Hiiraan Online

By Dr. Ken Menkhaus
Wednesday, August 08, 2012

The reality is that the post-transition government will be unable to project its authority beyond much of the capital, Mogadishu. Most of the country and parts of the capital itself remain under the de facto control of autonomous strongmen, self-proclaimed regional states, clan militias and the jihadi group al-Shabab. Of these, only al-Shabab has demonstrated any will and capacity to impose basic law and order in its areas of control, but the group is losing ground to multiple armed offensives and is focusing its waning energies on war-fighting, not administration.

What this means is that most local communities in Somalia are, or will soon be, on their own when it comes to basic services associated with the state, including security, law and order, market regulation and other basic common goods. For omalis under the age of 30, which means 73 percent of the total population, informal, local self-governance is about the only political order they have ever known.

What does “governance without government” look like in Somalia, and what role might it play in the country’s ongoing task of state revival?

Governance Without Government

The sudden collapse of the Somali central government in January 1991 was accompanied by uncontrolled, predatory militia violence that produced massive displacement and casualties, and a famine that claimed 240,000 lives. Teenage gunmen terrorized communities, and traditional authorities were unable to control them. Not surprisingly, most observers concluded that Somalia constituted a zone of “Mad Max” anarchy.

But in a relatively short period of time, local communities began to forge informal arrangements to provide some degree of predictability and security for themselves. That they were so quick to do so serves as a reminder of a powerful observation about zones of state failure: In many cases, people and communities are not passive victims in the face of state collapse and criminal violence. The result was that by 1995, when the ill-fated United Nations peace-enforcement mission left Somalia, a patchwork quilt of local political orders had emerged in neighborhoods, towns and villages across much of the country. This assortment of local arrangements was hardly ideal -- it was fluid, patchy, variable in capacity and legitimacy, chronically contested, vulnerable to armed spoilers and illiberal in the kind of justice it dispensed. But these local arrangements have endured and evolved over the past 15 years and in some cases have provided local communities with better basic governance than exists in neighboring states.

It is commonly believed that the capacity of Somali communities to reassert some degree of law and order was due to the revival of traditional authority and customary law. It is true that clan elders succeeded in regaining some control over their kinsmen, and that “xeer,” or customary law, remains the principal mechanism for resolving disputes, compensating victims of crime and managing interclan relations. But the rise of informal governance in Somalia was more complex than just a revival of customary law. Clan elders could not have done this on their own.

The assertion of order involved a hybrid coalition of actors with a shared interest in establishing basic security and rule of law. These other actors included professionals, who guided elders through the new and complex problems that customary law could not address; Muslim clerics, who set up local, clan-based Shariah courts as a complement to customary law; women market-vendors groups and other civic organizations that were able to mobilize populations, reach across conflict lines and shame militiamen; aspiring local politicians, who saw opportunities to advance their own ambitions by supporting local governance; and an emerging business class, which underwrote local Shariah courts and police forces in order to provide for themselves a more conducive commercial environment. Potential spoilers, including armed gangs and militias, were sometimes coopted as deputized local police or protection forces. This was not always possible, but in many instances young gunmen were happy to take up a more respectable, salaried job in a local security unit rather than face the dangers and stigma of operating a militia checkpoint.

In other cases, law and order was established by militia leaders who, in order to advance their economic or political ambitions, saw benefits in recasting themselves as “governors” rather than “colonels.” The crudest of these polities were little more than warlord fiefdoms, a reminder that the legitimacy of informal governance systems can range widely from one location to the next.

The capacity of Somalia’s local polities in the post-1995 period also varied significantly. Some were little more than protection rackets, providing basic security for a fee. Others provided more-robust rule of law and dispute mediation -- typically parties to a dispute were afforded the choice of customary or Shariah law, so the two were not seen as rival systems. Almost everywhere, clan elders were relied upon to manage endemic land disputes and provide a critical role as witnesses to property sales, acting as a guarantor that deeds were legitimate. This was a very important role for the emerging private sector. In a few places, informal governance systems pushed beyond security and rule of law into more advanced governance roles. In several towns, committees of clan elders regulated the allocation of all contracts, employment and rentals that international aid agencies introduced into the area, as a means of ensuring proportional allocation by clan and preventing conflict over resources. Many towns organized fund-raising and volunteer labor in order to provide a public good that, due to its cost, constituted a “collective action” problem, such as a damaged road or bridge. In other locations, committees of clan elders served as regulatory bodies to determine, for instance, the fair price of electricity sold by a local business group that operated a generator and ran lines to customers’ homes.

