IDLO – ACCESSING JUSTICE: SOMALIA’S ALTERNATIVE DISPUTE RESOLUTION CENTERS
IN FOCUS: Xeer customary law Historically, as adjacent clans competed over scarce natural resources, particularly water and land, a customary code of conduct, known as Xeer, which translates as “agreement”, took form and governed the relations and disputes among members of different clan units. Xeer has become a “tradition that has been passed down orally from one generation to the next”5 based on voluntary acceptance of the system by all parties, thus facilitating compliance.6 Under the Xeer process, once a conflict has occurred, male elders discuss matters until they reach an acceptable agreement.7 In Xeer custom there is an emphasis on collective responsibility by family or clans for the actions of individual members. This evolved to protect individual members unable to pay compensation for grievances, which risks triggering a cycle of revenge killing and loss of important members with resulting economic and security implications.8 Xeer is mainly based on precedent, however, it is not a static legal system; instead, it varies across clans – particularly between south-central Somalia and northern regions. Its norms evolve over time to reflect new agreements among clans and emerging practices grounded, for example, on land acquisition by stronger clans or the need to protect a weaker clan.9 In a context of protracted political fragility and weak governance, the Xeer normative code and collective assumption of responsibility has functioned as “an effective tool for promoting social cohesion and for the regulation of inter [and intra]-clan affairs”.10 Xeer is widely recognized as “an integral component of … Somali… life and continues to be the preferred and most used legal system in all Somali regions, applied in up to 80–90 per cent of disputes and criminal cases”.11 The widespread use and application of Xeer is not without concern, particularly in relation to gender equality and human rights. Aspects of Xeer custom may violate provisions of the Somali Provisional Constitution, particularly when it comes to the rights of women and other vulnerable groups.12 Indeed, “while Xeer is an efficient mechanism for regulating inter-clan affairs and maintaining stability, it fails to provide adequate protection for vulnerable groups and tolerates harmful customary practices in abrogation of
both international human rights standards and Sharia”.13 Additionally, the lack of recognition of customary law in Somalia’s national legal framework, a generalized lack of accountability, and a lack of structured linkages between formal and customary systems create confusion among individuals as well as courts as to the legal status and role of Xeer.14 Justice challenges In 2019, 3 per cent of the Federal Government’s total budget for the fiscal year was allocated to the justice sector (US$10.3 million out of a total amount of US$344.2 million). Of this portion, the majority (US$6.7 million) was allocated to the police Custodial Corps with a little over US$700,000 allocated to the Ministry of Justice.15 With limited funding for the formal court system, issues such as the training and security of judges, low salaries, insufficient record-keeping and
5
Van Nooten (2005); and N. Leite, “Reinvigoration of Somali Traditional Justice through Inclusive Conflict Resolution Approaches”, Conflict Trends 2017, Accord website, available at: https://www.accord.org.za/conflict-trends/reinvigoration-somali-traditional-justice-inclusive-conflict-resolutionapproaches/. Generally recognized Xeer principles include: the collective payment of “blood” compensation or diya (usually livestock) for certain crimes such as murder, assault, theft and rape; the promotion of inter-clan harmony through the protection of certain social groups including women, children, the elderly and guests; and the payment of dowry obligations. See Vargas Simojoki (2011), p. 36.
6
Danish Demining Group and Forcier, Establishing a Knowledge Base on the Engagement of Somali Customary Institutions in Justice Programs (September 2019), p. 9.
7
Pact and the American Bar Association Rule of Law Initiative, Alternative Dispute Resolution Initiatives in Somalia. The Expanding Access to Justice Program (Nairobi, June 2020), p. 2.
8
E. Harper, Customary Justice: From Program Design to Impact Evaluation (IDLO, 2011), p. 26.
9
Pact and the American Bar Association Rule of Law Initiative (2020), p. 2.
10 Vargas Simojoki (2011), p. 36. 11 Ibid. 12 Federal Government of Somalia Ministry of Justice and Judicial Affairs, “Policy on the Xeer”, Traditional Dispute Resolution Unit, (unpublished, March 2016), p. 3. 13 Vargas Simojoki (2010), p. 10. 14 Federal Government of Somalia the Ministry of Justice and Judicial Affairs, “Policy on the Xeer”, Traditional Dispute Resolution Unit, (unpublished, March 2016), p. 6. 15 According to the Somali Public Agenda, “The formal judicial authorities such as the Supreme Court ($952,744); Benadir Court ($1.5 million); Appeal Court ($270,284) also receive a small portion of the budget.” See Somali Public Agenda, “Review of Somalia’s 2019 Budget for Judiciary Institutions, Public Services and Economic Development” (2019), available at: https://somalipublicagenda.org/review-of-somalias-2019-budget-for-judiciaryinstitutions-public-services-and-economic-development/#:~:text=The%20total%20budget%20appropriated%20for,year’s%20%24274%20million%20 fiscal%20budge.
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