One often cited issue in the current Afghanistan war is the support given to the Taliban by various elements within Pakistan's governmental and military structures. The underlying questions that have been attempted to be answered lie within the framework of the regional geopolitics that encapsulates the current Afghan-Pakistan dilemma. One of those questions and the answer to that question that is predicated within the geopolitical dynamic of the region is. Pakistan’s lack of territorial strategic depth:
India has courted the Afghan government since its inception in 2001, providing it with financial and infrastructural support. Pakistan’s fear is that Afghanistan will serve as a hinge of India’s grand strategy of encircling Pakistan. Thus, Pakistan’s mission in Afghanistan is to subvert Indian influence by creating an atmosphere of instability via the promotion and or tacit consent of Taliban infiltration from its bases in Pakistan across the border.
However, there are other factors that require analysis so that a more comprehensive understanding of Pakistan’s intentions in Afghanistan can be well understood. One element which has garnered little attention but has played a significant role in Pakistan’s strategy in Afghanistan is the great rift that is currently taking place within the internal political dynamic of the country. Pakistan is undertaking a decade’s long internal political struggle that has manifested itself in the current schizophrenic policy towards Afghanistan.
Dislocation within the political and military elite of Pakistan is a manifestation of the changing geopolitical landscape of South Asia. Pakistan is caught between the crosswinds of two significant and interrelated geopolitical forces which have ostensibly transmuted its policy towards Afghanistan and even more significantly will circumscribe the future course of its foreign policy. The First force at play is the sustained meteoric rise of China as a significant force in Central Asia, corresponding with the rise of China as a global power and the relative weakening of American power regionally and internationally. The second interrelated force at play is the diminution of Pakistan’s once significant position as the bulwark against Russian encroachment into Asia, resulting in the slow but systematic post Cold War realignment of the Unites States strategic interests away from Pakistan and closer to India. India has now emerged as the United State key strategic ally blocking the rise of China as a world superpower. Thus, India has subverted the role Pakistan once played for the United States; as a barrier against the rise of a world power in Asia.
What have emerged from the geopolitical crosswinds discussed above are two contradictory and often conflicting geostrategic viewpoints in Pakistan leading to a cleavage within the governmental and military structure of the Nation.
The first option is to remain within the geopolitical alliance with the United States. This course of action would predictably entail entering into closer and more peaceful relations with India the United States most vital post cold war strategic partner in the region. Under this course of action United States power, economic political and military, would provide the needed lubricant to maintain the regional pact between the two South Asian rivals. Significant to Pakistan’s internal political discord, a US facilitated detent with India will mostly likely impose a South Asian geopolitical framework in which Indian controlled Kashmir will remain under Indian suzerainty. Thus the maintenance of a strategic partnership with a United States entails Pakistan’s acquiescence of India’s control over a territory that the two nations have fought many wars since the partition of South Asia sixty years ago. Thus, a cleavage is or will naturally form within Pakistan’s political and military elite between those who wish to remain within the strategic partnership with the US and those who would rather maintain hostile relations with India in the hopes of eventually incorporating Kashmir into an enlarged Pakistan.
The second option is a decoupling Pakistan’s strategic alliance with the United States and the establishment of a closer geostrategic partnership with China. The prevailing argument is that Chinas long rivalry with India will facilitate and sustain Pakistan’s quest for the absorption of Kashmir; while an American strategic partner with ever increasing alliance with India will be less likely to tolerate Pakistan’s bellicose stance. Thus, closer relations which China will lead a higher probability of conflict with India, likely entering a new arc of increased tension perhaps manifesting themselves in border skirmishes that may lead to outright war.
Jingoistic forces in Pakistan see the decoupling of Pakistan’s alliance with the United States and closer strategic alliance with China as favorable factors in maintaining their long favored position of increased tension in South Asia as the appropriate strategy towards the recapture of Kashmir. Often it is Islamist elements, historically sponsored by the military and governmental structure of Pakistan, which support such a strategy. This is the key to understanding Pakistans pro Taliban and corresponding anti US-Indian stance in Afghanistan.
Pakistan has and will always view its foreign policy via the prism of checking India, its South Asian arch rival. In the next chapter I will attempt to provide an explanation of Pakistan’s Schizophrenic policy towards Afghanistan by examining the regions changing geopolitical landscape.
Friday, November 11, 2011
Tuesday, November 8, 2011
The Andorra Plan: Another road toward a resolution of the Israeli-Palestinian conflict
The Andorra Plan: Another road toward a resolution of the Israeli-Palestinian conflict
In the Judgment of Solomon, then King of Israel was asked to judge which of the woman who claimed to be the mother of a child was its true mother. Solomon declared that there is only one fair solution “the live child must be split in two, each woman receiving half of the child. But the true mother, stated. "Please, My Lord, give her the live child—do not kill him!" In turn the other female exclaimed, "It shall be neither mine nor yours—divide it!"
The child had only one true mother, the mother that loved the child to such a degree that she was willing to give the child away to another mother so that the child would not be cut in half. Jerusalem, the city that lies at the heart of the passions of both sides national consciousness, and thus at the core of the current deadlock in the peace process, is the child that negotiators and the international community are demanding to be split between two mothers; both of whom claim sole ownership.
Here lies the unbridgeable dilemma. The international community’s diplomacy during the past 30 years has predicated upon a two state solution, with Jerusalem eventually being Split between the two states. After 30 years both side have been unwilling to make the ultimate decision that will solve the conflict.
However, there is another way in which Solomon could have resolved child dilemma; joint custody over the child. The mother would agree with it since the ulterior choice was the loss of the child (by death through cutting in halve or complete custodial loss to the other mother. Israeli and Palestinian negotiators can also benefit by the Joint Custody over Jerusalem. The plan to achieve this is to create a third entity one that has sovereignty over Jerusalem; sovereignty that is shared both parties.
I refer to it as “the Andorra plan”. The framework of the sovereignty for this small principality and its relationship with its neighbor, France and Spain, can serve as a new roadmap towards a resolution of the Jerusalem issue. Andorra is a small nation state perched high up in the Pyrenees range that form the boundary between Spain and France. Andorra is co-principality that has dual sovereigns. The president of France (whoever is the president at that time) and the Bishop of Urgell (Catalonia, Spain) act as the dual princes of Andorra. The country has two post office and two postage stamps, one from France and the other from Spain. Yet it also retains some aspect of independence, having it own executive and legislative framework.
A way forward in the peace process is to create a third entity that possesses two seemingly contradictory elements. Jerusalem will be eternally linked to Israel in that its sovereign will be the head of Israel; It will also be part of Palestine in that the head of state of Palestine is also the sovereign of Jerusalem. Separating Jerusalem from the two warring parties has been attempted before. The United Nations called for Jerusalem to be an “an international city”; an entity which not be a part of either country.
But the Andorra plan is different from the previously attempted approach in one significant way. Under this regime, the City would remain linked to both countries; while maintaining its geographic integrity as a united city that is the corner stone of three of the world great religions.
The geographic dimensions of this third entity can be negotiated and discussed based. It can encompass on the inner walled city while the eastern half as part of Palestine and West Jerusalem remaining within Israel. Or, the third entity can encompass only the Temple mount and the structures that stand on the property.
The specifics of the plan can be discussed by both parties but the cornerstone of the framework would be the creation of a third entity, comprising of the Inner Walled City. This nation would have a dual sovereign in perpetuity, each tying the nation through its head of state to two parties.
Administration of the City itself can be negotiated; below is but one attempt to imagine what it may encompass. The executive of the nation comprises of seven members, one prime minister post and six cabinet post. The post of president is rotated every six months between the current prime minster and the other six members of the cabinet. Three of its members are chosen by Israel and three are chosen by Palestine. A seventh and final post is chosen via direct election by the citizens of the city. These posts are for a period of five years; and come up for re-appointment every two years. Thus, every two years a Palestinian post and an Israeli post will be required to be replaced by a new member. This seven member executive will be responsible to the people to Jerusalem and be given general policing powers.
Wednesday, October 26, 2011
Turkey and its realignment away from the West since Erdogan: Turkeys alliance with the west will depend in major part on how it views the Russian Threat
Turkey’s newly independent foreign policy and its limitations: Why Turkey will not steer far away from the United States.
Over the past decade Turkey has paraded it new found economic resurgence and reassurance by way of its geopolitical repositioning in the region. It has begun to play a leading and more independent role in many of the current issues facing the Middle East. Concurrently as massive economic shockwaves due to the West’s overleveraging of assets have struck the European Union, Turkey has been less motivated by the carrot of future integration with Europe. The independence of Turkey’s foreign policy is also predicated on its relative strength in comparison to its historic northern rival, Russia.
Turkey’s geographic position; dominating Asia Minor, controlling the Black Seas access to the Oceans, and at the cross roads of the Near East, the Persian Gulf Region, the Caucasus, Eastern Europe, the East Mediterranean and the Balkans, present the nation with unique Geopolitical opportunities. However, for centuries Turkish dominated Asia Minor has come into incessant rivalry and animosity with its neighbor to the north, Russia. Russia has for centuries sought to control the Black seas access to the Mediterranean, a key access point controlled since the fall of Constantinople in 1453 by the Turks. The rivalry has often manifested itself either actual wars, or an uneasy peace.
The future of Russo-Turkish relations will be challenged by Russias desire for an access point to the worlds oceans through the Turkish controlled straits. In fact recent decades have provided Russia with increased aspiration for a warm sea port. The loss of Russia’s Soviet Empire in the 1990’s meant the loss of the Baltic States to the expanding European Union and NATO. What remains of Russia Baltic territories are Kaliningrad a small outpost lodged between NATO countries, and St. Petersburg. To the Far East on the Pacific lies Vladivostok, a port city too far away from Russia’s strategic economic heartland to present much strategic value. Thus, Russia’s designs over an access point to the world’s Oceans via the Bosporus have not faded and are likely to increase as it attempts to assume a more dominant role as a power player within the international geopolitical realm.
As Russia’s desire over the Bosporus resurface Turkey’s trepidation of its northern menace will increase. Turkey’s political and military complex will be presented with an impasse in their attempts to steer their countries foreign policy towards a path more independent of Europe and the United States. A more independent foreign policy will inevitably lead to less support from powers which it believes it will need to block the encroachment of its longtime northern rival.
Thus, If Turkey views Russia as a greater threat then is will attempt to seek closer ties to the West. If however Turkey is reassured of Russia's non threatening posture then is will seek out a foreign regional policy that will be more independent of the west.
Over the past decade Turkey has paraded it new found economic resurgence and reassurance by way of its geopolitical repositioning in the region. It has begun to play a leading and more independent role in many of the current issues facing the Middle East. Concurrently as massive economic shockwaves due to the West’s overleveraging of assets have struck the European Union, Turkey has been less motivated by the carrot of future integration with Europe. The independence of Turkey’s foreign policy is also predicated on its relative strength in comparison to its historic northern rival, Russia.
Turkey’s geographic position; dominating Asia Minor, controlling the Black Seas access to the Oceans, and at the cross roads of the Near East, the Persian Gulf Region, the Caucasus, Eastern Europe, the East Mediterranean and the Balkans, present the nation with unique Geopolitical opportunities. However, for centuries Turkish dominated Asia Minor has come into incessant rivalry and animosity with its neighbor to the north, Russia. Russia has for centuries sought to control the Black seas access to the Mediterranean, a key access point controlled since the fall of Constantinople in 1453 by the Turks. The rivalry has often manifested itself either actual wars, or an uneasy peace.
The future of Russo-Turkish relations will be challenged by Russias desire for an access point to the worlds oceans through the Turkish controlled straits. In fact recent decades have provided Russia with increased aspiration for a warm sea port. The loss of Russia’s Soviet Empire in the 1990’s meant the loss of the Baltic States to the expanding European Union and NATO. What remains of Russia Baltic territories are Kaliningrad a small outpost lodged between NATO countries, and St. Petersburg. To the Far East on the Pacific lies Vladivostok, a port city too far away from Russia’s strategic economic heartland to present much strategic value. Thus, Russia’s designs over an access point to the world’s Oceans via the Bosporus have not faded and are likely to increase as it attempts to assume a more dominant role as a power player within the international geopolitical realm.
As Russia’s desire over the Bosporus resurface Turkey’s trepidation of its northern menace will increase. Turkey’s political and military complex will be presented with an impasse in their attempts to steer their countries foreign policy towards a path more independent of Europe and the United States. A more independent foreign policy will inevitably lead to less support from powers which it believes it will need to block the encroachment of its longtime northern rival.
Thus, If Turkey views Russia as a greater threat then is will attempt to seek closer ties to the West. If however Turkey is reassured of Russia's non threatening posture then is will seek out a foreign regional policy that will be more independent of the west.
Friday, October 14, 2011
GUIDING PRINCIPLE OF THIS BLOG
The Underlying goal of the study of history is to un-trench the fundamental factors that have lead to today’s current state of affairs. While political science and geopolitics as a study within the field of politics attempts to present probabilities of what is to take place. Probabilities formulated by the elements that have been the causal effect of present and past conditions.
This approach is the guiding principle of this blog.
This approach is the guiding principle of this blog.
Wednesday, October 12, 2011
Scandinavian Settlement Patterns of the Upper Midwest
Just an observation that I made when looking at the Scandinavian and Nordic immigration in the Upper Midwest of the United States.
Scandinavia Immigration patterns to this region (IE: Wisconsin, Minnesota, Iowa, Upper Michigan, and the Dakotas) in the 19th and 20th century interestingly mimics the geographic position on the Scandinavia Peninsula of the countries these immigrants emigrated from.
There is a high correlation between the settlement pattern of Nordic (or Scandinavians) people and the geographic position of their countries of origin.
The Scandinavian Peninsula is composed of three countries, Norway on the Western Extreme hugging the coast of the North Sea, Sweden in the Middle and Finland in the Eastern quarter of the peninsula. To the south Lies the Jutland peninsula which comprises Denmark.
The geographical pattern of Scandinavia is mimicked by the immigration and settlement patterns of Scandinavian to the Upper Midwest. The maps below show that Counties with the highest percentage of Norwegians in that region are in the extreme western region of Scandinavian settlement. While the Swedish are in the center and the finish settlement is in the east (Mainly Northern Michigan Peninsula North Eastern Minnesota).
The Danish settlement of this region also aligns with this pattern with counties comprising the highest percentage of Danish population in Northern Iowa, due South of the counties were Swedes, Norwegians and Finns settled
(1) Map of Scandinavia; https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhrFqTRr-BO_M3mjqIeoRyFBR49Ns8hNEJls2Ty6UomUwIFlCiYpL4caLB_-atYGIPnJ0G2lAY3qZ-0AGcUlYO_AgiRyK2EG0jBxDDR6n7MNi0NnnJ5sYM776plTE7k73PUbnqDZ5qnuAM/s1600/Map-of-Scandinavia%25284%2529.jpg
(2) Danish Immigration to the Upper Midwest: http://www.valpo.edu/geomet/pics/geo200/pct_danish.pdf
(3) Swedish Immigration to the Upper Midwest: http://www.valpo.edu/geomet/pics/geo200/pct_swedish.pdf
(4) Norwegian Immigration of the Upper Midwest: http://www.valpo.edu/geomet/pics/geo200/pct_norwegian.pdf
(5) Finish Immigration to to the Upper Midwest: http://www.valpo.edu/geomet/pics/geo200/pct_finnish.pdf
I have yet to understand the reasoning’s behind the settlement pattern of Scandinavian in this region and have not found any analysis of this pattern on the internet.
If and when I find such information I will be sure to post it.
Scandinavia Immigration patterns to this region (IE: Wisconsin, Minnesota, Iowa, Upper Michigan, and the Dakotas) in the 19th and 20th century interestingly mimics the geographic position on the Scandinavia Peninsula of the countries these immigrants emigrated from.
There is a high correlation between the settlement pattern of Nordic (or Scandinavians) people and the geographic position of their countries of origin.
The Scandinavian Peninsula is composed of three countries, Norway on the Western Extreme hugging the coast of the North Sea, Sweden in the Middle and Finland in the Eastern quarter of the peninsula. To the south Lies the Jutland peninsula which comprises Denmark.
The geographical pattern of Scandinavia is mimicked by the immigration and settlement patterns of Scandinavian to the Upper Midwest. The maps below show that Counties with the highest percentage of Norwegians in that region are in the extreme western region of Scandinavian settlement. While the Swedish are in the center and the finish settlement is in the east (Mainly Northern Michigan Peninsula North Eastern Minnesota).
The Danish settlement of this region also aligns with this pattern with counties comprising the highest percentage of Danish population in Northern Iowa, due South of the counties were Swedes, Norwegians and Finns settled
(1) Map of Scandinavia; https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhrFqTRr-BO_M3mjqIeoRyFBR49Ns8hNEJls2Ty6UomUwIFlCiYpL4caLB_-atYGIPnJ0G2lAY3qZ-0AGcUlYO_AgiRyK2EG0jBxDDR6n7MNi0NnnJ5sYM776plTE7k73PUbnqDZ5qnuAM/s1600/Map-of-Scandinavia%25284%2529.jpg
(2) Danish Immigration to the Upper Midwest: http://www.valpo.edu/geomet/pics/geo200/pct_danish.pdf
(3) Swedish Immigration to the Upper Midwest: http://www.valpo.edu/geomet/pics/geo200/pct_swedish.pdf
(4) Norwegian Immigration of the Upper Midwest: http://www.valpo.edu/geomet/pics/geo200/pct_norwegian.pdf
(5) Finish Immigration to to the Upper Midwest: http://www.valpo.edu/geomet/pics/geo200/pct_finnish.pdf
I have yet to understand the reasoning’s behind the settlement pattern of Scandinavian in this region and have not found any analysis of this pattern on the internet.
If and when I find such information I will be sure to post it.
Tuesday, October 11, 2011
Split Horizon: Somalia, Anarchy & Governance: How to Incorporate Somalia’s Traditionally Autonomous Political and Cultural Identity into a Functioning State [PART 1]
Split Horizon: Somalia, Anarchy & Governance: How to Incorporate Somalia’s Traditionally Autonomous Political and Cultural Identity into a Functioning State.
Somalia has been a nation without a central government for close to twenty years. Since 1989 Somalia has suffered civil war with horrific consequences to its society. When the central authority of Somalia collapsed in 1991 clan based factions filled the political vacuum, but failed to coalesce into a united government. Instead, "they attacked each other and provoked a war that caused the deaths of an estimated 250,000 people and drove hundreds of thousands out of the territory."1 Ever since then, Somalia‟s governmental, administrative and bureaucratic systems have ceased to function. According to many regional analysts, much of Somalia, particularly the populated south has reverted to a state of anarchy; "Lawlessness, anarchy, and the consequent famine were most profound in Southern Somalia,"2 According to former UN envoy to Somalia, Mohamed Sahoun, Somali society is like, "a vase that has been smashed into small fragments."3 According to Mario Silva in his work, Somalia: State Failure, Piracy, and the Challenge to International Law, "failed states face an internal collapse of law and order. Functionally, failed states lack bodies capable of representing them at the international level and lack the capacity for accepting external influence."4 The legal definition of a collapsed state, "is one which, though retaining legal capacity, has for all practical purposes lost the ability to exercise it. . . .[T]here is no body which can commit the State in an effective and legally binding way."5 The failure to establish relations with other entities, (states, international organizations including non-governmental institutions) on an international level pose humanitarian and geo-political consequences for the international community. This challenge was evident in the early years of the Somali civil war where, "a key factor in the lack of major international action was Somalia‟s nonfunctioning governing system, which raised the question of how the UN could resolve the chaos and whether it should intervene without consent."6 The Unites States along with a coalition of international partners formed United Task Force (UNITAF) which was charged with carrying out United Nations Security Council Resolution 794, "to establish as soon as possible the necessary conditions for the delivery of humanitarian assistance wherever needed in Somalia."7 Soon after its intervention in Somalia, both the United States and the United nations realized they could not leverage the success [of humanitarian aid operations] into civil and political rehabilitation."8 Within a few weeks, "pitched battle between two dominant 2 Mogadishu clans occurred."9 Soon the inter clan conflict bleed into US lead relief operations leading to the death of dozens of United States soldiers. By late 1993 the Unites States became wary of continues presence in Somalia and the President Bill Clinton stated, "That all US soldiers would be withdrawn by 31 March next year [1994]."10 Since the withdrawal of US and international forces from Somalia in 1993-1994, the international community has yet to respond effectively to the plight of the Somali citizenry. Somalia‟s administrative and political collapse has created a vacuum allowing internal and external forces from taking a foothold its soil. For instance the rise of lawlessness and anarchy has lead infiltration into Somalia by internationally based Islamists networks. Islamic sharia socio-political and legal entities have, "always existed and are derived from a traditional model for administration, adapted to a social and political structure based on a population dominated by nomadic and agricultural economies."11 Recently Somalia‟s Islamist groups have projected their attacks outside of Somalia into neighboring countries. On July 11th of this year, "Somalia's al-Shabaab militia, (an offshoot or coalition partner of Somalia Islamic Courts Union ICU) claimed responsibility for the July 11 suicide bombings that killed 76 people watching soccer on TV in Uganda."12 Piracy is a further symptom of the collapsed Somali state. The past decade has been the drastic rise in piracy in north-eastern Indian Ocean and the Gulf of Aden, (connecting the Red sea to the Indian Ocean). The vast majority of acts of piracy emanates from bases in Somalia. In 2010, "Somali pirates' raids on vessels account for more than half of the incidents of piracy,"13. Pirates stemming from the Somali coastline have hijacked vessels ranging from large container ships to private yachts. In 2009 for example an English couple was taken hostage on board their yacht by Somali pirates. After the hostage taking the pirates spokesmen called Hassan stated, "If warships surround us, we shall point our guns at the British tourists."14 The resolution to these issues needs to encompass two distinct but interconnected strategies. First, there needs to be a comprehensive regional approach towards the reduction of conflict in the region, (Horn of Africa and South-Western Arabia), via creation of regional economic & political cooperation. There needs to be resolution of the decades old territorial disputes between the states of the Horn of Africa. The second strategy needs to be the rebuilding of Somalia‟s governmental institutions and legitimacy of the rule of law. These two elements are interrelated in that there cannot be a stable government in Somalia without a resolution of Somalia territorial aspirations with respect to its neighbors. Concurrently there cannot be a resolution of the territorial disputes without the presence of a stable legitimate Somali government.
Here it is important to note that it may well a lack of a political and administrative structure in Somalia rather than the prevalence of poverty which has lead to an increase in piracy. According to, Hansen
" poverty is also common in coastal areas in neighboring states such as Yemen, Kenya and Tanzania, yet the frequency of piracy today in these areas is low compared to the 3 pirate regions of Somalia.31 In other words, piracy never occurred or was limited in other places that were equally poor or poorer."15 Many believe that the spate of piracy in the Indian Ocean has resulted from the lack of an administrative authority or any semblance of an executive enforcement body in Somalia. Over that past two decades many in the international community have invested countless hours devising a new political, judicial, and constitutional structure for Somalia. Manny others have sought to answer the question of why Somalia‟s governmental and administrative structure disintegrated and have yet to re-organize as a more cohesive unit. Here it is important to note that what is surprising to many academics and political and legal scholars regarding Somalia‟s dissolution into war and anarchy is that the Somali nation encompasses many elements which have previously been thought to be greatly advantageous towards the creation of a stable functioning state. The Somali‟s encompass three important attributes that are usually necessary for the establishment of stable nation state, a common language, a common ethnicity and historic experience, and a common religion. Rupert Emerson in the Forward to the Book
"One of the distinctive attributes of the Somalis…is that they possess a good measure of the elements, derived from the example of Classic Western European prototypes, which have in the past been assumed to be the essential ingredients of a nation. In contrast to most other African peoples, the Somalis are united in language… They are also united in the Muslim religion and in the belief in a common descent and heritage."(4)
Thus the intriguing question is why Somalia failed, despite the presence of such inherent advantages towards developing a unified nation-state. In other words, what are the other factors and attributes which lead to the demise of the government.
