EAJ GESI Report 2018

Somalia
Gender Equality and Social

Inclusion Analysis
Expanding Access to Justice (EAJ) Program in Somalia
Disclaimer:
This report was developed with support from the American People though the United States Agency
for International Development (USAID) under the Human Rights Support Mechanism (HRSM).
HRSM is a USAID funded, five-year leader with associates cooperative agreement implemented by the
Freedom House-led “Protecting Global Rights through Sustainable Solutions” Consortium
(PROGRESS). The contents are the responsibility of Pact and do not necessarily reflect the views of
USAID or the United States Government.
Anton Pestana
EAJ Chief of Party
Pact Kenya
P.O. Box 35081-00100
1047, Braeside Gardens
Off Muthangari Road, Lavington
Nairobi, Kenya
+254-712-232-200
[email protected]
Acknowledgements:
Photo Front Cover: Mohamed Abdullah Adan from PACT, SHIIR Progra; Caption: Somali women
living in a small town called El Waq in Somalia have long suffered years of conflict, marginalization
and drought. USAID, through a program called SHIIR (Somalis Harmonizing Inter-and-Intra
Communal Relationships) has brought together women from conflicting clans to learn, decide and
plan the future of their district; Location: El Waq, Somalia; 4 November 2017.
The EAJ Team wishes to express gratitude to the author of this report, Erica Harper, and to all those
who have been involved and provided comments on earlier versions of the analysis: Sean Allen and
Nina Bowen (USAID), Catherine Kelly (ABA ROLI), Paulina Rudnicka (ABA ROLI), Mridula Shresta
(ABA ROLI) Melissa Booth (Pact), and Mason Ingram (Pact).
Nairobi, 2019
Contents
Abbreviations and Acronyms ........................................................................................... i
Terms and Translations .................................................................................................. ii
Executive Summary ........................................................................................................ iii
1. Introduction................................................................................................................. 1
Aims and Objectives ........................................................................................................................ 1
Methodology.................................................................................................................................... 4
2. History and Analysis of Somali Gender Relations and Social Order ............................ 5
Guiding Points................................................................................................................................. 8
3. Marginalized and Excluded Groups and the Violations Against Them ...................... 10
Vulnerable and Marginalized Groups .......................................................................................... 10
Specific Grievances ........................................................................................................................ 12
Sexual and Gender-Based Violence ................................................................................. 12
Early Marriage .................................................................................................................. 15
Denial of Humanitarian Assistance ................................................................................ 15
Land Disputes ................................................................................................................... 15
Child Labor and Trafficking ............................................................................................. 16
Forced Recruitment ......................................................................................................... 17
Migration .......................................................................................................................... 17
Guiding Points................................................................................................................................ 17
4. Access to Justice in Somalia ...................................................................................... 19
The Somali Courts System ............................................................................................................. 19
Technical Equipment ....................................................................................................... 21
Power Asymmetries......................................................................................................... 22
Synthesis of These Deficits ............................................................................................. 22
Dispute Resolution under Xeer .................................................................................................... 23
Characteristics of Xeer .................................................................................................... 23
Xeer Processes and Relationship with the Courts ......................................................... 24
Deficits and Challenges ................................................................................................... 24
Understanding Xeer in Current-Day Somalia ............................................................... 26
5. Expanding Access to Justice in Somalia: Key Challenges and Pathways Forward ..... 28
Five Principal Access to Justice Inhibitors .................................................................................. 28
Pathways Forward ........................................................................................................................ 30
Strengthened Courts ........................................................................................................ 31
Creation of More and Better Justice Options ................................................................. 31
Rights Awareness ............................................................................................................. 31
Reduced Violence ............................................................................................................. 31
Attitudinal Transformation ............................................................................................ 32
Annex 1. Key Concepts Relevant to the Somali Context ................................................. 33
Annex 2. The International Legal Context ..................................................................... 36
Annex 3. Regional Instruments ..................................................................................... 39
Annex 4. Donor Instruments ......................................................................................... 40
American Bar Association Rule of Law Initiative (ABA ROLI) .................................... 40
United States Agency for International Development (USAID)................................... 40
Annex 5. Review of National Law Instruments .............................................................. 42
Annex 6. Selected Bibliography ..................................................................................... 48
Abbreviations and Acronyms
A2J Access to Justice
ABA-ROLI American Bar Association Rule of Law Initiative
ADR Alternative Dispute Resolution
AMISOM African Union Mission in Somalia
EAJ Expanding Access to Justice Program
FGMC female genital mutilation and cutting
FGS Federal Government of Somalia
FHH female-headed household
GDP gross domestic product
IDP internally displaced person
IPV intimate partner violence
MDG Millennium Development Goals
NGO non-government organization
SCS South Central Somalia
SGBV sexual and gender-based violence
SOPs standard operating procedure
UNSC United Nations Security Council
US$ United States dollars
i
Terms and Translations
Term Explanation
Anno revenge killing
Dhabar-garaac where a women or girl is abducted and abused until she marries the abductor
Diya/mag group a blood-payment compensation group
Dumaal forced marriage between a widow and a male relative
Fiqh the science of deducing laws from the Holy texts
Godobitir marriage of a female as compensation
Hadith a record of an act or saying of the Prophet Muhamad written after his death
Ijma’ (literally ‘to agree upon something’) the unanimous agreement of the mujtahidun of
the Muslim community following the Prophet’s death
Madhhab school of Islamic jurisprudence
Gar dawe light arbitration
Maslaxo restitution
Muhram male guardians, usually a father, brother or uncle
Qiyas the application of a ruling to a new case on the basis that the effective cause was
common to both
Qur’an the holy book of Islam
Raganimo manhood
Shafi’i one of the schools of Islamic jurisprudence in Islam
Shari’ah Islamic law and jurisprudence derived from Islamic religious precepts of Islam,
particularly the Quran and Hadith
Sunnah acts and sayings of the Prophet and everything that he approved
Tahriib irregular migration
Tanazul where women are pressured into renouncing their inheritance rights to male
relatives, usually her husband, brother(s) or son(s)
Ulama Islamic religious leaders
Xaal marin compensation usually in the form of an apology and financial remuneration
Xeer Somali customary law
Xigisian marriage between widower the sister of a deceased wife
Fatwa a legal ruling given by a recognized religious scholar in answer to a question of
religious importance
ii
Executive Summary
Somali women, girls, minorities and internally displaced people (IDPs) are among the most
marginalized and discriminated against groups in the world. Principal violations include sexual and
gender-based violence (SGBV) (rape, forced prostitution, intimate partner violence (IPV), forced
marriage, early marriage, female genital mutilation and cutting (FGMC)); denials of humanitarian
assistance; land disputes; child labor and trafficking; forced recruitment; and forced migration.
Within these groups, there are large pockets of multi-faceted vulnerability and intersectionality.
Poverty, clan status, displacement and bereavement can each operate to expose individuals or families
to broadened risks and threats. Vulnerability is also contextual and dynamic. Marriage, divorce, aging
and displacement can create new risks for an individual, or in some cases negate them. For these
groups, access to justice can be described as highly limited.
Across Somalia, as in many other countries, access to justice is embedded in a context of legal
pluralism, in which different justice institutions, authorities and normative orders exist. While the
shari’ah constitutionally serves as the basis of all justice, strong local justice norms and concepts are
expressed in the local ‘xeer’. A fledgling system of state courts and statutory laws exists, but only in a
complex interplay with shari’ah and xeer norms.
While the xeer and state courts co-exist in a state of mild tension, both ultimately operate to protect
the collective and individual interests of adult males from majority clans. Moreover, while women and
marginalized groups are best protected under the binary shari’ah-secular laws, the structures
representing these remain largely out of reach. Judges, prosecutors, defense attorneys and police are
insufficiently trained and resourced, and their relative strength compared to the clans leaves them
with only perfunctory authority in many locales. The outcome is one of uncertainty; complainants
cannot be sure what law will be applied, nor whether a court will assert its jurisdiction, and if it does,
whether it will make a judgement according to law or xeer. This recipe does not offer women and
minorities a sufficiently improved alternative to encourage them to access the courts, particularly
given the backlash they may face for disrespecting social conventions. Thus, whether by choice or lack
of options, in practice, women tend to engage the xeer system – the system that is least structured to
protect their rights. However, minority clans and IDPs may not even have this option. Their lack of
relative power leaves them highly exposed to violence and expropriation, including by officials. At the
same time, they are less likely to have their complaints taken seriously by courts and have little or no
bargaining power to seek redress through xeer. The takeaway is that women and other marginalized
groups currently lack the tools to work the plural system to their advantage; stripped of meaningful
choice and bargaining power, many are relegated to xeer where clan interest is the unabashed object
of protection, or they are forced into silence as a tool of self-preservation. Taking these challenges into
account, approaches should on the one hand support a gradual transfer of influence and power in
favor of a strengthened formal justice model, while on the other support normative and attitudinal
changes that reflect international human rights standards in society and its informal justice
institutions.
Principal Access to Justice Challenges

• Lack of confidence in the formal justice system: Poor knowledge on the part of justice
sector actors, coupled with low resourcing and power asymmetries vis-à-vis the clans means that
rights holders do not know what law/norms will be applied.
• Legal pluralism: The pluralism inscribed in the constitutions of the FGS, Puntland and
Somaliland is complicated by the fact that judges are poorly schooled in both shari’ah and
secular law. This vests judges with broad liberty when resolving cases, creating opportunities for
corruption and loopholes for power-holders to influence judgments.
• Different conceptualizations of justice: The patriarchy underpinning the clan system,
deeply entrenched discrimination, and decades of inequality have normalized certain practices to
the point where they are no longer regarded as rights violations.
• Exclusion from decision-making: Marginalized groups are excluded from participating in
discussions and adjudication processes relating to issues that impact them; such exclusion
permeates the entire justice system, from rules requiring that women be represented at xeer by a
male relative, through to the lack of female and minority representation in policing services,
courts or governance.
iii
• Relative strength and durability of the clan system vis-à-vis the state: Clans use power
differentials to control outcomes and exercise de facto authority over jurisdictional matters, for
both political ends and functional reasons.
Principal Access to Justice Goals

• Strengthened courts: Women and marginalized groups will not be sufficiently incentivized to
use the courts until outcomes become more reliable and law-based and inroads for corruption
and influence are closed. This will require steady investment in the capacity of the personnel
staffing the justice and policing sectors, as well as a bolstering of the resources available to them.
• Expansion of justice options: Providing marginalized groups with more and better justice
options must start with broadening the reach of judicial and policing services into rural and peri-
urban areas, for example, through mobile courts, and removing cost and conceptual barriers
through expanded legal aid.
• Rights awareness: Improved rights awareness is an essential complement to improved access
to judicial fora. Such knowledge extends beyond laws and procedure to include shari’ah, insight
into what constitutes a violation of individual rights and basic justice principles such as equality
and individual rights.
• Norms and attitudinal transformation: Beyond the strengthening of the formal justice
system as a key conduit for rights protection, change in norms and attitudes among the
population and among informal justice providers can similarly promote individualist-based
rights in practice. Rights awareness, legal aid or mobile courts can be drivers in the change of
local normative orders.
iv
1. Introduction
In Somalia, norms, institutional structures, economic forces and security imperatives combine in
complex and dynamic ways to craft the environment in which women and marginalized groups exist.
Understanding these influences is pivotal to designing impactful and safe interventions that will serve
broader access to justice goals. To this end, the following gender and social inclusion analysis seeks to
map the context against which different groups experience violence and rights violations, and in turn
have them dealt with. It identifies key players, institutions and social influences and tries to explain
existing and potential future trends.
Aims and Objectives

