Humanitarian Dialogue Stateless Justice in Somalia Formal and Informal Rule of Law Initiatives

report July2005
Centre for
Humanitarian
Dialogue
Stateless Justice in
Somalia
Formal and Informal
Rule of Law
Initiatives
Dr Andre Le Sage
Contents
List of Acronyms 4
Glossary of Somali Terms 5
Summary of Conclusions and Recommendations 7
Strategic recommendations 9
Increased international support 11
1. Introduction 13
2 The Somali Context 15
2.1 The colonial experience 17
2.2 Independence and national unification 18
2.3 The Siad Barre dictatorship 19
2.4 Civil war and state collapse 21
2.5 International intervention 22
2.6 Stateless Somalia 23
2.7 Reconstructing Somalia 24
3. Formal Judicial Systems 26
3.1 ‘Republic of Somaliland’ 26
3.2 Puntland State of Somalia 28
3.3 Transitional National Government (TNG) 29
3.4 Transitional Federal Government (TFG) 30
3.5 Limitation of the formal judiciaries 31
4. Traditional Clan Law 32
4.1 The xeer process 35
4.2 Limitations of xeer 36
5. Shari’a Courts 38
5.1 North Mogadishu court 42
5.2 The Belet Weyne court 42
5.3 South Mogadishu’s courts 44
5.4 Demise of the courts? 46
5.5 Revival of the courts 47
Report
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2005
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2
6. Other Justice, Legal and Security Initiatives 49
6.1 Warlord administrations 49
6.2 ‘Vigilante groups’ or madani 49
6.3 Private arbitration 50
6.4 Lawyers’ associations 51
6.5 Civil society and international support 51
7. Conclusions 53
Bibliography 59
3
Acronyms
APD Academy for Peace and Development
DRC Danish Refugee Council
IGAD Intergovernmental Authority on Development
NSC National Salvation Council
PDRC Puntland Development Research Centre
RoLS Rule of Law and Security project (UNDP)
RRA Rahanweyn Resistance Army
TFG Transitional Federal Government
TNG Transitional National Government
SACB Somalia Aid Coordination Body
SNM Somali National Movement
SNRC Somalia National Reconciliation Conference
SRRC Somalia Reconciliation and Restoration Council
SRC Supreme Revolutionary Council
SSDF Somali Salvation Democratic Front
UNOSOM United Nations Operation in Somalia
4
Glossary of Somali
Terms
Anno Revenge killing by one clan or sub-clan against another in the
absence of diya payment.
Barax Broadly translated into English as ‘mixing’, it is a practice not
accepted by Somali shari’a courts as the distortion of Islamic law
through mixing with other sources of law.
Dhig Aspects of xeer guud which apply to penal matters, including
murder (qudh), aggression (qoon), and thievery (tuugo).
Dhaqasho Aspects of xeer guud which apply to civil matters, including issues
of family (xilo), private property (xoolo), territory (deegan), and
hospitality (maamuus).
Diya A main principle of xeer, this is the ‘blood compensation’ paid by
one diya group to another, usually in the form of livestock.
Diya group Small social units that take collective responsibility for their own
security, as well as undertaking an obligation to compensate
other groups for any harm committed by one of its members.
Dumal The practice of forcing marriage between a widow and a male
relative of her deceased husband.
Gar dawe A xeer proceeding that strictly applies customary law in an
adversarial manner to determine guilt and innocence.
Godobtir The practice of forcing marriage between a young girl and an
aggrieved clan as part of a diya payment.
Higsian The practice of forcing marriage between the sister of a deceased
wife and the widower.
Madani Neighbourhood-based ‘vigilant groups’ which arm themselves to
provide for local security.
Masalaxo A xeer proceeding that focuses on mediation to identify a
solution that is acceptable to all parties.
Mooryaan A social category for bandits and uncontrolled militia.
Shahad Solicitation of financial and material support by Somali
traditional elders.
Suluh Broadly translated into English as ‘resolution’, it is a practice
applied by Somali shari’a courts to integrate Islamic, traditional
and statutory laws into a single workable decision for a case.
Xeer Somali customary law.
Xeer begti Respected and qualified elders who are entrusted to maintain
knowledge of applying xeer.
5
Xeer gaar Specific aspects of xeer that regulate localised economic
production relations for clans and sub-clans specifically
involved in pastoralism, fishing, frankincense harvesting, etc.
Xeer guud Generally applicable aspects of xeer which are generally
applicable across all Somali clans, and regulate day-to-day
social life, civil and penal matters, and dispute settlement.
Xissi The most fundamental stipulations of xeer for which
unquestioned historical
adkaaday precedent exists.
6
Summary and
Recommendations
After more than a decade of state collapse, four different justice systems can be
identified in Somalia:
1 formal judiciary structures in regional administrations and central
governments created at international peace processes
2 the traditional, clan-based system known as xeer
3 the growing number of shari’a courts in urban areas, particularly
Mogadishu
4 civil society and private-sector initiatives, as well as ad hoc mechanisms
established by Somali militia-factions.
These systems often coexist in the same location.They each have their own
strengths and weaknesses, and all have provided a degree of security and redress
for Somalis over the past decade. Nonetheless, their application in Somalia
today requires review and harmonisation into a complementary whole.
Multiple, overlapping and often contradictory sources of law have made
determination of primacy and jurisdiction highly confusing and contentious.
This combines dangerously with the lack of formal training of judges and
lawyers, widespread public ignorance and distrust of the formal judicial
systems (particularly in rural areas), and efforts by some Islamic court leaders
to impose fundamentalist beliefs through shari’a.Amidst this confusion, the
choice of applicable law in any given case is largely driven by two factors: first,
where the self-interest of the stronger party to the dispute is served; and
second, how a decision that will preserve security and peaceful inter-clan
relations can be reached.These factors have limited the equality of all Somali
citizens before the law, as well as the degree of protection that the legal system
can offer on a personal basis, particularly when powerful clans, politicians or
businessmen exercise direct influence over how cases are decided.
The formation of the Transitional Federal Government (TFG) in October
2004 provides a window of opportunity for the task of harmonisation, as well
as a legal context for it to take place. Somalis, donor governments and
international organisations should take advantage of the political momentum
and legal context for a full review of the legal system, possibly using the
elaboration of the TFG Charter into a fully fledged, new constitution as a
vehicle for doing so. Most Somalis agree that the current practice of xeer needs
to be reformed, particularly in those instances where it contradicts shari’a, as well
as in many cases where it contradicts international human rights norms.At the
same time, the process of harmonisation would also be a means of increasing
Somalis’ participation and raising their level of ownership over their emerging
government structures.As such, foreign assistance for rule of law projects should
be a key pillar of the post-peace-process aid strategy to reconstruct Somalia.
7
The TFG will need to act quickly to establish legitimate legal channels and
principles to deal with immediate conflict resolution problems to forestall
renewed conflict. Matters of particular concern will be Somalia’s legacy of
human rights abuses, the settlement of land and property disputes, and
questions arising over the charter of the TFG, its relations with Somaliland
and with the international community. Rule of law programmes could target
these areas to ensure that transparent and equitable processes are established
to smooth the country’s political transition. In addition, it is quite certain that
Somaliland – and possibly other areas of Somalia – will not be part of the
new government for the foreseeable future. However, international assistance
through rule of law and other projects must be continued in that area to
maintain the consolidating of stable governing institutions until a dialogue
with the TFG about options for national integration or secession can begin.
Harmonisation could also be an effective means of checking the rise of
Islamic extremism in Somalia. Despite being an almost entirely Muslim
people, Somalis remain reluctant to adopt the most severe forms of corporal
punishment enshrined in shari’a and are concerned that leaders of militant
Islamist groups such as Al Itihad are simply interested in personal power. If
the Somali public – through widespread community-based consultations –
would adopt a harmonised view of justice, the space for militant Islamists to
assert their authority to interpret the meaning of shari’a may be foreclosed.
Furthermore, Somalia’s mixed judicial history provides the option to include
elements of shari’a to apply to civil cases in lower courts that will be erected
by the TFG.This may provide the best means of tempting moderates and
traditionalists from the shari’a courts to join the TFG, and undercut support
for militants in their midst. Given that the shari’a courts are invested with
their authority by their relevant clans and sub-clans, power-sharing deals cut
between the TFG and traditional religious elders will be an equally important
factor in this process.
However, Somalia should not seek to adopt one justice system to the
detriment of the others.The multiplicity of systems has afforded Somalis
options in responding to their predicament of state collapse, and each form of
justice has its own advantages.While state statutory law offers a discrete system
of rules and may better reflect international human rights standards, shari’a is
also a comprehensive justice system that Somalis commonly recognise as
legitimate.At the same time, customary xeer is the most far-reaching of the
Somali justice systems, particularly in rural areas that are commonly beyond
the reach of formal judicial systems, and is the most effectively enforced. In
addition, the different justice systems have over the past decade served to
maintain a modicum of peace and security in various parts of the country.
Efforts to force one system across all areas would undermine those systems
that function locally, and ‘rule of law’ assistance could in those circumstances
create more conflict by undermining the structures that currently underpin
local peace and security arrangements.
In short, efforts towards harmonisation should not be undertaken lightly.
Questions of constructing a single, coherent justice system in Somalia involve
technical considerations and inputs, but are essentially political ones. In
particular, they raise questions of the nature and role of the state, and Somalis’
8
expectations and fears of any new government that is created – a highly
sensitive subject in Somalia given its long history of the abuse of power against
specific groups and citizens. Flaunting of state law and modifications of state
legal decisions through the continued application of Somali customary law has
been a means of resistance to state authorities. Rather than being a benign
technical process of drafting a consolidated legal code, it would be a major
project of social and political engineering.
It should be recalled that efforts to harmonise Somalia’s various justice systems
have been attempted before, and failed. Determining how similar efforts can
succeed today will be important.The problems affecting previous attempts
were two-fold. First, the harmonisation efforts of the first post-colonial Somali
governments were interrupted by political turmoil, particularly the coup that
brought President Siad Barre to power. Second, earlier harmonisation
processes were driven by governmental decision-making alone, with little
public involvement.The result was a set of laws that had to be imposed on
Somali society from above, without respect for the continued application of
the informal justice systems that Somalis actually trusted and utilised.
The risk that a harmonised justice system will fail to take root in Somali society
cannot be so easily addressed by technical and intellectual inputs to Somali
political authorities. It must be recalled that, after more than a decade of conflict,
Somalis place a high premium on the re-establishment of security over more
elaborate concerns of justice.As such, it will be important for Somalis
themselves to have ownership of the process of merging the various justice
systems into a coherent whole that practically assists ordinary people in solving
actual problems, and receives widespread public acceptance.To do so will require
further efforts to include Somalis in an open dialogue about how harmonisation
should take place, and to ensure that efforts to promote justice are not simply a
matter left to a professional and governmental elite. In short, while judicial
reform, drafting of new laws and institutional capacity building will require
using a ‘top-down’ approach, grounding the new judicial system in the dynamic
needs of Somali society will require a simultaneous ‘bottom-up’ approach.
Strategic recommendations
Increased international engagement to promote the rule of law in Somalia today
will need to confront these opportunities and risks. Based on the analysis
presented above, a comprehensive international Rule of Law Programme that
could support this transformation would contain at least six elements.
1 International assistance efforts should be grounded in a broad-based
dialogue to reach a consensus between Somali political leaders and the
Somali public on the need for harmonization of Somalia’s formal and
informal legal codes, including previous state laws, clan xeer and shari’a, in
accord with basic international human rights standards, and support to
the drafting of new legislation.Activities could include:
• participatory forums at the district and/or regional level across
Somalia (including Somaliland) to support the formation of a
National Legal Harmonization Committee
9
• provision of financial resources, technical legal expertise, and
participation to the Somaliland Law Review Committee.
2 Once a sufficient consensus is reached through dialogue (which will of
necessity be time consuming), it will be necessary to support the structural
reform of Somalia’s justice system in accord with the harmonised legal
code, including the creation of a Judicial Council, state and non-state
monitoring mechanisms, and an independent financial regime.
3 From a ‘top-down’ perspective, it will be essential to build the capacity of
Somalia’s judicial system with education, training and infrastructural
support, including judicial institutions, public servants, legal professionals
and private-sector bar associations.Activities could include:
• legal training seminars, possibly organised through local bar
associations, in Somalia’s regional capitals for professional lawyers and
former judges
• in-country training for shari’a court judges in subjects such as
evidence and procedure by experts from Arab universities that
specialise in shari’a, for instance Al Azhar
• institutional development support, including management training
and provision of equipment to formal judicial systems and recognised
private bar associations
• infrastructure development support to court buildings and
correctional facilities
• institutional support to legal education institutions.
4 From a ‘bottom-up’ perspective, legal empowerment and confidencebuilding
of the Somali public is also required, including legal clinics, legal
aid, translation and dissemination of laws and judicial procedures, and
coordination with community-based justice initiatives (e.g.‘vigilante
group’ community watch groups and local human rights NGOs).
• Translation and dissemination of all operative Somali legal codes.
• Utilization of local radio stations – particularly HornAfrik and Radio
Shabelle in southern Somalia – to increase public legal awareness,
access to justice.
• Legal clinics at private and public Somali universities, including legal
awareness, access to justice, human rights, criminal defence, civil law.
• Legal aid programmes provided through Somali universities, bar
associations and human rights NGOs.
5 The establishment of a stable political environment for justice to evolve
should be promoted with the establishment of a plan of action to address
priority transitional justice issues that will arise after the conclusion of
the Somalia National Reconciliation Conference, including:
• means of addressing past human rights abuses
• settlement of land and property disputes
• interpretation of the charter
• legal basis for addressing national security issues.
10
6 Finally, to the extent that the above recommendations mark a break with
past rule of law programming in Somalia and an increased commitment
by UN agencies, donors and NGOs, it will be required to devote further
efforts to mobilize the international community, either through the
Somalia Aid Coordination Body (SACB) or a post-peace-process
Peacebuilding Task Force, to provide the requisite political and financial
support. Key initiatives would include:
• revival of the Rule of Law Task Force within the SACB Governance
Committee or its replacement body as a mechanism for UNDP to
lead the coordination of various UN and NGO initiatives
• identification of qualified and motivated Somali civil society
organizations to assist in the implementation of the points listed above
• representation in the Peacebuilding Task Force, as well as the IGAD
Facilitation Committee and the African Union.
Increased international support
The six points above are best viewed as a package, and not as a menu of
options.The successful conclusion of the Somalia National Reconciliation
Conference and creation of the TFG makes possible their full implementation.
Most Somalis agree that it is necessary for one set of laws to become
predominant before it is possible to rationalise other laws around it. In this
regard, while a small minority of Somalis actively promote gradual change in
the rules of xeer, the vast majority have been content to wait for the formation
of a new Somali government to undertake that process on their behalf.Over
the short term, the TFG’s accession to the statutory laws of the previous
governments appears to be the most agreeable starting point for the reestablishment
of a basic rule of law and security.These laws are generally seen
as problematic, but as forming a legitimate starting point.
If the TFG fails to establish itself as a functioning government and Somalia
remains stateless, most of these six recommendations could still be
implemented anywhere in the country that stable regional administrations
exist or where security is adequate for the protection of international and
local aid workers. However, political divides and persistent insecurity in
southern Somalia may make overall application of the six points impossible or
impractical. In this case, it may be necessary to select only those points that are
feasible. It would be essential to ensure that all interventions lead as coherently
as possible towards a harmonised legal system and the creation of a legitimate
platform for consensus and decision making that can assist any new
government created in the future.
To a large extent, the existing interventions of the international community
are already working in the direction of the six points listed above.However,
that response still suffers from a number of severe shortcomings that will
prevent their assistance to Somali political authorities and civil society groups
from achieving an aggregate impact on Somali access to justice. First, although
one project may currently address harmonisation, another project may address
legal empowerment and a further project may address capacity building, few
of these projects are being implemented together with a single group of
11
Somalis, in a single location. Improved coordination between various UN and
NGO initiatives – a constant and familiar source of tension in development
work – could make a serious difference in this respect.
Second, none of these various justice projects is being implemented on the scale
that is required.UNDP’s interventions, for instance, are confined almost
exclusively to Somaliland, and have yet to begin meaningful implementation of
justice programmes even in Puntland. By contrast, the Danish Refugee Council
(DRC) projects continue to focus on one or two regions at a time.Although this
allows the NGO to build strong community relations, it will take over five years
at this pace to make an aggregate impact on the justice situation in all of
Somalia’s 18 regions.The level of international investment in justice reform and
justice promotion will need to be increased significantly if the small gains made
by individual projects are not to be overwhelmed by ongoing political change.
Third, the international community will need to make a major investment in
establishing the capacities of the TFG to manage a formal judicial system. In
addition to training and infrastructure rehabilitation, specific efforts need to be
dedicated to strengthening the judiciary’s capacity to exercise its
independence, as defined in the TFG Charter, from the executive branch.This
will include ensuring adequate investment in human resources and guaranteed
access to funding sources that do not require subordination to the president or
politically motivated ministers. Parliamentarians at both the central and
regional levels should be considered important partners in integrating and
rationalising Somalia’s various justice systems within a single legal code.They
can play a particularly important role in reviewing existing legislation,
repealing inappropriate laws, promulgating new laws, raising public legal
awareness, and working politically to ensure the independence of the judiciary.
In this regard, the international community should ensure that legal training is
offered to the TFG MPs generally, but should also focus particular assistance
on the establishment of a functioning parliamentary judicial committee.
Finally, it is imperative to note the lack of political engagement by the
international community to support development efforts in the justice sector.
Where they exist in Somalia, formal judiciary systems often lack significant
independence from political decision-making processes and are affected by
problems of corruption.Where no administrations exist, militia-faction leaders
are held to almost no standard at all, and the international community has
wilfully ignored the continuing rise of the country’s shari’a courts. In short, no
political pressure has been forthcoming from international diplomats – either
at the Somalia National Reconciliation Conference or during their field
missions to Somalia – to pressure Somali political leaders to remain
accountable to global standards of justice.While justice reform may indeed be
a matter that is best left to Somalis themselves, those Somali professionals,
religious leaders and community activists attempting to accelerate change
require more significant support in the face of obstruction from self-interested
warlords and other militants.
12
Somalia has been the world’s purest example of a collapsed state for over a
decade. Despite more than a dozen international peace conferences, the
country has had no functioning and internationally recognised government
since 1991. Some two dozen different armed factions and regional
administrations lay claim to different portions of Somali territory.Traditional
clan elders and armed clan militia have wielded authority where organised
political groups are absent.