This paper hopes to shed light onto the many historic, legal, constitutional, and administration causes of why Somalia, a nation witch possesses such attributes failed to maintain a semblance cohesion amongst its citizenry. Additionally, we will discuss the many challenges faced by the international community‟s objective of resuscitating a stable functional Somali State. Here we will focus on the political, legal and constitutional challenges the Somali people and the international community face in re-developing a functioning Somali state. The issues and challenges that will be discusses are, Somalia‟s history of anarchism or semi-anarchism as the preferred socio-economic and political order; formation of a new Somali constitution which adheres to human rights and democratic leaning political order while maintaining essential Somali and Islamic socio-cultural element; whether the notion of a modern western style nation-state is compatible with Somalia cultural foundation; and whether a future Somali state should consist of both northern and southern Somalia or should Somalia be split along historic colonial lines.
In order to answer or shed light into these question this paper will discuss the historic underpinnings of Somali society including its culture, past political history, and religious institutions. We will discuss Somalia‟s cultural heritage of the "Xeer" adjudicative system, & Islamic Sharia law. Also we will discuss Somalia‟s colonial past and its influence on Somali law and the formation of the Somali political and administrative structure. More so, this paper will analyze the creation of Somalia‟s constitution and Somali legal and administrative system after its independence. Next, this paper will discuss the Somalia‟s irredentist aspirations and Somali Nationalism writes, 4 subsequent governmental decay. Finally we will analyze the states deterioration into anarchy during the two decades of civil war in that country.
The next sections of this paper will analyze the current legal and political institutions that are playing a governmental role in the different territories they control. Here we will play close attention to the different legal systems that have taken hold in Somalia after its governmental collapse in 1991. Finally we will discuss possible means with which Somalia can reconstitute itself as a stable more pluralistic society at peace with itself, its citizenry, and its neighbors. According to legal scholars, state building in Somalia is ultimately, "about rebuilding relationships at all levels, restoring the people‟s trust and confidence in governance systems and the rule of law, and providing the population with greater hope for the future."16 This section will present a set of guidelines which can serve as a framework towards the reconstituting central authority and governance in Somalia. Here, will pay particular focus on the inclusion of historically and culturally significant legal and administrative Somali doctrines within the framework of a future Somali governmental structure and constitutional system, in the hope of establishing a more resilient and stable centralized authority. 2. Somalia: Culture, Colonialism, and Anarchy Many nations have experienced civil wars and other internal conflicts which have lead to the disintegration of its central authority. However, in modern times the vast majority of these nations have been able to in the least reconstitute some semblance of national governance and political activity. However, close to 20 years the collapse of central authority the Somalia people have yet to reconstitute a nation government. This section will provide a background into the different socio-political economic and historic forces which continue to play dominant role in Somalia. A: A Society of Anarchy Claude Ake wrote in his work, The Feasibility of Democracy in Africa "In most of Africa, the state is a contested terrain where different nationalities, sub-nationalities, ethnic groups„ and communities go to fight for the appropriation of resources including power."17 Continuing he remarks that " A state which is a contested terrain in this sense can only be an anarchy of self-seeking and a theatre of war."18 As stated previously, what is perplexing about the Somalia is that is encompasses a significantly (relative to other African countries) unified self-identity. It‟s nearby by neighbors in East Africa encompass a myriad of ethnic, linguistic, and religious factions within their national polities. For example, Kenya, a nation to the south comprises of eight different ethnic groupings, a myriad of religions, (Catholics, Protestants, Muslims, and differing indigenous religions), and numerous languages with little to no mutual intelligibility.19 Ethiopia, a nation to the west of Somalia, also encompassed a varied ethnic grouping amonst them the Oromo, 5 Amara, Somalie, Tigraway, Sidama, Guragie, Welaita, Hadiya, Affar, Gamo; with approximately 60% practicing Christianity and 30% Islam. Deviating from these nearby states, Somalis believe in a common ethnic decent from the family of the prophet Muhammad, all speak the same language with great mutual intelligibility between different dialects, and almost all Somalis belong to the Sunni Islamic faith. Yet, over the past twenty years the Somalis have failed to create a unified political, judicial, and administrative body.
Over the past two decades Somalia has been compared and contrasted with Afghanistan. As failed states both share some similarities. However the differences between the two states, far outweigh their similarities; thus Afghanistan does not provide an exact analogous comparison to the current socio-political dynamic in Somalia. First, Afghanistan is in many ways an artificial edifice; created as a buffer state between the growing colonial empire of the British in India and the Russian domination of Central Asia. In addition, Afghanistan encompasses a myriad of differing ethnic, religious and linguistic groupings; including the Shiite Ethnically Mongol Hazars, the Farsi Speaking Tajiks, the Pashtuns of the south, and Turkic ethno-linguistic groups such as the Turkomen and Uzbeks in the north. As states earlier Somalia does not encompass such a myriad of differing ethno-linguistic groups.
Thus the issues that we must analyze are what factors in Somali society make it difficult for its people to unite under a centralized administrative body?
A counter-intuitive argument perhaps is that the more ethnic divide in a nation state leads to greater consolidation of power within a specific ethnic group; the group controlling the reigns of power in the central government. As a result of the group‟s strategy of maintaining power it initiates programs aimed at centralizing power within the national government. Thus group‟s domination over other groups facilitates a concentration of power within the central government.
Kristi Samuels presents an argument for Somalia‟s inability to reunify based on its society‟s failure to meet the legal and administrative challenges of a unified, modernizing, and more urban state. She states, "The social system within Somalia, which evolved over a thousand years to support a nomadic economy and a nomadic culture, has not adjusted well to the fundamental changes of the last fifty years, particularly those represented by large migrations to urban areas."21 2. Clan and Genealogy in Somali society: The, "Clan is integral in Somali society and influences all aspects of Somali life."22 The clans system has played a significant role in preventing Somalis from reunifying into a nation state. According to a 2005 work by the World Bank, Conflict in Somalia: Drivers and Dynamics, The Somali experience demonstrates that clan is a double-edged sword––it closely links Somalis and tears them apart."23 "Clan relationships brought families together to help one another, as in the case of violent distribution disputes (for example over water), which were quite frequent."24 Eventually over many generations, "this gave rise to a differentiated social system: families joined to form sub-clans, which, over in turn formed clans and ultimately clan families."25 The clan structure can divided into three groups. The primary levels are the diyah-paying groups and the primary lineage, "which both might encompass a few hundred to a few thousand individuals."
Genealogy plays a vital role in the Somali clan system. It legitimized an individual‟s claim of belonging to a clan. It is at the same time a tool which binds all Somalis together into a large extended family, and an agent of deep division along clan lines. "It is a matter of pride to teach children their father‟s genealogy."26 At the top, "is the clan-family, which include as many as millions of individuals."27 Traditionally, "the main clan families of Darod, Dir, Issaq, Hawiye and Rahanweyn, along with minority clans, constituted Somali society."28 Furthermore, each if these clans are subdivided into sub-clans, sub-sub-clans and extended family groupings. 29 According to I.M. Lewis, "the ease with which small children of eight or nine years can recite their genealogies up the their clan family ancestor is astonishing."30 Continuing he points out, "everyone knows his genealogy"31. According to tradition, "the Somali nation symbolically consists of a vast genealogical tree. Nearly all Somalis descend from a common founding father."32 It is important to note that the clan system based on genealogy is not rigid as it is often subject to ongoing socio-economic and political dynamics."
"in the event of conflict alliances form that always relate to a specific conflict. This leads to situations in which two hostile segments may easily form a short-term alliance against a mutual enemy if a new conflict emerges – only to resume their bilateral conflict afterwards."33 According to Dirk Spilker, 34 The alliance formed is subject to alteration and or dissolution once the economic or political advantage of maintaining the alliance has waned, "permanent political institutions – such a notion is generally foreign,"
This phenomenon is not all harmful. By the late 1990‟s Somalia‟s, "military conflicts became increasingly sporadic with short-lived skirmishes. An uncertain stalemate came to prevail in Somalia."35 to traditional Somali society. Interestingly, the organic and loose structure of the inter-clan system, "leads in aggregate to a balance of powers: the position of the individual segments with respect to one another is constantly changing, but the overall balance is maintained."36 As a result clan identification "is used as a tool to mobilize clan members when in conflict, and cleavages are drawn upon to wage war." In this way, clan and subclan differences may be, "a force for division and fragmentation, particularly when manipulated for political or [economic] purposes,"37 by warlords, regional powers [in the case of Ethiopia or Eritrea] or the business elite. 38 More so, "while militia-factions regularly shifted their alliances, frontlines between them rarely moved."39 Thus a "prevailing balance of power prevented any one militia faction from imposing its rule over another."40 The primary example of this phenomenon is the current political dynamic in Somalia in general and southern Somalia in particular. The failure to form a central authority is in part a manifestation of the failure one clan to assume overall dominance in Mogadishu. This failure is in part the result to the organic non-rigid system of clan alliances described above. IM Lewis describes the varying and constant shifting of alliances, writing, "So as we have seen, the USC faction leaders in Mogadishu, however divided among themselves internally, are perceived externally as being all Hawiya. This tends to trigger a corresponding reactive alliance of various Darod clans factions at a higher level of Darod unity." According to Ken Menkhouse, "Instead of reaching a power-sharing agreement, faction leaders redirected their attacks on rival clans, leading to a massive flight of Darod clansmen out of Mogadishu and ushering in a destructive two-year civil war."
The independent nature of clan society also translates to Somali societies perception of government or any other central authority, "another structure, stronger than the clan, with an army force and abundant resources to freely compete for and by which to subdue rebellious opposition-clans or political groups."41 Thus, the balance of power between the clan is maintained via correspondingly parallel alliances from the sub-clan level all the way to the clan level; all the while there can be no consolidation of power under a unified central government. 42 8 B. Colonial impressions on Somali Society The imperial powers of Italy and Britain partitioned Somalia their hold in the region in 1897. Full administrative authority of the Somali populace was not achieved unlit 1920. The colonial powers left Somalia some 40 years later. 40 years seem to be a very short interlude in Somali history, given the nations one thousand years of existence as a distinct cultural entity. Yet the colonial experience had a deep impact on Somali society, politics, administration and law.
The Italians intention for their chunk of Somalia was to create a settler colonial state, similar to Britain‟s colonization of North America. According to the Library of Congress the motivation was threefold; "relieve population pressure at home to offer the civilizing Roman mission to the Somalis, and to increase Italian prestige through overseas colonization."43 Thus the building of modern state institutions, such as infrastructure, irrigations, legal system, became a main objective of the Italians. Beginning in the 920‟s the push towards development was further intensified under Italy‟s new fascist government. "Large-scale development projects were launched, including a system of plantations on which citrus fruits, primarily bananas, and sugarcane were grown."44 These policies "helped transform southern Somalia's economy."45 In contrast to the Italian colony, the British model for colonialism in Somalia was one of ambivalence and as little intrusion into the daily life of the local population as possible. According to, the International Crisis Group work, Somaliland: Democratization and Its Discontents, "instructions were issued to the effect that "the occupation was to be as unobtrusive as possible. No grandiose schemes were to be entertained; expenditure was to be limited to a minimum, and was to be provided by the local port revenues"46 Continuing the report states that, "By employing methods of „indirect rule‟, the number of British colonial officials was kept to a minimum."47 Economically, the British used their colony, "as little more than a supplier of meat products to Aden."48 At the time of independence in 1960 British Somaliland, was not prepared for the complexities of the administration of a state; "the entire country could boast of only a handful of university graduates and two secondary schools. Not a single sealed road linked the major towns, and there was no industry to speak of."49 This disparity in economic, infrastructural, and administrative development had tragic effect on the future unity of the Somali nation. "Southerners gradually came to dominate the new states economic and political life – a hegemony that bred a sense of betrayal and bitterness among northerners."50 Apart from the disparity in the level of development in respective administrative and economic systems, South and North Somalia were "from an institutional standpoint, two separate countries."51 According to ICG report, "Italy and Britain had left them with separate administrative, legal and education systems where affairs were conducted according to different procedures and in different languages."52 More so, "Police, taxes, and the exchange rates of their 9 separate currencies were also different. The orientations of their educated elites were divergent, and economic contacts between the two regions were virtually non-existent."53 Initially Italian Somali law composed of the utilization of Italian codified law and the observance of the Sharia. Muslim plaintiffs, "had a choice of appearing before a secular judge or a qadi (Sharia judge)."
The British introduced a body of codified law and a judicial System to Northern Somalia, "based on British Common and Statute Law and the Indian Penal Code. In addition, the British established 54 In Italian Somaliland traditional Xeer law was sparsely used. Near the end of Italy‟s colonial administration both Somalis and foreign nationals were subject to a judicial system in three parts. "Civil cases were heard by district, regional and appeals courts; penal cases were addressed by assize courts (criminal courts using Italian code) of first-instance and of appeal." If insisted upon by plaintiffs, "Somalis and other Muslims had access for family matters and minor civil disputes to be heard by qadi (Sharia) courts of first-instance and appeal." Both of these courts were under the jurisdiction of the Supreme Court which, heard appeals from both, "as well as deciding matters of jurisdiction between them."55 The Italian legal system far more structured its British counterpart. Akil’s courts and, subsequently, Qaadi’s courts to apply customary law (Xeer Law)."56 In these courts, "Shari’a law continued to be applied in domestic matters."57 Somaliland law experienced only 9 years of formal legal integration with Southern Somalia (1960-19690. This period saw, "considerable codification of the legal system primarily on the basis of Italian civil law rather than common law."58 The authority provided by the British to tradition legal and administrative powers in the north during colonial times has had significant repercussions in today‟s anarchic Somalia. "In both contemporary Somaliland and Puntland, traditional elders still commend considerable influence in all sectors,"59 This is the superlative in today‟s South-Central Somalia where traditional xeer "legal administrators have very limited influence."60 In order to further explicate the proposition that different colonial histories lead to a higher probability of political dissolution along colonial territorial lines, it is important to analyze other states which may have had a similar bifurcated colonial experience. Somalia‟s and its Arabian neighbor Yemen share a similar background of colonial domination. Similar to Somalia many Yemen‟s current political issues manifest themselves on historic colonial boundaries. 2. Comparative Analysis of the effects of colonial separation Yemen can serve as a comparative example of a nation which was separated under differing colonial masters and as a result has been facing great social and political issues with maintaining a unified state. Yemen is on the southwestern corner of the Arabian Peninsula, and a close neighbor of Somalia. According to a recent report on Yemen, like its African counterpart, 10 the country faces, "challenges that endanger its political future and threaten its neighbors on the Arabian Peninsula. War, terrorism, a deepening secessionist movement, and interconnected economic and demographic trends have the potential to overwhelm the Yemeni government, jeopardizing domestic stability and security across the region."61 Like Somalia, Yemen‟s secessionist movement runs across political division created by previous colonial powers; its secessionist movement does not run across geographic, ethnic, linguistic, or religious lines. According to the Norwegian Peace Building Program for Yemen; amongst its people there is a, "well-rooted Yemeni identity and the 1990 merger of the north and the south showed that the country can be united."
Since unification there has been an ever increasing rise in calls by South Yemenis to separate from North Yemen. "Many people in the south believe they are subject to discrimination by the government and there is growing support for secession from the north."62 "British influence increased in the southern and eastern portion of Yemen after the British captured the port of Aden in 1839." South Yemen remained a British protectorate until the last "British troops were removed on November 29 1967."63 By 1969 a, "radical wing of the NLF (Marxist National Liberation Front) gained power."64 From the, "nineteenth century, northern Yemen was controlled in the cities by the Ottoman Empire."65 Independence for North Yemen came in 1918, when the Ottoman Empire was dissolved. North and South Yemen were united with the dissolution of Soviet supported South Yemen in 1990. 66 More so the Southern Liberation Movement, "contends that people in the south are suffering under economic, political and cultural oppression by the government based in Sana‟a in the north. Several alleged that their land, homes or property had been confiscated by the government and that long legal battles to retrieve them are rarely successful."67 Similarly, after unification of British and Italian Somaliland, the South took up the reigns of political, administrative, and economic power. The problems of uniting territories which had been administered by differing legal and governmental systems, "were exacerbated by perceived
southern domination of the new government. Representatives from the former British Somaliland, now known as the „Northern Regions‟, received just 33 seats in the new 123-member national assembly."68 More so the key posts, "of President and Prime Minister were both held by southerners, as were the principal ministerial portfolios such as Defence, Foreign Affairs, Finance and Interior."69 This phenomenon caused disillusionment amongst the northern tribes of the former British colony. This sense of disillusionment in the national government was further exasperated by the arrival of the Barre dictatorship which instituted draconian laws aimed at consolidating power amongst his clan in the capital Mogadishu. 11 3. Maintenance of traditional Xeer law in Somaliland As stated earlier the Italian model of the administration of their colony in Somalia was far more intrusive then the role played by the British. The British allowed for local clan based legal and administrative function to remain in much the same form as had been prior to their colonization. After independence Somaliland‟s traditional forms of conflict resolution and legal discourse remained while the South no longer had a strong link with that heritage. Hajji Abdi Hussein Yusuf a member in the House of Elders of Somaliland and an instrumental figure in peace building efforts in Somalia described this phenomenon. He states,
"During the colonial era, southern Somalia was colonized by Italy, which destroyed the traditional conflict management systems, rendering the elders ineffective. So their role in
conflict management and peace building disappeared."70 He further contrasts what occurred in southern Somalia with the northern Somalia,
"But Somaliland, which was colonized by Britain, kept its own traditional conflict management mechanisms in place and these values and norms were not disrupted. These have ultimately enabled us to reconcile our people and have nurtured mutual trust and dialogue."
C. Somali Irredentism and Continued Ethiopian Intervention A further fallout from colonialism has been Somalia‟s endemic rivalry with its neighbor Ethiopia. The presence of this rivalry has manifested itself in war and constant intervention on the part of Ethiopia into the internal political dynamics of Somalia.
Somalia shares a vast border with Ethiopia except for its extreme north and its southern corner, nearly all of Somalia‟s land border is shared with Ethiopia. The two nations have been regional rivals for over the contested Ogadan region since the partition of Somali territory by the colonial powers and Ethiopia in 1897. According to Spilker the loss of the region to Ethiopia, "has served as the source of a pan-Somali nationalism which propagates the reunification of Somalia."72 The issue of Pan-Somalism has been an issue that has, "dominated popular opinion (in Somalia), and any government would fall if it did not demonstrate a militant attitude towards neighboring countries occupying Somali territory."73 As a result it has, cemented the hostility between the two neighbors ever since; "Ogaden has been a continual bone of contention and potential causus belli between the two countries."74 12 Ethiopia‟s fear of a resurgent Somalia with irredentist aspirations has propelled it to constantly intervene in Somalia when it feels threatened by a potential formation of an anti-Ethiopian central government. Ethiopia‟s penchant for intervention in internal Somali affairs was seen when during a round of peace negotiations between Somali factions held in Kenya, "Islamic factions (most of which were neither radical not jihadists) where deliberately excluded. The Exclusion was effected primarily on the urging of Ethiopia which feared a neighbor with too much Islamic influence."75 This strategy was further exemplified by Ethiopia‟s invasion of Somalia in 2006. Upon the Islamic Courts Union takeover of Mogadishu, key members of the union began making
"We have now routed and broken the backbone of the force bracing to destabilize our country and the whole of the Horn of Africa, sticking to our back like a thorn difficult to remove,""irredentist claims on Ethiopian territory, calling for jihad against Ethiopia, and sponsoring armed insurgencies against the Meles government."76 Ethiopia‟s primary objective was to, "crush forces which have challenged its interests in Somalia since the mid-1990s. Ethiopia‟s, "principal fear is the rise of a strong, centralist, nationalist or Islamist state there that would revive irredentist claims on Ethiopian territory."77 Upon their victory in Mogadishu, Ethiopia‟s prime minister, Meles Zenawi stated, D: Economic and Political benefits from Anarchy leads to maintenance of status quo: Anarchy begets more Anarchy All societies, from the smallest groupings of a few persons conjoined via a family system to national entities comprising of hundreds of millions of people have at their basis a set of basic principles (customs), with which each member of that society follows. A state is defined by many scholars as, "a constellation of norms, institutions and those who inhabit them, ostensibly to manage the collective political fate of a given society."
Since the collapse of central authority Somali commerce has grown leaps and bounds. In many respects has outpaced the economic development of its African counterparts, "In a 2007 survey of 41 African countries Somalia ranked 16th in number of mobile phone users and 11th in number of internet users. Some 15 companies operate aviation services in Somalia, using leased aircraft and foreign personnel for maintenance and air traffic services."79 However, imagine if key members of that society have come to the conclusion that a state is detrimental to their well being? Whether or not this perception is rational is irrelevant. What is significant is whether a significant number, (either numerically or in terms of influence political, cultural or economic), believe in the assumption that their better off without a state. 80 Additionally, "hawala companies [provide remittance service] now provide an ever-growing range of banking services 13 and have invested in other sectors of the economy."81 According to the World Bank, "Somalia‟s GDP grew from around $1 billion in 1996 to more than $5.5 billion in 2007, with a real growth rate in 2007 of 2.6 per cent."82 Given Somalia history of repressive governments, many in Somalia, particularly the business elite and entrepreneurs perceive the establishment of a central government as counterproductive to their economic well being. Menkhous explains,
"state revival appears to many Somalis to be a zero-sum game – and a game with very high stakes. While nearly all Somalis agree that they need the core services provided by a functional central government, the risk that that government could fall into the hands of rivals, or could develop coercive capacities and engage in predatory behavior against the private sector, makes the enterprise of state-building too risky for some Somali groups to support."83 If the general consensus amongst the power base of a society is that anarchy is beneficial to their interests then anarchy begets more anarchy. In other words a breakdown of societal institutions, even those deeply rooted in history and culture, takes place. This phenomenon can be witnessed in the breakdown of clan structures in Somalia since the fall of the central government in 1991. In the early parts of the Somali civil war, "conflict resulted from divisions among major clan battling over power and resources"
3: Somalia A History A. Pre-Islamic Somalia Somalia‟s history and the socio-cultural elements cannot be fully ascertained without a study of the land which the Somali people reside in. Somalia‟s geographic dimensions have played a vital role in its history and the nation‟s cultural and socio-economic dimension. The lands inhabited by Somalia lies on the edge of the north eastern Africa. Referred to as the Horn of Africa, ( it is shape like the horn of rhinoceros). The land straddles the Indian Ocean on its eastern boundary and the Gulf of Aden on its northern boundary.
