Challenges and Chances in the Somali Legal System

René Brosius

This chapter examines how and why peace has remained elusive in the Somali crisis following the events that marked the collapse of Siad Barre’s regime in 1991. Although several studies have been undertaken on this case, and a number of recommendations suggested, limited attention has been placed on the transformation of the conflict and the need to modify some of the peacebuilding strategies to cope with the changes. This study discusses how the conflict in Somalia has evolved, weaknesses in the previous peace efforts, and provides recommendations. It looks at the traditional Xeer practices in Somalia and its relevance in solving contemporary conflict.

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This report deals with the conditions and challenges for transitional justice in Somalia. It is based on a thorough lietrature research and the collection of primary (interview) data in Mogadishu, Kismayo, Baidoa, Galkayo, and Garowe. The analysis provides insights into the parameters and scope for TJ programming in Somalia and highlights the contradictions and challenges that any process will have to engage in

The prime objectives of this study are to examine the rule of law and attitudes of Somalis towards its application, as well as the challenges related to its adoption. The study gathered data via a self-administered internet, Somalia National Development Plan 2020 to 2024 and the Somali federal provisional constitution. According to the findings, there is a poor application of rule of law, considering unawareness of the Somali leaders not respect the upholding of rule of law, and political corruption are the most challenging factors to the adoption of rule of law in Somalia. The independence judicial model of the country still not established and the judiciary service commission which has not been existent since 2014. Other challenges relate to the provisional Somali constitution, such as power distribution, separation of the three organs of the government. The paper concludes with a series of recommendations to overcome these challenges. The study seeks to contribute new ideas to the current discussion on rule of law in Somalia. The findings of this study will inform Somali policymakers, the Somali populace, the international community, and academia concerning the performance and the practical challenges of Somalia's of the good governances. Background of the study:

At the advent of the 19th century coincided with the awakening of Somalis political consciousness and the Euro-Christian imperialist partition of the larger Somalis hinterland into four portions distributed to; Britain, France, Italy and Ethiopia, the latter represents as the only then black imperialist. Being characterized as the most homogeneous society in Sub-Sahara Africa with the same language, same religion (Sunni Muslims) and adopted one cultural pattern, it didn’t allow them to hunt their colonial interest peacefully. Thus, in a short span, of less than a year the rise of the Dervishes state that carried out the most savagery resistance in the 19th defied all the imperialist misconstruction against Somalis on the authority of being smeared as disorganization and disorderly clannish society

At the advent of the 19 th century coincided with the awakening of Somalis political consciousness and the Euro-Christian imperialist partition of the larger Somalis hinterland into four portions distributed to; Britain, France, Italy and Ethiopia, the latter represents as the only then black imperialist. Being characterized as the most homogeneous society in Sub-Sahara Africa with the same language, same religion (Sunni Muslims) and adopted one cultural pattern, it didn't allow them to hunt their colonial interest peacefully. Thus, in a short span, of less than a year the rise of the Dervishes state that carried out the most savagery resistance in the 19 th defied all the imperialist misconstruction against Somalis on the authority of being smeared as disorganization and disorderly clannish society. Introduction The contemporary Somali historian and students of history could find it hard to believe that Somalis lived, generation after generation, century after century, without authentic political organization or strong traditional government institutions uniting all Somali tribes into one political order. Even though that being the case, there still some level of collective tradition laws for coordination to maintain inter and intra collective good and fair dispensation of justices. In essence, the only law of the land was their long kept traditional customs, virtues and values known as " Xeer institution ". In unlikely event a crime is/was committed, the injured party would ask the offending clan to administer " justice " by taking note from a similar incident in the past and thus a legal ruling would be executed judiciously. Although this system led very often than not denigrated as dreadful unkindness. In the past literatures little as it was focused, mainly when considering the anti-imperialist nationalist Sayyid Mohammad Abdulle Hassan and his Dervishes state of the 19 th century. The few interested authors end up orbiting around the freedom struggle particularly the Dervishes military expeditions against the British colonial administration in Northern Somalis land without necessarily giving attention to the bearing strength, passion and the intensity of his religious and organizational influence across Somalis that shaped puritanical thinking of their Islamic faith up to the present day. Therefore, this paper will reveal three salient features that help expedite the Dervish/Darwish state takeoff and environmental factors enhanced its achievements. Considerable emphasis are accorded in the other chapters of the main book, however in this chapter[paper] faint attention is given to his profuse Islamic knowledge he tussled to acquire during his teenage to adulthood through travelling different countries including Yemen, Makkah and Harar city state and the role it has played in wake of his Dervishes conscription process. The other aspect that will enjoy lesser degree attention among others his " charismatic and articulate " traits and how it had help him to attract large scale of followers for his freedom vision in a span of less than quarter of century without material incentives. Finally, the will talk of the introduction of Neo-Sufi sect, Saalihiyya as the as the Islamic knowledge wing of the Dervishes under the leadership

