16 years of age but who is under 18 years may be represented in a contract of marriage by her father or, in the absence of her father, by guardians in this order: mother, grandfather, elder brother, uncle, court-appointed guardian or judge. Courts are also empowered to overrule the objection of a guardian to the marriage of females between 16 and 18 years of age.

- Marriages are to be registered at a District Court or authorized office within 15 days or 40 days for residents of rural areas; failure to register is punishable by fine.

- The essential elements of marriage outlined in Article 6 are the proposal and acceptance by the contracting parties before two witnesses. A marriage contracted under compulsion is invalid.

- A man may not contract a second marriage without written permission of the District Court. The Court’s authorization requires ascertainment of one of following conditions: the wife’s sterility of which the husband was not aware at the time of marriage and which is attested to by a panel of doctors; incurable chronic or contagious illness of the wife, certified by a doctor; the wife’s sentencing to more than two years in prison; the wife’s unjustified absence from the matrimonial home for more than one year; or the existence of social necessity.

- The Code states that: marriage is based on equal rights and duties; the husband is the head of the family; the parties are obliged to cohabit; and the wife is obliged to follow her husband. Both parties must share expenses of the matrimonial home in proportion to their incomes if they are able to do so; if either party fails in duty to maintain and is not destitute, the other party may obtain a court’s order for maintenance. The court is empowered to award interim maintenance and authorize the claimant to contract debts against the defaulting partner if s/he finds it impossible to obtain maintenance from the defaulter.

- The Code provides that right of talaq belongs to the husband “subject to the authorization by the competent court”. The court may authorize divorce only after reconciliation efforts of 60 days have failed and may not authorize more than one talaq at a time. Divorce by a minor or an insane person or divorce pronounced under compulsion is invalid.

- Either party may seek a judicial dissolution on the following grounds: incurable disease of the other spouse making cohabitation dangerous or impossible; disappearance of the other party for a period of over four years; habitual failure to maintain by the other party; serious disagreement between spouses making conjugal life impossible, after reconciliation efforts of 60 days; perpetual impotence or sterility of the other party; and the other spouse’s sentencing to over four years imprisonment.
The wife is entitled to seek dissolution if the husband has been granted permission to marry polygamously by the District Court, on condition that there are no children.

- Where reason for talaq or faskh is deemed to be the husband’s fault, the Court shall order him to maintain the former wife for three months to one year; if the wife is deemed to be at fault, the Court shall order her to pay the husband a sum not less than her dowery in compensation.

- A mother is entitled to custody of male children until the age of 10 and female children until the age of 15, with the court empowered to extend custody until age 18 for a female or male ward if s/he is not able to look after her/himself. If the mother remarries and the husband is within prohibited degrees to ward(s), or in case she is widowed and remarries, she may retain custody. Maintenance of children is the duty of both parents until the age of majority for sons and marriage or financial independence for daughters (18).

Inheritance legal mechanisms

Family Code of 1975:
- Testate succession is limited to one-third of the estate, unless consent of the heirs is obtained; bequest in favour of an heir is also invalid unless consent of other heirs is obtained.

- Article 158 states that “in conformity with the principles of the 1st and 2nd Charter of the Revolution, females and males shall have equal rights of inheritance”.

- Heirs are identified as: spouses, children, grandchildren, parents, grandparents, full siblings, paternal and maternal aunts and uncles.

- The widow or widower is entitled to half of the estate if there are no children or grandchildren, or one-fourth if there are.

- Sons and daughters are to receive equal shares, as are grandchildren. Shares of the other heirs are also specified in the Code, as are grounds for inclusion or exclusion of heirs and reduction of shares (18).

Land Legislation

Land Law of 1975:
- The law transferred control of all lands to the government and required all individuals to register their holdings within six months from the enactment of the law.

- Each family/individual could obtain only one concession for up to 30 ha of irrigated land, 60 ha of rainfed land and 100 ha of banana plantations.

- Landholders were permitted to register the land as state leaseholds or concessions, with usufructuary rights for up to 50 years, with the possibility of renewal and passing it on to “immediate kin”.

- The government could revoke a concession if one of the following circumstances occurs: land exceeds size restrictions; land is used for non-agricultural purposes; land is not used productively, is fragmented, transferred or not farmed for two consecutive years (13).

- Land transfers were severely restricted and rental, sharecropping, subletting and sales were all prohibited (14).

