The Limitations of Xeer and Community-Based Reconciliation in Jowhar
TRANSITIONAL JUSTICE: EXPLORING THE LIMITATIONS OF COMMUNITY-BASED RECONCILIATION IN JOWHAR
INTRODUCTION
During the Somali civil war, the role of the government in promoting peace and reconciliation was instead fulfilled by religious scholars, traditional elders, and non-governmental organisations (NGOs). Even before the civil war, community-based reconciliation was always central to Somali society. Long-term conflict and the fracture of the central government made this even more the case.
The traditional elder-led conflict resolution system, Xeer, has been applauded internationally. Xeer is a traditional dispute resolution mechanism based on clan customary law and elements of Sharia law. Despite its international recognition, Xeer only has limited efficacy. With Somali society remaining fragmented, most Xeer agreements are unsustainable, lasting only on a temporary basis. There are several reasons Xeer agreements are not sustainable, including a lack of impartial enforcement mechanisms, the changing role and status of Somali elders, and rapid changes in Somali society that undermine the effectiveness of traditional systems. While Xeer is a force for justice and social cohesion, this traditional justice mechanism is criticised for conflicting with both international human rights standards and Islamic Sharia law.
Recognising the limited capacities of government institutions and the subsequent role that communities, supported by elders, have played in conflict resolution and peacebuilding, while also understanding the restricted success of these structures, this research began with the following question: What are key determinants for reducing conflict relapse in local reconciliation efforts in Jowhar, Hirshabelle Federal Member State, in Somalia? The research used qualitative research methods, giving study participants the opportunity to express their opinions fully. Conducted in Jowhar and Mogadishu, focus group discussions and key informant interviews engaged a total of 34 people, including civil society representatives, elders, religious leaders, women, politicians, and youth.
An interesting dichotomy emerges in these discussions and interviews. Through Xeer, elders concentrate their power on how communities live together peacefully. Although sometimes elders agree to punish criminals, the justice they deliver is more similar to restorative justice than punitive justice. This contrasts with community members (mostly victims), who express a desire for individual accountability mechanisms. In addition to a desire for the individual accountability of local offenders—whether for crimes such as assault, rape, or murder—there is also a clear desire for higher-level accountability of elders and government officials. The lack of individual accountability impacts perceptions of elders (and their recent judgements under the Xeer system) and government officials, which reduces the efficacy of local conflict resolution practices and contributes to conflict relapse. This is compounded by the fact that neither elders nor government actors can offer a clear enforcement mechanism. Many participants in this research study articulate a desire for such a service.
BACKGROUND CONTEXT
Jowhar is the capital of Hirshabelle State. Hirshabelle State is characterised by the presence of the Shabelle River, the water that enables irrigation farming to be a significant source of income. The agricultural industry is the main livelihood of the people living along the Shabelle River in the Jowhar area. Conflict over agricultural land and clan boundaries is commonplace now that more people are aware of the advantages of agriculture. In search of a farm on which to live, the herders who lost their livestock due to drought have settled in villages and surrounding areas near the river.
As in other areas in Somalia with weak authorities, landownership, resource-based conflicts, politically motivated conflicts, and other conflicts stemming from rape, roadblocks, and revenge killings, are common in the Jowhar area. As a result, conflict frequently arises between pastoralists and farmers. Two factors aggravate land disputes: 1) landowners who do not have legal rights to their land; and 2) unmarked land boundaries. As one prominent elder asserts, “Clan land, grazing land, and agricultural land are the most contentious issues.” A government official offers a similar analysis:
Disagreement over grazing and farming land exists in the countryside, while a disagreement over housing occurs in the city. In rural areas, disputes between farmers and herders are frequent. Clan conflicts over landownership increased as the nation's federal system collapsed.
Consequently, lives are continually lost, many people are displaced, properties are destroyed, and livelihoods are disrupted.
