Somalia’s failing legal system

By Dr. Mohamed Hassan Tifow

I was talking to a friend of mine last time. He lives in Mogadishu. He was complaining about his property that is dispossessed by a lady. This lady deprives him of his real estate by force. And he can’t get back his property no matter what he does.

Access to justice is part of modern democracy, and it’s also a precondition for enforcing rights that have been granted. Justice, in this sense, is a public good such as security, health care and education. Legal problems are associated with high tangible and intangible costs and are concerned with a significant part of the population. Therefore, this legitimises that justice is the object of government policy.

The effectiveness of access to justice is not the same from every perspective. The emphasis on (formal) systems that facilitate access to justice and justice facility says nothing about the results. A distinction can be made between formal and substantive access to justice.

The last perspective looks at the possibility for people to arrive at a genuinely substantive outcome or solution to their problem. It ties in with the notion that access to justice only has meaning if it can also be effectuated.  Although in the first instance, the emphasis was mainly on formal access, this substantive element has always been the goal and legal access to an independent, neutral judge (or other decision-makers).

This anecdote mentioned above is not limited to my friend alone but is shared by many other dispossessed.  If people cannot exercise their social rights, then social protection is also eroded. Also, anyone who wants to defend their rights legally will be confronted with financial hardship and other barriers to access to justice. Another critical barrier to obtaining justice is the fact that for some reasons, licenses are not granted automatically to the rightful or even if given, judgment not automatically executed.

The most vulnerable people in the post-conflict and or developing countries often are exposed to both extreme poverty and human rights violations. Assisting victims of these violations and the socially and economically vulnerable groups is to provide equal access to justice, through which these people can claim their rights.

Access to justice, which ensures the application of impartiality of the law, is an essential factor in the fight against social injustice. To recognise and strengthen the link between equal access to justice and the reduction of social injustice, the government must take this issue very seriously and tackle head-on. Real estate dispossession is very endemic in the country.

The government must meet its commitments on social justice and see the political, organisational and financial challenges to ensure access to justice for those who need it most.

The Somali Republic judiciary system has completely collapsed after the fall of the last regime and is now fragile. On the one hand, material access to the courtroom is getting complex by the fact that there are few government courts outside the capital. On the other hand, the police habitually act as judicial authorities and deal with cases reported to them, internally and without legal powers.

For example, many instances of corruption, extortion, harassment, and arbitrary detention is what let the friend mentioned above not to rapport the case to either the police nor take the case to court.

The high cost of justice, the severe staff shortage and the nature of the cases handled make access to the justice unrealistic for the vast majority of Somalis. And given the limited presence of government judicial institutions outside the capital combined with their abuses, many Somalis are forced to use other forums to resolve their disputes through clan leaders or with Al-Shabaab courts.

While this alternative form of justice has the advantage of being more accessible, it is not free from criticism. On the one hand, it leads to conflicts of jurisdiction and confusion among citizens. And on the other hand, there’s a safety risk to those seeking justice if they ever had any dealings with government institutions, as Al-Shabaab will regard them apostates and execute them. There are also reports of intimidation, especially in areas where their local courts do not provide an adequate response to conflicts.

People wonder whether MPs think about the laws they pass and how poor people have to do with inefficient and inadequate social protection. To improve the situation, the government must respond to the needs of these victims; otherwise, peace may never come. Justice has never been more critical than today. Not only to settle personal disputes but to fight against discrimination and injustice but also as a control to guarantee fundamental human rights.

Insufficient and inadequate access to justice can lead to all kinds of negative consequences. To prevent social division, reduced participation, and undesired forms of self-direction which can lead people taking matters on their hand for example through physical violence, the government must take steps to equip citizens with sufficient legal capacity.

It is also essential to strive for a customer-oriented legal system. It is also necessary to focus the legal system more on the concrete needs and requirements of citizens in their different relationships. And to detach the legal system somewhat from its legal conflict model, for example, by lowering the psychological barriers to starting proceedings and a customer-oriented attitude, for an instant through clear communication to promote judicial decisions.

Access to justice must aim at least to realise two goals of the system

with which citizens can obtain their rights under the aegis of the state. First, that its policy is equally accessible to everyone and secondly that the results are individual and be socially just.

Finally, it is imperative that the government, through confidence-building to improve the legal climate. To achieve this, more consistent compliance with court decisions is necessary, as well as a reduction in the burden on it engaging a neutral intervention, for example, through improving the lead times.

Dr. Mohamed Hassan Tifow can be reached at mxtifow@yahoo.co.uk 

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