 

Chapter XI of the Transitional Federal Charter is devoted to Land and Property:
- Article 66 states that land, being the country’s primary resource and the basis of livelihood for the people, shall be held, used and managed in a manner which is equitable, efficient, productive and sustainable.
It is the duty of the government to define and keep constant the national land policy and framework of the land in the country, which shall ensure the registration, use, ownership, access, occupation, management rights, security, interests and title of the land, as provided for by Subsection 66 [2].

- Article 68 proposes the establishment of a Land and Property Disputes Commission (17).

 

Agricultural Land Ownership Law of 1999:
- Agricultural land is defined as any land where farming is suitable, according to Article 1.

- Under Article 4, the Ministry of Agriculture has the sole right to issue ownership titles for farms. Individuals and families can acquire only one new title deed each and people who owned agricultural land before the enactment of this law are entitled to as many titles as their land amounts to, as provided for by Article 6.

- The maximum plot size of new entitlements is 8 ha for rainfed farms and 4 ha for irrigated farms. State-owned farms and companies are independent agencies and do not fall under this law, as stated in Article 7.

- Article 8 states that if agricultural land is nationalized for public use, the state has to pay compensation to the previous owner within three months.

- Only after three years upon receiving the ownership title, the holder is allowed to sell land with the approval of the Ministry of Agriculture, as provided for by Article 9.

- Article 17 prohibits enclosing land or turning grazing land into rainfed farms. Nevertheless, it is allowed to establish irrigated cultivation farms wherever they do not block roads, the movement of livestock or wells and berkads for watering livestock (14).

 

Puntland:
- Between 1999 and 2004, the Parliament enacted several land laws, including the Regulation of Agricultural Lands Law of 2000 and the Urban Lands Law of 2000; however, their content  is not known.

- In 2005, the government approved a new land law, which appears to be based on the same principles as the Somaliland 2001 Land Management Law. The law “prohibits courts to hear any land dispute-related cases unless the local government issues a final ownership decision on that piece of land” (14).

 

Somaliland:
- The 2001 Land Management Law is the main law in relation to urban land. It states that all land belongs to the state but that plots can be allocated to individuals in accordance with a master plan, which will determine the land use. Residential land can be allocated to individuals either for “permanent use” or “temporary use” for “low-income people” (14).

Policies/Institutional mechanisms enforcing or preventing women’s land rights

- The United Nations Transitional Plan (UNTP) sets out the United Nations’ strategy in the country from 2008–2009. The focus of the UNTP is to support the transition from conflict to peace and from crisis to recovery and longer-term development (19).

 

- The National Organization for the Development of Women and Children (NOW) advises the Transitional National Government (TNG) on gender-specific issues and discusses policies that could promote peace.
Women originally were supposed to have a 25 percent representation in the transitional authority but in reality were only given 12 percent. Various demonstrations have been put on by different women’s organizations in and out of the country (20).

 

- The Food and Agriculture Organization of the United Nations (FAO) is currently implementing 26 projects worth US$50.6 million. Under the Consolidated Appeal Process, FAO has submitted six funding proposals for 2009 for a total of US$21 million (7).
Actions are implemented in partnership with national and international non-governmental organizations (NGOs). FAO’s projects aim to continue empowering households to resume agricultural and livestock production. The key objectives of FAO’s emergency programme are to:
i. strengthen and diversify sustainable livelihoods to prevent households from sliding into humanitarian emergency;
ii. provide and protect assets at household and community levels to improve livestock and crop production;
iii. strengthen community capacity to mitigate the impact of soaring food and basic commodity prices and to cope with current and future shocks (7).
All of FAO’s proposed activities have a special focus on women and children (19).

 

- The United Nations Development Programme (UNDP) Employment Generation for Early Recovery in South Central Somalia project, which runs in 2008–2010, aims to address direct income generation priorities for the most vulnerable parts of internally displaced persons (IDPs) communities and host communities by building permanent capacities.
The project’s aims include short-term income generation and longer-term job creation. Actions include: infrastructure rehabilitation, vocational training, start-up grants and microcredit. Women and youth are specific focus groups for the project. The project is jointly implemented by UNDP and the International Labour Organization (ILO) (21).

 

- The Women Farming Families Project aimed to increase agricultural production by providing training to women farmers in agriculture and agroforestry and improving women’s access to credit in cash and kind. The project increased awareness of the importance of trees for rural women’s work by creating commercial village nurseries. It also assisted women by reducing the time allocated to gathering wood for fuel and collecting fodder for livestock. The project lasted from July 1988 to October 1989 and was discontinued because of the civil war (8).

Sources: numbers in brackets (*) refer to sources displayed in the Bibliography