Legal pluralism, obscure reforms and adjudication of land conflicts in Hargeisa, Somaliland

Land conflicts are some of the major urban problems facing authorities in Somalia (Barry and Bruyas, 2009, Cassanelli, 2015, Deherez, 2009, Tahir, 2021a). These conflicts are attributable to several factors that include but not limited to individual or communal competitions, political conflicts, environmental degradations, and urban-rural migrations (APD, 2010, Burman et al., 2014). Amid weak regulatory framework and absence of sufficient financial resources, the post-conflict authorities in Somaliland had embarked on a reform agenda aimed at improving the state’s administrative capacity to deal with land related problems. Chief among these reforms were the legislation of an Urban Land Act in 2002 (amended in 2007) and the subsequent establishment of an Urban Land Commission in 2009. While such reforms are not unusual in Somalia, the ambiguity with which they are conceived and operationalised is new. This paper, therefore, explores the commission’s work to provide a greater understanding of this strategic ambiguity.

The paper particularly examines how subliminal cues embedded in obscure strategies shape the current trends and are likely to influence future dynamics of access and dispensation of justice in Somalia, especially agencies relevant to the adjudication of land conflicts. At present, much of the land conflicts in Somalia are adjudicated through a plural legal system involving both the state and non-state institutions¹ (APD, 2010, OCVP, 2014). While the non-state institutions enjoy positive public perception (Massoud, 2021), state institutions are seen as corrupt, overly bureaucratic and unaffordable (EAJ, 2020, HI, 2016). This negative perception can be traced to the colonial period where the unfamiliarity and, in many cases, incompatibility of the statutory laws and local values have created conditions for mistrust and hostility towards state institutions (Benton, 2011, Mazrui et al., 1998, Merry, 2008). To restore faith in public authorities, postcolonial states in Africa had repeatedly attempted to demystify and contextualise the sophisticated set of regulations inherited from the colonial powers.

In Somalia, the first post-independence civilian government had established a consultative committee in 1961 for the Integration of the statutory system, sharia, and customary laws. The committee recommended the use of the Italian penal code for civil cases, the Indian penal code for criminal cases, sharia law for family and minor cases, and customary law for resolving conflicts among clans (Le Sage, 2011). These recommendations, however, were seen as further complicating what was already regarded as complex enough for the dispensation of justice in Somalia. As a result, Northern judges continued to utilise their previous English laws while Southerners used the Italian system (Ghalīb, 1995, Le Sage, 2011). Equally, the military regime attempted to reform the legal system in Somalia. For example, in 1973, changes placing responsibility for crimes on the perpetrator instead of the clan were enacted, but this did not materialise as many clan elders resisted implementation (Ganzglass, 1996, Le Sage, 2011).² Nevertheless, despite these consecutive failures, hopes for the role of customary and sharia laws in the future Somali justice system never ceased (Abdile, 2012, Adam, 2008, Baadiyow, 2017, Khayre, 2016).

While the current body of scholarship on Somalia’s state-building documents the challenges and opportunities for reforms in the justice landscape, it fails to account for instances in which governments at both national and subnational levels undertake policy agendas to accommodate local sensitivities and external pressures through obscure strategies that simultaneously address the concerns of actors with varying agendas and, to borrow Watson’s (2003) words, conflicting rationalities. Obscurity is understood here as an essential tactic for negotiating a delicate balance between disparate yet necessary, or seemingly so, policy objectives. Therefore, in this article, I will show that the commission’s creation reveals a significant contradiction. On the one hand, the state casts the commission’s establishment as a paradigm shift from a long history of segmented governance that has partly obstructed the emergence of national moral space (Samatar, 2019, Samatar, 2016, Tahir, 2017). Yet, on the other hand, cues intrinsic in the commission’s practices show that the state seeks to maintain a subliminal image of exceptionality created through its adoption of limited political and legal pluralism (Moe, 2011, Renders and Terlinden, 2010, Walls and Kibble, 2010).

Two critical issues make the examination of Somaliland’s post-conflict reform agenda imperative. Firstly, Somaliland, which unilaterally seceded from the rest of Somalia in 1991, has achieved successful peacebuilding by incorporating traditional institutions in its political order (Bradbury , 2008, Walls and Kibble, 2011). It, therefore, guards these institutions, especially the Guurti,³ as an asset for stability.⁴ Secondly, the limitations of traditional institutions in modern state-making continue to attract negative attention from donor communities. Understandably, these contradictory goals compel the ruling elite in Somaliland to dance to the tunes of both the angel and the devil at the same time.

Hargeisa is specifically a key location for exploring the interesting ways in which the introduction and implication of legal and institutional reforms on land issues can be interrogated. This is the case for at least three reasons. Firstly, Hargeisa is the most populous⁵ city in Somaliland, where the highest concentration of traditional leaders, sharia mediation centres, and statutory courts exist. Secondly, Hargeisa is the administrative capital of Somaliland, and therefore a crucial site for the state authority’s articulation of reforms (Tahir, 2021a). Thirdly, Hargeisa is a deeply divided city where different clans populate different sections of the city and where such clans can inhibit state authority’s ability to enforce administrative and judicial reforms (Tahir, 2021b).

The key question this paper intends to answer is: how does the state authority in Somaliland deal with the conflicting demands placed on it by the public it governs and the donors it seeks or accepts assistance from? To answer this question, I have drawn on data obtained from the Urban Land Commission in Hargeisa. In so doing, I have reviewed more than 100 cases heard and decided upon by the commission between 2009 and 2013. Generally, the context and circumstances of the cases varied, but the processes and procedures through which decisions were made, promulgated, and enforced were mainly the same. For this reason, I have used purposive sampling to find typical cases that can represent state authority’s urban land adjudication processes and procedures. Thus, I have selected two cases for an in-depth exploration. To determine their fit for in-depth exploration, I have considered the cases’ level of complexity (such as the stories behind the competing claims), the time they were heard, the geographical locations they took place, and their potential for generating violent conflicts involving families and clans.

To enhance the validity and reliability of the information in the reviewed cases, I have also conducted ten semi-structured interviews with people knowledgeable about the cases or social, economic, and political contexts within which they occurred. The assumption under which I have followed up written government records with interviews is that it has worked well for those who have done legal and related research in Somalia (Massoud, 2021). The interviewees included public officials, lawyers, relatives, and neighbours of the people involved in the disputes. Furthermore, I have attended court proceedings to see if they conform to the description in the documents.

The paper argues that the establishment and practices of the commission indicate a keen deployment of an obscure strategy to implement reforms that satisfy local demands for maintaining the status quo and the international pressure on ensuring that national and subnational laws are aligned with international norms for equality. It also argues that the continued lack of capacity and reproduction of old practices by the post-conflict state in Somaliland has created a widespread disillusion towards formal justice. The aim here is to highlight the cautious ways in which post-conflict authorities navigate the terrains of reforms and the nuanced ways in which formal justice is dispensed to overcome challenges presented by rationally conflicting demands on state authorities.

The paper begins by accounting for the history of reforms in the plural justice system and their intersection with regulating and adjudicating land conflicts. Thereafter, the paper discusses the formation of the Urban Land Commission, zooming on selected cases that illuminate urban land adjudication processes and procedures.