Portal de Periódicos da CAPES

Custom, contestation and co-operation: peace and justice promotion in Somaliland

2013; Taylor & Francis; Volume: 13; Issue: 4 Linguagem: Inglês

10.1080/14678802.2013.834115

1478-1174

Louise Wiuff Moe, Maria Vargas Simojoki,

Historical and Contemporary Political Dynamics

Abstract This article explores alternatives to prevailing state-centric and legalistic approaches to supporting local security and access to justice. It does so through a case study of an initiative developed by an international NGO in partnership with a group of traditional authorities in Somaliland. The initiative aimed at enhancing local security and access to justice, drawing on customary conflict resolution mechanisms and everyday strategies of self-securing. At the same time, the initiative was shaped by international input and liberal notions of human rights and human security. This approach entailed a renegotiation of both local ordering and international discourse. Drawing on our fieldwork, we examine the initiative as it has evolved since 2003, and discuss what it suggests in terms of prospects for international support to 'non-state' actors. In particular, the article draws attention to the potential of working with everyday local practices to enable social change rather than focusing narrowly on reforming legal systems (whether state or customary). Acknowledgements We would like to thank Volker Boege, Anne M. Brown and Anna Nolan for their helpful comments and suggestions. Notes 1. CitationAlbrecht and Kyed, 'Justice and Security'. 2. CitationAndersen et al., 'Security Arrangements in Fragile States', 5. 3. CitationHarper, Customary Justice; CitationIsser, Customary Justice and Rule of Law. 4. CitationKyed, 'Legal Pluralism'. 5. Ibid, 1–2. 6. CitationBaker, 'Justice and Security Architecture', 27. 7. CitationAlbrecht, 'Betwixt and Between'; Isser, Customary Justice and Rule of Law; Kyed, 'Legal Pluralism'. 8. CitationChopra and Isser. 'Fixing Systems, Supporting Processes', 2. 9. The article draws on fieldwork by the authors in Somaliland in February–March 2010 (in Hargeisa) and in September–November 2011 (in El Efweyne, Sheik, Ainabo and Hargeisa). During the fieldwork in 2010 approximately 20 semi-structured interviews and four focus group discussions were conducted on the topic. Results from the fieldwork in 2010 are also published in CitationVargas Simojoki, 'Unlike Allies'. The fieldwork from 2011, and the conceptual frame in the chapter is part of ongoing PhD research by Louise Wiuff Moe, University of Queensland/Danish Institute of International Studies. During the fieldwork in 2011 approximately 15 semi-structured interviews and 12 focus group discussions were conducted on the topic. The Berghof Foundation supported this research. 10. Based on qualitative data and field observations the article discusses the ways in which the DRC's support interacted with and shaped local dynamics of ordering in the realms of peace, security and justice. The article does not, however, provide a stringent 'impact assessment' of the initiative. Neither do we claim that the DRC's support was the only factor in initiating change (gradual changes of security/justice practices and interactions between different providers are ongoing, also irrespectively of internationally-supported security/justice programmes). 11. CitationBradbury and Yusuf, 'Public Perception of Local Councils'; CitationGundel,'Predicament of "Oday"'; CitationMenkhaus, 'Arrangements sécuritaires locaux'. 12. CitationBaker and Scheye, 'Multi-layered Justice and Security'. 13. Baker, 'Justice and Security Architecture', 28. 14. Ibid. 15. There are different categories of titled traditional authorities, the two most common and active being the Suldaan and the Aquil. The Suldaan functions as the head of the clan at the level of the clan-families, whereas the Aquil is the chief of the Diya-paying group. The Diya-paying groups can be understood as the basic social structure or lineage entity above the family unit level. Each Diya-group is loosely connected to higher levels of lineage, the highest of which are the six clan families Raxanweyn, Darood, Hawiye, Isaaq, Digil and Dir. As per Xeer, the Somali customary law, the Diya-paying groups are obligated to pay compensation in cases of dispute, conflict and murder (Gundel, 'Predicament of "Oday"'). 