Guest Editorial: Somalia, Gender and the Rule of Law in Pluralistic Legal Realities in States Transitioning from Conflict
by Dr Róisín Burke
Dr Róisín Burke is a Senior Lecturer at the University of Canterbury school of Law. Previously she worked as Political Advisor at the Permanent Mission of Ireland to the United Nations. Prior to this she was an Irish Research Council postdoctoral research fellow based at the Irish Centre for Human Rights, National University of Ireland Galway, in the area of rule of law programming in transitional states, gender justice and women’s legal empowerment. Róisín is an Attorney at Law in New York State. She completed a doctorate at the Asia Pacific Centre for Military Law, University of Melbourne Law School in 2012. Her thesis was titled ‘Sexual Exploitation and Abuse by UN Military Contingents: Moving Beyond the Current Status Quo and Responsibility under International Law’, which was published by Brill in 2012. She holds a LLB in Law from the University of Limerick and an LLM in International Human Rights Law from the Irish Centre for Human Rights. She has held a number of academic research and teaching posts, and has experience working with UN OLA, and international and hybrid criminal tribunals. Her research interests are in the areas of women, peace and security; international criminal law; international humanitarian law; laws of war; peace operations; peace building; rule of law; military operational law; gender justice; and public international law.
The rule of law is often defined as a system of governance which includes robust legal institutions that are accountable and seen as legitimate, and accessible to the people. In Western countries most of us have particular pictures of what a justice system should look like. This often consists of formal legal institutions, court rooms, judges, prosecutors and defence lawyers, albeit with significant differences between civil law and common law countries. Justice and accountability are very much centred on the individual in Western legal cultures. However, this is often not how justice is pictured in many non-Western states. Many countries have what are called plural legal systems. Legal pluralism basically means that a number of ‘informal’ or quasi-informal regulatory systems exist alongside the formal legal system, and these too vary greatly in form. Religious and customary justices are common in many societies with Somalia being no exception.
Now as we all know, armed conflict often results in collapse of legal institutions and a rise in crime and human rights violations, not least sexual violence. These crimes have lasting effects on society, yet in the aftermath of conflict regulatory mechanisms are often weak or non-existent, particularly formal legal institutions. Somalia in recent decades has often been referred to as a failed state, wherein state institutions had been largely absent, with the exception of Somaliland and Puntland. In these contexts what is often left to regulate societies are informal justice systems, including the customary and religious justice systems. These systems have regulated Somali society for far longer than formal legal systems introduced with colonization. Three systems co-exist in the various regions of today’s Somalia, namely a nascent formal legal system (with stronger versions in Somaliland and Puntland); the age old xeer or customary justice system; and Shari’a law, which to a large extent is integrated into the former two systems and its primacy is constitutionally embedded. There is little uniformity in the application of laws. To an extent this is tied to the decision-makers and their knowledge base and perspectives on a particular issue.
Somalia has a long history of civil war and colonization. Somalis are predominantly Muslims, from the Shafi’i school of Sunni Islam. Somalia’s legal and societal structures are underpinned by a hugely complex history, colonisation, culture, and clan dynamics, which vary within the state itself. Somaliland and Somalia were joined in the 1960s, bringing with them many influences of the Italian and British legal systems. This further complicated the rule of law in Somalia with the mix or common and civil law traditions, layered on top of customary and religious laws and their accompanying regulatory systems.
Barre took power in 1969, after orchestrating a military coup. The Barre regime started implementing many Socialist type reforms to the Somali legal system. There was some attempts to try to create unity in the legal systems, but this largely resulted in legal fragmentation and disorder. Barre placed a strong focus also on women’s empowerment, education and economic advancement. Additionally the regime attempted to diminish the powers of the Shari’a courts and the customary justice system, including in matters of clan land, water and grazing rights, property and inheritance. An attempt was made to abolish diya payments (which is a form compensation payable to and by linage groups for wrongs committed) and dowry payments, which are viewed by Somali society as key aspects of their culture and societal system. Many saw their lands taken from them by the state. Poverty became widespread. Somalia is a pastoralist and agro-pastoralist state wherein much of the population to this day rely heavily on land for subsistence.
Gender justice was a particular point of tension during Barre’s rule, with women’s rights being associated with identity erosion. The passage of the 1975 Family Law, which included provisions on gender equality in marriage and in relation to inheritance, led to protests. These ultimately resulted in the execution of a number of religious clerics and the subsequent overthrow of the Barre in 1991 by clan militias. There was then an outbreak of inter-clan conflict.
In May 1991 Somaliland declared independence but it is yet to be internationally recognized. Puntland is a semi-autonomous region of Somalia, but it retained links with the Federal Government. Somaliland, and Puntland to a lesser extent, are now experiencing greater levels of stability and more effectual rule of law than other parts of Somalia. The Federal Government of Somalia has only been in place since 2012.