Local conflicts are also exacerbated by ongoing political changes in the country. For example, Somalia currently has a federal government that is based on a clan power-sharing agreement called the 4.5 system. This system divides power between clans at the federal level, which can often lead to tensions as sub-clans challenge one another over power and distribution of resources, such as political positions. A prominent elder in Jowhar explains: “Due to the shared political system in Somalia, the rights of some clans have been violated [by the 4.5 formula]. Within the political structure, some clans hold multiple positions, while others only hold one or two.”
Due to the limited formal justice system in many parts of the state, coupled with the legitimacy placed on traditional conflict management mechanisms, many Somalis rely on Xeer, and this system is still the most used justice mechanism in the country. It is estimated that Somalis use Xeer to resolve 80 to 90 percent of justice and legal matters involving crimes, especially in rural areas, where there is a lack of transportation and tradition prevents people from using other justice mechanisms.
The principles of restorative justice and Xeer are highly compatible, with the latter following a restorative justice approach. For example, preserving community cohesion and averting the escalation of conflict are the main objectives of Xeer. Blood compensation is given to the victim in the form of cash or livestock. Conflict resolution procedures in Somalia do not often involve retribution. This only happens occasionally, when the clan of a perpetrator wants to end the conflict with the opposing side, or they have the right under Xeer to punish the perpetrator.
Community elders, who are the main actors in the Xeer system, are known to dispense swift and inexpensive legal solutions to communities. This traditional system is widely recognised as a code of conduct for settling disputes and keeping the peace between clans and between community members. Traditional conflict management is led by a council of elders, comprised of respected and influential elders who make decisions on behalf of the community. They also set the rules and norms to which the entire community adheres, with any violation of these rules and norms attracting penalties.
One of the shortcomings of Xeer is that under the Provisional Constitution of the Federal Republic of Somalia adopted in 2012, elders have the authority to choose lawmakers. This has created tensions between community members and elders, as elders could be seen as prioritising their own interests over the good of the public. In addition, local administrations resembling clan hierarchies have resulted in administrations that are often perceived to favour some and alienate others. As an elderly woman respondent notes, “The dissatisfaction of some communities with power-sharing [the 4.5 formula] within their specific sub-clan is one of the root causes of some conflicts.”Organisations such as al-Shabaab, Daesh, and others, as well as politicians with special interests or those who have lost their positions, take advantage of these concerns. In some circumstances, this has created a worrying trend of reduced public trust in authority.
Apart from the role of the council of elders, other local and international third-party actors also engage in conflict resolution initiatives. These actors include religious leaders, women, youth, professionals, local, regional, and central government, as well as local and international NGOs. Sharia law, which is administered by religious leaders, also remains a highly sought after justice mechanism. In addition, other local mechanisms such as local peace committees play a role in conflict resolution. These institutions facilitate dialogue and provide support both to mediators and those affected by the conflicts. For example, in Jowhar the Danish Demining Group, working with Women and Childcare Organization, a local NGO, has established a local peace committee known as Duubab+. This 45-member (30 traditional elders, 10 women, and 5 youth) peace committee has resolved numerous conflicts since its establishment in January 2017.
KEY FINDINGS
It is clear from this and previous research that in the absence of the state, traditional elders and religious scholars are the only authorities responsible for resolving disputes and reconciling communities. Many applaud the role they play in society; however, not without criticism. More recently, elders are accused of not being fair and impartial, as well as not addressing the root causes of conflict. These are key rationales for explaining the breakdown of agreements or their failed implementation in the first place. The breakdown of agreements is further advanced through a lack of enforcement mechanisms and desires for individual accountability.
Justice as accountability
In situations of conflict in which war crimes, crimes against humanity, and other human rights violations are committed, the dichotomy of peace versus justice presents numerous challenges. Can peace be achieved without justice? Should a peace agreement be signed before issues of accountability are addressed? Can justice contribute to the achievement of peace? How is justice defined and what are its goals?