To the east lie the central highlands and mountains of Ethiopia. From these highlands flow two rivers which have played a vital role in the agriculture of the Somali people. "Unlike the rest of the country the fertile area between the two main rivers supported farms and plantations."90 These two rivers, the Shabelle and Juba flow from the highlands towards the Indian Ocean through a southern rout. As a result the south of Somalia hosts the largest proportion of the nation‟s population. However most of the country has not been provided with the water recourses present in the valleys and basins of the two rivers. However, the vast majority of the land does not possess the resources fundamental in supporting an agrarian based economy. In this vast region there is little water, thus the main socio-economic system consists of a, "pastoral nomadic culture, herding camels, sheep‟s and goats, and in favorable regions, cattle."91 Accordingly, "some 60 to 70 percent of the population are nomadic or have nomadic affiliation, even though many today live in urban centers for part of the time at least."i As a result the Camel, the steward of transportation in desert and semi-desert regions is of great importance in Somali culture. "Traditionally, the noblest occupational calling in Somalia was camel herding."92 Additionally Somalis use the camel as a form of peace offering, exchanging, "camels to symbolize the mending of a broken relationship or for cultivating a friendship."93 The prestige given to the camel is an indication of the significance of the nomadic lifestyle amongst the Somalis. A key aspect of the nomadic socio-economic system is its inability to coagulate or be coagulated into a centralized state. A concise explanation is given here,
"Such a world is not conducive to any form of economic surplus or economic accumulation. Without economic accumulation, there are no possibilities of permanent settlements, of cities and of the distinct political structures we have called the state'. In such societies, politics are diffused throughout the whole social body and not separated, specialized so to speak, in a 'state' form, since people are forever moving."94 The nomadic pastoral lifestyle has many downsides, little rain fall meant little agricultural surplus, "shortages and hunger were familiar shadows that haunted the Somali landscape."95 The procurement of sought after manufactured goods and spices came via trade rout on the India Ocean. 15 As a result of its long coast on the Indian Ocean, Somalia has been susceptible to much cultural and economic interactions with is coastal neighbors. For centuries, "Somalia maintained commercial and cultural contacts with the ancient world, particularly with Egyptians, Southern Arabians, and other West Asian societies. Pre-Islamic Arabia and Persian established a very active trade in Somalia."96 B. Introduction of Islam With this trade came great cultural interaction. Arab and Persian Traders began to spread their new found religion via historic trade routs on the Indian Ocean. Somalia, a land with a long coastline on the Indian Ocean became the recipient of Islamic conversion and immigration. According to, Mohamed Haji Mukhta in his work,
European colonization."Islam in Somali History: Fact and Fiction, "The Muslim migration grew tremendously from the rise of Islam to the tenth century AD. According to authorities Arab sources there were eight major waves of Arab and Persian settlements in Somalia"97 By the 14th century Mogadishu as well as the southern Arab and Persian founded cities of Merca, and Baraawe were, "important centers of urban ease and learning."98 At that time the first Sultanate ("Muzaffar") on Somali soil was established. "Not until the 16th century did Muzaffar gradually begin to lose its importance as an economic center, later vanishing in the process of 99 In terms religious affiliation, Somalis enjoy a rather unique position amongst the nation-states of the African continent. They are virtually, "the only country in the whole continent whose population is virtually all Muslim." Additionally Islamic sectarianism in Somalia is virtually nonexistent since, almost all are Sunni and follow, "the Shafi‟i Sunni school of thought."100 Along with religious uniformity, Islam brought about a sense of cultural adhesion predicated upon Arabic ancestral lineages. All Somali clans believe they are, "descended from the household of the prophet Muhammad, so that all Somalis belong to the Hashemite stock the Qurayshi clan."101 By the time Europeans began to consolidate their hold over differing parts of the African continent the Somali nation comprised of almost complete homogenous socio-cultural and religious elements. However, despite this fact, "the Somali people were not organized into a state."102 Rather [Somalia] "consisted of a decentralized political system comprising an elaborate succession of clans and sub-clans governed political life."103 C: Colonial era to Present 16 During the colonial era of African, the lands inhabited by Somalis were split between five differing entities. The extreme northern section of the land became a part of the French colony of French Somalia, referred to today as Djibouti. The south became a part of the British colony of Kenya. In the west of Somali land Ethiopian Emperor Menelik II, occupied the city of Harar in the Ogaden region and announced his territorial claim to the entire region, a claim recognized by the colonial powers," mainly Britain, France and Italy. British and Italian Somalia were united when its people gained independence in 1960. British Somaliland was the first to gain independence and was "already recognized as an independent state by over countries."104 On July 1960 as a result of, "the strength of the prevailing sentiment of Somali unity, Somaliland and South Somalia united together to become the Democratic Republic of Somalia."105 Post independence resulted in a period of nine years of democratic governance starting with Ibrahim Egal as president. "However, the democratic years resulted in widespread corruption and economic decline."106 However, during this era Somalia participated in numerous international conventions and human rights declarations. The declarations which Somalia was a signatory too and subsequently ratified into its domestic legal system included, the, "International Convention on the Elimination of All Forms of Racial Discrimination, International Covenant on Civil and Political Right, International Covenant on Economic, Social and Cultural Rights, Convention Against Torture and Other Cruel or Degrading Treatment or Punishment,"107 as well as, "labor rights conventions such as the "Convention on the Elimination of Forced and Compulsory Labor"108 Domestically much of what had been achieved on the international and diplomatic level was dashed with the arrival of a military regime under the leadership of Said Barre in 1969. Barre military regime, proclaimed Somalia as a "socialist state."
legislative, executive, and judicial powers to the Supreme Revolutionary Council."109 Initially the government instituted, "state reforms and development of education, infrastructure and the economy."110 However, these reforms were soon overshadowed by the regimes goal of attempting to remain in power which intern lead to vast, "human rights abuses and other violent means of exercising state control"111 A major facet of Barres strategy of maintaining power was the use of the legal system to suppress dissenters. The regime, "suspended the Constitution of 1961, assigning all 112 During his regime, "law was used efficiently to enhance and safeguard the military regimes interests."113 As an example, "habeas corpus was abolished."114 More so the regime passed laws contrary to its international legal obligations including, Law no. 54 [which] became 17 notorious for denial of human rights as it listed 26 offences that were considered injurious to peace and order."115 More so, "out of the 26 offences, 20 were punishable by a mandatory death sentence."116 In an effort to dilute the power of clans Barre‟s unified civil code, "curtailed both sharia and Somali customary law"117. Emblematic of this tactic were sections of, "the code that abolished traditional clan lineage rights over land water, and grazing."118 More so the code, "restricted the payment of diya as compensation for death or injury to the victim or close relative rather than the entire diya paying group."119 In addition the Barre regime instituted a policy of "divide-and- rule tactics, which generated deep animosities between clans."120 Accordingly the now reinforced divides lead to various clan uprisings. In reaction the Barre regime responded, "with escalating waves of government repression that eventually led to an explosion of Somali society into violence and anarchy."121 Another episode of the Barre regime which lead to disastrous consequences for Somalia was the Ogaden war. According to I.M. Lewis, "The terrible defeat and the refugee influx quickly led to widespread public demoralization and to an upsurge of tribalism (ie clan loyalties) as different groups sought scapegoats to explain the debacle."122 Some clans sought and received aid from Ethiopia, Somalia traditions enemy, to overthrow the existing regime. Lewis explains this phenomenon, "as a sign of their desperation and a measure of the degree of disintegration of Somali national (and clan-family) solidarity."123 D: Somalia, the Failed State: A failed state can be defined, "as a situation where the government is unable to discharge the basic governmental functions with respect to its populace and its territory."124 Since 1991, Somalia witnessed, "the rise of armed groups, declaring and ordering specified regions within Somalia, thus dividing the country into „a patchwork of fiefdoms, fought over by warlords."125 In the aftermath of a collapse state and in the midst of clan based civil war there emerged what had been referred to as a vibrant private sector economy. Dr. Andre Le Sage writes that after the withdrawal of international forces Somalia developed a, "booming private sector…effectively serving as East Africa‟s premier duty-free port. Fortunes were made on the import-export trade in everything from cigarettes to narcotics, from sugar to scrap metal."126 Le 18 Sage continues, "Business men came to control much of the countries productive infrastructure form their own personal enrichment."127 In addition to the rise of private based economic progress Somalia witnessed the proliferation of a strong civil society. Under both civilian and autocratic governments in Somalia civil societies were greatly restricted and played a minor role in the development of governance and administration in the state. According to Jabril Ibrahim Abdulle in his work,
"Civil society groups were slow to take root under the civilian government (1960–
69), and from 1969 became severely restricted by the military regime of Siyad Barre
(1969–91). Instead, the Siyad Barre regime established parastatal social organizations
under the guidance of ministries."Civil Society in the Absence of a Somali State, 128 Currently, besides delivering services no longer provided by the national government these civil society organizations acted as a counterbalance to militias, warlords, and other local power brokers."129 According to scholars these groups have lead to an opening up of, "channels of communication and promoted transparency between the state/local authorities and its citizens."130 More so according to scholars Somalia growing civil society has become, "a hub for intellectuals and professionals who are increasingly important players in the promotion of a culture of peace and good governance."131 With the absence of a formal legal system or the rule of law, local administrations, Sharia Islamic law and traditional Xeer law have take on a new level of importance in Somali society. Somali society has adapted by "forging a variety of systems designed to provide a modicum of security and rule of law."132 According to Ken Menkhaus, the occurrence "governance without government across Somalia ranges from simple neighborhood-watch systems to reliance on customary law to more formal municipal or regional administrations, and has rendered Somalia somewhat less anarchic is commonly presumed."133 Gunmen which once worked for warlords and ravaged Mogadishu and other cities, began to find higher paying and less dangerous jobs as, "security guards for business, neighborhoods, or sharia courts." So by the turn of the 20th century, "some of the largest militias in Mogadishu were linked to businesses."134 Islamic Sharia courts, "in Mogadishu and surrounding towns absorbed hundreds of gunmen into Shari‟a police units."135 Thus, traditional legal systems coupled with a lack of state based administrative powers, have been a catalyst for the formations of new political entities which have filled the political and administrative vacuum left after the collapse of the national government. One such instance 19 took place in 1994 when "After nearly four years of persistent anarchy and political failures, Islamic clerics from the locally powerful Abgal sub-clan of the with the blessing of their „secular‟ political leaders, founded the first fully functioning sharia court."136 These courts would eventually coalesce into the Islamic Courts Union. E. Rise of the ICU: For a brief time the clan based warlordism and anarchy of southern Somalia was swept aside by a group of Islamic jurists which coalesced to form a political body known as the Islamic Courts Union. The rise of the ICU is in-part a byproduct of Somali societies reverence for traditional legal and religious leaders. These leaders are, "integral parts of the community, act as mediator, bury the dead, and provide moral support for the community at times of crisis."137 More so these leaders are given the moral authority to, "stop conflicts and encourage dialogue."138 The rise if Islamism was in-part a political reaction to the incessant violence of warlordism. According to reports before the rise of the ICU, Somalia‟s "Islamists are still [2004] very much in the minority." However, according to the 2004 report, "Islamist denunciations of Abdillahi Yusuf as a warlord, incipient dictator and an ally of Ethiopia have, nonetheless, resonated with a broader audience."139 The ICU was officially created when the two major sharia courts in north Mogadishu and the south Mogadishu merged. "In October 2000 these two courts came together and formed a Joint Islamic Council, led by Hassan Dahir Aweys, a prominent al-Itihaadfigure, as Secretary General. Their single command structure became the single largest military force in Somalia."140 By June 2006, the Islamic Courts Union, (ICU), took control over a large part of the southern and central parts of Somalia. More then any other political entity in southern Somalia since 1991 the ICU was able to create a semblance of order and rule of law, According to Magnus Norell in his work Islamist Networks in Somalia
"For approximately seven months the ICU managed to maintain a certain order and to create an embryo of an administration -- even the airport of Mogadishu was opened for traffic."141 The benefits attained by the populace form political and administrative control by the ICU included, "the decrease in violence and the restoration of basic services such as health care and schools."142 More so the ICU allowed for an increase of international aid which could now "once again be received on a larger scale, which was, of course, beneficial to many Somalis."143 20 However, ICU‟s dominance over southern Somalia did not last. "The United States suspected the ICU of harboring several al-Qaeda operatives linked to the 1998 bombings of U.S. embassies in Kenya and Tanzania, and worried about the rise of Islamic extremism in the region."144 As a result in December of 2006, the United State aided Ethiopia when its "forces launched a cross-border intervention into Somalia, routing the forces of the ICU and propping up the [Transitional Federal Government] TFG in Mogadishu."145 F. Post ICU: The ouster of the ICU by Ethiopia and their Somali allies, the TFG brought about a new round of bloodshed to southern Somalia. The weak TFG and Ethiopian forces were unable to diffuse tension in Mogadishu and within weeks, a "complex insurgency of clan militias and regrouped al-Shabaab force began attacking."146 Al-Shabaab the militant wing of the ICU has continued its violent insurgency in southern and central Somalia. "The group has gained control of many parts of southern and central Somalia by using guerrilla warfare and terrorist tactics against the Transitional Federal Government (TFG) of Somalia and its allies, African Union peacekeepers, and nongovernmental aid organizations."147 According to Ken Menkhous, "The insurgency and counter-insurgency that ensued over the next two years devastated the capital. Heavy-handed counter-insurgency tactics by the TFG and Ethiopian forces led to the displacement of 700,000 residents out of a city of 1.3 million; Continuing Menkhous remarks that, "Businesses were destroyed, and abuses of the local population were serious and widespread. Within a year, Somalia became the site of the world‟s worst humanitarian crisis."148 According to scholars, Somalia is in the middle of a, "complex insurgency involving foreign-sponsored, ideologically-driven movements, such as al- Shabaab (ICU), and clan-based militia fighting over political power, territory, and the economy."149 According to Mark Bradbury, this "hybrid war is characterized by a combination of conventional military fighting, indiscriminate violence, criminal disorder, and military engagement by regional and Western military forces."150 Today the TFG‟s goal of establishing a national government faces many challenges, one of the most significant is its lack of willingness to, "broaden its base of support and legitimacy."151 The TFG has, "held some consultations with clan elders, members of civil society, and former Somali presidents, and TFG President Abdullahi Yusuf Ahmed has recently 21 committed to a national reconciliation conference. But there is little evidence that these consultations will result in an enlarged governing coalition."152 . 4: Current reality, Somali Judicial and Political Systems, and Formation of a Constitution. A. Traditional Judicial Legal Structure of Somalia At the time of independence Somalia, "had four distinct legal traditions: English common law, Italian law, Islamic Sharia or religious law, and Somali customary law." To confront the diversity of legal system, Somalia spearheaded development of a code based legal system including, "a uniform penal code, a code of criminal court procedures, and a standardized judicial organization."
1. Law No. 1 (21 October 1969), the SRC was given authority for all judicial functions, as well as executive and legislative ones.
2. Decree No. 12 (25 October 1969) temporarily abolished the constitutional court and Supreme Court, as well as placing restrictions on the functions and jurisdictions of the remaining courts.
3. Decree No. 12 also established the National Security Court with jurisdiction over:
i offences under the Somali penal code, including crimes against the state
and crimes affecting public order
ii offences under the law of preventative detention (10 January 1970)
iii offences under Public Order Law No. 21 (26 August 1964)
iv any other offence that the SRC declares to be a violation of national
security."153 The code based system was similar to the Italian, continental or Justinian, legal system; thus "the Italian system of basing judicial decisions on the application and interpretation of the legal code was retained."154 The post independence government modified laws to suit top-down, authoritarian rule. The laws passed during this era are outlined below. 155 With the collapse of central authority the laws which had been instituted by the central government as a form of political domination withered away. However, despite the absence of a centralized government Somalia has, "witnesses a re-emergence of justice systems across the country."156 Since the collapse of the central government there have been four differing legal and judicial systems that possessed authority in Somalia. They are, One, formal judiciary structures in regional administrations and central governments created at international peace processes. Two Traditional, clan-based system known as xeer. Three, the growing number of shari’a courts 22 in urban areas, particularly Mogadishu, most often dominated by the Islamic Courts Union. And Four civil society and private-sector initiatives, as well as ad hoc mechanisms established by Somali militia-factions; often referred to as anarchic or private-based legal institutions.157 B. Xeer Law Traditional clan based legal norms developed into a judicial and jurisprudence system known as Xeer. Xeer can be translated roughly as, "customary law that exists between Somali clans. It is an unwritten agreement that has evolved within and between Somali clan communities over generations."158 More specifically xeer is, a "compact, contract, agreement or treaty in a bilateral sense."159 Subject of jurisdiction and responsibilities of Xeer bodies include " preservation of the wisdom of the ages and habits of community, delineation of obligations and entitlements, and supervision of criminal justice."160 It is significant to point out that over generations these bilateral or multilateral agreements develop into, "precedents and thus form part of customary law."161 One of the most significant duties of the Xeer system is the delineation and enforcement of contracts amongst the Somali populace. Contracts are not only economic in scope but also included treaties between different clans and sub-clans and are, "fundamental principles in the constitution of Somali political units."
Within the tradition of Xeer lies a ethos of fairness and impartiality under the law, According to scholars of Xeer, "hearings are held in public,"162 The institutions of the Clan and Xeer law work in unison to, "jointly contribute political solidarity"163, amongst the population of a certain political groupings. 164 More so Several types of individuals are excluded from participating: persons with close family relationships with those involved in the controversy, individuals who have a personal grievance against one of the parties, and persons who have already sat in judgment of the same case."165 It is also important to note that the Xeer system is male centric thus, "Women are not permitted to participate in the discussion and judgment."166 There are differing viewpoints as to whether Xeer law is a universal body of law or a collection of differing, often contesting or conflicting set of laws. One point of view is that, "xeer is localized, emanating from specific bilateral agreements between specific sub-clans, and application of its rule is flexible and varies from place to place depending on circumstances and 23 situations."167 Other stipulate that, "it is possible to refer to a single, general Somali xeer given that the most significant principles of xeer are common across all Somali clans."168 Since the introduction of Islam into Somalia more than one thousand years ago, Sharia law has penetrated the local Somali legal and administrative foundations. Instead being replaced by sharia, " a significant number of
"Somali communities recognized two distinct authorities, clan elders and religious leaders, whose responsibilities in the conduct of individual and community affairs overlapped to the extent that Islam was essentially assimilated into clan culture. This symbiotic relationship has persisted throughout the colonial and post-colonial era."shari’a precepts and practices were assimilated within xeer. As a result, many points of shari’a have often been subordinated to clan tradition."169 Thus Somali legal jurisprudence was a binary system consisting of xeer law which was influenced by Sharia law and Sharia courts. "In pre-colonial Somaliland, customary law (xeer) was used alongside Islamic Shari’a (of the Shafi’I school). Clan elders and experts in Shari’a law (the qaadis and sheikhs) applied the laws in an informal manner."170 One must not view these two legal systems as apposing one another; nor is it correct to view them as the one and the same. According to IM Lewis 171 Under the Xeer system, a trial can take place in two differing procedures; either a "mediation process (masalaxo) or an arbitrations process (gardawe)." Accordign to Le Sage, "In the former, the exact laws and punishments prescribed by xeer are set aside in order to reach a final judgment that satisfies both parties." Most legal conflicts are resolved via the mediation process. "In it the settlement obligation incurred is usually reduced significantly by comparison." The arbitration process is usually reserved, "for the most grievous crimes and the most recidivist criminals, [under arbitration] xeer is strictly applied in a „winner takes all‟ manner." Many Somali‟s have tended to favor xeer law over sharia; a famous Somali proverb states, "Xukun Shareeco oo lagu kala go’o, waxaa dhaama maslaxaad lagu heshiiyey"- A negotiated settlement serves a better purpose than an inflexible Sharia judgment that sows more division among disputing parties."172 2. Post Trial: who pays for what: Diya system as a form of insurance against a Xeer Ruling: Most often punishment in the form of monetary compensation is made after a ruling in the victims favor. This compensation is referred to as the Diya; the individual who committed the crime is not the only individual responsible for paying the compensation. Under Somali legal tradition the individuals Diya group, or blood compensation group is responsible. Diya-paying 24 groups are "the most important level of social organization for each individual."173 It, "consists small corporate group of a few lineages who reckon descent to a common ancestor some 4 to 8 generations."174 This group must be, "sufficiently large in numbers (few hundred to a few thousand men) to be able to pay the mag (Diya)."175 Members of a diya group are "obligated to support one another in the political and legal arrangements spelled out in the xeer agreements."176 This system is analogous to the pooling of funds from many insured entities under an insurance scheme. Once damage is incurred the insurance pool pays for the damages of the protected party. Under the Somali system the Xeer contractual ties that bind a Diya corporate entity compel the group to pay for the damages caused by an individual member. Thus under Xeer, a perpetrator of a crime is at fault for damages he caused to another; however liability is transferred to the Diya group, (or insurance pool). Thus, Similar to Automobile insurance in which the victim does not have insurance of her own, liability to pay runs through the individual who caused the damage onto his Diya group.
The standard for compensation for wrongfully taking someone‟s life varies based upon the sex of the individuals. "In the case of a male, the diya is valued at 100 camels, while the life of a female is valued at 50 camels."177 All camels do not have to be paid at once, "In the case of a male, the 100 camels are sub-divided into approximately one dozen camels that must be paid immediately to the household of the victim and two dozen camels that must be paid immediately to the closest relatives of the victim. The remaining sixty or so camels must be paid over an agreed period of time to the victim‟s wider diya group."178 Usually the clan leader collects the diya before it is transmitted to the other clan. One clan leader remarked on his responsibility to pay the diya stating, It is my, "responsibility to pay and collect diya from my sub-clan members if someone from my clan kills other clan members. Likewise I receive diya if a member of my sub-clan is killed by another clan. This is in accordance with to the traditional xeer"179 According to the Report Security and human rights conditions in southern Somalia, the Diya group provided an individual, "protection, daily survival and legal rights."180 Thus, Xeer agreements enforced under the compact of the diya, "are the glue that holds society together."181 This system binds an individual to his clan; equally as important it provides a forum where different diya paying groups of clans can resolve disputes without conflict. More so, it provides an economic incentive to remain within the clan structure. An individual will see it within his economic interests to be a part of a system that will provide him with a forum to resolve economic disputes such as riparian rights, property, and grazing rights over pastures. 25 3. Getting away with murder: Current Issues facing the Diya System However the Diya system has as its drawbacks. The Diya acts as an insurance corporate entity where the concept of collective accountability means that the individual who is committing the crime does not bear much of the punishment. Thus the individual will be more inclined to participate in further crimes. Most likely, the probability of taking part in an illegal activity and or recidivism of criminals engaging in such activity rises. Before the Baree dictatorship the Somali government attempted to integrated xeer law into its codified legal structure; their greatest obstacle towards this aim was, "collective responsibility for crime and Diyah payments."182 The council, "recommended abolition of collective responsibility for crime and that it be replaced by the application of death sentences for deliberate murders."183 Critics of the "Diyah system of collective responsibility for homicide and other serious offences committed by individual members of a corporate group [state that] it often ends up protecting hardened criminals, instead of serving as a deterrent."
According to recent reports, "This has created social tension as collective responsibility for crimes committed by individuals has degenerated into „eye for an eye‟ killings where clan units have been unable to pay Diyah."184 More so increased lawlessness in Somalia as a result of the collapsed government has meant an ever increasing number of Diya payments from one clan to another. This has lead to an overburdening of the Diya structure. This is similar to an insurance structure for homes which become strained under that wake a natural disaster sine it is legally obliged to pay the principal. 185 The breakdown of Diya has meant the breakdown of the entire traditional Xeer legal system, particularly in the more lawless south, leading to more violence. "Many innocent individuals, it appears, have been killed in retaliation for murders committed by members of their Diyah group."186 B. Role of Traditional Sharia Courts in Somalia Sharia law has been a traditional fixture of Somali society for over a thousand years. At least in theory, successive governments from the colonial era on into the Barre dictatorship officially incorporated [
Historically, Somali society did not depend much on Sharia courts for legal adjudications. Only a "few teachers were deeply versed in Islam, and they rarely stayed with one lineage long enough to teach more than rudimentary religious principles."shari’a] into the Somali state. All Somali constitutions have made Sharia the basis, "for all national legislation – a factor which has provided symbolic religious legitimacy to the government."187 However the political and judicial role of these courts have, up until recently with the rise of the ICU, been limited. 188 Most sharia courts established a foothold in the few sedentary cities and towns along the Somali coastline. Jurisdiction of these 26 courts, "was limited to manage the rules in the family."189 Culturally Islamic practice was not greatly followed, for example, "It was common for women to go out in public without the veil, and even fasting throughout Ramadam was not very common."190 Traditionally the role of
"hear cases from individuals who are already committed to the authority and Islamic precepts of the courts. They are rarely involved with the settlement of clan conflicts, These matters are left by the shari’a courts has also been limited." In fact, "most legal functions performed by the shari’a courts are concerned with civil matters, including sanctifying marriages and divorces, determining inheritance rights, and settling business disputes."191 Le Sage writes that traditionally Sharia courts have been, "much more reluctant to involve themselves in political issues and large-scale security problems."192 Leaders of the sharia court, state that they prefer to, shari’a courts for the fighters, families, clans and clan elders to address."193 A Sharia court derives its legitimacy to make rulings, "from agreements that are reached within or between specific sub-clans."