This “regulatory commission” role pointed to the fact that the private sector was stepping in to provide many of the services normally associated with the state. In Mogadishu, private entrepreneurs ran electric grids and underground piped-water systems to paying customers, operated private airports and seaports, provided basic and advanced medical services and established private schools. The most advanced and inexpensive cellular telecommunication system in Africa arose in Somalia in the late-1990s thanks to competing businesses. And Somalia’s numerous remittance companies provided trusted, efficient money transfers and other quasi-banking roles. A small group of businesspeople also assumed control of core sovereign roles of the state such as control over the exchange rate and circulation of Somali shillings.

Local nonprofit groups, many underwritten by Somalia’s large diaspora, also competed to provide schools and health services. This included some of the largest universities in Somalia, such as the University of Mogadishu and the Somali Institute of Management and Administration Development. Local civil groups, including NGOs, self-help groups, women’s market-vendor groups and, above all, mosques, continued to serve as a critical source of basic welfare for families in need. This was a role the Somali government had never been able to play prior to the 1990s.

In a number of towns, these governance arrangements were formalized into municipalities, some of which constituted the most effective and impressive form of administration in the country. Mayors had the advantage of presiding over a political unit that, unlike informal governance, was recognizable to international donors and so could tap modest amounts of foreign assistance to help underwrite delivery of services like road repair, water systems and urban planning. Towns also tended to be sites of residence and business for multiple clans, offering greater opportunities for functional collaboration on matters of shared interest.

In a few cases, local governance in the 1995-2006 period grew to an even larger scale, in the form of regional state administrations. The biggest and most successful of these, Somaliland, is a secessionist state with a fully developed government, parliament, court system and security sector operating on a modest annual budget of about $35 million. In the northeast of the country, the nonsecessionist state of Puntland emerged in the late-1990s. Like Somaliland, it benefits from customs revenues on an active seaport and has established a modestly effective formal administration and police force.

These local governance arrangements are quite complex, in a constant state of flux and hence very challenging for Somalis to navigate. Working effectively in this environment, whether as a businessperson, elder, politician or civil leader, requires a level of political acumen that outsiders often fail to appreciate. 

Recent Challenges

Since 2006, armed hostilities, foreign military occupation, jihadism, internal displacement and humanitarian crises have taken a toll on local governance systems. Civil society leaders across the board, from prominent elders to educators to human rights advocates, have been hammered by political violence. Political threats and assassinations have become epidemic in scale, leading to the death or exodus of many of the most powerful social voices in local governance. In the past year, growing numbers of civil society leaders began returning to Somalia after seeking refuge abroad, but the once-powerful civic networks that constituted such an important part of local political orders have been weakened. Clan elders have also been subjected to new levels of political manipulation in national consultations and nomination processes, eroding their credibility among the public. Some business leaders divested from war-torn Mogadishu and invested instead in neighboring Kenya, while those who remained in Somalia have had to pay taxes to either al-Shabab, the Transitional Federal Government (TFG) or both, leaving them less willing and able to underwrite informal authorities as well.

Informal Governance Under Al-Shabab

By 2008, most of southern Somalia fell under the control of the radical Islamist group al-Shabab. The group imposed direct administrative control in the largest urban areas under its control, such as Kismayo and portions of Mogadishu, but lacked the means to create a “state within a state” across all of southern Somalia. Instead, it outsourced day-to-day governance to existing authorities, replaced elders and other local authorities they deemed untrustworthy and posted young al-Shabab militia in villages to monitor local authorities. One area of governance al-Shabab did retain for itself was the imposition of law and order. Criminals, as well as individuals accused of moral wrongdoing such as adultery, faced severe punishment under al-Shabab, including amputations and stonings.

Clan elders and other local authorities living under al-Shabab’s rule were and remain marginalized and constrained, but by many accounts they have still been able to articulate community grievances to al-Shabab commanders and exercise some influence over militia leaders. This was most in evidence during the worsening humanitarian crisis that culminated in the 2011 famine. Al-Shabab leaders with clan constituencies in their area of control came under sustained pressure to allow international food aid deliveries, producing serious tensions within al-Shabab.

In “liberated areas” -- zones where African Union peacekeepers, Kenyan and Ethiopian forces, and their local proxies have pushed al-Shabab out -- systems of informal governance have been slow to bounce back, in part because the armed militias that have replaced al-Shabab often come from other clans and regions, and are therefore beyond local control. But local authorities in liberated areas have found ways to reassert themselves, most notably by insisting on the right of the local community to appoint its own government. This has pitted local authorities against the TFG, which has insisted on the right to name its own governors across the country. For leaders of local political orders, both al-Shabab and the TFG are viewed as outside threats.

