Federalism and Somalia’s Fisheries Resource Management and Laws

Fishing
Typography

Due to the decades of civil strife and political upheaval, the state of Somalia was brought to its knees. With very few of its systems left functional, successive governments have found it difficult to govern the country. Lack of proper and up-to-date systems, funds and capacity have compounded the situation further.

However this article is not about the past. The past is only relevant to understanding the future. The purpose of this article is to explore how Somalia as a whole (including Somaliland) can exploit what is often hailed as its best natural resource.

Since the collapse of the Somali state, Somalia’s political landscape and political development has gone through a roller coaster cycles of warlords, famine, two international interventions, transitional governments and the latest federalism as an attempt to solve the quagmire of what many would call the first failed state in geopolitics.

Federalism

On paper, federalism appears to be central to today’s Somalia. “Federal Republic” is part of its official name. It is run by a “federal national government”. “Federal, sovereign and democratic” are the country’s defining characteristics, according to Article 1 of the 2012 provisional constitution, a document in which the word “federal” appears 710 times.

But in the wake of more than two decades of civil war and state collapse, Somalis disagree about whether federalism is a recipe for sustainable peace - and even whether such a system is practicable.

The good news is that each and every federal state as established or proposed has access to the Indian Ocean. For fisheries this is important but fraught with complication.

What does federalism mean in Somalia?

Federalism is an ambiguous notion, involving relationships between central and peripheral power structures that vary widely from country to country.

In Somalia, the constitution outlines the connections between the central government and future “federal member states,” but the precise roles and responsibilities of each level of government are not specified.

Article 54 states: “The allocation of powers and resources shall be negotiated and agreed upon by the Federal Government and the Federal Member States” pending their creation, except in the areas of foreign affairs, national defense, citizenship and immigration, and monetary policy, which are all under the purview of the central government, based in the capital, Mogadishu.

The federal member states will be represented in parliament through the Federal State’s upper house of parliament, which has yet to be created.

The distribution of resources between state and national governments, and the status of Mogadishu are also major challenges. In a country where agriculture is marginal, manufacturing is non-existent and the service sector is limited, the potential importance of revenue from petroleum and mineral resources is not to be underestimated. From highly centralized all roads lead to Mogadishu the transfer of power to the federal states is likely to be an area of conflict.

Geographically, Somalia locates in the East Africa, in the east it is adjacent to Indian Ocean and in the north the Gulf of Aden of Red Sea. The size of the land is estimated 637, 540 km square; with coast line of 3333 km square with population of 9, 639, 541; sovereignty territorial waters up to 200 nautical miles. Its economy mainly depends on agriculture, livestock, forestry and fisheries. Livestock, which is predominant export, an important source of animal products (mostly milk) for internal markets and subsistence. Crop cultivation dominated by rural subsistence sector, which generated sufficient surplus to sustain domestic informal markets and barter economy. Fisheries are mainly engaged in lucrative commerce from enclave along the Red Sea and the Indian Ocean as far south as to the coast of Kismayo.

Somalia’s Current Fisheries Laws

Somali fisheries law is mainly derived from Somali civil law, international law, and the relevant ministerial regulations or guidelines; other sources of Somali law, such as, sharia law (Islamic), and Somali customary law (“Xeer”) are not directly applicable.

Prior to the establishment of the Somali Republic in 1960, the Somaliland Maritime Code (1959) prohibited a number of “Maritime Crimes” punishable by ne or imprisonment, including: 1) “Fishing, use of explosives, and lighting res in areas which are prohibited”, (Art. 218); 2) “Abusive fishing”, which is fishing without a licence or concession (Art. 234); and 3) “Fishing with prohibited means”, such as, fishing by means of dynamite or similar materials, or with electric current as direct killing or stunning means, or by throwing or dissolving substances in water to enervate, stun or kill fish and other aquatic animals (Art.235).However, the latter law was superseded; in particular, by the Somali Democratic Republic Fishery Law No. 23 of 30 (1985) (hereinafter referred to as “Fishery Law (1985)”).

