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Wednesday, May 25, 2016

Somaliland's quest to enforce rule of law

(DW)- Somaliland’s hybrid judicial system comprises three options for resolving disputes. Sharia law, customary and formal law. Legal experts say they should be integrated.



Standing in the dock are two men, they have been accused of trafficking Ethiopians across the border to Somaliland's coast in order to take their chances for onward travel. Wearing a black 'koofiyad', a cotton Muslim prayer cap on his head, Judge Abdirashid Mohamed (pictured above) stands up to read through his findings before delivering his verdict: six months in jail and a hefty fine for each of the two suspects.


Cases which are heard at the Hargeisa District Court in Somaliland's capital range from business disputes over livestock exports to family feuds over property ownership in this internationally unrecognised but de facto sovereign nation from the rest of Somalia.
But the crowd of people outside the court's doorway, heads craning in with expressions of impatience, testify to problems with courts all over the world: too many cases to handle and lack of timely resolutions.
Many residents opt to go outside the formal state court system—a perfectly legal option—and choose to instead settle disputes either through the so-called customary system, involving traditional elders representing clans of either party, or through committees made up of Islamic scholars using Sharia law, a legal framework in accordance with Islam.
"The constitution of Somaliland recognises three different legal systems that on the whole don't contradict each other, rather they complement each other," says Mohamed Farah, a lawyer, university lecturer, and director of the Academy for Peace and Development in Hargeisa. "There is no official Sharia court, only the state courts—but they are obliged to enforce Sharia law in accordance with the constitution. It is the supreme law of the land."
Interpreting Sharia law

Implementing Sharia is open to wide interpretation. Many Somalilanders are quick to point out how their country's use of Sharia is less severe than in some predominantly Muslim nations such as Saudi Arabia. The Arab kingdom has often been accused of human rights abuses through its stringent interpretations of Sharia.
In Somaliland, both the informal customary and Islamic judicial systems are often favoured over state courts, because in most cases one doesn't need to pay hefty fees to lawyers. The two systems can also see a case resolved in a couple of days. But since the customary system involves subjective assessment by elders whose main aim is conflict resolution, typical in the form of compromise, the Islamic option is sometimes preferred for delivering an unequivocal verdict.
"Sharia law is all encompassing and relevant to the modern world," says Sheikh Ahmed Dhinbil, chairperson of a committee of Islamic scholars at Somaliland's Ministry of Religion. "It can even cover business and technology." Such widespread application of Sharia law in the country takes pressure off the formal courts. "It's useful for us as we have too many cases to handle—about 30 percent of cases are resolved through the informal Islamic system," Judge Abdirashid says. "If they all came here there would be a jam," Sheikh Dhinbil told DW.
But there are limitations to this informal option. Both parties have to agree to participate. One can't be subpoenaed to attend. Although Sharia law garners enormous respect in such a religious country, verdicts by Islamic committees aren't legally binding—unlike findings by the customary system which are endorsed by the state—nor can they be enforced. "If the parties still can't agree afterwards, they come back to us," Judge Abdirashid says. "This shows how the systems complement each other."
Is Sharia undermining state law?
Some legal experts however question the complementary results of this hybrid judicial system. "If people favour the informal system it begins to undermine confidence in the state courts," says Mohamed Hussein, dean of the Faculty of Law at the University of Hargeisa. "The informal should be institutionalised or integrated with the formal system. Decisions of the customary system's elders should be in line with the state judiciary or the government is made to look weak," Hussein told DW.
State courts are also hampered by inadequate infrastructure, lack of qualified personnel, and that perennial problem of corruption and bribery. A recently appointed new chief justice has made a concerted effort to replace corrupt or inept judges. Despite mutual benefits between the formal and informal systems, areas exist where they inevitably clash. According to Sharia, there are circumstances where the testimony of women isn't considered valid. Sharia also mandates that murder must receive a capital punishment.
Also, informal Islamic tribunals charge fees, rendering the service unavailable to the poor. Legal aid through the formal system is emerging, though, until now, it has only been available through foreign donors. "This year we have started to work with the government to allocate a budget for legal aid," says Mohamed Hussein. He is also involved in the university's legal clinic for assisting the marginalised poor. "Yes, the government is limited by a small budget, but this is growing through taxes, so there must be an allocation for legal aid rather than funds always going elsewhere."
Unique blend of judiciary
Somaliland's unorthodox judicial system reflects the country's particular culture and history: a deeply Muslim country with a strong centuries-old Somali clan structure, and which between 1887 and 1960 was also a British protectorate. Furthermore, Somaliland has had to learn how to innovate since proclaiming independence from Somalia 25 years ago. No single country has recognized Somaliland's independence leaving it outside mainstream international systems.
"You get an ad hoc style in Somaliland," says Ahmed Muse, head of the research department at the Observatory of Conflict and Violence Prevention in Hargeisa. The clan system and religion remains key, both playing significant roles in maintaining effective peace and security in Somaliland. But overreliance on these traditional institutions has a less positive impact by slowing down the pace at which respect for the rule of law becomes the foundation for public life.
Not only does this impede Somaliland's development, observers say, but it also has implications for the country's overriding ambition of becoming a recognised state.
"The formal system is the best way for Somaliland to be recognised as a state," Mohamed Hussein says. "The government should take the responsibility to integrate the three systems more."
Source - DW