This situation may now be changing. In October 2004, after two years of
deliberations, the Somalia National Reconciliation Conference in Nairobi,
Kenya, concluded with the election of Colonel Abdullahi Yusuf as the
president of a Transitional Federal Government (TFG). He was chosen by a
clan-based Transitional Federal Assembly of 275 MPs, and his election was
followed in December and January by the appointment of Ali Mohamed
Geedi, a political newcomer but long-time civil society activist, as the
country’s new prime minister.
While the TFG is preparing to return to Somalia, a large number of hurdles
will need to be overcome before the TFG can be considered a functioning
government, and before it receives significant diplomatic recognition or
support from the international community.2 One of the most challenging
aspects for reconciliation within Somalia’s divided society and the
establishment of a new Somali government will be the re-establishment of the
rule of law in Somalia and the complete reconstruction of the human and
physical infrastructure required to safeguard and administer it.
Despite over a decade of statelessness, however, this process will not be starting
from scratch. Notwithstanding the prevalence of violent crime, particularly in
urban areas, and regular armed clashes between the factions, Somalia does not
exist in a state of anarchy or chaos.Although lacking an effective central
government, the country has had no lack of governance over the past decade.
The latter has been established both top-down by powerful political interests
seeking to entrench control over particular towns and regions, and bottom-up
by Somali religious leaders, businessmen and local communities, attempting to
establish basic security conditions for the normalisation of social life and the
expansion of trade.
A major aspect of Somalia’s local processes of ‘development without a state’
over the past decade has been the re-emergence of justice systems across the
country.A mixture of modern, traditional and religious systems now provide
for a modicum of social order.These systems regulate a wide variety of affairs,
from constitutional crises in regional political administrations to the
enforcement of business contracts to the settlement of marital disputes and
divorces. Less often, the informal justice sector is involved in clan
reconciliation and the settlement of political disputes.Although this trend has
not provided for the fully fledged ‘rule of law’, it has facilitated the
13
Introduction1 1
1 This paper was conducted at the
initiative of the Centre for
Humanitarian Dialogue in
partnership with the UNDP Rule
of Law and Security (ROLS)
project. It forms part of a
comparative study undertaken by
the Tufts University Fletcher
School of Law and Diplomacy, the
US Institute for Peace, and the
Centre for Humanitarian
Dialogue.This wider study focuses
on the roles of, and relations
between, formal and informal
justice systems in 11 countries
across Africa,Asia and Latin
America. Field research for this
paper was conducted between
March and September 2004, and
the paper was last updated in
January 2005.As a result,
developments arising from the
return of the Transitional Federal
Government (TFG) to Somalia
have not been addressed.The
author is grateful to Matt Bryden,
Gerard Prunier and Mark
Bradbury for their contributions
and comments on earlier drafts of
this paper.
2 For an excellent assessment of the
challenges facing the TFG, see
International Crisis Group,
‘Somalia: Continuation of War by
Other Means?’, Africa Report No.
88, Nairobi (21 December 2004).
development of Somalia’s booming private-sector economy, a dynamic civil
society, the re-growth of the country’s social fabric, and local efforts to
promote peace.
This paper explores how justice systems – both formal judiciary systems
established by local political authorities, and informal justice systems crafted
from customary clan law and Islamic shari’a – function in Somalia’s ‘stateless
society’. Rather than being an anthropological study, it is intended as an
introduction to the complexities and challenges of promoting justice and the
rule of law in Somalia for members of the international community. Four
different justice systems – which often coexist in the same location – can be
identified, as follows.
Formal judiciary structures in regional administrations – Some regions
of Somalia have come under the control of formal administrative structures
which grew out of militia-factions that took control over significant territory.
The ‘Republic of Somaliland’, which controls most of the territory of the
former British Somaliland protectorate in the northwest of the country, has
voted to secede from the rest of Somalia. By contrast, the ‘Puntland State of
Somalia’ declared the country’s northeast regions to be a federal state-in-waiting
for the return of a national authority. Both have succeeded in establishing
relatively safe and stable security conditions.Although no such durable
administration emerged in southern Somalia since 1991, a Transitional National
Government (TNG) was established in Mogadishu in 2000, after a year-long
peace process in Djibouti.The TNG never took control over the capital city, let
alone other parts of the country.However, it did provide an example of Somali
efforts to establish a formal judiciary structure to administer the rule of law, and
can be seen as laying some foundations for the new TFG.
Traditional, clan-based systems – Xeer can roughly be translated as the
customary law that exists between Somali clans. It is an unwritten agreement
that has evolved within and between Somali clan communities over
generations.Although it bears no formal institutional structure, the
implementation of xeer is overseen by traditional elders. It is particularly
important in rural areas of Somalia where the presence of modern political
institutions is weak. However, even in urban areas with local administrations,
xeer is usually the first recourse in dispute management, settlement and
reconciliation.
Shari’a courts – Although Islamic law has existed in Somalia in one form or
another for hundreds of years, it was usually incorporated as an element
within the traditional xeer system.The application of Islamic law as a separate,
but complementary system to modern judicial institutions persisted through
both eras of colonial administration and independent government. However,
since the mid-1990s, independent shari’a courts emerged in various parts of
Somalia, but particularly in urban areas. Often administered on a clan-by-clan
basis, these courts managed militia forces capable of establishing basic law and
order in their immediate area of operation, and enforcing court decisions.
While these shari’a courts are an indigenous response to persistent insecurity
to which neither factions nor traditional xeer could effectively respond,
concerns exist with regard to their affiliation with fundamentalist elements.
14
15
3 Bernard Helander,‘Is there a civil
society in Somalia?’, Summary of
Remarks to SIDA Conference,
Nairobi:UNDOS, September
1997.
Civil society initiatives and ad hoc mechanisms established by
Somali militia-factions – In certain locations in southern Somalia,wellestablished
and well-organised militia-factions have established ad hoc
mechanisms to regulate and resolve local disputes.While these initiatives are
often temporary, and break down when armed conflict erupts, they are
instructive in understanding the similarities between Somali efforts to restore
justice across different regions. In the midst of these initiatives, Somali civil
society is also agitating for change. Local universities offer degree courses to
fee-paying students in secular and Islamic shari’a law; human rights
organisations provide legal training and pressure politicians and militia-factions
to respect human rights; Somali legal professionals offer private arbitration
services to businesses; and local communities have established ‘vigilant group’
militias to police their neighbourhoods.
It is essential that Somalis and the international community alike now take
stock of the successes achieved and limitations reached by these local justice
efforts over the past decade.The future of the TFG and President Yusuf will
depend to a great extent on how rapidly and effectively the rule of law can be
re-established in Somalia, and the extent to which ordinary Somalis perceive
that the new government’s efforts to improve security and establish its
authority are underpinned by standards of justice and fairness.Without such
foundations, the TFG is unlikely to overcome the remaining hurdles on
Somalia’s road to peace, including reconciliation between clans and political
leaders, redress for past human rights abuses, demobilisation of militia, and the
development of recovery plans.
As a contribution to deliberations on how Somalis and the international
community can identify better means of supporting the country’s return to
peace, this paper provides an assessment of each of the justice systems
identified above, and makes recommendations on how the international
community’s development initiatives can best contribute to their success in
delivering the rule of law. Before analysing each of these justice systems, the
paper begins with a brief introduction to Somalia’s social and political context
in 2004, and a historical review of the development of the Somali legal
system.The paper concludes with an analysis of the strengths and weaknesses
of the various justice systems, the common challenges faced by international
aid efforts to support them, and a set of recommendations for future
engagement.
To understand Somali society, one must grapple with the importance of the
country’s ‘segmentary lineage structures’ or clans. In the words of Bernard
Helander, the clan structure forms ‘a completely encompassing social grid that
organises every single individual’ from the time of their birth.3 Genealogically,
Somali society can be divided into four major clan-families that comprise the
vast majority of the country’s population – the Darod, Dir,Hawiye, and
Rahanweyn – as well as a nominal ‘fifth clan’ of minority Arab and Bantu
2 The Somali Context
16
4 The classic exposition of Somalia’s
segmentary lineage system is
found in I.M. Lewis, A Pastoral
Democracy:A Study of Pastoralism
and Politics Among the Northern
Somali of the Horn of Africa,
Reprint Edition, London: James
Currey, 1999.
5 Puntland Development Research
Centre (PDRC), Pastoral Justice:A
Participatory Action Research Project
on Harmonization of Somali Legal
Traditions, Garowe:PDRC, 2002,
p. 25.
6 Mohamed Haji Mukhtar,‘Islam in
Somali History: Fact and Fiction’,
in The Invention of Somalia,Ali
Jimale Ahmed (ed.), New Jersey:
Red Sea Press, 1995, p. 2.
7 Maria H. Brons, Society, Security,
Sovereignty and the State in Somalia:
From Statelessness to Statelessness?,
Utrecht: International Books,
2001, p. 96.
groups.4 Each clan is comprised of varying levels of sub-division that descend
hierarchically from clan-families to clans, sub-clans, varying numbers of subsub-
clans, primary lineage groups, and diya-paying groups.The latter are the
smallest social units, including an undefined number of families bound by the
closest kinship ties. Diya groups take collective responsibility for their own
security, as well undertaking an obligation to compensate other diya groups
(traditionally with the payment of livestock) for any harm done by one of
their members.
Clans and their sub-divisions have traditionally been the key mode of social
organisation for pastoralist and agro-pastoralist communities in Somalia, as
well as the building blocks for inter-community alliances and conflicts.As
neighbouring clans competed, often violently, over scarce environmental
resources – particularly land and water for either livestock grazing or
agricultural cultivation – a customary code of conduct, known as xeer
(pronounced roughly as ‘hair’ in English) was developed to settle disputes and
guard the peace. Xeer is also not a strictly ‘rule-based’ system.A clan’s political
and military capabilities relative to its rivals – a factor traditionally based
primarily on the size of the opposed clans – has always been a factor in
reaching an acceptable and enforceable consensus.
The provisions and operations of xeer will be described in detail in Section 4
below. However, it is important to note at the outset that xeer is not a written
legal code, but rather a tradition that has been passed down orally from one
generation to the next.The sources of xeer date back centuries and are
generally considered to be the agreements reached by elders of various clans
that lived and migrated adjacent to one another.The role of the clan elders in
xeer cannot be overstated, as they are simultaneously considered its ‘legislators,
executors and the judges.’5 Decision making was led by male clan elders on
the basis of consensus – factors which both subordinated the interests of
individuals to the interests of the clans, and severely marginalised women.
Islamic shari’a law was a significant influence on the development of xeer.
Somalis are almost entirely Muslims from the Shafi’i school of Sunni Islam. It
is popularly believed by Somalis that their ancestors ‘descended from the
household of the prophet Mohamed, so that all Somalis belong to the
Hashimite stock of the Qurayshi clan.’6 However, the precise history of Islam’s
penetration into present-day Somalia is not known.Arab traders had already
established a presence along the Somali coast in pre-Islamic times.Yet, the
penetration of Islam is usually dated to successive waves of Arab emigration
and conquest between the 7th and 13th centuries, originating from Arabia,
Persia,Yemen and Oman.7
Shari’a law was not adopted by Somalis in full. Rather, a significant number of
shari’a precepts and practices were assimilated within xeer. As a result, many
points of shari’a have often been subordinated to clan tradition, particularly in
matters of collective responsibility taking precedent over personal liability, and
the nature of punishments and family issues. Somali sheikhs and religious
leaders, known as wadaad and ulema, did not play a direct role in Somali
political affairs, which were the domain of the elders. Rather, they undertook
qadi or judicial functions, including the conduct of marriage rites and divorce
proceedings, and at times they supported the efforts of the elders to promote
peace between warring clans. However, according to I.M. Lewis,‘they do not
themselves settle disputes, or judge between disputants, for this is the work of
elders in council, and of informal courts of arbitration’.8
2.1 The colonial experience
Xeer remained the only foundational system of justice and public order for
Somalis until the arrival of European colonists in the late 1800s. After nearly a
century of trade ties stemming from European exploration and maritime
access to the Indian sub-continent, direct colonial rule of northern Somali
territory was established by the British Somaliland Protectorate in 1886, and
in southern Somalia by Italy in 1893.
The two colonial authorities imposed their own national legal systems on
their subjects.‘The degree of structural integration of the Somali clans into
the colonial structure varied depending on the purpose and aim of the
colonizing country.The British, who were interested in the regular flow of
cattle supplies to Aden [the main British port serving onward travel to India]
were satisfied to rule indirectly, while Italians settled in significant numbers in
the south.’9
In British Somaliland, the judicial system included the Protectorate Court
responsible for all penal matters, first- and second-class district courts, and
Kadis Courts. Colonial rule there imposed a more coherent set of laws by
explicitly distinguishing between the various jurisdictions of customary, shari’a
and state statutory legal systems.The 1898 Principal Order-in-Council
recognised that Somalis were bound by customary law.The 1937 Kadis Court
Ordinance and the 1947 Subordinate Court Ordinance recognised the
application of shari’a to issues including marriage, divorce, family relationships,
personal material responsibilities, and inheritance. By contrast, cases in which
the British administration held particular interest were subject to the
jurisdiction of the Common Law, Somaliland Ordinances, applicable UK laws,
and the Indian Penal Code, as applied at the high court and district courts.
Together with limited legal training for Somalis, this served to instil adherence
to a common law judicial system in the northern Somali regions.
By contrast, in the Italian colonial administration in Somalia, the Italian civil
and penal codes were adopted. However, at first they were applied
particularly to foreign nationals rather than Somalis.According to Law No.
161 (5 April 1908), the Italian authority recognised Somalis as subject to
customary law and shari’a, and Royal Decree No. 937 (8 June 1911)
established separate shari’a courts to preside over Somali family and
inheritance matters. By the end of the colonial era, however, both Somalis
and foreign nationals were subject to a judicial system in three parts. Civil
cases were heard by district, regional and appeals courts; penal cases were
addressed by assize courts of first-instance and of appeal; and Somalis and
other Muslims had access for family matters and minor civil disputes to be
heard by qadi courts of first-instance and appeal.The supreme court heard
appeals issuing from each of these subordinate courts, as well as deciding
matters of jurisdiction between them.10
8 Lewis, Pastoral Democracy (see Note
4 above), p. 217.
9 Yohannes Kassahun,‘The Courts:
Problems, Prospects and Role in
Somalia’s Emerging Regions’,
Nairobi: European Commission
Somalia Unit, March 1997.
10 Kassahun (see Note 9 above), pp.
15–17.
17
Despite the obvious differences in the content of their laws and the
distinctions between the British common legacy in the north and the Italian
civil law legacy in the south, the development of the judicial system in both
areas was remarkably similar on three fronts. First, both colonial
administrations established the supremacy of codified and secular Western law,
particularly for significant criminal matters. Second, however, both
administrations allowed affairs between Somalis to be settled through
customary xeer, at least when threats to the general public order were not
concerned.Third, independent judicial mechanisms were established to apply
shari’a to family and minor civil matters. Overall, this judicial system
maintained a formal governance apparatus that was able to regulate, but not
displace, the continued practice of Somali customary justice.
2.2 Independence and national unification
Somalia’s independence from colonial rule resulted from the amalgamation
of Italian Somalia and the British Somaliland Protectorate in 1960. Attempts
were made by the Somali government to craft a single, coherent judicial
system.The challenge was a daunting one:‘At independence in 1960, when
British Somaliland and Italian Somalia were united to form the Somali
Republic, four distinct legal traditions – British Common Law, Italian
(Continental) law, Islamic Shari’a, and Somali customary law – were in
simultaneous operation.11’The Somali government established a
Consultative Committee for Integration of the Legal Systems to recommend
how to create a unified justice system. Further deliberations resulted in the
‘Law on the Organisation of the Judiciary’ by the National Assembly of
Somalia in 1962, which elaborated a somewhat confusing amalgamation of
laws and jurisprudence.The country’s civil and penal codes were based on
the Italian legal system, while criminal procedure was based on the Indian
Code. In addition, shari’a was maintained for family, inheritance and minor
civil matters, and xeer was recognised as a legitimate option for the
settlement of clan disputes.
The Constitution and Legislative Decree No. 3 of June 1962 formally
integrated the judiciary system under the Ministry of Justice and Religious
Affairs, including a supreme court overseeing a court of appeals, and a
system of regional and district courts.The position of Attorney General was
established as part of the judiciary according to the civil law system, and a
Higher Judicial Council was created to ensure independent judicial
examinations, appointments and human resources management. In addition,
judicial integration resulted in the promulgation of a series of codes,
including the Penal Code (1962), Criminal Procedure Code (1963), Military
Criminal Law (1963),Traffic Code (1962), and others regulating labour and
maritime affairs.
Despite this progress on a formal level, however, these reforms did not have a
strong nationwide impact in practice. Questions of jurisdiction, conflicts of
law, and procedure abounded. For example, northern courts continued to rely
on precedent, while southern courts applied civil and penal codes. Legal
practice required knowledge of the Italian system and the Italian language –
factors which disadvantaged many northern legal professionals. As a result,
11 Academy for Peace and
Development,‘The Judicial System
in Somaliland’,Workshop Report,
Hargeisa,April 2002.
18
courts across Somalia continued to apply different laws according to their
region’s legal history. In addition, the shortage of qualified jurists and lawyers
meant that the state judicial system was rarely applied outside urban areas.
The new courts attempted to be active in interpreting how these various laws
should be applied coherently, and in supporting the legislature in drafting new
laws to govern banking, credit, foreign trade, cooperative societies, natural
resources, communications, taxation, etc.However, the development and
application of a functional judicial system was forestalled by a series of Somali
political crises. Decolonisation had yielded an independent Somali state, but
also left behind a number of destabilizing political legacies.12 Among these, a
political and bureaucratic class, including those individuals who had benefited
most in terms of education and employment during the period of colonial
rule, emerged to control the post-colonial state.To bridge the gap between
traditional and modern institutions in their favour, the new elites used state
resources to create patronage networks wherein the delivery of funds and
investment was used to cultivate a loyal constituency. At the level of national
politics, clans were essentially transformed into constituencies and platforms
for aspiring elites.
2.3 The Siad Barre dictatorship
Using the corruption and instability of the civilian government’s patronage
system as a pretext for action, the military took over the Somali government
in 1969, bringing General Mohamed Siad Barre to power.Aligned with the
Soviet Union, his government promoted the modernisation of Somalia
through a strategy of Scientific Socialism that would generate a pan-Somali
ideology to supersede and possibly replace clan identity.As part of this strategy,
Barre promoted claims to be the rightful rulers of Somali-inhabited areas in
Kenya and Ethiopia.The military government met with initial success,
particularly in organising students and other groups for public works and
education, developing a written form for the Somali language and, to some
extent, empowering women to undertake higher-profile roles in politics and
economics outside the household.
