Parties or organisations, including international organisations

effective

non-temporary

accessible to the applicant

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Since 2014, xeer has been adopted as a supplementary approach to justice by the Ministry of Justice (MoJ) of the FGS. Officially renamed to Alternative Dispute Resolution (ADR), ADR centres have been established in all FMS, however not in all administrative regions. More than 80% of all civil and criminal cases in Somalia are settled through a customary (xeer) system, which is perceived by many Somali citizens as effective, fast and compliant with Sharia law but most importantly provides enforceable judgments. [Actors, 2.3.2]

Several issues affect the statutory administration of justice in Somalia, including limited staff and budget, limited preparation and training, lack of enforcement of both civil and criminal decisions and widespread corruption. Access to justice is also hindered by costs. Against this backdrop, statutory justice is not the preferred means to seek and access justice among the Somalis. [Actors, 2.3.1]

Independence and impartiality of the judiciary is not always respected by the government.

Furthermore, local courts often depend on local clans and are affected by clan politics. The right to a fair and public trial is often not enforced at all, with the authorities not respecting most rights relating to trial procedures. [Actors, 2.3.4]

Meanwhile, military courts have tried a broad range of offenses and defendants, including children, in trials that violate basic fair trial standards [Actors, 2.3.4].

Women and children can only have access to customary (xeer) justice through a male representative, since they are not considered by the society as responsible. Stigma is associated to women directly seeking justice and presenting their case to a male-dominated justice system and in the context of a patriarchal society [Actors, 2.3.2]. In comparison with most customary justice providers, Sharia courts are more accessible to and amenable towards women and women’s rights [Actors, 7.7.4].

Minority group members often lack protection by state authorities and continue to experience issues with regard to access to justice. Access to statutory justice is also hindered by costs, which is a variable that interacts with clannism, as minority clans tend to be poorer and less well-connected [Actors, 2.3.1]. Women from minority groups find themselves with little protection either from customary clan-based justice systems or formal legal procedures [Targeting, 4.1].

Al-Shabaab controls a significant part of South-Central Somalia and has expanded its influence beyond that.

The state security architecture remains deeply fractured, with impacts in all other domains. As a consequence, the FMS’ security, political, and administrative powers are often still weak and overlap or outrightly replace that of the federal government, which is often unable to enforce its presence and central power. [Actors, 2.2]

Capacity issues, such as untrained and unqualified units and lack of equipment, have a considerable impact on the effective capacity of the SNA to engage in military operations against Shabaab. NISA is also experiencing a number of issues, including infiltration by Al-Shabaab and political instrumentalization, affecting its effectiveness. The PSP has been described as the only functioning state police service among the FMS police services. On the other hand, PMPF has supplanted various official policy functions in Bosasso and has become involved in Puntland politics, clan rivalries, and geopolitical conflicts, while being used to combat Al-Shabaab and ISS forces as well. It still works as the praetorian guard of current

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Puntland’s administrations, with the UAE trying however to discourage its use as presidents’

personal militia. PMP has also fought the PMPF over access and control of Bosasso. Both PMPF (funded by UAE) and PSF (funded by US) operate outside of Somalia’s constitution and security architecture, with the latter working as a private auxiliary group [Actors, 2.4, 7.6.2].

For more details on the structure and activities of the FGS and FMS armed forces, see Actors of persecution or serious harm.

AMISOM’s effectiveness is also impacted by a number of issues, such as mandate, resources and capabilities, regional dynamics and other international actors. Furthermore, an AMISOM expert has stated that ‘an under-resourced force that is unable to protect itself is hardly in position to proactively protect civilians’ [Actors, 5.1]. For more information on the structure and activities of AMISOM, see AMISOM under Actors of persecution or serious harm.

As from January 2021, the US military troops in Somalia have largely been withdrawn [Actors, 5.2]. For more information on the structure and activities of AFRICOM, see AFRICOM under chapter Actors of persecution or serious harm.