It is broadly accepted that Somali women, girls, minorities and internally displaced persons (IDPs) are
among the most marginalized and discriminated against in the world. Their exposure to violence,
vulnerability to dangerous cultural practices, and lack of participation in decisions that impact and
shape their lives is well documented in both academic studies and the experiences of non-government,
humanitarian and development agencies. While these issues may appear clear cut, care must be taken
to avoid generalizations when crafting policy and programs. Within these groups, there are
hierarchies of power and influence, as well as large pockets of multi-faceted vulnerability. Poverty,
clan status, displacement and bereavement can each operate to expose individuals or families to
broadened risks and threats. It is particularly important to avoid generalizations based on gender. The
power structures and social orders that regulate Somali society are complex, geographically
heterogeneous and dynamic. For some women, their clan, marital status, resources or political
connections allows them to exercise power over or even exploit others, including the displaced, those
from minority clans, the poor and some groups of men. Reciprocally, men – especially young men,
minority clan members and those who are displaced – share many of the challenges generally
attributed to women and girls. The common thread is that discrimination and exclusion – gender-
related or otherwise – are manifestations of power holdings, built up over time in response to
economic and political factors, as well as the civil conflict. This has manifested in a normative and
governance system dominated by men and majority clans, which reflects and reinforces a skewed set
of priorities. 1 The takeaway is that individual or group vulnerability must be
understood in relation to other social, economic and political inequalities, as
well as competitions over power, resources and political control.
Moving towards a more egalitarian society is a Poverty, weak governance and insecurity are
principal policy objective, enshrined in Somalia’s both causes and consequences of exclusion,
national legal system as well as donor policy and discrimination and marginalization. These
the international jurisprudential framework. On forces operate in a self-fulfilling and
the one hand, gender equality and protection mutually constituting manner sustained by
against discrimination are among the most established power hierarchies, vested
fundamental of human rights. On the other – and interests and entrenched cultural norms.
from a more localized perspective – it is clear that Reversing this situation will require
when a large proportion of the population’s views, deliberate and targeted actions to protect the
needs and interests do not inform decision-making marginalized from violence and exploitation,
and policy prioritization, the likelihood of impact as well as interventions targeting the causal
and sustainability is greatly diminished. Indeed, drivers and structural inhibitors.
there is a solid body of evidence connecting an
empowered population to outcomes ranging from economic growth, to improved health statistics and
environmental sustainability. 2 For example, societies with large and persistent gender gaps tend to
suffer more from poverty, malnutrition and illness, whereas more equal societies grow, enjoy
improved living standards and are more stable. 3 Most recently, trends indicate that women’s
1C Sweetman and J Rowlands, ‘Introduction: Working on Gender Equality in Fragile Contexts’, Gender and Development, 24:3,
337-351 (2016)
2See e.g., ‘UN World Survey on the Role of Women in Development’ (2014)
http://www.unwomen.org/~/media/headquarters/attachments/sections/library/publications/2014/unwomen_surveyreport_
advance_16oct.pdf
3 Engendering Development: Through Gender Equality in Rights, Resources and Voice, World Bank Group and Oxford
University Press (2001) 8.
1
participation and inclusion improves the success of peace negotiations, the duration of a peace
agreement, and post-conflict economic recovery. 4
From this, the principal question for access to justice initiatives is how to interrupt the pathways that
maintain gender bias and social exclusion in a way that will facilitate transition towards equality most
rapidly and painlessly. The scholarship suggests that while economic development and peace
maintenance does improve the rights of and opportunities available to suppressed groups, these
forces alone are insufficient to ensure full protection and rights realization. 5 Specific actions to
enhance the opportunities, positioning and agency of women, minorities and IDPs will thus be
required to dilute the process of domination by those in power and create a framework that reflects
the needs and priorities of Somalia’s eclectic population.
Strategies to induce such changes need to be developed against a nuanced understanding of Somali
gender identities, social dynamics and power structures, as well as the clan, religious and economic
forces that influence them. 6 A key challenge is that the causal factors and sustaining systems cut
across several spheres and sectors, making it difficult to isolate or compartmentalize so-called gender
or discrimination problems. Violence, for example, is generally understood to be a gender-related,
societal phenomenon. In the Somali context, however, violence has not only gender dimensions but
can also be linked to asymmetries in political power, competition for resources, and generalized
fragility. 7 Another example is the role of marginalized groups in maintaining, either consciously or
inadvertently, cultural practices that are harmful to them. Examples include female genital mutilation
and cutting (FGMC, or women viewing domestic violence and rape as shameful issues to be kept
within the family sphere. 8 A final example relates to beneficiary targeting. While men are not the
typical objects of gender programming, Somali societal tensions around gender relations are closely
connected to the civil conflict and consequent economic stagnation. Male role displacement,
decreased social mobility and their inability to fulfil basic socio-cultural expectations has
unquestionably exposed women to heightened levels of violence and exclusion. Each of these
examples demonstrate that only when gender inequality and social exclusion are seen
as multidimensional and contextualized phenomena can holistic and impactful
responses be developed.
This table sets out the relations, norms and asymmetries that can impact decision-making around
rights violations and the pathways for addressing them. The list is non-exhaustive; its purpose is to
illustrate how multi-faceted vulnerability begets myriad secondary implications, all of which need to
be assessed in order for the best possible outcome to be secured.
Principal
considerations Knock-on considerations
Victim clan • The availability of a xeer option (e.g., displaced persons may not have a clan to
positioning vis-à-vis represent them)?
perpetrator clan • Possibility of threats or retaliation if there is a power asymmetry between the victim
and perpetrator clans?
• Likelihood that judge can be influenced/pressured by dominant clan?
Clan/family • Likely outcome under xeer vis-à-vis protections offered under law?
preference for • Is preferred outcome compatible with the rights of the victim under law/shari’ah?
dispute resolution • Likelihood of court judgement being realized if there is family/clan resistance?
modality and • Enforceability of a court judgement?
outcome • Potential that victim will be exposed to retaliation/greater vulnerability at community
level for having access the courts?
• Preference/knowledge of rights-holder regarding potential outcomes?
Gender/minority • Different legal outcomes under xeer based on gender or clan status vis-à-vis outcomes
status possible at court?
• Possibility of discrimination/retaliation at court and police levels?
4C Sweetman and J Rowlands, ‘Introduction: Working on Gender Equality in Fragile Contexts’, Gender and Development, 24:3,
337-351 (2016)
5 See e.g., E Duflo ‘Women Empowerment and Economic Development’ Journal of Economic Literature, 50:4 (2012).
6F Musse and J Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013) 57.
7‘The Complexity of Sexual and Gender-Based Violence: Insights from Mogadishu and South Central Somalia’ International
Committee for the Development of Peoples and International Alert, (2015) 12-13.
8 Ibid.
2
Principal
considerations Knock-on considerations
Discriminatory • Is the violation viewed as a crime, even if under statute?
cultural norms • Potential social implications of raising a rights violation deemed ‘private’ under
customary norms?
Role of shari’ah • Is the violation supported or prohibited under shari’ah?
interpretation • Xeer leader/judge’s knowledge of shari’ah?
• Existence of a clash between xeer and shari’ah?
• Relative power asymmetries between the ulama, judge and xeer leader (if different)?
Economic status • Willingness/capacity of family/clan support a court action?
• Victim’s access to independent financial resources?
• Availability of and access to legal aid?
• Likelihood of corruption impacting case outcome?
• Other costs such as transport, bribes, temporary closure of a business?
Security implications • Likelihood of conflict spill-over (intra- or inter-clan)?
• Exposure to greater vulnerability e.g., retaliatory attack, expulsion from IDP camp,
social exclusion?
• Access to safe public transportation and travel documents?
Other considerations • Presence of and access to medical facilities?
• Presence of and access to psycho-social assistance and/or women’s shelters?
• Access to humanitarian and/or material assistance?
• Access to education?
The complexity of the structures, conventions and forces influencing vulnerability, and their mutually
constituting nature, has important implications for access to justice programming:
• To the extent that gender-based discrimination and social exclusion is rooted in culture,
deeply entrenched norms and established power hierarchies, progress will often be
incremental and non-linear. Programming will need to set goals that are realistic,
pragmatic and, thus, modest in terms of protection outcomes and attitudinal changes.
Moreover, approaches should anticipate that ‘small wins’ will occur alongside negative
outcomes in terms of where and how disputes are resolved. This should not be cause for
discouragement. Such small wins can have disproportionately positive spill-over effects in
terms of norm diffusion; capacity development; identifying and empowering change agents;
and providing material for advocacy actions. In any case, plans to manage foreseeable
developments and regressions should be integrated into program development and
management.
• Gains in protection, inclusivity and empowerment need to be approached through a social
cohesion and conflict sensitivity lens. The structures and hierarchies giving rise to
gender stereotypes and marginalization also maintain stability; any shifts to the former have
the potential to spill over into conflict or create discord between or within groups, thus
creating opportunities for spoilers. This means that programming will need to develop and
apply risk assessment tools at both the individual and community levels. Again, this may lead
to varied outcomes, and the process of balancing individual justice against broader
vulnerability and conflict risk brings many ethical questions to the fore.
• Because those with the power to modify gender norms and social exclusion have much to lose
in terms of power consolidation and resource allocations, interventions promoting
gender equality, non-discrimination and enhanced participation have the
potential to cause harm and result in increased violence or a
consolidation of existing hierarchies. The importance of developing risk
assessments and decision-guidance tools is mentioned above. Equally important is the notion
of informed decision-making on the part of the rights holder. A key role of paralegals and
legal services providers will be to assist beneficiaries understand the rights and options
against their broader social, economic and security context. This includes an examination of
all potential scenarios and their implications for the individual, and persons related or
connected to them. In concert, the paralegal/legal services provider must also assess the
potential risks they and others, including contracted lawyers, judges, police, detention
workers, and/or medical or psycho-social workers, may face.
3
Methodology
This analysis relied upon three approaches. First, a desk review of academic, policy and country-
specific literature on customary justice, minority rights, gender and access to justice (bibliographic
database search, institutional database consultation and searching on specific websites), as well as
material produced by the project. A list of articles and texts reviewed appears in annex II. The search
focused on literature produced since 2009 in order to build upon research conducted in post-conflict
and transitional period. The focus was informed by the research questions included in the terms of
reference, as well as research sub-questions developed by the author on an iterative basis. The
knowledge generated from the literature review was synthesized and examined on a content basis.
Second, a (non-scientific) audit of the principal donors in the justice field was undertaken. These
donors were: USAID, DFID, Swiss Development Cooperation, GIZ, Dutch Aid, Sweden and the EU. In
addition, the largest operational agencies in the justice field were identified, again using a non-
scientific process: Norwegian Refugee Council, World Bank, UNDP, OHCHR, UNICEF, UNHCR, UN-
Women. For each of these entities, a review of their programming, policy documents and positional
statements regarding access to justice was undertaken. From this analysis, a set of investigation areas
were elaborated based on gaps in the knowledge base and specific points of learning relevant to the
project.
4
2. History and Analysis of
Somali Gender Relations and Social Order
Somalia’s socially complex and conflict-ridden history is pivotal to understanding the position of
marginalized groups, their specific vulnerabilities and opportunities for their enhancing protection.
To that end, this section discusses Somalia’s social order, the conflict, and current trends in brief
detail with an emphasis on women and other excluded groups.
Somalia is a small country spanning around 250,000 square miles, (approximately the size of
Sweden) with an estimated population of around 15 million, steeply concentrated towards youth. 9
Situated in the Horn of Africa, Somalia has dual sea access to the Gulf of Aden and Indian ocean, and
shares borders with Djibouti, Ethiopia and Kenya. Despite being predominately arid, Somalia’s
economy is heavily dependent on agriculture. Today, this sector accounts for an estimated 65% of
both Gross Domestic Product (GDP) and employment; 60-80% of the population are nomadic
pastoralists or agro-pastoralists tending goats, sheep, camel and cattle. Somalis also rely heavily on
remittances, and the economy is largely informal with small petty trading of low value goods. This,
coupled with near chronic conflict and instability since its independence in 1960, has resulted in
stagnating development and widespread poverty.
Somalis are almost exclusively Muslims structured into patrilineal clans. Clan ideology regulates all
aspects life — political, economic, security, institutional and social — and is the principal determinant
of safety, security, accountability, opportunity, access to services and protection. Two central tenets of
the clan operating system are patriarchy and social hierarchy, creating important implications for
women, girls and other socially marginalized groups.
Clans are composed of members who are linked together through a diya-paying (mag) group. These
groups — which may number hundreds up to several thousand — are linked together through up to
eight generations of male blood lines. The diya-paying group can be best understood as a security-
political alliance. Members are contractually bound to protect the interests of the group with
undivided loyalty, and in turn can rely upon the group for protection and to collectively take
responsibility for a member’s actions against another group. Clans co-exist in a clearly-defined socio-
political hierarchy. Majority clans enjoy greater numbers, wealth, and stronger negotiating power. 10
Minority clans, by contrast, suffer discrimination, enjoy less protection and have limited access to
resources.
Within any clan, a male’s alliances, opportunities and responsibilities are static. This is not the case
for women. Although clan identity is inherited from one’s father, a woman will likely enter a different
sub-clan or even clan upon marriage. 11 The implications are broad-reaching. First, it explains the
limitations on women’s inheritance; although under Islam and statutory law women are entitled to
inheritance, in practice, if they inherit at all, they will rarely inherit valuable assets such as land and
income-producing animals. It can also make investing in girls — for example in their education — a
perceived misuse of scarce resources, especially in times of poverty and insecurity. 12 Over and above
this — whether they are born into or marry into a clan — women are not considered principals; they
are not diya-paying members and thus do not usually share in diya receipts, even if they relate to a
violation against them. This somewhat explains why women are excluded from diya negotiations
when crimes occur. It also creates important vulnerabilities. While a woman must be protected by her
clan members by convention, as a non-diya paying member and one who cannot contribute to clan
security in times of conflict, women will always be less valuable and more dispensable.
A final noteworthy point is that when a female moves clans upon marriage, she will often retain close
ties to her birth clan and may even share bonds with her maternal relatives’ clans. This multifaceted
9Up to 45% of the population are thought to be under 15 years, however Somalia’s last official census took place in 1975 so
estimates are relied upon.
10 For a discussion on majority and minority clans, see ‘The Role of Women in Promoting Peace and Development: Proceedings
of the 10th Annual Conference on the Horn of Africa’ Sweden (2011), N Svensson (ed.) 112-115; ‘The Complexity of Sexual and
Gender-Based Violence: Insights from Mogadishu and South Central Somalia’ International Committee for the Development of
Peoples and International Alert, (2015) 17.
11 Majority clans prefer exogamous marriage i.e., marriage between couples from different clans or sub-clans.
12 ‘Implementation of the Beijing Platform for Action Bejing+20 Review: Somalia Country Report’ (2014) 36-37.
5
identity is an asset for women as well as an encumbrance. On the one hand, she can call on these
relationships for protection, support and influence in times of conflict. It can also imbue her with a
peacebuilding/negotiation role. If clans to which she has links to are in conflict, she has both
motivation and relationships that she can draw upon to negotiate a solution. 13 The flipside is that
women are understood as having divided loyalties and never considered a permanent clan member,
providing further rationale for their exclusion from clan negotiations, deliberations and decision-
making. The results cannot be understated. Non-participation in important discussions pertaining to
their safety, security and protection means that women’s views, needs and perspectives cannot
directly influence clan conventions or norm evolution. 14
This is not to say that clan functioning, social hierarchies and gender roles have not changed over time
or with circumstance. During the Barre political period (1969-1991), 15 broad reforms widened
women’s rights and protection — from equal rights in marriage, divorce and inheritance, to
opportunities for political participation and protection from SGBV. 16 While the reform agenda may
not have been fully realized, women were certainly better off than those in comparable African
contexts. Such reforms, however, would eventually prove to be a double-edged sword. A key objective
of the Barre administration was to reduce clan power; it sought to ban clan identity, curb the use of
customary law and limit social exclusion practices. One tool for achieving this was to empower
traditionally disenfranchised women as political pawns. As the state, clan leaders and religious leaders
jostled for power, women (and their empowerment) came to be seen as a symbol of this ‘divide and
conquer’ political era. 17
When the Barre government collapsed in 1991 the country descended into civil war, punctuated by
natural disasters such as drought and famine. 18 The clan system regained strength, along with norms
of discrimination, exclusion and inequality. Women and minority clans existed in a general state of
eroded protection. 19 The Islamic Courts Union established a system of courts, policing services and
prisons with a strict and conservative brand of shari’ah applied. The plural justice system
composed of xeer, secular law (in the few areas where the state was strong
enough to assert control) and shari’ah meant that the powerful had more and
better options to assert their strength over less powerful groups. 20 Moreover, the
gains made during the Barre period were reversed; exclusion and clan hierarchy re-emerged as the
determinative forces for protection, and women’s enfranchisement, in particular, was seen as a risk
that could not afford to be repeated.
A second implication of this conflict period was the use of sexual violence against women as a tool of
war, including leheyste-galmo, a form of sexual hostage-taking. 21 While SGBV and other
physical protection violations, such as child marriage, FGMC and domestic
violence, were already normative practices, the conflict arguably played a role
13 Ibid; F Musse and J Gardner ‘A Gender Profile of Somalia’ EU Mission Somalia (2013) 21-22; see further ‘The Role of Women
in Promoting Peace and Development: Proceedings of the 10th Annual Conference on the Horn of Africa’ Sweden (2011), N
Svensson (ed.) 233-234.
‘The Role of Women in Promoting Peace and Development: Proceedings of the 10th Annual Conference on the Horn of Africa’
14
Sweden (2011), N Svensson (ed.) 229.

15 Somalia’s first president Abdi Rashid Ali Shermarke was assassinated in 1969, opening up the rein of Mohamed Siad Barre.
16 see further Family Law (1975) Somalia. ‘The Role of Women in Promoting Peace and Development: Proceedings of the 10th
Annual Conference on the Horn of Africa’ Sweden (2011), N Svensson (ed.) 228; ‘The Complexity of Sexual and Gender-Based
Violence: Insights from Mogadishu and South Central Somalia’ International Committee for the Development of Peoples and
International Alert, (2015) 27-28.
17 ‘SSF II Gender Equality and Social Inclusion Strategy’, Somalia Stability Fund (2017) 37-38.
18 For example, in 1992 a drought killed up to 300,000.