16. The Xeer constitutes Somali customary law, which is oral and passed down through generations. In combination with Islam, Xeer serves as the organising principle of the lineage system. As a set of agreed codes, the Xeers regulate the interaction between different clans and sub-clans. A key function of the Xeers is the regulation of shared resources, including in particular water and grazing. The Xeers also function as the main reference in the management of conflicts and disputes, and in mediation practice (Gundel, 'Predicament of "Oday"'; CitationLewis, Pastoral Democracy; CitationSamatar, 'Destruction of State and Society'). 17. Gundel, 'Predicament of "Oday"'; Lewis, Pastoral Democracy. 18. CitationMenkhaus, 'Traditional Conflict Management'. 19. Gundel, 'Predicament of "Oday"'; CitationWiuff Moe, 'Negotiating Political Legitimacy'. 20. Focus group discussion with IDPs and minorities, Legal Aid Clinic, Hargeisa University, Somaliland, March 2010; focus group discussion with women from communities in Ainabo, Somaliland, October 2011. See also Gundel, 'Predicament of "Oday"'. 21. In fact the very distinction between 'crime' and 'dispute' is relatively novel in Somali society. Xeer and the customary system have first and foremost been concerned with regulating resources (water, grazing) and with managing inter-clan disputes around access to resources. The Xeer predate 'criminal codes' (of the state), and it follows that also activities which in liberal discourse are categorised 'criminal' in the Somali context typically would be understood, framed and handled as disputes—i.e. as an intergroup concern. This issue of the different categories of disputes, conflicts and crimes can be a source of confusion in terms of 'who' (customary, Sharia, state) deals with 'what'. 22. The Diya-paying groups constitute the basic social structure or lineage entity above the family unit level, see note 15. 23. CitationBrown, Human Rights. 24. CitationCabdi, 'Impact of the War'. 25. Since the fall of the Siad Barre regime, starting in the late 1980s, huge numbers of Somalis have fled Somalia, and resided in refugee camps in neighbouring countries. 26. Cabdi, 'Impact of the War', 281. 27. CitationWalls and Elmi, 'Indigenous Forms and External Interventions'. 28. CitationJhazbhay, Somaliland, 209. 29. Gundel, 'Predicament of "Oday"'. 30. CitationWiuff Moe, 'Hybrid and "Everyday" Political Ordering'. 31. Interview with DRC policy advisor, January 2011, Copenhagen. 32. Interview with DRC policy advisor, January 2011, Copenhagen; interview with local NGO (LNGO) Haqsoor representatives, Hargeisa, Somaliland, November 2011; interview with LNGO Hornpeace representative, Hargeisa, Somaliland, October 2011. The two LNGOs Haqsoor and Hornpeace were founded by a number of the traditional authorities who initiated the partnership with the DRC, in co-operation with a few local community leaders with administrative experience. The aim of organising into an LNGO was to facilitate the interaction with the DRC. 33. Interview with Haqsoor representatives, Hargeisa, Somaliland November 2011; interview with Hornpeace representative, Hargeisa, Somaliland, October 2011. 34. Interview with Haqsoor representatives, Hargeisa, Somaliland November 2011; interview with Hornpeace representative, Hargeisa, Somaliland, October 2011; interview with DRC policy advisor, Copenhagen, January 2011. See also CitationJustiniani, 'Human Rights and Peace Advocacy'. 35. The word elders is here interchangeable with traditional authorities. It is, however, possible to be an elder without being a 'titled' traditional authority. 36. Shortened/summarised excerpts of the Citation Somaliland National Elders' Declaration . 37. Principles of Sharia are generally more advantageous than Xeer for women in terms of family rights, including especially women's rights to inheritance. Moreover, dumaal is not applicable to—or practiced in—Sharia law. 38. The Aquil institution is a hybrid rather than a purely traditional institution, through which the British exercised indirect rule. In contemporary Somaliland the Aquils are the category of traditional authorities who are most actively and directly involved (as mediators, peacemakers and judges) in the everyday life of people. 39. Lack of resources for hosting dialogues and negotiations (including for example fuel for transportation and food during the talks) is often a key barrier for local peace meetings. Support for logistics can therefore provide a very basic yet important form of assistance. However, direct payment such as per diem is disruptive and creates incentives to let the meetings drag on (rather than reaching a settlement) (Interview with Haqsoor representatives, Hargeisa, Somaliland, November 2011). 