Shortly following their coup, President Siad Barre and his Supreme
Revolutionary Council (SRC) sought to reform the Somali legal system
again. In theory, it was to be brought in line with socialist principles as the
Somali government became politically aligned with the Soviet Union. In
practice, however, the changes were more authoritarian in nature.
“The military regime that seized power in 1969 suspended the
Constitution of 1961, assigning all legislative, executive, and judicial
powers to the Supreme Revolutionary Council. In 1973, the regime
introduced a unified civil code. Its provisions pertaining to inheritance,
personal contracts and water grazing rights sharply curtailed both the
Shari’a and Somali customary law. In particular, the new civil code altered
the customary system of diya payment as compensation for death or injury,
in which responsibility was collectively borne by the clan.Any homicide
offence was made punishable by death and compensation payable only to
close relatives.”13
12 See John Markakis, National and
Class Conflict in the Horn of Africa,
Cambridge: Cambridge
University Press, 1987.
13 Academy for Peace and
Development,‘The Judicial
System in Somaliland’,Workshop
Report, Hargeisa,April 2002.
19
In general, the SRC continued within the Italian legal system, but modified
laws to suit top-down, authoritarian rule. Under Law No. 1 (21 October
1969), the SRC was given authority for all judicial functions, as well as
executive and legislative ones. Decree No. 12 (25 October 1969) temporarily
abolished the constitutional court and supreme court, as well as placing
restrictions on the functions and jurisdictions of the remaining courts. Most
importantly, Decree No. 12 also established the National Security Court with
jurisdiction over:
1 offences under the Somali penal code, including crimes against the state
and crimes affecting public order
2 offences under the law of preventative detention (10 January 1970)
3 offences under Public Order Law No. 21 (26 August 1964)
4 any other offence that the SRC declares to be a violation of national
security.
Members of the National Security Court were appointed from within the
military, and had broad powers of detention, arrest and seizure.They had the
liberty to take jurisdiction away from all subsidiary, lower-level courts, and
there was no right of appeal (except to the SRC itself). From the mid-1970s,
political decision making overtook any appearance of judicial independence.
The Public Order Law of 1964 – essentially an amalgamation of many
colonial anti-resistance laws – was used to suppress dissent and civil society
mobilisation.
Law No. 67 (1 November 1970) abolished ‘tribalism’ and key elements of xeer,
including tribal land,water and grazing rights, as well as collective
responsibility and diya-payment (e.g. blood-money compensation). Despite
rancour between the SRC and Islamic leaders, Siad Barre expounded on his
government’s respect for Islam. Shari’a courts were allowed to function as
before so long as their operation did not contradict the political and economic
directives of the SRC.However, due to lack of viable alternatives through
political parties, civil society movements and clans, Islam became a source of
anti-government resistance in urban areas. Matters were brought to a head in
January 1975, when Islamic clerics publicly rejected the government’s new
Family Law for its recognition and promotion of the legal and economic
equality of women, specifically in matters of inheritance. Public protests were
eventually put down with the execution of ten prominent clerics and the
long-term imprisonment of 23 others.14
Despite existence of an official police force under the Ministry of Interior, real
repressive and enforcement power was wielded by the ‘people’s militia’ which
were organised as an arm of the Somali Revolutionary Socialist Party and
reported directly to the inner circle of Siad Barre.All land not owned by a
group recognised as legitimate by the SRC was nationalised in 1972. Rather
than being allocated for the public good, Siad Barre’s government parcelled it
out as political patronage on a 50-year-lease basis.
Abandonment of socialism as the basis for the government, in 1988, did little
to divest judicial authority from the executive branch of government.
14 I.M. Lewis, A Modern History of the
Somali (4th edition), Oxford: James
Currey, 2002, p. 213.
20
Corruption and repressive practices were rife.The legacies of Siad Barre’s rule
remain to this day, including public perceptions that the judiciary system is a
tool in the hands of governing elites and their clan patrons to promote
personal interests, repress opposition leaders and groups, dispossess nongoverning
clans and non-elites of their land and property, and otherwise
dominate other clans.
2.4 Civil war and state collapse
However, on the heels of severe drought in 1977, it was the failure of a massive
military campaign into eastern Ethiopia to re-take the Haud grazing lands
(combined with a massive refugee influx) that was the death knell of Somali
public support for Barre. After an unsuccessful military coup, the Barre regime
insulated itself from popular dissent and began to pursue a strategy
monopolising political and economic power.The distribution of patronage was
circumscribed as Barre sought to limit access to power outside his direct
control.To guarantee the security of the regime, key political and military
positions were allocated predominantly to members of Barre’s family in the
Darod:Marehan clan, although members of other clans were used when their
appointments would cause splits and fuel divisions within the opposition.
Likewise, the economic benefits of aid, agriculture and industry were
centralised. This led to the pauperisation of the vast majority of Somalis,
particularly the dispossession of riverine populations from the limited arable
land in the south of the country, in favour of a new class of wealthy mercantopolitical
elites that had emerged.
‘By the mid-1980s, 100% of Somalia’s development budget was externally
funded, and 50% of its recurrent budget was dependent on international loans
and grants.At the height of Somalia’s foreign aid dependence… total
development assistance constituted a stunning 57% of Somalia’s GNP.’15 The
rest of Somalia’s GNP was highly unstable given dependency on remittances
from the Somali diaspora in oil-producing countries whose wages varied with
international markets. Nevertheless, Somalia maintained one of Africa’s largest
standing armies, and the civil service was enormous, with both institutions
serving as patronage opportunities for Siad Barre to coopt his domestic
opposition.‘All domestic structures that could have provided some pressure for
accountability were crushed, so that for those who were excluded from power
the only option was armed rebellion.’16
Political and military leaders who had been marginalised by Siad Barre returned
to their clans to mobilise resistance movements.With the end of the Cold War,
foreign support to maintain the Somali army – mostly from the United States
at that point – was reduced dramatically and Siad Barre could no longer hold
back the militia-factions. After ten years of struggle, the militia-factions took
control of Somalia in January 1991, when President Siad Barre fled Mogadishu
under their attack.The militia-factions that overthrew him then turned their
forces against one another in violent competition for political supremacy.
In southern Somalia, the ensuing battles to control Somalia’s commercial
centres, arable countryside and productive infrastructure created a human
15 Ken Menkhaus and Lou Ortmayer,
‘Somalia: Misread Crises and
Missed Opportunities’, in Bruce W.
Jentleseson (ed.), Preventative
Diplomacy in the Post-Cold War
World: Opportunities Missed,
Opportunities Seized, and Lessons to
be Learned, Maryland:Rowman and
Littlefield, 1999, p. 4.
16 Alex De Waal, Famine Crimes:
Politics and the Disaster Relief
Industry in Africa, London: James
Currey, 1998, p. 161.
21
tragedy. Indeed, these were the images seen worldwide from the early- to mid-
1990s, when militia-factions which overthrew the dictatorial government of
President Mohamed Siad Barre turned their guns against each other in an
effort to capture the capital city and claim sovereign control of Somalia.The
result was a multi-faceted humanitarian crisis, including food shortages and
cholera outbreaks that claimed some 400,000 lives, and displaced millions of
Somalis into refugee camps in Kenya, Ethiopia, Djibouti and Yemen.
In northern Somalia, the situation was quite different. Political control over
substantial, contiguous territories was quickly established by two former
militia-factions – the Somali National Movement (SNM) and the Somali
Salvation Democratic Front (SSDF) – which created the autonomous regional
administrations of ‘Somaliland’ and ‘Puntland’, respectively. Each has achieved a
significant degree of peace, security and public support in the territory under
its administrative control.The SNM leadership in Somaliland declared its area’s
secession from the rest of Somalia in May 1991, and has since refused to
participate in international peace conferences to reunite Somalia under a
single authority.Although no country has recognised Somaliland as an
independent or sovereign entity, international organisations and donor
governments have been working with both Somaliland and Puntland as de
facto governments to negotiate access for emergency and reconstruction
projects there and have supported the development of their administrations
since the mid-1990s.
2.5 International intervention
The collapse of the Siad Barre government was accompanied by rampant
criminality and rule of the gun.The response by the international community
– including the United Nations Operation in Somalia (UNOSOM) and the
US-led Operation Restore Hope – succeeded in relieving the famine, but
failed to restore security. All judicial infrastructure was either destroyed or
rendered useless; police and other public security services were disbanded, and
a significant number of legal professionals fled the country. UNOSOM made
an attempt to re-establish the legal system of the post-independence, presocialist
governments.This included:
“… a three tier judicial system modeled on the prior existing court
structure to operate under the 1962 Criminal Procedure and Penal
Codes….This system, considered to be temporary, will be adjusted on the
basis of decisions to be taken by the Transitional National Council when it
comes into being. Judicial selection committees will be set up in each
region to select judges and magistrates, and will oversee issues of ethics
and discipline in the judiciary. Courtrooms will be renovated and provided
with necessary equipment.The cost for supporting these operations for
calendar year 1994 is estimated at US$3.5 million, including salaries,
renovation, supplies, equipment, and training.”17
However practical in conceptualisation, the UNOSOM plan fell foul of
numerous contradictions. First, UNOSOM implemented the selection of both
judges and police officers without consulting local militia-faction leaders and
civilian authorities.‘Judges were appointed by UNOSOM II through the
17 Multi-Donor Task Force,‘Somalia:
Framework for Planning of Long-
Term Reconstruction and Recovery’,
12 October 1993, p. 23.
22
recommendations of a thirteen-member judicial committee that was based in
Mogadishu and traveled very infrequently to the regions where those judges
were supposed to operate.’18 Second, the top-down re-implementation of the
1962 criminal and penal laws undermined local rule of law initiatives that
drew more eclectically on traditional clan law and shari’a law.The overall
result, in short,was the top-down imposition of a formal judicial system with
little local enforcement capacity. Further, this system actually upset the local
balance of power in many regions and resulted in increased political tension.
“At the strategic level, UNOSOM II’s plans in this regard suffered from a
significant contradiction. On the one hand, the police was supposed to
report to District and Regional Councils until a Transitional National
Council was established. On the other hand, the establishment of the
Somali police was tied into the military concept of UNOSOM II’s
operations, which required the establishment of a Somali national police
force before the withdrawal of peacekeeping forces. In the event, the
second imperative of withdrawal quickly superseded the first, causing
UNOSOM II to hastily embark on the establishment of police forces
across Somalia.”19
In the end, political decisions eventually undermined UNOSOM’s
reconstruction efforts.The international peacekeeping mission culminated in
mid-1993, with the unsuccessful US-led manhunt for the warlord General
Mohamed Farah Aideed, and the ‘Black Hawk Down’ episode in which two
US helicopters were shot down and eighteen US soldiers were killed. In
response to this crisis, the international community largely withdrew from
Somalia, leaving behind a small and slowly dwindling number of United
Nations humanitarian agencies and non-governmental organisations.
2.6 Stateless Somalia
Following the withdrawal of foreign peacekeeping troops, new rounds of
conflict between Somalia’s militia-factions began across southern Somalia.
However, by the late-1990s, the worst of the humanitarian emergency in
Somalia had abated. Most of the frontlines had stalled, clan-based factions had
split into competing sub-clan militias, and their leaders became entrenched in
increasingly localised political and economic issues. Conflicts between the
militia-factions remained serious affairs, cost large numbers of lives, and
continued to disrupt chances to form a government of national unity.
However, at the same time, military conflicts became increasingly sporadic and
short-lived skirmishes.An uncertain stalemate came to prevail in Somalia.
While militia-factions regularly shifted their alliances, frontlines between them
rarely moved and a prevailing balance of power prevented any one militiafaction
from imposing its rule over another.
According to Ken Menkhaus, this altered the fundamentally predatory
relationship between many faction leaders, their militias and the communities
which hosted them:‘As the symbiotic relationship between gunman and
villager evolves, the line between extortion and taxation, between protection
racket and police force is blurred, and a system of governance within anarchy
is born.’20 The overlap between community interests and militia interests
18 Ameen Jan,‘Peacebuilding in
Somalia’, IPA Policy Briefing
Series, New York: International
Peace Academy, July 1996, p. 11.
19 Jan (see Note 18 above), p. 10.
20 Menkhaus, Ken,‘Somalia:The
Political Order of a Stateless
Society’, Current History,No. 97,
1998, p. 222.
23
meant that popular pressures for social stabilisation began to influence and
even circumscribe some militia activities. It appeared as though an arduous,
locally driven process of re-establishing ‘grassroots’ governance in Somalia
began to emerge.
The large clan-based militias – the basis for the worst fighting in Somalia in the
early and mid-1990s – became difficult to maintain.A new generation of ‘young
Turks’ began to emerge within the militia-factions and challenged the authority
of their original leaders. Nearly all of Somalia’s militia-factions began to split
internally as leaders from different sub-clans competed for supremacy.Although
‘civil society’ organisations – primarily local NGOs seeking to deliver
humanitarian services and promote human rights on behalf of the UN – never
mounted any serious challenge to the faction leaders, clan elders effectively
reasserted their authority in community decision making. Public support for the
factions also decreased as average Somalis tried to get on with living their lives
and became more concerned with securing access to employment, education
and healthcare, than they were with the wrangling of their obviously selfinterested
political leaders.
The power base of Somalia’s warlords declined further as a result of the
limited resources at their disposal. Opportunities for plunder gradually
disappeared and the amount of foreign aid available for diversion dwindled.
Funds accumulated by the faction from taxation at checkpoints and airstrips
were largely consumed by the overhead costs of salaries for standing militia
and payments required for the settlement of local disputes.At the same time, a
booming private sector also emerged with Somalia effectively serving as East
Africa’s premier duty-free port. Fortunes were made on the import–export
trade in everything from cigarettes to narcotics, from sugar to scrap metal, and
from petrol to coffee. Businessmen came to control much of the country’s
productive infrastructure for their own personal enrichment.
2.7 Reconstructing Somalia
The international community responded to these trends in two contradictory
ways. On the one hand, it adopted a ‘building blocks’ strategy that supported the
‘bottom-up’ realities of grassroots governance and the emergence of
decentralised political authority structures, particularly in Somaliland and
Puntland.The building blocks strategy anticipated that Somalia’s militia-faction
leaders and other civil society actors could be supported to take control slowly
of discrete territorial enclaves across Somalia and create clan-based, regional
administrations that would over time become organic federal units of a reunified
Somali state.21 To this extent, the strategy was formally adopted by the sevenmember
Intergovernmental Authority on Development (IGAD), the UN and
Western governments as the most appropriate political strategy for state
reconstruction in Somalia between 1996 and 2000.
On the other hand, the international community continued to hope that a
quick fix could be found to Somalia’s conflict by recreating a national
government from the ‘top down’. Primarily, this strategy focused on negotiating
an elite-level power-sharing agreement between the country’s competing
warlords. During 1999 and 2000, the Somalia National Peace Conference was
21 See Matt Bryden ‘New Hope for
Somalia? The Building Block
Approach’, Review of African
Political Economy,Vol. 26, No. 79,
March 1999.
24
held in Arta. Sceptics bemoaned the so-called Arta Process as another round of
meaningless reconciliation initiatives. At that point, over a dozen other peace
conferences for Somalia had reached conclusions over the past decade, but none
bore fruit. Such dismissals were significantly wide of the mark. In August 2000,
the peace conference drew to a close with the election of the President of the
Transitional National Government (TNG). Less than two months later President
Abdiqasim Salad Hassan and the majority of his 245-member parliament left
Djibouti for Mogadishu. Following nearly a decade of ‘state collapse’, the TNG
became the first Somali political initiative to achieve a significant degree of
international recognition. The TNG took Somalia’s long-empty seats at the
United Nations, Organisation of African Unity, IGAD, and League of Arab States.
In the end, the Arta Process did little to resolve the Somali conflict and the
TNG never came to control a significant amount of territory in Somalia.The
vast majority of Somalia’s militia-factions had refused to participate in the
peace conference since they were denied any special status in the negotiations
by comparison with clan elders, businessmen and civil society representatives.
Thus, their potential to come out of the talks controlling senior government
positions was limited. Immediately after Arta, these militia-factions organised
themselves to oppose the TNG.
As a result, Somali politics remained highly polarised and Somali territory is
divided between over two dozen militia-factions and regional administrations.
These were split into four primary groups.
1 The Somalia Reconciliation and Restoration Council (SRRC), acting in
alliance with the Puntland State of Somalia, controlled the northeast of
the country and much of the southern, inland countryside.
2 The Transitional National Government (TNG), acting in alliance with
militia-factions in the National Salvation Council (NSC), operated in
sections of Mogadishu and across the coastal areas of southern Somalia.
3 A third group of militia-faction leaders and civilian politicians attempted
to position themselves as the ‘swing vote’ willing to negotiate between
the SRRC/Puntland and the TNG/SNRC alliances.The actors in this
group have labelled themselves as the ‘Group of 8’, although the number
of allied factions changes on a regular basis.
4 The ‘Republic of Somaliland’ in the northwest remained committed to
secede from the rest of Somalia, and refused to participate in the peace
conference.
The most recent attempt to reconstruct a Somali government got underway in
January 2002, when heads of state from across the Horn of Africa and East
Africa began to plan the Somalia National Reconciliation Conference in
Kenya. Despite the signature of a Cessation of Hostilities agreement during
the first month of the conference deliberations in October 2002, the country’s
security situation remained precarious. Serious armed clashes have taken place
in at least half of the country’s 18 regions over the past two years. In addition,
attempts to gain substantive agreements on how any future government would
address key peacebuilding issues – including disarmament and demobilisation,
restoration of stolen property and occupied land, redress for past human rights
abuses, management of key economic resources and trade infrastructure – was
largely a failure.
25
However, after nearly two years of negotiations in the central Kenyan town of
Eldoret and the Nairobi suburb of Mbagathi, the participants agreed in mid-
2004 on the Charter of a new transitional and federally structured government
– the TFG – and proportionally selected 271 Ministers of Parliament
according to clan membership.With newfound unity, Somalia’s neighbouring
states, including Kenya, Ethiopia and Djibouti, cooperated in a final push for
the election of a president, appointment of the prime minister and
establishment of a cabinet that shares power between the country’s
competitive clans and militia leaders.With this accomplished in the last quarter
of 2004, it will be determined during 2005 whether the TFG will successfully
complete the process of reconciliation started in Kenya, and actually begin an
arduous processes of national reconstruction.