Hybrid Governance and Formal State Structures

In both of the most successful regional states, secessionist Somaliland and autonomous Puntland, traditional authorities -- that is, clan elders -- have been formally incorporated into government deliberations. The TFG has done the same, employing clan elders as representatives in a national constituent assembly that was tasked with selecting a new parliament and approving a provisional constitution. The most interesting example of “hybrid governance” -- incorporating traditional authorities in formal government -- has occurred in Somaliland, where elders’ roles are enshrined in an upper house, or “guurti,” of a bicameral parliament. This was done in part to build popular trust and confidence in the nascent government and in part to influence and coopt the clan elders. It is this latter dynamic that worries some critics of hybrid governance, who see in it a real danger of manipulation of traditional authorities, leading to a decline in their legitimacy.

A somewhat less controversial form of hybrid governance involving partnership between emerging state authorities and informal authorities can be seen in judicial functions. Throughout the Somali-inhabited East Horn, including eastern Ethiopia and northern Kenya, the vast majority of criminal cases and disputes are handled through either customary or Shariah law, not the formal court system. Somalis have a strong preference for compensational rather than punitive justice and have greater confidence in clan elders than in judges and the court system. In Somaliland, Puntland, Djibouti, Ethiopia and Kenya, this has led to an awkward situation in which whole communities rely on an extralegal, unconstitutional process to handle serious criminal offenses. In a growing number of cases, formal governments are exploring ways to harmonize customary, Shariah and civil legal systems, pointing toward the creation of a hybrid judicial system. In practice, this is already commonplace in Somalia, where clan elders frequently work with local police to arrest and detain criminal suspects.

Local Orders and the State

The protracted weakness of formal state structures in Somalia, contrasted with the ubiquitous presence of more effective informal governance systems, raises an unavoidable question: Is there a role these local political orders can play in state-building in Somalia?

There are four different schools of thought on the relationship between informal governance systems and the state.

The first holds that informal governance has no significance to state-building. This has been a dominant view among state-building programs that focus exclusively on formal state institutions and processes in Somalia. For many of these actors, informal political orders are invisible and inconsequential.

The second considers informal governance significant but negative -- that is, it poses a threat to state-building. From this perspective, subnational polities and informal political orders are rivals to the state and serve as active impediments to the expansion of state authority. Leaders of local political orders have a vested interest in perpetuating their autonomy and are spoilers that states must overcome. In Somalia, nationalists fear that substate polities are enshrining clan enclaves. Many others object to legitimation of any informal political order that enforces unconstitutional and illiberal laws, noting that both Shariah and customary law do not afford equal rights to women and fall well short of due process and other minimal legal benchmarks. This school of thought opposes any proposal to create hybrid political arrangements that include informal authorities.

The third sees informal governance as significant and positive, but temporary. Many observers recognize that in a weak or failed state, informal governance systems are the only source of security and rule of law that millions of citizens can count on. This is a view of informal governance as a form of coping mechanism. Embracing a “do no harm” ethos, this school of thought argues for policies that recognize and respect informal governance systems during the long interim period required before state-building efforts yield a police force, judiciary and public administration that the public can trust. At that point, the argument goes, clan elders, customary law and other features of informal governance will gradually fade in importance.

The fourth school of thought argues that informal governance plays a significant role in the construction of a new, more indigenous “mediated” state in Somalia. Such a role for informal governance systems in state-building is only possible if one conceives of a different kind of central government, one that may not conform to the template derived from Western political institutions. Some argue that Somalia is already embarking down a road toward a new, more indigenous state that involves hybrid governance arrangements not so much out of choice as out of necessity.

Somalia’s post-transition government is likely to be very weak for some time to come, and its only means of extending its authority will be to do what it has already done: negotiate relations with nonstate and substate entities in areas beyond its control. This is the so-called mediated state model, in which a central government that “has the competence to know the limits of its competence” allows local authorities to mediate relations between the state and its citizens, and outsources to the private sector, nonprofits and local polities many functions normally associated with a central government. The TFG’s reluctant relations with subnational polities Puntland and Galmaduug, for instance, are vintage examples of a mediated state, as are its tense relations with powerful local politicians in Mogadishu, who are at once members of parliament and warlords preventing the TFG police from entering their neighborhoods. Such a path toward state-building is messy, fluid, conflictual and not at all amenable to most state-building aid programs. But it is a much more realistic model of how weak states seek to claim, and gradually build, authority over their territory.

Dr. Ken Menkhaus is professor of political science at Davidson College. He has authored more than 50 articles and book chapters on Somalia and the Horn of Africa.  He is currently a visiting scholar at the U.S. Army Strategic Studies Institute.

This article was orignally published in World Politics Review on Wednesday, August 08, 2012.