19 ‘TheComplexity of Sexual and Gender-Based Violence: Insights from Mogadishu and South Central Somalia’ International
Committee for the Development of Peoples and International Alert, (2015) 18; ‘SSF II Gender Equality and Social Inclusion
Strategy’, Somalia Stability Fund (2017) 5.
20 1991 also saw Somaliland declare independence from Somalia, followed by Puntland and Jubaland in 1998.
21 Thepractice involved armed men raiding the area of an opposing clan to either kidnap women and young girls or occupy the
settlement and keep the women in captivity in their own homes; the victims were used as sexual slaves and to provide domestic
services. The practice was usually restricted to times of clan warfare, but gained in strength during the civil conflict. ‘The
Complexity of Sexual and Gender-Based Violence: Insights from Mogadishu and South Central Somalia’ International
6
in further normalizing sexual violence and was pivotal in the high incidence of
rape that continues in Somalia today. 22
A third implication was also gender-specific: the extent to which women were forced to assume male
roles and the implications this has had on gender identity and relations. The division of labor that had
previously existed shifted as women became principal breadwinners and took on tasks traditionally
reserved for men through economic necessity. Wealthier women in urban areas started to engage in
trade activities in the informal economy, including livestock trading, currency exchange and fuel sales,
while more marginalized and displaced women were employed as manual and household laborers.
Although this expanded women’s economic independence and opportunities, the patriarchal social
system remained fundamentally intact and women’s economic power did not translate into gains in
decision-making or political power. These shifting gender roles, and particularly the inability of men
to fulfil the normative roles assigned to them, i.e., breadwinners and providers/protectors of the
family unit, have also been presented as an explanation for increased rates of domestic violence. 23
A final consequence of the void in political control and security was the emergence of Islamic political
extremism. In 2006, the Islamic Courts Union took control of the south of the country, including the
capital Mogadishu, in one of the worst incidences of violence Somalia had yet experienced. 24 For
women, the curtailment of rights and interpretation of freedoms under Islam were unprecedented.
Although the occupation was short-lived, the conservative influence is still is observable.
Instability prevailed until 2012 when a new federal government was born within the framework
established by the Provisional Constitution and followed by the Somali New Deal and Compact (2014-
2016) and New Partnership for Somalia (2017). 25 Despite these trends, the position of women and
other excluded groups remains dire according to almost every development indicator. Somalia has a
gender inequality index of 0.773 — a score only surpassed by Yemen, Mali, Afghanistan and Papua
New Guinea. 26 Women suffer particularly severe exclusion in the areas of health, education and labor
market participation. 27 Women’s access to health services are limited, and Somalia’s maternal
mortality rates are among the highest in the world at 1,600 per 100,000 live births with only 9% of
births attended by a midwife. 28 FGMC is almost universal and is usually practiced in its most severe
form on girls between the ages of 4–11 years.
Somalia has one of the world’s lowest gross enrolment rates for primary school children; as of 2012,
only 42% of children attended school and of those only 36% were girls. 29 Drivers of low school
enrolment include generalized discrimination based on clan and gender, the nebulous position of
women within the clan unit (discussed earlier) and high rates of early marriage (45% of women aged
20–24 are married before the age of 18). 30
Poor education and literacy rates 31 coupled with low rights and opportunities around asset
accumulation and responsibilities divided by gender roles leave women with few formal employment
options. This is not to say that women do not work, however. Some estimates have women
22Ibid, p. 27-30.
23Ibid, p. 18; see further F Musse and J Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013)
60-62.
24 By 2007 most Islamists had fled the country, but some groups splintered and formed new entities including Al-Shabaab.
25 TheNew Deal Compact is an organizing framework for the delivery of assistance to Somalia in line with national priorities
and increasingly delivering through Somali institutions. The New Partnership for Somalia 2017 is structured around 4
development pillars: a) Humanitarian Assistance, b) Strengthening National Security, c) More Inclusive Stable Politics, and d)
Accelerating Economic Recovery.
26‘Somalia Human Development Report: Empowering Youth for Peace and Development’, UNDP (2012) 29. The GII reflects
women’s disadvantages in three dimensions—reproductive health, empowerment and economic activity. It shows the loss in
human development due to inequality between female and male achievements in these dimensions. It ranges from zero
(complete gender equality), to one (extreme gender inequality). ‘Gender in Somalia Brief’, UNDP, 2.
27 ‘Somalia
Human Development Report: Empowering Youth for Peace and Development’, UNDP (2012).
28Mortality rates largely a consequence of early marriage and thus early pregnancy, greater vulnerability to violence and
secondary health risks; ‘Implementation of the Beijing Platform for Action Bejing+20 Review: Somalia Country Report’ (2014)
19-20.
29 ‘Implementation of the Beijing Platform for Action Bejing+20 Review: Somalia Country Report’ 17. In primary schools, the
Gender Parity Index (GPI) is 0.9; in secondary school the GPI drops to 0.7. See further
www.unicef.org/somalia/education.html.
30 ‘Gender in Somalia Brief’, UNDP, 2.
31 The female literacy rate of around 26% in 2006 must be compared to 36% for men, and 31% overall.
7
contributing up to 60% of Gross National Product and up to 70% of family income. 32 But this
employment is predominately in the informal sector, in low wage positions (an average of US$3 per
day) and in menial roles that men will not assume, such as agriculture and domestic labor. 33 In such
roles there is little regulation or formal protection,, which leaves women highly vulnerable to
exploitation and abuse. 34 Women also have limited autonomy to alter their situation. With poor access
to and control over assets, little union representation, generalized discrimination and non-delegable
household responsibilities, they cannot obtain credit, and thus cannot enter the formal market or start
a business. 35 As such, it should not be surprising that women, especially those displaced and from
minority clans, are among the most politically, economically and socially disempowered group in
Somalia today. 36
These ends speak to a more pervasive problem of participation and representation. Despite the
introduction of a gender quota in the public sector in 2007, engagement in politics and governance
remains limited to men and majority clans. 37 Where women and minorities are positioned, these are
generally not in decision-making roles, which limits their ability to influence policy and funds
distribution. 38 Civil society organizations, although growing in number, still have limited power and
reach. 39 The result is a self-reinforcing cycle of disempowerment; with men and
powerful clans dominating the lucrative positions in the economy, controlling
credit markets and monopolizing (local and state) political processes , women,
IDPs and minorities have few economic opportunities, their productivity
remains limited and their ability to control their education and health
outcomes are poor. 40
Guiding Points
 Somalia is dominated by an informal and pastoral-based economy where women and
minority groups are currently active but discriminated against in terms of earnings,
occupational rank and occupational mobility. The risk associated with informality is that
rights abrogating practices are often hidden. Examples include the private nature of domestic
service and power differentials between employers and their very poor employees.
Approaches may need to take special measures to seek out and assist those most at risk of
violating labor practices, including women, children and displaced persons. However, while
labor market dynamics currently present a constraint, this can change rapidly in the context
of a post-conflict growth period. Employment and economic growth have a shielding
influence against conflict recidivism. As such, projects to stimulate the economy in sectors
where labor needs are greatest are likely to be at the top of most donor agendas. This will
create new opportunities for marginalized groups that they can use to augment their resource
32 ‘SSF II Gender Equality and Social Inclusion Strategy’, Somalia Stability Fund (2017) 6; M Beata Tungaraza ‘Women’s Human
Rights in Somaliland’ NAGAAD, Ministry of Justice Somaliland 7.

33 ‘Somalia Human Development Report: Empowering Youth for Peace and Development’, UNDP (2012); ‘Implementation of
the Beijing Platform for Action Bejing+20 Review: Somalia Country Report’ (2014) 29; ‘Gender in Somalia Brief’, UNDP, 3-4;
see further F Musse and J Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013) 45-6.
34 F Musse and J Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013) 14.
35‘Implementation of the Beijing Platform for Action Bejing+20 Review: Somalia Country Report’ (2014) 15, 29-30; ‘SSF II
Gender Equality and Social Inclusion Strategy’, Somalia Stability Fund (2017) 7; F Musse and J Gardener ‘A Gender Profile of
Somalia’ Developed for the EU Somalia Mission (2013) 14; ‘Gender in Somalia Brief’, UNDP, 2.
36 ‘The Complexity of Sexual and Gender-Based Violence: Insights from Mogadishu and South Central Somalia’ International
Committee for the Development of Peoples and International Alert, (2015) 18.
37 For further discussion on the gender quota see ‘Implementation of the Beijing Platform for Action Bejing+20 Review: Somalia
Country Report’ (2014) 31-32, ‘SSF II Gender Equality and Social Inclusion Strategy’, Somalia Stability Fund (2017) 6, 9; F
Musse and J Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013) 14, 25-28; ‘Gender in
Somalia Brief’, UNDP, 3, 6 and 9; ‘The Role of Women in Promoting Peace and Development: Proceedings of the 10th Annual
Conference on the Horn of Africa’ Sweden (2011), N Svensson (ed.) 103.
38 ‘SSF II Gender Equality and Social Inclusion Strategy’, Somalia Stability Fund (2017) 7.
39 ‘The Role of Women in Promoting Peace and Development: Proceedings of the 10th Annual Conference on the Horn of Africa’
Sweden (2011), N Svensson (ed.) 27, 231-232.
40 ‘Implementation of the Beijing Platform for Action Bejing+20 Review: Somalia Country Report’ (2014) 15; under the
Multidimensional Poverty Index (MPI) Somalia scores 0.47 out of 1, placing it 94th out of 104 countries (2010). Somalia has
been categorized as a least developed country since 1971 with approximately 43% of Somalis living below the poverty line, and
poverty being more concentrated in rural areas and among women.
8
holdings and thus their relative power. As this takes place, it is important to promote labor
rights.
 Somalis are almost exclusively Muslim and, although there is some competition around
preferred madhab (schools of jurisprudence), religion is not a divisive issue. Quite the
contrary, Islam has peremptory standing, as indicated in the FSG, Somaliland, and Puntland
Constitutions. As such, religion might be a tool to galvanize population groups and promote
unity around a given set of norms and ideals. A key entry point for enhancing the protection
of marginalized groups is the areas of practice where xeer and shari’ah conflict, such as
freedom in marriage, inheritance and prohibitions against rape and domestic violence.
Modalities for how progressive interpretations of shari’ah might be used to contest xeer or
promote adherence to statute should be explored.
 The clan system, its raison d’etre and modalities of functioning are core impediments to an
enhanced protection framework based on equality and individual rights. The historic and
entrenched nature of this system means that reform will be slow and with significant
resistance to change. A positive point is that the dominance of the clan system is inherently
related to security provision. The implication is that as the operational environment stabilizes,
the key logic propping up the clan system will weaken. At this point, those with vested
interests in maintaining the clan system (its leaders and those who benefit from associated
power, influence and resource control) may either find themselves with reduced influence or a
need to find new roles in a revised socio-political order. This presents a key opportunity to
promote a re-envisioning of practices that are inimical to women and other marginalized
groups, including the elimination of harmful cultural practices, enforcing inheritance rights,
participation in dispute resolution processes and assertion of state jurisdiction in cases
involving sexual violence.
 Chronic conflict has normalized violence and diluted historic xeer rules regulating protection
in the context of inter-clan warfare. Somalia already has, embedded in its history and
traditions, a framework for protecting society’s most vulnerable groups. These norms and
practices are important sources of guidance that should be harnessed for learning and
advocacy purposes. Furthermore, violence has become so entrenched across generations that
specific action needs to be taken targeting attitudinal norms. Such actions must be inclusive
of all groups, including both those most vulnerable to violence and those most likely to
perpetrate it. Particular attention needs to focus on youth who have grown up against a
backdrop of civil war and suffer disproportionately in terms of limited opportunity and role
displacement.
 After decades of civil war and a period of control by Islamic extremists, the situation in
Somalia is still instable. The risk of conflict recidivism is high, and the balancing of political
power is fragile. Peace maintenance and efforts to guard against extremist activity will be at
the fore of the government and donor agenda for years to come. Programming needs to be
cognoscente that these imperatives will likely trump access to justice, individualized justice
and the promotion of a more egalitarian society. To ameliorate this situation, a research
agenda should be developed that seeks to build evidence on the linkages between peace
maintenance, protection against extremism, justice, violence control and equality.
9
3. Marginalized and Excluded Groups
and the Violations Against Them
The following section identifies specific groups in Somali society that are discriminated against, face
protection risks or are otherwise excluded or marginalized either by virtue of their gender, clan
affiliation, race or other characteristics. It separately discusses the specific types of violations,
practices and crimes these groups are most vulnerable to. Inevitably, this results in some
intersectionality; specific risk typologies can overlap more than one group, and individuals can belong
to multiple marginalized groups simultaneously or over the course of their lives. For example, women,
as a gender group, are vulnerable to specific protection concerns. But women may also form part of
one or more separate marginalized groups — for example IDP women or IDP women belonging to
minority tribes. 41 This should not imply however, that all women face the same challenges; urban
women from wealthier clans can sometimes be above the law or exploit other women or minority
groups. 42 Vulnerability is also contextual and dynamic. Marriage, divorce, bereavement, aging and
displacement can create new risks for an individual or in some cases negate them. A final point is that
chronic conflict, weak governance and Somalia’s exposure to natural disasters means that no group or
individual is risk impervious; who is excluded or rights vulnerable can change quickly and
unexpectedly. The principal takeaway is that there is no single profile for exclusion or marginalization
in Somali society.
This means that pervasiveness of risk requires that compound vulnerability be at the fore of strategic
decision-making. In other words, in a context where so many people are exposed to rights violations,
multidimensional vulnerability is an important tool by which to identify those in the greatest need.
Beyond targeting, the multidimensional nature of vulnerability means that different groups, and also
individuals within groups, will have different needs. Women, for example, must be examined from a
perspective of, inter alia, age, marital status, clan affiliation, displacement status or geography (rural
versus urban) in order to fully understand and respond to their situation. Moreover, it means that
single groups cannot be assumed to speak with a unified voice. Within every group there are power
hierarchies, discrimination and exclusion.
Understanding risk as multidimensional allows for the crafting of pragmatic and sustainable
responses. Gender status and clan affiliation, for example, are static, whereas displacement and
youthfulness are time-bound conditions. This impacts the techniques and solutions that will be most
effective. When disadvantage and discrimination are rooted in permanent characteristics, solutions
need to focus on structural protections, attitudinal transformation and normative change. Contextual
vulnerability, by contrast, allows programmers to utilize quick impact responses alongside actions
designed to induce structural change.
Vulnerable and Marginalized Groups

Subgroups with
compound
Group Principal areas of vulnerability vulnerability
Women Women are vulnerable to multiple forms of SGBV, but especially rape and • Minority clan
intimate partner violence (IPV). members
Impunity and exclusion from participation in decision-making greatly limits • IDP women
women’s access to justice and reinforces their vulnerability to SGBV. • Female-
Headed
Women are exposed to housing, land and property violations, especially land- Households
grabbing and denials of inheritance. (FHH) 44
In Islamic militia-controlled areas women are routinely exposed to cruel,
inhuman and degrading forms of punishment. 43
41 See further, ‘SSF II Gender Equality and Social Inclusion Strategy’, Somalia Stability Fund (2017) 1, 4.
42 S Allen, H Idris and T Chopra, ‘Women’s Access to Justice and Security in Somalia’s Afmadow District: A Snapshot’, UN-
WOMEN Briefing Paper 1: 2016, 3
44 Estimates on the number of female-headed households vary, but reach as high as 12%, driven by the conflict and male
urbanization.
10
Subgroups with
compound
Minority Minorities compose up to 30% of the Somali population. They include the Bantu • Women
clans (Gosha, Shabelle and Boni), occupational caste groups (Gaboye, Tunla and Yibir), • IDPs
Oromo and Benadiri Swahili-speakers, the Maimai-speaking Digil/Mirifle or • Children
Rahanweyne, and religious minorities (Ashraf, Shekal and Christians). 45 Minority • Clan
clans hail predominately from South-Central Somalia, but have been displaced
to, and still remain in, IDP settlements in Mogadishu and urban centers in
Puntland and Somaliland. 46 Of these, the Bantu, Benadiri and the Digil Mirifle
are perhaps the most vulnerable from the perspectives of insecurity and sexual
violence. Because minorities are unable to negotiate fair outcomes, they are
highly vulnerable to rights violations from majority clans, including violence,
land expropriation 47 and denials of humanitarian aid; women, boys and girls are
highly vulnerable to SGBV.
Children Children, both boys and girls, are vulnerable to SGBV (including domestic rape • Minorities
i.e., rape perpetrated by a close relative or neighbor), trafficking, and child • IDPs
labor. 48 Girls are exposed to FGMC almost universally. Particularly in militia- • Girls
controlled areas, limited access to education for girls, forced marriage and early
marriage are common problems. Increasing rates of male urbanization, female-
headed households and dependence on women as breadwinners have
exacerbated vulnerability; with women away from the household, children have
less protection and are easier to target. For example, as girls take on new
household responsibilities such as collecting water and firewood, they are more
exposed to violence. 49
Youth Youth make up 57% of the Somali population, of which almost two-thirds are • Unemployed
unemployed. In the context of chronic conflict, insecurity, poverty and weak males
governance, such lack of opportunity leaves young people vulnerable to multiple • Youth IDPs
forms of exploitation including extremist group recruitment, trafficking and and minorities
forced prostitution. They are likewise vulnerable to coping strategies that have
secondary protection implications such as gang membership, drug abuse or
attempting ‘tahriib’, which exposes them to violence, kidnapping and/or rape. 50
IDPs As at 31 December 2017, 825,000 Somalis were internally displaced as a result of • Women
conflict, environmental hazard, and/or food and livelihood insecurity. 51 especially FHH
Displacement is largely an urban phenomenon, with most living in squatter • Girls
settlements in Mogadishu, or cities in Puntland (Bosasso) and Somaliland • Minorities
(Hargeysa). Insecure housing, coupled with poor access to safe drinking water • Elderly
and sanitation, and food insecurity, means that diarrhea, cholera, malaria and persons 57
malnutrition are endemic issues.52 Moreover, poverty forces the displaced to
partake in risky survival practices which expose them to SGBV, trafficking and
child labor. The vast majority of IDPs (between 70–80%) are women and
children, and many of these are from the minority Bantu, Bajuni and Rahanweyn
minorities. 53 Most importantly from a vulnerability perspective, because of their
displacement status, IDPs have lost their clan protection. 54 It is this merging of
vulnerability that makes IDPs perhaps more at risk of violence and exploitation
45Minorities are groups that exist outside of the clan system, including outcaste and occupational groups, and fishing and
trading communities. It can also include communities displaced from their lands by war, such as those from the Digil Mirifle
and/or those with limited physical representation such as the Isaq and Darod in Mogadishu.
46Also note the presence of small religious minority communities, such as the Ashraf and the Shekal (minorities within the
Islamic majority). See further https://minorityrights.org/country/somalia/.
47 Especially the Bantu in south Somalia who have been forced off their lands by Islamic militant groups and majority clans.
49 ‘Implementation of the Beijing Platform for Action Bejing+20 Review: Somalia Country Report’ (2014) 25, 37-38.
50 FMusse and J Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013) 210, 9-33.
51 This figure is taken from the Internal Displacement Monitoring Centre (see www.internal-
displacement.org/countries/somalia), however other estimates reach as high as 1.1 million (see