It seems for the most part Islamic laws primary function in Somali has been to buttress the pre-existing xeer legal tradition instead of completely replacing or acting in variance to it. Thus we must look at Somali legal tradition as consisting of a primarily xeer structure reinforced with Islamic sharia. This can be viewed in the procedures and implementation of law by these courts. 194 This meant that, "their jurisdiction was very local, and limited to its own sub-clan."195 As a result, ultimate authority remains the purview of clan leaders, and Sharia courts act as a function of the clan‟s political structure. More so the local nature of the courts leads to disparate and varying interpretations of Sharia law based primarily on the nature and socio-political dynamic of the sub-clan the court presides over. The local nature of sharia courts in Somalia is further intensified by the fact most judges do not go through a formal standardized education, "Most sharia judges were educated solely through informal religious studies in Somalia." 2. Judicial Procedures of the Islamic Courts Most of the presiding judges of the the Sharia courts "are uneducated and often illiterate individuals. In fact, none of Somalia‟s shari’a courts appear to follow a specific madhab or school of Islamic jurisprudence – they simply apply their personal reading according to their existing knowledge of the Qu‟ran and Islam."196 As a result of a lack of formal training, "the shari’a courts do not operate according to any formal procedure."197 Instead "Judges hear cases by asking questions of the claimant and defendant, calling any witnesses that the judges themselves deem necessary, and then pass their decision."198 Whether the result of inexperience in Sharia law, a reverence for tradition or the understanding that there is a need for a more pragmatic approach the courts have utilized the principle of adjudicating known as suluh. Under some Islamic doctrines "Peace and reconciliation are among [its] fundamental tenets, preaching the virtue of the conflict resolution method known as Suluh („Pacification‟). According to Islamic legal doctrine, "promoting reconciliation is an act of goodness and people are encouraged to resolve their differences this way."199 Suluh is analogous to the mediation process known under our legal traditions. Somalia‟s traditional Sharia courts diverge from most other Sharia courts in the world in their prolific utilization of this method. Additionally Sharia courts in Somalia have incorporated tradition xeer legal procedures under the umbrella if Suluh. "Under suluh, shari’a, xeer and relevant state laws can be combined to find a workable, „win–win‟ resolution to a case that all parties will accept."200 Here, differing legal traditions co-exist within the framework of a Sharia legal system. Given Somalia‟s complex and divergent legal system the innovation of suluh has meant that, "the courts and their security initiatives are legitimized in the eyes of many Somalis."201 5. Analysis of Somalia’s Differing Legal, Administrative and Constitutional Systems Today‟s Somalia can be separated in three political spheres. Northern Somaliland, North Central Puntland, and Southern Somalia. In order to understand the current legal, constitutional, and administrative issue of Somalia we must study each of these regions in depth. Since the collapse of central authority differing political groups in Somalia have sougth to coble the nation back together. A key element in succeeding in their objective has been the formulation of a unifying constitution. According to Sally Healy, in her work
constitution making in Somalia, Puntland and Somaliland, , Experiences of "Considering the fundamental importance of „contract‟ (xeer) in Somali social order and the multiplicity of contracts that actually regulate social relationships among Somali clans and lineage groups, it might be supposed that constitution making in the Somali context would be a reasonably straightforward undertaking."202 However this has been far from the case. Instead constant deliberation, derision and bickering over the elements of the document have ruled been the norm.In this section we will analyze the constitutional formation processes of a unified Somalia as well as the constitutions regional political entities including Somaliland and Puntland. In addition we will discuss the current legal and administrative issue facing Somalia. A. Southern Somalia and the Rise Informal mechanism for rule of law: According to Ken Menkhaus Anarchic warlordism in due course develops elements of what we can identify as elements of a state. He remarks, "as the symbiotic relationship between gunman and villager evolves, the line between extortion and taxation, between protection racket and police force is blurred, and a system of governance within anarchy is born."203 Over the past two decades in southern Somalia, " business people, including militia leaders in possession of their own businesses, have shifted into more legitimate sectors of the economy, and now have invested in fixed assets – including hotels, telecommunication buildings, warehouses, light industries, and airstrips."
The rise of the ICU and the general support for the group amongst key members of the business elite on Mogadishu is a testament to this phenomenon. 204 Invariably, these individuals want to legitimize and legalize their property; more so they want to protect their investment from criminal activity and general lawlessness. This trend is a critical factor towards establishing a rule of law in south-central Somalia. According to Menkhaus, "It imbues in a growing section of the political and commercial elite a much greater appreciation for basic law and order and avoidance of large-scale communal violence which could threaten their assets and the flow of commerce."205 Thus a key factor in the legal and administrative development in southern Somalia is one of self interest. If it is in a person‟s economic self interest to have a stronger rule of law the individual will seek to attain this goal. Once enough persons, (either numerically or in terms of wielding political power), have this goal then a critical mass within society takes place. 1. Informal rule of law: After the collapse of central authority the three legal institutions of Somalia, (Sharia, Code based secular and traditional Xeer law) have competed for legitimacy in the eyes of the Somali populace. "With the disintegration of the public institutions of the central government after 1991, following the collapse of the Somali state, secular law virtually disappeared."206 Tradition law, xeer and sharia remained a fixture of legal discourse, even after the introduction of secular law (1890‟s – 1991). This is because these legal frameworks remained the, "main legal systems of the pastoral and agricultural communities who constitute the majority of the country‟s population."207 Building on the traditional clan and religious based rule of law, since the collapse of its central authority, Somalis have embarked on, "informal systems [that are] hybrid arrangements involving complex and constantly negotiated alliance between a 29 combination of clan elders, local political elite, business leaders, civic (NGO) leaders, and religious figures."208 There are differing view point as to why traditional xeer and Sharia law have remained a fixture of legal discourse. Some scholars state this is because customary law, xeer law in particular, allows for great flexibility; "codified laws are less flexible in terms of case judgment,
while Xeer sentences are often more lenient and flexible."209 More so xeer is more locally structured thus is more readily able to serve "the pastoral population as a tool for conflict resolution." Its "arbitrators or jury are, on the one hand, locals and, on the other, readily available, in contrast with the other two legal systems."210 Others believe Xeer law has been maintained to uphold societal bonds since it is anchored in clan culture. They state that "Xeer is a vital element in the clan based social system, acting as a powerful factor cementing clan unity and political solidarity through the institution of Diyah."211 Since the collapse of central authority,
"play three roles: first, they organise a militia to apprehend criminals; second, they pass legal decisions in both civil and criminal cases; and third, they are responsible for the incarceration of convicted prisoners."shari’a has been organd and implemented in a number of different cities and towns across Somalia."212 Filling the vaccume of central authority, "combinations of Somali militia-faction leaders, businessmen, clan elders and community leaders have worked with Somali religious leaders from within their sub-clans to establish these courts in attempts to improve local security conditions."213 Accorddign to Le Sage these courts, 214 2. Rise of The Islamic Courts Union as a Political Force in South Somalia Dissimilar to much common opinion, the Islamic courts union did not grow out of the ashes of anarchic Somalia. Historically, "These networks functioned as local administrations offering rudimentary services to the population."215 According to IM Lewis, "They had always existed", and at times they provided "a safeguard both against the brutal central government and the tendencies towards disintegration in the country that already existed."216 With the massive increase in lawlessness Sharia was brought forward since, "the common perception was that the only possible way to deal with high levels of crime and freelance gangs is by implementing a harsh rule and exerting severe punishments."217 The phenomenon of Islamic Courts in anarchic Somalia first appeared in Mogadishu in August 1994. 30 Islamic Courts did not grow their powerbase in variance to warlords which controlled the territory. Instead Sharia courts were created, "with the blessing of their „secular‟ political leaders."218 These leaders "founded the first fully functioning sharia court."219 According to the work, The Rise and Fall of Mogadishu’s Islamic Courts, establishment of the Islamic Courts was not so much an Islamist imperative but as a response to the need for some means of upholding law and order."220 The Islamic court system should be viewed as an element of inter-clan rivalry for political and administrative power in south Somalia. This can be seen by the facts that the out of the 12 ICU courts. "All but one are controlled by one clan, [the] Hawiye."221 More so, The ICU enforcement of judgments depended on, "militias recruited from the local clan." According a report in the ICU,
" At root, the Islamic Courts were part and parcel of clan power in Mogadishu. They served specific Hawiye clans and earned the support of the Hawiye business class of Mogadishu for whom the primary purpose of the Islamic Courts was to provide security."
The question then that must be asked is, whether the dog wags the tail, or the tail wag the dog. In other words, is the ICU an independent regime separated from clan warfare or is just an apparatus for clan politics. It seems that the ICU was not in reaction to incessant clan warfare, but merely a tactic by one clan to impose its political will on other competing clans.
Whatever the answer may be, the ICU was ultimately successful in quelling warfare and anarchy in south Somalis. Along with the introduction of the rule of law in the formally clan based militia dominated south; the ICU takeover of large swaths of the Somali coast lead to a drastic reduction in piracy emanating from that region. By the autumn of 2006, the Supreme Council of Islamic Courts (SCIC) decided to end piracy, publicly claiming that piracy was Haraam (against Islam) and launched an attack against the pirate ports."222 According to analysts, in comparison to other strategies aimed against piracy, "the Sharia court alliance achieved staggering results, being one of the most efficient local remedies against piracy in Somalia used so far."223 3. Constitution & Administrative Issues: Forging a Nation from an Ethos of Anarchy A key element in forging a central government is to create a constitutional framework accepted by the major parties involved. As previously stated overtime business persons and those with a vested interest in commerce tend to favor an enhancement in the rule of law. However, many entrenched forces in Somalia make a distinction between public order (rule of law) and a governmental authority. According to Ken Menkhaus many in Somalia feel that, "it is possible to seek public order while fearing and even taking steps to block state revival." Continuing he states, "While most businessmen and others gain immediate advantages from conditions of improved public order, which reduces security costs for commercial traffic, protects investments, 31 and improves quality of life for households, the prospect of a revived central state carries much greater risks." The formation of a cohesive national government becomes ever more difficult with the prevalence of such beliefs amongst the business and political elite of southern Somalia. Another issue challenging the formation of a national constitution is continual fissures along can lines. Nevertheless over the past decade the Somali people with the assistance of international agencies have sought to create a national framework which is more inclusive to the various clans then prior government. In 2004 meeting in Nairobi Kenya, "a 275-membe Somali Transitional Federal Parliament was selected on a 4.5 clan formula (according to which Somalia‟s four major clans each select sixty Members of Parliament (MPs) and an alliance of small clans select thirty-five MPs)."224 A few weeks later Abdullahi Yusuf Ahmed leader of the Barod clan, one of the four major clans of Somalia, was elected president of Somalia, parliament."225 It is important to note that Yusuf was "also leader of the autonomous Somali region of Puntland."226 These leaders were tasked a timetable in which, "a draft constitution had to be ready by October 2007."227 However, the aspirations for national unity did not materialize. Soon after the creation of parliament and the election of executives, conflict both within parliament and between parliament and the executive broke out. Like all other conflicts in Somalia‟s past, rifts deepened along clan lines. The failure of national unity has lead to a failure to formulate a consensus towards the creation of a national constitution. It is self evident that the failure to form a nation consensus in parliament is simply a reflection of the current political situation in Somalia. After the overthrow of the Islamic Courts Union, Somali remains a deeply divided sectarian clan based society.
Nevertheless, formation of a national constitution has been externally driven and funded by, "a consortium of UK, Denmark, Norway, Sweden, US and the European commission."228 The argument for those who espouse the formulation of national constitution is the process of creating a founding document leads to, "considerable opportunities for reconciliation, for negotiation solutions to major divisive issues in a non-violent context, for reaching concnsus on the modalities of federalism best suites to a fractures state, for a symbolic break with the past, for creating an atmosphere of hope and renewal, and for establishing of a legitimate and stable, if minimalist, state."229 This strategy, "acknowledges that those at the table during peace negotiations may not represent all the interests in a country, that in many cases the range of issues that need to be debated in a constitution are too vast for a peace negotiation, and that many of these issues are best debated at a slower pace, in a more inclusive fashion."230 Many analysts have derided the efforts and strategies employed by the international community in theirs push towards a constitution; they point out that the formation of a nationally unified constitution should takes place only after the state is unified. Mohamud M Uluso in his 32 work, Draft Constitution will deepen Somalia’s Crisis, Constitution making processes, "conducted in war torn countries, have suggested that such process should be undertaken long after peace agreements were signed and satisfactorily implemented." Continuing he points out that, "more than half of the Somali population is internally displaced people, refugees languish in neighboring countries. More so currently the TFG controls a very small geographical region in Somali.231 Thus many analysts assert that the international community is placing the cart in front of the horse; without a unified Somalia and national reconciliation first, there cannot be a unified body that is able to set aside conflict and compromise on a constitution. According to Mohamed Ahmed Jama, a permanent peace for Somalia, "requires a process that links local approaches to security governance with political dialogue, where participation or representation in political dialogue is tied to one‟s capacity to deliver security and stability in the areas one controls."232 The TFG simply does not control much land in Somalia and thus cannot receive the Somali‟s trust to defend and provide stability. As a result it lack the legitimacy to formulate a governmental system. The process of constitutional formation in Somaliland was different. First the representative body controlled the land, and then they formulated a constitution. Perhaps Somaliland political and constitutional development can serve as a basis with which southern Somali can emulate in the formation of a national government B. Somaliland: The Hope for Somalia Since the collapse of central authority northern Somalia has emerged as a bastion of peace and stability in the Horn of Africa. Somaliland‟s judicial and political structure has been more stable than that of its southern counterpart. However, Somaliland‟s judicial structure is still in state of great flux. According to scholars Somaliland‟s legal system remains, "ad-hoc, non uniform and highly subjective."233 Under the Somaliland constitution, Approved by referendum on 31 May 2001, provides for an independent judicial system, stating, The Judicial Branch shall fulfill it duties in accordance with the Constitution, and shall be independent of the other branches of the state."234 Under Somaliland‟s constitution Islam is to play a fundamental role in the formation of a judicial body. The constitution states, "The laws of the nation shall be grounded on and shall not be contrary to Islamic Sharia"235. Additionally, Article 38, The Parliament and Joint sittings states, that the legislature shall have the power of "adoption by the Republic of Somaliland of all the laws necessary in a Muslim state."236 Other limitation on the law making powers of the government include the preambles statement, guaranteeing, "Of private property rights and the protection of the free market,"237 and limitations based on international stating, "Somaliland recognizes and shall act in conformity with the United Nations 33 Charter and with international law, and shall respect the Universal Declaration of Human Rights."238 However Somaliland should not be analyzed as an Islamic Republic in the same fashion as the Islamic Republic of Iran. Iran‟s legal structure is wholly based on Islamic law; Article 4 of Iran‟s constitution states,
"All civil, penal financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the Constitution."
The above proviso is similar to Somaliland‟s stipulation that all laws, "shall be grounded on and shall not be contrary to Islamic Sharia." However in practice, its current judicial system is, "a hybrid, combining several distinct legal traditions."239 According to the work, The Judicial System of Somaliland, by the Academy for peace and Development, "While Constitution stipulates Islamic jurisprudence as the "basis" of law, other laws – namely, customary (xeer) and secular legal codes - have been applied across the country."240 Continuing the work stipulated that "The practice of parallel legal systems reflects, in part, the historical evolution of legal and judicial systems in Somaliland."241 2. Somaliland Political/Constitutional Issues: In contrast to southern Somalia, Somaliland has enjoyed relative peace and a rebuilding of its political structure. According to the work, Making the Somaliland constitution and its role in democratization and peace by Ibrahim Hashi Jama, "This has been achieved within the framework of a collection of basic laws articulated first in charters and later in an interim constitution, which was consolidated into a final constitution that was put to a plebiscite."242 After the collapse of the Barre regime in 1991, efforts aimed at political consolidation took on a different dynamic in the north. Initially plans to create a constitutional system were made difficult by, "clan rivalries within the Issaq federation."243 In response leaders of the federation, employed traditional diplomacy and initiated, "a series of peace conferences that gradually restored a relative peace throughout the region."244 Somaliland leaders strategy was to make use of traditional Xeer based practices of negotiation and mediation and contract formation in order to establish a framework for reconciliation and state administration. One of the first of these meetind took place in 1991; "Each sub-clan sent representatives according to traditional clan formulae."245 There the delegates to the meeting, covered a number of critical issues including, "the need to secure a lasting peace; to agree a system for the return of physical assets 34 such as houses and vehicles that had been looted; and to identify an appropriate system under which the Northern Regions could be governed in the future."246 More so, the Issaq clan, the dominant clan in the north, "opted for reconciliation and a cessation of hostilities with the non-Issaq clans, rather than engaging in retribution and settling of old scores."247 The Issaq clan represents 66 percent of Somaliland‟s population, with the Darod and Dir clan comprising of 19 percent and 15 percent respectively.248 The other clans of the north bought into the Issaq dominated political structure since, "more than anything they needed peaceful relations with the predominant SNM [Issaq led political party], particularly in the absence of any viable alternatives."249 The Somaliland leadership set up a, "grand conferences of the Somaliland Communities in 1993 and 1997."250 These meetings, "served as Somaliland‟s version of constituent assemblies."251 They "legitimized the adoption of a National Charter in 1993 and the more detailed interim constitution that followed in 1997."252 The 1993 Borama Grand Conference adopted a National Charter for Somaliland. The charter, "consisted of a preamble and 31 Articles, and was, in all name a constitution. Compromise and consensus were the order of the day… all efforts were made to ensure that the vast majority of decision-making was made through a process of consensus-building."253 Unlike Somalia‟s 1960 constitution the Somaliand document provides for the creation of
The House of Elders; This house has the power to, "review the legislation passed by the House of Representatives before it is forwarded to the President; and shall have special responsibility for passing laws relating to religion, traditions (culture) and security."254 Article 61 called, The Powers and Duties of the House of Elders states that the body has the power over the, "passing of legislation relating to religion, traditions (culture) and security."255 According to Ibrahim Hashi Jama, "Traditional practices are evident in the emphasis on cooperation, consultation and joint decision making and in the place given to the Guurti (the Elders)."256 Additionally, "Islam is well reflected in many provisions, including the yet to be established Ulema Council."257 35 3. Current Legal Structure: The Somaliland national charter of 1993 created a judicial system setting up the Somaliland Supreme Court as the highest court in the nation.258 The current Somaliland constitution stipulates that the court is to, "shall fulfill it duties in accordance with the Constitution, and shall be independent of the other branches of the state."259 Article 99 states, "The judges and the members of the Procuracy [prosecution or attorney general] are independent when exercising their judicial functions and shall be guided only by the law."260 The hierarchy of the courts is delineated in the chapter four of the constitution and the Organisation of the Judiciary Law, [Law No. 24, 2003]. At the base of the system lies the District Courts. These courts have jurisdiction over claims arising from sharia, "which are primarily matters relating to family law and suseccion."261 The also deal in civil litigation for suites up to, "3 million SL and criminal cases punishable by imprisonment for up to 3 years and fines up to 3 million SL or Somali Shilling."262 The next level courts are the regional courts. Regional courts here, "all civil and all criminal cases which do not fall within the jurisdiction of the district courts."263 The regional court is separated into four branches, "civil, criminal, finance and taxation, and juvenile."264 The next level of courts is the appeals court which hears all appeals from the lower two courts. The highest court in Somaliland is the Supreme Courts. This courts deals with, "All appeals from the Appeals Court, Jurisdictional issues between the courts of the land; Administrative suits relating to the final decisions of public bodies; Declarations of general election results; and Reviews of its own decisions."265 4. Conclusion: Somaliland‟s new polity can be described as, "a dynamic hybrid of western form and traditional substance."266 According to Mohammed Hassan Ibrahim and Ulf Terlinden Somalilands political, legal and administrative foundations are predicated on, "clan based power sharing and balanced political representation."267 But the inter clan dynamics society occur within an environment of "western style procedures and institutions, such as elections, parliament and cabinet."268 36 C. The Forgotten Center Harardhere-Hobyo & Puntland: There has been much deliberation and consternation over the fate of Somalia over the past two decades. Much of the focus has been on the Somalia‟s southern region, since most of the population centered in the south and Mogadishu the epicenter of much of the violence over the past decades is situated in the south. There has also been many scholarly works done on the success of the Somaliland region in the south. However the centre of Somalia, Puntland, had received little attention.
However given its strategic importance, particularly in dealing with the incessant growth of piracy in the region, the Puntlands political, legal and administrative systems should also be further understood. Geo-strategically Puntland lies right at the horn of Somalia, where Northern Somalia meets Southern Somalia. The land juts out into the Indian ocean and the confluence of the Indian Ocean and the Gulf of Aden. As such Puntland and the adjacent Harardhere-Hobyo had been the hub of pirate activity in the region. " Before 2004, piracy was mainly a Puntland phenomenon, dominated by the Majerteen clan, the dominant clan of the region."269 Since then the next door Harardhere-Hobyo region has developed its own pirate base. An individual named Harardhere a pirate entrepreneur of sort realized that the Harardhere-Hobyo region provided the perfect base for the piracy, "as it was far away from the fractions in the Somali civil war. There was thus no pressing need to share profits with any political faction and no corrupt officials that needed to be bribed. The money could be kept and re-invested, mainly in new piracy attacks."270 A recent report on piracy explained "The frontline in the struggle against piracy rather runs through the entities that so far have successfully prevented piracy, namely Somaliland, and the regions where piracy is rampant, namely and Puntland."271 Puntland‟s efforts to build a stable state able to defend it shoreline against piracy face several challenges. Lack of an economic base sufficient enough to produce jobs is a major issue in Puntland. "Outside of the main city of Bosaaso, where the port is the focal point of some import/export transactions, and a few smaller urban enclaves, there are hardly any other significant sources of local employment."272 Other challenges apart from economic destitution continue to challenge Puntlands society. These challenges include, "the state‟s provisional constitution widely seen as having several flaws and yet to be harmonized with the Transitional Federal Charter,"273 Legally Puntland has, "Three systems of law – traditional, Sharia and secular – continue to operate in parallel."274 Administratively, "Power still passes through clan lineage ties rather than an elective democratic process."275 1. Administrative and Adjudicative issues in Puntland The Puntland administration came into being on August 1998 in an all-clan conference in Garowe. It was billed with the task of administering, "Northeastern regions of Somalia for a 37 transitional period of three years."276 At Garowe, "an interim charter was promulgated with basic provisions for the creation of the legislative, judicial and executive arms of a state government."277 The day to day governance of the region was handed to transitional administration, "comprising a President and Vice President, a nine-member cabinet, and a 66-member House of Representatives."278 However, full legitimacy in the government established in 1998 has been difficult to obtain in a region politically dominated by clan elders. Clan leaders and politicians have an intense personal stake in preserving the powers they derive from the traditional clan system, making the transition to participatory, elective democracy more complex and problematic."279 Apart from administrative and policing constraints another factor weakening Puntlands ability to tackle Piracy on its shores is its legal system. Originally the Puntland administration engaged in, "the application of the three legal systems - customary, Sharia and secular - that had been functioning side by side in Puntland since 1991."280 However, the administration quikly realized, "that the three legal systems could not operate in a single entity and in a modern setting as they contradicted one another in important areas of jurisdiction."281 Thus the administration with assistance from international agencies sought to harmonize the differing legal systems. Puntlands leaders established a, "participatory approach that brought together concerned actors in a neutral forum that facilitated free discussion and dialogue on issues and enabled to the interested parties reach a common consensus."282 Puntlands constitution calls for the creation of a Judicial Council composed , "The Chairman of the Supreme Court, The Attorney General, Three judges selected by Supreme Court, Two lawyers selected by the community."