While the restorative justice approach in Xeer is broadly accepted, study participants clearly articulate a desire for more consistent and accessible forms of accountability. As this respondent explains: “One of the reasons the agreements fall apart is that they are not truly agreed upon in the first place. Without a true agreement, not much will get done, and the war will continue in this manner. The elders take the diya [blood money], leaving suffering people unsatisfied.” She continues with a personal reflection, saying that “After the death of my nephew’s 15-year-old son, the family was given 500,000 Somali Shillings, the equivalent of USD 30 dollars, as blood money.” There are many other similar experiences.
Elders who participated in this study are aware of such challenges. One traditional elder says, “Traditional elders prioritise peacemaking over justice. In situations involving murder, accidental bodily injury, or property damage, the victim's heirs receive very little financial compensation, which is decided by elders without the victim's consent.” It is challenging to hold human rights violators accountable in Somalia because of the clan-based social structures and customary law, which is mainly based on shared accountability. Participants in this study report that victims do not take part in the process of reconciliation facilitated by elders and that there is no follow through on the measures to be implemented. They add that the root causes of conflict are not addressed in the traditional processes of conflict resolution.
Research participants commonly state that women and minorities in particular do not get justice, even though most crimes are perpetrated against them. They assert that Xeer is not in the interests of vulnerable people. During the period of anarchy (1991–2006, when there was no state government in Somalia), for example, well-known expressions such as “Looma Ooyaan” (no one weeps for them) implied that those who committed crimes against minorities were not held responsible. Although victims are not usually part of the dialogue process, study participants indicate that they are socially required to comply with the decision elders have made—regardless of these decisions. Study respondents further perceive both statutory and Sharia law as more appropriate in terms of individual accountability than customary law, which prioritises peace over justice. For this reason, some individuals turn to al-Shabaab for justice because they are well-known for enforcing individual accountability mechanisms. Along similar lines, more and more people are also bringing their cases before government courts, despite acknowledging the many shortcomings of statutory law.
Enforcement
This research reveals that recurrent conflicts arise from the lack of authority to implement the resolutions that communities have reached regarding their differences. Long-lasting peace is hampered by the limited number and calibre of law enforcement organisations due to inadequate public funding, insurgents, and public mistrust of the security forces. In interviews, study participants say that several factors contribute to the ineffectiveness of the security sector, such as the fact that the security forces are primarily drawn from armed communities; that they commit crimes against communities; and that they lack proper training and equipment. They add that when communities reach an agreement, it is often broken by independent armed militias. Community elders do not, however, have the power to arrest these actors. While security forces do have this power, they are either not present in the area or cannot reach because of security issues.
Public confidence in both law enforcement agencies and their ability to fulfil their mandate is low. Public mistrust is a result of widespread corruption and abuse on the part of law enforcement officials, which in turn drives many people to demand justice from al-Shabaab. According to a senior policy adviser in Hirshabelle, there are 600 police officers in the Hirshabelle state forces, with an aspiration to grow the force to 800. In this large geographic region—where clans are well-armed, al-Shabaab is present, and there are autonomous clan militias—a small police force that is, moreover, lacking adequate training, equipment, and weapons, cannot effectively maintain security. All study participants agree that one of the biggest challenges in Hirshabelle State is the weakness of the security forces.
Respondents clearly indicate the limited efficacy of the security forces as a problem in the implementation of the agreements communities reach to resolve their conflicts. They say that while traditional elders can bring people together and foster reconciliation among conflict parties, they are unable to arrest criminals. Many study participants articulate the missing, but desired role of government to be able to provide effective enforcement, punishment, and security.
Trust and independence
The profile of traditional elders is changing. Poets, ulema (Islamic scholars), and clan elders used to lead the community, but now businesspeople, politicians, and members of the diaspora are given senior roles. Consequently, the number of elders has proliferated as a result of opposed politicians appointing different elders and the position has become increasingly politicised. Study participants also indicate that the changes in people's way of life, thinking, and values have negatively impacted both public faith in, and respect for, elders and customary law, as has political “meddling: in customary processes. According to study participants, for example, the clan customs and laws are largely unknown to younger generations.
