Multiple, overlapping and contradictory sources of law create confusing and contentious dispensation of justice in Somalia. This paper, published by the Centre for Humanitarian Dialogue, assesses how formal and informal justice systems function in the country’s ‘stateless’ society. Harmonisation of these systems should include public dialogue and confidence building, capacity building, establishment of a stable political environment and a major increase in international technical assistance and funding.
Somalia has four justice systems: formal central/regional administrations, the informal clan system (xeer), Islamic shari’a courts, and civil society and militia initiatives. These different systems create confusion over jurisdiction that often becomes contentious. Lack of judicial training, public distrust of formal systems and Islamic efforts to impose fundamentalist beliefs contribute to the current confusion and uneven delivery of justice.
Somalia has had no functioning government since 1991. Armed factions and regional administrations control different portions of the country; clan elders and their militia often wield unchecked authority. One of the challenges of the Transitional Federal Government (TFG) established in 2004 is re-establishment of the rule of law and reconstruction of Somalia’s judicial infrastructure.
The TFG faces the following challenges in its efforts to harmonise these formal and informal justice systems:
- the clan-based xeer system needs to be reformed, particularly where it contradicts shari’a and international human rights norms;
- Somali citizens do not currently participate in public dialogue about their government’s structures and do not own the process of determining their justice mechanisms;
- stable conflict resolution mechanisms to forestall renewed conflict are non-existent;
- Somalia has a legacy of human rights abuses; land and property disputes have been generally resolved by conflict;
- while almost entirely Muslim, Somalis are reluctant to adopt extremist forms of justice. However, there has been a recent rise in Islamic extremism in the country; and
- harmonisation of current legal systems may raise Somali fears of any new, potentially abusive government structures. Past harmonisation efforts have failed because they were driven by government decision making alone and lacked public involvement.
While the international community is currently providing assistance, their various justice projects are not being implemented on the scale required; the international community needs to increase its commitment and funding. Future justice system harmonisation should also address the following:
- development of consensus between political leaders and the public on systems coordination and adherence to international human rights standards;
- creation of a harmonised legal code, judicial council, monitoring mechanisms and independent financing;
- top-to-bottom system capacity building;
- legal empowerment of citizens through clinics, aid and translation and dissemination of laws and procedures; and
- establishment of a stable political environment.