The Somali multi-faceted justice system is still experiencing significant

weaknesses and is unable to effectively detect, prosecute and punish acts that constitute persecution or serious harm. Furthermore, law enforcement is continuously challenged by the different conflicts taking place in Somalia, including the conflict with Al-Shabaab.

Therefore, it can be concluded that, in general, the Somali State would not be considered an actor of protection meeting the criteria under Article 7 QD.

Authorities of Somaliland

Last updated: June 2022 [Actors, 7.6.1, 7.7]

The authorities of Somaliland dispose their own legislative, executive and judiciary branches.

Despite some issues experienced by the Somaliland armed forces, such as limited resources and accessibility to more remote areas, they have managed to deny Al-Shabaab a foothold in the area.

Justice provision in Somaliland operates similarly to that in the rest of Somalia, whereby it combines statutory courts with both xeer and Sharia. All three systems are recognized by the Constitution of Somaliland.

Somaliland doubled the number of (statutory) judges in less than a decade and has introduced mobile courts to deal with the access to justice for rural areas harder to reach.

However, a number of issues still affect (statutory) justice in Somaliland, such as lengthy legal procedures, high legal fees, shortage of trained judges and lawyers, limited presence in rural areas and nomadic communities of judiciary institutions, low implementation of court

decisions and widespread allegations of corruption.

Nevertheless, in Somaliland defendants generally enjoyed a presumption of innocence and the right to a fair trial.

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Approximately 30% of all cases arbitrated in Somaliland are resolved through Sharia courts and Islamic scholars.

Restrictions to access to customary justice for children and women apply also in Somaliland.

See more information under The Somali State and sub-profile 2.11.1 Violence against women and girls: overview.

Minority group members often lack protection by the authorities [Targeting, 4.1].

It can be concluded that the authorities of Somaliland, in areas under their control, may, depending on the individual circumstances of the case, be

considered able and willing to provide protection that meets the requirements of Article 7 QD. In disputed areas between Somaliland and Puntland, the criteria under Article 7 QD would generally not be met.

When assessing the availability of protection by the authorities of Somaliland, individual circumstances such as home area, age, gender, clan, social and economic situation, actor of persecution and type of human rights violation must be taken into account. Protection by the Somaliland authorities is generally not considered available for members of minority groups, LGBTIQ persons and women, especially in cases of sexual and gender-based violence.

4.2 Parties or organisations, including international organisations

Last updated: June 2022 In the context of Article 7 QD, it is necessary that those parties or organisations control the State or a substantial part of the territory of the State. In order to consider that parties or organisations control a region or a larger area within the territory of the State, it should be established that they exercise governmental functions. Furthermore, those parties or

organisations have to be willing and able to provide protection against persecution or serious harm as defined in Article 7(2) QD.

Al-Shabaab

[Actors, 4.3, 4.4; Targeting 3.1]

At the peak of its territorial control, Al-Shabaab established functional ministries and administrations. As of 2014, Al-Shabaab maintained several ministries such as the interior ministry, the information ministry, the justice ministry with judges in each region.

There is no functional formal judicial system in Al-Shabaab-controlled areas. Al-Shabaab has established courts in the territory under its control, as well as beyond it, through the

introduction of mobile courts, including in Mogadishu. These courts implement the Sharia law in its strictest form leading to executions and corporal punishments.

Many people in Somalia who live in government or state-controlled territory seek justice by going to Sharia law courts run by Al-Shabaab due to its ability to enforce its decisions. The

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majority of cases dealt by Al-Shabaab courts are civil and, among these, mostly related to land or business disputes.

Al-Shabaab carried out arbitrary arrests on the basis of questionable or false accusations. Its courts did not permit legal representation or appeals and the group administered justice without consulting the victims or taking into account the broader circumstances of an offence.

The lack of due process and the nature of the punishments would not qualify the parallel justice mechanism operated by Al-Shabaab as a legitimate form of

protection. Further taking into account its record of human rights violations, it can be concluded that Al-Shabaab does not qualify as an actor of protection who is able to provide effective, non-temporary and accessible protection.