Justice system transformation

Our challenge is based on an initiative to transform the complex justice system in Somalia, which is made up of the traditional, religious and the official government. Our challenge is to assist in understanding the complexity and building a transformative strategic plan for the Ministry of Justice.  

While during the conflict, the formal justice sector collapsed, today, Somalia is starting to rebuild its formal justice system, which needs further maturing and development. Federal Member States (FMS) started establishing their respective justice systems. However, the justice system, particularly at the level of the FMS except for Puntland, which is at a more advanced stage, still suffers from significant capacity deficits. Moreover, significant levels of corruption and clan influence are affecting the impartiality of courts as well as the overall performance of justice services in terms of court administration and case management. For instance, FMS-based courts and the AGO lack proper procedures to receive and manage cases, the legal justification of court decisions/ruling is poor with abstract reference to sharia law playing a preponderant role. Court rulings at the level of many FMS seem to be permeated by a degree of arbitrariness and legal insecurity which is exacerbated by justice personnel being sometimes prone to collecting informal court fees due to irregular payments received by justice sector staff. In addition, bribery and corruption are concrete risk factors due to weak levels of accountability and oversight.   In light of the above, there is evidence that communities appear to have little confidence in state justice institutions that have a reputation for being corrupt and partial. On the other hand, traditional law and justice mechanisms (the so-called “xeer”) are far from devoid of impartiality. In its traditional format, xeer justice is heavily biased in favor of majority clans. Regardless of whether they are the plaintiff or defendant, majority clan members have an incentive to see their case tried through xeer; whereas, for minority clan members, these dynamics act as a disincentive to use xeer if their case involved majority clan members on the opposite side of their case. Hence, clan affiliations carry important weight in xeer since the authority of clan elders is prone to be (ab)used to influence the ruling. Fairness, due process, and impartiality are not necessarily the priority, as a “good outcome” might not always be defined by a fair verdict. Additionally, the traditional justice system tends to pay attention to clans’ interests or needs at the expense sometimes of individual needs and rights.    Nevertheless, “xeer” remains an important alternative to the lack of trust and confidence in the absence of formal justice institutions. Traditional courts remain the main providers of justice services in terms of the overall quantity of cases managed. Especially in locations with weak formal justice institutions, decisions reached by customary tribunals consisting of elders through applying xeer-based arbitration, are often officially registered by the official court system. This act implicitly confers a degree of official acknowledgment (if not recognition) to traditional dispute resolution mechanisms resulting in mediation or arbitration under customary law. Additionally, 16 alternative disputes resolutions centers comprising traditional elders representing all clans present in the locations, religious leaders, and women leaders have been established under the FMS or FGS Ministries of Justice.    Official courts in federal member states also heavily rely on traditional justice mechanisms to ensure enforcement of court decisions due to the absence of a functioning mechanism for the enforcement of court decisions under official State law. In many locations, the endorsement of decisions by traditional elders is the only way to enforce court rulings. Traditional justice mechanisms tend to be discriminatory against minority clans who are all habitually excluded from participating in decision-making via customary dispute resolution processes. Victims of gender-based assaults are typically not consulted about what kind of remedy they would deem satisfactory since they are not included in the conversation, and females are often represented by male relatives in such mediations. Furthermore, often, financial compensation is paid by the perpetrator’s family or clan rather than the individual perpetrator.      Additionally, under the traditional justice system, collective and individual rights tend to be seen as mutually exclusive in the practice and conceptual logic of customary law. Nevertheless, traditional mechanisms are bound to maintain their key role in providing justice services given the structural weaknesses and capacity deficits of the official court system. Thus, supporting the transformation of the traditional justice system to attend to individual rights is a key element to improving access to justice.    In the recent past, a political agreement on the Justice and Corrections architecture between the Ministers of Justice from the Federal Government and Federal Member States (FMS) was conceived to serve as a basic framework within which the Justice and Corrections Model can continue to be defined. The training of justice sector personnel, and the provision of mobile courts, legal aid and awareness services, and equipment/infrastructure, are all long-term investments in institution building that will need to be sustained and continued in the future. The delivery of basic justice services to the communities is a pre-condition to increase the legitimacy of the state as well as to support stabilization and transition efforts.   The Joint Justice Programme is based on the experience of, and lessons learned from, the Joint Rule of Law Programme. Following the recommendations of the RoL JP‘s final evaluation, that predecessor programme was divided into three separate programmes, namely: 1. the Joint Police Programme, 2. the Joint Justice Programme and 3. the Joint Corrections Programme. The Joint Justice Programme (JJP) is a 30-month programme supporting the National Development Plan 2017-2019 goal to ‘Establish independent, accountable and efficient justice institutions capable of addressing the justice needs of the people of Somalia’. At the level of the UNSF, it contributes to Strategic Priorities 3 (“All Somalis benefit from Peace, Security and the Rule of Law, including Justice “) and 4 (“Effective and accountable institutions that respond to needs and rights of all Somalis“). The Accelerator Lab is working with this joint program to help look at the complex problem with innovative lens. 

The main value is directing the Justice Ministry away from the usual tick the box activity to generate a strategic plan which would result in transformative change. The actual inclusivity of the process in addition to changing the mindset related to accepting complexity of existing system and going for a deeper methodologies aimed at dealing with the three systems of justice (traditional, formal and religious). The lab and the involved stakeholders all will be working on using methodologies such as foresight, and systems thinking to make sense of the complexity and design a more comprehensive strategic plan. 

Somalia's Justice system is unique with its blend of customary, religious, and formal systems. Discover how we are planning to design the first comprehensive #JusticeSectorStrategy @Acclabs and @EU_in_Somalia support

Can we combine the three forms of Justice in Somalia into a coherent strategic plan to transform it both on the federal level and the state levels? Can we deal with justice in its complex form?

We will be using a 3 Horizon method that combines the above mentioned methods 

These data sources will take the place of gaps in quantitive data. 

For H1:  What is working in the current system? What is not working well in the system? What are the examples of collaborations and/or conflict across formal, traditional and religious justice systems? For H2:  How does the future justice system look like?  For H3:  What innovations should we look for 

These methods were used in the consultations done in the past two months to answer the first questions. 

The data gaps especially in quantitative side necessitated holding consultations in different locations to form a basic answers for the learning questions. 

The challenge started to co-design the transformative justice strategy with government and multiple stakeholders. During the consultations we had full attention of the public, especially from people related to the formal justice system. Now we have contracts from judges who want to be part of the design process, a signal that shows the interest and faith in this ongoing exercises.