Terms Of Reference For An Assessment Of The Linkages Between Legal Identity, Housing Land And Property

TERMS OF REFERENCE 

 Title: An assessment of the linkages between Legal Identity, Housing Land and Property rights in Somalia

Location: Somalia

Duration: 45 working days (Between June and August 2022)

Organization: Norwegian Refugee Council (NRC)   

Critical interface: ICLA Somalia Specialist and regional ICLA advisor for East Africa and Yemen

Consultancy type: International

Travel:            No travel required for this consultancy

Closing date: 18th June, 2022

1.0 BACKGROUND

Over two decades of conflict, concentrated mainly in southern Somalia, have destroyed much of the country’s governance capacity and economic infrastructure, including the institutions mandated to secure land tenure and provide civil registration or identification.  Since 1990, Somalia has suffered civil war with horrific consequences, and despite the perception of homogeneity, Somalia remains a diverse community, and the sensitive question of ‘Somali identity’ is one of the root causes of the violence. The Somali people’s sense of a common heritage is rooted in the widespread belief that all Somalis descend from a common founding father, Hiil, father of Sub and Samale.

According to the pre-1991 identification systems in Somalia, prior to colonisation, there was an absence of identification systems since the country did not have a ruling administration or clearly defined boundaries, and its population was sparsely spread and inhabited several territories in the Horn of Africa. However, people could identify others by their dialect, accent, and genealogy if needed. This changed in the first half of the twentieth century, following the arrival of British and Italian colonial administrations. Quick to establish clearly demarcated borders that necessitated the introduction of identity registration systems, both administrations sought to better secure their territory and control migrants. The colonial registration processes were designed to register citizens in their respective constituencies and were subject to strict rules. This drive was also connected to law enforcement due to skirmishes between nomads over territorial encroachment. Clan elders already recognized and registered by the colonial authorities were tasked with providing verbal references on behalf of their clansmen and this enabled Somalis to register and receive identity cards. Needless to say, elders were selective about acting as witnesses—fearful of reprisals by the administrations that held the elders responsible if their clansmen were found guilty of committing a crime. These colonial identity cards were manually registered by local colonial registration offices and issued by the colonial district mayor and included a photo, fingerprint, full name, mother’s maiden name, and maternal grandfather and paternal grandfather’s names. This process, however, was time consuming, and failed to convince locals to endorse the idea (because of their limited and problematic encounters with the authorities) and helped fuel suspicions about the whole exercise (which also required a small fee, known as ‘kodi’). Furthermore, many Somalis did not see the benefits of registering unless you were a civil servant in the colonial administration. The pace of rolling out uniform identity and personal registration systems continued even after the Italian Somaliland administration was overthrown by the British colonial administration following World War II. In 1950, two different identity card systems emerged in the North and South. However, both identity cards shared some similarities in that they identified people according to their clans and subclans, as verified by clan elders. During this period, a limited number of people registered and received identity cards in preparation for the first post-independence democratic elections in 1963.

To date, Somalia has not consolidated identity management around a single national system. It lacks any type of population register or national ID system, and has a limited and poorly functioning civil registry. In the absence of a viable foundational system, a patchwork of functional systems provides Somalis with their only viable proof of identity. However, these foundational systems are lacking in coverage and many suffer from a variety of issues, including high costs, complex processes, difficulties in verifying a person’s true identity, and a lack of common standards. In addition, the absence of a unique legal identity instrument to underpin foundational systems (e.g., a birth certificate) means that fake or forged documents are rampant in the country. This fragmentation, poor coverage, and non-robustness is a problem for public administration and the delivery of key benefits. For example, financial inclusion programs geared toward the poorest can only function effectively if they use a targeted approach to identify deserving beneficiaries. Birth registration should logically form the foundation of identity management; however, Somalia has yet to establish a coherent and interconnected system of civil registration with such a capability. As a result, Somalia has the lowest birth registration rate in Sub-Saharan Africa (approximately 3 percent for children under age 5). At just 7 percent, Somaliland has registered more children than any region. Civil records are not digitized, and verification is manual based on paper records, where these exist. Whilst this is a priority area for action, it is likely to take a long time to develop. One primary issue with the civil registration system is that it is completely decentralized and implementation is uneven. Currently, some of the country’s 22 municipalities (local governments) are charged with civil registration—including maintaining registers and issuing certificates for births, deaths, and marriages—and producing municipal ID cards. However, the implementation of these responsibilities by municipalities has been poor. For example, it appears that Mogadishu municipality has only just started producing birth, death, and marriage certificates and a new ID card. A number of municipal mayors have introduced registration systems in the past, but the systems were scrapped by the next mayor for various reasons. Some recent efforts to improve birth registration show promise.