"There are 44 judges and prosecutors in Puntland, and they preside over different types of cases, governed by an amalgamation of three main legal systems. They hear civil and criminal cases, governed by Sharia law (for family cases), by customary law, and by codified law. To date, there is no harmonization of procedure, and no system of precedents binding on the lower courts." 283 The Council is charged with the nomination, transfer, promotion and dismissal of judges and the judicial staff." Its judiciary is composed of the Supreme Court, First Instance Court, and Court of Appeal. Puntlands, "existing body of judiciary institutions is operating below minimum standards."284 According to the United Nations Development Program the legal system of Puntland operates with many limitations. 38 Of the 44 judges, "approximately 18 (40 percent) have a university degree in either secular of Sharia law. The remainder have traditional and non-formal qualifications, including locally acquired knowledge of Sharia and on the job experience."285 2. Constitutional Issues A key issue for facing Puntlands administrative and political development is its constitution. Puntlands constitution was, "hastily prepared in 2000 by a government-nominated commission that reportedly had little legal expertise, and was endorsed the following year by the House of Representatives without ever being subjected to public scrutiny or discussion."
Divergent from the experience of constitutional formation in Somaliland, a major facet of constitution building in Puntland has been the utilization of international agencies. This phenomenon has resulted from the inability of Puntland‟s political class from failing to agree on a constitutional format. According to Ahmed Abbas Ahmed & Ruben Zamora the heavy intervention of external forces poses, "a serious challenges…especially as it risks making the exercise externally driven by substituting internal actors with external expertise."286 According to analysts, "Puntland‟s progress toward democracy has been hampered throughout by weaknesses in the provisional constitution."287 Ultimately a more comprehensive constitution needs to be developed for there to be progress in Puntland political and administrative progression. Here it is important to note that Puntlands constitution and political structure does not call for independence from Somalia‟s central government. The provisional constitution states that it,"is an integral part of Somalia and has the obligation to restore and maintain national unity on a federal basis. It will hand over some of the authorities inherited from former governments to an expected Federal Government."288 Thus a formal constitutional integration between Puntland and a future central government seems to be more likely then one involving Somaliland. 289 Continuing he states, "A fine balance needs to be struck between what is technically sound, and respect for local ownership and control of the process."290 According to the work, History of Mediation in Somalia, "Externally-driven and –funded peace initiatives are liable to lack legitimacy and ownership."291 In contrast, "Somali-led peace processes generate legitimacy and ownership through the costs borne by the communities supporting them and with a direct interest in their successful conclusion."292 Continuing the report argues "Without this, delegates may lose touch with local developments, new actors may emerge with demonstrated local legitimacy, and evolving political dynamics may be crucially underestimated."293 39 6. Conclusion: Building a Lasting Peace A. The Somaliland Model for the Rest of Somalia The traditional clan structure with its xeer adjudicative system of reconciliation via a negotiated settlement has been the impetus for peace and stability in Somaliland and to a lesser extent Puntland. Between 1990 and 1997 Somaliland initiated, "a series of no less than 38 clan based peace and reconciliation conferences and meetings."294 The efforts of Somaliland and to an extent Puntland towards building stability in their regions differed from those employed by southern Somali on a number of ways. In Somaliland and Puntland, "meetings were materially supported by communities, including the Diaspora; key figures of each affected clan participated voluntarily; and resolutions were adopted by consensus after broad consultation."295 Consequently, "These conditions provided for a, degree of local and national ownership, legitimacy and inclusion."296 However, we should be cognizant of the fact that the cultural and socio-political dynamic of Southern Somalia differs somewhat from that of Somaliland. Thus, the Somaliland experience of political and governmental stability via the utilization of pre-existing clan based legal and administrative structures know and Xeer cannot be duplicated in the South. First, Somaliland‟s demographic parameters consisted of one dominant clan, Issaq, comprising of more 2/3
A interrelated factor differentiating Somaliland from its Southern counterpart is the maintenance of clan based institutions and cultural traditions. As previously discussed the north of Somalia maintained its traditional legal and administrative systems during colonial times. Those institutions remained a legitimate element within north Somalia‟s society on to the present. In contrast southern Somalia‟s clan based legal and administrative structures where not sustained. Thus, when Somalia‟s central government fell the north was able to resort or fall back to its traditional societal structures. The traditional Xeer law served as a tool with which to formulate a resolution of clan based conflict. Later, Xeer served as an instrument of peace and stability; the government of Somaliland utilized Xeer traditions to formulate a consensus amongst its differing clans.
Thus Somaliland cannot serve as a perfect model for the creation of a stable government on southern Somalia. However, tradition clan based structures can be regenerated in the South and serve as a tool to bring stability and aid in the formation of a national government. An important maxim in Somalia is rd of the nation‟s population. Southern Somalia comprises of many competing clans none of which comprise of a majority of its population. More so since the fall of the central government the south‟s clan based culture has further disintegrated; there are frequent battles and conflicts within the clans of the south, particularly in the capital city of Mogadishu. Xukun Shareeco oo lagu kala go’o, waxaa dhaama maslaxaad lagu heshiiyey", "A negotiated settlement serves a better purpose than an inflexible Sharia judgment that sows more division among disputing parties." Xeer‟s tradition of mediation rather than arbitration or adjudication can be utilized in the south to bring about resolution to clan based conflict and eventual stability. B. Constitutional Process: Must include a cross-section of Somali Society, Including Moderate Islamists, this method requires a comprehensive regional approach. The constitutional process for the formation of a national government requires a broader base of support for it to achieve the objective of being viewed by the Somali populace as a legitimate will of the people. A broader base of support entails bringing in Islamists into the constitutional making process. Currently, after the withdrawal of Ethiopian forces, most of the south is dominated by Islamist groups. As previously remarked upon, the control of territory results in the ability to provide protection; in turn the ability to be protected by a group results in legitimizing the group in the eyes of the public. In contrast, the Transitional Federal Government controls a few parcels of incongruent territory. Without legitimacy to provide protection a political entity will not have the legitimacy to formulate a comprehensive constitutional framework. Thus, without legitimacy a constitutional process or a accepted upon constitution will not be an effective tool to unite and bring peace to a state.
The process of bringing in Islamists may be a difficult challenge for the TFG and the International community. The more militant Islamist groups, "oppose Western-style constitution making itself as an implicit challenge to Shari’a law."297 More some even go further rejecting, "the existing territorial definition of Somalia in favor of an Islamic emirate embracing all the Somali people in the Horn of Africa."298 However, there are more moderate elements in the Islamist groups, "which favor a unitary rather than a federal state."299 The process of integrating moderate Islamist into the constitution making process will require a regional and international dynamic. Competing regional interests have to be adequately addressed to enable sufficient opportunity for reconciliation and the emergence of a broad-based transitional government. First, Ethiopia‟s fears of an Islamist dominated Somalia seeking to regain the Ogaden region has to be quelled. This will take a regional and international approach. The international community has to provide Ethiopia with security assurances; and assurance that Ethiopia‟s territorial integrity will be upheld. Additionally the United States fear of Somalia as a bastion of Islamist terrorism has to subside. 41 C. Uniting Somalia: Should it be done or Not? An Important question that must be asked is whether Somaliland and the rest of Somalia should re-unite under a national government. Coupled with this issue, we must question the feasibility of the process of unification. The two regions share a common cultural religious and linguistic society. However, they have differing and often conflicting historical experiences; from their colonial experience to their relations with the central authority after independence and on into their respective episode following the collapse of central authority. For the past two centuries the two have been separated from one another much more often than united. During their unification intense conflict resulted from Somaliland‟s sentiment that it was being subjugated by the south. The fall of the Barre regime provided the impetuous for Somaliland to declare itself free from the oppressive policies of the south.
An argument can be made that the inclusion of Somaliland into a future Somali state will acts as an agent of stability for the reconstituted state. Others state the breakup of Somalia will threaten regional stability and foment independence movements across the African continent and Arabian Peninsula. However, the future stability of a future Somalia should not come at the expense of the self-determination of Somaliland‟s people. For the past two decades Somaliland has shown a determination to shape a stable nation state.
History has shown that the unification of the two will only lead to more conflict. A response to the current conflict in the south should not include the merging of these two political entities into unified states. A future Somali state can comprise of a loose federation which takes into account the historic, cultural, and clan base division of its people. 84. However in, "recent years, conflict increasingly has devolved to sub clan and even sub-sub clan levels."85 According to the World Bank report on Somalia, lack of a central authority, "led to fragmentation and an economy of plunder that brought leaders into conflict with other leaders, sometimes from the same clan, vying for control of the same local area and resources."86 The "struggle for territorial control, political power, and economic control of a region prompted lowering the level of clan identities so as to mobilize support from the sub clans."87 Analyzing these facts the World Bank reports states, "Thus, with the collapse of the central state, the clans tended to clash less across regions (northwest versus south-central versus northeast) and more within regions."88 The process of clan breakdown is evident in all three regions of Somalia, (Northern Somaliland, Central Puntland, and Southern Somalia.) In all these regions, "clans have given way to the emergence of sub clan identity as dominant, with clans lowering their level of identity to the level of sub clans in the competition for economic power and political ascendancy."89 71
Somalia has been a nation without a central government for close to twenty years. Since 1989 Somalia has suffered civil war with horrific consequences to its society. When the central authority of Somalia collapsed in 1991 clan based factions filled the political vacuum, but failed to coalesce into a united government. Instead, "they attacked each other and provoked a war that caused the deaths of an estimated 250,000 people and drove hundreds of thousands out of the territory."1 Ever since then, Somalia‟s governmental, administrative and bureaucratic systems have ceased to function. According to many regional analysts, much of Somalia, particularly the populated south has reverted to a state of anarchy; "Lawlessness, anarchy, and the consequent famine were most profound in Southern Somalia,"2 According to former UN envoy to Somalia, Mohamed Sahoun, Somali society is like, "a vase that has been smashed into small fragments."3 According to Mario Silva in his work, Somalia: State Failure, Piracy, and the Challenge to International Law, "failed states face an internal collapse of law and order. Functionally, failed states lack bodies capable of representing them at the international level and lack the capacity for accepting external influence."4 The legal definition of a collapsed state, "is one which, though retaining legal capacity, has for all practical purposes lost the ability to exercise it. . . .[T]here is no body which can commit the State in an effective and legally binding way."5 The failure to establish relations with other entities, (states, international organizations including non-governmental institutions) on an international level pose humanitarian and geo-political consequences for the international community. This challenge was evident in the early years of the Somali civil war where, "a key factor in the lack of major international action was Somalia‟s nonfunctioning governing system, which raised the question of how the UN could resolve the chaos and whether it should intervene without consent."6 The Unites States along with a coalition of international partners formed United Task Force (UNITAF) which was charged with carrying out United Nations Security Council Resolution 794, "to establish as soon as possible the necessary conditions for the delivery of humanitarian assistance wherever needed in Somalia."7 Soon after its intervention in Somalia, both the United States and the United nations realized they could not leverage the success [of humanitarian aid operations] into civil and political rehabilitation."8 Within a few weeks, "pitched battle between two dominant 2 Mogadishu clans occurred."9 Soon the inter clan conflict bleed into US lead relief operations leading to the death of dozens of United States soldiers. By late 1993 the Unites States became wary of continues presence in Somalia and the President Bill Clinton stated, "That all US soldiers would be withdrawn by 31 March next year [1994]."10 Since the withdrawal of US and international forces from Somalia in 1993-1994, the international community has yet to respond effectively to the plight of the Somali citizenry. Somalia‟s administrative and political collapse has created a vacuum allowing internal and external forces from taking a foothold its soil. For instance the rise of lawlessness and anarchy has lead infiltration into Somalia by internationally based Islamists networks. Islamic sharia socio-political and legal entities have, "always existed and are derived from a traditional model for administration, adapted to a social and political structure based on a population dominated by nomadic and agricultural economies."11 Recently Somalia‟s Islamist groups have projected their attacks outside of Somalia into neighboring countries. On July 11th of this year, "Somalia's al-Shabaab militia, (an offshoot or coalition partner of Somalia Islamic Courts Union ICU) claimed responsibility for the July 11 suicide bombings that killed 76 people watching soccer on TV in Uganda."12 Piracy is a further symptom of the collapsed Somali state. The past decade has been the drastic rise in piracy in north-eastern Indian Ocean and the Gulf of Aden, (connecting the Red sea to the Indian Ocean). The vast majority of acts of piracy emanates from bases in Somalia. In 2010, "Somali pirates' raids on vessels account for more than half of the incidents of piracy,"13. Pirates stemming from the Somali coastline have hijacked vessels ranging from large container ships to private yachts. In 2009 for example an English couple was taken hostage on board their yacht by Somali pirates. After the hostage taking the pirates spokesmen called Hassan stated, "If warships surround us, we shall point our guns at the British tourists."14 The resolution to these issues needs to encompass two distinct but interconnected strategies. First, there needs to be a comprehensive regional approach towards the reduction of conflict in the region, (Horn of Africa and South-Western Arabia), via creation of regional economic & political cooperation. There needs to be resolution of the decades old territorial disputes between the states of the Horn of Africa. The second strategy needs to be the rebuilding of Somalia‟s governmental institutions and legitimacy of the rule of law. These two elements are interrelated in that there cannot be a stable government in Somalia without a resolution of Somalia territorial aspirations with respect to its neighbors. Concurrently there cannot be a resolution of the territorial disputes without the presence of a stable legitimate Somali government.
Here it is important to note that it may well a lack of a political and administrative structure in Somalia rather than the prevalence of poverty which has lead to an increase in piracy. According to, Hansen
" poverty is also common in coastal areas in neighboring states such as Yemen, Kenya and Tanzania, yet the frequency of piracy today in these areas is low compared to the 3 pirate regions of Somalia.31 In other words, piracy never occurred or was limited in other places that were equally poor or poorer."15 Many believe that the spate of piracy in the Indian Ocean has resulted from the lack of an administrative authority or any semblance of an executive enforcement body in Somalia. Over that past two decades many in the international community have invested countless hours devising a new political, judicial, and constitutional structure for Somalia. Manny others have sought to answer the question of why Somalia‟s governmental and administrative structure disintegrated and have yet to re-organize as a more cohesive unit. Here it is important to note that what is surprising to many academics and political and legal scholars regarding Somalia‟s dissolution into war and anarchy is that the Somali nation encompasses many elements which have previously been thought to be greatly advantageous towards the creation of a stable functioning state. The Somali‟s encompass three important attributes that are usually necessary for the establishment of stable nation state, a common language, a common ethnicity and historic experience, and a common religion. Rupert Emerson in the Forward to the Book
"One of the distinctive attributes of the Somalis…is that they possess a good measure of the elements, derived from the example of Classic Western European prototypes, which have in the past been assumed to be the essential ingredients of a nation. In contrast to most other African peoples, the Somalis are united in language… They are also united in the Muslim religion and in the belief in a common descent and heritage."(4)
Thus the intriguing question is why Somalia failed, despite the presence of such inherent advantages towards developing a unified nation-state. In other words, what are the other factors and attributes which lead to the demise of the government.
This paper hopes to shed light onto the many historic, legal, constitutional, and administration causes of why Somalia, a nation witch possesses such attributes failed to maintain a semblance cohesion amongst its citizenry. Additionally, we will discuss the many challenges faced by the international community‟s objective of resuscitating a stable functional Somali State. Here we will focus on the political, legal and constitutional challenges the Somali people and the international community face in re-developing a functioning Somali state. The issues and challenges that will be discusses are, Somalia‟s history of anarchism or semi-anarchism as the preferred socio-economic and political order; formation of a new Somali constitution which adheres to human rights and democratic leaning political order while maintaining essential Somali and Islamic socio-cultural element; whether the notion of a modern western style nation-state is compatible with Somalia cultural foundation; and whether a future Somali state should consist of both northern and southern Somalia or should Somalia be split along historic colonial lines.
In order to answer or shed light into these question this paper will discuss the historic underpinnings of Somali society including its culture, past political history, and religious institutions. We will discuss Somalia‟s cultural heritage of the "Xeer" adjudicative system, & Islamic Sharia law. Also we will discuss Somalia‟s colonial past and its influence on Somali law and the formation of the Somali political and administrative structure. More so, this paper will analyze the creation of Somalia‟s constitution and Somali legal and administrative system after its independence. Next, this paper will discuss the Somalia‟s irredentist aspirations and Somali Nationalism writes, 4 subsequent governmental decay. Finally we will analyze the states deterioration into anarchy during the two decades of civil war in that country.
The next sections of this paper will analyze the current legal and political institutions that are playing a governmental role in the different territories they control. Here we will play close attention to the different legal systems that have taken hold in Somalia after its governmental collapse in 1991. Finally we will discuss possible means with which Somalia can reconstitute itself as a stable more pluralistic society at peace with itself, its citizenry, and its neighbors. According to legal scholars, state building in Somalia is ultimately, "about rebuilding relationships at all levels, restoring the people‟s trust and confidence in governance systems and the rule of law, and providing the population with greater hope for the future."16 This section will present a set of guidelines which can serve as a framework towards the reconstituting central authority and governance in Somalia. Here, will pay particular focus on the inclusion of historically and culturally significant legal and administrative Somali doctrines within the framework of a future Somali governmental structure and constitutional system, in the hope of establishing a more resilient and stable centralized authority. 2. Somalia: Culture, Colonialism, and Anarchy Many nations have experienced civil wars and other internal conflicts which have lead to the disintegration of its central authority. However, in modern times the vast majority of these nations have been able to in the least reconstitute some semblance of national governance and political activity. However, close to 20 years the collapse of central authority the Somalia people have yet to reconstitute a nation government. This section will provide a background into the different socio-political economic and historic forces which continue to play dominant role in Somalia. A: A Society of Anarchy Claude Ake wrote in his work, The Feasibility of Democracy in Africa "In most of Africa, the state is a contested terrain where different nationalities, sub-nationalities, ethnic groups„ and communities go to fight for the appropriation of resources including power."17 Continuing he remarks that " A state which is a contested terrain in this sense can only be an anarchy of self-seeking and a theatre of war."18 As stated previously, what is perplexing about the Somalia is that is encompasses a significantly (relative to other African countries) unified self-identity. It‟s nearby by neighbors in East Africa encompass a myriad of ethnic, linguistic, and religious factions within their national polities. For example, Kenya, a nation to the south comprises of eight different ethnic groupings, a myriad of religions, (Catholics, Protestants, Muslims, and differing indigenous religions), and numerous languages with little to no mutual intelligibility.19 Ethiopia, a nation to the west of Somalia, also encompassed a varied ethnic grouping amonst them the Oromo, 5 Amara, Somalie, Tigraway, Sidama, Guragie, Welaita, Hadiya, Affar, Gamo; with approximately 60% practicing Christianity and 30% Islam. Deviating from these nearby states, Somalis believe in a common ethnic decent from the family of the prophet Muhammad, all speak the same language with great mutual intelligibility between different dialects, and almost all Somalis belong to the Sunni Islamic faith. Yet, over the past twenty years the Somalis have failed to create a unified political, judicial, and administrative body.
Over the past two decades Somalia has been compared and contrasted with Afghanistan. As failed states both share some similarities. However the differences between the two states, far outweigh their similarities; thus Afghanistan does not provide an exact analogous comparison to the current socio-political dynamic in Somalia. First, Afghanistan is in many ways an artificial edifice; created as a buffer state between the growing colonial empire of the British in India and the Russian domination of Central Asia. In addition, Afghanistan encompasses a myriad of differing ethnic, religious and linguistic groupings; including the Shiite Ethnically Mongol Hazars, the Farsi Speaking Tajiks, the Pashtuns of the south, and Turkic ethno-linguistic groups such as the Turkomen and Uzbeks in the north. As states earlier Somalia does not encompass such a myriad of differing ethno-linguistic groups.
Thus the issues that we must analyze are what factors in Somali society make it difficult for its people to unite under a centralized administrative body?
A counter-intuitive argument perhaps is that the more ethnic divide in a nation state leads to greater consolidation of power within a specific ethnic group; the group controlling the reigns of power in the central government. As a result of the group‟s strategy of maintaining power it initiates programs aimed at centralizing power within the national government. Thus group‟s domination over other groups facilitates a concentration of power within the central government.
Kristi Samuels presents an argument for Somalia‟s inability to reunify based on its society‟s failure to meet the legal and administrative challenges of a unified, modernizing, and more urban state. She states, "The social system within Somalia, which evolved over a thousand years to support a nomadic economy and a nomadic culture, has not adjusted well to the fundamental changes of the last fifty years, particularly those represented by large migrations to urban areas."21 2. Clan and Genealogy in Somali society: The, "Clan is integral in Somali society and influences all aspects of Somali life."22 The clans system has played a significant role in preventing Somalis from reunifying into a nation state. According to a 2005 work by the World Bank, Conflict in Somalia: Drivers and Dynamics, The Somali experience demonstrates that clan is a double-edged sword––it closely links Somalis and tears them apart."23 "Clan relationships brought families together to help one another, as in the case of violent distribution disputes (for example over water), which were quite frequent."24 Eventually over many generations, "this gave rise to a differentiated social system: families joined to form sub-clans, which, over in turn formed clans and ultimately clan families."25 The clan structure can divided into three groups. The primary levels are the diyah-paying groups and the primary lineage, "which both might encompass a few hundred to a few thousand individuals."
Genealogy plays a vital role in the Somali clan system. It legitimized an individual‟s claim of belonging to a clan. It is at the same time a tool which binds all Somalis together into a large extended family, and an agent of deep division along clan lines. "It is a matter of pride to teach children their father‟s genealogy."26 At the top, "is the clan-family, which include as many as millions of individuals."27 Traditionally, "the main clan families of Darod, Dir, Issaq, Hawiye and Rahanweyn, along with minority clans, constituted Somali society."28 Furthermore, each if these clans are subdivided into sub-clans, sub-sub-clans and extended family groupings. 29 According to I.M. Lewis, "the ease with which small children of eight or nine years can recite their genealogies up the their clan family ancestor is astonishing."30 Continuing he points out, "everyone knows his genealogy"31. According to tradition, "the Somali nation symbolically consists of a vast genealogical tree. Nearly all Somalis descend from a common founding father."32 It is important to note that the clan system based on genealogy is not rigid as it is often subject to ongoing socio-economic and political dynamics."
"in the event of conflict alliances form that always relate to a specific conflict. This leads to situations in which two hostile segments may easily form a short-term alliance against a mutual enemy if a new conflict emerges – only to resume their bilateral conflict afterwards."33 According to Dirk Spilker, 34 The alliance formed is subject to alteration and or dissolution once the economic or political advantage of maintaining the alliance has waned, "permanent political institutions – such a notion is generally foreign,"
This phenomenon is not all harmful. By the late 1990‟s Somalia‟s, "military conflicts became increasingly sporadic with short-lived skirmishes. An uncertain stalemate came to prevail in Somalia."35 to traditional Somali society. Interestingly, the organic and loose structure of the inter-clan system, "leads in aggregate to a balance of powers: the position of the individual segments with respect to one another is constantly changing, but the overall balance is maintained."36 As a result clan identification "is used as a tool to mobilize clan members when in conflict, and cleavages are drawn upon to wage war." In this way, clan and subclan differences may be, "a force for division and fragmentation, particularly when manipulated for political or [economic] purposes,"37 by warlords, regional powers [in the case of Ethiopia or Eritrea] or the business elite. 38 More so, "while militia-factions regularly shifted their alliances, frontlines between them rarely moved."39 Thus a "prevailing balance of power prevented any one militia faction from imposing its rule over another."40 The primary example of this phenomenon is the current political dynamic in Somalia in general and southern Somalia in particular. The failure to form a central authority is in part a manifestation of the failure one clan to assume overall dominance in Mogadishu. This failure is in part the result to the organic non-rigid system of clan alliances described above. IM Lewis describes the varying and constant shifting of alliances, writing, "So as we have seen, the USC faction leaders in Mogadishu, however divided among themselves internally, are perceived externally as being all Hawiya. This tends to trigger a corresponding reactive alliance of various Darod clans factions at a higher level of Darod unity." According to Ken Menkhouse, "Instead of reaching a power-sharing agreement, faction leaders redirected their attacks on rival clans, leading to a massive flight of Darod clansmen out of Mogadishu and ushering in a destructive two-year civil war."