Even in the absence of a recognised central government in Somalia from 1991
to the present day, formal judicial systems have been established in those areas,
such as Somaliland and Puntland, where autonomous regional administrations
have been established, and in the case of the Transitional National
Government (TNG) and the newly created Transitional Federal Government
(TFG), when an international peace conference has created a new structure.
Despite major political divides between them, all of these administrations have
adopted similar structures for their judicial systems, based on the structures and
laws of previous Somali governments.
Common attributes of all Somali formal judicial structures include:
1 that each justice system is sanctioned by a charter which proclaims the
supremacy of Islamic shari’a law, even though shari’a is applied primarily
for family matters, including marriage, divorce and inheritance issues, and
minor civil matters
2 that a three-tier judicial system has been established, including a supreme
court, a court of appeals, and courts of first instance (either a single court
per region, or divided between Regional and District Courts)
3 that commitments are enshrined in the charter guaranteeing universal
standards of human rights to all subjects of the law, and the independence
of the judiciary (to be guarded by a judicial committee)
4 that the laws of the Somali government until the time of the military
coup of Siad Barre remain in force until the laws are amended.
3.1 ‘Republic of Somaliland’
As happened across Somalia, the formal judicial system in Somaliland was entirely
destroyed during the civil war to oust Siad Barre. In 1993, a clan conference in
Boroma agreed that reconstruction of the legal system would begin with the
constitution of a judicial system based on laws passed by the Somali government
before Siad Barre’s military coup of 1969. In 1997, a provisional constitution was
adopted.The constitution, which was eventually ratified by public referendum in
26
3 Formal Judicial Systems
2001, states that all laws in Somaliland will be based on shari’a, and that any
existing law that conflicts with shari’a will be rendered void.
The Somaliland judiciary was established as a three-tier system, including a
supreme court, courts of appeal, and regional and district courts:
“The district courts deal with claims up to Sl.Sh. 3 million [approximately
US$600] and offences punishable by sentences of less than three years.The
regional courts deal with claims that are more than Sl.Sh. 3 million and
jail terms in excess of three years. Six district courts and six regional courts
are functioning, namely those at Hargeysa, Gabiley, Boorame, Burco,
Ceerigaabo, and Berbera.There are also five appeal courts, located
Hargeysa, Boorame, Burco, Ceergaabo, and Berbera. Most of these courts
have only one judge.”22
That said, the Somaliland legal code remains a contradictory mixture of laws and
procedures drawn from both the British common law and Italian civil law
heritage, as well as shari’a and clan xeer.‘In reality… the application of diverse
legal codes continues, and interpretation of the laws remains ad hoc, non-uniform,
and highly subjective.’23 A survey conducted by the Hargeisa-based Academy for
Peace and Development (APD) in 2002, identified the following problems: the
incoherent amalgamation of overlapping and at times contradictory legal
principles and laws based on British common law, Italian civil law, traditional clan
xeer, and Islamic shari’a; lack of professionally trained staff, including judges,
lawyers, clerks and civil servants; limited number of functioning courts across the
region; poorly equipped offices and courts where they exist; regular interference
in court matters by both politicians and influential clan communities, leading to a
lack of judicial independence; and lack of public knowledge of the role and
functioning of the judiciary, as well as lack of public access and trust.24
The primacy of customary clan justice over the formal judicial system is
ubiquitous across Somalia:
“For instance, someone guilty of homicide may be brought before court
for trial under positive law, but if settlement is reached outside the court in
accordance with xeer (traditional social contracts), he or she may be set free
without punishment.This is particularly so where law enforcement and
the courts are weak or non-existent, where warrants cannot be enforced,
and relatives apprehend the offender.When the relatives settle an offence
according to customary laws outside the judiciary system, judges and law
enforcement officers cannot prevent the release of the offender brought to
them by the relatives who now insist on his release.Women can be
particularly vulnerable to the substitution of customary law for positive or
shari’a law. Elders routinely exert pressure on women to settle out of court
through traditional channels and thus forfeit their legal rights.”25
According to APD,‘Of 35 practising judges in June 2002, only 19 possessed
law degrees, while the rest have some basic education and experience in
administering the shari’a.’26 In part, this can be explained by the ‘brain drain’
of Somali professionals during and after the Siad Barre dictatorship.
Additionally, following independence, most Somali judges and lawyers were
22 Academy for Peace and
Development (APD),‘The Judicial
System in Somaliland’, Hargeisa,
2002.
23 APD, 2002 (see Note 22 above).
24 APD, 2002 (see Note 22 above).
25 APD, 2002 (see Note 22 above).
26 APD, 2002 (see Note 22 above).
27
drawn from and concentrated in southern Somalia.This was due to their
experience with Italian-language legal training and practice that was adopted
by the independent Somali governments, as well as the fact that Mogadishu
was the capital city and the site of the country’s university system.
However, not all the shortcomings of Somaliland’s judicial system can be
blamed on the past; lack of government action in addressing these problems is
a major factor. Despite the ability of the Somaliland administration to
maintain a remarkably higher degree of law and order than any other part of
the country, the development of the justice system in Somaliland faces a large
number of limitations.A recent report by the International Crisis Group
concluded that ‘Somaliland’s judiciary has spent most of the past decade mired
in incompetence, corruption and political indifference.’27 The report called on
the Somaliland administration to begin ‘an independent judicial review, with a
view to introducing reforms strengthening both the capacity of the judiciary
and its independence from political influence.’28 While the Somaliland
administration has appointed an official Law Review Committee, since 2002,
to assess all existing laws and propose changes where necessary, the committee
has neither moved quickly, nor is it tasked to pay any significant attention to
aspects of xeer or shari’a that are not already included in formal state law.
In the meantime, public perception of the Somaliland justice system is that the
courts are too problematic, uncertain and prone to corruption.Without an
agreed set of laws and without formal guidelines for determining who
qualifies to sit on a court,‘Judges differ in their application of the law
according to their backgrounds, specialties, philosophy, and pragmatism. Since
there are no written guidelines, judges often base their verdicts on individual
assumptions and beliefs.’29 One lawyer interviewed for this paper stated that,
‘“Guilt and “innocence” are not operative concepts in Somaliland.The focus
of any legal decision is to arrive at a “win–win” solution that the parties to the
dispute are willing to implement.Thus, the strain on government mechanisms
to enforce legal decisions is as low as possible.’ Accusations of inefficiency, lack
of transparency and corruption were exacerbated by political controversy
between the Minister of Justice and Chief Justice over leadership of the Justice
Committee, which ostensibly exists to ensure the impartial appointment,
monitoring and management of judges.30
3.2 Puntland State of Somalia
Upon its creation in 1998, Puntland ‘re-established the judicial system based
on the law on the judiciary, adopted by the National Assembly of Somalia in
1962.’31 The charter made the standard caveat, however, that no earlier laws
would be applicable if they contradicted either shari’a or other articles of the
charter.According to the Puntland charter,‘laws and regulations legally
enacted by the previous governments provisionally remain in force until they
are replaced by new legislation’. As elsewhere in Somalia, this meant that the
Puntland judicial system is initially composed of three levels: the supreme
court located in the Puntland capital of Garowe, the courts of appeal in each
region, and courts of first instance at the regional and district levels. In
addition, a separate constitutional court was established.The Puntland charter
identifies that state interests are served by: the Ministry of Justice and
27 International Crisis Group,
‘Somaliland: Democratisation and
its Discontents’, Africa Report No.
66, Nairobi / Brussels, 28 July
2003, p. 27.
28 International Crisis Group, 2003
(see Note 27 above), p. ii.
29 APD, 2002 (see Note 22 above).
30 The Somaliland constitution
recognises the independence of the
judiciary, and public knowledge of
the importance of this principle has
led the matter to become a heated
public debate.However, judicial
independence is constrained by the
fact that it is the Ministry of Justice
that administers the courts, salaries
and budgets.The constitution also
gives the president the power to
appoint and dismiss judges to the
supreme court.Although any such
decision should be taken in
consultation with the judicial
commission and parliament, in
practice this gives the president
virtually unchecked influence over
the judiciary.The author is grateful
to Mark Bradbury for stressing the
importance of this fact.
31 Alessandro Campo and Hagi
Ahmed Tahlil,‘The Judicial System
of Puntland:A Preliminary
Assessment’, Nairobi:UN
Development Office for Somalia,
February 2002, p. 2.
28
Religious Affairs which oversees both public prosecution and custodial
services; the Higher Judicial Council, which is responsible for judicial
appointments and dismissals; and an Office of the Attorney General, including
the General Prosecutor, Assistant Prosecutor General, and local-level
prosecutors.
In April 1999, however, the Puntland parliament adopted Law No. 2, which
streamlined the structure of the judiciary by replacing the regional and district
courts with a single court of first instance that hears both civil and criminal
cases. Seven courts now exist in Puntland, including the supreme court in
Garowe, three courts of appeals in the regional capitals of Garowe, Bosasso and
Galkayo, and three courts of first instance in the same cities. Rural areas are
served by a large number – in the dozens – of Justices of the Peace, who are
mandated to settle minor civil disputes.32 Following the procedure from 1962,
shari’a law is used for personal civil matters dealing with marriage, divorce,
inheritance, etc.Three judges (including a mix of secular and shari’a jurists)
were expected to sit on each court, and to rule by majority.
According to assessments conducted in 2003, only 45 judges are currently
serving in Puntland. Of these, approximately 18 (about 40 per cent) have a
university degree in either secular or shari’a law.The remainder generally have
‘traditional’ and ‘non-formal’ qualifications, including locally acquired
knowledge of shari’a and ‘on-the-job’ experience in the courts system under
previous Somali governments.33
3.3 Transitional National Government (TNG)
As described above, the TNG aspired to become Somalia’s first internationally
recognised government since the state collapsed in 1991.According to the
TNG’s charter, adopted at the Arta peace conference,‘The system of the new
state of the Somali Republic is transitional and it shall be based on sharia….’
Article 38.12 states that ‘the Somali constitution which was adopted in 1960
and other laws of that period which are not contrary to this charter shall have
the force of law in the Somali republic.’Articles 4.3 and 5.1 adopted the
‘generally accepted rule of international law’, recognised the UN Declaration
on Human Rights and the Conventions on civil, political, economic, social
and cultural rights, and established a Higher Judicial Council to maintain
judicial independence.
Officially, the TNG judiciary system was structured ambitiously to provide for
law and order across Somalia. However, since the TNG was never able to
expand its presence outside Mogadishu, the system grew to comprise only the
following elements: the Minister of Justice,Attorney General, police force,
supreme court (including four judges), the regional court for the Benadir /
Mogadishu area, six district courts (all operating in Mogadishu), the
Mogadishu Central Prison and its custodial police force. If the TNG had
secured control over other parts of Somalia, other regional and district courts
would have been established as required.
TNG judges interviewed for this report stated that the new TNG justice system
had stopped receiving any financial support from the TNG and, as a result, its
32 Campo and Tahlil, p. 3.
33 See Richard Sannerholm,‘Legal
and Judicial Reform in Puntland
State of Somalia:Alternative
Approaches for Legal Restructuring’,
Örebro University, Spring 2003, p.
13.
29
level of activities has decreased to the point of hardly functioning by 2003 and
2004. Nonetheless, the judges maintained offices in the old Somali court
buildings in Hamar Weyne district – the same locations that the Siad Barre
government maintained. In addition, a nominal TNG police force continued to
function in select districts of the city, and placed prisoners in the Central Prison.
Immediately after the creation of the TNG, its judiciary system merged with
informal shari’a courts that were created in Mogadishu during the civil war.
The TNG assimilated approximately 70 shari’a judges, including a small
number of militant Islamic clerics who had been leaders of Al Itihad al Islami, a
group listed by the United States as a Specially Designated Terrorist Entity.34
However, this merger lasted for a period of only one year. Even during that
time, many of the shari’a courts refused to integrate their militia fully under
the command and control of the TNG police or military.
The accommodation came to an end in early 2002, when all judges in the
TNG system were forced by a new law passed by the TNG parliament to take
an exam to demonstrate their legal qualifications. Many former shari’a judges
who had joined the TNG refused to take these exams – either due to their
pride, due to the fact that they could not read/write, or because they were just
likely to fail – and thus quit the TNG judiciary system.Those judges who left
the TNG system either returned to work with their former shari’a courts,
which will be addressed in a later section of this paper, or stopped doing any
judicial work altogether.
After the judicial exam was implemented, a large number of vacant posts
existed within the TNG judicial system.The TNG appointed people with a
secular law background – mostly people who worked in the judicial system of
the Siad Barre government.The lack of coordination between the TNG and
shari’a systems was demonstrated by the fact that the decisions of the shari’a
courts were neither registered nor considered legally binding by the TNG.To
the extent that they functioned, the TNG courts essentially followed the old
cannon of Somali law as it existed under the Siad Barre regime. For the TNG
judges, this provided an adequate merger between a secular legal system and
the shari’a system. However, no space or mechanism exists for articulation
with the traditional clan law or xeer.
3.4 Transitional Federal Government (TFG)
At the time of writing, the TFG had yet to relocate to Somalia from the venue
of the Somalia National Peace Conference in Nairobi, Kenya. Further, while
Sheikh Aden Madobe – a militia commander from the Rahanweyn Resistance
Army in Somalia’s central Bay and Bakol regions – has been appointed the
TFG Minister of Justice, there has been little time for the TFG to make any
detailed plans for the reconstruction of the country’s formal judicial system.
Although it remains possible that TNG President Abdiqasim and other
warlords may refuse to join the TFG and may establish themselves in
opposition to it, it is likely that the TFG will slowly attempt to take over the
judicial infrastructure left behind by the Siad Barre government. In addition, it
is likely that judges who served under the now-defunct TNG will seek to have
their posts integrated into the new TFG administration.
34 See Andre Le Sage, ‘Al Itihad and
Prospects for Islamist Radicalism
in Somalia’, Review of African
Political Economy,Winter 2001.
30
There is a strong possibility that this will happen, as the judicial structure and
laws of the TFG, as detailed in the government’s charter adopted at the peace
conference in Kenya, are remarkably similar to those described above.The final
charter, agreed by participants at the negotiations in February 2004, includes
the following stipulations.Article 8.2 of the charter states that,‘The Islamic
sharia shall be the basic source for national legislation.’Article 60 details the
courts system, to include a transitional supreme court, transitional appeals
court, and ‘other courts established by law’.The latter apparently provides
space for the creation of courts that reflect the as yet undecided federal
arrangements between central and regional governments.
Article 12 establishes the office of Attorney General, and Article 55 guarantees
the independence of the judiciary. It also creates a Judicial Service Council to
undertake the appointment and management of judges, who are required to
have been judges in previous Somali governments or have achieved a
minimum of five years experience as an advocate in previous Somali courts.
Articles 14–27 of the charter provide explicit guarantees for human rights,
equality before the law, and rights to personal liberty, legal proceedings,
presumed innocence, the formation of political parties, labour, education,
social welfare, information, assembly and protest.
3.5 Limitation of the formal judiciaries
A full comparison of the various formal judicial systems across Somalia is
complicated by the fact that the TNG did not function for a substantial period
of time, and that the TFG has only recently been created.However, all of these
systems are very similar in their structure, and it is possible to assess more deeply
the performance of the judicial systems of Somaliland and Puntland. Both of
these should indeed be lauded.‘Violations of human rights… are neither
systematic nor widespread….The most common violations include arrest
without warrant and detention without trial of government critics, human
rights activists and journalists.’35 At the same time, each of these systems faces
almost identical problems and limitations that must be overcome before the
judiciary can be said to function effectively.The limitations are as follows.
• There is a lack of qualified legal professionals, including judges, lawyers,
clerks and civil servants, and lack of enforced qualifications to become a
judge and inadequate performance reviews, as well as an overabundance
of unqualified staff appointed for nepotistic or patronage purposes.
• Courts, as well as professionally trained judges and lawyers, are
predominantly based in regional capitals. Rural populations are thus
marginalised from using the formal judicial system, and rely on the
mediation of traditional elders and religious leaders.
• There is a lack of knowledge of existing laws on the part of both Somali
judges and the Somali public, partly resulting from the lack of public
knowledge of the existing legal codes and newly enacted laws.This, as
well as the long time required for any formal court case to reach a result,
has severely undermined public trust in the formal judicial system.
• Judicial independence is formally protected by the law, but not applied in
practice, due to interference in court matters by politicians,wealthy
individuals and influential clan communities.The problem is exacerbated
35 APD, 2002 (see Note 22 above).
31
by the courts’ reliance on the executive branch for financing and
administration.
• Alternative dispute-resolution mechanisms, including the application of
customary law and shari’a, lack an official enforcement capacity and do
not have a structured, sanctioned relationship to the formal judicial
system.
• Little new legislation has been enacted by the parliaments to give the
judicial system adequate means to address issues of private property,
commerce and trade, public administration practice, crimes committed by
holders of public office, including judges, crimes committed by juveniles,
and other matters arising from urban growth.
• There is a lack of resources for existing offices and courts, including basic
legal texts, essential infrastructure or technology, and access to training, as
well as poor remuneration for judges.
• There are poor conditions in the correctional services, including
overcrowded and unhygienic prisons that do not have the capacity to
provide specialised care for juvenile and mentally impaired
prisoners.36
In areas outside the immediate control of Somalia’s regional administrations,
Somali customary law or xeer continues to be the predominant justice system.
As described above, xeer is the set of rules and obligations developed between
traditional elders to mediate peaceful relations between Somalia’s competitive
clans and sub-clans.The universality of xeer is contested.According to one
point of view, all xeer is ‘localised’, emanating from specific bilateral agreements
between specific sub-clans that traditionally live adjacent to one another, and
‘application of its rule is flexible and varies from place to place depending on
circumstances and situations’.38 According to others, however, it is possible to
refer to a single, general Somali xeer given that the most significant principles
of xeer are common across all Somali clans.
These generally accepted principles of xeer are referred to as xissi adkaaday.