40. Focus group discussion with Aquils at Hornpeace NGO, Hargeisa, Somaliland, March 2010 and October 2011; interview with Haqsoor representatives, Hargeisa, Somaliland, March 2010 and November 2011; focus group discussions with Aquils, El Efweyne, September–October 2011. See also Citationthe Danish Refugee Council/Finnish Church Aid, 'Somali Religious and Traditional'; Justiniani, 'Human Rights and Peace Advocacy'. 41. According to United Nations Development Programme (UNDP) in 2006, the caseload for the state courts across Somaliland was 1,852 cases; in 2007, this had increased to 3,293; and in 2008, to 3,833. These results were cross-checked in terms of the variable of the overall number of serious crimes during these years. On this basis, the research concluded: 'there is reason to believe that these changes are at least partially linked to the National Declarations' (Vargas Simojoki, 'Unlike Allies'). 42. Interviews with representatives from the Ministries of the Interior and of Justice, March 2010; interview with Haqsoor representatives, Hargeisa, Somaliland, March 2010; interview with Hornpeace representative, Hargeisa, Somaliland, March 2010. 43. Interviews with representatives from the Ministries of the Interior and Justice, March 2010; interview with Haqsoor representatives, Hargeisa, Somaliland, March 2010; interview with female director of Gaashan, Human Rights NGO, Hargeisa, Somaliland, March 2010. 44. The victim would be married into the family of the rapist. Or, alternatively, the clan of the perpetrator would pay compensation to the clan of the victim (interview with Sexual Assault Referral Centre employees, Hargeisa Group Hospital, March 2010). 45. Interview with Human Rights Advisor (from the local NGO NAGAAD), Hargeisa, November 2011. The Director of the Women Lawyers' Association in Somaliland noted that the vast majority of rape cases that initially are taken to the courts are transferred by relatives of the victims to the traditional system (interview with Executive Director for the Somaliland Women's Law Association, Somaliland Lawyers Association Office, Hargeisa, Somaliland, March 2010). 46. Interview with Hornpeace representatives, Hargeisa, Somaliland, October 2011. 47. For many judges some form of settlement is better than no settlement at all. Hence, if they are not able to provide redress through the formal legal system the judges will refer the cases back to the customary (interviews with judges and the Minister of Justice, Hargeisa, March 2010). 48. Interview with Regional Court Judge of Hargeisa, Hargeisa, Somaliland, March 2010. 49. Focus group discussion with IDPs and minorities, Legal Aid Clinic, Hargeisa University, Somaliland, March 2010. 50. The practice of marrying the victim to the perpetrator is perceived as a means of resolution because marriage offers both economic and social protection to the victim, and compensation to the family (interview with Gaashan, Human Rights NGO, Hargeisa, Somaliland, March 2010). 51. Interview with Sexual Assault Referral Centre employees, Hargeisa Group Hospital, March 2010; focus group discussions with minority women, Legal Aid Clinic, Hargeisa University, Hargeisa, Somaliland, March 2010. 52. Vargas Simojoki, 'Unlike Allies'. 53. Chopra and Isser, 'Fixing Systems, Supporting Processes', 5. 54. Ibid, 3. 55. This integration of programmes implies that the two types of support are provided in the same geographical areas. The CDRD programme itself has strong elements of addressing socio-political inequalities, and of enhancing conflict management. In the process of CDRD the communities engage in dialogues and decision-making processes together with the district authorities on how to prioritise and implement development and local governance projects in the community. 56. Interview with DRC advocacy officer, El Efweyne, October 2011; interview with DRC Community Policing co-ordinators, Ainabo and El Efweyne, September 2011. 57. DRC, Action against Conflict, 5. 58. Focus group discussions with the District Peace Committees of Aquils, El Efweyne and Ainabo, September and October 2011. The Aquils were aware that the responsibility to protect IDPs is central in the Elders Declarations, and they explained that their new roles in the committee enable a concrete application of this commitment. We do not have interviews with IDPs as to whether in their experience this has resulted in actual enhanced protection. 59. Focus group discussions with the Women's Peace Platforms, Ainabo and El Efweyne, September and October 2011. See also Walls and Elmi, 'Indigenous Forms and External Interventions'. 60. Focus group discussions with the Women's Peace Platforms, Ainabo and El Efweyne, September and October 2011. 