Pluralism at work: 'Justice' in Somalia

Pluralism at work: 'Justice' in Somalia

The contested nature of Somalia's justice system has been thrown into stark relief in recent weeks following the sentencing of Sayid Ali Moalim to death for the murder of his wife, Lul Abdiaziz, in January 2024. Having brutally murdered his wife, Moalim initially fled Mogadishu to his village Adaley in the Mudug region to seek the protection of his clan. Mounting pressure from Somali parliamentarians and widespread public outcry, however, led to Moalim's eventual apprehension and return to prison in the capital. But clan divisions that have subsequently erupted following his sentencing encapsulate the country's fractured justice system. Following her murder, Abdiaziz's family vowed to delay her burial until Moalim was formally convicted of murder, despite pressure on her family to have the charges dropped in exchange for traditional blood money compensation. The perpetrator's family had pressed for the case to be resolved through Xeer, publicly denouncing the federal court verdict in March 2024.

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.

In cases of sexual violence, the perpetrator is often formally arrested by state security forces before clan representatives intervene in the legal process. While the government system rarely produces a survivor-centred trial that results in lengthy sentences for abuses, neither is Xeer a system that women and girls can rely on to serve their best interests. Xeer remains a system that is wielded for the benefit of the patriarchal clan system, not the individual survivors of sexual violence. When compensation is agreed on between clan elders, historically in camels or other goods, it is paid to the clan, not the survivor. Upon payment, the perpetrator is free from further punishment, while the woman or girl can be forced to marry her abuser.

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.

With justice so inconsistently applied, influential politicians and wealthy individuals can often easily bypass the formal judicial system and ignore rulings. Even some of the most notorious Al-Shabaab militants in recent years have been 'rehabilitated' without ever seeing a court. For example, in December 2015, Al-Shabaab leader Zakaria Ismaa'iil Ahmed surrendered to federal authorities in the Gedo region of Jubaland. Ahmed had a USD 3 million bounty from the US government on his head but he was comfortably housed in Mogadishu. He never saw the inside of a courtroom; instead, he joined the National Intelligence and Security Agency and became head of the agency's intelligence directorate.

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

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