The Somali Law No. 37 on the Territorial Sea and Ports (1972) (hereinafter “Law No.37”), provided that fishing in Somalia’s territorial sea and regular transportation of persons and goods between Somali ports was restricted to vessels flying the Somali flag and authorised vessels.
Any breach of latter provision was punishable by ne; and on a repeat offence the captain was liable for offences under Somali penal laws and the vessel could also be confiscated, Art. 5.

During Barre’s regime, the development of cooperatives farms were promoted further to his ideals of scientific socialism, and the Somali Law No.40 of 1973, on Cooperative Development in the Somali Democratic Republic(hereinafter “Law No. 40”) was promulgated and it covered various sectors of the economy including fisheries. Law No. 40 promoted the establishment of Fishery Service and Marketing Cooperatives and Fishery Production Cooperatives, Art.9. The concept essentially was for fishermen to combine their labour and equipment for collective fishing; and the income was to be shared among the members of the cooperative according to the work done by each the member. The purchase of inputs and marketing the catches was to be done collectively via a state organisation or cooperative shop. Furthermore, the accumulation of funds by the members for purposes of making joint investments into for example, cooperatives shops, storage and cooling facilities and maintenance workshops.

All cooperatives had to be registered under the relevant ministry in order to acquire a legal status. The minimum number of members for a fishery cooperative was twenty. Regional and District Cooperative Councils were tasked with responsibility of supervising the cooperatives.
On the 1st April 1985, the Ministry of Fisheries and Marine Resources published “Guidelines for Fisheries Joint Venture with Foreign Partners”(hereinafter “Fisheries Guidelines”), to regulate joint ventures between Somali fishers and foreign investors. Annexed to the guidelines are the Somali fisheries catch statistics for 1985, the licencing fees and information on local and foreign fishing companies.

“Fish” is defined as “any aquatic animal whether piscine or not and including mollusc, crustacean, shell fish, sponge coral and the young and eggs thereof”.
A “ fishing vessel” is defined as “a vessel used for fishing and operated for financial reward to other material gain, scientific research or processing, storage or carriage of fish, and includes any vessel used in support of or ancillary to fishing operations but does not include a vessel transporting fish of fish products as part of its general cargo”.

The Fisheries Guidelines detailed the requirements for an application to establish a fisheries joint venture, which had to be submitted to the ministry for approval. The ministry had to be satisfied that joint venture “plan is economically sound and practicable, beneficial for the country’s economy and its operation is not harmful to the marine resources protection and will not conflict with the Somali traditional fishermen, a letter of intent may be given to allow the licence to initiate the preparatory work”.

The Fisheries Guidelines also made limitations on the quantity of fish, which joint venture fishing operations could catch as illustrated by the chart below. “Optimum utilization” was defined as “with respect to the field from any fishery, the amounts of fish that will be produced from the fishery the maximum sustainable yield as qualified by any relevant biological, economic, environmental or social factors, and taking into account fishing patters, the interdependence of stocks of fish, the need to avoid over-fishing and any generally accepted sub-regional, regional or global fishing standard”. Any joint fishing operation which reached the optimum utilisation limit set or over shed its new joint venture application was prohibited from being accepted. The status of the Fishery Guidelines (1985) is at present unclear, but presumably as regulations which are outdated the transitional fisheries authorities are unlikely to implement them in Somalia.

Somaliland’s Fisheries Law:
In September 1995, the Somaliland promulgated its own shing laws, the “Somaliland Fisheries Law No.24 (1995)”, which is reportedly largely based on Fishery Law (1985). In order, to improve the sheries law, Somaliland also approved the “Coastal and Marine Resource Policy of Somaliland (2000)”. The Somaliland Constitution (2001) also prescribes obligations which are relevant to fisheries, these are:
. 1) “The state is responsible for the natural resources of the country and shall take all possible steps to explore and exploit all these resources which are available in the nation’s land or sea. The protection and the best means of the exploitation of these natural resources shall be determined by law”, Art 12 (4); 

. 2) “The state shall encourage indigenous economic production such as agriculture, livestock, fisheries, minerals, production of frankincense and myrrh and gum etc., and manufacture based on indigenous products” Art. 12 (6); 

. 3) “The state shall give a special priority to the protection and safeguarding of the environment, which is essential for the wellbeing of the society, and to the care of the natural resources. Therefore, the care of and (the combating of) the damage to the environment shall be determined by law” Art. 18 (1); 

. 4) “The most important objectives and duties of the Parliament are as follows: a) the protection of the peace and security of the Republic and Republic’s sovereign rule over its land, sea and air...” Art. 38 (4); and 

. 5) That “every person shall have the duty to care for, protect and save the environment” Art. 34. 