61. Generally, there is, to our knowledge, very limited international support provided to grassroots/community support to peace-building and conflict management in the Somali context. Support tends to focus on high-level national peace-building or in a few cases on mid-level leaders/elites such as clan leaders. 62. Interviews with DRC advocacy officer, El Efweyne and Ainabo, September and October 2011; DRC Conflict Management trainer, Ainabo, October 2011; Community Safety Co-ordinator DRC, Hargeisa, October 2011; focus group discussions with community member, Sheik, Ainabo, El Efweyne, September–November 2011. The rationale is that conflict resolution capacity can be enhanced if different insights and approaches are discussed and possibly merged. There are examples of the local DRC conflict management education staff recording techniques from the communities and adding the insights to a conflict resolution manual (which functions as the basis for further discussion): one technique to manage anger, building on Islam, is to use prayers to stay calm; a principle from customary conflict resolution is that the parties must come to the mediation without fixed preconditions (as this would be an obstacle for allowing a genuine negotiation) etc. The 'new' tools/ideas discussed include ideas from mediation, such as asking circular questions to shed light on the circumstances from all angles, in order to allow for a mutual understanding to emerge (this resonates with Somali customary processes); from psychology, such as discussing 'inner conflict'/anger and possibilities for anger management and; from conflict prevention and conflict analysis (discussion of different types of conflict analysis, to avoid that conflicts break out in the first place). 63. Focus group discussion with community members who had participated in the conflict management dialogues/training, Ainabo, September 2011. 64. Focus group discussions with the district peace committees of Aquils, Ainabo and El Efweyne, September and October 2011; focus group discussion with community members who had participated in the conflict management dialogues/training, Ainabo, September 2011. 65. DRC, Evaluation of CBP. 66. Field observation of three days community-based policing workshop, Ainabo, September 2011; interview with Police Commander, El Efweyne, October 2011; interview with head of the community-based policing committee, Sheik, November 2011; interview with female member of the community-based policing committee, Sheik, November 2011. 67. Interview with female member of the community-based policing committee, also working as a conflict management volunteer, Sheik, November 2011. 68. Interview with female member of the community-based policing committee, Sheik, November 2011; focus group discussions with the Women's Peace Platform, El Efweyne, October 2011; interview with Police Commander, El Efweyne, October 2011. 69. Chopra and Isser, 'Women's Access to Justice', 35. 70. Interview with Police Commander, El Efweyne, October 2011; interview with head of the community-based policing committee, Sheik, November 2011; interview with female member of the community-based policing committee, also a conflict management volunteer, Sheik, November 2011; interview with the Women's Peace Platform, El Efweyne, September and October 2011. 71. Interview with Human Rights Advisor (from the local NGO NAGAAD), Hargeisa, November 2011. 72. As an example one of the female interviewees (active in a local community policing forum, and dedicated to improving justice for women) noted that if a woman gets a divorce or gets her husband jailed in response to for example domestic violence, this may seem 'just' from a human rights perspective but would often leave the woman in a very unfavourable situation. As a community policing member she would therefore often assist in finding solutions within the family and through community support and pressure instead of relying on 'the law' (interview, Sheik, November 2011). 73. This is not to say that the involvement of the traditional system in state formation and peace building is unproblematic or straightforward. For example the involvement of traditional authorities in high politics tends to compromise their role as legitimate representatives for the communities (Wiuff Moe, 'Negotiating Political Legitimacy'; CitationHoehne, 'Traditional Authorities in Northern Somalia'). Moreover, support from international actors, especially if provided in the form of payment, also risk compromising their legitimacy. 74. CitationChandler, 'Resilience and the "Everyday"', 24. 75. Chopra and Isser, 'Fixing Systems, Supporting Processes'. 76. See also CitationBrigg, 'R to P as Responsibility to Engage the Local'.