Somalilandsun: In Somaliland, statutory, religious, and customary justice co-exists, collaborates to an extent, and is intertwined.
This is per an Access to Justice Assessment Tool: Somaliland Baseline Study conducted by the EAJ to measure the performance of EAJ interventions; and to inform EAJ Program design and activities.
Statutory law – that is, government legislation and associated institutions – are the most recent and the most foreign addition to Somaliland, introduced by British colonial powers, somewhat developed by the subsequent military government in Mogadishu, largely eviscerated during its collapse, and in the process of reconstruction ever since.
The shari’ah in its Shafi’i interpretation is part and parcel of Islam as a central cultural pillar of Somaliland’s society. It forms the basis of constitutional law and is the most legitimate, but also the most expensive justice provider. Customary law (xeer) is the most used, the most dynamic, the most easily accessible, but also the most rights-abrogating justice pathway, because it is geared towards the avoidance of communal conflict and the conservation of a patriarchal society, presided over by clan elders, instead of promoting individual rights norms.
The institutional preferences of justice users derive from uneven and largely limited knowledge of the legal frameworks, forum shopping for the most promising outcomes, evaluation of likely official and –mostly in the cases of statutory courts, but sometimes also for elders – unofficial costs by a poverty-stricken society, and personal ties to individual justice practitioners. The moral authority, simplicity, and integrity of shari’ah courts – better understood as Islamic Arbitration Centres – renders them the preferred justice pathways for those who can afford and reach them, but these limitations keep their caseloads light. Religious scholars and judges, the ulama, are increasingly incorporated into the justice system as practitioners registered by the Ministry of Justice, but the active interference of the Ministry of Religious Affairs renders them not the only interpreters of shari’ah who influence the practice of justice.
The justice landscape in Somaliland still lacks infrastructure. This includes both physical infrastructure that courts require for their work and for courts to be more widespread in their reach and accessibility to the rural populace and the justice personnel. Lawyers provide the main avenue for advice and representation in statutory settings but remain largely confined to Hargeisa. As more and more universities operate and produce trained jurists, this begins to change, but that change is gradual and slow.
These impasses ensure that elders remain the primary justice provides, because every community forms sub-sections of clans with their respective elders, who are thus accessible to most and whose services come free of charge.
The justice landscape in Somaliland also lacks oversight and accountability. Influential or well-connected individuals are able to influence justice processes at all nodes up until and including enforcement, from which these individuals can often escape. This calls into question the impartiality and independence of both court officials and law enforcement, and, as many respondents to this study considered adequate compensation of ulama a major contributing factor to their integrity, also highlights the need for well-resourced and internally accountable state oversight. The same applies to universities.
Despite training more and more lawyers, this study’s findings indicated that no consistent curriculum is in operation and examinations are not yet standardized. Statutory courts are perceived as the most unpredictable institutions and most likely to be unfair.
Streamlined training, accessible information in emerging libraries in Borama and Hargeisa, but also beyond these current hubs of higher education, and effective oversight will be needed to tackle these shortcomings.
Until then, elders originally tasked with the de-escalation of conflicts and community leadership will remain prominent justice providers. In many cases, respondents spoke of elders wresting cases from courts to ensure that the patriarchal norms they safeguard be observed. This affects SGBV survivors in particular and in the most detrimental fashion to their personal integrity. Any reform in justice infrastructure must therefore also account for the normative underpinnings of the society in which it operates.
The study centres on the six core elements of the American Bar Association’s Access to Justice Assessment Tool (AJAT): Legal Framework, Legal Knowledge, Advice & Representation, and Access to Justice, Fair Procedure, and Enforcement. Employing a robust mixed-methods approach, data was collected in Maroodijeex, Awdal, Togdheer and Sool. Given other existing research on conflict resolution and justice provision in Somalia, this study focused especially on land disputes and sexual and gender-based violence, as these two currently sit uneasy in Somaliland’s justice landscape.
RECOMMENDATIONS & UPTAKE
- Support justice user’s access to justice via advice and representation, e.g. through legal aid clinics.
Explore integrated pathways to justice for SGBV survivors in a survivor-centric approach.
Work with the Ministry of Justice and local universities to ensure coherent oversight. And
Work with the Ministry of Justice towards effective land administration and participation.
Read full details AJAT Somaliland Baseline Study Report HERE