Contents

Somali Community-Based Justice:
A Journey Back, A Journey Forward

Khadija O. Ali

Introduction

There is a Somali proverb that says, "Men differ in three things: first, they differ in their ability to forget past grievances; second, they differ in their ability to concentrate on issues relevant to the present; and thirdly, they differ in their ability to foresee the future." In our culture this means, "Let us accept conflict as natural and agree to transform it peacefully in order to coexist together."

Conflict is part of our daily life. The history of humanity is a history of continuous struggle to resolve differences peacefully. Our history indicates that the methods and approaches have changed as humanity has progressed, however, these changes have not always represented progress. This paper is a short description and analysis of how traditional Somali culture restoratively responds to conflict and crime.

Historical Background

Somalia has a patrilineal society of clans and sub-clans. They are obligated to support each other in wars, peace and economic difficulties. If a crime is committed against a member of the sub-clan, all members of his/her clan rally behind that person and collectively pledge revenge or claim damages from the offender and his/her sub-clan. If a member of the sub-clan commits a crime against another person, all members of the offender's sub-clan are collectively responsible for his/her actions and the reparations due to the victim and his/her clan.

No matter how large or small, conflicts used to be resolved by traditional methods, led by the clan leaders or elders. These leaders were, and still are, crucial in conflict transformation and resolution. Unfortunately, the colonial legacy weakened these traditional mechanisms. After the Somali independence in 1960, modern governmental structures of law enforcement and justice were introduced. These new institutions further weakened the traditional structures' capacity to resolve conflict.

In 1969, the Siyad Bare regime overthrew the civilian government. The new government viewed the traditional leaders' role in conflict resolution as primitive, based on clan legacies and traditions that were against a socialist philosophy, hampering the development of the country. Communities were replaced with civic centers run by government employees. These civic centers enjoyed very little, if any, respect and confidence from the people.

When the Bare regime collapsed so did all the state machinery that was in place to resolve conflict and fight crime. A vacuum was created and the traditional mechanisms of conflict resolution began to re-emerge.

The Traditional Response to Conflict or Crime

In a conflict situation, either the offender's or the victim's clan initiates a request for a meeting. If the conflict results in a death, the offender's sub-clan goes to the victim with a symbolic apology in the form of money, Quranic book, and a piece of white cloth called a "Cimaamad" that is used as a headscarf by the religious leaders. They then participate in the funeral ceremony and grieve with the family of the deceased. Soon, another meeting is scheduled for both sub-clans to meet.

The objectives of the meeting include having the offender and his sub-clan take responsibility, restitution for the victim, reparation to the community, and reconciliation between the victim, the offender and their respective clans. If tensions are high, poets may be invited to inject wisdom into the discussion. When the tone of the meeting is set, everybody is given a chance to speak and their views are respected.

Traditional leaders play a key role. They discuss underlying causes of the crime and seek solutions. At the beginning of these meetings, the religious leaders read verses from the Quran. Later they are responsible to seal the agreement by reading the Quran to purify the sin, bless the gatherings and pray for peace and reconciliation.

The traditional elders who lead the meetings are predominantly men. Women do, however, prepare for the meeting, work behind the scenes as go-betweens when the tensions are very high, and pressure the elders if an agreement is not reached.

Victims are welcomed to tell their story and have it validated. Women, however, often choose a male relative to represent them. Clan elders usually decide the appropriate reparation. The offender is expected to accept the decision of the elders. The offender may be called for questioning to increase his/her shame.

When an agreement is reached, the following rituals seal it:

• A big celebration is usually held. Both clans bring an animal to be slaughtered and eaten together.
• Religious leaders are invited to read the Quran, pray for their communities, and emphasize reconciliation, mercy and forgiveness.
• The youth and the women are invited to celebrate with traditional dances.
• Poets are invited to encourage reconciliation and healing for the victims and the community as a whole. This creates a climate of shared respect and touches people in a way that nothing else could, to bring a lasting peace.
• The offender is called, if possible, in front of the community for cleansing.
• People pray for the victim and the offender, encouraging their reconciliation.

A Restorative Critique of Somali Traditional Justice Today

How do victims, offenders, and communities experience traditional justice? What role does the community leader play? What mechanism is available to monitor the agreement and prevent the problems leading to the crime? These are the questions I will consider through a restorative lens.

