Rethinking customary law in Somaliland: specific jurisdiction for rape to promote post-conflict development

This success is underpinned by the widespread use of customary law, or Xeer, the traditional form of justice implemented by clan elders, which Somaliland uses to resolve all manner of disputes between individuals, families and clans and to maintain peace. Though customary law has been a vital form of transitional justice since the civil war, Somaliland has come a long way, politically, economically and socially since the early 1990s. Now is the time for Somaliland to rethink the use of Xeer and establish a specific jurisdiction for the formal justice system over crimes, like rape, where holding individuals culpable can act as a deterrent. Limiting the jurisdiction of Xeer will facilitate a fair and efficient legal system, helping Somaliland achieve its development aspirations.

Somaliland’s Pluralist Legal System and Transitional Justice

Somaliland’s pluralist legal system is composed of three overlapping, and at times conflicting, types of law, namely: (i) Xeer Somali, the customary legal system of unwritten conventions and procedures implemented by elders, (ii) the formal justice system, based on the colonial Italian civil law and British common law, and (iii) Islamic Sharia law applied by religious leaders. The lines between the three types of law are blurred and liable to shift in response to social, political and economic changes. For example, elders resolving a case in the customary system may use the police force, a formal justice institution, to detain the accused and apply a sentence mandated by Sharia. As such, Xeer, formal law and Sharia cannot be understood as distinct justice systems dealing with specific areas or crimes because there are no clear divisions in jurisdiction or enforced hierarchy. Somaliland’s Constitution, adopted in 2000, mandates that Sharia take precedent over formal law and Xeer. But customary law is strongly rooted in Somaliland society and in practice, often takes primacy.

 Xeer has been a form of dispute resolution in Somali societies since the seventh century, far earlier than Sharia, introduced between the tenth and thirteenth centuries, and formal law imposed during colonialism. Because of its long-standing use, it is deeply embedded in the cultural identity of Somaliland and it was customary law that Somaliland turned to when it was emerging from civil war in the 1990s. As a form of transitional justice, Xeer afforded a means for transitioning from civil war and clan-based conflicts to peace and stability. Through a series of peace and reconciliation conferences held from 1990 to 1997, traditional elders used Xeer to successfully achieve a cessation of hostilities in Somaliland.

 Given the extent to which customary law is entrenched in Somaliland, and how it has succeeded in bringing about and maintaining peace, questions arise about the added value of formal justice though its application is not new. As a British Protectorate from 1941 to 1960, Somaliland used the British legal system. From 1960, when Somaliland merged with Somalia, until the civil war of 1988, the courts were those of Somalia. The decision to re-establish the formal system after declaring independence from Somalia, reflects hard realities Somaliland cannot ignore, including significant commercial ties to the outside world, a pace of urbanization which has resulted in urban centres with a wide range of clans living side by side, the competition for political power among diverse parties and constituencies and lastly, the strong desire to be part of the global community despite non-recognition. Neither Xeer nor Sharia offer a suitable forum to accommodate these developments which are here to stay. What is needed is a legal system that builds on the strengths of each type of law and provides specific jurisdiction to the most appropriate forum. Somaliland could begin this process by providing the formal justice system specific jurisdiction over rape.

 Defining the Jurisdiction of Customary and Formal Law for Rape

 In Somaliland, as in societies the world over, impunity for rape is widespread. Rape cases can be prosecuted in the courts or resolved through the customary system, a decision that is largely at the discretion of the victim’s family. There is recognition within Somaliland that victims of rape and sexual violence are best served by the formal justice system. But the lack of jurisdiction between the three types of laws, especially Xeer and criminal law, is an impediment. Because rape is seen as a private matter best handled discreetly by elders, families usually look to customary law to provide solutions. Even when a rape case reaches the courts and a criminal prosecution is pending, elders are often simultaneously negotiating a settlement in the customary system because there is no jurisdictional provision prohibiting parallel proceedings in Xeer and the formal system. Once a customary agreement is reached, elders pressure the police, prosecutors and judges to stop adjudication in the courts and, more often than not, they succeed and the case is dropped. This diminishes the authority of the state and allows perpetrators to act with the knowledge that customary agreements can secure their release.

 When the customary system resolves a case, the emphasis is not on individual culpability. The basic premise of customary law is the preservation of peace between communities and clans through agreements that are seen to benefit the collective. Unlike the formal courts, customary agreements do not seek to hold individuals accountable for their actions. Instead, the accused in a rape case is usually required to pay monetary compensation, a burden shared by his family and clan members, or, in limited circumstances, he may be required to marry the victim. The victim is not perceived as being denied justice, or as someone whose welfare has been subsumed by the wider interests of her community. Instead, keeping the rape case out of the courts and the public eye is regarded as advantageous for the victim. The objective sought by elders is to ensure there are no reprisals that could unleash a cycle of violence and to protect the reputation and marriage prospects of the victim, not to prevent future criminal behaviour. While peace between families and clans is maintained, it is at the expense of providing a deterrent against rape through criminal prosecutions.

 Giving the formal justice system specific jurisdiction over rape cases would help ensure perpetrators are held to account and could be achieved through an act of parliament. There is no provision in Somaliland’s Constitution that would prevent such a law. The only jurisdictional limit to criminal cases that the Constitution imposes is that a military court must hear any charge brought against a member of the armed forces. Moreover, leaders of Somaliland’s formal justice sector recognise that to effectively address incidents of rape, perpetrators should be prosecuted. In 2013, the Attorney General, Hassan Ahmed Adan, issued a directive that rape cases must be prosecuted in the courts and that prosecutors and judges alike should reject any customary agreement. This directive does not have the force of law, but it supports the need for the courts to prosecute rape cases and the willingness of the formal justice system to implement specific jurisdiction if so empowered.

 While an act of parliament giving the formal justice sector specific jurisdiction over rape cases seems like a straightforward solution, there are practical barriers. Somaliland’s bicameral parliament mandates that the House of Elders, known as the Guurti, has the power to review any law passed by the House of Representatives, which could result in an uphill battle for any law stripping traditional elders of authority. Moreover, in Somaliland the formal justice institutions have limited resources and are represented, for the most part, in urban centres. If, however, the formal justice system had specific jurisdiction over rape cases, and had the resources, means and reach to ensure that such a mandate was implemented and its authority unquestioned, then perpetrators could be held to account.

Conclusion

Customary law was vital for transitional justice in the 1990s and established the peace Somaliland now enjoys. However, as Somaliland’s social, political and economic institutions develop, there are instances when Xeer undermines, instead of strengthening, state institutions, including both the judiciary and the police. The use of customary law to resolve rape, and to intervene in rape prosecutions, is an example. However, until a robust legal system that harmonises the pluralist legal system is a reality, Somaliland will have little choice but to continue to use Xeer to administer justice, particularly outside the main urban towns where court services are limited. Establishing specific jurisdiction of the formal justice system over rape could be a starting point to simplifying the legal system, bolstering its components and improving the delivery of justice, and ultimately continuing Somaliland on the path of peace and prosperity.

The authors

Rakiya Omaar, a lawyer, is the Director of Horizon Institute, an NGO that promotes stability in fragile and conflict-affected states through assisting local institutions to implement effective development strategies centred on a commitment to human rights and the rule of law.

Caitlin Lambert is a Legal Officer at Horizon Institute and an MSt student at the University of Oxford.