Enhancing Legal Empowerment through Engagement

with Customary Justice Systems – Small Grants Program

Evaluating the Effectiveness of Legal Empowerment

Approaches to Customary Law Reform in Somaliland and
Puntland

Project location: Samaliland and Puntland

Research grant recipients: Maria Vargas Simojoki

Introduction
In 2003 the Danish Refugee Council (DRC) in close collaboration with traditional leaders
from Somaliland launched a pilot project targeting revisions in customary laws that
would provide better protection for vulnerable groups, such as women and minorities,
as well as allow better access to justice and improvements in conflict mediation. The
programme was well received by traditional leaders across Somaliland, the government
and other concerned actors. It led to revisions of customary law that were codified in a
Declaration that was signed regionally and then nationally, and is known as the National
Declaration of Traditional Leaders. In 2004 UNDP and DRC proceeded to target
traditional leaders through different interventions – for example through the UNDP
harmonization of legal systems and DRC programmes on community-based protection.
The success of this type of intervention in Somaliland paved the way for similar
interventions in Puntland, resulting in a national declaration (revision of customary law)
signed by traditional leaders in early 2009. These interventions are particularly
interesting because they attempt an innovative model of revision of customary law. In
the context of Somalia little to no revision had been done to customary laws even when
the state institutions gained ground in Somaliland and Puntland. The abovementioned
interventions were initiated locally by a concerned group of traditional leaders, taking a
grass roots approach that could encompass both revisions of traditional laws as well as
means of integrate these into the formal legal system. This type of ‘bottom up’
approach was well accepted and carried out through inclusive and transparent practices.
It is hypothesized that such legal empowerment approaches will be more successful
than top-down measures.

Background
As in many other African nations, Somalia exists in a state of legal pluralism whereby
customary law (xeer), religious law (shari’a) and secular law operate simultaneously
(APD, 2002). In Somaliland and Puntland, however, there is a dominance of xeer
(Gundel, 2006; Menkhaus, 2007).

Xeer is a multi-faceted system that is embedded into the core of Somali traditional
structures, the clan system, as it has traditionally been a mixture between more general
prescriptions on behaviour, such as the appropriate behaviour towards guests and
vulnerable groups (Lewis, 1960; Gundel, 2006) and more specific contracts between
clans or sub-clans on how to act towards each other, levels of compensation for
conflicts or disputes and how to manage disputes among different clans or sub-clans
(Gundel, 2006).

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While xeer can be individual between different lineage groups, the general prescriptions
are valid for all Somalis. It is important to highlight however, that xeer is not as such a
moral code – as shari’a is – it has elements of social structuring, such as whom widows
are allowed to marry and how to deal with cases of rape. Moreover, xeer is a collective
system that places responsibility for actions on a group and not an individual, and thus
is very efficient at providing social cohesion and for the regulation of inter-clan affairs.

The importance of xeer in the Somali context is indisputable – it has been an ever-
present part of the Somali way of life and continues to be the most utilized legal system
in all Somali regions with “xeer [being] applied in solving perhaps 80-90% of all
disputes and criminal cases…”(Gundel, 2006:iii). Throughout the war and its aftermath,
traditional structures – xeer and the elders that practice xeer – came to gain a lot of
importance as they provided some security and would not marginalize groups; in rural
parts of current day Somaliland and Puntland xeer continues to dominate due to weak
or non existent governmental structures (Gundel, 2006; Bradbury, 2008; Menkhaus,
2007).

Problem analysis

There are clear problems in Somalia regarding access to justice for vulnerable groups,
principally women, youths and minorities. These problems can be traced to the xeer
system itself and the legal pluralism that exists in Somalia.

Challenges faced in Xeer

Although xeer remains a highly utilized and effective system in the Somali regions,
through its categorization of certain incidents, particularly rape and murder, it prevents
vulnerable groups from accessing justice. The challenges faced in xeer are manifold. On
the one hand, xeer and the rulings of xeer are not based on equal representation of all
groups. Traditionally xeer is negotiated by the aquils of the diya paying group1.
Although all men can, in theory, participate in negotiations and take part in the
mediation, access has normally been open only to men of a certain age (not young
men) and no access is allowed to women or minorities (Lewis, 1961). In this way
women can only be represented by male relatives, and were not taken into account
even when they were the victims, as in cases of rape.