www.brookings.edu/research/internal-displacement-in-somalia/).
52 See www.reliefweb.int/report/somalia/background-information-idp-situation-somalia
53 ‘Gender in Somalia Brief’, UNDP, 2012. See further www.reliefweb.int/report/somalia/background-information-idp-
situation-somalia
57 ‘Somalia Gender-Based Violence Working Group Strategy’ (2014 – 2016), 5.
11
Subgroups with
compound
than any other group in Somali society. 55 Common forms of rights abrogation
include expropriation of humanitarian assistance by majority clans and officials;
sexual violence perpetrated by host community men and youth; forced
relocation; and the targeting of women and girls as they attend to household
duties such as water and fuel collection. 56
Specific Grievances
Sexual and Gender-Based Violence
Despite being broadly acknowledged, there is a dearth of comprehensive information on SGBV in
Somalia. 58 Existing data sets are unreliable, inconsistent and rarely disaggregated by sex or other
relevant categories such as age, urban-rural divide or clan affiliation. This is a product of multiple
forces, including insecurity, reticence on the part of communities to discuss intra-community
dynamics with ‘outsiders’ and fear, particularly in the cases of women and minorities, of retribution.
There are also strong social norms that dis-incentivize affected persons from discussing matters
considered private or sensitive; 59 sexual crimes against men and boys, for example, are almost
certainly more prevalent than case reporting indicates. Finally, there is an amount of ‘white noise’
around SGBV discussions, which can make it difficult to identify central issues or clear trends. In
South-Central Somalia, for example, officials strongly contest any increase in crimes of rape, and men
more generally deny that violence against women is as large a problem as the international
community suggests it to be. This sits uncomfortably against the many and geographically-broad
reports that victims face threats and intimidation around discussing or pursuing justice in crimes
committed against them. 60
With this caveat, it appears that SGBV manifests in the following forms: rape; sexual exploitation,
assault, abuse and harassment; harmful traditional practices including female genital mutilation and
cutting; IPV; physical violence; and discrimination. 61 As noted, rape and sexual abuse also affect men
and boys, with street children, IDP boys and those in detention seemingly most at risk. 62 Constraints
around data collection and cultural sensitivities concerning reporting make it difficult to establish how
endemic such rights violations are, nor whether some violations are more common than others. This
said, the weight of evidence seems to suggest that rape and sexual violence (against women and girls),
FGMC (against girls), physical assault (women, girls, and boys), and IPV (against women) are the
most common forms of violence. 63
Rape
It is almost impossible to make out clear geographic trends in relation to rape. Some data suggests
that this crime is more of an urban phenomenon, however it is almost certainly the case that rape is
more frequently reported in cities and peri-urban areas where there is better access to police, legal aid,
women’s NGOs and courts. Moreover, while it might be surmised that IDP areas are perhaps at
55 ‘Country operation profile – Somalia’, UNHCR (2013).

56 ‘The
Complexity of Sexual and Gender-Based Violence: Insights from Mogadishu and South Central Somalia’ International
Committee for the Development of Peoples and International Alert, (2015) 39-42; F Musse and J Gardener ‘A Gender Profile of
Somalia’ Developed for the EU Somalia Mission (2013) 10; ‘Implementation of the Beijing Platform for Action Bejing+20
Review: Somalia Country Report’ (2014) 23; Housing, Land and Property in Somalia: Persons of Concern in Somaliland and
South-Central Somalia’ Norwegian Refugee Council and LAW (2014) 28-9, 21-22.
58 Note that a Gender Based Violence Information Management System (GBVIMS) is maintained and used as a source of data;
‘Implementation of the Beijing Platform for Action Bejing+20 Review: Somalia Country Report’ (2014) 23-25.
59 See e.g., Ibid, pp. 23-25.
61 ‘Gender in Somalia Brief’, UNDP, 9; ‘Implementation of the Beijing Platform for Action Bejing+20 Review: Somalia Country
Report’ (2014) 23, 32-33.

62 F Musse and J Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013) 29-33.
63 ‘Somalia Gender-Based Violence Working Group Strategy 2014–2016’, 5; ‘Gender in Somalia Brief’, UNDP, 2.
12
greater risk and Islamic militia-controlled areas at slightly lesser risk, 64 it appears that the nature of
sexual violence is evolving in a way that is generally exposing more of the country. There are three
trends, however, that can be noted with more certainty. First, rape seems to primarily affect younger
women; one study found most survivors of sexual violence falling between the ages of 11–25 years. 65
Sexual violence against children, both girls and boys, is also widely reported. 66 Second, at least in
South-Central Somalia and IDP areas, perpetrators are often ‘uniformed’ i.e., security and law
enforcement officials, AMISOM, gang-members and/or freelance militia. 67 This is not a trend made
out as clearly in Puntland and Somaliland. 68 Third, rape is increasing in prevalence, becoming more
violent and taking on a more normalized form. 69 Some reports suggest a less polarized phenomenon;
the urban-rural and majority-minority divide is narrowing while the characteristics associated with
perpetrators, particularly age, is broadening. Particularly disturbing is the growing trend of multi-
perpetrator or gang rape, ‘date rape’ and the intrusion of such crimes into generally more peaceful
areas such as Somaliland. 70 To an extent, this is a youth phenomenon driven by frustrations
associated with unemployment, lack of opportunity and de-emancipation. Rape may be a reaction to a
girl or young woman’s rejection of sexual advances — a young man expressing his raganimo
(manhood). Young men are also increasingly making use of technology, for example by recording a
rape and then using the threat of social media exposure to secure a victim’s silence. 71 Alternatively,
rape may be a tool to facilitate marriage. For many young men, widespread poverty and
unemployment has made marriage — which requires a dowry payment — unattainable. Rape thus
provides a means of reducing the dowry requested and securing a family’s consent. 72 Controlling the
escalation of gang rape is particularly problematic insofar as it begets a lesser compensation payment;
gang rapes are treated as single offenses allowing the fine to be split, thereby making the transgression
‘less costly’ in the eyes of would-be perpetrators. 73 An even more distasteful abuse of the xeer system
is the trend towards group rape being perpetrated across clan lines. Where perpetrators are from
more than one clan, compensation payments are split further, or if the victim is part of one of the kin
groups, compensation may not even result in a net loss to the clan. 74
Forced Prostitution
While prostitution is scarcely discussed, largely invisible and often vehemently denied by authorities
and community leaders, anecdotal accounts suggests a survival sex trade is operational, especially in
IDP-hosting areas. 75 This sex trade is subject to complex and competing forces. In some areas, Islamic
norms operate to quell the practice or force it underground. In others, particularly cities, access to
technology and increased connectedness promote the trade by making it easier to offer sexual
services, coordinate client meetings and make payments under a veil of obscurity.
Intimate Partner Violence

IPV takes many forms, ranging from physical violence to verbal and psychological abuse, and appears
to principally affect women, girls and boys. 76 Drivers of IPV include violence normalization, post-
WOMEN Briefing Paper 1: 2016, 5.

65The report of the Crime Victimization Survey 2012 indicates that survivors are from the range of infancy to women of 45
years, with most aged 11-25 years; ‘Implementation of the Beijing Platform for Action Bejing+20 Review: Somalia Country
Report’ (2014) 23-25.
66 F Musse and J Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013).
67 ‘Implementation of the Beijing Platform for Action Bejing+20 Review: Somalia Country Report’ (2014) 23-25; ‘Gender in
Somalia Brief’, UNDP, 2.
68 ‘Somalia Gender-Based Violence Working Group Strategy 2014–2016’, 5.
72 Ibid
73 Ibid
74 F
Musse and J Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013).
‘The Complexity of Sexual and Gender-Based Violence: Insights from Mogadishu and South Central Somalia’ International
75
13
conflict male de-emancipation and misinterpretation of Islamic norms. 77 IPV also cannot be separated
from the deeply entrenched cultural devaluing of and discrimination against women. 78 Principal
challenges in this area include the hidden nature of IPV, its acceptance — among men and women —
and the (albeit incorrect) use of religious principles to justify practices.
Forced Marriage
Somali customary law outlines several traditional practices that subject women and girls to forced
marriage. These include the exchange of women in the context of peace deals, widow inheritance, 79
rape as a means of arranging marriage (usually when the bride-price is considered too high), and
dhabar-garaac, where a women or girl is abducted and abused until she marries the abductor. 80
Importantly, although it is in contravention of statutory law, such acts may not be considered crimes
under xeer. The result is that there is little protection from these acts, nor access to justice for women
and girl affected unless they can access the courts system.
Female Genital Mutilation and Cutting

FGMC affects an estimated 98% of the female Somali population, usually in the form of infibulation
(the most severe manifestation whereby external genitalia are removed and the vaginal opening sewn
closed with a small opening for urine and menstrual blood). 81 Importantly, despite increased
constitutional and legislative controls, 82 FGMC is not considered a form of SGBV in Somalia, but
instead a practice demanded by cultural norms and justified under some (albeit incorrect)
interpretations of Islamic jurisprudence. The issues stemming from FGMC are vast; apart from being
a human rights violation and pivotal in the subjugation of women and girls, those who undergo FGMC
risk life-threatening infections, child birth complications and other chronic medical conditions. 83
The Normalization of Sexual Violence in Somalia

The patriarchy and inequality embedded in the clan model, social exclusion and deeply entrenched
attitudes of discrimination, mean that Somali women have always been vulnerable to SGBV and
harmful cultural practices. Historically, however, rape was considered an inexcusable violation of
clan honor, and customary norms existed to protect women and children, especially during times of
conflict. The civil war irreparably changed this. The fragmentation of the state and its authority
coincided with a weakening of traditional norms, with the result that xeer conventions were
systematically violated. Rape became a tool of political violence, along with the targeting of women
and girls for abduction, forced marriage and sexual slavery. Documented as early as the 1976
Somalia-Ethiopia conflict, these tactics were adopted in almost every subsequent uprising. They
were also used as a means of consolidating economic power; militias from majority clans used
physical and sexual violence to loot, displace and confiscate land and property from minorities. 84 In
both cases, the weakened state of the xeer system and absence of state institutions meant that
victims and their clans had little opportunity for redress; crimes thus went unaddressed and
impunity spawned their recurrence. While it appears counterintuitive, the easing of hostilities and
expansion of pockets of security seem to have been accompanied by an increase, as opposed to an
abating, of sexual violence. In explaining this, four factors seem to be particularly relevant. First,
the discrimination, exclusion and inequality that exposed women and girls to sexual violence in the
first place, remained even after the conflict ceased. Second, impunity, coupled with entire
77 Kaht addiction may be a factor in some cases; ‘SSF II Gender Equality and Social Inclusion Strategy’, Somalia Stability Fund
(2017) 5.
78 The Complexity of Sexual and Gender-Based Violence: Insights from Mogadishu and South Central Somalia’ International
Committee for the Development of Peoples and International Alert, (2015) 36-37; ‘Implementation of the Beijing Platform for
Action Bejing+20 Review: Somalia Country Report’ (2014) 23-25.
80 The latter is a practice that had largely disappeared but was revived during the war, when an increased number of women
found themselves without protection; ‘The Complexity of Sexual and Gender-Based Violence: Insights from Mogadishu and
South Central Somalia’ International Committee for the Development of Peoples and International Alert, (2015) 32-33.
81 ‘Gender Equality and Women’s Empowerment Strategy’, UNDP, 5.
82 Art 15.4 FGS: “Circumcision of girls is a cruel and degrading customary practice, and is tantamount to torture. The
circumcision of girls is prohibited”. In Puntland, Type III infibulation is prohibited by law, however other forms of circumcision
are permitted; see F Musse and J Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013).
83 ‘Gender and Conflict Note: Somalia’, LOGICA, 2013, 6.
84‘The Complexity of Sexual and Gender-Based Violence: Insights from Mogadishu and South Central Somalia’ International
Committee for the Development of Peoples and International Alert, (2015), p. 8.
14
generations witnessing only violence, was internalized in attitudes and behaviors. Third, cultural
norms meant that sexual violence was not included in peacebuilding and reconciliation discussions
at the clan or national level. Fourth, decades of conflict created new deficits such as illiteracy,
family breakdown and unemployment. 85 Among these, the feminization of poverty and the
opportunities this has created for violations seem highly relevant. With so many households
dependent on women’s labor, children and other dependents have become easy targets. As noted
above, there are abundant accounts of vulnerable households with working mothers falling victim
to assault. In short, what has taken place can be understood as a normalization of
sexual violence: a prolonged period of violence against women for individual,
political or economic gain meant that the phenomenon was carried over into more
peaceful times, where it was propped up by entrenched inequality and discrimination
and reinforced by impunity and lack of access to justice for survivors. 86
Early Marriage
Early marriage — often from around the age of 13 or 14 — is supported under xeer and shari’ah and is
tolerated under the constitutions of each state. 87 Early marriage increased steadily during the conflict
period, particularly in South-Central Somalia and even more in militia-controlled areas. For some
families, early marriage is a security-related decision, with a union perceived as protecting a child
from rape or other forms of sexual violence. This is especially the case for minority clans and IDPs.
For others, the decision is driven by poverty. Early marriage has also become more dangerous; there
are anecdotal reports that customary due diligence around a prospective husband and his ability to
pay dowry is no longer commonplace. Another recent phenomenon is marriage as a tool to sanction
rape; during the summer, members of the Somali diaspora are said to visit SCS and marry a girl only
to divorce her upon their return. Early marriage comes with a host of protection implications,
including sexual violence, health risks, and reduced participation in education (early marriage is the
principal factor explaining girls’ disproportionate lack of schooling).
Denial of Humanitarian Assistance