New institutional processes have diluted the role elders play in community life. In the past, traditional elders led the government formation process and selected members of the federal and state parliaments. According to the findings of this study, the respect that traditional elders once had has suffered greatly because of feelings of partiality toward some members of the community in these selection processes. Previously, a clan elder was chosen by the community, but more recently, in some cases, politicians appointed elders. Now, there is a feeling that communities are ruled by businesspeople and politicians.
When chiefs, sheikhs, and traditional elders oversaw the community, traditional elders sought assistance from the sheikh and the Duub (crowned elder) in disputes that they found difficult to resolve. Traditional elders were strong, and everyone was required to abide by the rules. The community also used to hold an annual meeting to discuss issues of concern and resolve disputes. Women attended these meetings and put pressure on elders to find a solution if they were unable to resolve a conflict themselves. At present, however, these meetings are no longer held due to clan divisions and the growing number of clan elders with different views.
The conflict between the state government and al-Shabaab has also influenced the view of traditional elders. Some elders work with the government and others work with al-Shabaab, with a clear division between urban and rural, respectively. Elders residing in government-controlled areas are unable to travel to those areas under al-Shabaab control, and vice versa. This creates further divisions within the community. Mariam, a young female respondent, sums up: “al-Shabaab inflame clan rivalries to gain freedom of movement.” The conflict between clans is beneficial for al-Shabaab to freely move in the area.
CONCLUSION: LOOKING TO THE FUTURE
In Somalia, the high number of historical violations of human rights means that both peace and justice are desired. Addressing these violations faces numerous challenges, however. Top leaders, for example, are thought to have committed human right violations, which raises questions about accountability, impartiality, and impunity. There is also no single federal justice system, the nation is divided into ethnic-based federal member states, and there is no consensus on how to prosecute the crimes that have been committed. States emerging from civil war and violent conflict often face challenges in their endeavours to achieve peace and reconciliation because the issues of the perpetrators of violent crimes and the victims of these crimes often dominate the process. Thus, the task of a society to deal with the past and build a future depends on justice in the present.
According to study respondents, Somali communities expect the government to maintain security, bring legal action against those who violate human rights and commit other crimes, collaborate with traditional elders, and implement agreements reached by parties to a dispute through traditional conflict resolution procedures. There are, however, numerous barriers standing in the way of these hopes, including a lack of genuine reconciliation, low levels of public trust in traditional elders and Xeer, well-armed clans, limited areas under government control, and weak government law enforcement institutions and capacities.
In addition to the work of the National Reconciliation Framework (NRF), the findings from this study suggest the following recommendations:
Strengthen law enforcement institutions : Law enforcement agencies should be reformed, trained, equipped, and expanded so that they can fulfil the justice service that Somali society expects. With protracted civil wars and rampant criminality, it is necessary to have a strong security force that can prevent acts that undermine security and social cohesion. It also necessary to improve the quality of traditional elders and legitimise the decisions made by elders, which translates to a need for bringing the formal and traditional justice systems together.
Institutionalise and empower local traditional conflict resolution mechanisms: Study participants point to a need for government (federal, state, and local) administrations to establish peace committees to address peace, enhance the expertise of traditional elders in resolving conflicts, and legitimise the decisions made by traditional mechanisms. Given that it is difficult to reach national consensus on a transitional justice model, this can assist elders in addressing past violations through traditional conflict resolution methods.
Enhance collaboration between traditional mechanisms and law enforcement institutions: Recognising the traditional justice system and strengthening cooperation between traditional mechanisms and law enforcement agencies (courts, police, custodian corps) can reduce the frequency of conflict and help make the agreements that are reached to be permanent and binding.