Puntland’s Fisheries Law
The Government of Puntland, Ministry of Fisheries, Ports and Transport, published “Fisheries Regulations from Somali Republic Fisheries Law No.23”(hereinafter “Puntland Fisheries Regulations”) dated April 2004. The Puntland Constitution (2001) also provides for environmental protection, which is relevant to fisheries, Art. 85 states that “the Council of Districts shall have the responsibility of implementing the plans in the fields of social services, education, intermediate and elementary school, livestock, agriculture, security, water, electricity, communication, health care, water, environmental safeguard and development according to their resources”; further Art. 96 states that “deforestation, erosion and of (sea, air and land) and the environmental pollution of sea, air and land charcoal exportation, trading of plants and firewood are prohibited”.

The Puntland Fisheries Regulations are relatively extensive, and even seek to protect endangered marine species and to regulate aquaculture activities. The regulations distinguish between fishing licenses for national vessels and foreign fishing licences and access agreements foreign vessels.

Fisheries Management
As can be seen the vacuum created by the lack of central government in the last 25 years have led to adaptation of federal structure and legal frameworks which would be difficult to reconcile with the concept of centralization.
Using the prism of the “Fishery Law (1985)” to analyse the issue of the management of natural resource such as fisheries, marine and environment it is clear that there is a basis of conflict with the current constitution.

In the past, the Somaliland Maritime Code (1959) granted the Minister of Economics the power to prohibit fishing in sea areas or zones for reasons connected with the public’s needs, sailing or maritime signal requirements (Art. 70). The said law also distinguished between “Major Fishing” and “Minor Fishing”.
The designated authority for fisheries development and management in Somalia is now the Ministry of Fisheries and Marine Resources of the TFG (“The Fisheries Ministry”), this designation is derived from the definition of minister under the Fishery Law (1985).To date the TFG
Fisheries Ministry has not publicised regulations, which supplement the Fishery Law (1985). Furthermore, the ministry has not issued any fishing licences, and is not receiving any fishing licence fees.

Although, the Fisheries Ministry lacks fishing revenue, the ministry bears the responsibility to promote, manage, and develop fishing activities. In particular, under Fishery Law (1985), the ministry has the following responsibilities and powers to:
. 1) Implement the general control and administration of the law,Art. 2; 

. 2) Compile statistical data and other related information on Somali sheries,Art.3; 

. 3) Publish information on Somali fisheries activities, Art. 3; 

. 4) Give a written order closing the fishing season, indicating the area, the type of fishing equipment and the fish or 
aquatic animals, Art. 6; 

. 5) May grant fishing licences for the sea and inland waters, Art.7; 

. 6) Must keep a register of any fishing licence granted under the law, Art. 7; 

. 7) May permit in writing any person or ship that possesses an entrance permit to conduct research on fisheries and 
related activities regarding marine resources, Art. 9; 

. 8) To ensure that “modern fishing” does not hamper the development of “traditional shing”,Art.11; and 

. 9) Make regulations regarding the proper management and development of shery activities, Art.16. 

The obligations on fishers granted fishing licences are: to obey the laws of Somalia and the regulations of the Fisheries Ministry; and to submit reports regarding their fishing activities. The reports must have details on the fish caught (including by-catch), such as, amount, types, products, location, method of fishing, the fish and other aquatic animals which are merchandised or processed, Art.8, Fishery Law No. 23.