This paper studies various persuasions of Somali Islamists and their relations. In particular, Muslim Brotherhood, Saladin and Sufi orders.

This paper first examines the Somali cultural articulations of the concept of accountability. This includes findings on past and present language and perceptions of accountability in Somali culture, which may prove useful in nurturing a new understanding of accountability in Somalia. The paper then briefly summarises the post-colonial experience in Somalia in terms of the systems and institutions of accountability, how they functioned, and the key issues surrounding accountability. It also explores the genesis of the collapse of trust in public institutions that occurred when the state disintegrated after the outbreak of civil war. In addition, the paper explores how this collapse in trust led to a blurred notion of the separation between the private and public (state) realms, and the implications thereof. The paper also provides a brief overview of recent approaches to fostering accountability, including a brief account of the history of international agendas and efforts related to accountability in Somalia since the 2010 Madrid Conference. This is done in order to provide an understanding of the roles and impact of international aid on the culture of accountability in Somalia, together with the current “gatekeeper” phenomenon and corruption-security nexus. Finally, the paper provides a brief descriptive mapping of the landscape of accountability and corruption issues in Somalia, as well as the complex networks of interests and dynamics involved, in order to illustrate how the unique genealogy of accountability continues to influence the character and culture of accountability in Somalia.

DRAFT " We fight neither for glory nor for wealth nor honors; but only and alone we fight for freedom, which no good man surrenders but with his life. " ― Bernard De Linton in 1320 "

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This paper explores the political economy dynamics that have shaped the development of the justice system in the Federal Republic of Somalia. As a core function of the state, the current justice system reflects the divisions and tensions that have shaped politics in Somalia over the past two decades. Three sets of dynamics that have influenced the country’s political trajectory during that time have posed particular challenges to the delivery of justice: clan-based mobilization and conflict; ideological divisions between proponents of different versions of Islamic and secular law; and rent seeking in the context of a war economy. These dynamics have interacted over time to shape how elites have pursued power and exerted their authority, including through courts and other justice institutions. Although in recent decades these struggles have most often resulted in violent conflict and institutional collapse, at times, alignments of interests across the dimensions of clan, religious ideology, and economic interest have resulted in institutions that have provided some measure of stability, public order, and justice. Focusing on these dynamics in southern Somalia today, the paper shows how the current configuration of authority has undermined the development of credible justice institutions, yet also points to opportunities for building a more effective and legitimate justice sector. The paper concludes with implications for international engagement on the further development of justice institutions in Somalia.

Somalia is often described as ‘lawless’ or ‘the world’s most failed state’, a charac- terization that overlooks the way law and governance actually works in the absence of a capable central government. This article will explore the role of xeer law, or customary law, in regulating media, including both older media, such as poetry, and newer media, such as mobile phones, in Somalia’s complex legal environment. While Somalia remains one of the most dangerous regions of the world for journalists, dozens of radio stations are broadcasting in South-Central Somalia and there is a competitive newspaper industry in Somaliland. In addition, the telecoms industry is booming with some of the best connections and lowest rates on the continent for the internet and mobile phones. Various authorities govern media and resolve conflicts across the Somali territories. To understand media ‘law’ in this region we must look beyond the formal state structures.

2016 2 | P a g e ACKNOWLEDGEMENT

This short essay provides the role played by Somaliland Guurti (upper House) in Somaliland state building.

