THE EXPANDING ACCESS TO JUSTICE PROGRAM IN SOMALIA (EAJ) ACCESS TO JUSTICE ASSESSMENT TOOL: 2020 SOMALIA BASELINE STUDY BRIEF

INTRODUCTION The Expanding Access to Justice Program (EAJ) is a fve-year associate award (2018-2023), funded by the United States Agency for International Development (USAID) via the Freedom Houseled Human Rights Support Mechanism (HRSM) and implemented in partnership between Pact and the American Bar Association Rule of Law Initiative (ABA-ROLI). The Program aims to improve access to justice and mechanisms to address grievances in Somalia and Somaliland.

PURPOSE OF ASSESSMENT KEY FINDINGS In order to support access to justice at the local level, in-depth Legal Pluralism: statutory, customary, and understanding of the plural justice landscape and the perspectives religious legal f rameworks coexist and are and behavior of justice seekers is essential. The Access to Justice intertwined. Assessment Tool: Baseline Study focuses on the reality of justice Shari’ah forms the basis of both statutory and services by investigating perspectives and experiences of individuals, customaryAdvice and law representation and enjoys high are legitimacy, only needed but groups, and those who assist them in searching for redress for their for statutoryis also institutions, a point of political not for customary contention. grievances or conficts. or religious pathways to jus-tice

BASELINE STUDY OVERVIEW Male elders are the principal justice providers. This study is based on 464 household surveys, 64 Key Informant Interviews, 16 Focus Group Discussions, and 16 Most Signifcant Most court offcials have not been trained in Change Studies, as well as a comprehensive literature review. Data Somali law and follow customary procedure was collected by the Somaliled development frm Transparency in practice. Solutions in eight districts across two federal member states and Most justice users can neither afford nor Benadir region: otherwise access qualifed advice or representation. Benadir Jubaland State South West • Hodan of Somalia State Al Shabaab courts proft f rom endemic • Hamar Jabjab • Kismayo • Baidoa corruption and offer swift enforcement. • Wadajir • Dolow • Xudur • Weydow SUMMARY OF KEY FINDINGS

LEGAL LEGAL ADVICE & FRAMEWORK KNOWLEDGE REPRESENTATION

• Statutory institutions are far younger • Most users and practitioners have only • Lack of legal knowledge extends to most than customary and religious traditions, a rudimentary understanding of advice and representation. with which most justice seekers are statutory law. familiar. • Customary and religious procedures, • Most lawyers and judges are not and Al Shabaab courts, do not require or • A court system is still being rebuilt. Elders trained in Somali law. No standardized accommodate advice or representation. remain the primary justice providers. curriculum or examination exists. Legislation has often not been • Lawyers or civil society are mostly • Courts and elders follow customary reviewed in decades. available to main urban areas, especially procedures. Legislation is rarely applied, Mogadishu, but quality is unreliable. outcomes often unpredictable. • Customary xeer is the province of Most other communities rely on elders. elders, passed on orally, but in some • Shari’ah is the constitutional basis of locations is starting to be documented. • Marginalized groups often cannot statutory law, permeates customary access advice or call upon infuential processes, and enjoys strong le-gitimacy. • Women and rural populations are elders. particularly disadvantaged. • Justice seekers frequently use Al • Most high-paid advice and Shabaab courts, especially for land • Justice seekers liaise with institutions representation comes to bear in land disputes. via community leaders, mostly clan disputes. elders.

ACCESS TO FAIR ENFORCEABLE JUSTICE PROCEDURE SOLUTIONS

• Main access barrier is cost, which • Statutory courts have a reputation for • Elders and ulama rely on authority for interacts with clannism as local minority endemic corruption, requiring offcial enforcement, ask parties to commit clans tend to be poorer and less and unoffcial payments throughout prior to proceedings. well-connected. processes that determine outcomes. • Enforcement by security forces entails • Precarious livelihoods and lack of • Reputation of elders has been further costs, especially in land adequate and affordable representation tarnished by ‘political elders’ disputes. render the time needed to fle cases participating in patronage and prohibitive. corruption but is largely intact and • If kinship ties or payments suffcient, crucial as their authority derives from security forces may act irrespective of • Elders, ulama, and Al Shabaab work free it. court/elder verdict or ongoing appeal. of charge. Elders require refreshments, remote Al Shabaab courts transportation. • Political and security actors can and do • Displaced and minority communities intervene in court processes. Judicial are often unable to have decisions • Security forces are often linked to clans, independence is not protected. enforced. putting justice seekers at risk of retaliation. • Perceived unfairness/corruption is the • Ability to enforce decisions swiftly is the main push-factor towards Al Shabaab main pull-factor for Al Shabaab courts. • SGBV victims face social stigma when courts. seeking redress. Elders handle most cases.