Traditional norms guide the process of justice. Some may meet the victim's needs. Others do not. Victims are given an opportunity to tell their story in front of both sub-clans. They feel honored by this opportunity to have others listen to their pain. Victims of sexual assault, however, are not given enough care and support in their journey of healing. Tradition forces the rapist to marry the women he raped. This protects the child's right to identity and sustenance, if a child is born out of that rape. The victim, however, is often ostracized and blamed because such offenses are taboo.

Family members, neighbors and their sub-clan, however, usually give victims of other crimes, moral and material support, as well as emotional comfort. This type of support is very important for the healing of the victim and the relationship.

Generally offenders are also given an opportunity to tell their story and take responsibility for what they did. Traditionally, they are encouraged to make things right in the form of restitution. They are not labeled as "bad", but are viewed as someone who committed a crime, but who has the capacity to change. If they accept this responsibility, they are welcomed back into the community.

Usually the apology of the offender alone is not enough. The offender and his/her sub-clan have to apologize to the victim and his/her sub-clan. The offender's sub-clan guarantees restitution and is accountable if the offender doesn't fulfill the promise. In this way, the offender is also accountable to his/her sub-clan and the community is responsible for monitoring the fulfillment of the agreement.

If the offender needs rehabilitation, his/her relatives might send that person to a religious group for counseling and spiritual support. Close family members may raise money to help the offender economically if s/he needs it. In this way, the community takes some responsibility for healing the damage done and reintegrating the offender back into the community.

Because of the prevailing conditions in Somalia, however, and the lack of institutions that can enforce the law, offenders now have little incentive to even acknowledge their offense, let alone show remorse and restitution. Often, the offender's clan leaders take their place, apologizing to the victim and paying the required restitution. Offenders are very likely to continue to offend since they know they can get away with anything because the whole clan is collectively guilty. This creates a complex situation that makes their clan members vulnerable. Crimes are then committed for revenge and the offenders claim to be victims.

Present Challenges and Weaknesses

Until recently, Somalia was probably the only country in the world today without a recognized government. Unemployment is high. Anything less than taking someone's life is not considered a serious crime. Despite all these difficulties, the Somali community-based justice system is once again emerging and is the only mechanism now available to respond to crime. These are some of the challenges and weaknesses:

• The colonial legacy and subsequent governments have left the traditional justice system very weak. Most youth were not raised with its values and lack respect for it.
• Rumors are easily spread with modern technology, rapidly escalating tensions. Modern heavy weapons can kill indiscriminately and destroy property in an instant.
• Socio-economic hardship, as a result of the civil war, affects the availability of traditional leaders, who have families to feed, and causes a lack of resources which makes it more difficult for the leaders to intervene in, or prevent, violent crime.
• Political instability makes it hard to address complex root causes of violent crime: unemployment, lack of education, misuse of power, land distribution, factions, etc.
• Politicians and faction leaders have the resources and the power to instigate violence by using clansmen to manipulate the system to their advantage.
• During the last regime, land was unjustly distributed to people other than those who originally inherited it. Now people have started to reclaim their land, while the present occupants also claim legal ownership.
• Some offenders simply refuse to yield to community pressures.
• The traditional justice process is long and can exhaust the meager community resources and energy of those involved.
• The male leaders who predominate sometimes ignores the feelings of victims and their needs for a safe and secure environment to express their pain and tell their story. This is especially true of the weak and women.
• Somali culture is very communal with the focus on the community well-being as the greater goal of justice. It tends to ignore individual needs of victims and the accountability of offenders.

Conclusion

Somalia is a country that has been traumatized by a history of violence and power abuse, from the colonial era to the present. At the heart of all this is damaged human relationships; violence and crime poison our relationships and destroy our sense of justice. For healing and reconciliation to occur in Somalia, we must create a space where past grievances are acknowledged and a shared vision for peaceful coexistence is developed. Establishing a culturally appropriate mechanism of justice for Somali culture is essential. I hope the newly elected Somali government will not create an institution to replace the traditional system, but instead create a system that will compliment and strengthen it.

Adapted from Somali Community Based Justice, unpublished paper,
Harrisonburg, Virginia, March 2000.

Bibliography
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Khadija Ali is a 2001 graduate of the Conflict Transformation Program. She was appointed a minister of state in the Somali Parliament. Due to a recent government change over, she is considering a new appointment in a similar position. Khadija has worked internationally in various peacebuilding avenues in Somalia for many years.