This is the name given to the most fundamental, immutable aspects of xeer
that have unquestionable hereditary precedents.They appear to be the same as
jus cogens in international law, and include the following:39
1 collective payment of diya (blood compensation, usually paid with camels
and other livestock) for death, physical harm, theft, rape and defamation,
as well as the provision of assistance to relatives
2 maintenance of inter-clan harmony by sparing the lives of ‘socially
respected groups’ (including the elderly, the religious,women, children,
poets and guests), entering into negotiations with ‘peace emissaries’ in
good faith, and treating women fairly without abuse40
3 family obligations including payment of dowry, the inheritance of a
widow by a dead husband’s brother (dumal), a widower’s rights to marry a
deceased wife’s sister (higsian), and the penalties for eloping
37 This section benefited extensively
from the input of Mohamed
Mohamed Abdi ‘Ghandi’, who
acted as a consultant for the
author, and whose own research
on traditional Somali clan law
provides the basis for much of the
analysis that follows. His own
findings are published in Recherches
sur une Société Riche d’une Structure
Complexe: La Société Somalie,
Volume 2, Université de Franche-
Comté, 1998.
38 PDRC, Pastoral Justice (see Note 5
above), pp. 24–25.
39 Puntland Development Research
Centre (PDRC), Somali Customary
Law and Traditional Economy: Cross
Sectional, Pastoral, Frankincense, and
Marine Norms, Garowe:PDRC,
2003, pp. 19–20.
40 For a detailed analysis, see
International Committee of the
Red Cross, Spared from the Spear:
Traditional Somali Behaviour in
Warfare, Nairobi: ICRC Somalia
Delegation, February 1997.
32
36 APD, 2002 (see Note 22 above).
Traditional Clan Law37 4
4 resource-utilisation rules regarding the use of water, pasture and other
natural resources; provision of financial support to newlyweds and
married female relatives; and the temporary or permanent donation of
livestock and other assets to the poor.
In addition to these general principles, it is commonly agreed that xeer can be
divided into two broad categories: guud and gaar. Xeer guud, which will be the
focus of the description in this paper, includes the general aspects of traditional
clan law that regulate common, day-to-day social interactions, civil affairs, and
means of dispute settlement within a clan and between different clans. Xeer
gaar includes specific laws that regulate localised economic production
relations for clans and sub-clans specifically involved in pastoralism, fishing,
frankincense harvesting, etc.41
Xeer has never been fully codified and remains an oral law passed down
through generations.Although xeer is both guarded and implemented by
respected elders, known as the xeer begti, it is widely open to interpretation.
That said, xeer guud can be broken down into a penal section (dhig) and a civil
section (dhaqasho). Dhig can be broken down further into matters of murder
(qudh), aggression (qoon) and thievery (tuugo). Each of these categories has
many sub-divisions of degree of the crime. For instance, qoon can be either a
moral harm (e.g. defamation) or a physical harm.Then, within physical harm,
there are some 12 degrees of harm done – each having a corresponding level
of diya remuneration – for incidents ranging from torn clothing to injuries
ranging from fractured bones and open wounds, to the loss of a limb.
In terms of diya remuneration, the benchmark for compensation is the penalty
apportioned for wrongly taking someone’s life. In the case of a male, the diya is
valued at 100 camels, while the life of a female is valued at 50 camels. In the
case of a male, the 100 camels are sub-divided into approximately one dozen
camels that must be paid immediately to the household of the victim and two
dozen camels that must be paid immediately to the closest relatives of the
victim.The remaining sixty or so camels must be paid over an agreed period
of time to the victim’s wider diya group. Payment for the crime of an
individual is made by that person’s entire diya group. Although this is by far
the most typical application of xeer for murder, the exact diya obligation varies
for different types of violations of clan law and may vary relative to the size
and wealth of the clans involved in a dispute.
Dhaqasho – the civil code of xeer – can similarly be broken down into four
categories regulating issues of family (xilo), private property (xoolo), territory
(deegan) and hospitality (maamuus). Each of these aspects of xeer has multiple
sub-divisions. For instance, xeer relating to private property includes rules for
the maintenance, allocation and utilisation of live animals, land and inanimate
materials, as well as rules governing inheritance, the giving of gifts and the
status of ‘lost and found’ properties. Xilo and xoolo – respectively, matters of
family relations, including marriage and divorce, and matters of private
property – are the areas of xeer where shari’a has been absorbed most
completely. Interestingly, this creates a parallel with the use of shari’a in secular,
state judicial systems to regulate primarily family, inheritance and minor civil
dispute issues.
41 For a detailed analysis of xeer gaar,
see PDRC, Somali Customary Law
(see Note 39 above).
33
There are two major decision-making criteria within xeer. Precedent is used
when deciding on all common problems that a clan community has faced in
the past, while jurisprudence – the informed reasoning of elders – is used to
solve new problems for which no applicable precedent exists.The recourse to
jurisprudence is governed by the proverb that,‘If something happens that we
have never seen or heard before,we will make a judgement in a way that has
never been seen or heard before.’ In particularly challenging cases, elders
traditionally opt to refer for advice to their clan’s most respected religious
leaders. By contrast, for common cases, although precedents are not written
down, elders cannot just create it. It is widely accepted that all precedent has
been ‘orally codified’ in well-known proverbs. Knowledge of these, as well as
personal abilities in patient mediation, traditionally served as the basis for an
individual’s selection as xeer beegti by other elders.
Attempts to formalise and codify xeer have been made.‘In 1968, the
government established a National Advisory Council made up of traditional
leaders and other knowledgeable individuals, with members drawn from all
regions and districts of the country, to advise it on constitutional matter and
application of laws, particularly customary law.’42 The Council reported on
those aspects of xeer that contradicted state law, and argued that practices such
as collective clan responsibility and diya payment should be abolished. In their
place, personal responsibility, including the application of the death penalty for
capital crimes,was recommended. However, political turmoil – particularly the
1969 military coup which brought Siad Barre to power – prevented the
government from considering and acting on the Council’s suggestions.
Nonetheless, in 1971, the Siad Barre government did attempt to outlaw
collective responsibility as part of its doctrine of scientific socialism.‘Strong
public resistance and weak application of the law in nomadic areas forced the
government to effectively drop the law in 1974.’43 When the government
relented, it began formally to register, incorporate and enforce the settlements
reached in informal xeer proceedings.According to Law No. 19 of July 1974,
the Somali civil code was amended as follows:
The extra-judicial conciliations concluded between the parties
spontaneously or through the representatives of the political offices of the
city, the villages and settlements, do acquire legal validity and executive
efficacy via the chancery of the District Tribunal of the place in which the
conciliation occurred.44
Xeer ‘holds the entire Diya-paying group collectively responsible for a crime
committed by one or more of its members’.45 One rationale for collective
responsibility may be that nomadic individuals have too few personal resources
to pay a given obligation. In such a case, if diya is not paid, the aggrieved clan
may opt to kill the criminal or members of that person’s clan.The result
would be both for a clan to lose a valued (and economically valuable)
member, and to create a cycle of revenge killings and persistent insecurity.
However, another convincing rationale for collective responsibility is that the
very notion of ‘private property’ has always been subordinate to a notion of
‘collective property’ that is shared within various levels of a clan and between
clans. It is not uncommon for members of a diya group to resist paying their
42 PDRC, Somali Customary Law (see
Note 39 above), p. 25.
43 PDRC, Somali Customary Law
(See Note 39 above), p. 29.
44 Article 333 of Law No. 19 of the
Somalia Civil Code, issued on 27
July 1974. Quoted from PDRC,
Somali Customary Law (see Note
39 above), p. 152.
45 PDRC, Somali Customary Law (see
Note 39 above), p. 26.
34
obligation for another member’s infraction.Accordingly,‘splinter groups can
sometimes break off from a Diya-paying unit as a result of frequent Diya
violations’.46
4.1 The xeer process
Xeer is applied after a violation of customary laws has taken place. Once an
incident has occurred, a delegation of elders, known in Somali as an ergo, is
dispatched by one or both of the concerned clans, or a neutral third-party
clan, to begin mediating the dispute and preventing it from spreading.47 ‘The
emissaries’ sole mission is to convey a message to the other side and to prepare
the ground for holding a [xeer] court or jury council to settle the case.’48
According to xeer, it is incumbent upon the aggrieved clan to make the
necessary investigations into an incident and determine the harm committed
before presenting their case to other clans.
A xeer case is always heard at the lowest and most genealogically recent level of
the clan that is possible.This ranges from the qoys (nuclear family), up through
the reer (closest relatives), jilib (first diya group), and laaf (sub-clan) to the qolo
(clan).As described above, the elders chosen to decide in a xeer dispute are
known as xeer beegti, which is essentially a group of elders acting as judges.The
most senior xeer beegti within a qolo or clan becomes the personal legal adviser
of the sultan or chief of the clan. For a given case, however, the xeer beegti are
usually are a mixed group drawn from the aggrieved clan, the offending clan
and possibly a neutral, third-party clan.
Xeer cases take one of two different forms – either a ‘mediation’ process
(masalaxo) or an ‘arbitration’ process (gar dawe).49 In the former, the exact laws
and punishments prescribed by xeer are set aside in order to reach a final
judgment that satisfies both parties. In the latter, which is primarily used for
the most grevious crimes and the most recidivist criminals, xeer is strictly
applied in a ‘winner takes all’ manner. Most clans choose to opt for the
mediation process. In it, the settlement obligation incurred by the accused is
usually reduced significantly by comparison with the outcome of an
arbitration process for the same case. Hence, mediation is highly advantageous
to the accused, if that party is likely to lose the case. Despite the loss of
compensation, mediation is often preferred by the aggrieved party.This is
because the aggrieved party ‘is aware that a ruling reached on mediation has
the group’s blessing [and will therefore not be contested or rejected by the
accused] and also guarantees speedy execution of the judgment’.50
Clan xeer cases have a traditional, ceremonial procedure. During the case’s oral
presentations, they are open to the public and usually outdoors under a tree.A
very structured seating arrangement exists for the principal parties, which
includes both parties, their representatives in the case, elders and guarantors of
the claims to be awarded. Xeer ‘does not recognise a professional group defined
as lawyers. In practice, any adult who has the required merits in the eyes of his
clan, including speaking and negotiating skills, and a reputation of propriety can
act as a lawyer.’51 Pleas of guilt and innocence, oral presentations of the case, the
use of witnesses and evidence, and cross-examination are employed as in any
46 PDRC, Somali Customary Law (see
Note 39 above), p. 28.
47 ‘In extreme cases, where fighting
has erupted and the men of the
two contending sides cannot
approach each other without a
clash taking place,women play the
role of emissaries.’PDRC, Somali
Customary Law (see Note 39
above), p. 127.
48 PDRC Somali Customary Law (see
Note 39 above), p. 126.
49 PDRC, Somali Customary Law (see
Note 39 above), p. 133.
50 PDRC, Somali Customary Law (see
Note 39 above), p. 134.
51 PDRC, Somali Customary Law (see
Note 39 above), p. 130.
35
secular court case. Once the xeer beegti are chosen, they are forced to sit apart
from their communities to avoid biasing their decisions. One person is
employed to memorise, repeat and summarise the oral proceedings for the
elders.After a decision is reached, the case’s protagonists and their clans hear the
elder’s decisions, take a few minutes to discuss, and give their reply as a clan
group. It is possible either to agree, or to disagree and seek a new hearing. If a
group rejects the decision of the elders, they call for an appeal or new hearing
by stating,‘I wish to choose another tree’.A total of three ‘trees’ or hearings can
exist using different xeer beegti. Only in the most extreme circumstances are
appeals taken to the highest level of a clan and its most senior elders for appeal.
Xeer cases prevent four different types of individuals from participating in dispute
adjudication. On the positive side, persons who have close family relations with
the parties, persons who have personal grievances against either party, and
persons who have previously sat in judgment of the same case, are all excluded.
On the negative side,women are discriminated against and are neither allowed
to sit as xeer beegti nor to act as an advocate for either party.52 In short, xeer ‘is
male dominated. Participation of women in the formation and practice of [xeer]
is negligible, as they do not enjoy equal political rights with men.’53
4.2 Limitations of xeer
A series of limitations – both traditional and contemporary – now affects the
application of xeer. First, the lack of impartial enforcement mechanisms may
present problems when a militarily strong clan openly refuses to comply with
a judgment that favours a militarily weak clan. As a result, Somali minority
groups – particularly those of Bantu and Arab origin – are heavily
discriminated against through xeer decision making. However, in cases
involving clans of relatively equal standing, a number of factors work to ensure
that the decisions of the xeer beegti are respected, including:‘avoiding a future
cycle of revenge; community or clan pressure; respect for the jury members;
and the relative strengths of the opposing parties’, as well as ‘awareness that
similar previous cases have been solved by the same ruling’ and the threat of
additional individual and collective punishments that the xeer beegti may apply
to persons who ignore their ruling.54
Second, the role and status of Somali elders has changed.Traditionally, their role
was paramount in: (i) pressuring conflicting parties to adopt a ceasefire; (ii)
initiating negotiations between the parties; and (iii) passing a judgment
according to xeer.However, their role was undermined and the elders themselves
began to be perceived as corrupted when Somali governments, beginning in the
colonial era, started to pay the elders to serve state interests in maintaining public
order. By contrast, Somali religious leaders were not paid.They are often from
wealthy families and never depended on external sources of income.Their role
in conflict resolution is presently more influential than that of most elders since
they are: (i) seen as impartial and unopen to financial influence; and (ii) a higher
moral authority with the ability to ‘curse’ non-compliant clansmen.
Elders know that their social role and public image have been compromised.
However, they stand ready to assist any new government in ensuring the
application of laws and maintaining peace.However, to increase their
52 PDRC, Somali Customary Law (see
Note 39 above), p. 131.
53 PDRC, Pastoral Justice (see Note 5
above), p. 24.
54 PDRC, Somali Customary Law (see
Note 39 above), pp. 147–150.
36
effectiveness, elders want an independent source of revenue – possibly from the
government or from business groups – that will reduce their need to undertake
shahad, or solicitation of personal financial contributions from their clan
members. Many elders are reliant on shahad as their primary source of
household income, although such ‘begging’ demeans them in the eyes of their
clansmen and compromises their impartiality in settling disputes. Elders also seek
training to understand the workings and principles of secular legal systems, and
to enhance their ability to fashion new elements of xeer that would apply to new
urban problems. Finally, some elders are willing to undertake an inter-clan
dialogue on xeer reform, but require facilitation to begin.
Third, xeer has not continued to develop as quickly as Somali society has
changed. In particular, xeer is especially weak in urban contexts, where the
new social mix of clans and sub-clans generates problems where no bilateral
xeer exists between the opposed groups. In addition, while the number of
criminal acts has increased substantially during the civil war, elders who used
to make decisions based on detailed knowledge of local events now do not
know many of the individuals that sit before them or what activities those
individuals have been involved in across the city.Adaptations of xeer have been
rudimentary. For instance, collective diya adjudication is now applied when a
series of militia clashes result in large-scale kiling.Accordingly, elders calculate
that if Clan A killed 50 men of Clan B, while Clan B killed 75 men of Clan A,
then Clan B is obliged to compensate for only the additional 25 dead.
In addition, everyone from militia leaders and mooryaan (bandits) to
secularised,Westernised returnees from the diaspora often rejects their clan’s
authority.And new problems have arisen for which no xeer code exists,
including the irredentism of warlords seeking to take control of another clan’s
land, militia clashes over checkpoints and their revenues, the increasing
prevalence of drugs, premarital sex and unsanctioned marriages. For some
clans, the death toll from the civil war has resulted in enormous diya
obligations that virtually no group is willing or able to pay. Xeer has also failed
to adapt to the modern economy. Explicit provisions exist for traditional,
subsistence production relations, and they govern access to and use of land,
water and forestry resources, as well as farming, livestock rearing and fishing.
However, xeer is largely undeveloped in terms of the recognition of private
property and lacks standards to regulate commercial activities.
Fourth, many of the more progressive elements of xeer that help to maintain
social order and a cohesive and supportive family structure are being
undermined. Militia routinely kill indiscriminately and make no effort to
protect the lives of important social groups, including women, children, elders
and religious figures. Rampant criminality has led to the acceptance of
criminal activity as a means to earn a living.Arranged marriages are ignored
by Somali youth – a factor Somalis see a resulting in higher divorce rates.
Finally, after the pauperisation that accompanied the civil war, the
commitment of sub-clans and diya groups to provide material assistance to
relatives and the poor has also diminished.
Fifth, while it is simultaneously a force for justice and social cohesion, xeer has
also come into conflict with both international human rights standards and
37
Islamic shari’a law. In general, the collective responsibility imposed on diya
groups by xeer is seen as removing responsibility from individual perpetrators
of crimes. However, more specific contradictions arise when one considers
the differential treatment of women by xeer.A number of practices stand out
for the most criticism: dumal, or the forced marriage of a widow to a male
relative of her deceased husband; higsian, or the forced marriage of the sister
of a deceased wife to the widower; and godobtir, or the forced marriage of a
girl into an aggrieved clan as part of a diya payment.55 A woman who is
raped is often forced to marry her attacker.This is ostensibly to protect the
woman’s honour, but serves to ensure full payment of her dowry by the
attacker’s clan to the victim’s clan.As marriage also solidifies a bond between
the clans of the man and woman involved, further violence is also prevented.
Women are also traditionally ‘denied the right to inherit capital assets such
as camels, horses, buildings, seagoing vessels and frankincense plantations’,
and domestic abuse by a husband against his wife is generally tolerated
unless the harm becomes so physically damaging or persistent that it is
socially disruptive.56
As described above, Islamic shari’a law has been a traditional feature of Somali
society.Throughout the colonial era, as well as the post-independence era until
the collapse of the Siad Barre government, shari’a was officially incorporated
into the Somali state. In principle, according to all Somali constitutions, shari’a
has supposedly been the basis for all national legislation – a factor which has
provided symbolic religious legitimacy to the government. However, in
practice, shari’a has always been relegated within the formal justice system to
the level of courts of first instance, and applied only in common civil cases,
including family matters, marriage and divorce, and inheritance.
Since the early 1990s, however, a new form of shari’a has been organd and
implemented in a number of different cities and towns across Somalia with the
establishment of shari’a courts. In the absence of a government, varying
combinations of Somali militia-faction leaders, businessmen, clan elders and
community leaders have worked with Somali religious leaders from within
their sub-clans to establish these courts in attempts to improve local security
conditions. Somalia’s new shari’a courts play three roles: first, they organise a
militia to apprehend criminals; second, they pass legal decisions in both civil
and criminal cases; and third, they are responsible for the incarceration of
convicted prisoners.
A variety of motives lies behind the establishment of these courts. First,
improved local security conditions became a means for faction leaders to
maintain public support. Second, faction leaders found the courts to be useful
mechanisms to prevent internal factionalism and the outbreak of conflict with
neighbouring clan communities.Third, the courts provided a secure
environment for Somali businessmen who could profit from local and regional
trade without concern that they would be attacked by uncontrolled militia
and bandits – thus reducing their need to pay high overhead costs for their
55 PDRC, Somali Customary Law (see
Note 39 above), pp. 36–37.
