Issue No. 687

Pluralism at work: 'Justice' in Somalia

While Somalia's Provisional Constitution currently outlines a three-tiered judicial system -- a Constitutional Court, a federal and a state-level court -- this framework remains largely unimplemented. Instead, the current 'pluralist' justice system is a patchwork of three main sources of law— statutory, Sharia, and customary law, known as 'Xeer.' Of these, Xeer law is the most prominent, developed over centuries of oral tradition to semi-regulate internal clan dynamics and inter-clan relationships.

Government courts are scarce, often dealing with years-long backlogs, public perceptions of bias and non-binding rulings. Endemic corruption, fragmentation within the system, and judicial inability to enforce rulings render the formal system largely ineffective in delivering justice. In this void, military courts sometimes fill the gap, but their prosecutions, including prosecuting errant officers, are inconsistent at best. And many criminals in the military courts avoid due process because of their clan affiliations. The US State Department's 2023 annual report on human rights practices in Somalia reported that while some officials were prosecuted for human rights violations, "impunity generally remained the norm." Additionally, there is significant variation in how different systems and legislation are applied both within and between the Federal Member States.

Conversely, Xeer has long been central to Somali identity and continues to be used nationwide, handling issues from petty crime to family disputes to murder charges. Dependent on consensus, all parties must follow the final agreement, typically negotiated by clan elders. While these negotiations are often used to resolve possible inter-clan conflicts peacefully, Xeer's emphasis on consensus and preventing retaliatory bloodshed still comes at a cost. In relation to murder, clan elders typically wield financial reparations, known as 'diya' in Islamic jurisprudence, as 'blood money' to settle inter-clan disputes. While this can help prevent further violence, it can also grant murderers impunity, as the negotiated settlement process is seen as a form of social rehabilitation for the perpetrator. This method of adjudication is often preferred by the more influential clans, as compromise leans in their favour. For weaker clans and the victims and their families, the pressure to settle for peace frequently comes at the expense of justice.

Many Somalis also harbour deep suspicions about the federal and regional courts' efficiency, as well as their ability to enforce rulings. As a result, many turn to Al-Shabaab's 'shadow court' system, which combines elements of Xeer and Sharia to handle land disputes, resource competition, and even inter-clan conflict. Indeed, in much of southern Somalia, Al-Shabaab courts are the primary dispenser of 'justice' and are widely regarded as less corrupt than their state counterparts. This is particularly true for those from Somalia's ethnic minorities and minority clans, who may be apprehensive about likely discrimination by government-appointed judges and so are enticed by supposed Al-Shabaab impartiality. Al-Shabaab's speedy court sentences typically range from a few lashes for adultery to the death penalty for more serious offences. These courts are underpinned by the promise of violence meted out to those who disregard its rulings.

During the early months of the offensive against Al-Shabaab from mid-2022 onward, amidst promises of 'total war' against the extremist group, the federal government vowed to close all Al-Shabaab courts within two years. This period has all but elapsed. Rather than Al-Shabaab's courts weakening in influence, they arguably remain more influential than the federal justice system. As the horrific murder of Lul Abdiaziz has highlighted, the general acceptance of government courts remains limited, even in such extreme circumstances. It remains a tall order to try and shutter the shadow courts and diminish the influence of Xeer, but the continued politicisation of the judiciary and courts is dashing any chances of a state system gaining traction across the country.

By the Somali Wire Team