Those eligible to receive humanitarian assistance, especially IDP populations and those affected by
drought and/or food insecurity, frequently have their access controlled by officials, majority clans or
more powerful persons within the beneficiary population group. Such ‘gatekeepers’ extort bribes or
claim taxes, which may be financial, material or sexual. They may also restrict movement or deny
IDPs access to areas where humanitarian goods and services are accessible. 88
Land Disputes
Underpinning land and property disputes is a complex web of xeer, shari’ah, and statutory law, an
examination of which is beyond the scope of this analysis. For current purposes, it is sufficient to
highlight four categories of land and property disputes impacting marginalized groups:
• Disputes between IDPs residing in a host community and a returnee owner, or an owner who is
renting land to an IDP. IDPs are highly vulnerable in such cases and have little avenue for
recourse since they have no or weak clan protection and because land use agreements are usually
informal. 89
• In urban areas, land grabbing and forced evictions are increasingly common, usually perpetrated
by corporations, businesspeople or diaspora motivated by the climbing property values that have
85 Ibid, p. 30.
86 Ibid, pp. 39-42.
87 E.g.,
Art 28.5 (FGS Provisional Constitution) requires consent of both marrying parties who have reached the ‘age of
maturity’. Article 29.8, defines a ‘child’ as a person under 18 years of age, leaving some room for interpretation regarding what
constitutes ‘maturity’. In practice, a girl is usually understood to have reached maturity upon menstruation or other physical
signals of development towards adulthood. See further ‘The Complexity of Sexual and Gender-Based Violence: Insights from
Mogadishu and South Central Somalia’ International Committee for the Development of Peoples and International Alert,
(2015) 35.
88 ‘Housing, Land and Property in Somalia: Persons of Concern in Somaliland and South-Central Somalia’ Norwegian Refugee
Council and LAW (2014) 36

89 Ibid, pp. 16-18; F Musse and J Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013).
15
accompanied renewed stability. This phenomenon is complicated by the ease at which forged
documentation and counterfeit title documents can be obtained, especially in South-Central
Somalia. Minorities and FHHs are most at risk; instigators often recruit majority clan members to
threaten bona fide owners, witnesses or neighbors. 90
• In rural areas, chronic conflict and institutional weakness has eroded customary conventions
relating to land use and ownership. This has opened a gateway for majority clans to claim
customary ownership over land that is not theirs as a means of augmenting their powerbase,
expanding their access to natural resources or to position themselves for future bargaining with
neighboring clans. 91
• The aforementioned weakening of xeer conventions has also impacted women’s land and property
rights. Although the rights of women to inherit, own and transfer property are enshrined within
the various constitutions, 92 as well as in shari’ah, women have always faced difficulty realizing
and enforcing such rights at the community level. 93 It is important to highlight that this is rooted
in the linkages between a clan’s strength and its wealth, including its property holdings. As
women may marry outside of their own group (or be traded as compensation), it is considered
contrary to clan interests to permit them to own or control property. Various tools have evolved to
achieve this, the most common being tanazul, whereby women are pressured into renouncing
their inheritance rights to male relatives, usually her husband, brother(s) or son(s). Other tools
include denials of support by male relatives to represent them at xeer 94 and widow inheritance. 95
But while clan functioning sits at odds with women’s property ownership, xeer often outlined and
protected women’s use and access rights to land. However, as xeer conventions have weakened,
women have become more exposed to land grabbing, expulsion and livelihoods denials.
Child Labor and Trafficking

In Somali culture, girls and boys are expected to take part in household chores from around the age of
five years, especially in rural areas. The distribution of such tasks is highly gendered and the burden
skewed towards girls. Boys are usually responsible for maintaining income-earning and food-
producing animals such as cattle and goats, while girls attend more to cooking, cleaning and resource
gathering responsibilities. Particularly in contexts of displacement, girls are exposed to sexual
violence when such tasks require that they leave the protection of the home; when resources become
scarce it can also contribute to withdrawal from education. 96 In situations of extreme poverty, girls
may work in domestic roles or engage in survival sex. Importantly, poverty-driven child labor is not
generally considered to be a violation of children’s rights. 97 Finally, in addition to increases in child
begging, there is some evidence that children are forcibly recruited within (and even outside of)
Somalia and used as labor in agriculture, livestock herding, construction, sexual servitude, domestic
90 Housing, Land and Property in Somalia: Persons of Concern in Somaliland and South-Central Somalia’ Norwegian Refugee
Council and LAW (2014) 34-36.

91 “Conflicts within rural areas must be understood with reference to the traditional Somali concepts of deegaan and the
guri/galti relationship. Deegaan refers to traditional ownership over land. The guri/galti dynamic refers to the relationship
between the settled residents (guri) and the ‘outsiders’ (galti). Powerful clans often claim deegaan over land that was not
originally theirs for the purpose of expanding their power base and to gain a better position for possible future bargaining with
other clans. Historically, the guri would grant access to and use of land by galti conditional on the latter’s deferral to local
customs and authorities. Before 1991, rural dwellers tended to be members of minority clans, who lacked the political clout to
eke out an existence in the urban centres. The mass displacement of the last two decades, however, brought powerful clans into
rural areas. These powerful groups now usually ignore the established rules of the guri/galti relationship, grabbing land and
extorting food and services from the settled population. Where these groups claimed to have deegan over large sections of land,
it is extremely difficult for the politically and economically weaker minorities, including POCs, to object. They are generally
either be displaced or absorbed into the clan now controlling the area” Housing, Land and Property in Somalia: Persons of
Concern in Somaliland and South-Central Somalia’ Norwegian Refugee Council and LAW (2014) 34-36.
92 E.g., Somaliland Constitution, Art 36 (3) “Women have the right to own, manage, oversee, trade in, or pass on property in
accordance with the law”.

93Widows, for example, rarely inherit land under customary norms and are often deprived of access to their husband’s land;
especially if they are childless land is vested in trusteeship with uncles and other male relatives and inherited by children when
they become of age; ‘Gender in Somalia Brief’, UNDP, 5.
94 Functionally, in order to inherit a woman needs to have the support of an extended adult male relative to represent her at
xeer.
95 F Musse and J Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013). If a widow refuses wife
inheritance (dumal) she can lose her claim to land.

16
service and commercial sexual exploitation. 98 In such cases, police lack capacity to properly
investigate cases and forced servitude/trafficking is often conflated with migration.
Forced Recruitment
While there is little hard data, forced recruitment is a tool used by Islamic militant groups, the Somali
National Army (SNA) and allied militias, Ahlu Sunna Wal Jama’a (ASWJ) militia, and clan militia.
While the recruitment of men and boys is far more common, women and girls are reportedly used to
transport weapons or instructions, as nurses and cooks, to gather intelligence data, and to mobilize
recruits and raise funds. There are also reports of women participating in active conflict. 99 Little is
known about the abuses that forced recruits become exposed to once they formed part of a group,
however if more generalized knowledge around the workings of groups such as Al Shabab is applied,
they were likely exposed to violence, denial of education and, in the case of women and girls, sexual
violence and forced marriage.
Migration
While not a rights violation per se, the phenomenon of tahriib, or illegal migration by young people,
exposes them to dangerous situations that in turn create vulnerability to violations and abuse. Mainly
young men, but also some young women, pay traffickers to reach the West (usually via Ethiopia,
Sudan and Libya) to find employment or pursue higher education. While on tahriib, youth are at risk
of abduction, forced prostitution, forced marriage, organ harvesting, and death. Tahriib also has
consequences for families and communities; a common situation is for traffickers or kidnappers to
move a person out of the country and then demand a ransom for their release. 100
Guiding Points
 Even within a marginalized group, individuals are exposed to varying levels of
disempowerment and risk. From a programming perspective, the implications are twofold.
First, group membership should not be the only, nor even principal, lens through which to
gauge vulnerability. Instead, individual vulnerability profiles need to take into account both
the risks associated with being a member of a certain group or demographic (including a
person’s clan and ethnic identity, gender, wealth, education, age and marital status), as well as
their exposure to certain typologies of violence. Second, care must be taken when gleaning
information from group representatives. Those who are easiest to access and most likely to
present as group spokespersons are also likely to enjoy relative power and influence within
the group. The upshot is that while it will be pragmatic to use ‘representative voices’ when
conducting research and needs assessments, the information gleaned must be verified
through, for example, randomized data collection, and can never substitute for individualized
risk assessments.
 Vulnerability and risk exposure is dynamic and cannot be gauged or evaluated exhaustively at
any given moment in time. For example, divorce, the death of a spouse or parent and
displacement each leave women at high risk of land grabbing or inheritance denials. When
working with vulnerable populations, a system should be in place that assesses both
immediate risk and exposure to potential future risk, as well as systems to monitor
vulnerability, such as linking risk assessments to key life events.
 Some rights violations are not recognized as such under the current xeer norms; examples
include forced marriage, denial of education, denial of inheritance, IPV and FGMC. Such
normative belief is often held by both victims and perpetrators. This adds an additional layer
of complication to securing justice for rights-holders and promoting access to the courts.
Programming should not assume that a clear conception what acts constitute crimes is
universally or even broadly held. In certain cases, efforts to promote access to justice must be
preceded by advocacy and information campaigns aimed at attitudinal change. Where norms
98 There is some limited evidence that children are trafficked to Tanzania to work in prostitution rings; ‘Implementation of the
Beijing Platform for Action Bejing+20 Review: Somalia Country Report’ (2014) 37-38. See further
https://www.state.gov/j/tip/rls/tiprpt/countries/2018/282747.htm
99 ‘Implementation of the Beijing Platform for Action Bejing+20 Review: Somalia Country Report’ (2014) 37-38; F Musse and J
Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013) 29-33.
See generally, N Ali ‘Going on Tahriib: The causes and consequences of Somali youth migration to Europe’ Rift Valley
100
Research Institute Research Paper 5 (2016).
17
are deeply entrenched, drawing attention to incompatibilities between rights-abrogating
practices and provisions in shari’ah may be more effective than sensitizing populations
around new laws.
 Despite the strengthened statutory framework, areas remain where misinterpretation and
flexibility create vulnerability for rights holders. A key example is that the legal age of
marriage is based on maturity. Other ‘grey’ areas include where there may be perceived
inconsistencies between legal provisions and shari’ah jurisprudence. Such deficit areas should
be identified and interventions launched to promote the introduction of clear guidelines or
reform.
 Lessons should be drawn from community-led initiatives that have been effective in stemming
harmful practices. Examples include collective community interventions by religious leaders,
elders and policy-makers to dissuade youth from entering into piracy, and religious leaders
who have campaigned against FGMC.
 Promoting access to land rights for all groups who are vulnerable to land-grabbing or
inheritance denials should be prioritized in access to justice interventions. First, such
practices are prohibited under both statute and shari’ah, providing a solid foundation from
which to promote change. Second, access to land (or other assets) is synergistic insofar as it
augments individual agency and empowerment and can provide a bridge to realizing other
rights, such as to livelihoods.
18
4. Access to Justice in Somalia
The Somali Courts System
Although there is a high degree of variation, the formal justice and policing systems can be broadly
characterized as insufficiently resourced and compromised by a shortage of skilled and experienced
legal professionals. Despite significant legislative reform, gaps and deficits remain, as do
incompatibilities between different bodies of law. In towns and cities, resource shortages mean that
courts and police stations lack basic necessities, such as physical structures, vehicles, legal texts and
guidelines, security personnel, as well as technical resources such as evidence gathering and
preservation tools, recording equipment, translation facilities etc. At all levels, professionals lack
knowledge of and experience in applying the relevant legal framework, especially newly introduced
acts and guidelines, and on how incompatibilities should be reconciled. This is compounded by
institutional issues such as low (and non-payment of) salaries, which has driven widespread
corruption. 101 The result is a system that is unpredictable and flexible in ways that make it difficult for
vulnerable groups to obtain an outcome that is rule-based and protective. Against this backdrop, six
major constraints, many of which overlap and operate in a reinforcing manner, can be highlighted as
impeding marginalized groups from accessing the formal justice system.
• Access: The penetration of the public sector is geographically limited; in most rural areas, there
are no functioning policing system or courts. The result is that those looking to assert or uphold
their rights need to travel, often for long distances, to access the state system — largely excluding
those lacking clan/family support, information or financial resources. 102
• Awareness: Persons from rural areas, and women in particular, are often illiterate and lacking
in basic rights education. The vast majority are unaware of how to access the formal system or
legal assistance such as legal aid or legal counselling. IDPs suffer the same constraints, however
their ability to connect with clan members who might be more informed or rights-savvy, has often
been lost through the displacement process. Perhaps most problematic, however, is the weak
understanding of rights violations in local normative systems; physical and sexual violence,
especially when this takes place within the home or larger family circle, forced relinquishment of
property rights, FGMC, and violence against children, are broadly not understood to be violations
of individual legal rights.
• Cost: For those who can access to the formal system, the costs associated with transport, case
filing and representation, can be prohibitive. Complainants are also often compelled to pay
indirect costs (bribes). While this appears to occur at both the courts and police, it is important to
highlight that xeer fora are not free from corruption; moreover, there is some anecdotal evidence
that state actors may be less likely to ask for a bribe than community figures. Cost inhibitors
particularly impact women and IDPs who have reduced access to resources or ability to negotiate,
and while there is some support is available through legal aid providers, lack of awareness often
prevents victims connecting to service providers. 103
• Navigability: Once inside the system, the disjointed nature of the courts system can be difficult
to navigate and intimidating for inexperienced users. Even the generalized workings of the system
— such as requiring a complainant to speak in an official or a semi-public forum — creates tension
with basic social norms for women and minorities. These difficulties only escalate if a case
involves a sensitive issue such as sexual violence or the complainant lacks the support of their
clan. More generally, despite efforts to increase representativeness and transparency within the
system, it remains male-dominated, and its operation driven power differentials, generalized
discrimination, and networks of business and political interests. 104
• Legal protection framework: In terms of the applicable law, the new Constitutions and
specific legislation provide a strong framework for legal equality and the protection of women and
101 ‘Strengthening the Quality and Scope of Justice Provision and Policing in Somaliland’ Faculty of Law, the University of
Hargeisa, Somaliland-UNDP (2012) 4-5.

