The Shari’ah in Somalia: The Expanding Access to Justice Program in Somalia (March 2020)

Over the past two decades, justice sector development has undergone an enormous transformation. The community of practice has broadly accepted that most ‘top-down’ approaches to reform have been unsuccessful at improving institutional functionality or access to justice for marginalized or vulnerable populations. In response, the community has shifted its focus towards locally-driven reforms, centered upon improving service delivery and empowering end users. Rolling out such approaches in Islamic jurisdictions such as Somalia, however, has proven complicated. Shari’ah principles can sit in tension with internationally accepted justice norms, which has confronted practitioners with questions on the acceptability of engaging with systems that do not always conform to human rights standards.
Critics argue that Rule of Law programming in such circumstances implicitly endorses and thereby perpetuates rights-abrogating practices. Donors also fear that such engagement could be met with criticism from their tax-paying constituencies. Yet, ignoring these systems ignores the social realities of those who, either by choice or compulsion, rely on them to uphold their interests and resolve disputes. Indeed, UN inter-agency assessments have argued that while violating practices must be taken seriously, not engaging systems for this reason is unconstructive and inconsistent with a human rights- based approach, as it abandons meaningful pathways for reform. They stress that local ownership – including a country’s choice of judicial model — is imperative to development impact and sustainability and is not a principle that the international community can ‘cherry pick’ when and when not to apply.
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This report seeks to spark a dialogue among national and international practitioners with regards to the application of shari’ah in a legally pluralist Somali justice sector, with the aim to service Somalia’s population with increasingly fair and rights-based justice, especially for women and those vulnerable and marginalized groups – and it seeks to equip its readers with the concepts and background to do so in a manner appropriate to its context.
Click below to read the full report by the Expanding Access to Justice Program.