In a recent survey, less than 30% of Somalis said that they would resort to the formal justice system in their country to resolve a dispute. As is the case with informal justice systems in many countries, elders in Somalia are often seen to dispense swift, inexpensive legal solutions that are seen as fair by their community and avoid longer, more costly trips to state courts. Outside the capital Mogadishu, there is often little option in any case, as the reach of state justice institutions is limited.
The Xeer traditional dispute resolution and customary justice system in Somalia is widely recognized as a code of conduct for settling disputes and keeping the peace between clans and sub-clans.
Dating back centuries, the Xeer has played a crucial role in Somalia, especially during the last two decades when the nation has been in a state of conflict and lawlessness.
Based on compensation, as opposed to being punitive, under the Xeer system in urban areas reparations are generally monetary, whilst in rural areas or for nomadic clans a number of camels are still paid to the victim or their family depending on the crime committed.
‘In one murder case,’ explains an elder, ‘the victim’s family asked for 150 camels as a diya (blood payment) or they would kill everyone from the perpetrator’s sub-clan because their relative had been brutally murdered. Respected elders from the two clans and other clan elders from that area, as well as Ulemas (religious leaders), intervened and convinced the victim’s clan to take 100 camels. Finally, 70 camels were agreed upon by the killers’ clan and that decision was accepted, based on compromise and the common interest of the community.’
Since 2013, IDLO has supported the creation, and subsequent work, of the Traditional Dispute Resolution (TDR) Unit within the Somali Federal Ministry of Justice, through programs on social contracts between feuding clans, the reintegration of disengaged, low-risk combatants, and a policy on the Xeer.
The Somali government is currently holding a series of consultations on its first policy on the Xeer justice system; the goal of this policy is to support the progressive reform of the Xeer to enhance access to free and fair justice and dispute resolution for all Somalis, regardless of economic class, gender, age, clan or ethnicity.
IDLO has facilitated this process by organising consultations with elders, civil society and other stakeholders, training elders in matters of human rights and national law, hosting discussions on the draft policy, as well as providing capacity development for the nascent TDR team.
Many of the elders who participated in the consultations and training admitted they had not had contact with any aspect of the judicial system or authorities for many years; the majority had no previous knowledge of key factors of the judicial system, constitution or human rights standards.
Describing their role as extremely challenging when faced with more sensitive cases, the elders said the process – and subsequent greater understanding of the formal justice system and its actors - had now opened up to them the possibility of forwarding serious cases to the authorities.
Dr Deborah Smith, a customary justice consultant with IDLO who supported the TDR unit on the policy, explains more about the Xeer justice system. ‘Despite the huge range of cases heard by the elders who dispense Xeer justice’, she says, ‘the system is based on precedents and there is the flexibility within it for these elders to find the best solutions to local problems and conflicts. In the training and consultations,’ she notes, ‘the elders IDLO met with were open to discussions on human rights and the national constitution.’
Whilst there has been criticism of the Xeer system from a gender perspective, Dr Smith argues that she ‘has seen space in this area for change, as women’s participation and influence varies significantly across districts.’ ‘In some communities,’ she continues, ‘there are female elders, and male elders are seeking their advice on cases and rulings.
Even when certain elders were resistant to having women decision-makers,’ she adds, ‘they were still keen to improve the outcomes for both women and men.’
Dr Smith also suggests ‘there’s less resistance in Somalia to traditional justice within the government and elite parties than elsewhere.’
'Now,’ she says, ‘it’s for the Somali government to take the lead, hold consultations with various parties, shape the policy, and take it forward.’ ‘The role played by elders in dispute resolution in Somalia,’ she concludes ‘cannot be underestimated, with traditional justice offering a solid foundation for peace, stability and governance in a country, which has undergone decades of civil war.’
Photo: UN Photo, Tobin Jones, 2013