Land transfers and ownership is affected by legal identity. For example during the civil war, much of the privately owned land in Mogadishu was abandoned and property titles lost. Many owners who later returned to claim their land found it occupied by other people, or claimed by the government. While notaries and the BRA are responsible for keeping records on property and rental housing in the city, it is difficult to know exactly how much land is privately owned and by whom, as land transfers have been taking place outside of formal procedures for many years.

A summary of the current situation with regard to access to and ownership of land and property is provided as follows; (a) Land leasing is mainly informal as no law currently regulates land leases. Anyone can buy land from legal owners or lease it from customary landlords of undocumented land on the city’s outskirts if they have the necessary guarantor. Legally, leases cannot exceed nine years, and the process is documented by hired public notaries. BRA is responsible for issuing the related legal documentation. If the lease is to be longer than nine years, many people do not officially certify the agreements with notaries, and thus have informal leases. (b) the rental housing market is largely informal, with little oversight from the BRA or the FGS. Residents must provide an ID, a fee of US$ 10 to the BRA, a guarantor, and an upfront payment of between one and three months’ rent. The property owners have to present a court or notary-certified deed. These rules vary by location and transaction. For mid-level to high-end properties, notaries are generally used. For lower-income areas and informal arrangements, intermediaries come into play (although notaries can be engaged in some cases).

According to Somali civil law, landlords can only evict tenants who violate a tenancy contract, or otherwise by mutual arrangement, if a formal agreement exists and has been registered with a notary. Even where a contract exists, application of the law, according to interviewees, is patchy at best. If no formal agreement exists, then the landlords can act as they see fit. With regard to (c) Land and property purchases, as with lease agreements, are open to everyone. Land can be purchased privately if both parties agree and the owner has an authentic title deed. The sale is effected with the participation of a notary (in many cases), a guarantor and a witness. Some people choose to undertake the sale informally, in which case they draft the sale documents themselves and effect the sale/purchase in the presence of witnesses.

Moreover, from the 1960s to 1991, a land registry and cadastral records existed, and were held by the municipal authorities. However, these records are now in the possession of a diasporic Somali living in Sweden who – through his office in Mogadishu – charges a percentage fee for the verification of deeds. (d) Inheritance: formal courts usually certify deed documents to inherited land. An inheritance can be allocated through a will or a legal representative. A will is considered formal when it is registered with a notary. Informal transfers are done by handing over property to family members in the presence of adult members of the same family. (e) Informal settlements: there are no legal mechanisms regulating informal settlements or the rights of people residing there. However, and especially in the case of informal settlers, city residents usually refer to “adverse possession”, where legal claimants lose their right to ownership if those residing on it have had uncontested use or the owner has been absent for 25 years or more. In Mogadishu, it is common to claim that the legal owners were friends or accomplices of former dictator Siad Barre and were therefore allocated the land illegally in the first place.

Hence a comprehensive analysis of the linkages is key if reforms and a sustained efforts are to be made, and needed to build a coherent civil registry capable of playing a foundational role in identity management while enhancing land tenure security.

2.0 PURPOSE

As part of its mandate to promote and protect the rights of DACs Somalia, the NRC seeks to establish the veracity of the above assertions and assess the challenges and conditions in obtaining Identity documents within the context of Housing Land and Property rights. Often times an identity has been used to prove citizenship in Somalia. Lack of an identity to eligible persons results to limited enjoyment of rights of citizens. This is important in ensuring safety and security. Failure to access an identity card has the consequence of denying a person the right to adequate housing. It also impedes on the freedom of movement: in certain circumstances, persons without identity cards are not allowed to move freely within the country, this is common between the North and South. Some experience police harassment when they fail to produce an identity card while travelling. The freedom of movement is curtailed also because one requires a national ID in order to obtain a passport and other necessary travel documents.  Denial of the right to own property: In most urban centers of Somalia, one needs a national identity card in order to rent a house/home. In other circumstances, a person has to produce an identity card in order transfer or purchase property. Further, in order to engage in normal business transaction e.g. opening a bank account, an identity card becomes a crucial document.

3.0 JUSTIFICATION

Access to legal identity and civil documentation – such as the documentation of births, marriages, and deaths – is a basic human right and a prerequisite to the realisation and enjoyment of a number of other civil, political, economic, social and cultural rights. Moreover, possessing documentation is critical to reducing protection risks, ensuring access to income-generating opportunities and securing housing, land and property (HLP) assets. In the context of displacement, the rights to legal identity and HLP are essential to achieving durable solutions and providing a foundation on which displaced people can sustainably rebuild their lives.

This assessment explores the key challenges that displacement affected populations in Somalia face to access civil documentation and HLP rights from a both an early and durable solutions perspective, including in the context of drought and returns to Somalia. Specifically, it focuses on issues related to death registration, civil registration for families with missing relatives, and the link between a lack of civil documentation and the enjoyment of HLP rights, which are particularly significant issues during conflict and displacement. Based on in-depth legal analysis and quantitative and qualitative research, including focus group discussions and interviews with key stakeholders, the assessment will provide an overview of the on-the-ground reality and highlight how gaps in these areas could be addressed. With regards to Somalia, the study shall consider the rights, policy and legal framework as promulgated by the Government of Somalia. Although not the focus of the assessment, returnees are likely to face many of the same challenges related to civil documentation and HLP rights as IDPs.