The independent nature of clan society also translates to Somali societies perception of government or any other central authority, "another structure, stronger than the clan, with an army force and abundant resources to freely compete for and by which to subdue rebellious opposition-clans or political groups."41 Thus, the balance of power between the clan is maintained via correspondingly parallel alliances from the sub-clan level all the way to the clan level; all the while there can be no consolidation of power under a unified central government. 42 8 B. Colonial impressions on Somali Society The imperial powers of Italy and Britain partitioned Somalia their hold in the region in 1897. Full administrative authority of the Somali populace was not achieved unlit 1920. The colonial powers left Somalia some 40 years later. 40 years seem to be a very short interlude in Somali history, given the nations one thousand years of existence as a distinct cultural entity. Yet the colonial experience had a deep impact on Somali society, politics, administration and law.
The Italians intention for their chunk of Somalia was to create a settler colonial state, similar to Britain‟s colonization of North America. According to the Library of Congress the motivation was threefold; "relieve population pressure at home to offer the civilizing Roman mission to the Somalis, and to increase Italian prestige through overseas colonization."43 Thus the building of modern state institutions, such as infrastructure, irrigations, legal system, became a main objective of the Italians. Beginning in the 920‟s the push towards development was further intensified under Italy‟s new fascist government. "Large-scale development projects were launched, including a system of plantations on which citrus fruits, primarily bananas, and sugarcane were grown."44 These policies "helped transform southern Somalia's economy."45 In contrast to the Italian colony, the British model for colonialism in Somalia was one of ambivalence and as little intrusion into the daily life of the local population as possible. According to, the International Crisis Group work, Somaliland: Democratization and Its Discontents, "instructions were issued to the effect that "the occupation was to be as unobtrusive as possible. No grandiose schemes were to be entertained; expenditure was to be limited to a minimum, and was to be provided by the local port revenues"46 Continuing the report states that, "By employing methods of „indirect rule‟, the number of British colonial officials was kept to a minimum."47 Economically, the British used their colony, "as little more than a supplier of meat products to Aden."48 At the time of independence in 1960 British Somaliland, was not prepared for the complexities of the administration of a state; "the entire country could boast of only a handful of university graduates and two secondary schools. Not a single sealed road linked the major towns, and there was no industry to speak of."49 This disparity in economic, infrastructural, and administrative development had tragic effect on the future unity of the Somali nation. "Southerners gradually came to dominate the new states economic and political life – a hegemony that bred a sense of betrayal and bitterness among northerners."50 Apart from the disparity in the level of development in respective administrative and economic systems, South and North Somalia were "from an institutional standpoint, two separate countries."51 According to ICG report, "Italy and Britain had left them with separate administrative, legal and education systems where affairs were conducted according to different procedures and in different languages."52 More so, "Police, taxes, and the exchange rates of their 9 separate currencies were also different. The orientations of their educated elites were divergent, and economic contacts between the two regions were virtually non-existent."53 Initially Italian Somali law composed of the utilization of Italian codified law and the observance of the Sharia. Muslim plaintiffs, "had a choice of appearing before a secular judge or a qadi (Sharia judge)."
The British introduced a body of codified law and a judicial System to Northern Somalia, "based on British Common and Statute Law and the Indian Penal Code. In addition, the British established 54 In Italian Somaliland traditional Xeer law was sparsely used. Near the end of Italy‟s colonial administration both Somalis and foreign nationals were subject to a judicial system in three parts. "Civil cases were heard by district, regional and appeals courts; penal cases were addressed by assize courts (criminal courts using Italian code) of first-instance and of appeal." If insisted upon by plaintiffs, "Somalis and other Muslims had access for family matters and minor civil disputes to be heard by qadi (Sharia) courts of first-instance and appeal." Both of these courts were under the jurisdiction of the Supreme Court which, heard appeals from both, "as well as deciding matters of jurisdiction between them."55 The Italian legal system far more structured its British counterpart. Akil’s courts and, subsequently, Qaadi’s courts to apply customary law (Xeer Law)."56 In these courts, "Shari’a law continued to be applied in domestic matters."57 Somaliland law experienced only 9 years of formal legal integration with Southern Somalia (1960-19690. This period saw, "considerable codification of the legal system primarily on the basis of Italian civil law rather than common law."58 The authority provided by the British to tradition legal and administrative powers in the north during colonial times has had significant repercussions in today‟s anarchic Somalia. "In both contemporary Somaliland and Puntland, traditional elders still commend considerable influence in all sectors,"59 This is the superlative in today‟s South-Central Somalia where traditional xeer "legal administrators have very limited influence."60 In order to further explicate the proposition that different colonial histories lead to a higher probability of political dissolution along colonial territorial lines, it is important to analyze other states which may have had a similar bifurcated colonial experience. Somalia‟s and its Arabian neighbor Yemen share a similar background of colonial domination. Similar to Somalia many Yemen‟s current political issues manifest themselves on historic colonial boundaries. 2. Comparative Analysis of the effects of colonial separation Yemen can serve as a comparative example of a nation which was separated under differing colonial masters and as a result has been facing great social and political issues with maintaining a unified state. Yemen is on the southwestern corner of the Arabian Peninsula, and a close neighbor of Somalia. According to a recent report on Yemen, like its African counterpart, 10 the country faces, "challenges that endanger its political future and threaten its neighbors on the Arabian Peninsula. War, terrorism, a deepening secessionist movement, and interconnected economic and demographic trends have the potential to overwhelm the Yemeni government, jeopardizing domestic stability and security across the region."61 Like Somalia, Yemen‟s secessionist movement runs across political division created by previous colonial powers; its secessionist movement does not run across geographic, ethnic, linguistic, or religious lines. According to the Norwegian Peace Building Program for Yemen; amongst its people there is a, "well-rooted Yemeni identity and the 1990 merger of the north and the south showed that the country can be united."
Since unification there has been an ever increasing rise in calls by South Yemenis to separate from North Yemen. "Many people in the south believe they are subject to discrimination by the government and there is growing support for secession from the north."62 "British influence increased in the southern and eastern portion of Yemen after the British captured the port of Aden in 1839." South Yemen remained a British protectorate until the last "British troops were removed on November 29 1967."63 By 1969 a, "radical wing of the NLF (Marxist National Liberation Front) gained power."64 From the, "nineteenth century, northern Yemen was controlled in the cities by the Ottoman Empire."65 Independence for North Yemen came in 1918, when the Ottoman Empire was dissolved. North and South Yemen were united with the dissolution of Soviet supported South Yemen in 1990. 66 More so the Southern Liberation Movement, "contends that people in the south are suffering under economic, political and cultural oppression by the government based in Sana‟a in the north. Several alleged that their land, homes or property had been confiscated by the government and that long legal battles to retrieve them are rarely successful."67 Similarly, after unification of British and Italian Somaliland, the South took up the reigns of political, administrative, and economic power. The problems of uniting territories which had been administered by differing legal and governmental systems, "were exacerbated by perceived
southern domination of the new government. Representatives from the former British Somaliland, now known as the „Northern Regions‟, received just 33 seats in the new 123-member national assembly."68 More so the key posts, "of President and Prime Minister were both held by southerners, as were the principal ministerial portfolios such as Defence, Foreign Affairs, Finance and Interior."69 This phenomenon caused disillusionment amongst the northern tribes of the former British colony. This sense of disillusionment in the national government was further exasperated by the arrival of the Barre dictatorship which instituted draconian laws aimed at consolidating power amongst his clan in the capital Mogadishu. 11 3. Maintenance of traditional Xeer law in Somaliland As stated earlier the Italian model of the administration of their colony in Somalia was far more intrusive then the role played by the British. The British allowed for local clan based legal and administrative function to remain in much the same form as had been prior to their colonization. After independence Somaliland‟s traditional forms of conflict resolution and legal discourse remained while the South no longer had a strong link with that heritage. Hajji Abdi Hussein Yusuf a member in the House of Elders of Somaliland and an instrumental figure in peace building efforts in Somalia described this phenomenon. He states,
"During the colonial era, southern Somalia was colonized by Italy, which destroyed the traditional conflict management systems, rendering the elders ineffective. So their role in
conflict management and peace building disappeared."70 He further contrasts what occurred in southern Somalia with the northern Somalia,
"But Somaliland, which was colonized by Britain, kept its own traditional conflict management mechanisms in place and these values and norms were not disrupted. These have ultimately enabled us to reconcile our people and have nurtured mutual trust and dialogue."
C. Somali Irredentism and Continued Ethiopian Intervention A further fallout from colonialism has been Somalia‟s endemic rivalry with its neighbor Ethiopia. The presence of this rivalry has manifested itself in war and constant intervention on the part of Ethiopia into the internal political dynamics of Somalia.
Somalia shares a vast border with Ethiopia except for its extreme north and its southern corner, nearly all of Somalia‟s land border is shared with Ethiopia. The two nations have been regional rivals for over the contested Ogadan region since the partition of Somali territory by the colonial powers and Ethiopia in 1897. According to Spilker the loss of the region to Ethiopia, "has served as the source of a pan-Somali nationalism which propagates the reunification of Somalia."72 The issue of Pan-Somalism has been an issue that has, "dominated popular opinion (in Somalia), and any government would fall if it did not demonstrate a militant attitude towards neighboring countries occupying Somali territory."73 As a result it has, cemented the hostility between the two neighbors ever since; "Ogaden has been a continual bone of contention and potential causus belli between the two countries."74 12 Ethiopia‟s fear of a resurgent Somalia with irredentist aspirations has propelled it to constantly intervene in Somalia when it feels threatened by a potential formation of an anti-Ethiopian central government. Ethiopia‟s penchant for intervention in internal Somali affairs was seen when during a round of peace negotiations between Somali factions held in Kenya, "Islamic factions (most of which were neither radical not jihadists) where deliberately excluded. The Exclusion was effected primarily on the urging of Ethiopia which feared a neighbor with too much Islamic influence."75 This strategy was further exemplified by Ethiopia‟s invasion of Somalia in 2006. Upon the Islamic Courts Union takeover of Mogadishu, key members of the union began making
"We have now routed and broken the backbone of the force bracing to destabilize our country and the whole of the Horn of Africa, sticking to our back like a thorn difficult to remove,""irredentist claims on Ethiopian territory, calling for jihad against Ethiopia, and sponsoring armed insurgencies against the Meles government."76 Ethiopia‟s primary objective was to, "crush forces which have challenged its interests in Somalia since the mid-1990s. Ethiopia‟s, "principal fear is the rise of a strong, centralist, nationalist or Islamist state there that would revive irredentist claims on Ethiopian territory."77 Upon their victory in Mogadishu, Ethiopia‟s prime minister, Meles Zenawi stated, D: Economic and Political benefits from Anarchy leads to maintenance of status quo: Anarchy begets more Anarchy All societies, from the smallest groupings of a few persons conjoined via a family system to national entities comprising of hundreds of millions of people have at their basis a set of basic principles (customs), with which each member of that society follows. A state is defined by many scholars as, "a constellation of norms, institutions and those who inhabit them, ostensibly to manage the collective political fate of a given society."
Since the collapse of central authority Somali commerce has grown leaps and bounds. In many respects has outpaced the economic development of its African counterparts, "In a 2007 survey of 41 African countries Somalia ranked 16th in number of mobile phone users and 11th in number of internet users. Some 15 companies operate aviation services in Somalia, using leased aircraft and foreign personnel for maintenance and air traffic services."79 However, imagine if key members of that society have come to the conclusion that a state is detrimental to their well being? Whether or not this perception is rational is irrelevant. What is significant is whether a significant number, (either numerically or in terms of influence political, cultural or economic), believe in the assumption that their better off without a state. 80 Additionally, "hawala companies [provide remittance service] now provide an ever-growing range of banking services 13 and have invested in other sectors of the economy."81 According to the World Bank, "Somalia‟s GDP grew from around $1 billion in 1996 to more than $5.5 billion in 2007, with a real growth rate in 2007 of 2.6 per cent."82 Given Somalia history of repressive governments, many in Somalia, particularly the business elite and entrepreneurs perceive the establishment of a central government as counterproductive to their economic well being. Menkhous explains,
"state revival appears to many Somalis to be a zero-sum game – and a game with very high stakes. While nearly all Somalis agree that they need the core services provided by a functional central government, the risk that that government could fall into the hands of rivals, or could develop coercive capacities and engage in predatory behavior against the private sector, makes the enterprise of state-building too risky for some Somali groups to support."83 If the general consensus amongst the power base of a society is that anarchy is beneficial to their interests then anarchy begets more anarchy. In other words a breakdown of societal institutions, even those deeply rooted in history and culture, takes place. This phenomenon can be witnessed in the breakdown of clan structures in Somalia since the fall of the central government in 1991. In the early parts of the Somali civil war, "conflict resulted from divisions among major clan battling over power and resources"
3: Somalia A History A. Pre-Islamic Somalia Somalia‟s history and the socio-cultural elements cannot be fully ascertained without a study of the land which the Somali people reside in. Somalia‟s geographic dimensions have played a vital role in its history and the nation‟s cultural and socio-economic dimension. The lands inhabited by Somalia lies on the edge of the north eastern Africa. Referred to as the Horn of Africa, ( it is shape like the horn of rhinoceros). The land straddles the Indian Ocean on its eastern boundary and the Gulf of Aden on its northern boundary.
To the east lie the central highlands and mountains of Ethiopia. From these highlands flow two rivers which have played a vital role in the agriculture of the Somali people. "Unlike the rest of the country the fertile area between the two main rivers supported farms and plantations."90 These two rivers, the Shabelle and Juba flow from the highlands towards the Indian Ocean through a southern rout. As a result the south of Somalia hosts the largest proportion of the nation‟s population. However most of the country has not been provided with the water recourses present in the valleys and basins of the two rivers. However, the vast majority of the land does not possess the resources fundamental in supporting an agrarian based economy. In this vast region there is little water, thus the main socio-economic system consists of a, "pastoral nomadic culture, herding camels, sheep‟s and goats, and in favorable regions, cattle."91 Accordingly, "some 60 to 70 percent of the population are nomadic or have nomadic affiliation, even though many today live in urban centers for part of the time at least."i As a result the Camel, the steward of transportation in desert and semi-desert regions is of great importance in Somali culture. "Traditionally, the noblest occupational calling in Somalia was camel herding."92 Additionally Somalis use the camel as a form of peace offering, exchanging, "camels to symbolize the mending of a broken relationship or for cultivating a friendship."93 The prestige given to the camel is an indication of the significance of the nomadic lifestyle amongst the Somalis. A key aspect of the nomadic socio-economic system is its inability to coagulate or be coagulated into a centralized state. A concise explanation is given here,
"Such a world is not conducive to any form of economic surplus or economic accumulation. Without economic accumulation, there are no possibilities of permanent settlements, of cities and of the distinct political structures we have called the state'. In such societies, politics are diffused throughout the whole social body and not separated, specialized so to speak, in a 'state' form, since people are forever moving."94 The nomadic pastoral lifestyle has many downsides, little rain fall meant little agricultural surplus, "shortages and hunger were familiar shadows that haunted the Somali landscape."95 The procurement of sought after manufactured goods and spices came via trade rout on the India Ocean. 15 As a result of its long coast on the Indian Ocean, Somalia has been susceptible to much cultural and economic interactions with is coastal neighbors. For centuries, "Somalia maintained commercial and cultural contacts with the ancient world, particularly with Egyptians, Southern Arabians, and other West Asian societies. Pre-Islamic Arabia and Persian established a very active trade in Somalia."96 B. Introduction of Islam With this trade came great cultural interaction. Arab and Persian Traders began to spread their new found religion via historic trade routs on the Indian Ocean. Somalia, a land with a long coastline on the Indian Ocean became the recipient of Islamic conversion and immigration. According to, Mohamed Haji Mukhta in his work,
European colonization."Islam in Somali History: Fact and Fiction, "The Muslim migration grew tremendously from the rise of Islam to the tenth century AD. According to authorities Arab sources there were eight major waves of Arab and Persian settlements in Somalia"97 By the 14th century Mogadishu as well as the southern Arab and Persian founded cities of Merca, and Baraawe were, "important centers of urban ease and learning."98 At that time the first Sultanate ("Muzaffar") on Somali soil was established. "Not until the 16th century did Muzaffar gradually begin to lose its importance as an economic center, later vanishing in the process of 99 In terms religious affiliation, Somalis enjoy a rather unique position amongst the nation-states of the African continent. They are virtually, "the only country in the whole continent whose population is virtually all Muslim." Additionally Islamic sectarianism in Somalia is virtually nonexistent since, almost all are Sunni and follow, "the Shafi‟i Sunni school of thought."100 Along with religious uniformity, Islam brought about a sense of cultural adhesion predicated upon Arabic ancestral lineages. All Somali clans believe they are, "descended from the household of the prophet Muhammad, so that all Somalis belong to the Hashemite stock the Qurayshi clan."101 By the time Europeans began to consolidate their hold over differing parts of the African continent the Somali nation comprised of almost complete homogenous socio-cultural and religious elements. However, despite this fact, "the Somali people were not organized into a state."102 Rather [Somalia] "consisted of a decentralized political system comprising an elaborate succession of clans and sub-clans governed political life."103 C: Colonial era to Present 16 During the colonial era of African, the lands inhabited by Somalis were split between five differing entities. The extreme northern section of the land became a part of the French colony of French Somalia, referred to today as Djibouti. The south became a part of the British colony of Kenya. In the west of Somali land Ethiopian Emperor Menelik II, occupied the city of Harar in the Ogaden region and announced his territorial claim to the entire region, a claim recognized by the colonial powers," mainly Britain, France and Italy. British and Italian Somalia were united when its people gained independence in 1960. British Somaliland was the first to gain independence and was "already recognized as an independent state by over countries."104 On July 1960 as a result of, "the strength of the prevailing sentiment of Somali unity, Somaliland and South Somalia united together to become the Democratic Republic of Somalia."105 Post independence resulted in a period of nine years of democratic governance starting with Ibrahim Egal as president. "However, the democratic years resulted in widespread corruption and economic decline."106 However, during this era Somalia participated in numerous international conventions and human rights declarations. The declarations which Somalia was a signatory too and subsequently ratified into its domestic legal system included, the, "International Convention on the Elimination of All Forms of Racial Discrimination, International Covenant on Civil and Political Right, International Covenant on Economic, Social and Cultural Rights, Convention Against Torture and Other Cruel or Degrading Treatment or Punishment,"107 as well as, "labor rights conventions such as the "Convention on the Elimination of Forced and Compulsory Labor"108 Domestically much of what had been achieved on the international and diplomatic level was dashed with the arrival of a military regime under the leadership of Said Barre in 1969. Barre military regime, proclaimed Somalia as a "socialist state."
legislative, executive, and judicial powers to the Supreme Revolutionary Council."109 Initially the government instituted, "state reforms and development of education, infrastructure and the economy."110 However, these reforms were soon overshadowed by the regimes goal of attempting to remain in power which intern lead to vast, "human rights abuses and other violent means of exercising state control"111 A major facet of Barres strategy of maintaining power was the use of the legal system to suppress dissenters. The regime, "suspended the Constitution of 1961, assigning all 112 During his regime, "law was used efficiently to enhance and safeguard the military regimes interests."113 As an example, "habeas corpus was abolished."114 More so the regime passed laws contrary to its international legal obligations including, Law no. 54 [which] became 17 notorious for denial of human rights as it listed 26 offences that were considered injurious to peace and order."115 More so, "out of the 26 offences, 20 were punishable by a mandatory death sentence."116 In an effort to dilute the power of clans Barre‟s unified civil code, "curtailed both sharia and Somali customary law"117. Emblematic of this tactic were sections of, "the code that abolished traditional clan lineage rights over land water, and grazing."118 More so the code, "restricted the payment of diya as compensation for death or injury to the victim or close relative rather than the entire diya paying group."119 In addition the Barre regime instituted a policy of "divide-and- rule tactics, which generated deep animosities between clans."120 Accordingly the now reinforced divides lead to various clan uprisings. In reaction the Barre regime responded, "with escalating waves of government repression that eventually led to an explosion of Somali society into violence and anarchy."121 Another episode of the Barre regime which lead to disastrous consequences for Somalia was the Ogaden war. According to I.M. Lewis, "The terrible defeat and the refugee influx quickly led to widespread public demoralization and to an upsurge of tribalism (ie clan loyalties) as different groups sought scapegoats to explain the debacle."122 Some clans sought and received aid from Ethiopia, Somalia traditions enemy, to overthrow the existing regime. Lewis explains this phenomenon, "as a sign of their desperation and a measure of the degree of disintegration of Somali national (and clan-family) solidarity."123 D: Somalia, the Failed State: A failed state can be defined, "as a situation where the government is unable to discharge the basic governmental functions with respect to its populace and its territory."124 Since 1991, Somalia witnessed, "the rise of armed groups, declaring and ordering specified regions within Somalia, thus dividing the country into „a patchwork of fiefdoms, fought over by warlords."125 In the aftermath of a collapse state and in the midst of clan based civil war there emerged what had been referred to as a vibrant private sector economy. Dr. Andre Le Sage writes that after the withdrawal of international forces Somalia developed a, "booming private sector…effectively serving as East Africa‟s premier duty-free port. Fortunes were made on the import-export trade in everything from cigarettes to narcotics, from sugar to scrap metal."126 Le 18 Sage continues, "Business men came to control much of the countries productive infrastructure form their own personal enrichment."127 In addition to the rise of private based economic progress Somalia witnessed the proliferation of a strong civil society. Under both civilian and autocratic governments in Somalia civil societies were greatly restricted and played a minor role in the development of governance and administration in the state. According to Jabril Ibrahim Abdulle in his work,
"Civil society groups were slow to take root under the civilian government (1960–
69), and from 1969 became severely restricted by the military regime of Siyad Barre
(1969–91). Instead, the Siyad Barre regime established parastatal social organizations
under the guidance of ministries."Civil Society in the Absence of a Somali State, 128 Currently, besides delivering services no longer provided by the national government these civil society organizations acted as a counterbalance to militias, warlords, and other local power brokers."129 According to scholars these groups have lead to an opening up of, "channels of communication and promoted transparency between the state/local authorities and its citizens."130 More so according to scholars Somalia growing civil society has become, "a hub for intellectuals and professionals who are increasingly important players in the promotion of a culture of peace and good governance."131 With the absence of a formal legal system or the rule of law, local administrations, Sharia Islamic law and traditional Xeer law have take on a new level of importance in Somali society. Somali society has adapted by "forging a variety of systems designed to provide a modicum of security and rule of law."132 According to Ken Menkhaus, the occurrence "governance without government across Somalia ranges from simple neighborhood-watch systems to reliance on customary law to more formal municipal or regional administrations, and has rendered Somalia somewhat less anarchic is commonly presumed."133 Gunmen which once worked for warlords and ravaged Mogadishu and other cities, began to find higher paying and less dangerous jobs as, "security guards for business, neighborhoods, or sharia courts." So by the turn of the 20th century, "some of the largest militias in Mogadishu were linked to businesses."134 Islamic Sharia courts, "in Mogadishu and surrounding towns absorbed hundreds of gunmen into Shari‟a police units."135 Thus, traditional legal systems coupled with a lack of state based administrative powers, have been a catalyst for the formations of new political entities which have filled the political and administrative vacuum left after the collapse of the national government. One such instance 19 took place in 1994 when "After nearly four years of persistent anarchy and political failures, Islamic clerics from the locally powerful Abgal sub-clan of the with the blessing of their „secular‟ political leaders, founded the first fully functioning sharia court."136 These courts would eventually coalesce into the Islamic Courts Union. E. Rise of the ICU: For a brief time the clan based warlordism and anarchy of southern Somalia was swept aside by a group of Islamic jurists which coalesced to form a political body known as the Islamic Courts Union. The rise of the ICU is in-part a byproduct of Somali societies reverence for traditional legal and religious leaders. These leaders are, "integral parts of the community, act as mediator, bury the dead, and provide moral support for the community at times of crisis."137 More so these leaders are given the moral authority to, "stop conflicts and encourage dialogue."138 The rise if Islamism was in-part a political reaction to the incessant violence of warlordism. According to reports before the rise of the ICU, Somalia‟s "Islamists are still [2004] very much in the minority." However, according to the 2004 report, "Islamist denunciations of Abdillahi Yusuf as a warlord, incipient dictator and an ally of Ethiopia have, nonetheless, resonated with a broader audience."139 The ICU was officially created when the two major sharia courts in north Mogadishu and the south Mogadishu merged. "In October 2000 these two courts came together and formed a Joint Islamic Council, led by Hassan Dahir Aweys, a prominent al-Itihaadfigure, as Secretary General. Their single command structure became the single largest military force in Somalia."140 By June 2006, the Islamic Courts Union, (ICU), took control over a large part of the southern and central parts of Somalia. More then any other political entity in southern Somalia since 1991 the ICU was able to create a semblance of order and rule of law, According to Magnus Norell in his work Islamist Networks in Somalia
"For approximately seven months the ICU managed to maintain a certain order and to create an embryo of an administration -- even the airport of Mogadishu was opened for traffic."141 The benefits attained by the populace form political and administrative control by the ICU included, "the decrease in violence and the restoration of basic services such as health care and schools."142 More so the ICU allowed for an increase of international aid which could now "once again be received on a larger scale, which was, of course, beneficial to many Somalis."143 20 However, ICU‟s dominance over southern Somalia did not last. "The United States suspected the ICU of harboring several al-Qaeda operatives linked to the 1998 bombings of U.S. embassies in Kenya and Tanzania, and worried about the rise of Islamic extremism in the region."144 As a result in December of 2006, the United State aided Ethiopia when its "forces launched a cross-border intervention into Somalia, routing the forces of the ICU and propping up the [Transitional Federal Government] TFG in Mogadishu."145 F. Post ICU: The ouster of the ICU by Ethiopia and their Somali allies, the TFG brought about a new round of bloodshed to southern Somalia. The weak TFG and Ethiopian forces were unable to diffuse tension in Mogadishu and within weeks, a "complex insurgency of clan militias and regrouped al-Shabaab force began attacking."146 Al-Shabaab the militant wing of the ICU has continued its violent insurgency in southern and central Somalia. "The group has gained control of many parts of southern and central Somalia by using guerrilla warfare and terrorist tactics against the Transitional Federal Government (TFG) of Somalia and its allies, African Union peacekeepers, and nongovernmental aid organizations."147 According to Ken Menkhous, "The insurgency and counter-insurgency that ensued over the next two years devastated the capital. Heavy-handed counter-insurgency tactics by the TFG and Ethiopian forces led to the displacement of 700,000 residents out of a city of 1.3 million; Continuing Menkhous remarks that, "Businesses were destroyed, and abuses of the local population were serious and widespread. Within a year, Somalia became the site of the world‟s worst humanitarian crisis."148 According to scholars, Somalia is in the middle of a, "complex insurgency involving foreign-sponsored, ideologically-driven movements, such as al- Shabaab (ICU), and clan-based militia fighting over political power, territory, and the economy."149 According to Mark Bradbury, this "hybrid war is characterized by a combination of conventional military fighting, indiscriminate violence, criminal disorder, and military engagement by regional and Western military forces."150 Today the TFG‟s goal of establishing a national government faces many challenges, one of the most significant is its lack of willingness to, "broaden its base of support and legitimacy."151 The TFG has, "held some consultations with clan elders, members of civil society, and former Somali presidents, and TFG President Abdullahi Yusuf Ahmed has recently 21 committed to a national reconciliation conference. But there is little evidence that these consultations will result in an enlarged governing coalition."152 . 4: Current reality, Somali Judicial and Political Systems, and Formation of a Constitution. A. Traditional Judicial Legal Structure of Somalia At the time of independence Somalia, "had four distinct legal traditions: English common law, Italian law, Islamic Sharia or religious law, and Somali customary law." To confront the diversity of legal system, Somalia spearheaded development of a code based legal system including, "a uniform penal code, a code of criminal court procedures, and a standardized judicial organization."
