By Abdiwahab Ali
Somalia’s complex legal pluralism: statutory, customary, and religious legal frameworks coexist and are intertwined. While some progress has been made in advancing Somalia’s justice service including investing Human Capital through scholarships, providing legal aid to those who can’t avoid, setting protocols for custodian services etc., however, this is further complicated by the personalized or neo-patrimonial relationships and inter-agency rivalries conducted amongst and between Somali political elites and justice chain actors such as police, prosecutorial, court, custodial, intelligence agencies, special units, and commercial security companies’ contrary to the standard bureaucracies and institutions associated with what in Westphalian states is referred to as the Justice sector. To reference Rabi’s observation about the state in clan-based societies, the Justice sector should be seen as ‘a “political field,” i.e., an area within which diverse actors compete for influence and resources’[1].
Despite several decades’ experience of implementing programmes designed to build inclusive justice governance and rule of law, systematic analysis of the consequences of interventions remain very limited. This is primarily because international community and their partners focus more on what is being implemented than on the way in which it is implemented and received by communities. Further, the affinities and procedures on which international models of Rule of law depend are assumed to be universal, whereas they may not be, with some scholars believing that the Rule of law “has become meaningless thanks to ideological abuse and general over-use.”[2]
International actors have yet to analyse how and why recipients receive, manipulate, or reject imported ideas and practices, or, indeed, how imports are transformed once filtered through local interests and dispositions;[3]. Recent Somalia Rule of Law evaluations indicate that “the high-level direct support provided to the Federal Ministry of Justice and to a lesser extent Federal Member State Ministries of Justices, has produced minimal impact and the institutional dynamics between the two are poorly diagnosed, with common reliance on existing studies and baselines to ‘formulate and design’ justice interventions that have been deemed ‘inflexible’ and ‘unresponsive’ by passing of dialogue and lack of political commitments further compounding these issues”[4]. Further noting that the “programme implementation modalities are not fit for purpose and need to be revisited”.
Taking as its departure point Luckham’s observation that ‘instead of conceiving of the Justice sector as a coherent and “unified” sector, it may be more realistic to see it as a shifting terrain of Justice arena and coalitions’[5]. The sharply defined notions of a Justice sector can be misleading particularly when applied to societies characterized by the absence of common understanding on nature of state, complex legal pluralism, and political entrepreneurship.
These issues should be understood in context of a war economy – where state building is associated with a predatory state and as such is deeply distrusted[6], emergent or embryonic forms of state institutions are confined to major urban areas such as entity capitals, and international reform projects are valued for the entrepreneurial opportunities they bring.
This analytical paper utilizes a paradigmatic case study approach, in this instance, taking to account the recently agreed Somalia’s Justice and Corrections Model (JCM). The Model is to be understood within the context of Somalia’s complex legal pluralism and political entrepreneurship where divergent actors operate in dynamic arena of projectized and individualized interests rather than coherent, institutionalized sector. It questions the orthodoxy that Somalia’s Justice governance should be understood in terms of the actors and networks identified in analyses of liberal democracies[7] which assume the need for models and the existence of specific behavioural patterns, norms and practices intersecting to form linear process that heavily focus on technical solutions rather than acknowledging historical complexity, the “political marketplace and the identity politics, by their very nature, preclude the rule of law and universal access to impartial justice services”. [8]
Read the full paper: Somalia’s Justice and Corrections Model (JCM): New opportunity or business as usual
Abdiwahab Ali
Email: [email protected]
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Abdiwahab is researches and writes about Somalia’s post conflict recovery and development, exploring intersect between society, economy and the rule of law.
[1] Uzi Rabi, The Emergence of States in a Tribal Society: Oman Under Sa’id bin Taymur, 1932– 1970, Brighton: Sussex Academic Press, 2006, p.3. Compare Chan’s application of Bourdieu’s use of ‘field’ (structural positions) and ‘habitus’ (cultural dispositions). See Janet Chan, ‘Changing Police Culture’, British Journal of Criminology, Vol.36, No.1, 1996, pp.109–34.
[2] Judith N. Shklar, Political Theory and the Rule of Law, in The Rule of Law: Ideal or Ideology 1, 1 (Allan C. Hutchinson & Patrick Monahan eds., 1987).
[3] Alice Hills, ‘Lost in Translation: Why Nigerian Police Don’t Implement Democratic Reforms’, International Affairs, Vol.88, No.4, 2012, pp.739–755.
[4] Particip and Dansom, Somalia Rule of Law Evaluation
[5] Gavin Cawthra and Robin Luckham (eds), Governing Insecurity, London: Zed, 2003, p.17.
[6] Henrik Vigh, Navigating Terrains of War, New York: Berghahn, 2006).
[7] Jennifer Wood and Benoıˆt Dupont (eds), Democracy, Society and the Governance of Security, Cambridge: Cambridge University Press, 2006.
[8] Sarah Detzner & Mary Kaldor (2021). Security and Justice Reform:Findings from the Conflict Research Programme. Conflict Research Programme.
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