56 PDRC, Somali Customary Law (see
Note 39 above), p. 41.
38
5 Shari’a Courts
own security forces. Fourth, they served as institutional vehicles for a small
number of Islamic radicals to promote the adoption of shari’a as the basis for a
theocratic state in Somalia.
According to Matt Bryden, the mandates given to the shari’a courts are derived
from agreements reached within or between specific clans and sub-clans, and
typically include:
• the recognition of the Shari’a law as the one law common to all Somalis
• establishment of the court to implement the Shari’a, and description of
the punishments it may impose
• formation of a security militia under the auspices of the court, and
financed by contributions from signatory communities – ordinary police
may or may not be included in this agreement
• agreement that actions taken by court militia or police are the collective
responsibility of the court, and not the individuals concerned.57
The structure of Somalia’s shari’a courts tends to be simple, but effective.They
include a standard hierarchy of a chairman, vice-chairman and four judges.A
small but well-equipped militia were formed into a ‘police force’ that reported
to the court and supported the implementation of the judges’ decisions, but
also functioned independently to intervene in community disputes and arrest
suspected criminals.A separate finance committee was established to collect
and manage a proportion of tax revenues levied on regional traders by the
local administration.58 The courts often maintain separate detention areas for
men,women, youth and violent criminals, and any one court incarcerates up
to 300 prisoners at any one time.
The political role of shari’a courts has generally been limited. Most legal
functions performed by the shari’a courts are concerned with civil matters,
including sanctifying marriages and divorces, determining inheritance rights,
and settling business disputes.With a small number of exceptions, primarily
from the courts in Mogadishu, the courts have been much more reluctant to
involve themselves in political issues and large-scale security problems. Court
officials state that they prefer to hear cases from individuals who are already
committed to the authority and Islamic precepts of the courts.They are rarely
involved with the settlement of clan conflicts, which include the payment of
diya or financial compensation for harm done by one clan against another.
These matters are left by the shari’a courts for the fighters, families, clans and
clan elders to address.
Shari’a judges assert that there is no conflict between Islamic law and
traditional Somali clan law (xeer).They state that Somali culture was fully
integrated into Islam and thus no conflict was possible. Decisions are made
according to the legal reasoning of the court judges, as informed by their
educated understanding of the Qu’ran – no formal legal code is written down.
Most shari’a judges were educated solely through informal religious studies in
Somalia. However, a small number have formal training from Sudan, Egypt
and Saudi Arabia, as well. Despite their commitment to a synergy between
Somali culture and Islam, the chairmen stated that none of the judges were
members of the Sufist turuq or brotherhoods.
57 Matt Bryden,‘Interim Report to the
EU Somalia Unit on Support to
Local Administrative Structures in
Somalia’, 7 October 1996.
58 UNDOS,‘Situation Analyses and
Assessment Report on Hiran Region’,
Nairobi: UNDP-Somalia, March
1998.
39
Some commentators suggest that it is more appropriate to think of the courts
as ‘security providers’, not ‘justice providers’.This has led to an assessment of
the courts as one clan’s mechanism to solidify and justify control of occupied
lands that have been usurped from the historical control of another clan.59
Others have described shari’a courts as a clan’s defensive response to the
antagonisms of other clans who are slowly encroaching on their lands and
prompting a rise in insecurity.60 Such disputes are often reflected in arguments
over which, if any, secular authorities the shari’a courts should be responsible
to. Each clan fears that the courts and their militia may become the tools of a
governor for repression, clan favouritism, or personal income and patronage.
Such disputes usually favour the creation of independent Islamic courts that
appear to stand apart from any secular authority.
Court funds are raised through a variety of sources within the court’s sub-clan
community and the area that they control.This includes contributions of different
sizes from large-scale traders and small-scale shopkeepers, taxes levied by court
militia at checkpoints, and fees charged to individuals appearing before the court.
In addition, further funds may be raised through private-sector initiatives. For
instance, at least one court in Mogadishu was involved in the ‘protection and sale’
of vehicles either seized in court operations or put up for sale by their owners.
The shari’a courts are invested with authority by the clan elders. Hence, the
court is able to take security actions against individuals from that clan.However,
unless the courts are able to develop political, military and financial autonomy,
this limits the ability of the courts to reach decisions that go against the interest
of the clan.At any time, a clan can remove the authority of the court or simply
recall the clan’s militia from the court. Shari’a courts play a very limited role in
mediating inter-clan disputes, which remain the prerogative of the clan elders.At
most, they will seize and incarcerate offending militia in the court’s area of
operation, until a dispute can be settled by the elders.As a result, while the
presence of a shari’a court may improve security in their immediate zone of
operation, the utility of the courts is mostly confined to private, family matters,
business disputes, and minor crimes due to banditry.
The courts generally lack support from a clan’s religious leaders.They
generally believe that the shari’a judges, while devout, are uneducated and
often illiterate individuals. In fact, none of Somalia’s shari’a courts appear to
follow a specific madhab or school of Islamic jurisprudence – they simply
apply their personal reading according to their existing knowledge of the
Qu’ran and Islam.61 Due to the judges’ lack of formal training, the shari’a
courts do not operate according to any formal procedure. Judges hear cases by
asking questions of the claimant and defendant, calling any witnesses that the
judges themselves deem necessary, and then pass their decision. Professional
Somali lawyers who have appeared before the courts argue that rules of
evidence and procedure are the most required form of development and
training that is required to prevent the shari’a courts from causing harm.
In reaching decisions that will satisfy their various constituents, the shari’a
courts have adopted the guiding principle of suluh,which roughly translates to
‘resolution’.According to suluh, shari’a, xeer and relevant state laws can be
combined to find a workable,‘win–win’ resolution to a case that all parties will
59 Abdulahi A.‘Xirey’ Osman,
‘Islamic Courts: Panacea for
Somali Salvation?’, Commentary
in Arlaadi News.
60 Ahmed Farah,‘Sharia Courts in
Somaliland’, UNDP-Emergency
Unit for Ethiopia,April 1996.
61 Somalis are almost entirely Sunni
Muslims within the Shafi’ite
school. In theory, the operative
legal code of their shari’a is the
four-volume Menhaj.
40
accept. Interestingly, at the same time, any overt request for barax or ‘mixing’ of
different laws is flatly rejected as a corruption of shari’a.However, by not
questioning the religious ‘base’ of decision making, suluh means that the courts
and their security initiatives are legitimised in the eyes of many Somalis.
Law faculties exist in three different universities in Mogadishu, but each has a
different focus.Mogadishu University teaches both Islamic shari’a and secular
state law, drawn from the curriculum of the former Somalia National
University. Meanwhile, Hamar University focuses more strictly on secular state
law, and Islamic University addresses only shari’a.The law faculty of
Mogadishu University is by far the most developed.At present, some 60
students have graduated and another 150 students are now enrolled in their
four-year programme.
That said, shari’a graduates from local universities are more likely to find work
as teachers in local secondary schools or managers of local businesses, than
they are to join the shari’a courts.The graduates are viewed sceptically by the
shari’a judges because: (i) the graduates may pose an intellectual challenge to
the less qualified sitting judges; (ii) the graduates are more likely to decide
cases according to the standards of the written shari’a code of their madhab
rather than clan xeer; and (iii) the graduates do not reflect the interests of
Islamist fundamentalists within the courts. For similar reasons, as well as lack of
funds, the university law faculties have not met with much success in
providing on-the-job legal training for the sitting shari’a judges.
One recent case involving medical treatment at the SOS Hospital in
Mogadishu is an illustrative example of the confusion that besets the
application of shari’a.A woman from the relatively powerful Habr
Gedir:Suleiman clan was being treated by a medical doctor from the less
powerful Sheikhal sub-clan.The woman had life-threatening infection at the
time of delivering her first child.The doctor successfully delivered the baby,
treated the infection, and advised the woman not to become pregnant again.
However, seven months later, the woman was brought back to the hospital,
pregnant with her second child.The doctor determined that her unborn child
had already died in the womb, that her infection had returned and spread, and
that removal of the woman’s uterus was required to save her life.After seeking
formal authorisation from the woman’s family, the doctor performed a
hysterectomy, and the woman began to recover. However, when the woman’s
family finally understood that the removal of the uterus would prevent her
from having more children, they decided to take the doctor to court.
The case was heard by the Circolo Court, which has authority from the
woman’s Suleiman clan.The doctor was brought to the court by the shari’a
militia, without legal representation and without any notice. Initially, the court
found in favour of the doctor who performed his medical duties appropriately.
A short time later, however, the doctor was again summoned to the court since
the woman’s clan had rejected the court’s initial decision.This time, the doctor
was summarily fined $2000, in a judgment made according to xeer principles of
mediation. Given that the doctor was from a smaller, less powerful sub-clan, he
was forced to pay the fine out of fear that non-payment or appeal would result
in a serious risk to his life from the Suleiman clan militia.
41
5.1 North Mogadishu court
One of the first shari’a courts to be established in Somalia after the collapse of
the Siad Barre regime emerged in north Mogadishu – an area controlled by the
militia-faction leader Ali Mahdi Mohamed from the Hawiye:Abgal clan.As subclan
rivalries within his Hawiye:Abgal community, and rising insecurity in his
territory, threatened to undermine his political status, Ali Mahdi supported the
creation of a shari’a court system to curtail the activities of former militia who
became uncontrolled mooryaan, or bandits. In mid-1994, the faction leader
issued a statement nominating a three-person supreme court, as well as 15
‘religious judges’ under the chairmanship of Sheikh Ali ‘Dhere’ Sheikh
Mahamud.The court was known as the North Mogadishu court, and also the
Ali Dhere court and the Karrar court. It was stated by Muhaydin that, in the
absence of any commonly accepted government, the shari’a system was the only
legal framework to which all Somalis were bound as Muslims and could not
contest on political grounds.62
Differences in interpretation over the court’s objectives existed from the start
between Ali Mahdi and Ali Dhere.While the former saw the court as a tool to
re-establish security in his area of Mogadishu, the latter believed that the court
was ‘the first step towards establishing an Islamic state in Somalia’.63To this end,
Ali Dhere began implementing his court’s judgments with zeal. ‘Between
August 30, 1994 and September 1996, 6000 criminal cases and 2000 civil cases
were decided.’64 While North Mogadishu did become an increasingly secure
location for local residents, it was also one of the very few places in Somalia
where a shari’a court implemented both corporal and capital punishment.A
statement of punishments meted out by the court as of 31 July 1996, included
the amputation of both a hand and a leg for 17 convicts, amputations of hands
alone for another 12 convicts, the amputation of a leg alone for one convict, the
execution of 11 prisoners, beatings for 431 prisoners, 980 jail sentences and 527
orders for payment of compensation.65
However, the court collapsed when the division of funds between the court and
the secular authorities in Ali Mahdi’s militia-faction, and differences in political
objectives between the two groups, led to conflict. In 1996, Ali Mahdi feared
the rising political and financial independence of Ali Dhere, and issued a decree
for the sheikh to relinquish his chairmanship of the court. When this was
rejected, the matter was then settled by force when militia loyal to Ali Mahdi
forcibly disbanded the court. As a result, Ali Mahdi maintained his authority in
north Mogadishu in an uncontested but far weakened position. Street-level
violence again increased, and internal, sub-clan-based schisms eventually tore
the militia-faction apart.The relative calm of north Mogadishu, by comparison
with other parts of the capital city,was undermined for years to come.
5.2 The Belet Weyne court
After the example set in north Mogadishu, a series of other shari’a courts
emerged in Hiran, Middle Shabelle,Mudug, Nugal and Bari regions.
However, rather than representing any militia-faction’s political agenda, these
courts generally resulted from a common interest among key actors in the
community,who were willing to sacrifice a portion of their local revenue in
62 Kassahun (see Note 9 above), p. 39.
63 Kassahun (see Note 9 above), p. 39.
64 Kassahun (see Note 9 above), p. 40.
65 Ali Omar Ma’ow,‘Report of
Punishment Office’, Islamic
Supreme Court of Somalia, 31
July 1996, reprinted as Attachment
3 in Kassahun, 1997 (see Note 9
above).
42
order to improve local security conditions. For instance, a more moderate
shari’a court was established in Belet Weyne town, Hiran region, between
1995 and 1998. Matt Bryden notes that the creation of the shari’a court
originally may have been intended to prevent the outbreak of local conflict
between competing clan militia in Hiran:
The establishment of Shari’a courts has been described by some [clansmen
of the] Xawaadle as a measure originally intended to prevent retaliation by
Xawaadle militia against non-Xawaadle groups, following the withdrawal
of the SNA…. Instead, the early imposition of Shari’a law provided a
deterrent to revenge killing and feuding, offering the non-Xawaadle some
assurance that genuine reconciliation would eventually be possible.66
Bryden’s account of the creation of the court reflects a process approximating
the emergence of a local ‘social contract’ within a situation of anarchy:
Formation of the courts appears to have followed a standard pattern,
where resident clans of major towns… have formally endorsed the
establishment of the courts and their maintenance, through consultation
between delegated elders of the concerned clans.The courts appear to
have no alternative source of support, nor any social or political agenda
beyond that determined by lineage elders.67
A United Nations field mission described the functioning of the courts:
They are multi-clan in composition and have had considerable popular
support; they have exercised the right to collect taxes, allocating revenues to
pay for the running of the courts, provide small stipends to elders managing
disputes, operate the prison, and maintain and control a sharia militia
estimated at 500 men.The courts in Hiran base their deliberation on the
Qoran, but do not impose sharia law – parties to a dispute or crime are
entitled to opt for traditional (blood money) compensation or sharia.68
The success of the court in preventing communal conflict was, however, only
one of its functions.According to a UN study,‘The traders took a great role in
the establishment of the Islamic Courts with the intention of bringing back the
basic law and order which allowed them the preparation of a conducive business
atmosphere that can carry out business transaction from side to side.’69
The shari’a court system in Hiran was an eminently successful experiment, and
the court was never involved in Islamist political activities, nor was it even
seriously accused of being such.However, its tenure did not last beyond 1998,
when clan and factional politics eventually took over. In particular, once the
secular political leadership in Belet Weyne, under Colonel Omar Hashi of the
USC-PM militia-faction, fell into dispute with the Ethiopian government, the
latter opted to equip and empower a new militia-faction to replace Hashi.At the
same time, an attempt in Belet Weyne to hold a reconciliation process within the
Hawiye clan brought such a large number of foreign militia into the region that
the activity of the shari’a court was suspended to prevent the eruption of interclan
feuds. Rising insecurity, political uncertainty, and eventually the inability to
pay the court’s militia (due to the court’s inability to impose tax collection) led
66 Matt Bryden,‘Interim Report to the
EU Somalia Unit on Support to
Local Administrative Structures in
Somalia’, Nairobi: EU Somalia
Unit, October 1996.
67 Bryden,‘Local Administrative
Structures’ (see Note 66 above).
68 UNDOS,‘Hiran Regional LAS
Study: Executive Summary’,
Nairobi: UNDP-Somalia, January
1999.
69 UNDOS,‘Situation Analyses and
Assessment Report on Hiran Region’
(see Note 58 above).
43
the court to disband.While a number of attempts have been made by Hiran’s
political leadership over the subsequent years to revive the court, none have been
successful in uniting the necessary political and clan leadership behind a single
initiative that can govern the entirety of Belet Weyne town, let alone the region.
Courts in other parts of Somalia faced similar problems and have often closed.
Although popular with local communities for re-establishing a semblance of law
and order, few shari’a courts in Somalia have survived over time.The very
creation of the courts, in fact, creates a number of fault lines for conflict. First, as
mentioned above, some Islamic courts are seen as one clan or sub-clan’s
mechanism to solidify and justify control of occupied lands that have been
usurped from the historical control of another clan, while others have described
shari’a courts as a clan’s defensive response to the antagonisms of other clans
who are slowly encroaching on their lands and prompting a rise in insecurity.
Second, an additional set of disputes can emerge over the choice of secular
authorities to which a shari’a court should be responsible. Each clan fears that
the courts and their militia may become the tools of a governor for repression,
clan favouritism, or personal income and patronage. Such disputes usually
favour the creation of independent Islamic courts that appear to stand apart
from any secular authority.However, as demonstrated above by the case of the
North Mogadishu court, this strategy can also generate conflict when a court
expands its authority and becomes a political challenger to a faction leader.
Finally, the management of financial resources can become another source of
disputes. Bryden notes that in some instances,‘revenues tend to exceed court
costs, leading to dispute between the religious and secular leaders as to how
the extra revenue should be managed.’70
5.3 South Mogadishu’s courts
After 1996, a new round of shari’a courts emerged in south Mogadishu and
later in Merka.This set of courts contained individuals and had financial
supporters who were integrally connected to the militant Islamists in Al Itihad.
The courts were organised according to different sub-clans of the Hawiye
communities in the capital city.They either took the name of their sub-clan or
the name of the building that they occupied.The most prominent courts were
the Habr Gedir:Ayr or Ifkahalan Court, the Murosade or Harariyale Court, the
Habr Gedir:Suleiman or Circolo Court, the Habr Gedir:Duduble or Washeda
Anaha Court, and the Abgal:Daud or Medina Court.
Most south Mogadishu shari’a courts were community-backed law and order
initiatives similar to their predecessors in north Mogadishu and Belet Weyne.
The courts’ jurisdictions were primarily restricted to their sub-clan, unless
other clans’ members brought a case to the court and formally accepted its
jurisdiction.All court leaders agreed that to take action against members of
other clans without prior agreement with their elders would be to invite a
conflict. However, instead of being initiated by a faction leader or regional
administration, these were initiated almost exclusively by businessmen.
As an alternative means of establishing a stable environment for their business
interests without the need to pay protection money to the feuding warlords,
70 Bryden,‘Local Administrative
Structures’ (see Note 66 above).
44
the elite of the Mogadishu business community supported the establishment
of a series of local shari’a courts founded on independent, clan-based
agreements and operating only in particular quarters of the city.71 This
buisiness elite included large-scale import/export traders, transporters of food
aid for international relief agencies, and owners of remittance companies.