1. Law No. 1 (21 October 1969), the SRC was given authority for all judicial functions, as well as executive and legislative ones.
2. Decree No. 12 (25 October 1969) temporarily abolished the constitutional court and Supreme Court, as well as placing restrictions on the functions and jurisdictions of the remaining courts.
3. Decree No. 12 also established the National Security Court with jurisdiction over:
i offences under the Somali penal code, including crimes against the state
and crimes affecting public order
ii offences under the law of preventative detention (10 January 1970)
iii offences under Public Order Law No. 21 (26 August 1964)
iv any other offence that the SRC declares to be a violation of national
security."153 The code based system was similar to the Italian, continental or Justinian, legal system; thus "the Italian system of basing judicial decisions on the application and interpretation of the legal code was retained."154 The post independence government modified laws to suit top-down, authoritarian rule. The laws passed during this era are outlined below. 155 With the collapse of central authority the laws which had been instituted by the central government as a form of political domination withered away. However, despite the absence of a centralized government Somalia has, "witnesses a re-emergence of justice systems across the country."156 Since the collapse of the central government there have been four differing legal and judicial systems that possessed authority in Somalia. They are, One, formal judiciary structures in regional administrations and central governments created at international peace processes. Two Traditional, clan-based system known as xeer. Three, the growing number of shari’a courts 22 in urban areas, particularly Mogadishu, most often dominated by the Islamic Courts Union. And Four civil society and private-sector initiatives, as well as ad hoc mechanisms established by Somali militia-factions; often referred to as anarchic or private-based legal institutions.157 B. Xeer Law Traditional clan based legal norms developed into a judicial and jurisprudence system known as Xeer. Xeer can be translated roughly as, "customary law that exists between Somali clans. It is an unwritten agreement that has evolved within and between Somali clan communities over generations."158 More specifically xeer is, a "compact, contract, agreement or treaty in a bilateral sense."159 Subject of jurisdiction and responsibilities of Xeer bodies include " preservation of the wisdom of the ages and habits of community, delineation of obligations and entitlements, and supervision of criminal justice."160 It is significant to point out that over generations these bilateral or multilateral agreements develop into, "precedents and thus form part of customary law."161 One of the most significant duties of the Xeer system is the delineation and enforcement of contracts amongst the Somali populace. Contracts are not only economic in scope but also included treaties between different clans and sub-clans and are, "fundamental principles in the constitution of Somali political units."
Within the tradition of Xeer lies a ethos of fairness and impartiality under the law, According to scholars of Xeer, "hearings are held in public,"162 The institutions of the Clan and Xeer law work in unison to, "jointly contribute political solidarity"163, amongst the population of a certain political groupings. 164 More so Several types of individuals are excluded from participating: persons with close family relationships with those involved in the controversy, individuals who have a personal grievance against one of the parties, and persons who have already sat in judgment of the same case."165 It is also important to note that the Xeer system is male centric thus, "Women are not permitted to participate in the discussion and judgment."166 There are differing viewpoints as to whether Xeer law is a universal body of law or a collection of differing, often contesting or conflicting set of laws. One point of view is that, "xeer is localized, emanating from specific bilateral agreements between specific sub-clans, and application of its rule is flexible and varies from place to place depending on circumstances and 23 situations."167 Other stipulate that, "it is possible to refer to a single, general Somali xeer given that the most significant principles of xeer are common across all Somali clans."168 Since the introduction of Islam into Somalia more than one thousand years ago, Sharia law has penetrated the local Somali legal and administrative foundations. Instead being replaced by sharia, " a significant number of
"Somali communities recognized two distinct authorities, clan elders and religious leaders, whose responsibilities in the conduct of individual and community affairs overlapped to the extent that Islam was essentially assimilated into clan culture. This symbiotic relationship has persisted throughout the colonial and post-colonial era."shari’a precepts and practices were assimilated within xeer. As a result, many points of shari’a have often been subordinated to clan tradition."169 Thus Somali legal jurisprudence was a binary system consisting of xeer law which was influenced by Sharia law and Sharia courts. "In pre-colonial Somaliland, customary law (xeer) was used alongside Islamic Shari’a (of the Shafi’I school). Clan elders and experts in Shari’a law (the qaadis and sheikhs) applied the laws in an informal manner."170 One must not view these two legal systems as apposing one another; nor is it correct to view them as the one and the same. According to IM Lewis 171 Under the Xeer system, a trial can take place in two differing procedures; either a "mediation process (masalaxo) or an arbitrations process (gardawe)." Accordign to Le Sage, "In the former, the exact laws and punishments prescribed by xeer are set aside in order to reach a final judgment that satisfies both parties." Most legal conflicts are resolved via the mediation process. "In it the settlement obligation incurred is usually reduced significantly by comparison." The arbitration process is usually reserved, "for the most grievous crimes and the most recidivist criminals, [under arbitration] xeer is strictly applied in a „winner takes all‟ manner." Many Somali‟s have tended to favor xeer law over sharia; a famous Somali proverb states, "Xukun Shareeco oo lagu kala go’o, waxaa dhaama maslaxaad lagu heshiiyey"- A negotiated settlement serves a better purpose than an inflexible Sharia judgment that sows more division among disputing parties."172 2. Post Trial: who pays for what: Diya system as a form of insurance against a Xeer Ruling: Most often punishment in the form of monetary compensation is made after a ruling in the victims favor. This compensation is referred to as the Diya; the individual who committed the crime is not the only individual responsible for paying the compensation. Under Somali legal tradition the individuals Diya group, or blood compensation group is responsible. Diya-paying 24 groups are "the most important level of social organization for each individual."173 It, "consists small corporate group of a few lineages who reckon descent to a common ancestor some 4 to 8 generations."174 This group must be, "sufficiently large in numbers (few hundred to a few thousand men) to be able to pay the mag (Diya)."175 Members of a diya group are "obligated to support one another in the political and legal arrangements spelled out in the xeer agreements."176 This system is analogous to the pooling of funds from many insured entities under an insurance scheme. Once damage is incurred the insurance pool pays for the damages of the protected party. Under the Somali system the Xeer contractual ties that bind a Diya corporate entity compel the group to pay for the damages caused by an individual member. Thus under Xeer, a perpetrator of a crime is at fault for damages he caused to another; however liability is transferred to the Diya group, (or insurance pool). Thus, Similar to Automobile insurance in which the victim does not have insurance of her own, liability to pay runs through the individual who caused the damage onto his Diya group.
The standard for compensation for wrongfully taking someone‟s life varies based upon the sex of the individuals. "In the case of a male, the diya is valued at 100 camels, while the life of a female is valued at 50 camels."177 All camels do not have to be paid at once, "In the case of a male, the 100 camels are sub-divided into approximately one dozen camels that must be paid immediately to the household of the victim and two dozen camels that must be paid immediately to the closest relatives of the victim. The remaining sixty or so camels must be paid over an agreed period of time to the victim‟s wider diya group."178 Usually the clan leader collects the diya before it is transmitted to the other clan. One clan leader remarked on his responsibility to pay the diya stating, It is my, "responsibility to pay and collect diya from my sub-clan members if someone from my clan kills other clan members. Likewise I receive diya if a member of my sub-clan is killed by another clan. This is in accordance with to the traditional xeer"179 According to the Report Security and human rights conditions in southern Somalia, the Diya group provided an individual, "protection, daily survival and legal rights."180 Thus, Xeer agreements enforced under the compact of the diya, "are the glue that holds society together."181 This system binds an individual to his clan; equally as important it provides a forum where different diya paying groups of clans can resolve disputes without conflict. More so, it provides an economic incentive to remain within the clan structure. An individual will see it within his economic interests to be a part of a system that will provide him with a forum to resolve economic disputes such as riparian rights, property, and grazing rights over pastures. 25 3. Getting away with murder: Current Issues facing the Diya System However the Diya system has as its drawbacks. The Diya acts as an insurance corporate entity where the concept of collective accountability means that the individual who is committing the crime does not bear much of the punishment. Thus the individual will be more inclined to participate in further crimes. Most likely, the probability of taking part in an illegal activity and or recidivism of criminals engaging in such activity rises. Before the Baree dictatorship the Somali government attempted to integrated xeer law into its codified legal structure; their greatest obstacle towards this aim was, "collective responsibility for crime and Diyah payments."182 The council, "recommended abolition of collective responsibility for crime and that it be replaced by the application of death sentences for deliberate murders."183 Critics of the "Diyah system of collective responsibility for homicide and other serious offences committed by individual members of a corporate group [state that] it often ends up protecting hardened criminals, instead of serving as a deterrent."
According to recent reports, "This has created social tension as collective responsibility for crimes committed by individuals has degenerated into „eye for an eye‟ killings where clan units have been unable to pay Diyah."184 More so increased lawlessness in Somalia as a result of the collapsed government has meant an ever increasing number of Diya payments from one clan to another. This has lead to an overburdening of the Diya structure. This is similar to an insurance structure for homes which become strained under that wake a natural disaster sine it is legally obliged to pay the principal. 185 The breakdown of Diya has meant the breakdown of the entire traditional Xeer legal system, particularly in the more lawless south, leading to more violence. "Many innocent individuals, it appears, have been killed in retaliation for murders committed by members of their Diyah group."186 B. Role of Traditional Sharia Courts in Somalia Sharia law has been a traditional fixture of Somali society for over a thousand years. At least in theory, successive governments from the colonial era on into the Barre dictatorship officially incorporated [
Historically, Somali society did not depend much on Sharia courts for legal adjudications. Only a "few teachers were deeply versed in Islam, and they rarely stayed with one lineage long enough to teach more than rudimentary religious principles."shari’a] into the Somali state. All Somali constitutions have made Sharia the basis, "for all national legislation – a factor which has provided symbolic religious legitimacy to the government."187 However the political and judicial role of these courts have, up until recently with the rise of the ICU, been limited. 188 Most sharia courts established a foothold in the few sedentary cities and towns along the Somali coastline. Jurisdiction of these 26 courts, "was limited to manage the rules in the family."189 Culturally Islamic practice was not greatly followed, for example, "It was common for women to go out in public without the veil, and even fasting throughout Ramadam was not very common."190 Traditionally the role of
"hear cases from individuals who are already committed to the authority and Islamic precepts of the courts. They are rarely involved with the settlement of clan conflicts, These matters are left by the shari’a courts has also been limited." In fact, "most legal functions performed by the shari’a courts are concerned with civil matters, including sanctifying marriages and divorces, determining inheritance rights, and settling business disputes."191 Le Sage writes that traditionally Sharia courts have been, "much more reluctant to involve themselves in political issues and large-scale security problems."192 Leaders of the sharia court, state that they prefer to, shari’a courts for the fighters, families, clans and clan elders to address."193 A Sharia court derives its legitimacy to make rulings, "from agreements that are reached within or between specific sub-clans."
It seems for the most part Islamic laws primary function in Somali has been to buttress the pre-existing xeer legal tradition instead of completely replacing or acting in variance to it. Thus we must look at Somali legal tradition as consisting of a primarily xeer structure reinforced with Islamic sharia. This can be viewed in the procedures and implementation of law by these courts. 194 This meant that, "their jurisdiction was very local, and limited to its own sub-clan."195 As a result, ultimate authority remains the purview of clan leaders, and Sharia courts act as a function of the clan‟s political structure. More so the local nature of the courts leads to disparate and varying interpretations of Sharia law based primarily on the nature and socio-political dynamic of the sub-clan the court presides over. The local nature of sharia courts in Somalia is further intensified by the fact most judges do not go through a formal standardized education, "Most sharia judges were educated solely through informal religious studies in Somalia." 2. Judicial Procedures of the Islamic Courts Most of the presiding judges of the the Sharia courts "are uneducated and often illiterate individuals. In fact, none of Somalia‟s shari’a courts appear to follow a specific madhab or school of Islamic jurisprudence – they simply apply their personal reading according to their existing knowledge of the Qu‟ran and Islam."196 As a result of a lack of formal training, "the shari’a courts do not operate according to any formal procedure."197 Instead "Judges hear cases by asking questions of the claimant and defendant, calling any witnesses that the judges themselves deem necessary, and then pass their decision."198 Whether the result of inexperience in Sharia law, a reverence for tradition or the understanding that there is a need for a more pragmatic approach the courts have utilized the principle of adjudicating known as suluh. Under some Islamic doctrines "Peace and reconciliation are among [its] fundamental tenets, preaching the virtue of the conflict resolution method known as Suluh („Pacification‟). According to Islamic legal doctrine, "promoting reconciliation is an act of goodness and people are encouraged to resolve their differences this way."199 Suluh is analogous to the mediation process known under our legal traditions. Somalia‟s traditional Sharia courts diverge from most other Sharia courts in the world in their prolific utilization of this method. Additionally Sharia courts in Somalia have incorporated tradition xeer legal procedures under the umbrella if Suluh. "Under suluh, shari’a, xeer and relevant state laws can be combined to find a workable, „win–win‟ resolution to a case that all parties will accept."200 Here, differing legal traditions co-exist within the framework of a Sharia legal system. Given Somalia‟s complex and divergent legal system the innovation of suluh has meant that, "the courts and their security initiatives are legitimized in the eyes of many Somalis."201 5. Analysis of Somalia’s Differing Legal, Administrative and Constitutional Systems Today‟s Somalia can be separated in three political spheres. Northern Somaliland, North Central Puntland, and Southern Somalia. In order to understand the current legal, constitutional, and administrative issue of Somalia we must study each of these regions in depth. Since the collapse of central authority differing political groups in Somalia have sougth to coble the nation back together. A key element in succeeding in their objective has been the formulation of a unifying constitution. According to Sally Healy, in her work
constitution making in Somalia, Puntland and Somaliland, , Experiences of "Considering the fundamental importance of „contract‟ (xeer) in Somali social order and the multiplicity of contracts that actually regulate social relationships among Somali clans and lineage groups, it might be supposed that constitution making in the Somali context would be a reasonably straightforward undertaking."202 However this has been far from the case. Instead constant deliberation, derision and bickering over the elements of the document have ruled been the norm.In this section we will analyze the constitutional formation processes of a unified Somalia as well as the constitutions regional political entities including Somaliland and Puntland. In addition we will discuss the current legal and administrative issue facing Somalia. A. Southern Somalia and the Rise Informal mechanism for rule of law: According to Ken Menkhaus Anarchic warlordism in due course develops elements of what we can identify as elements of a state. He remarks, "as the symbiotic relationship between gunman and villager evolves, the line between extortion and taxation, between protection racket and police force is blurred, and a system of governance within anarchy is born."203 Over the past two decades in southern Somalia, " business people, including militia leaders in possession of their own businesses, have shifted into more legitimate sectors of the economy, and now have invested in fixed assets – including hotels, telecommunication buildings, warehouses, light industries, and airstrips."
The rise of the ICU and the general support for the group amongst key members of the business elite on Mogadishu is a testament to this phenomenon. 204 Invariably, these individuals want to legitimize and legalize their property; more so they want to protect their investment from criminal activity and general lawlessness. This trend is a critical factor towards establishing a rule of law in south-central Somalia. According to Menkhaus, "It imbues in a growing section of the political and commercial elite a much greater appreciation for basic law and order and avoidance of large-scale communal violence which could threaten their assets and the flow of commerce."205 Thus a key factor in the legal and administrative development in southern Somalia is one of self interest. If it is in a person‟s economic self interest to have a stronger rule of law the individual will seek to attain this goal. Once enough persons, (either numerically or in terms of wielding political power), have this goal then a critical mass within society takes place. 1. Informal rule of law: After the collapse of central authority the three legal institutions of Somalia, (Sharia, Code based secular and traditional Xeer law) have competed for legitimacy in the eyes of the Somali populace. "With the disintegration of the public institutions of the central government after 1991, following the collapse of the Somali state, secular law virtually disappeared."206 Tradition law, xeer and sharia remained a fixture of legal discourse, even after the introduction of secular law (1890‟s – 1991). This is because these legal frameworks remained the, "main legal systems of the pastoral and agricultural communities who constitute the majority of the country‟s population."207 Building on the traditional clan and religious based rule of law, since the collapse of its central authority, Somalis have embarked on, "informal systems [that are] hybrid arrangements involving complex and constantly negotiated alliance between a 29 combination of clan elders, local political elite, business leaders, civic (NGO) leaders, and religious figures."208 There are differing view point as to why traditional xeer and Sharia law have remained a fixture of legal discourse. Some scholars state this is because customary law, xeer law in particular, allows for great flexibility; "codified laws are less flexible in terms of case judgment,
while Xeer sentences are often more lenient and flexible."209 More so xeer is more locally structured thus is more readily able to serve "the pastoral population as a tool for conflict resolution." Its "arbitrators or jury are, on the one hand, locals and, on the other, readily available, in contrast with the other two legal systems."210 Others believe Xeer law has been maintained to uphold societal bonds since it is anchored in clan culture. They state that "Xeer is a vital element in the clan based social system, acting as a powerful factor cementing clan unity and political solidarity through the institution of Diyah."211 Since the collapse of central authority,
"play three roles: first, they organise a militia to apprehend criminals; second, they pass legal decisions in both civil and criminal cases; and third, they are responsible for the incarceration of convicted prisoners."shari’a has been organd and implemented in a number of different cities and towns across Somalia."212 Filling the vaccume of central authority, "combinations of Somali militia-faction leaders, businessmen, clan elders and community leaders have worked with Somali religious leaders from within their sub-clans to establish these courts in attempts to improve local security conditions."213 Accorddign to Le Sage these courts, 214 2. Rise of The Islamic Courts Union as a Political Force in South Somalia Dissimilar to much common opinion, the Islamic courts union did not grow out of the ashes of anarchic Somalia. Historically, "These networks functioned as local administrations offering rudimentary services to the population."215 According to IM Lewis, "They had always existed", and at times they provided "a safeguard both against the brutal central government and the tendencies towards disintegration in the country that already existed."216 With the massive increase in lawlessness Sharia was brought forward since, "the common perception was that the only possible way to deal with high levels of crime and freelance gangs is by implementing a harsh rule and exerting severe punishments."217 The phenomenon of Islamic Courts in anarchic Somalia first appeared in Mogadishu in August 1994. 30 Islamic Courts did not grow their powerbase in variance to warlords which controlled the territory. Instead Sharia courts were created, "with the blessing of their „secular‟ political leaders."218 These leaders "founded the first fully functioning sharia court."219 According to the work, The Rise and Fall of Mogadishu’s Islamic Courts, establishment of the Islamic Courts was not so much an Islamist imperative but as a response to the need for some means of upholding law and order."220 The Islamic court system should be viewed as an element of inter-clan rivalry for political and administrative power in south Somalia. This can be seen by the facts that the out of the 12 ICU courts. "All but one are controlled by one clan, [the] Hawiye."221 More so, The ICU enforcement of judgments depended on, "militias recruited from the local clan." According a report in the ICU,
" At root, the Islamic Courts were part and parcel of clan power in Mogadishu. They served specific Hawiye clans and earned the support of the Hawiye business class of Mogadishu for whom the primary purpose of the Islamic Courts was to provide security."
The question then that must be asked is, whether the dog wags the tail, or the tail wag the dog. In other words, is the ICU an independent regime separated from clan warfare or is just an apparatus for clan politics. It seems that the ICU was not in reaction to incessant clan warfare, but merely a tactic by one clan to impose its political will on other competing clans.
