Somaliland Civil Aviation Law
The territory of the Republic of Somaliland, as defined in Article 2 of the Constitution, and including the airspace is ‘inviolable and shall not be trespassed upon’. It is also further confirmed in the preamble of the Somaliland Civil Aviation Law (see below) that the Republic of Somaliland has complete sovereign authority over the airspace of its territory with the right to regulate and manage the civil aviation activities of its territory and airspace.
The Somaliland Civil Aviation Authority Law (Law No. 70/2017) (see below) which was previously passed by both Houses of Parliament in late 2015 has finally become Law, on its signature by President, on 26 December 2017. The Law, which is explored in more detail below, was previously titled, as a bill, the Civil Aviation Law, not only covers the establishment, functions and powers etc of the Somaliland Civil Aviation Authority (in Parts 1 to 12 of the Law), but also includes provisions relating to aerodromes (airports), offences relation to aircraft and airports, passenger protection and confirmation of Somaliland’s adherence to various Aviation international conventions. The Authority also currently acts as an Airports Authority. Before we explore this new Law and other relevant civil aviation related laws currently in force (from 1991), we examine firstly the previous civil aviation laws applicable in Somaliland from it its independence on 26 June 1960 to the re-birth of the Republic of Somaliland in 1991.
Somaliland Civil Aviation Law before 1965/6
Section 54(1) of the 1960 Somaliland Constitution made it clear that, subject to any changes made after independence, ‘the existing law [before independence] shall continue to be the law of Somaliland as from the commencement of this Constitution except in so far as it is thereafter amended, modified, repealed or revoked … but shall be construed with such adaptations and modifications as may be necessary to bring it into conformity with the provisions of this Constitution’. The main civil aviation laws which were still current on the independence of the State of Somaliland, until repealed later, were:
- Air Navigation Acts 1936 & 1947
- Carriage by Air Act 1932
- Colonial Civil Aviation (Application of Act) Order 1952, S.I 1952/868
- Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953
- Carriage by Air (Non-international Carriage) (Colonies, Protectorates and Trust Territories) Order 1953
- Colonial Air Navigation Orders 1955 to 1958 (S.I 1955/711) as amended) – 81 detailed Articles and 6 Schedules covering aircraft registration, maintenance, operation, navigation & management, licensing and use of aerodromes and other aspects such as air traffic control and fees.
- Air Navigation (Control of Air Routes) Regulations 1951 (GN 51/51)
- Civil Aviation (Investigation of Accidents) Regulations 1951 (GN 48/51)
- Air Transport (Licensing of Air Services) Regulations (as amended in 1950 and 1953)
- Air Transport Licensing Authority 1957 (GN 59/57) appointed, on 28 August 1957, members of the Authority as the Attorney General (Chirman), the Controller of Civil Aviation, the Airport Manager, a Mr J W McNininch and the Honorable Jirdeh Hussein MBE.
- Aerodromes (Control of Obstruction) Ordinance 1951 (Ord. 19/51)
- Aerodromes Fees Rules (as amended)
By early 1960, there were two gravel runways (each 6,000 feet by 600 feet) at Hargeisa Airport with new airport buildings (opened by Duke of Lancaster on 19 November 1958); two sand runway (one of 4,500 feet by 300 feet and the other of 4,200 feet by 100 feet); landing grounds suitable for light aircraft only in the other four district towns (Borama, Burao, Erigavo and Las Anod). Additionally, there are various landing strips in other small townships. Hargeisa Airport had scheduled international services (16 per week) and unscheduled services (10 per week) by mainly Aden Airways and East African Airways. There were also private and chartered planes as well as military aircraft. The other less frequent international services (four per week) were at Berbera Airport. We mention these international flights because it was not long after the union with Somalia that international flight to Somaliland were all suspended.
Finally, even after the union of Somaliland and Somalia, most of these Somaliland civil aviation laws, (as was set out in Article 3(1) of the belated 1961 Somaliland/Somalia Act of Union), continued to apply in the territory of Somaliland, in so far as they were not inconsistent with the Somaliland and the Somali Republic Constitutions, until their repeal.
