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Somalia's Alternative Dispute Resolution Centers

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Somalia's Alternative Dispute Resolution Centers ACCESSING JUSTICE: SOMALIA’S ALTERNATIVE DISPUTE RESOLUTION CENTERS Front cover image: ©Flickr_AMISOM IDLO – ACCESSING JUSTICE: SOMALIA’S ALTERNATIVE DISPUTE RESOLUTION CENTERS CONTENTS Abbreviations 4 List of figures and tables 4 PART I: BACKGROUND 7 Understanding justice traditions in Somalia 7 Justice challenges 8 National policy and IDLO programming 11 Standard Operating Procedures 12 PART II: METHODOLOGY AND FRAMEWORK OF ANALYSIS 14 Methodology 14 Framework of analysis 15 Addressing gender-based violence against women 16 Applying the framework 18 PART III: RESEARCH FINDINGS 18 STRUCTURAL DIMENSION 18 A. Participation 18 B. Accountability 31 PROCEDURAL DIMENSION 35 C. Due process 36 D. Verifiable evidence 48 E. Adjudicative impartiality 50 NORMATIVE DIMENSION 51 F. Protections for the vulnerable 51 ACCESS TO JUSTICE FOR ALL SOMALIS 62 The value of ADR Centers 62 Gaps and challenges 63 Satisfaction with ADR Center services 67 PART IV: CONCLUSION AND RECOMMENDATIONS 70 Recommendations and entry points to improve access to justice for all 72 3 IDLO – ACCESSING JUSTICE: SOMALIA’S ALTERNATIVE DISPUTE RESOLUTION CENTERS ABBREVIATIONS ADR alternative dispute resolution CEDAW Convention on the Elimination of All Forms of Discrimination Against Women CRC Convention on the Rights of the Child GBV gender-based violence GBVAW gender-based violence against women (and girls) ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights IDP internally displaced person OECD Organisation for Economic Cooperation and Development SDG Sustainable Development Goal SGBV sexual and gender-based violence SOPs Standard Operating Procedures UDHR Universal Declaration of Human Rights UNDP United Nations Development Programme LIST OF FIGURES AND TABLES Figure 1: National policy on Xeer 11 Figure 2: Summary of research methods 14 Figure 3: Dimensions of justice framework (Danish Institute for Human Rights) 16 Figure 4: Number of case files reviewed among registered cases per Center 19 Figure 5: Number and age of complainants and defendants in case files reviewed 19 Figure 6: ADR actor views on participation by children in the ADR process 21 Figure 7: Composition of Adjudicators and Clerks by gender per region as of April 2020 22 Figure 8: Self-reported age composition of ADR Adjudicators and Clerks per region (at the time of data collection) 23 Figure 9: Composition of ADR actor roles in the Centers 24 Figure 10: ADR actor views on differences in roles and participation between men and women Adjudicators* 26 Figure 11: Views of users on gender equality in ADR Centers, including equal treatment of men and women as parties and witnesses 30 4 IDLO – ACCESSING JUSTICE: SOMALIA’S ALTERNATIVE DISPUTE RESOLUTION CENTERS Figure 12: Views of users on the gender sensitivity of ADR Center staff 30 Figure 13: Reasons identified for voluntary or mandatory Adjudicator termination* 32 Figure 14: ADR actor views on the importance of Adjudicator accountability 34 Figure 15: Nature of disputes in case files reviewed* 36 Figure 16: ADR actor views on barriers to accessing justice through formal mechanisms (e.g. the courts and the police)* 41 Figure 17: ADR actor views on links with formal justice institutions 42 Figure 18: User indications of the duration of ADR proceedings 45 Figure 19: ADR actor descriptions of systems of follow-up and enforcement of ADR decisions 46 Figure 20: User views on enforcement of ADR Center decisions 47 Figure 21: Methods of verification of evidence described by ADR actors* 49 Figure 22: User views on impartiality of Adjudicators 50 Figure 23: User views on whether the ADR process was objective and unbiased 51 Figure 24: Legal frameworks used by Adjudicators to resolve disputes* 52 Figure 25: ADR actor views on whether outcomes are usually consistent in similar cases with similar facts 53 Figure 26: ADR actor indications of whether they rely on precedent for decision-making 54 Figure 27: Analysis of case outcomes per region* 55 Figure 28: Case outcomes for family maintenance and other marital disputes* 56 Figure 29: Case outcomes for disputes involving GBVAW* 56 Figure 30: ADR actor views on whether a decision by the ADR Center not complying with the Constitution would be valid 61 Figure 31: ADR actor views on the value of ADR Centers in their communities* 62 Figure 32: ADR actor perspectives on gaps, challenges and areas for improvement in ADR Center operations* 63 Figure 33: Perspectives of users on areas for improvement in ADR Center operations* 64 Figure 34: User views on the legitimacy of ADR Adjudicators 68 Figure 35: User views on Adjudicator authority and respect in the community 68 Figure 36: Average level of