There are concrete opportunities for stakeholders to take steps that will increase access to legal identity and civil documentation and ensure their HLP rights of DACs are better protected. Continued and broadened support that responds to the key challenges faced by DACs is essential to improve the protection environment and access to durable solutions. Proving legal identity can be a major challenge for many DACs who, after years of displacement, have been unable to obtain, replace, or update civil documentation. Access to civil documentation is inextricably linked to HLP rights, which are contingent on a person’s ability to prove their identity and family lineage. A lack of civil documentation can thus severely limit opportunities, and further compound the challenges that DACs face to exercise their HLP rights. Both of these issues can have significant protection implications during displacement, and in the longer term, can make durable solutions harder to achieve and negatively affect future recovery efforts.

Given the scale of these challenges in the Somalia context, NRC desires to undertake a study focused on key civil documentation and HLP challenges faced by Somalia IDPs and returnees from a durable solutions perspective.

4.0 OBJECTIVES

The main objectives of the study were:

• To identify challenges and prohibitive conditions imposed in the issuance of national identity cards and access to adequate housing in Somalia;
• To ascertain the extent to which lack of identity impacts housing land and property rights in Somalia;
• To make policy, legislative and administrative recommendations to the Government in order to improve the registration process.

5.0 METHODOLOGY

Information for this report will be gathered through a combination of a desk review of existing literature and the NRC ICLA programmes’ experience with these issues, complemented by qualitative and quantitative research. For this effort, research will be conducted Somalia.

The qualitative fieldwork will include focus group discussions (FGD) with male and female IDP community members and key stakeholder interviews (KII).

Enumerators will record data generated during the KII and FGD on detailed data collection sheets used for the analysis. FGDs may be limited due to COVID-19 and security restrictions that apply in all the regions to various degrees during the research period.

In addition, NRC shall collect a number of case studies to gain an in-depth understanding of the issues and how they affect DACs. All names of individuals shall be withheld to respect respondents’ privacy.

The research team shall triangulate all the findings across multiple data sources, in particular the comparison of the qualitative findings with ICLA programme’s experience and data.

6.0 CONSULTANT’S TASKS AND DELIVERABLES

Under the overall supervision of the ICLA Specialist in Somalia, the consultant will prepare a report on access to legal identity and HLP rights in Somalia. This will entail the following tasks:

• Conduct a targeted literature review
• Document focus group discussions and interview notes from the key stakeholder interviews (KII)
• Compile, in annotated form, a broad range of evidence-based case studies and good practice examples, from developed and developing countries, of how legal identity and civil registration approaches linked to HLP were undertaken.
• Produce a 30-50 page report that outlines the challenges, gaps and recommendations, including a compelling rationale as well as practical policy and implementation options. This should include pathways for stakeholders to operationalize the available innovative tools, frameworks and approaches to secure land tenure and rights; and show how existing and innovative tools can be used together to foster HLP rights.
• Produce a 4-6 page Policy Brief that distills the key findings and messages for decision makers and HLP and legal identity stakeholders.

7.0 CONTRACTUAL TERMS

The consultancy will be home-based for three months starting from 15 June 2022. The consultant will prepare an overall work plan and research tools at the beginning of the assignment, which will be discussed and agreed with the supervisors at the NRC.

• A Master’s or PhD degree in law, development studies, quantitative economics, social or political science or other field relevant for the consultancy;
• Research experience and publishing with an emphasis on environmental or natural resource management;
• Experience in transdisciplinary work on legal identity and land issues;
• Ability to communicate effectively in English with demonstrated writing skills is required.

All Bids should include:

• 1. A cover letter introducing the consultant. In the case of a firm, the cover letter should introduce the team composition and specifying the role to be played by each team member.
  2. A technical proposal of not more than 5 pages outlining how to execute the task with a clear framework, methodology and timelines. Proposed methodology should demonstrate a clear understanding of the ToR.
  3. Resume of the consultant, or each team member for firms
  4. Evidence of experience conducting similar assignments
  5. Proposed budget indicating consultancy fee and all auxiliary costs in USD.

How to Apply: Interested applicants fulfilling the requirements are invited to send their applications to [email protected]  indicating “An assessment of the linkages between Legal Identity, Housing Land and Property rights in Somalia” in the subject line. The deadline for application is 18th June, 2022. Please address your application as indicated above and please do not address or copy your application to an individual at the Norwegian Refugee Council. Candidates who do not receive any feedback within one month of the deadline should consider their application as unsuccessful.

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