From 1965 to 1991
The Somali Republic ratified in 1964 the following civil aviation conventions: Convention on International Civil Aviation of 7/12/1944 (ICAO Constitution); International Air Services Transit Agreement of 7/12/1944 (Two freedoms of the Air); and the following Protocols amending the ICAO Constitution - Arts. 93bis Montreal 27/5/1947, Arts. 45, 48(a), 49(e) and 61 Montreal 14/6/1954 , Art. 50(a) Montreal 21/6/1961 and Art. 48(a) Rome 15/7/1962 (source: ICAO Status of individual states). The Somali (Democratic) Republic ratified in April 1971 (DPSRC No. 91 of 3 April 1971) the previous Constitution of the African Civil Aviation (AFCAC established in 1969), which has since been replaced by a new constitution adopted on 16 December 2009.
The first civil aviation law of the Republic was Organisation of Civil Aviation, Decree Law No. 13 of 9 September 1965 (converted into law by Law No. 18 of 21 November 1965) which was a short law (24 articles) which essentially defined the Minister of Communication and Transports’ functions and powers in relation to civil aviation and airports, and established an Advisory Commission on Air Navigation.
The regulations issued under Art. 22 of the Law were
- The Civil Aviation Regulations No. 36 of 5 February 1966 (dealing with classification of aerodomes, landing/parking fees and other charges updated periodically). Under Article 2, the then existing aerodromes were classified into three Classes - i) class I aerodromes with a tarmac runway capable of taking large aircraft, and with Air traffic, Aeronautical information, Meteorological, Fire Fighting, and Telecommunications Services, which were only Mogadishu and Hargeisa airports; ii) class II aerodrome with or without tarmac runway capable of taking medium aircraft and with , Aeronautical information, Meteorological, and Telecommunications Services, which were Berbera, Burao, Erigavo and Kismayo; and iii) class III aerodromes which are unmanned but have serviced landing strips adequate for light aircraft, which were all ‘Government controlled’.
- The more detailed (61 articles) Civil Aviation Regulations Ministerial Decree No. 86 of 26 March 1967 (dealing with airport management, aircraft operation etc.) and the 2 article Civil Aviation Regulations Ministerial No. 173 of 28 August 1967 (Ministerial Decree).
- Air Navigation: The Civil Aviation (Air Navigation) Regulations, PSRC Decree No. 138 of 20 February, 1971(65 Articles in 10 Chapters and 12 schedules). These sealt with registration and marking of aircraft, airworthoness and equiptment of aircraft, aircraft crew and licensing, operation of aircraft, fatgue of flight crew, air traffic, documents and records, and general provisionsincluding contraventions. (The provisions were similar to the Somaliland Air Navigation Orders, listed above)
[The above legislation is all in English, as they predated the adoption of the Somali script]
- Air Worthiness: Establishment of the Civil Aviation Airworthiness Division, Ministerial Decree No. 8 of 23 November 1985 (6 Articles)
- Ministerial Decrees 1 to 5 of 1 May 1986 dealing with various aspects such as aircraft maintenance engineers and inspectors as well as detailed Air Worthiness Technical Regulations. (All published in one official bulletin dated 28 January 1987, No. 1, R. 10).
- Fees Regulations for Airworthiness Surveillance of Somali Registered Civil Aircraft and of Aeronautical Firms, Ministerial Decree No. 3 of 4 March 1985 consisting of 26 Articles (in English).
- Fees – various regulations over the years, the last of which were in the mid- 1980s, such as Law No. 5 of 1 August 1988 relating to Airport Departure Tax, or Law No. 4 of 10 January 1978 relating to Airport Landing Fees (which were based on Airport Landing Fees Regulations No. 36 of 5 February 1966) etc.
Post 1991 - The Republic of Somaliland
Somaliland re-asserted its independence, as the Republic of Somaliland, on 18 May 1991 and started to re-establish peace and re-build its governmental institutions and destroyed infrastructure and have control of its territory and airspace. Initially with Hargeisa airport out of action for a few years over disputes, Berbera airport and various landing strips in Kalabydh, Borama and Burao were in use, until 1996/7 when Hargeisa airport was also back in operation. The Somaliland Ministry of Civil Aviation and Air Transport was (until late 2017) in charge of the Somali airports and civil aviation including aerodrome flight information service, control of the lower air aircraft and other operational services. The ‘Somalia’ Flight Information Region (FIR), however continued to be dealt with by CACAS based in Nairobi. Over the years the two main Somaliland International Airports (Hargeisa and Berbera) were re-built and modernised with assistance from Kuwait and support (in security and other equipment) from the United Kingdom.