Whatever the answer may be, the ICU was ultimately successful in quelling warfare and anarchy in south Somalis. Along with the introduction of the rule of law in the formally clan based militia dominated south; the ICU takeover of large swaths of the Somali coast lead to a drastic reduction in piracy emanating from that region. By the autumn of 2006, the Supreme Council of Islamic Courts (SCIC) decided to end piracy, publicly claiming that piracy was Haraam (against Islam) and launched an attack against the pirate ports."222 According to analysts, in comparison to other strategies aimed against piracy, "the Sharia court alliance achieved staggering results, being one of the most efficient local remedies against piracy in Somalia used so far."223 3. Constitution & Administrative Issues: Forging a Nation from an Ethos of Anarchy A key element in forging a central government is to create a constitutional framework accepted by the major parties involved. As previously stated overtime business persons and those with a vested interest in commerce tend to favor an enhancement in the rule of law. However, many entrenched forces in Somalia make a distinction between public order (rule of law) and a governmental authority. According to Ken Menkhaus many in Somalia feel that, "it is possible to seek public order while fearing and even taking steps to block state revival." Continuing he states, "While most businessmen and others gain immediate advantages from conditions of improved public order, which reduces security costs for commercial traffic, protects investments, 31 and improves quality of life for households, the prospect of a revived central state carries much greater risks." The formation of a cohesive national government becomes ever more difficult with the prevalence of such beliefs amongst the business and political elite of southern Somalia. Another issue challenging the formation of a national constitution is continual fissures along can lines. Nevertheless over the past decade the Somali people with the assistance of international agencies have sought to create a national framework which is more inclusive to the various clans then prior government. In 2004 meeting in Nairobi Kenya, "a 275-membe Somali Transitional Federal Parliament was selected on a 4.5 clan formula (according to which Somalia‟s four major clans each select sixty Members of Parliament (MPs) and an alliance of small clans select thirty-five MPs)."224 A few weeks later Abdullahi Yusuf Ahmed leader of the Barod clan, one of the four major clans of Somalia, was elected president of Somalia, parliament."225 It is important to note that Yusuf was "also leader of the autonomous Somali region of Puntland."226 These leaders were tasked a timetable in which, "a draft constitution had to be ready by October 2007."227 However, the aspirations for national unity did not materialize. Soon after the creation of parliament and the election of executives, conflict both within parliament and between parliament and the executive broke out. Like all other conflicts in Somalia‟s past, rifts deepened along clan lines. The failure of national unity has lead to a failure to formulate a consensus towards the creation of a national constitution. It is self evident that the failure to form a nation consensus in parliament is simply a reflection of the current political situation in Somalia. After the overthrow of the Islamic Courts Union, Somali remains a deeply divided sectarian clan based society.
Nevertheless, formation of a national constitution has been externally driven and funded by, "a consortium of UK, Denmark, Norway, Sweden, US and the European commission."228 The argument for those who espouse the formulation of national constitution is the process of creating a founding document leads to, "considerable opportunities for reconciliation, for negotiation solutions to major divisive issues in a non-violent context, for reaching concnsus on the modalities of federalism best suites to a fractures state, for a symbolic break with the past, for creating an atmosphere of hope and renewal, and for establishing of a legitimate and stable, if minimalist, state."229 This strategy, "acknowledges that those at the table during peace negotiations may not represent all the interests in a country, that in many cases the range of issues that need to be debated in a constitution are too vast for a peace negotiation, and that many of these issues are best debated at a slower pace, in a more inclusive fashion."230 Many analysts have derided the efforts and strategies employed by the international community in theirs push towards a constitution; they point out that the formation of a nationally unified constitution should takes place only after the state is unified. Mohamud M Uluso in his 32 work, Draft Constitution will deepen Somalia’s Crisis, Constitution making processes, "conducted in war torn countries, have suggested that such process should be undertaken long after peace agreements were signed and satisfactorily implemented." Continuing he points out that, "more than half of the Somali population is internally displaced people, refugees languish in neighboring countries. More so currently the TFG controls a very small geographical region in Somali.231 Thus many analysts assert that the international community is placing the cart in front of the horse; without a unified Somalia and national reconciliation first, there cannot be a unified body that is able to set aside conflict and compromise on a constitution. According to Mohamed Ahmed Jama, a permanent peace for Somalia, "requires a process that links local approaches to security governance with political dialogue, where participation or representation in political dialogue is tied to one‟s capacity to deliver security and stability in the areas one controls."232 The TFG simply does not control much land in Somalia and thus cannot receive the Somali‟s trust to defend and provide stability. As a result it lack the legitimacy to formulate a governmental system. The process of constitutional formation in Somaliland was different. First the representative body controlled the land, and then they formulated a constitution. Perhaps Somaliland political and constitutional development can serve as a basis with which southern Somali can emulate in the formation of a national government B. Somaliland: The Hope for Somalia Since the collapse of central authority northern Somalia has emerged as a bastion of peace and stability in the Horn of Africa. Somaliland‟s judicial and political structure has been more stable than that of its southern counterpart. However, Somaliland‟s judicial structure is still in state of great flux. According to scholars Somaliland‟s legal system remains, "ad-hoc, non uniform and highly subjective."233 Under the Somaliland constitution, Approved by referendum on 31 May 2001, provides for an independent judicial system, stating, The Judicial Branch shall fulfill it duties in accordance with the Constitution, and shall be independent of the other branches of the state."234 Under Somaliland‟s constitution Islam is to play a fundamental role in the formation of a judicial body. The constitution states, "The laws of the nation shall be grounded on and shall not be contrary to Islamic Sharia"235. Additionally, Article 38, The Parliament and Joint sittings states, that the legislature shall have the power of "adoption by the Republic of Somaliland of all the laws necessary in a Muslim state."236 Other limitation on the law making powers of the government include the preambles statement, guaranteeing, "Of private property rights and the protection of the free market,"237 and limitations based on international stating, "Somaliland recognizes and shall act in conformity with the United Nations 33 Charter and with international law, and shall respect the Universal Declaration of Human Rights."238 However Somaliland should not be analyzed as an Islamic Republic in the same fashion as the Islamic Republic of Iran. Iran‟s legal structure is wholly based on Islamic law; Article 4 of Iran‟s constitution states,
"All civil, penal financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the Constitution."
The above proviso is similar to Somaliland‟s stipulation that all laws, "shall be grounded on and shall not be contrary to Islamic Sharia." However in practice, its current judicial system is, "a hybrid, combining several distinct legal traditions."239 According to the work, The Judicial System of Somaliland, by the Academy for peace and Development, "While Constitution stipulates Islamic jurisprudence as the "basis" of law, other laws – namely, customary (xeer) and secular legal codes - have been applied across the country."240 Continuing the work stipulated that "The practice of parallel legal systems reflects, in part, the historical evolution of legal and judicial systems in Somaliland."241 2. Somaliland Political/Constitutional Issues: In contrast to southern Somalia, Somaliland has enjoyed relative peace and a rebuilding of its political structure. According to the work, Making the Somaliland constitution and its role in democratization and peace by Ibrahim Hashi Jama, "This has been achieved within the framework of a collection of basic laws articulated first in charters and later in an interim constitution, which was consolidated into a final constitution that was put to a plebiscite."242 After the collapse of the Barre regime in 1991, efforts aimed at political consolidation took on a different dynamic in the north. Initially plans to create a constitutional system were made difficult by, "clan rivalries within the Issaq federation."243 In response leaders of the federation, employed traditional diplomacy and initiated, "a series of peace conferences that gradually restored a relative peace throughout the region."244 Somaliland leaders strategy was to make use of traditional Xeer based practices of negotiation and mediation and contract formation in order to establish a framework for reconciliation and state administration. One of the first of these meetind took place in 1991; "Each sub-clan sent representatives according to traditional clan formulae."245 There the delegates to the meeting, covered a number of critical issues including, "the need to secure a lasting peace; to agree a system for the return of physical assets 34 such as houses and vehicles that had been looted; and to identify an appropriate system under which the Northern Regions could be governed in the future."246 More so, the Issaq clan, the dominant clan in the north, "opted for reconciliation and a cessation of hostilities with the non-Issaq clans, rather than engaging in retribution and settling of old scores."247 The Issaq clan represents 66 percent of Somaliland‟s population, with the Darod and Dir clan comprising of 19 percent and 15 percent respectively.248 The other clans of the north bought into the Issaq dominated political structure since, "more than anything they needed peaceful relations with the predominant SNM [Issaq led political party], particularly in the absence of any viable alternatives."249 The Somaliland leadership set up a, "grand conferences of the Somaliland Communities in 1993 and 1997."250 These meetings, "served as Somaliland‟s version of constituent assemblies."251 They "legitimized the adoption of a National Charter in 1993 and the more detailed interim constitution that followed in 1997."252 The 1993 Borama Grand Conference adopted a National Charter for Somaliland. The charter, "consisted of a preamble and 31 Articles, and was, in all name a constitution. Compromise and consensus were the order of the day… all efforts were made to ensure that the vast majority of decision-making was made through a process of consensus-building."253 Unlike Somalia‟s 1960 constitution the Somaliand document provides for the creation of
The House of Elders; This house has the power to, "review the legislation passed by the House of Representatives before it is forwarded to the President; and shall have special responsibility for passing laws relating to religion, traditions (culture) and security."254 Article 61 called, The Powers and Duties of the House of Elders states that the body has the power over the, "passing of legislation relating to religion, traditions (culture) and security."255 According to Ibrahim Hashi Jama, "Traditional practices are evident in the emphasis on cooperation, consultation and joint decision making and in the place given to the Guurti (the Elders)."256 Additionally, "Islam is well reflected in many provisions, including the yet to be established Ulema Council."257 35 3. Current Legal Structure: The Somaliland national charter of 1993 created a judicial system setting up the Somaliland Supreme Court as the highest court in the nation.258 The current Somaliland constitution stipulates that the court is to, "shall fulfill it duties in accordance with the Constitution, and shall be independent of the other branches of the state."259 Article 99 states, "The judges and the members of the Procuracy [prosecution or attorney general] are independent when exercising their judicial functions and shall be guided only by the law."260 The hierarchy of the courts is delineated in the chapter four of the constitution and the Organisation of the Judiciary Law, [Law No. 24, 2003]. At the base of the system lies the District Courts. These courts have jurisdiction over claims arising from sharia, "which are primarily matters relating to family law and suseccion."261 The also deal in civil litigation for suites up to, "3 million SL and criminal cases punishable by imprisonment for up to 3 years and fines up to 3 million SL or Somali Shilling."262 The next level courts are the regional courts. Regional courts here, "all civil and all criminal cases which do not fall within the jurisdiction of the district courts."263 The regional court is separated into four branches, "civil, criminal, finance and taxation, and juvenile."264 The next level of courts is the appeals court which hears all appeals from the lower two courts. The highest court in Somaliland is the Supreme Courts. This courts deals with, "All appeals from the Appeals Court, Jurisdictional issues between the courts of the land; Administrative suits relating to the final decisions of public bodies; Declarations of general election results; and Reviews of its own decisions."265 4. Conclusion: Somaliland‟s new polity can be described as, "a dynamic hybrid of western form and traditional substance."266 According to Mohammed Hassan Ibrahim and Ulf Terlinden Somalilands political, legal and administrative foundations are predicated on, "clan based power sharing and balanced political representation."267 But the inter clan dynamics society occur within an environment of "western style procedures and institutions, such as elections, parliament and cabinet."268 36 C. The Forgotten Center Harardhere-Hobyo & Puntland: There has been much deliberation and consternation over the fate of Somalia over the past two decades. Much of the focus has been on the Somalia‟s southern region, since most of the population centered in the south and Mogadishu the epicenter of much of the violence over the past decades is situated in the south. There has also been many scholarly works done on the success of the Somaliland region in the south. However the centre of Somalia, Puntland, had received little attention.
However given its strategic importance, particularly in dealing with the incessant growth of piracy in the region, the Puntlands political, legal and administrative systems should also be further understood. Geo-strategically Puntland lies right at the horn of Somalia, where Northern Somalia meets Southern Somalia. The land juts out into the Indian ocean and the confluence of the Indian Ocean and the Gulf of Aden. As such Puntland and the adjacent Harardhere-Hobyo had been the hub of pirate activity in the region. " Before 2004, piracy was mainly a Puntland phenomenon, dominated by the Majerteen clan, the dominant clan of the region."269 Since then the next door Harardhere-Hobyo region has developed its own pirate base. An individual named Harardhere a pirate entrepreneur of sort realized that the Harardhere-Hobyo region provided the perfect base for the piracy, "as it was far away from the fractions in the Somali civil war. There was thus no pressing need to share profits with any political faction and no corrupt officials that needed to be bribed. The money could be kept and re-invested, mainly in new piracy attacks."270 A recent report on piracy explained "The frontline in the struggle against piracy rather runs through the entities that so far have successfully prevented piracy, namely Somaliland, and the regions where piracy is rampant, namely and Puntland."271 Puntland‟s efforts to build a stable state able to defend it shoreline against piracy face several challenges. Lack of an economic base sufficient enough to produce jobs is a major issue in Puntland. "Outside of the main city of Bosaaso, where the port is the focal point of some import/export transactions, and a few smaller urban enclaves, there are hardly any other significant sources of local employment."272 Other challenges apart from economic destitution continue to challenge Puntlands society. These challenges include, "the state‟s provisional constitution widely seen as having several flaws and yet to be harmonized with the Transitional Federal Charter,"273 Legally Puntland has, "Three systems of law – traditional, Sharia and secular – continue to operate in parallel."274 Administratively, "Power still passes through clan lineage ties rather than an elective democratic process."275 1. Administrative and Adjudicative issues in Puntland The Puntland administration came into being on August 1998 in an all-clan conference in Garowe. It was billed with the task of administering, "Northeastern regions of Somalia for a 37 transitional period of three years."276 At Garowe, "an interim charter was promulgated with basic provisions for the creation of the legislative, judicial and executive arms of a state government."277 The day to day governance of the region was handed to transitional administration, "comprising a President and Vice President, a nine-member cabinet, and a 66-member House of Representatives."278 However, full legitimacy in the government established in 1998 has been difficult to obtain in a region politically dominated by clan elders. Clan leaders and politicians have an intense personal stake in preserving the powers they derive from the traditional clan system, making the transition to participatory, elective democracy more complex and problematic."279 Apart from administrative and policing constraints another factor weakening Puntlands ability to tackle Piracy on its shores is its legal system. Originally the Puntland administration engaged in, "the application of the three legal systems - customary, Sharia and secular - that had been functioning side by side in Puntland since 1991."280 However, the administration quikly realized, "that the three legal systems could not operate in a single entity and in a modern setting as they contradicted one another in important areas of jurisdiction."281 Thus the administration with assistance from international agencies sought to harmonize the differing legal systems. Puntlands leaders established a, "participatory approach that brought together concerned actors in a neutral forum that facilitated free discussion and dialogue on issues and enabled to the interested parties reach a common consensus."282 Puntlands constitution calls for the creation of a Judicial Council composed , "The Chairman of the Supreme Court, The Attorney General, Three judges selected by Supreme Court, Two lawyers selected by the community."
"There are 44 judges and prosecutors in Puntland, and they preside over different types of cases, governed by an amalgamation of three main legal systems. They hear civil and criminal cases, governed by Sharia law (for family cases), by customary law, and by codified law. To date, there is no harmonization of procedure, and no system of precedents binding on the lower courts." 283 The Council is charged with the nomination, transfer, promotion and dismissal of judges and the judicial staff." Its judiciary is composed of the Supreme Court, First Instance Court, and Court of Appeal. Puntlands, "existing body of judiciary institutions is operating below minimum standards."284 According to the United Nations Development Program the legal system of Puntland operates with many limitations. 38 Of the 44 judges, "approximately 18 (40 percent) have a university degree in either secular of Sharia law. The remainder have traditional and non-formal qualifications, including locally acquired knowledge of Sharia and on the job experience."285 2. Constitutional Issues A key issue for facing Puntlands administrative and political development is its constitution. Puntlands constitution was, "hastily prepared in 2000 by a government-nominated commission that reportedly had little legal expertise, and was endorsed the following year by the House of Representatives without ever being subjected to public scrutiny or discussion."
Divergent from the experience of constitutional formation in Somaliland, a major facet of constitution building in Puntland has been the utilization of international agencies. This phenomenon has resulted from the inability of Puntland‟s political class from failing to agree on a constitutional format. According to Ahmed Abbas Ahmed & Ruben Zamora the heavy intervention of external forces poses, "a serious challenges…especially as it risks making the exercise externally driven by substituting internal actors with external expertise."286 According to analysts, "Puntland‟s progress toward democracy has been hampered throughout by weaknesses in the provisional constitution."287 Ultimately a more comprehensive constitution needs to be developed for there to be progress in Puntland political and administrative progression. Here it is important to note that Puntlands constitution and political structure does not call for independence from Somalia‟s central government. The provisional constitution states that it,"is an integral part of Somalia and has the obligation to restore and maintain national unity on a federal basis. It will hand over some of the authorities inherited from former governments to an expected Federal Government."288 Thus a formal constitutional integration between Puntland and a future central government seems to be more likely then one involving Somaliland. 289 Continuing he states, "A fine balance needs to be struck between what is technically sound, and respect for local ownership and control of the process."290 According to the work, History of Mediation in Somalia, "Externally-driven and –funded peace initiatives are liable to lack legitimacy and ownership."291 In contrast, "Somali-led peace processes generate legitimacy and ownership through the costs borne by the communities supporting them and with a direct interest in their successful conclusion."292 Continuing the report argues "Without this, delegates may lose touch with local developments, new actors may emerge with demonstrated local legitimacy, and evolving political dynamics may be crucially underestimated."293 39 6. Conclusion: Building a Lasting Peace A. The Somaliland Model for the Rest of Somalia The traditional clan structure with its xeer adjudicative system of reconciliation via a negotiated settlement has been the impetus for peace and stability in Somaliland and to a lesser extent Puntland. Between 1990 and 1997 Somaliland initiated, "a series of no less than 38 clan based peace and reconciliation conferences and meetings."294 The efforts of Somaliland and to an extent Puntland towards building stability in their regions differed from those employed by southern Somali on a number of ways. In Somaliland and Puntland, "meetings were materially supported by communities, including the Diaspora; key figures of each affected clan participated voluntarily; and resolutions were adopted by consensus after broad consultation."295 Consequently, "These conditions provided for a, degree of local and national ownership, legitimacy and inclusion."296 However, we should be cognizant of the fact that the cultural and socio-political dynamic of Southern Somalia differs somewhat from that of Somaliland. Thus, the Somaliland experience of political and governmental stability via the utilization of pre-existing clan based legal and administrative structures know and Xeer cannot be duplicated in the South. First, Somaliland‟s demographic parameters consisted of one dominant clan, Issaq, comprising of more 2/3
A interrelated factor differentiating Somaliland from its Southern counterpart is the maintenance of clan based institutions and cultural traditions. As previously discussed the north of Somalia maintained its traditional legal and administrative systems during colonial times. Those institutions remained a legitimate element within north Somalia‟s society on to the present. In contrast southern Somalia‟s clan based legal and administrative structures where not sustained. Thus, when Somalia‟s central government fell the north was able to resort or fall back to its traditional societal structures. The traditional Xeer law served as a tool with which to formulate a resolution of clan based conflict. Later, Xeer served as an instrument of peace and stability; the government of Somaliland utilized Xeer traditions to formulate a consensus amongst its differing clans.
Thus Somaliland cannot serve as a perfect model for the creation of a stable government on southern Somalia. However, tradition clan based structures can be regenerated in the South and serve as a tool to bring stability and aid in the formation of a national government. An important maxim in Somalia is rd of the nation‟s population. Southern Somalia comprises of many competing clans none of which comprise of a majority of its population. More so since the fall of the central government the south‟s clan based culture has further disintegrated; there are frequent battles and conflicts within the clans of the south, particularly in the capital city of Mogadishu. Xukun Shareeco oo lagu kala go’o, waxaa dhaama maslaxaad lagu heshiiyey", "A negotiated settlement serves a better purpose than an inflexible Sharia judgment that sows more division among disputing parties." Xeer‟s tradition of mediation rather than arbitration or adjudication can be utilized in the south to bring about resolution to clan based conflict and eventual stability. B. Constitutional Process: Must include a cross-section of Somali Society, Including Moderate Islamists, this method requires a comprehensive regional approach. The constitutional process for the formation of a national government requires a broader base of support for it to achieve the objective of being viewed by the Somali populace as a legitimate will of the people. A broader base of support entails bringing in Islamists into the constitutional making process. Currently, after the withdrawal of Ethiopian forces, most of the south is dominated by Islamist groups. As previously remarked upon, the control of territory results in the ability to provide protection; in turn the ability to be protected by a group results in legitimizing the group in the eyes of the public. In contrast, the Transitional Federal Government controls a few parcels of incongruent territory. Without legitimacy to provide protection a political entity will not have the legitimacy to formulate a comprehensive constitutional framework. Thus, without legitimacy a constitutional process or a accepted upon constitution will not be an effective tool to unite and bring peace to a state.
The process of bringing in Islamists may be a difficult challenge for the TFG and the International community. The more militant Islamist groups, "oppose Western-style constitution making itself as an implicit challenge to Shari’a law."297 More some even go further rejecting, "the existing territorial definition of Somalia in favor of an Islamic emirate embracing all the Somali people in the Horn of Africa."298 However, there are more moderate elements in the Islamist groups, "which favor a unitary rather than a federal state."299 The process of integrating moderate Islamist into the constitution making process will require a regional and international dynamic. Competing regional interests have to be adequately addressed to enable sufficient opportunity for reconciliation and the emergence of a broad-based transitional government. First, Ethiopia‟s fears of an Islamist dominated Somalia seeking to regain the Ogaden region has to be quelled. This will take a regional and international approach. The international community has to provide Ethiopia with security assurances; and assurance that Ethiopia‟s territorial integrity will be upheld. Additionally the United States fear of Somalia as a bastion of Islamist terrorism has to subside. 41 C. Uniting Somalia: Should it be done or Not? An Important question that must be asked is whether Somaliland and the rest of Somalia should re-unite under a national government. Coupled with this issue, we must question the feasibility of the process of unification. The two regions share a common cultural religious and linguistic society. However, they have differing and often conflicting historical experiences; from their colonial experience to their relations with the central authority after independence and on into their respective episode following the collapse of central authority. For the past two centuries the two have been separated from one another much more often than united. During their unification intense conflict resulted from Somaliland‟s sentiment that it was being subjugated by the south. The fall of the Barre regime provided the impetuous for Somaliland to declare itself free from the oppressive policies of the south.
An argument can be made that the inclusion of Somaliland into a future Somali state will acts as an agent of stability for the reconstituted state. Others state the breakup of Somalia will threaten regional stability and foment independence movements across the African continent and Arabian Peninsula. However, the future stability of a future Somalia should not come at the expense of the self-determination of Somaliland‟s people. For the past two decades Somaliland has shown a determination to shape a stable nation state.
History has shown that the unification of the two will only lead to more conflict. A response to the current conflict in the south should not include the merging of these two political entities into unified states. A future Somali state can comprise of a loose federation which takes into account the historic, cultural, and clan base division of its people. 84. However in, "recent years, conflict increasingly has devolved to sub clan and even sub-sub clan levels."85 According to the World Bank report on Somalia, lack of a central authority, "led to fragmentation and an economy of plunder that brought leaders into conflict with other leaders, sometimes from the same clan, vying for control of the same local area and resources."86 The "struggle for territorial control, political power, and economic control of a region prompted lowering the level of clan identities so as to mobilize support from the sub clans."87 Analyzing these facts the World Bank reports states, "Thus, with the collapse of the central state, the clans tended to clash less across regions (northwest versus south-central versus northeast) and more within regions."88 The process of clan breakdown is evident in all three regions of Somalia, (Northern Somaliland, Central Puntland, and Southern Somalia.) In all these regions, "clans have given way to the emergence of sub clan identity as dominant, with clans lowering their level of identity to the level of sub clans in the competition for economic power and political ascendancy."89 71
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