In the aftermath of conflict many international actors, such as the UN, AU, EU, major NGOs, amongst numerous others, frequently invest efforts in rule of law and security sector reform programmes in order to assist countries with a return to stability. While this usually is well-meaning, these programming efforts are often carried out without full cognizance of local cultures, realities and traditions. In terms of legal systems, for instance, these take many years in any given society to evolve and legal transplants from one society to the next have over time often proven ineffectual. This is partly on account of local understandings of justice.
There is increased recognition at least at an international level that women’s participation in peace-building, including rule of law reform post-conflict, is key to sustainable peace and security. This is partly on account of a series of Security Council Resolutions on Women Peace and Security that have been passed since the early 2000s. While implementation of these resolutions has been somewhat limited, they are forcing actors in these spheres – state, international organisations and others – to take measures to better mainstream gender considerations into their peace-building programmes, including in the area assisting states with the rebuilding of legal systems. This is where things appear to go wrong, at least traditionally, where focus has been primarily placed on formal legal systems and there has been a failure to engage with broader plural legal contexts. This is hugely problematic in attempts to encourage human rights compliance and gender justice in a plural legal system, such as in Somalia. In doing so, they avoid a large portion of the regulatory structures existing.
During times of upheaval throughout Somalia there was continued reliance on the xeer system, coupled in the 1990s with a proliferation of Islamic courts. These were to a large extent local attempts to regulate daily life. The xeer system in Somalia is heavily relied on. It is an unwritten legal system passed down orally by clans, and it emphasizes the collective, retribution and reconciliation. Decisions within this system are made by senior male clan elders, a process with is public and often held under a tree. The system has centuries old rules on diya payments and groupings, dowries, and compensation for particular offences. It also includes customs on sister and widow inheritance, which in today’s climate would not align with human rights, but traditionally were likely intended to the need to provide some form of social supports where a male family member passed on. There are also customs around water usage and pastoral land.
The xeer system is what is frequently used by the Somali people. Strategies, therefore need to be put in place to engage with traditional authorities on gender justice issues, amongst all others. However, we need to get our heads around what constitutes legal systems in the first instance. There are also dangers around encouraging dismantlement of systems that external actors do not necessarily understand and their replacement with a weak formal legal system that promises levels of protection to the vulnerable that it cannot enforce. But we struggle with this as these systems rightly given fears that these systems do not always adequately protect females, or indeed other marginalised persons. These in Somalia include members of weaker clans, minorities and internally displaced persons. It must be borne in mind that these problems also feature in formal legal systems.
In terms of gender justice, there has been a strong focus in UN rule of law programmes, in partnership with government, on sexual and gender-based violence and the established of one-stop centres and referral pathways to assist victims of sexual violence in Somalia. There are significant rates of sexual violene in Somalia, akin to many conflict-affected states. UN programmes have also actively assisted Somalia, Puntland and Somaliland with the drafting of Sexual Offences Bills. There has also been a focus on the integration of women into the formal legal sector and the training of paralegals. These efforts are commendable, and are having some impact, but there remains serious weaknesses in advancing gender justice in Somalia. Indeed in the area of sexual and gender-based violence efforts to secure prosecutions in the formal legal systems have seen interference by clans and customary authorities, with cases at times transferred out of the formal legal systems altogether and back to the xeer or Shari’a courts. This is often partly given a refusal by clans to accept the authority of the formal courts. Successful prosections are few in this area and women are often subject to backlash, including allegations of defamation where claims relate to government forces. This leaves one to question what one advocates in the absence of an integrated whole. For women and girls, there are many socio-economic risks with going to a formal legal system when it cannot guarantee enforcement of their rights and subsequent protection, particularly in areas of the country where state control is very weak.
In any case, in Somalia the customary and religious justice systems are considered legitimate by Somalis, male and female. The people understand how they operate. Their decisions tend to be respected, albeit this may be eroding in urban areas where population density and movement is increasing. Above all many parts of Somalia are remote from the formal legal system, meaning that the informal legal systems are what are accessible.
Some argue that there is a need to draw on Shari’a to challenge practices and norms that allow for certain violations of women and girls’ rights. Inheritance and female genital mutiliation (FGM) are two areas where this may be done, and indeed in Somalia in relation to FGM this has had some success.
What is apparent it that rule of law programming has to engage with customary and religious justice systems on gender justice issues as they are central to society. Failure to engage them will not change the status quo, while bearing in mind that human rights need to be complied with. Without buy-in from the local population and key stakeholders rule of law reforms can have little impact. A starting point in assisting states with legal system reform is to reconceptualise our understanding what constitute legal systems in the first instance to better reflect local realities.
© Dr Róisín Burke