In the case of minorities, due to their status in the Somali clan lineage system they
have not been allowed representation or even to be included in dispute negotiations.
Minorities in the Somali regions of Somaliland and Puntland are not minorities as
defined by the United Nations2, as they are the same ethnic, religious and language
group as other Somalis. Their categorization as minorities follows their status as a sub-
group due to their traditional vocations as blacksmiths and barbers. Until quite recently
their access to justice in the traditional forum was preconditioned to being sponsored or
“adopted” by elders of majority groups (Gundel, 2006; Lewis, 1961; PWG 20083).
Though their situation has marginally improved and they can now gain access to the
customary forum through their own aquils, their general access to customary systems is

1
Although Somalis are organised in lineage groups that follow clans and sub clans, the main lineage group for
day-to-day interaction is the diya paying group. This is usually a group consisting of approximately 100 men
(and their families) that will come together and share out compensation expenses when one of their clan
members has committed a crime or been involved in a dispute. The groups are lead by a group of elders that
act as the external link to other diya paying groups when mediations and negotiations take place (Lewis,
1961; 2008)
2
The definition of minority utilised as a base of comparison is the one accepted by the United Nations as:
racial, ethnic, religious or linguistic minorities. (Source: www.ohchr.org).
3
The Protection Working Group here referred to is the one for Somaliland. Throughout 2008 several of the
members voiced concerns regarding cases of rape that would be pulled out of courts by traditional leaders
and in which women were not allowed access to fair representation.

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still quite limited as their traditional leaders are not given the same status as majority
clan elders and violations committed against minority individuals are not usually solved
or settled as they are not viewed as a priority.

For both these groups access to justice within the customary has been either extremely
limited or mainly been negotiated through a proxy, whether it be the male relative of a
woman or an elder from a majority group “sponsoring” a minority individual.

Second, xeer is based on collective responsibility, which also means there is no

individual punishment for the perpetrator. As xeer is the codified agreements between
clans on how they will deal with different situations of conflict, the actual prescriptions
are based on groups and not individuals. For example if a man murders another man,
despite the motive for the murder, traditionally both clans will settle the issue by
agreeing on compensation, without any punishment for the perpetrator. The practice of
not allocating individual responsibility for crimes that are perpetrated individually – such
as rape and murder – removes guilt from the individual and furthers impunity for the
perpetrator (Gundel, 2006).

Third, although xeer is an efficient mechanism for regulating inter-clan affairs and
thereby a tool to maintain stability, it provides less protection for individuals as their
level of protection is dependant upon their clan alliance and their area of origin. This is
particularly problematic in regions like Somaliland and Puntland, where displaced
populations are growing because people are either forcefully displaced from the South
or displaced by droughts from their own regions. Because such groups do not have
strong ties to the majority clan in the region where they decide to settle, the dominance
of xeer places them in a vulnerable position as their access to customary systems is
unequal and in some cases non-existent (DRC, 2008).

Legal pluralism
The situation of legal pluralism promotes forum shopping which in turn restricts access
to justice for vulnerable groups who are less able to negotiate the different options.
Legal pluralism has been equated with a sort of “lawlessness” as no uniform standard
applies at any given time. Neither the perpetrator nor the victim is aware of the
possible outcomes through the different legal systems, making it difficult for individuals
to navigate through them, particularly for those who have restricted access to the
various fora such as women. Elders routinely put pressure on women to settle crimes,
such as rape or abuse, through customary systems and not take up the matters in court
(APD, 2002). In other cases, although women access the justice system through a
court, their cases are routinely removed from the courts by their elders. Women’s lack
of knowledge of their options, and elders’ disrespect of allowing women to access any
forum they see fit, leaves women in a precarious situation whereby they have little to
no access to justice.

Second, the secular legal system is undermined by the strength of customary structures
in that court cases can easily be pulled away by traditional leaders and settled through
xeer at any given time during proceeding. As discussed above, this happens mainly to
vulnerable groups such as women (APD, 2002). This is exacerbated by weak legal
structures, lack of judges and lawyers, combined with a still present reliance on clans
resulting in both law enforcement and judiciary members being appointed because of
their clan allegiance, or people resorting only to judges from within their own lineage
group (APD, 2002; PDRC, 2002).

Third, xeer and customary systems are seen as stability-building mechanisms that were
able to initiate peace processes in both Somaliland and Puntland. In Somaliland, conflict
resolution and mediation conferences in the early 1990’s were instrumental in keeping

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peace and allowing the state to develop. The practice of utilizing customary resolution
practices in both Somali regions is still very present, and most inter-group disputes are
settled through customary interventions. In this sense, utmost respect is placed on
customary practices and even when cases are presented before a judge, if the
traditional leaders intervene and want to remove a case from the court, this will be
generally be respected by the judiciary as it is deemed that through their action,
traditional leaders are thinking of how to maintain the peace and avoid further conflicts
between groups (APD, 2002; PDRC, 2002).

Interventions

In response to some of the problems described above, there have been several
interventions designed to enhance access to justice, the protection of marginalized
groups and the functioning of the xeer system.