102 ‘Study on Women’s Access to Justice and Security in Somalia’, Katuni Consult-UN Women (2017), 7, 9; S Allen, H Idris and
T Chopra, ‘Women’s Access to Justice and Security in Somalia’s Afmadow District: A Snapshot’, UN-WOMEN Briefing Paper 1:
2016, 3.
103 Ibid.
104 S Allen, H Idris, and T Chopra, ‘Women’s Access to Justice and Security in Somalia’s Afmadow District: A Snapshot’, UN-
19
minority groups. However, the elevation of shari’ah across all three constitutions, while not
necessarily a bar to the realization of such rights, has complex implications in terms of case
adjudication given the low levels of legal and religious education held by judges.
Puntland
FGS Provisional Constitution Somaliland Constitution Constitution
Art 2.3: No law which is not compliant with the general Art 5.1: Islam is the religion Art 3.3: The political
principles and objectives of shari’ah can be enacted. of the Somaliland state, and system of Puntland
the promotion of any State is based on the
religion in the territory of guiding principles of:
Somaliland, other than (a) Islamic Sharia
Islam, is prohibited.
Art 3.1 C: The Constitution of the Federal Republic of Art 5.2: The laws of the Art 9.3: The laws and
Somalia is based on the foundations of the Holy Quran nation shall be grounded on culture of the people
and the Sunna of our prophet Mohamed (PBUH) and and shall not be contrary to shall be based on the
protects the higher objectives of shari’ah and social Islamic Sharia. Islamic religion.
justice.
Art 4.1: After the shari’ah, the Constitution of the Federal Art 5.3: The state shall Art 9.4: Any law and
Republic of Somalia is the supreme law of the country. It promote religious tenets any culture that
binds the government and guides policy initiatives and (religious affairs) and shall contravenes Islam
decisions in all sections of government. fulfil Sharia principles and shall be prohibited
discourage immoral acts and
reprehensible behavior.
Art 40.1: When interpreting the rights set out in this Art 19.3: All personal
Chapter, a court shall take an approach that seeks to liberties shall not in
achieve the purposes of the rights and the values that any way contravene
underlie them. the Islamic Sharia,
Art 40.2 In interpreting these rights, the court may by-laws, ethics, the
consider the shari’ah international law, and decisions of stability of the
courts in other countries, though it is not bound to follow country or the rights
these decisions. of another person.
Art 40.4: The recognition of the fundamental rights set
out in this Chapter does not deny the existence of any
other rights that are recognized or conferred by shari’ah,
or by customary law or legislation to the extent that they
are consistent with the shari’ah and the Constitution.
Fully understanding these implications requires a more sophisticated explanation of shari’ah-based

systems. Islam does not comprise a specific set of laws. Instead, it offers general guidelines concerning
duties and legal and moral obligations, which collectively fall under the definition of shari’ah. 105 From
a practical standpoint, shari’ah most clearly applies to family, personal status, civil and criminal
matters, and indeed in most Islamic jurisdictions, separate courts have been created for this along
with regulating legislation. 106 In Somalia, however, state-level district, regional and appellant courts
all apply what is commonly understood to be ‘shari’ah’I alongside statutory law (both new and that
adopted during the post-colonial period). As shari’ah has not been codified, Somali judges rely on the
Qur’an. Importantly, the Qur’an is not a legal text. In practice, judges need to apply fiqh — the science
of deducing laws from the Holy texts — which is traditionally done using three sets of legal tools:
Sunnah, 107 Ijma’ 108 and Qiyas. 109 How jurists apply their tools depends on the madhhab, or school of
105 J Schacht, An Introduction to Islamic Law (Oxford University Press 1982) 10-11; M Bello, “Keynote Address” in A M Yakubu,
A M Kani, M I Junaid (eds) Understanding Shariah in Nigeria (Spectrum Books 2001) 7-14.
106 Most Islamic majority countries practicalize this by creating (separate) courts for such domains which apply codified
shari’ah. Areas such as commercial and labour law are regulated through secular legal mechanisms.
Sunnah refers to the acts and sayings of the Prophet, and everything that he approved The Quran takes precedence over
107
Sunnah, and can be used for guidance only where the Quran is not sufficient. Hadith is a record of an act or saying of the
Prophet written after his death (Sunnah is an example or law that is deduced from the hadith). J Hussain, Islam: Its Law and
Society Federation Press 2nd Ed (2004) 28-9, 32. See also, generally, MB Hooker, Indonesian Islam: Social Change Through
Contemporary Fatawa, Allen & Unwin (2003).
108 Ijma’ (literally ‘to agree upon something’), is the unanimous agreement of the mujtahidun of the Muslim community (those
who practice ijtihad), following the Prophet’s death.
109 Qiyas is the application of a ruling to a new case on the basis that the effective cause was common to both. Qiyas may only be
used where the Qur’an, Sunna or ijma’ cannot assist. Another important tool is fatwa. A Fatwa is a legal ruling given by a
recognized religious scholar in answer to a question of religious importance. Fatwa must be based on the religious sources of
20
jurisprudence ascribed to. 110 Most Somalis follow the shafi’i school, 111 although some judges follow
other madhhab, including those educated in Sudan, Egypt and Saudi Arabia, while others are heavily
influenced by Salafism. 112 The main issue is that the capacity of judges to apply
shari’ah in a scholarly and authoritative manner, alongside constitutions and
other legislation, 113 is very limited. Most judges have only received religious schooling and
they are not required to possess a law degree; indeed, according to a World Bank study, as of 2013,
almost half of the judges in Mogadishu identified did not hold a law degree, and only some had
experience practicing shari’ah. 114
The outcome is that judges seem to apply a mélange comprising their knowledge of religion, xeer,
statute, and other influences, culminating in a non-codified body of ‘common knowledge’. The
influence of xeer varies between cases and judges but is particularly contingent on the strength of the
disputing parties’ clans (discussed further below). In cases where this influence is high or the judge
feels that a customary solution will be more impactful and sustainable, the court may pronounce an
outcome that is undistinguishable from what would be delivered under xeer. 115 The takeaway is that
courtroom justice is unpredictable and there can be no assumption that a law-based decision will be
rendered. At minimum, the combination of low capacity, the elevation of shari’ah in the constitutions
and norms that regard legislation as cursory or advisory, mean that the protections offered in
statutory law are likely to be one of a number of influences on case adjudication and a weak influence
at that.
Technical Equipment
A further challenge to upholding the rights guaranteed in the applicable legal frameworks is the
absence of technical expertise and equipment to deal with the types of cases that impact the most
vulnerable, from questioning through to evidence collection and case adjudication. Where systems or
procedures are available, such as the use of screens to protect privacy, closed courtrooms or court
advocacy services, they are not well-utilized. There are few medical facilities able to carry out medical
examinations of SGBV survivors, and professional DNA processing and evidence storage is far from
universal. 116 Finally, there has been little sustained or comprehensive training of judges, court
personnel and police or how to adjudicate cases involving sexual violence, nor are there adequate
numbers of female police, women-staffed police help desks or specialist SGBV prosecuting units.
Where there are specifically-trained personnel, they are not well aligned or coordinated to work
the Quran or authenticated hadith Fatwa may also draw on legal inferences and extractions made by recognized scholars
(mujtahid) through their ijtihad (personal reasoning based on the Quran and the Sunnah) in the event that the sources are not
clear on the matter or where there is no available text.
110 Kh Husein Muhammad, Faqihuddin Abdul Kodir, Lies Marcoes Natsir, Marzuki Wahid, Dawrah Fiqh Concerning Women:
Manual for a Course on Islam and Gender 210 (Fahmina Institute 2006). These schools developed as a consequence of ijtihad
and jurists’ different opinions (ikhtilaf), however they share the same principles with respect to fiqh discourse.
111 Shaf’i is generally known for being more tolerant of ideological differences. There are five major schools of law in Islam —
hanafi, maliki, hanbali, shafi’i (all Sunni Schools) and the Shi’a school. Muhammad ibn Idris al Shaf’i, founder of the third
school, formulated the legal theory that Shari’a is based on four principles: the holy Qur’an and Sunna of the Prophet (as
primary sources), and the secondary sources of ijma’ (consensus of opinion) and qiyas (analogical deduction). An important
distinguishing characteristic of the Shafi school is that ijma’ (consensus) overrules a hadith narrated by a single authority,
however, where a hadith is deemed authentic for multiple generations, it becomes conclusive. According to Shafi’, consensus
must derive from the entire Muslim community, whereas for Abu Hanifa and Malik ijma’ is the consensus of jurists. The Shaf’i
school is also followed in Yemen, and by some groups in Jordan, Palestine, Syria, Lebanon and Egypt.
112 The key opposition to a shafi’i jurisprudential system comes from those who ascribe to Salafism, including several influential
judges. Salafism is not one of the jurisprudential schools; it is a strict approach to shari’ah that advocates a resurrection of the
origins of Islam through a literal interpretation of the Qur’an and Sunnah. Traditionalist salafis see themselves as a separate
madhhab with their own beliefs and laws, although others consider themselves Sunni, and are influenced by one of the schools
of Sunni fiqh; the al-Shabaab-backed shari’a courts, for example, appear to follow a strict interpretation of the hanbali
madhhab.
113 ‘Legal Aid Providers Supporting Survivors of Gender Based Violence in Somalia’ UNDP, LAW, UNFPA (2014) 18.
114 Between 1991-2001 universities essentially ceased to function, and while there are at least two universities offering shari’ah
course, little is known about their quality or teaching pedagogies. See ‘Understanding Potential Development of the Justice
System in Somalia and Opportunities for Promoting Rule of Law & State and Peace Building Informed by Baseline Analysis of
Formal Regional Criminal Courts in Urban Somalia’ Coffey (2017).
Committee for the Development of Peoples and International Alert, (2015) 39-42; S Allen, H Idris and T Chopra, ‘Women’s
Access to Justice and Security in Somalia’s Afmadow District: A Snapshot’, UN-WOMEN Briefing Paper 1: 2016, 7.
21
strategically and in a case management framework with legal aid providers, medical personnel and
psycho-social support services.
Power Asymmetries
The final and perhaps most problematic impediment to accessing justice through the courts is the
relative weakness of the justice sector vis-à-vis the majority clans. Clan elders and families
routinely lobby to have cases dismissed, an alleged perpetrator released or for
the matter to be adjudicated at the community-level. 117 This especially pertains to
matters that have the potential to interrupt clan unity, inter-clan security or are deemed to be internal
matters; these might include sexual violence, IPV, murder, serious assault or youth violence. 118 This
disconnect is widely acknowledged; cases that have been transferred to clans with judge approval or
customary agreements upheld with the acquiescence of high-level stakeholders have been widely
publicized. Many judges are reportedly loath to take on cases involving sexual violence or powerful
perpetrators as they fear push back from powerful elders or even physical violence against them. 119
This should not imply that the justice system exists at the behest of, or in conflict with, the customary
system. Clans may bring cases to the court that cannot be resolved at a local level or that involve
multiple clans (although even here, clan leaders may influence decision-making, sometimes with
courts acting more as a mediator than an adjudicator). Other grievances are broadly accepted as a
‘justice’ issues to be dealt with by courts, such as commercial matters. Sometimes clan elders will
perceive a complainant as undeserving of the clan adjudication system; a common example seems to
be independent business women in contractual disputes or who have been exposed to violence. 120
Synthesis of These Deficits
The challenge of prosecuting sexual violence cases at court

The power asymmetries between the clan and state system can be seen most clearly in the
adjudication of sexual violence cases. While new legislation makes clear that sexual offences are to
be dealt with severely and by formal law enforcement, case outcomes are difficult to secure. Where
clan elders insist that a matter be returned for local adjudication, judges often find this hard to
resist. But even where this is not the case, some judges are unaware of the law in place, while
others feel constitutionally empowered to administer a finding in line with their interpretation of
Islamic jurisprudence. Sometimes this outcome will not differ significantly than that which would
be administered at the xeer level, despite its inconsistency with shari’ah.
When taken together, these deficits mean that many marginalized members of
society perceive the formal justice system as not offering a sufficiently better or
different outcome to warrant them stepping out of the customary sphere and
exposing themselves to new risks. Such a perception is not necessarily
misplaced. While the legal framework offers an enhanced level of protection, a rule-based outcome
is not guaranteed, and complaints need to accept that a judge may apply a personal interpretation of
shari’ah or a xeer solution. The result is that the complainant may be left with little or no recourse,
and simultaneously face renewed challenges as a result of acting against customary expectations.
There are plentiful anecdotal accounts of judges dismissing cases involving alleged rape or domestic
violence without proper investigation (often due to the influence of a husband or elder), exposing
victims to a new level of violence and vulnerability having embarrassed the transgressor and/or
rejected her clan authority. 121 This said, there are some indicators that change is afoot, particularly in
urban areas, where formal justice institutions are slowly strengthening. There is certainly a growing
number of people who are dissatisfied with the justice provided under xeer and who regard the courts
— whether in theory or in fact — as more likely to provide procedural safeguards, uphold the rule of
118 See further ‘Seeking Justice for Rape in Somaliland: The Role of the Criminal Justice System’ Horizon Institute (2018).
120 ‘Study on Women’s Access to Justice and Security in Somalia’, Katuni Consult-UN Women (2017), 12.
121 ‘Strengthening the Quality and Scope of Justice Provision and Policing in Somaliland’ Faculty of Law, the University of
Hargeisa, Somaliland-UNDP (2012) 31-35
22
law and enforce constitutionally guaranteed rights. Indeed, for those discriminated against on the
basis of clan strength or who have been displaced from their clan, the court system may be their only
possibility to escape clan bias or have their case heard at all. 122
Dispute Resolution under Xeer

Somali customary law — xeer — can be loosely defined as “an unwritten set of contracts that exist
between clans and sub-clans, based upon the principles of peacekeeping, customary precedent and
Islamic precept”. 123 Xeer governs relations between clans and clan members and concerns all aspects
of governance relevant to nomadic and pastoral life, most importantly: conflict management, natural
resources, domestic and gender relations, inheritance and criminal behavior. It is learned, retained
and developed orally, and administered by male elders. Importantly, it draws its authority from
cultural-religious values and traditions as opposed to the political authority of the state.
The influence of xeer in modern Somali society can be seen as sitting at the crossroads of competing
tensions. As in all customary systems, influences including ecology, economics, conflict and proximity
to the state system, result in rules being produced, enforced and recreated through processes of
participation and contestation. These processes explain both the dynamic nature of xeer and the
different versions of xeer that exist, even in geographically proximate areas. The much stronger forces
at play relate to the conflict and subsequent state-building era. One the one hand, the decades-long
civil war significantly weakened elder influence and the effectiveness of xeer; on the other, the
ongoing weakness of the state means that clan leaders still wield enormous influence. These interests
exist alongside, and in competition with, new influences such as that of youth (which constitute the
majority demographic group and are perhaps more questioning of elder authority), business
(especially as the economy recovers) and those who see a strong state system as most likely to protect
their interests (minority clans and women). This all said, xeer remains highly relevant and resolves a
high percentage of disputes either in situ – or as explained above – even at the court level. One study
found that xeer, on average, resolves 72% of cases in South-Central Somalia, more than 50% of cases
in Puntland and 32% in Somaliland. 124
Characteristics of Xeer
• The substance of xeer applied is specific to a clan contract, which is generally unwritten and orally
maintained. What a xeer contract covers and what is agreed to depends, principally, on clan
strength. The substance of xeer is strongly influenced by shari’ah, although it will not always
comply with Islamic precepts (e.g., inheritance, rape as a sanction and forced marriage).
• Disputes are generally resolved through a hierarchy of problem-solving fora, i.e., male family
leaders through to tribal elders, who exercise strong moral authority. Elders may engage ulama
(religious leaders) to adjudicate disputes that involve family and personal status matters, such as
divorce and inheritance. Ulama apply shari’ah, but are even less likely than judges to have
received a strong education, and there appears to be wide variation in the school, principles and
precepts that are followed.
• Xeer processes generally apply flexible rules and procedures, allowing for pragmatic solutions.
Outcomes are usually compromises, made on a case-by-case basis through ‘light arbitration’
(masalaxo or gar dawe).
• Because wrongdoing is perceived principally in terms of social cohesion, xeer rarely distinguishes
between criminal and civil offenses. Likewise, precepts such as treating like cases alike or having
pre-determined sanctions, rarely feature in xeer processes. Common disputes include murder,
assault, robbery, land disputes, sexual assault/rape, inter-clan disputes, divorce, inheritance and
natural resource-related disputes.
• Wrongdoing and responsibility are collective concepts under xeer. In practice, this means that an
entire mag-paying group will be collectively responsible for a crime committed by one or more of
its members. By the same logic, compensation for a crime is owed, not to the individual aggrieved,
but to the group.
122 Ibid,pp. 9-11; ‘Study on Women’s Access to Justice and Security in Somalia’, Katuni Consult-UN Women (2017), 11-14,
123 ‘Understanding Potential Development of the Justice System in Somalia and Opportunities for Promoting Rule of Law &
State and Peace Building Informed by Baseline Analysis of Formal Regional Criminal Courts in Urban Somalia’ Coffey (2017).
23
• Compliance usually relies on social pressure linked to the adjudicator’s authority and notions of
group harmony. 125
Xeer Processes and Relationship with the Courts

