Thursday September 15, 2022
By Bashir Mohamed Caato
More Somalis are losing faith in the country’s slow judicial process and taking their complaints to the armed gro
Armed al-Shabab fighters patrol Bakara market in Mogadishu, Somalia, on Monday, June 29, 2009 [File: Mohamed Sheikh Nor/AP Photo]
In late December 2021, Halima (her real name withheld on request) boarded a minibus from Zoobe bus station in the Somali capital of Mogadishu to Ugunji, a farming village just outside the city, controlled by al-Shabab.
Her mission was to seek justice from the armed group after her plot of land was claimed by someone else who had reportedly forged documents to help his case.
Arriving there after a tedious two-hour journey, Halima booked a room in a hotel made of mud and sticks. After breakfast the next morning, she went to a house in the heart of the village where the group was holding court, literally.
“I filed my litigation through a man with a garment that covered his head, providing all the documents to support my case, testimonies and the respondent’s contacts,” the 50 year old told Al Jazeera.
After four days in court, the case was determined in her favour and the defendant fully accepted the verdict. It was a vindication for Halima who turned to the armed group after losing faith in the ability of the country’s judicial institutions due to “corruption and favouritism”, she said.
Among Somalis, there is a widespread belief that federal and regional governments have failed in dispensing justice. The Banadir regional court in the capital, which has the jurisdiction to handle land disputes, is not an option for many, says Aweys Sheikh Abdullahi, one of its judges between 2016-2018.
“People also prefer al-Shabab system to avoid long process which can take years without the case proceeding, backlog resulting from lack of enough judges at the court and costly legal fees are some of the factors I have witnessed which discourage people,” he told Al Jazeera.
Sometimes, prosecuting a single case costs more than $5,000, he added.
Somalia has been constantly ranked at the bottom – or close to it – of Transparency International’s Corruption Perceptions Index since 2006 and that has affected the country’s judiciary, residents and experts say. There are constant claims of judges subverting the law in favour of those with connections within the country’s distinct clan structure.
It is little wonder then, that the armed group has stepped in to fill the gap.
A moral high ground
Al-Shabab, which is linked to al-Qaeda, was formed in 2006 to attempt an overthrow Somalia’s government and impose its strict Islamic legal code of Sharia.
Over the years, it has been running its own courts, mainly serving residents of the areas it controls. There is no precise data on the number of people who continue to seek judgements from al-Shabab but they are believed to be in the thousands.
In recent years, more citizens have turned to the group’s judiciary, including those living in government-controlled areas, because of its speed in handling cases and giving verdicts, usually with no advocate to represent either party.
It has even occasionally reversed official court decisions, according to local reports.
A June 2022 report by the policy think-tank International Crisis Group revealed that al-Shabab’s influence stems from its perceived “moral high ground”.
“There is a perception that they are less corrupt and give equal standing before the law, regardless of clan, than government courts,” Omar Mahmood, the senior researcher at ICG who wrote the report, told Al Jazeera.
In Halima’s case, she said she could not register her complaint with the authorities because she is from a minor clan, unlike the respondent.
“The respondent had the backing of his powerful clan and could influence those institutions,” she said. She was referred to al-Shabab by other people in the capital who sought the same services.
Experts say the group’s enforcement of Islamic law has made it fearsome and it is using it to practise for its planned imposition of the code nationwide.
“I think al-Shabab has invested significantly in developing its judicial system, as it has seen from history that this is a critical need in Somalia, but also one that can be useful for its own ambitions as well,” the ICG’s Mahmood said.
The parallel courts also gained momentum because of the lax nature of state institutions after judgements have been delivered, says Abdirahman Turyare, ex-director of the National Intelligence and Security Agency of Somalia, and a former head of its military court.
“Court case losers sometimes turn to them, but one of the most frustrating challenges confronting the justice system is lack of enforcement,” he told Al Jazeera.
How the parallel judicial system works
The group holds sitting court sessions in areas it controls in southern and central Somalia and has mobile courts in territories held by the government. The sessions are only attended by the complainant, defendant, witnesses and other petitioners present at the time of the hearing.
A number of those who sought the al-Shabab service and spoke to Al Jazeera anonymously said they did not pay a fee to file a case but the group usually makes income from zakat, obligatory alms given by businesses and property owners.
According to these reports, cases are heard and determined by two to three members of the group who keenly study the arguments of both sides, evidence presented and witness statements. The al-Shabab members then apply their understanding of Islamic law to reach a verdict.
Punishments range from a few hundred lashes of a cane for adultery, to the death penalty in cases like murder. In cases where petitioners or respondents are not satisfied with the decisions made, they have a right to appeal.
Even those in the Somali diaspora are now turning to the group.
In late 2019, Mohamed, [not his real name], travelled from Sweden to file a case in Mogadishu over property he had inherited from his family that was being contested by some of his relatives.
He dropped his case from the regional court in Mogadishu, preferring instead to go with the al-Shabab judicial system in Tortorow village in the Lower Shabelle region.
“I did so when I realised that the respondent was bribing and influencing the judges to have the case determined in his favour,” the 30 year old told Al Jazeera. “The case dragged on for more than six months [so] having spent time and resources, I went to the al-Shabab court system. The defendant was called to attend, and after he agreed, the case was concluded within 18 days in my favour.”
Mohamed says he has met hundreds of people queueing to file their cases in the same village.
‘No jurisdiction’
In August, not long after a new president was inaugurated, the new interior minister Ahmed Moalim Fiqi said the authorities were determined to close al-Shabab’s courts in the Lower Shabelle and Mogadishu areas within the next two years.
Justice minister Hassan Ma’lim admitted that the country’s judicial system has lapses but says the armed group has none of the authority it claims to have.
“Though I cannot comment on the specific case, we can say al-Shabab is taking advantage of the country’s civil war weakness,” Ma’lim, told Al Jazeera. “They have no jurisdiction to carry out such administrative work, but instead they should be held accountable for the atrocities they have committed. They use fear, intimidation, propaganda and extortion.”
Ma’lim said the government is implementing judicial reforms to address some concerns, which include setting up a dedicated police unit for the judiciary to enforce all court verdicts.
But there are no signs of things improving soon, experts say.
“Work is ongoing to improve the government’s judicial capacity, but it is slow,” the ICG’s Mahmood said. “Right now, al-Shabab has more trust when handling many types of judicial cases, which will take some time to reverse.”
That rings true for Halima, Mohamed and many of their compatriots for whom al-Shabab’s courts are a welcome intervention in a country seeking stability – ironically, from a group better known for its regular violent attacks.