Article 2 of the Fishery Law (1985)” centralizes the management of fisheries yet the Transitional Constitution says:
Article 44. Natural Resources
The allocation of the natural resources of the Federal Republic of Somalia shall be negotiated by, and agreed upon, by the Federal Government and the Federal Member States in accordance with this Constitution.
Article 45. Environment
(1) The Federal Government shall give priority to the protection, conservation, and preservation of the environment against anything that may cause harm to natural biodiversity and the ecosystem.
(2) All people in the Federal Republic of Somalia have a duty to safeguard and enhance the environment and participate in the development, execution, management, conservation and protection of the natural resources and environment.
(4) In consultation with the Federal Member States, the Federal Government shall adopt general environmental policies for the Federal Republic of Somalia.
Article 50. Principles of Federalism in the Federal Republic of Somalia
(1) Every government shall strive for a cooperative relationship with other governments, whether at the same level or at another level of government.
Every government shall respect and protect the limits of its powers and the powers of other governments, and shall:
1. (a) Have effective brotherly relationships with other levels of government in order to promote the unity of the citizenry;
2. (b) Inform governments of other levels of policies and activities it implements within its boundaries which may have an impact on the areas of other levels; and
3. (c) Have policies that facilitate the planning and implementation of joint development projects.
The various levels of government, in all interactions between themselves and in the exercise of their legislative functions and other powers, shall observe the principles of federalism, which are:
a) Every level of government shall enjoy the confidence and support of the people;
b) Power is given to the level of government where it is likely to be most effectively exercised;
c) The existence and sustainability of a relationship of mutual cooperation and support between the governments of the Federal Member States, and between the governments of the Federal Member States and the Federal Government, in the spirit of national unity;
d) Every part of the Federal Republic of Somalia shall enjoy similar levels of services and a similar level of support from the Federal Government;
e) Fair distribution of resources;
f) The responsibility for the raising of revenue shall be given to the level of government where it is likely to be most effectively exercised; and
g) The resolution of disputes through dialogue and reconciliation.

Conflict in the Past Law and Current Constitution
It is clear that the Fishery Law (1985) can no longer form the basis of general licencing regime given that Somaliland and Puntland and the newly created federal states would seek to have their own licencing regime.

Secondly the enforcement and control under Fishery Law (1985 under article 13 is left to the Somali Navy. Yet the Somali Navy is does not exist. Each state has since developed its own local enforcement, i.e. coastal guard, though these are limited in ability due to lack of funds.

Thirdly Fishery Law (1985) is simply unenforceable as it stands because under article 14 the old National Security Court no longer exists under the Constitution.
Fourthly it is clear that there must be a National Development Policy for Fisheries, which looks at development of fisheries as a strategic level. This would inevitably lead to addressing the question of allocation of resources, the establishment of harmonised Fisheries law and most importantly the establishment of a National Commission for Fisheries Licensing in which the States would participate.

Conclusion
Ultimately, Somali fisheries have the potential to bolster food and income security throughout the region. A more robust domestic fishery would increase jobs and wages in one of Somalia’s most vulnerable employment sectors. Management of foreign fishing is important to ensure lasting benefits for Somalis.
Given the decades of IUU fishing by foreign vessels within Somali waters, the international community bears a responsibility to help support sustainable fisheries through investment, regulation of its vessels, and respect for Somali law.

Accordingly, investment in the Somali fisheries economy, especially infrastructure, would spill over and improve other domestic sectors, set the foundation for long-term prosperity, and improve national security. It is important that International NGO’s focus on the development of national policy rather than piece meal approach focus on artisan fisheries.

Further, growth of the domestic fishing sector will benefit from a long-term approach to development that balances short-term needs with longer- term economic goals. This will ensure fishing is developed around a resource base that will provide a reliable source of income for generations to come.
This needs focus on the legal framework and the constitutional framework of the distribution of responsibilities at Federal level and State level.

Finally the establishment of Regional Hubs in each of the States which each have a port would empower the ownership of the National policy locally.
Kahiye Alim (This email address is being protected from spambots. You need JavaScript enabled to view it.), international public and private lawyer based in London. He has particular interest in Diasporas and investment financial flows and disruptive fintech.

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