Access to Justice

and noted that just over one out of ten Somali children will not live to see their fifth birthday.42 A 2014 joint report by the WHO Regional office (WHO-EMRO), WHO Country office, University of Aberdeen, and Data and Research Solutions (DARS), reported that a maternal death was occurring in Somaliland approximately every six hours.43 The Tropical Health and Education Trust (THET) has identified, “lack of access to primary healthcare, inadequate quality of service provision, poor hygiene and sanitation, and low supply levels,” as some of the key obstacles to improving health standards in Somaliland.44 With the majority of the population living in isolated, rural areas of the country, many pregnant women are unable to access healthcare.45 Community Health Workers (CHWs) could provide a lifeline to these communities. However, like the education system, Somaliland’s healthcare system is primarily reliant on private individuals, companies and NGOs, which again, means that most women will not be able to afford the healthcare they need.46

One of the key institutions in Somaliland that perpetuates the oppression of women is the customary law system known as “Xeer.”

“The unwritten but powerful Somali customary law, Xeer, is made by clan leaders or elders, selected for their assumed wisdom, courage, experience and knowledge to arbitrate disputes and deliver verdicts. The elders, Guurti, assigned to hear and decide cases, are exclusively men. Their decisions are legally binding and set precedents for similar subsequent cases. Every decision is therefore a law, passed down from generation to generation as oral tradition.”47

According to Somaliland human rights lawyer, Guleid Ahmed Jama, “Xeer remains the main source of law in Somaliland, particularly in rural and remote areas where government presence is scarce.”48 The Xeer system is one of the three legal systems, which theoretically operate parallel to each other in Somaliland. The other two systems are statutory law and Shari’a law. Article 5(4) of the Somaliland Constitution dictates that customary and statutory law cannot contradict Shari’a law, however in practice, this is not always the case, and there is no indication as to which school of thought regarding Islamic jurisprudence Article 5(4) refers.49 In reality, Somaliland’s parallel legal system allows for those in the country with vested power to escape accountability by picking and choosing the legal system that is likely to give them the most favorable outcome often

42 Mortality rates among world’s highest in Somaliland, 2012

43

Somaliland Women of Reproductive Age Mortality Survey 2014 44 Tropical Health and Education Trust 45 Tungaraza, 2010 46 Ibid. 47 Jama, G, 2019

48

49 Ibid. SIHA Network, 2015

at the cost of vulnerable and disadvantaged groups, such as women and minority clan members. The parallel system also allows the government to have some progressive laws on the books but look the other way when the application of Xeer or Shari’a law contradicts those laws within the statutory legal code. For example, according to an interpretation that is commonly used by Shari’a law courts in Somaliland, proof of Zina – unlawful sexual intercourse – will typically require four male witnesses to the criminal sex act at issue.50 In this way, the statutory law on rape under Article 398 of the Penal Code is more progressive and survivor-centered than Shari’a, as judges and prosecutors are able to utilize the testimony of the survivor, as well as medical and other forms of evidence, making the possibility of indictment more likely.

Because it is unwritten, and because all powers of interpretation and decision-making are held by a small group of traditional leaders, Xeer is particularly well engineered to maintain the status quo of male privilege over women. Indeed, as Xeer is not written, women have nothing to reference if they wish to request an appeal of a customary law court decision. Shari’a law is also subject to manipulation. Interpretations of Islamic law that deliberately twist and distort sacred texts to keep women oppressed, are increasingly taking hold in Somaliland as part of an international trend toward a militant, Salafi Islam which is fueled by a political rather than a wholly religious agenda. While many in Somaliland believe this increasingly prevalent kind of militant, Salafi Islam is an accurate representation of their faith,51 Shari’a has become the most cosmopolitan and inclusive of the three legal systems in Somaliland.52 Unlike clan structures, which are rigid and exclusive, Islam knows no boundaries, making it an attractive second option for the local population. This positive bias towards Shari’a and Islam is by no means problematic. Rather, the issue arises from the gradual slide toward conservative and extreme interpretations of Islam in Somaliland society.53 This not only carries with it the dangerous possibility of rising religious militancy, as seen in Somalia, but also the possibility of reversing the already limited progress toward women’s human rights through more militant interpretations of the Quran and what it says with respect to women and girls.

Family law is a decisive area of law for women’s rights and gender equality as it typically governs marriage and divorce, including property rights, inheritance, and child custody – all of which have significant, gendered impacts.54 In Somaliland, statutory law has largely left matters within the field of family law to be resolved through Shari’a law, which in practice, is rather a set of customs and traditional practices claimed to be based on Shari’a law, drawing on traditions and suggestions from various sources of Islamic jurisprudence from the 7th and 12th centuries.55 This Shari’a legal framework has not been formally reviewed by any Somaliland justice department. Indeed, such review is impossible for the moment, as the framework is unwritten. Another grievance regarding the customary and Shari’a law courts is that the process of family law

50

Ibid. 51 Healy & Bradbury, 2010; Jama, G, 2019; SIHA Network, 2015; SIHA Network, 2018b 52 Jama, G, 2019; SIHA Network, 2015 53 Healy & Bradbury, 2010; Jama, G, 2019; SIHA Network, 2015; SIHA Network, 2018b

54

55 Stilt, Waheedi, & Griffin, 2018 Jama, G, 2019