Revision of Xeer
In 2003, a small group of aquils (traditional leaders) approached DRC for support in
working with traditional leaders and xeer with a view to try and gain better
understanding of how xeer can be revised to follow prescriptions within shari’a and
human rights. Recognizing the importance of xeer, DRC supported a pilot project aimed
at building on the customary system in order to enhance security and protection of
vulnerable groups. During the project it became apparent that xeer contained
prescriptions which were inconsistent with shari’a or human rights. The aquils were
successful in bringing attention to the harmful practices within xeer and worked to
revise them. With assistance from DRC, both financially and through the advocacy
department, the aquils’ idea was taken to regional levels. In regional conferences
throughout Somaliland, the original group of aquils advocated for a revision of xeer to
eliminate harmful practices. Regional declarations were signed in all regions and with
further advocacy and support from DRC, UNDP and UNHCR, the aquils held a national
meeting in 2006. The meeting culminated with the signing of the National Declaration,
followed by a process of dissemination of the changes in xeer to the population at large
(DRC, 2006). Dissemination (largely funded by DRC) continues today and has covered
each of the regions of Somaliland, mainly through the NGO, Horn Peace, staff of which
travel with the aquils into rural areas to raise awareness of the reforms.

In Puntland, again with support from UNDP and DRC, aquils adopted a similar process
and came together in regional meetings to discuss revisions of the xeer. After many
hurdles, in February 2009 a National Declaration was signed and a commitment was
made to disseminate the revisions made (Horn Peace, 2009). Efforts have now shifted
to awareness-raising, with particular focus on remote rural areas.

Harmonization
The revision of xeer through regional and the national declarations prompted thinking
about how customary law might be used to promote access to justice for users of the
xeer system, particularly marginalized and vulnerable groups. Attention centred on legal
pluralism and the need to harmonize the different legal systems operating in the Somali
regions (UNDP, 2006). It was deemed imperative that such harmonization efforts be
transparent and build upon the grassroots approach adopted during the revision of xeer
(Le Sage, 2005). The National Declarations provided a platform for such harmonization
efforts. In both national declarations, traditional leaders acknowledged that xeer
operates within the context of state-based formal justice. Despite the state not always
being able to provide security or even access to justice, they agreed that building a
stronger state required that criminal acts should be referred to the state. One of the
harmonization initiative that is of particular interest builds upon one particular aspect of
the National Declaration – that crimes of rape and homicide be assigned individual as

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opposed to collective responsibility. Because within xeer, such crimes can only be dealt
with collectively, leaders committed to refer such acts to the secular state system. To
some extent this involved a redefinition of what “crime” meant in the Somali context, as
crime, whether collective or individually perpetrated, have usually been absorbed as a
collective responsibility by sub-clans.

Understanding these interventions in the context of legal empowerment

The question of how customary legal systems can be reformed to better protect the
rights of users remains largely unanswered by legal practitioners and development
specialists. The legal empowerment discourse argues that top-down approaches (e.g.
codifying customary law, nullifying aspects of customary law that are incompatible with
constitutional guarantees, or training customary leaders to implement state law in the
customary system) are unlikely to be effective because top-down mandated changes
have little power to modify deeply entrenched and culturally specific customary
practices. They argue that bottom-up approaches will be more effective because they
will be more in line with locally accepted norms, needs and priorities.

The group of interventions described above can be classified as ‘legal empowerment

approaches’ as they seek to improve the operation of the customary legal system from
within its own leadership as oppose to through top-down interventions. The intervention
leading to the national declaration had a very specific starting point in thinking of elders
as agents of change within their own society; supporting elders at the grass root levels
through trainings on human rights led to the elders’ own initiative of revising harmful
practices within customary law.

Admittedly, the interventions did not target the users of the customary system as a
strict legal empowerment approach might prescribe. However, because of the set up of
customary laws in Somalia, it is argued that access to justice for vulnerable groups
could only be improved if key decision-makers could act as agents of change and
reform the system from the inside. This has specific linkages to the legitimacy of elders
within the Somali context, as they continue to remain legitimate authorities that can
provide protection and access (Gundel, 2006), particularly in the post-civil war context
where state authorities hold limited legitimacy, particularly in both Somaliland and
Putland (Gundel, 2006; Bradbury, 2008).

At the same time, the approach did contain traditional legal empowerment elements. A
dissemination component was included in order for users of the customary system to be
able to gain knowledge about the revisions in the xeer. It was deemed that providing
people with information on the revisions and what their elders had agreed upon could
help improve elders’ accountability in terms of enforcing the declaration points. The
interventions hence targeted both the leadership and the general population, through
providing them with the knowledge of the changes and support in trying to hold their
leaders accountable through monitoring. The intervention was therefore an innovative
middle-ground approach to legal empowerment, using legal empowerment concepts
that were then tweaked to fit the Somali context and the problems that needed to be
resolved.

Conclusion

An evaluation of the initial pilot project revealed a noticeable decrease in revenge

killings in the region of Toghdeer, Somaliland (DRC, 2006). Improvements in access to
justice, however, have been more difficult to prove. Other evaluations indicate that
while there has been a decrease in revenge killings, vulnerable groups still find it
difficult to access justice as traditional leaders continue to mediate serious cases that
should be referred to the secular system e.g. case of rape. Additional research is
needed to evaluate the impact of both interventions from the perspectives of users of

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the xeer system and to gather knowledge about the effectiveness of this type of legal
empowerment approach as a means of facilitating reform in customary systems both in
Somalia and other contexts.

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