As far as the ‘Somalia’ FIR and FISS (Flight Information Services for Somalia – FIS is essentially a service provided for the purpose of giving advice and information useful for the safe and efficient conduct of flights) were concerned, with the final collapse of the Somalia Military government in January 1991 and the long chaos and war in Somalia, an ICAO Project for ‘Somalia’ ‘air navigation services’ was set up in 1993 and was re-named in 1996 the ‘Civil Aviation Caretaker Authority for Somalia – CACAS’ (based in Nairobi, Kenya), to ‘ensure safe air transport over Somali airspace in the absence of a functional central government’. The objective of the project was stated as being ‘to provide for the operation and maintenance of essential facilities, equipment and services for international air transport operations, including humanitarian and relief flights and local flight operations’ (within the Somalia Flight Information Region airspace and ground facilities) ’ … in order to meet immediate requirements for safety, and to assist in the rehabilitation and development of the aviation infrastructure where feasible’. This involved the operation of the ‘Somalia’ Flight Information Centre and Aerodrome Flight Information and related Safety Services at designated airports and information to aircraft flying through the ‘Somalia’ airspace, as well flight coordination with the neighbouring States. The funding was mainly from air transit charges. (Source: CACAS).
Over the years, there have been discussions between Somalia (including Puntland), Somaliland and ICAO about the repatriation of CACAS and future management of the former ‘Somalia FIR’. Following the international communities’ 2012 Somalia London Conference communiqué commitment to the effect that they ‘recognised the need for the international community to support any dialogue that Somaliland and the (Somalia) TFG (Transitional Federal Government) or its replacement may agree to establish in order to clarify their future relation’ the two sides embarked on a series of talks which, among other things addressed civil aviation. In their Final Communiqué of the Somaliland and Somalia Dialogue Held in Istanbul, 7-9 July 2013, the two sides
‘1. Agreed to the return of the air traffic management from the UN and decided to establish a joint control body that is based in Hargeisa to lead the air traffic control of both sides. It is also agreed that this body will propose a mechanism for equitable revenue-sharing.’
In the next meeting held (also) in Istanbul (2) on 16 to 19 January 2014, the Communique confirmed, among other issues that
‘7. Referring to the Communiqué of the two parties Dialogue in Istanbul, Turkey on 7-9/July 2013, [t]he parties agreed to nominate Air Traffic Control Board to establish within 45 days.
8. The parties agreed to appoint an ad-hoc technical committee composed of 4 members, (two from each party) to prepare the terms of reference of the Air Traffic Control Board. The Technical Committee work will be supervised by the respective two Ministers.’
At a meeting of the Ad hoc Committee (referred to in the above mentioned Istanbul (2) meeting) held in Istanbul on 31 March 2014 to 04 April 2014 and attended by the respective Civil Aviation Ministers of Somaliland and Somalia, a short 3 point communique was issued:
‘1. The airspace FIR management to be returned to Somalis, latest by January 2015 and managed by a joint board.
2. The difference between parties regarding the terms of reference as to the function and the shape of the Management Board.
3. The respective parties will consult their higher authorities, Somalia and Somaliland, on the key issues discussed during the session; both supervising Ministers must attend the next Somalia-Somaliland talks in Istanbul whereby both parties are to come to agreement on airspace issues.
Nothing further happened on these civil aviation agreements as underlined by the Somaliland/Somalia Presidential level 21 December 2014 Djibouti meeting communique which specifically stated that two sides agreed that ‘(2c) [b]oth sides agreed to implement the Air traffic control agreement based on what was previously agreed’.
Despite these express agreements, the Somalia Government set out unilaterally to press ICAO to relocate the UN CACAS Nairobi based Flight Information Services for Somalia (FISS) directly to Mogadishu and nowhere else. Somaliland’s concern about Somalia’s earlier unilateral actions were made clear in this early 14 May 2013 Ministerial letter to UN (and ICAO) condemning Somalia’s disregard of the previous consultations and mutual understanding (from May 2011) on the procedures for repatriating the CACAS Project. The Somalia government proceeded ahead with its actions, regardless of the contents of previous agreements with Somaliland, and in 2017, it announced that it contrived to divert to Mogadishu new equipment destined for modernising the CACAS Nairobi FISS. Finally in a AIP Supplement issued on 25 January 2018, FISS announced that the Flight Information Centre shall be relocated to a new Mogadishu Flight Information Centre (at Mogadishu Airport) with effect from 29 March 2018 (1100UTC) with Nairobi FIC shadowing it in ‘hot standby’ status until 14 April 2018. So much for the Somaliland /Somalia talks agreement! There are, however, reports of further talks on this issue.