The widespread use of xeer is a product of both political and pragmatic factors. At the most basic
level, the weak penetration of the state makes xeer the only option for the vast majority in rural and
peri-urban areas. It is also a reflection of the deficits within the state system, which can be costly,
difficult to navigate, unpredictable and may expose users to community-backlash. 126 Third, war, lack
of confidence in the state and the socio-security bonds that exist within and between clans vest xeer
leaders with enormous authority. Finally, operating within the clan model is also pragmatic. As
discussed in part 2, the clan system is the provider of social relationships, economic security and
physical protection; belonging to a clan requires undivided loyalty, participation and mutual reliance,
and this extends to dispute resolution.
An additional factor is the desire of clan leaders and those with vested interests in the continuity of the
clan system to maintain control over certain aspects of dispute resolution. In principal, the disputes
that elders most want to assert jurisdiction over are those that threaten to compromise clan strength,
interrupt clan unity or spark violence. However, it cannot be denied that part of the tension concerns
power and control. For some leaders, there may also be a financial incentive. Elders are almost always
compensated for dispute adjudication and for many this will be their principal source of income. The
level of compensation received is often linked to the outcome desired or another end, such as
maintaining confidentiality.
As noted above, this is not to imply that the courts and xeer consistently operate in a relationship of
contestation or competition. In keeping with the raison d’etre of ending cycles of violence and
maintaining stability, elders may refer on complicated disputes or those deemed (for whatever reason)
more likely to be resolved with intervention by the courts. If disputes are referred to the courts, these
are likely to be complex sexual violence, murder and inter-clan disputes. There is also a degree of
cross-referral, with xeer operating alongside and/or in cooperation with courts. Courts, for example,
might render a verdict in a case while the elders resolve the inter-clan dimensions of the dispute.
Generally, however, clan power is so great that even if a dispute is referred to the court, it will
generally be with the elders’ acquiescence and involvement in the final outcome.
Deficits and Challenges

From a rule of law and rights protection perspective, the xeer system’s principal inherent deficits are:
• discrimination against and weak protection of women, children and minority clan members;
including lesser punishments or compensation; 127
• politicization of decision-making and corruption;
• youth and women having no or little voice in xeer processes;
• collective punishment (diya is usually paid by the clan not the perpetrator); and
• processes and punishments that violate constitutional/legislative provisions and/or human rights
principles.
While there are deficits and inconsistencies in data, anecdotal evidence suggests that for women, the
most tangible issues are:
• Bias against them in outcomes and decision-making i.e., crimes against them not taken seriously
by xeer leaders or, in some cases, not dealt with at all. 128 This includes cases of rape and IPV, but
125 Taken from ‘Understanding Potential Development of the Justice System in Somalia and Opportunities for Promoting Rule
of Law & State and Peace Building Informed by Baseline Analysis of Formal Regional Criminal Courts in Urban Somalia’ Coffey
(2017). See further ‘Study on Women’s Access to Justice and Security in Somalia’, Katuni Consult-UN Women (2017), 8-10;
DRC, ‘Harmonization of the Legal Systems Resolving Land Disputes in Somaliland and Puntland: Report and
Recommendations’ UN-HABITAT (2015) 76.
126 ‘Study on Women’s Access to Justice and Security in Somalia’, Katuni Consult-UN Women (2017), 10; In theory, if mag is
not paid, the aggrieved clan may opt to kill the criminal or members of that persons’ clan.
127 For
identical crimes, the level of compensation payable is highest where the victim is a married woman, followed by single
woman, and then a widow. Similarly, the compensation payable when the victim is a man will always be higher than that for a
woman.
‘Harmonization of the Legal Systems Resolving Land Disputes in Somaliland and Puntland: Report and Recommendations’
128
UN-HABITAT (2015) x.
24
also assault and murder which, although serious crimes under xeer for both men and women,
result in lesser compensation for women vis-à-vis men.
• Crimes of sexual violence being resolved either by marriage or compensation which is not paid to
the victim. 129 It seems clear that rape and other forms of sexual violence are becoming burning
issues for women, and particularly the practice of clan elders or family members influencing
courts to return these cases to the community level. 130
• IPV not being dealt with in a way that mitigates violence to an ‘acceptable’ level; this reflects a
disturbing norm among women themselves that sees violence as normalized. It should be noted
that xeer usually permits some forms of violence and disciplinary measures by men to women and
by parents/guardians to children. A xeer resolution will usually only be called for if the violence is
either very serious or leads to permanent impairment (disability, miscarriage etc.). In such cases
the outcomes might be compensation (xaal marin) in the form of an apology and financial
remuneration and/or maslaxo (restoring the survivor to their previous state). 131
• The rights of women to own or inherit land or property protected under shari’ah not being upheld
at the community level or in xeer processes. 132 Land cases are often sent back to xeer authorities
as land is held customarily and case adjudication usually requires historical knowledge possessed
only by elders; elders will equally pressure women to withdraw their cases from the formal court
and accept a xeer solution.
• A final issue, although not one usually raised by women is their participation in xeer processes. As
non-diya paying members of a clan, women are considered of lesser value than men and her
interests are subordinate to her adult male relatives and clansmen – the source of women’s
protection. Women are thus not considered to be entitled to contribute to decisions that impact
diya or clan outcomes. The result is that for xeer purposes, a woman is not an independent legal
person; she is always under the jurisdiction of her muhram (male guardians) and is represented
by them in legal proceedings. 133
Because minorities exist outside the traditional clan structure, they cannot avail of the protection
afforded by inter-clan xeer. 134 Minor clans will have xeer agreements with neighboring clans, but the
terms will be weaker insofar as the rights of minor clans are devalued. Such xeer leaves all members
more vulnerable to violence, land expropriation and other rights violations. If perpetrators are from a
majority clan, minority elders usually have little bargaining power to ask for compensation. The
situation is even worse for IDPs. As the basis for xeer is a contract between two clans, displacement
means that an individual has no one to represent them in negotiations and no diya-paying
membership to support a victim or perpetrator in the event of a conflict. The result is that IDPs have
little or no clan protection, unless it is offered to them by the majority clan, which is a rare
occurrence. 135 This exposes them to real threats of violence and rights abrogation by host
communities and local authorities; moreover, their weak position means that threats of violence or
eviction are highly effective at guaranteeing silence. 136
133 ‘Study on Women’s Access to Justice and Security in Somalia’, Katuni Consult-UN Women (2017), 8-11.
134 Minority Rights Group 2012 Report at https://minorityrights.org/country/somalia/; F Musse and J Gardener ‘A Gender
Profile of Somalia’ Developed for the EU Somalia Mission (2013).
135 In Mogadishu, majority clans like Isaq and Darod are regarded as minorities due to the limited physical representation they
have and resolve property disputes through representation by Hawiye clans. In this case, the shir are represented by two groups
of Hawiye, one that represents the claimant and one that represents the alleged squatters. Men, do have the opportunity to
mobilize their own clan representative to lobby and protect them, if they prefer; F Musse and J Gardener ‘A Gender Profile of
Somalia’ Developed for the EU Somalia Mission (2013); F Musse and J Gardener ‘A Gender Profile of Somalia’ Developed for
the EU Somalia Mission (2013).
25
Harmful practice 137 Frequency
Godobitir, marriage of a female as compensation Practiced
Collective payment of compensation Widely practiced
Forced marriage of the perpetrator of rape Practiced
Dumaal, forced marriage between a widow and a male relative Practiced with consent
Xigisian, marriage between widower the sister of a deceased Practiced with consent
Understanding Xeer in Current-Day Somalia

It is perhaps best to understand xeer, not as a justice mechanism or justice alternative, but as a
peacebuilding tool. The principal aim of xeer is to interrupt cycles of violence and
restore intra-community harmony (unlike the state system which is supposed
to deliver individualized, rule-based and predictable punishment for wrongs).
This explains why xeer is more likely to be used – or recourse to the state system resisted – for
disputes involving inter- or intra-clan relations. It also explains why individual interests are not
generally protected. Conflicts are viewed in terms of their potential disruption to clan security, thus
the solution negotiated will premise around what will best restore or maintain cohesion. In short,
the xeer system discriminates against and fails to protect women, children and
minority clans because the system is not structured to protect the rights of
these groups. 138
Such insight explains the pervasiveness and durability of certain rights-abrogating xeer practices. For
example, the negotiability inherent in decision-making and its vesting of rule setting and dispute
resolution responsibilities in the same actors, clearly inhibits access to rights-based individual justice.
Proponents of xeer would argue, however, that these factors are integral to the functioning of the
system; it is the elder’s intimate knowledge of the parties, the background to the dispute and local
power-sharing arrangements that facilitates the crafting of a decision that will meet popular notions of
equity and ensure compliance. Other, equally violating xeer practices are grounded in context-specific
rationale, including weak state security, the absence of state-maintained social safety nets, poverty
and generalized discrimination. These dichotomies reflect complex tensions around conceptions of
justice, equity and individual rights, but ones that must be acknowledged and reconciled if
programming is to be impactful.
Seeking Justice for Crimes Involving Sexual Violence

Despite strong proscriptions concerning rape in both xeer and shari’ah, Somalia’s long conflict,
coupled with deeply entrenched norms of discrimination against women and minorities, has
created an environment where rape is both common and normalized. Women are largely viewed,
not as rights holders, but as the property of families and clans, and they are often blamed for
creating the circumstances under which a rape was perpetrated. In the aftermath of sexual violence,
women are pressured to refrain from involving the justice system, either by evoking cultural
arguments such as the need to protect family honor and privacy, through to physical threats,
intimidation and violence. 139
Indeed, proceeding to the state system against the wishes of family members or elders is considered
an extreme social transgression; such women may be socially excluded, discriminated against in
future xeer decisions or otherwise punished. Against such pressure, it is not surprising that some
women make an informed and considered decision to have their case resolved at the community
level. At xeer, she will not have to face going to court without the support of her family (which will
impact success); moreover, even with a poor xeer outcome, she can expect the clan’s protection and
approbation for conforming with tradition. 140
137 ‘Study on Women’s Access to Justice and Security in Somalia’, Katuni Consult-UN Women (2017), 8-10 and ‘The Complexity
of Sexual and Gender-Based Violence: Insights from Mogadishu and South Central Somalia’ International Committee for the
Development of Peoples and International Alert, (2015) 24.
138 ‘Study on Women’s Access to Justice and Security in Somalia’, Katuni Consult-UN Women (2017), 10-11.
26
While xeer compensation agreements vary between clans, the basic precepts and adjudication
procedures are similar across Somalia. Rape is technically prohibited under xeer although the
crime is not recognized when it occurs between a husband and wife. Likewise, sexual abuse within a
household is generally considered as falling within the private sphere and as such is not dealt with
in xeer. Rape will often be resolved through marriage, especially if a pregnancy results and/or the
parents of the victim support this option. The xeer of some groups protects the right of a victim to
refuse such a marriage, however it is usually her representative – a father, uncle or brother – who
will consent to the outcome. If marriage is not an option, compensation may be awarded, but the
victim usually does not benefit wholly or sometimes even at all. Any settlement agreement will also
be dependent on the perpetrator and his clan, wealth and status. 141
The rationale underpinning how rape is adjudicated under xeer needs spelling out. As stated
earlier, the clan is the basic unit of security and socio-economic protection in Somalia; the system is
maintained through strict allegiance to the notion that the strength and survival of the clan is the
ultimate objective and a collective obligation. Elders’ decisions are an extension of this thinking;
they will deliver outcomes that serve the interests of the clan and minimize inter- and intra-clan
conflict, regardless of an outcome’s justness or fairness. 142 Given that (regardless of the case is
adjudicated) a woman will probably need to deal with impunity, forced marriage, and/or
stigmatization, 143 many victims do not see the value in reporting crimes against them. This is even
more the case for IDPs and minority clan members, who have little bargaining power at xeer and
often face threats of further violence or forced eviction if they pursue their claims. This culture of
impunity, resignation that authorities will not help survivors, and the threat of secondary
victimization has created a cycle of violence perpetuation and normalization. 144
Despite these challenges, there is an increasing number of women who see the courts as the only
forum capable of providing them with impartial and rule-based justice. 145 Indeed, victims of sexual
violence may be best protected under the hybrid shari’ah-secular law system. The obstacles at this
level mainly concern the capacity of formal justice actors, an absence of enforcement mechanisms,
and clan influence. 146 However, if courts continue to strengthen, over time it is likely that women
will see themselves as better served by referring their cases to courts, and that xeer will come under
increasing internal pressure to reform itself in ways that are less inimical to women.
141 F Musse and J Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013). Collective or gang rape
is a particular problem; marriage is not generally an option and cross-clan negotiations can be complicated.
143 Ibid p. 25; F Musse and J Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013).
Committee for the Development of Peoples and International Alert, (2015) 34-45; Somalia Gender-Based Violence Working
Group Strategy (2014–2016).

‘The Complexity of Sexual and Gender-Based Violence: Insights from Mogadishu and South Central Somalia’ International
146
27
5. Expanding Access to Justice in Somalia:
Key Challenges and Pathways Forward
Across Somalia, xeer and the state courts system co-exist in a state of mild tension, however both
ultimately operate to protect the collective and individual interests of adult males from majority clans.
The rights of women, children and minority groups are considered secondary and expendable at best,
and at worse, irreconcilable with the status quo. Unsurprisingly, access to justice can be described as
highly limited, with certain groups facing more obstacles than others. Further, within each
marginalized group lies additional social, economic and political inequality, which further influences a
person’s ability to deal with rights violations.
Women and marginalized groups are best protected under the binary shari’ah-secular law norms.
Marriage, divorce, protection against violence and property are all areas where the rights offered to
women and other groups are stronger (regardless of whether shari’ah or state law is applied) when
compared to xeer. But such protections remain largely out of reach. Judges, prosecutors, defense
attorneys and police are insufficiently trained and resourced, and their relative strength compared to
the clans leaves them with only perfunctory authority in many locales. The outcome is one of
uncertainty; complainants cannot be sure what law will be applied, nor whether
a court will assert their jurisdiction, and if it does, whether it will make a
judgement according to law or xeer. This recipe does not offer women and
minorities a sufficiently improved alternative to encourage them to access the
justice system, particularly given the backlash they may face for disrespecting
social conventions. Thus, whether by choice or lack of options, in practice, women tend to
engage the xeer system – the system that is least structured to protect their rights. Minority clans and
IDPs, however, may not even have this option. Their lack of relative power leaves them highly exposed
to violence and expropriation, including by officials. At the same time, they are less likely to have their
complaints taken seriously by courts and have little or no bargaining power to seek redress through
xeer. Particularly IDPs risk punitive retaliation if they take court or police action, including arbitrary
arrest, imprisonment, violence or eviction. 147
Within Somalia’s most vulnerable groups
The result is that seeking redress is a fragmented, an evolving climate of silence is
precarious and non-linear process. Marginalized discernable; victims see themselves better
groups navigate power structures and justice served not reporting violations than
institutions based on a rationale assessment of who to exposing themselves or their families to
engage to reach the best outcome given their particular an overall higher level of vulnerability.
situation, assets and vulnerabilities. 148 The
takeaway is that women and other marginalized groups currently lack the tools
to work the plural system to their advantage. Stripped of meaningful choice and
bargaining power, many are relegated to xeer, where clan interest is the
unabashed object of protection or forced into silence as a tool of self-
preservation. This combination of poor access to justice, denial of choice and an expectation of
impunity is consolidating the polarized and unequal nature of Somali society and undoubtedly driving
the increased incidence and complexity of violence. From this discussion, the principal barriers to
accessing justice can be identified as follows.
Five Principal Access to Justice Inhibitors

1. Lack of confidence in the formal justice system: Low confidence in the formal
judicial system directly stems from weak institutional structures and lack of independence. Poor
knowledge on the part of justice sector actors, coupled with low resourcing and power
asymmetries vis-à-vis the clans, means that rights holders do not know what law will be applied.
Thus, while marginalized groups are likely to fare better under statutory law and shari’ah, the lack
of surety that this will be invoked means that the risks attached to stepping outside of the clan
structure are often too great.
147 Ibid, pp. 39-42.