The south Mogadishu court leaders consider it one of their strengths that
militia-faction leaders did not play a role in the formation of these institutions
since they could then not be accused of being a divisive political institution
and be attacked by militia from other sub-clans’ militia. In fact, in many
instances, the South Mogadishu courts were widely resisted by the faction
leaders from within their own sub-clan community.However, only rarely did
the two groups come into conflict with one another. For instance, once it
became prominent within the community, the Harariyale court was attacked
twice by the faction leader Mohamed Qanyare – also from the Murosade clan
– first in 1996 and second in 1997, although neither attack was successful and
the court continues to function until this day.
The courts in south Mogadishu did practice capital punishment in cases where
‘intentional murder’ can be proven, but did not practice corporal punishment
in the form of amputations.72 Members of the courts explain that corporal
punishment is indeed mandated by the Qu’ran and should be carried out by the
courts. However, to do so, they said they required more funds, since the Qu’ran
also requires courts to meet the personal and family responsibilities of a criminal
after an amputation is implemented. In addition, they are aware that such
punishment would upset the international community, and potentially bring
problems for the court.
According to Roland Marchal,‘one should emphasise that those Islamic
Courts were not fundamentalist by nature, though key figures of radical
Islamic groupings played an important role in coordinating them and making
them more efficient’.73 In particular, after the Ifkhahalan74 or Ayr Court was
initiated by a sheikh from the Ayr:Habr Heji sub-clan, Hassan Dahir Aweis –
the military commander of Al Itihad – used his Ayr clan ties to become
associated with it.Aweis was brought into the Ayr Court not only because of
his conservative religious credentials, but also due to the need for sub-clan
balance between the Ayr sub-clans. Using his identity as an Ayr:Ayanle clan
member,Aweis then became one of the court’s leading figures.
In October 2000, the independent courts in north and south Mogadishu came
together to create a Joint Islamic Courts Council, led by Hassan Dahir Aweis
as Secretary General, and Sheikh Ali Dhere as Chairman.75 Once their militia
forces were amalgamated under a single command structure, the Joint Islamic
Courts Council became the largest single military force within Mogadishu.
The prominence of individuals, such as Aweis, provided ample evidence for
many observers to conclude that the intention of the shari’a courts was to use
force to impose Islamic rule on the country. If this was their intention,
however, they failed to realise their political vision. In fact, the Joint Islamic
Courts Council had only one success in extending its remit beyond south
Mogadishu, into Lower Shabelle region.This move resulted in the
establishment of a new shari’a court based in the port town of Merka. It was
71 Indian Ocean Newsletter,‘Somalia:
Islamist Militia Offensive’, Issue 879,
1999.
72 Other levels of murder judgments
for which capital punishment is not
applied include ‘accidental murder’
(for which a payment of 100 lowgrade
camels is acceptable
punishment) and ‘semi-intentional
murder’ (for which 100 high-grade
camels is acceptable punishment,
including 40 pregnant female
camels and 30 young camels).An
example of ‘accidental murder’ is
when militia members are sitting
together and an AK-47 accidentally
fires and kills a person.An example
of ‘semi-intentional murder’ is
when a man is trying to shoot one
person, but accidentally hits
another person.
73 Roland Marchal,‘The outcomes of
US decision on al-Barakaat’, author’s
manuscript, December 2001.
74 The name Ifkaxalan is a
combination of two words – ‘ifka’
meaning light, and ‘halan’ meaning
clean.The name was adopted from
the Ifkahalan shampoo factory,
which used to be housed in the
court complex before the civil war.
75 Reported in Mogadishu’s Xogogal
newspaper, 14 November 2000.
45
led by Hassan Dahir Aweis and militia from his Ifkahalan court, which had the
same Hawiye:Habr Gedir clan identity as the dominant businessmen operating
in the region. However, rather than succeeding in imposing an Al Itihad
administration in the region, the court simply removed militia roadblocks and
established a central taxation system.
No attempt was made to impose an Al Itihad mayor for Merka town or
regional governor for Lower Shabelle. Further, the Islamic law the courts
applied was not overly strict, and the court proved willing to guarantee the
security of humanitarian aid workers from the UN and Western NGOs. In
fact, the establishment of the Merka court was financed by the same major
Mogadishu traders.Their interest in the region and the shari’a court remained
a corporate rather than religious or political one.They simply sought to
reduce the risk to their trading activities and investments by incarcerating a
large number of uncontrolled militia and pacifying the region.
5.4 Demise of the courts?
Before the influence and power of the Joint Islamic Courts Council could be
tested further, however, the TNG was created in 2000.As described above,
many of the shari’a judges and militia were amalgamated into the TNG
judicial system. Despite outsiders’ perceptions that the two groups held
common interests in Islamising Somalia, the TNG in fact attempted to
undermine the shari’a courts in an effort to eliminate organised challengers to
their legal supremacy.To do so, the TNG hired shari’a judges (but then
removed them), hired a percentage of their militia (but not all of them) and
integrated them into a cross-clan force, and convinced businessmen to
withdraw their armed ‘technical’ battlewagons from the courts and sell them
to the TNG (for a future payment that rarely arrived). As a result, the shari’a
courts lost their implementation capacity and popular support.
The intentions of the TNG towards the courts were expressed clearly in
mid-2001 by Sheikh Hassan Muhammad, a former chairman of Mogadishu
Islamic courts and a member of the TNG. He told journalists that ‘most of
the Islamic court militias were being trained as part of the TNG security
forces, and the judges would function as Islamic qadis, under the justice
ministry. Qadis under the previous administrations dealt mainly with family
issues, such as divorce, marriage and inheritance.’76 However, as described
above, the shari’a judges in the TNG were forced by a new law either take
an exam to demonstrate their legal qualifications or to resign. Most of the
shari’a judges opted for the latter. Hassan Dahir Aweis, the Al Itihad leader
who previously worked as Deputy Chair and then Chair of the Ifkaxalan
Court and then became a representative on the TNG Regional Court, was
one of the judges who refused to take the TNG exam.
In short, the history of their association with and then departure from the TNG
left behind a smaller number of shari’a courts in Mogadishu in 2002 and 2003
than had existed before the Arta peace conference. Further, these remaining
courts were weaker and less coordinated. UN-IRIN confirmed that in
Mogadishu by mid-2001,‘the Islamic courts had ceased to function in most
areas, apart from areas of Medina District, southwest Mogadishu, which is
76 UN-IRIN,‘Somalia: Dealing with
the Islamic courts’, 22 June 2001.
46
controlled by the faction leader Muse Sudi Yalahow’ who opposed the TNG and
supported Ethiopia’s position against Islamic fundamentalism.77 In south
Mogadishu, only the Murosade clan’s Harariyale Court and the Habr Gedir:Ayr’s
Ifkahalan Court survived.However, the departure of key judges into the TNG,
and the shift in loyalties of the shari’a militia from the courts back to the TNG
and businessmen, meant that the courts were only shells of their previous selves.
5.5 Revival of the courts
Since the beginning of 2004, the shari’a courts in Mogadishu have returned to
prominence. Sheikh Sharif Sheikh Mohiadin from the Abgal sub-clan was
appointed chairman, and Sheikh Abdi Hashi from the Murosade, and Hassan
Dahir Aweis from the Habr Gedir were appointed deputies. In addition to
being a relatively representative group of the leading sub-clans of the Hawiye
in contemporary Mogadishu, it is significant to note that the Joint Courts
administration includes representatives of different Somali Islamic movements.
While Aweis is from the militant Al Itihad group that seeks to establish a
theocratic state in Somalia, Sheikh Sharif is associated with an antifundamentalist,
Sufist group known as Ahlu Sunna wal Jama’a.To settle disputes
of religious interpretation between them, the Joint Courts administration is to
be overseen by a shura or ‘consultative group’ consisting of 63 different Somali
religious leaders, as well as clan elders and businessmen who contribute to the
court, drawn from various clans and Islamic movements.
By May 2004, when five shari’a courts had been re-established in Mogadishu,
the decision was taken to pool a proportion of the courts’ militias within the
Joint Courts administration.According to interviews, each court contributed
80 militia to create a 400-strong militia for the Joint Courts. Meanwhile, each
court determined to retain direct command over an additional 40 militia
within their own system as a reserve. In addition, each court agreed to
contribute between 3 and 5 ‘technical’ battlewagons, giving the Joint Courts
an initial security force of 19 technicals. Since that time, the number of shari’a
courts in Mogadishu has continued to grow.At present, 11 different courts
exist across the city (see Table 1).
77 UN-IRIN,‘Somalia: Dealing with
the Islamic courts’, 22 June 2001.
47
Table 1: Shari’a courts in Mogadishu
No. Name of court Clan basis
1 Harariyale Hawiye:Murosade, primarily the Septi sub-clan
2 Ifkaxalan Hawiye:Habr Gedir:Ayr, primarily the Ayanle sub-clan
3 Huruwa Hawiye:Habr Gedir:Ayr primarily the Absiye sub-clan
4 Suuq Xoolaha Hawiye:Habr Gedir:Ayr
5 Circolo Hawiye:Habr Gedir:Suleiman
6 Dabaqayn Hawiye:Habr Gedir:Duduble
7 Towfiq Hawiye:Abgal:Waescle
8 Karan Hawiye:Abgal:Wacbudan, primarily the Daud sub-clan
9 Medina Hawiye:Abgal:Wacbudan, primarily the Daud sub-clan
10 Sisii Hawiye:Abgal:Harti, primarily the Agonyar sub-clan
11 Polytechnic Bantu:Jareer
While these courts certainly do not contain all of the various clans present
in Mogadishu, the courts do represent a significant number of the city’s most
powerful clans.And, a court can take actions against militia from other clans
with the support of their elders. For instance, in one high-profile case over
the past year, elders from the Habr Gedir:Saad sub-clan reached an
agreement with the Harariyale and Ifkaxalan courts for shari’a security forces
to remove a group of Saad militia from a prominent checkpoint in south
Mogadishu.The elders disapproved of the banditry and violence committed
by their clan’s militia, and were no longer willing to continue paying diya for
their actions against other clans. Interestingly, once the shari’a courts’ action
was successful, the Saad and the courts took over the management of the
checkpoint, and are said to be using the profits generated to fund the
creation of new shari’a courts in Somalia’s central regions, from where all of
the concerned clans originally hail.
The revival of the courts in Mogadishu has prompted communities and
militia-factions in other parts of the country, particularly in Kismayo and
Belet Weyne, to try to establish their own courts as a measure to increase
local security. Local political disputes, however, have kept these new courts
from becoming operational. In Kismayo, for instance, although over 100
militia have been drafted into the city’s shari’a court militia, external security
threats against the Juba Valley Alliance (JVA), and internal clan-based disputes
over revenue-sharing of proceeds from the seaport, have both created
problems that are too large for the shari’a court to handle. If the court is to
become effective, these problems will need to be resolved in advance.
However, not all Mogadishu residents support the courts. Foremost, a
significant number of Mogadishu’s clan-based militia-faction leaders –
particularly those that are members of the new TFG administration, and have
been cooperating with US-led counter-terrorism efforts in the Horn of Africa
– reject the courts as a vehicle for Islamic extremists such as Al Itihad to take
power in Somalia. Indeed, members of the Joint Courts administration such
as Hassan Dahir Aweis have publicly stated that they would physically resist
any foreign peacekeeping forces sent to assist implementation of a new
government agreed at the Somalia National Reconciliation Conference.
Alternatively, more moderate members of the Joint Courts are expecting to
negotiate with the new government to provide security services in exchange
for appointments to control the judiciary branch.
Further, not even all of Somalia’s Islamic movements support the courts. In
particular, they are rejected by the reformist Al Islah group.78 According to its
Secretary General, Dr Ibrahim Dusuqi, Al Islah objects to the current practice
of the courts and is not a member of the Joint Courts administration.Their
rejection stems from the courts’ reliance on the personal judgments of poorly
educated sheikhs. By contrast, Dr Dusuqi states that Al Islah would promote a
simlar fiqh or ‘jurisprudence’ as has been adopted in Kuwait.To his reasoning,
this places a strong emphasis on ijtihad or ‘interpretation’ – particularly the
Prophet’s saying,‘You know better your worldly life.’ However, this is likely to
be rejected by both traditionalists and fundamentalists within the existing
courts.
78 For further information on Al
Islah and other Islamist
movements in Somalia, see Andre
Le Sage,‘Somalia and the War on
Terrorism: Political Islamic Movements
and US Counter-Terrorism Efforts’,
PhD Dissertation, Faculty of
Social and Political Sciences,
Cambridge University, 2004.
48
49
In addition to the formal judiciary systems, traditional clan xeer and shari’a
courts described above, a number of other initiatives have evolved in Somalia
to promote justice, security and the rule of law.While these initiatives are
often temporary and aspirational, and break down when armed conflict
erupts, they are instructive in understanding the similarities of Somali efforts
to restore justice across different regions.
6.1 Warlord administrations
In general, Somalia’s militia-faction leaders are not usually involved in justice
matters, which remain left to clan elders in their area. However, when elders
are unable to address a problem – possibly because it involves an uncontrolled
militiaman who rejects the clan’s authority, or a case directly bears on the
interests of the faction – a militia-faction leader may get involved. In such
cases, the militia-faction leader usually dispenses justice personally through
their militia – but only when a local person can get access to the warlord
(usually when a clan elder intercedes to represent the complainant), and when
dealing with the problem will make the warlord look good and not cause him
too many problems.
More rarely, some militia-factions controlled enough contiguous territory to
endeavour to establish formal judicial administrations along the lines of Puntland
and Somaliland.Two examples include the administrative structures created by
the Rahanweyn Resistance Army (RRA) in Bay and Bakol regions from 1999
until fighting broke out within the RRA ranks in 2002, and the Lower Shabelle
Administration proclaimed by its ‘governor’,Yusuf Inda Adde, since 2003. In both
cases, the systems adopted have been modifications of the post-independence
judicial structures, including courts of first instance applying secular laws for penal
and commercial cases, and shari’a law for private civil matters.These courts are
overseen by an appellate court reporting directly to the militia-faction’s executive.
However, no matter the extent to which these institutions and procedures were
used to address straightforward family, business and penal cases, ultimate judicial
authority – particularly for important cases with a bearing on factional politics –
has remained personally vested in the militia-faction’s leadership.
6.2 ‘Vigilante groups’ or madani
Second, a small but growing number of community-based ‘vigilante groups’ or
madani have been created to prevent crime in residential neighbourhoods of
Mogadishu.They operate by arresting local criminals, responding to local distress
calls, and chasing away roaming militia that come from other clans and
neighbourhoods. Madani are not a totally new phenomenon.The existing
groups date back to the weakening of militia-faction control in Mogadishu
Other Justice, Legal and
Security Initiatives
6
around 1998, when madani were first created in the Black Sea area and Hared
Hospital area of Mogadishu. Originally, they were organised by local
businessmen.However, the majority of madani were created in mid-2003, as the
result of a media campaign by local civil society organisations.According to their
local supporters, over 50 such groups now exist in Mogadishu; although
independent sources put the number of functioning madani at approximately 10.
They differ substantially in organisation and effectiveness. For instance, the
establishment of the madani in Hawataqo was a community-driven initiative
based on xeer, wherein local residents committed themselves to joint defence,
raised local money and hired an independent militia. By contrast, in Shibis
area, a local militia leader established a madani by soliciting funds directly from
the diaspora.Another example is the madani near the former Bank of Somalia,
where a group of former professionals and ex-civil-servants police their
neighbourhood streets personally. Overall, it appears that the higher the level
of community mobilisation and self-financing, the higher degree of success
that a madani will have. None are able to operate where a militia-faction leader
exercises direct control.
According to their promoters, each madani is supposed to be based on a
‘neighbourhood unit’ of 300 households. (This is certainly the ideal, and not
always realised in practice.) Each household is expected to pay SSh1,000 per
day (approximately US$0.10) or SSh30,000 per month (approximately US$3)
to the ‘vigilante group’ scheme.The money is used to employ 90 militia to
guard the ‘neighbourhood unit’ – including 60 militia for daytime duty, and 30
militia for nighttime duty.The resulting monthly salary for a militia member is
SSh100,000. However, the militia are paid on a daily basis to ensure their
continued motivation.
If a criminal is caught by the militia, he is put into a small cell that the madani
has built on the side of a main road. By publicly exposing the prisoner on the
main road, the madani is hoping to shame him, his family and his clan, and
force them to control the prisoner’s behavior in the future. After a first
offence, a prisoner is released free of charge in the custody of his family
members and clan elders. If nobody comes to claim the prisoner, he is taken
by the madani to a shari’a court for longer-term imprisonment. If the prisoner
is released to his family but commits a second crime, then he is immediately
taken to the shari’a court for longer-term imprisonment.At the moment, the
scheme is suffering for lack of funds required to pay the courts to hold a
growing number of longer-term prisoners.
6.3 Private arbitration
Third, the private sector is attempting to play an increased role in Somali
justice matters. In some important legal disputes, factions, communities or
businesses will hire former government judges and lawyers to establish an
arbitration committee to reach a decision based on a pre-agreed combination
of state law, clan xeer, and/or shari’a. Shari’a is often a preferred modality to
solve business disputes for two reasons. First, its jurisdiction is unquestionable
by Somalis. Second, unlike traditional clan law, it explicitly recognises private
property.That said, in most arbitration cases, it is common for the parties to
50
the dispute to bring forward clan elders or other businessmen to act as
guarantors who promise to abide by and assist in implementing the arbiters’
decisions.Arbitration is not confined to Mogadishu, but takes place even in
those parts of Somalia with formal administrations. For instance, in
Somaliland, a judge named Sheikh Dirir has created a private arbitration
tribunal in Hargeisa that uses shari’a law to settle civil disputes, primarily
business-related. His services are in demand due to fears of local businessmen
that the formal Somaliland justice system is open to corrupt influences.
6.4 Lawyers’ associations
In Mogadishu, the Somalia Lawyers Association continues to exist under
Chairman Abdullai Moalim.Admission requirements are strict – a candidate
must have qualified for a law degree, spent two years as an assistant doing
training with an established lawyer, and received a certificate after a high court
exam.Thus, in the absence of a Somali government, no new lawyers have been
admitted to the association since 1990.A short-term effort to revive the
association took place after the Arta peace conference.Now, approximately 30
remaining lawyers (all older men now) show up to association meetings.
However, they admit that its primary function is that of a social club.Advisory
opinions are given to participants at international peace conferences on a
private, voluntary basis. Private lawyers sometimes get limited work – drawing
up contracts for private companies, doing arbitration for land/commercial
disputes.They do not, however, attend the shari’a courts since the courts do
not accept representation by secular professionals.