Current Somaliland Civil Aviation Law
Although Article 130(5) of the Somaliland Constitution allowed the use of relevant pre 1991 legislation in so far they are compatible with the Constitutional provisions relating to the sovereignty of the state and the fundamental rights and freedoms, most of pre 1991 civil aviation legislation was not unavailable, but was, in any case, outdated. Nevertheless Somaliland set out to re-establish its civil aviation and airports. As confirmed in Article 10 of the Constitution of the Republic, Somaliland is committed to observing the multilateral international conventions that the pre 1991 Somali Republic has entered into (and to UN Charter). To underline the importance of Somaliland’s compliance with international civil aviation norms, Presidential Decree No. 0223/042012 of 03 April 2012 titled Resolution on Compliance with International Civil Aviation Organization Standards, Recommendations and Industry Best Practices stated, among other things, that –
‘[i]t is the Republic of Somaliland’s objective to fast-track from this date onwards towards the achievement of Compliance with the International Civil Aviation Organization’s published Standards, Recommendations and Aviation Industry Best Practices in the Provision, Operation, Financing and Regulation of Aviation and all Aviation related activities.’(para 3)
Led by the then Ministry for Civil Aviation and Air Transport, all governmental bodies were enjoined to expedite the repealing of ‘all regulations, procedures and protocols as may conflict with UN Conventions, Declarations, Standards, Recommendations and Aviation Industry Best Practices’ and must (with specialist support) ‘prepare, from International model legislation, such replacement law, regulations, procedures and protocols as required in Compliance with UN Conventions, Declarations, Standards, Recommendations and Aviation Industry Best Practices’ (para 6). Such specialist support was, for example, provided by the United Kingdom.
Alongside the modernisation of the two main international airports of Hargeisa and Berbera, considerable progress was made in the work on compliance with ICAO standards. The main Somaliland Civil Aviation is now the Somaliland Civil Aviation Authority Law - No. 70/2017, (this SLLaw copy includes copy includes Som/English Arrangements of the Arrangements of the articles) which came into force on 26 December 2017. The gazetted copy of the Law is available here: Xeerka Hay’adda Duulista Madaniga Lr. 70/2017. The Law consists of 91 articles grouped into 18 parts and an annexe setting out the texts of the Civil Aviation conventions and protocols referred to in the Law. Briefly,
- Part 2 of the Law sets out the civil strategy and policy.
- Parts 3 to 13 deal with the establishment of the Somaliland Civil Aviation Authority, its functions and powers, specially in relation to all aspects of civil aviation matters.
- Part 14 deals with aspects of trespass, nuisance, salvage and patents.
- Part 15 covers civil aviation related offences matters meriting administrative fines.
- Part 16 deals with public health, emergency, essential services and anti-competitive practices
- Part 17 deals with passenger protection issues.
- Part 16 contains various final provisions, such as regulations, transitional provisions and repeals.
- The Annex, as mentioned above, sets out the essential civil aviation convention which are part and parcel of the Law.
Article 88 of the Law confirms that in line with Article 6(2) of the Somaliland Constitution which approves, where necessary, the use of languages other than Somali, the civil aviation conventions which have the force of law in Somaliland shall remain in English language and so would any detailed civil aviation regulations issued under this Law. The Law came into force on its signature by the President on 26 December 2017.
An official English language version of the Law will, in due course, be issued also by the Somaliland Civil Aviation (and Airports) Authority which commenced its work on the abolition of the Ministry of Civil Aviation and Transport. Article 5(9) of the the Structure of the Ministries and Governmental Bodies Regulations, No.1/2018 (Issued under the Law on the Delineation of the Organisation of the Government and of the Independent Public Bodies, Law No. 71/2015 after the inauguration of the newly elected President of the Republic and setting out the changes to Ministries and public bodies (and coming into force on its gazetting on 6 January 2018) confirmed the transfer of all the functions and duties of the abolished Ministry for Civil Aviation and Air Transport to the newly established Somaliland Civil Aviation Authority. This included management of existing airports but note, however, that the 2017 Civil Aviation Law includes provisions for the management of airports by others , as airport authorities, or through concessions etc. when and if such concessions/or other bodies are thought appropriate by the Government under the relvent provisions of the above 2017 Law . The relevant Cabinet Minister under this Civil Aviation Law is now the Minister of Transport and Development of Roads.
Other Civil Aviation Related laws