user satisfaction with the ADR outcome 69 Figure 37: User ratings of the usefulness of the resolution provided by the ADR Center 69 Figure 38: User views on whether justice has improved since the opening of the ADR Center in their community 70 Table 1: ADR Centers in Somalia 12 Table 2: ADR Center staff roles and responsibilities 13 Table 3: Human rights obligations – African Charter and Protocol on Women’s Rights 17 Table 4: Number of complainants and defendants by gender and region in case files reviewed 20 Table 5: Human rights violations identified through case file review 61 Table 6: Select SDG 16 targets and indicators and related data 71 5 IDLO – ACCESSING JUSTICE: SOMALIA’S ALTERNATIVE DISPUTE RESOLUTION CENTERS 6 IDLO – ACCESSING JUSTICE: SOMALIA’S ALTERNATIVE DISPUTE RESOLUTION CENTERS Part I: BACKGROUND With the adoption of the Constitution of Somalia in RESEARCH FOCUS 2012, a Somali Federal Government replaced a transitional government after two decades of civil war. As a consequence of conflict, public institutions Concerns and needs of justice seekers were severely damaged and Somalia’s development and humanitarian indicators remain among the Consistency with national and lowest globally. With national partners, IDLO is international law and justice standards helping rebuild and strengthen institutions, as a precondition to improving the lives of Somali citizens. Gaps or barriers in enabling This includes strengthening the justice sector, to help achieve sustainable pathways to peace and security. environment and justice mechanisms During 2019–2020, IDLO studied six alternative Discrimination or bias in process or dispute resolution (ADR) Centers in Somalia and their outcomes for vulnerable groups contribution to access to justice, within the context of Sustainable Development Goal (SDG) 16 of the 2030 Performance and perspectives of Agenda for Sustainable Development. Agenda 2030 ADR actors offers an overarching framework in which to view development achievements and SDG 16 provides Recommendations for policy and guidance to advance a peaceful and inclusive society, programming access to justice for all, and effective, accountable and inclusive institutions. Culminating in this report, the research focused on justice seeker needs, consistency with justice “people-centered approach to justice starts with an administration standards, gaps or barriers, understanding of people’s justice needs and designs performance and comparative perspectives, and solutions to respond to them”, through a justice recommendations for policy and programming. The system that is open and inclusive.1 core goal of the research is to provide evidence of the progress, quality and responsiveness of ADR Centers as a justice mechanism in Somalia, particularly with UNDERSTANDING JUSTICE TRADITIONS IN respect to access to justice for marginalized SOMALIA populations, with consideration for available resources and the existing political, socio-economic Somalia maintains a pluralistic justice system, which and service environment. This report is divided into is a legacy of four legal traditions – Xeer customary the following sections: law, religious sharia law, Italian civil law, and British common law. With the collapse of Somali judicial Part I: Background institutions during the civil war, people relied on Part II: Methodology and Framework of Analysis long-standing forms of dispute resolution, including Part III: Research Findings Xeer, and ad hoc mechanisms established by militia Part IV: Conclusion and Recommendations factions.2 During the war and its aftermath, Somalis continued to rely on the strengths and durability of An integral part of achieving SDG 16 is adopting a the Xeer system, contributing to its increased people-centered approach that ensures inclusive importance in the country.3 Indeed, through the years, engagement, involving women and marginalized Xeer has become a primary source of law used to groups. As noted by the Task Force on Justice, a settle disputes in Somalia.4 1 The Task Force on Justice, Justice for All (April 2019), p. 11, available at: https://www.justice.sdg16.plus/report. Recent synthesis by the Organisation for Economic Cooperation and Development (OECD) identifies people-centered design criteria for justice systems. See OECD, Equal Access to Justice for Inclusive Growth: Putting People at the Centre (OECD, 2019), p. 195, available at: https://doi.org/10.1787/597f5b7f-en. 2 M. Vargas Simojoki, “Unlikely Allies: Working with Traditional Leaders to Reform Customary Law in Somalia”, in E. Harper, ed., Working with Customary Justice Systems: Post-Conflict and Fragile States (IDLO, 2011), p. 35. 3 M. Vargas Simojoki, Evaluating the Effectiveness of Legal Empowerment Approaches to Customary Law Reform in Somaliland and Puntland (IDLO, UNDP
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