Amina*, a mother of two from Mogadishu, found herself in a difficult position: her husband left five years ago to live abroad and never returned. Already living in poor conditions, she struggled to feed herself and her family. Amina sought respite through the formal justice institutions, but because she remained legally married – and could not initiate a divorce herself due to religious and cultural reasons – they could not help her. Trapped in her situation, she turned to the alternative dispute resolution (ADR) Center operating in Mogadishu.
In Somalia, the customary justice system has always played a key role in the delivery of justice. As of today, more than 80 per cent of the Somali population access justice through traditional mechanisms, namely the Xeer system, where village elders are responsible for mediating disputes and dispensing justice. This system, offering ADR, is often much better placed to respond to the immediate justice needs of many Somalis seeking justice, as it holds more legitimacy within communities and is more accessible to users.
However, certain aspects of the system violate parts of Somalia’s Provisional Constitution, particularly when it comes to the rights of women and other vulnerable groups.
IDLO’s work, supported by the European Union, the Government of the Netherlands and the Joint Justice Program, therefore aims to engage with Somalia’s ADR Centers in a way that improves human rights protections, strengthens the linkages between formal and informal justice, and ensures compliance with Somali laws and international human rights standards.
More than 80 per cent of the Somali population access justice through traditional mechanisms
ADR Centers: Linking the formal and informal
IDLO supported Somalia’s Federal Ministry of Justice and the Ministry of Justice, Judicial Affairs and Rehabilitation of Puntland to operationalize six ADR Centers around the country. Since their inauguration in July 2018, IDLO-established Centers managed a total of 1759 cases as of the end of February 2020.
With partners, IDLO also worked to develop a Standard Operating Procedure - key to promoting a uniform approach across multiple locations as well as equal, fair and transparent processes. The Procedure regulates the areas of jurisdiction, structures the hearing process, introduces mandatory documentation and registration of the cases in the Centers, and establishes a referral system to the formal courts.
While the Centers handle a range of minor offenses and civil cases similar to Amina’s - including family disputes, commercial disputes, land disputes and some relating to domestic or other violence - cases involving serious bodily harm are dealt with by formal justice sector entities.
An ADR coordinator commented: “The formal and informal justice systems are complementary in Somalia. The linkage is very important because not all the cases can be managed by the informal system. For example, the government issued a Xeer Policy in 2016, developed in collaboration with IDLO, where it is clearly stated that the informal justice system cannot manage complex crimes. In addition to this, the adjudicators are not always able to solve a case and reach a mutual agreement between the parties. In those cases, they should refer the parties to the formal system as well.”
A study conducted by IDLO on the Centers revealed that a majority of ADR actors (32 out of 59) reported referring complex cases and cases they are unable to solve to formal authorities, and a majority of respondents felt linkages between the two entities were “good”. What’s more, 77 per cent of users were satisfied with the outcome of their case at the Centers.
As women make up 50 per cent of ADR Center users, there is also particular attention paid to gender balance and gender-specific issues.
“We promote the active engagement of women and female leaders in the Center. Each Center has at least two female adjudicators who are part of the adjudicating panel composed of three to five people,” said the ADR coordinator, reflecting IDLO's study findings that 24 per cent of adjudicators are women. “This is very innovative in the Somali context,” he continued.
24 per cent of ADR adjudicators are women. “This is very innovative in the Somali context.”
A way forward
The study also illustrated areas upon which to build further progress, mainly by ensuring continuous service delivery, building the capacity of ADR actors, and expanding the reach.
“The adjudicators should be regularly trained, and more resources should be allocated for outreach activities at community level as well as legal awareness. Community dialogue is also very important in order to foster the [relationship] between the ADR Centers and the potential beneficiaries,” stated the ADR coordinator.
Together with its partners, IDLO is working to enhance knowledge of and replicate ADR Centers across Somalia, so even those furthest behind can access justice.
In Amina’s case, ADR Center staff convened a committee and were able to locate and arrange meetings with her estranged husband’s relatives. The ADR Center staff explained Amina’s plight to the family, and how the situation violated her rights on social and cultural grounds, as well as under Islamic sharia law.
The husband’s family responded on his behalf in support of the divorce and asserted that he no longer holds full rights to the children. What’s more, they pledged to financially support Amina and her children in his place. Amina is now living independently, with full custody of her children, and receives regular child maintenance for their education.
“The ADR Centers allow us to deliver justice to the most vulnerable, especially internally displaced persons and women, as well as those more economically in need,” commented the ADR coordinator. “The Centers are also well rooted at community level: people trust us and look to us for help.”
“The ADR Centers allow us to deliver justice to the most vulnerable, especially internally displaced persons and women, as well as those more economically in need. The Centers are also well rooted at community level: people trust us and look to us for help.”
*Name has been changed for confidentiality.
Images from top to bottom: Flickr_ AMISOM, IDLO, IDLO, PENHA