The Somaliland Lawyers Association, which was created in 2002, is more
active and is attempting to become the legally recognised professional
association to set standards for the Somaliland administration.At present, the
association provides limited training for lawyers, and legal aid services to the
poor.The association has approximately 40 members, 17 of whom have
degrees in law. Others have on-the-job experience or some formal training in
shari’a. Only two members are women but, according to the association’s
chairman, only three lawyers in Somaliland are not members.
6.5 Civil society and international support
Finally, there are a number of important Somali civil society initiatives that are
seeking to establish a more functional justice system.79 The formal judicial
education provided by Mogadishu University and others was already identified
above. In addition, Somali NGOs are also working in increasingly novel ways
with funds and advice provided by the international community. One of their
greatest challenges is to break free of the technocratic mindset – one that
depends almost solely on getting the institutional structures correct and
providing training and technical resources to professionals – that has
dominated ‘rule of law’ aid programming for decades.As stated by one senior
UN official interviewed for this paper,‘The institutional and structural focus
of rule of law programmes must be to get at the heart of the justice issue.We
should be working on social, cultural and political levels to overcome clanism,
corruption and factionalism.’
79 This section is intended as an
overview of some of the more
innovative Somali civil society
activities and the support given by
the international community to
their efforts. It is by no means a
comprehensive review.
51
In Somaliland specifically, the UNDP Rule of Law and Security (ROLS)
programme is: providing substantive training on subjects such as legal analysis,
trial practice and evidence standards to judges, lawyers, prosecutors, court
personnel and custodial corps; giving financial support to the Law Review
Committee in its ongoing efforts to harmonise the secular legal code;
providing legal training and developing legal clinics at the University of
Hargeisa Faculty of Law; supporting the Somaliland Lawyers Association; and
providing funding to other international NGO efforts in the justice sector.
NOVIB has begun supporting local human rights NGOs to document human
rights abuses, including country-wide training on investigation, report writing,
lobbying and the creation of an incident archive.The first report was
completed and distributed in Summer 2004, and consideration is being given
to the establishment of an NGO-based National Human Rights Commission.
It is anticipated that this commission could develop a supportive role towards
any new government created at the Somali peace talks, and help promote both
progressive legislation and public legal education and human rights awareness.
However, the most innovative projects in this sector to date are probably those
of the Danish Refugee Council (DRC) which has, since mid-2003, begun
implementing justice system reform efforts in Somaliland’s Togdheer region.
With only limited funds, the DRC began a series of ‘dialogues’ with over 100
elders and community leaders from five different clans living in the region.
Their discussions focused on aspects of traditional clan xeer that were
perceived as ineffective in conflict management and contradictory to basic
concepts of justice and fairness, as enshrined in both shari’a and international
human rights standards. Community interests expressed during the dialogue
included ensuring the protection of the accused, fair treatment of women,
orphans and minority groups, problems associated with diya-payment and
collective punishment, and property rights.
After a series of deliberations, the participants issued a declaration modifying the
local xeer, and travelled throughout the region to disseminate the new laws.The
declaration made particularly important changes to the xeer governing revenge
killing (anno) and forced marriages of a widow to her dead husband’s brother
(dumal).According to a monitoring study after five months, the region
experienced a 90 per cent reduction in murder cases.80 In two killing incidents
that did take place, the individual attackers were quickly prosecuted. It is hoped
that the meetings have started a sustainable dialogue between local elders that
will help in solving further problems.A local NGO called Haqsoor has also been
established to monitor and follow up on this initial progress. Opportunities exist
to work with the Togdheer police command to form a Community Policing
Initiative through which local elders will have a formalised relationship with the
police.The project has now started in eastern and southern areas of Hargeisa, as
well as Belet Weyne in south-central Somalia.
Both the Puntland Development Research Centre (PDRC) in Garowe, and
the Academy for Peace and Development (APD) in Hargeisa – with support
from the War-torn Societies Programme (WSP) and Diakonia – have held
workshops with local jurists, lawyers, elders and civil society representatives to
discuss how to respond to the weaknesses of the present justice systems in
80 Interview with DRC project
manager in Hargeisa.
52
Puntland and Somaliland, and mobilise various constituencies for action.The
work of PDRC, the outcomes of which are published in two volumes entitled
Pastoral Justice and Somali Customary Law, has gone the furthest by identifying
the main tenets of xeer, shari’a and secular Somali state law which are in
conflict with one another, and proposing a regional process to integrate the
laws into a single system.This strategy would go well beyond that of the DRC
in Togdheer region both on a geographical level and by addressing not only
xeer and international human rights standards, but also shari’a and secular law.
That Somalia’s various justice systems – both the formally structured judicial
systems and the informally applied xeer and shari’a – require review and
harmonisation is clear. Multiple, overlapping and often contradictory sources
of law have made determination of primacy and jurisdiction highly confusing
and contentious.This combines dangerously with the lack of formal training
of judges and lawyers, widespread public ignorance and distrust of the formal
judicial systems (particularly in rural areas), and efforts by some Islamic court
leaders to impose fundamentalist beliefs through shari’a.Amidst this confusion,
the choice of applicable law in any given case is largely driven by two factors:
first, where the self-interest of the stronger party to the dispute is served; and
second, how a decision that will preserve security and peaceful inter-clan
relations can be reached.These factors have limited the equality of all Somali
citizens before the law, as well as the degree of protection that the legal system
can offer on a personal basis, particularly when powerful clans, politicians or
businessmen exercise direct influence over how cases are decided.
The formation of the TFG provides a window of opportunity for the task of
harmonisation, as well as a legal context for it to take place. Somalis, donor
governments and international organisations should take advantage of the
political momentum and legal context for a full review of the legal system,
possibly using the elaboration of the TFG Charter into a fully fledged, new
constitution as a vehicle for doing so. Most Somalis agree that the current
practice of xeer needs to be reformed, particularly in those instances where it
contradicts shari’a, as well as in many cases where it contradicts international
human rights norms.At the same time, the process of harmonisation would
also be a means of increasing Somalis’ participation and raising their level of
ownership over their emerging government structures.As such, foreign
assistance for rule of law projects should be a key pillar of the post-peaceprocess
aid strategy to reconstruct Somalia.
The TFG will need to act quickly to establish legitimate legal channels and
principles to deal with immediate conflict resolution problems to forestall
renewed conflict. Matters of particular concern will be Somalia’s legacy of
human rights abuses, the settlement of land and property disputes, and
questions arising over the charter of the TFG, its relations with Somaliland and
with the international community. Rule of law programmes could target these
areas to ensure that transparent and equitable processes are established to
smooth the country’s political transition. In addition, it is quite certain that
53
7 Conclusions
54
Somaliland – and possibly other areas of Somalia – will not be part of the new
government for the foreseeable future. However, international assistance
through rule of law and other projects must be maintained in that area to
continue consolidating stable governing institutions there until a dialogue with
the TFG about options for national integration or secession can begin.
Harmonisation could also be an effective means of checking the rise of Islamic
extremism in Somalia. Despite being an almost entirely Muslim people,
Somalis remain reluctant to adopt the most severe forms of corporal
punishment enshrined in shari’a and are concerned that leaders of groups such
as Al Itihad are simply interested in personal power. If the Somali public –
through widespread community-based consultations – would adopt a
harmonised view of justice, the space for militant Islamists to assert their
authority to interpret the meaning of shari’a in a fundamentalist manner may
be foreclosed. Furthermore, Somalia’s mixed judicial history provides the
option to include elements of shari’a to apply to civil cases in lower courts that
will be erected by the TFG.This may provide the best means of tempting
moderates and traditionalists from the shari’a courts to join the TFG, and
undercut support for militants in their midst. Given that the shari’a courts are
invested with their authority by their relevant clans and sub-clans, powersharing
deals cut between the TFG and traditional religious elders will be an
equally important factor in this process.
However, Somalia should not seek to adopt one justice system to the
detriment of the others.The multiplicity of systems has afforded Somalis
options in responding to their predicament of state collapse, and each form of
justice has its own advantages.While state statutory law offers a discrete system
of rules and may better reflect international human rights standards, shari’a is
also a comprehensive justice system that Somalis commonly recognise as
legitimate.At the same time, customary xeer is the most far-reaching of the
Somali justice systems, particularly in rural areas that are commonly beyond
the reach of formal judicial systems, and is the most effectively enforced. In
addition, the different justice systems have over the past decade served to
maintain a modicum of peace and security in various parts of the country.
Efforts to force one system across all areas would undermine those systems
that function locally, and ‘rule of law’ assistance is likely to create more conflict
by undermining the structures that currently underpin local peace and
security arrangements.
In short, efforts towards harmonisation should not be undertaken lightly.
Questions of constructing a single, coherent justice system in Somalia involve
technical considerations and inputs, but are essentially political ones. In
particular, they raise questions of the nature and role of the state, Somalis’
expectations and fears of any new government that is created – a highly
sensitive subject in Somalia given its long history of the abuse of power against
specific groups and citizens. Flaunting of state law and modifications of state
legal decisions through the continued application of Somali customary law has
been a means of resistance to state authorities. Rather than being a benign
technical process of drafting a consolidated legal code, it would be a major
project of social and political engineering. Harmonisation of xeer, shari’a and
secular laws would involve highly sensitive political choices regarding the
primacy of Islamic and Western values. Harmonisation would also force or
require a number of major socio-economic changes for Somalia, including
‘economic transformation of the pastoral system; decentralisation of the
political and administrative powers of the government; a strong capacity to
enforce the law; an education system that reaches all sections of society; and a
reduction in the power of the clan as a political entity with strong traditional
roots.’81 Additionally, a harmonisation effort would risk provoking tensions if
different groups perceive the outcomes as creating winners and losers, or if
harmonisation is seen to weaken the authority of the new administration.
It should be recalled that efforts to harmonise Somalia’s various justice systems
have been attempted before, and failed. Determining how similar efforts can
succeed today will be important.The problems affecting previous attempts
were two-fold. First, the harmonisation efforts of the first post-colonial Somali
governments were interrupted by political turmoil, particularly the coup that
brought President Siad Barre to power. Second, earlier harmonisation
processes were driven by governmental decision-making alone, with little
public involvement.The result was a set of laws that had to be imposed on
Somali society from above, without respect for the continued application of
informal justice systems that Somalis actually trusted and utilised.
The risk that a harmonised justice system will fail to take root in Somali society
cannot be so easily addressed by technical and intellectual inputs to Somali
political authorities. It must be recalled that, after more than a decade of conflict,
Somalis place a high premium on the re-establishment of security over more
elaborate concerns of justice.As such, it will be important for Somalis
themselves to have ownership of the process of merging the various justice
systems into a coherent whole that practically assists ordinary people in solving
actual problems, and receives widespread public acceptance.To do so will require
further efforts to include Somalis in an open dialogue about how harmonisation
should take place, and to ensure that efforts to promote justice are not simply a
matter left to a professional and governmental elite. In short, while judicial
reform, drafting of new laws and institutional capacity building will require
using a ‘top-down’ approach, grounding the new judicial system in the dynamic
needs of Somali society will require a simultaneous ‘bottom-up’ approach.
Increased international engagement to promote the rule of law in Somalia
today will need to confront these potentials and risks. Based on the analysis
presented above, a comprehensive international rule of law programme that
could support this transformation would contain at least six elements.
1 International assistance efforts should be grounded in a broad-based
dialogue to reach a consensus between Somali political leaders and the
Somali public on the need for harmonisation of Somalia’s formal and
informal legal codes, including previous state laws, clan xeer and shari’a, in
accord with basic international human rights standards, and support to
the drafting of new legislation.
2 Once a sufficient consensus is reached through dialogue (which will of
necessity be time consuming, and should not be rushed), it will be
necessary to support the structural reform of Somalia’s justice system in
81 PDRC, Somali Customary Law (see
Note 39 above), p. 161
55
accord with the harmonised legal code, including the creation of a
Judicial Council, state and non-state monitoring mechanisms, and an
independent financial regime.
3 From a ‘top-down’ perspective, it will be essential to build the capacity of
Somalia’s judicial system with training and equipment, including judicial
institutions, public servants, legal professionals, private-sector bar
associations and legal education institutions.
4 From a ‘bottom-up’ perspective, legal empowerment of the Somali public
is also required, including legal clinics, legal aid, translation and
dissemination of laws and judicial procedures, and coordination with
community-based justice initiatives (e.g.‘vigilante group’ community
watch groups and local human rights NGOs).
5 The establishment of a stable political environment for justice to evolve
should be promoted with the establishment of a plan of action to address
priority transitional justice issues that will arise after the conclusion of
the Somalia National Reconciliation Conference, including:
• means of addressing past human rights abuses
• settlement of land and property disputes
• interpretation of the charter
• legal basis for addressing national security issues.
6 Finally, to the extent that the above recommendations mark a break with
past rule of law programming in Somalia and an increased commitment
by UN agencies, donors and NGOs, it will be necessary to devote further
efforts to mobilise the international community, either through the
Somalia Aid Coordination Body or a post-peace-process Peacebuilding
Task Force, to provide the requisite political and financial support.
The six points above are best viewed as a package, and not as a menu of
options.The successful conclusion of the Somalia National Reconciliation
Conference and creation of the TFG makes possible their full implementation.
Most Somalis agree that it is necessary for one set of laws to become
predominant before it is possible to rationalise other laws around it. In this
regard, while a small minority of Somalis actively promote gradual change in
the rules of xeer, the vast majority have been content to wait for the formation
of a new Somali government to undertake that process on their behalf.Over
the short term, the TFG’s accession to the statutory laws of the previous
governments appears to be the most agreeable starting point for the reestablishment
of a basic rule of law and security.These laws are generally seen
as problematic, but as forming a legitimate starting point.
If the TFG fails to establish itself as a functioning government and Somalia
remains stateless, most of these six recommendations could still be
implemented anywhere in the country that stable regional administrations
exist or where security is adequate for the protection of international and
local aid workers. However, political divides and persistent insecurity in
southern Somalia may make overall application of the six points impossible or
impractical. In this case, it may be necessary to select only those points that are
56
feasible. It would be essential to ensure that all interventions lead as coherently
as possible towards a harmonised legal system and the creation of a legitimate
platform for consensus and decision-making that can assist any new
government that is created in the future.
To a large extent, the existing interventions of the international community
are already working in the direction of the six points listed above.However,
that response still suffers from a number of severe shortcomings that will
prevent the assistance to Somali political authorities and civil society groups
from achieving an aggregate impact on Somali access to justice. First, although
one project may currently address harmonisation, another project may address
legal empowerment and a further project may address capacity building, few
of these projects are being done together with a single group of Somalis, in a
single location. Improved coordination between various UN and NGO
initiatives – a constant and familiar source of tension in development work –
could make a serious difference in this respect.
Second, none of these various justice projects are being implemented on the
scale that is required. UNDP’s interventions, for instance, are confined almost
exclusively to Somaliland, and have yet to begin meaningful implementation
of justice programmes even in Puntland. By contrast, the DRC projects
continue to focus on one or two regions at a time.Although this allows the
NGO to build strong community relations, it will take over five years at this
pace to make an aggregate impact on the justice situation in all of Somalia’s 18
regions.The level of international investment in justice reform and justice
promotion will need to be increased significantly if the small gains made by
individual projects are not to be overwhelmed by ongoing political change.
Third, the international community will need to make a major investment in
establishing the capacities of the TFG to manage a formal judicial system. In
addition to training and infrastructure rehabilitation, specific efforts need to be
dedicated to strengthening the judiciary’s capacity to exercise its
independence, as defined in the TFG Charter, from the executive branch.This
will include ensuring adequate investment in human resources and guaranteed
access to funding sources that do not require subordination to the president or
politically motivated ministers. Parliamentarians at both the central and
regional levels should be considered important partners in integrating and
rationalising Somalia’s various justice systems within a single legal code.They
can play a particularly important role in reviewing existing legislation,
repealing inappropriate laws, promulgating new laws, raising public legal
awareness, and working politically to ensure the independence of the judiciary.
In this regard, the international community should ensure that legal training is
offered to the TFG MPs generally, but should also focus particular assistance
on the establishment of a functioning parliamentary judicial committee.
Finally, it is imperative to note the lack of political engagement by the
international community to support development efforts in the justice sector.
Where they exist in Somalia, formal judiciary systems often lack significant
independence from political decision-making processes, and are affected by
problems of corruption.Where no administrations exist, militia-faction leaders
are held to almost no standard at all, and the international community has
57
wilfully ignored the continuing rise of the country’s shari’a courts. In short, no
political pressure has been forthcoming from international diplomats – either at
the Somalia National Reconciliation Conference or during their field missions
to Somalia – to pressure Somali political leaders to remain accountable to global
standards of justice.While justice reform may indeed be a matter that is best left
to Somalis themselves, those Somali professionals, religious leaders and
community activists attempting to accelerate change require more significant
support in the face of obstruction from self-interested warlords and other
militants.
58
Bibliography: Key
Texts on Justice
Systems in Somalia
Mohamed Mohamed Abdi, Researches sur une Societe Riche d’une Structure
Complexe: La Societe Somalie,Volume 2. Universite de Franche-Comte, 1998.
Puntland Development Research Centre, Pastoral Justice:A Participatory Action
Research Project on Harmonization of Somali Legal Traditions. Garowe:PDRC,
2002.
Puntland Development Research Centre, Somali Customary Law and Traditional
Economy: Cross Sectional, Pastoral, Frankincense, and Marine Norms. Garowe:
PDRC, 2003.
Academy for Peace and Development,‘The Judicial System in Somaliland’,
Workshop Report. Hargeisa,April 2002.
Yohannes Kassahun,‘The Courts: Problems, Prospects and Role in Somalia’s
Emerging Regions’. Nairobi: European Commission Somalia Unit, March 1997.
Alessandro Campo and Hagi Ahmed Tahlil,‘The Judicial System of Puntland:A
Preliminary Assessment’. Nairobi: UN Development Office for Somalia,
February 2002.
Alessandro Campo and Federico Battera,‘The Judiciary System in Somaliland:A
Preliminary Paper’. Nairobi: UN Development Office for Somalia, July 1999.
Richard Sannerholm,‘Legal and Judicial Reform in Puntland State of Somalia:
Alternative Approaches for Legal Restructuring’. Orebro University, Spring 2003.
International Committee of the Red Cross, Spared from the Spear:Traditional
Somali Behaviour in Warfare. Nairobi: ICRC Somalia Delegation, February
1997.
Martin R. Ganzglass,‘The Restoration of the Somali Justice System’, in
Learning from Somalia: the Lessons of Armed Humanitarian Intervention,Walter
Clarke and Jeffery Herbst (eds). Boulder:Westview Press, 1997.
59