Since 1991 up to 2002 several peace reconciliations between Somalia politician functions had failed to agree, due to clan mistrust based on power abuse of the previous centralized governments of Somalia, even though some parts of Somalia separately had established regional administrations that implemented functional authorities like Somaliland and Puntland after central government collapsed. The International community has played a great role the mediation to reconcile between Somalis to re-establish a functional government of Somalia, though the most attempts have failed including humanitarian intervention in 1992 lead by the United States of America, except the current federalism that adopted in Kenya; 2004. After so many attempts had failed, in 2002 Eldoret and Mbaghati peace reconciliation in Kenya, the international community, particularly IGAD countries have supported Somali political groups. Somalia civil society delegates and Somalia traditional elders had agreed to change the type of government system in Somalia by chosen from a unitary to the federal political system and adopted a transitional federal charter as a solution to Somalia disputes. The objective of this study is to investigate whether federalism may create Somalia people’s state ownership which would take part peacebuilding and state-building of Somalia. The research has addressed in qualitative data collection, and the detailed study designs In-depth interviews so as to explore for more details and a semi-structured interview. To unite accurate primary data of a study that conducted through the interviewees of Somalia government officer’s elders, students, intellectuals, and diaspora, who have knowledge to the subject. To find out what these groups are thinking about Somalia's peace building and governance structure. The study has largely depended on primary sources, as well as secondary sources. The thesis makes plainly obvious factors that initiated the adoption of federalism in Somalia, which enable the community political participation and the people’s state ownership, federalism may be a contribution to Somalia political stabilization, good governance, and democratization. But there are still challenges that may create negative aspects for federalism to be a solution for Somalia, due to lack of commitment of excellent leadership to the political stabilization in Somalia, because of selfishness and lack of political long term vision.

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This article is part of a larger research project on popular conceptions of transitional justice in Somalia and is based on a 2012 survey of 30 individuals currently living in Mogadishu who directly experienced or witnessed gross human rights violations after 1991. Their testimonies indicate that targeted and random murders, gang violence against civilians, and rape were the most commonly experienced violations. The article then presents a summary and analysis of opinions on the most acceptable" mechanisms for redressing past injustices. While the Somali clan culture of collective responsibility for crimes remains in existence, the research found that more than half of the respondents believe in individual responsibility for the crimes that have been committed. In terms of addressing past violations, our interviewees gave precedence to the role of traditional authorities over modern ones (national and international actors), and to some form of Shari'a legal redress over exclusive reliance on customary law (xeer) or international law. However, the most common popular conception of Shari'a is legalistic and focused on hudud punishments rather than on holistic Islamic approaches to justice. Our survey showed that modern understandings of transitional justice are limited among the general population and mostly confined to a small number of members of the educated elite in Somalia.

This report presents the findings of a research study funded by Amplify Change and implemented through a partnership between Progressio and a coalition of twelve Somaliland civil society organizations. The aim of the research is to deepen the understanding of gender-based violence (GBV) in Somaliland and the social norms that underpin this practice.

Since 1994, the Papua New Guinean non-governmental organization, People and Community Empowerment Foundation Melanesia, has delivered dispute resolution training aimed at strengthening customary justice systems in Bougainville. Research was conducted in 2010 to assess whether and to what extent such training has been successful in enhancing the legal empowerment of marginalized groups such as women. The research focused on six access to justice indicators: participation and satisfaction in dispute resolution; protection of legal rights; mitigation of power asymmetries; operation of neutrality and bias in decision-making; balance of individual and community rights; and the influence of women in dispute resolution decision-making. The research found that the training increased the participation and satisfaction of both men and women users of the dispute resolution system. However, by neglecting to address issues of substantive legal rights and power asymmetries, the intervention failed to enhance legal empowerment to the extent it might otherwise have done. Further, while the intervention improved the justice experience of women disputants in almost every area, it had a neutral effect on the satisfaction gap between men and women. The intervention was most successful where it transferred dispute resolution skills to women and created opportunities for them to become mediators. This enabled them to engage more effectively in internal dialogue processes and challenge the interpretation and application of discriminatory customary norms.

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Challenges and Chances in the Somali Legal System