28
2. Pluralism: Pluralism is inscribed in the constitutions of the FGS, Puntland and Somaliland, but
without clear tools to reconcile different provisions or bodies of law. This is complicated further
by the fact that judges are poorly schooled in both shari’ah and secular law. This vests judges with
broad liberty when resolving cases, creating opportunities for corruption and loopholes for power-
holders to influence judgments. 149 The resulting pluralism aids those with influence, power and
resources, but disadvantages women and other marginalized groups who are best served through
a strict application of statutory law.
3. Different conceptualizations of justice informed by deeply entrenched

discrimination and inequality: The patriarchy underpinning the clan system, deeply
entrenched discrimination and decades of inequality have normalized certain practices to the
point where they are no longer regarded as rights violations by men or women. Key examples
include marital rape; 150 rape that is attempted but not actualized; sexual violence perpetrated by
family members, relatives or friends; rape committed with a view to marriage; child marriage; and
FGMC. 151 This manifests in crimes not being dealt with properly, or at all, and narratives that
place responsibility in the hands of victims rather than perpetrators. The resulting impunity and
disenfranchisement promotes violence and a culture of silence around transgressions.
4. Exclusion from decision-making: That women and other marginalized groups are
excluded from participating in discussions and adjudication processes relating to issues that
impact them permeates the entire sector, from rules requiring that women be represented at xeer
by a male relative 152 through to the lack of female and minority representation in policing services,
courts or governance. Not only does this abrogate constitutional provisions, 153 it reinforces the
cycle of discrimination and rights transgression. This is because exclusion prevents minority
needs, interests and priorities from informing the evolution of norms and structures. 154 Moreover,
poor group representation in the justice and policing sectors dissuades reporting and impacts the
likelihood of a successful outcome. 155 These challenges are normative as well as structural;
integrating women into the policing and justice sectors, for example, is slowly taking place, 156
however the greater problem is the discrimination and workplace disempowerment they face. 157
5. Clan dominance: To date, efforts aimed at improving marginalized groups’ access to justice
have centered around improving institutional reach and strengthening the capacity of the justice
and policing sectors. While undoubtedly important steps, this approach overlooks principal causal
factors. The challenge is that these factors are interconnected, mutually reinforcing and sit at odds
with peacebuilding imperatives.
The fundamental issue is the relative strength and durability of the clan system vis-à-vis the state
— a dynamic which has deeply entrenched origins that are ultimately rooted in security provision.
For the purposes of this analysis, the upshot is that decades of war, political fragility and weak
governance has elevated the clan unit to fundamental provider of security and protection, and it
remains so to this day. Clans use this power differential to control outcomes and exercise de facto
authority over jurisdictional matters, for both political ends (their vested interest in maintaining
the status quo) and functional reasons. At present, xeer is a more powerful and sustainable tool
than any sanction a court might prescribe. This is because its raison d’etre is peacebuilding — a

150 The social norm within marriage is that a husband has the right to sex unless the wife is sick or unwell.
Committee for the Development of Peoples and International Alert, (2015) 30, 36, 39-42.
152 Ibid, pp. 39-42.
153 F Musse and J Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013). E.g., Article 15 of the
Federal Constitution “Every person has the right to personal security, which shall be safeguarded through the prohibition of
illegal detention, all forms of violence, including any form of violence against women, torture, or inhumane treatment.”
154 C Sweetman and J Rowlands, ‘Introduction: Working on Gender Equality in Fragile Contexts’, Gender and Development,
24:3, 337-351 (2016).

155 There is some evidence of a correlation between the number of women lawyers and increased reporting, prosecutions and
convictions for GBV offences. ‘Legal Aid Providers Supporting Survivors of Gender Based Violence in Somalia’ UNDP, LAW,
UNFPA (2014) 8.
156 In Puntland there are 7 women prosecutors, note however that the appointment of women judges has been resisted on
shari’ah grounds; ‘Study on Women’s Access to Justice and Security in Somalia’, Katuni Consult-UN Women (2017), 7.
29
role that courts have no authority or mandate to play. In practical terms, this means that the
courts are not able to contain violence at the clan level: “when cases are dealt with through secular
law it may see the perpetrator go to jail for a few months but the potential for conflict between
communities that the incident has ignited has not been resolved and may flare up on his
release”. 158
It is this security imperative coupled with the aforementioned power asymmetries that explains
the robustness of discriminatory and rights-abrogating xeer practices. Recalling that a clan’s
strength and wealth are dependent on its size, the protection of mag-paying men is a sine-qua-
non. Because individuals may have too few resources to make compensation payments (which can
then set in place a cycle of revenge killing), it is in the best interest of the group to approach
responsibility for wrongful acts collectively. 159 It is this basic operating logic system that sets the
frame for a multitude of discriminatory and rights-limiting conventions. For example, women are
excluded from decision-making because they cannot be assumed to have the undivided loyalty
that is integral to clan strength and longevity. The same reasoning explains women’s limited
inheritance and property rights; because clan size and strength are a product of its wealth, vesting
property ownership or inheritance rights in women — who may marry or be divorced out of the
clan — does not serve clan interests. To do otherwise would dilute the group’s collective strength
and defensive power. Collective thinking also explains how certain acts that are inimitable to
women are conceptualized — not as crimes against individual physical integrity — but as attacking
the honor, integrity and/or strength of a clan. 160
Arguably, the largest obstacle to
The conclusion that must be drawn does not bode well for broader access to justice is the
marginalized groups. Practices that are inimical to and resilience of clan system itself. More
prevent them from accessing justice, are so closely clearly, it is not xeer per se, but the
integrated into the logic of the Somali socio-political nature of clan functioning that is
system, they are unlikely to dissipate unless or until the behind the structural limitations on
clan system loses its influence vis-à-vis the state. A women and marginalized groups’
fundamental change in power dynamics, however, is rights. This explains limitations on
unlikely to happen soon. Perhaps more importantly, women’s property rights through to
prematurely pushing for a transfer of power towards the their exclusion from decision-making
state might be unwise. Despite current stability, Somalia and norm creation, collective thinking,
remains highly fragile. Power and influence are highly and outcomes prioritizing group
contested goods, and moves to dilute the status of clan cohesion over individual restitution.
elders and clan hierarchy are likely to be met with
staunch resistance. Indeed, there are no tradeoffs
between peace and justice; a return to conflict will expose marginalized groups to new threats that,
while of a different nature, may be equally as harmful as justice denials. For the time being therefore,
a ‘muddy’ sharing of control is most likely to maintain peacefulness and cohesion. 161
These complexities should not imply that the situation is intractable or that interventions geared
towards a stronger and more independent justice sector are not warranted. It is simply that when
planning interventions, it is critical that deficits be understood within their broader context. Insofar as
the practices in question have security and socio-cultural explanations, the solutions required will
need to go beyond improved access, tightened protocols and augmented capacity to encompass a
broader range of development objectives.
Pathways Forward
Taking all this into account, the approach that will best serve the justice
interests of women and marginalized groups is twofold: a) a gradual transfer of
influence and power in favor a strengthened formal justice model, and b)
normative and attitudinal change towards individualist-based rights in
communities and among all justice actors. In support of this end, five areas of engagement
158 Ibid.
159 J. Gundel, The Predicament of the Oday: The Role of Traditional Structures in Security, Rights, Law and Development in
Somalia, Danish Refugee Council (DRC) (2006) iii, 9.


161 Ibid, pp. 50.
30
should be prioritized: strengthened courts, improved access to justice options, rights awareness,
reducing violence, and attitudinal transitions in support of women and egalitarianism.
Strengthened Courts
Women and marginalized groups will not be sufficiently incentivized to use the courts until outcomes
become more reliable and law-based, and inroads for corruption and influence are closed. This will
require steady investment in the capacity of the personnel staffing the justice and policing sectors, as
well as bolstering the resources made available to them. Priority actions have been outlined in several
needs assessments and include:
• Training justice actors in interpreting Islamic legal tools and implementing them alongside
statutory law.
• Training, advocacy and awareness raising around key legislation, particularly the Penal Code and
Sexual Offenses Acts (where they apply).
• Standardized protocols for receiving, processing and adjudicating cases involving SGBV, children
and individuals bringing a case without the support of their clan.
• A cadre of specialist (including female) investigators, police and judges to process SGBV cases.
• Oversight mechanisms to ensure that fair trial standards are upheld, the relevant law applied, and
cases are not returned to clans for adjudication. 162
• Policies and mechanisms to improve the safety and privacy of rights holders, witnesses, lawyers
and judges, including through standardized protocols (such as the use of screens in courts), safe
houses and security. 163
• Improved forensic evidence collection and storage.
• Making the justice, policing and governance sectors more inclusive of women and minorities.
Creation of More and Better Justice Options

Even when courtroom justice is desired, many other barriers restrict women and marginalized groups
from accessing it. Steps to provide women with more options start with broadening the reach of
judicial and policing services into rural and peri-urban areas, for example through mobile courts, and
removing cost and conceptual barriers, such as through legal aid and paralegal services. Increased
options by which to uphold one’s rights may also create an environment of competition for justice
services. Such forces might provide the incentive needed for xeer leaders to initiate reforms. In certain
contexts, providing a version of justice that women are likely to accept will be a sufficient sacrifice if it
means that xeer processes remain operative and leaders retain influence. While this is not the
ultimate aim, given the weak reach of the state sector, any reduction in harm caused by xeer processes
will constitute a net benefit for at-risk groups.
Rights Awareness
Improved rights awareness is an essential complement to improved access to judicial fora. Such
knowledge extends beyond laws and procedure, to include shari’ah and insight into what constitutes a
violation of individual rights. As discussed, a stumbling block to better justice outcomes is the
disconnect between legal provisions and how Somalis — both men and women — conceptualize their
rights and obligations.
Reduced Violence
Ultimately, the most efficient approach to improving the protection of women and minorities is to
reduce their exposure to violence. As previously discussed, current levels of violence are a product of
the civil conflict taking place against deeply entrenched discrimination and inequality, which was then
carried over into peacetime as a result of impunity, declining socio-economic conditions 164 and male
de-emancipation. Importantly, Somali culture outlines clear standards and expectations pertaining to
male identity which have come under increasing pressure as women have become breadwinners and
162 Sexual Violence Oversight Committee (SVOC) in South-Central Somalia.

164 Socio-economic factors, such as illiteracy, poor/interrupted education, unemployment/limited or lack of financial means,
urbanization, family breakdown, inadequate shelters, contribute to child marriage, higher risks of physical and sexual violence
and deteriorations in family life such as divorce and polygamy.
31
heads of household. 165 These tensions spill over into violence and other means of men exercising
control over women (but also against other men) at the household and societal levels. 166 There are two
takeaways. First, that addressing the protection needs of vulnerable groups involves examining the
challenges confronting men, particularly access to livelihoods, reducing inequality and finding
alternate means of fulfilling their culturally-ordained roles. 167 Second, it provides clues to
interventions that might be effective in promoting an attitudinal culture where women are better
protected. An examination of male gender identity reveals the importance of partnership between
spouses, a man’s role in child rearing and values such as leadership, kindness and responsibility.
These might inform the development of sensitization campaigns that encourage men to act out their
traditional cultural responsibilities, despite the challenges posed by post-conflict economic recovery.
Attitudinal Transformation
Equally problematic is the deeply entrenched attitudes of discrimination attached to women and
minority groups. Normative and attitudinal change is a scantly understood process imbued with
cultural and political sensitivities. Alongside targeted interventions, prerequisites seem to include a
robust civil society sector, economic recovery and representative participation in governance.
However, even legal aid and legal empowerment initiatives may not only be applied with a view to
foster strengthen access to the weak formal justice system. Initiatives like legal aid or legal awareness
can inflict a change of norms and attitudes among local populations as well as local justice actors and
can ultimately impact xeer norms and solutions.
165 Chronic war and instability have severely curtailed the ability of men to live up to the standards set for them in Somali
culture. Underscoring such standards is manhood being predicated on responsibility for family well-being as a functional
contribution to clan organization. Key values that cut across area and age include responsibility, self-discipline, courage,
humanity and generosity. A man should be caring, kind, consultative and responsible towards his immediate family members
(wife and children), but at the same time is expected to be the principal breadwinner and represent his family in the public/clan
domain. He is expected to instill in his children values of politeness, ethics, religion, self-reliance and co-existence. A man’s
moral qualities should be demonstrated throughout one’s life, including during times of adversity such as conflict, drought,
famine etc. Role fulfilment in the family sphere determines a man’s reputation, status and power at the clan level. Reciprocally,
a man who is deemed to be unable or unwilling to fulfil clan obligations can create serious implications (in terms of protection)
at the family level. In short, although it might appear counterintuitive, it is a man’s capacity to act in egalitarian and respectful
ways that earns him respect and honor. Somali gender identity thus is not naturally associated with violence; it is when gender
identity or roles cannot be fulfilled that can generate conditions that spill over into violence. Equally important, is that male
reputation and honor is not static; over time, with his actions and decisions, a man can lose and equally regain his manhood.
‘The Impact of War on Somali Men: An Inception Study’ Logica (2015) 1-3, 11-18, 29.
166 The conflict displaced men from traditional gender roles as women became breadwinners and heads of household. Peace,
however, did not restore gender identities. Quite the contrary, women have remained in breadwinning roles, but gender
attitudes have remained constant. Male dominance and patriarchy may even have been reinforced through the twin forces of
clan strengthening vis-a-vis state institutional weakness and unemployment preventing men from fulfilling their traditional
roles. Responses are not uniform; some turn to violence, while others look to reformist Islam or migration. ‘The Complexity of
Sexual and Gender-Based Violence: Insights from Mogadishu and South Central Somalia’ International Committee for the
Development of Peoples and International Alert, (2015) 37-38, ‘The Impact of War on Somali Men: An Inception Study’ Logica
(2015) 4-7, 47, 52.
167 These struggles can also be seen in the burgeoning youth population; according to a Logica study youth from minority groups
reported that during sports and game events, when youth from minority clans win a game, the young men from the majority
clans use sexual violence as a way of emasculating them; ‘SSF II Gender Equality and Social Inclusion Strategy’, Somalia
Stability Fund (2017) 7-8; ‘The Impact of War on Somali Men: An Inception Study’ Logica (2015) 1, 4-5, 27.
32
Annex 1. Key Concepts Relevant to the Somali
Context
Access to justice is both a fundamental right, and a bridge to upholding other rights. 168 It has been
defined as the ‘ability of people to seek and obtain a remedy through formal or informal institutions of
justice, and in conformity with human rights standards’. 169 In practical terms, this means a legal
framework that is fair and just; citizens have basic knowledge and confidence in the system; quality
advice and representation is available; there are no physical impediment to accessing justice fora;
justice mechanisms address grievances in an efficient manner; and solutions are enforced. These
conditions may apply differently to different groups, in different locations and/or in different areas of
law. In Somalia, for example, while men from majority clans have ready access to numerous dispute
resolution fora, women, those from minority clans, the displaced and those with disabilities may find
it difficult to access any dispute resolution mechanism, let alone obtain a fair outcome.
Term Definition
Alternative A form of justice that covers a variety of non-judicial mechanisms for resolving conflict
dispute including negotiation, mediation, conciliation and arbitration. ADR is often similar to
resolution customary dispute resolution insofar as it is less formal, highly participatory, inexpensive and
(ADR) decision-making is driven by principles of fairness and equity. The main difference is that ADR
mechanisms are usually constructs either of the state (e.g., legal aid bodies that offer diverse
services), or international development assistance (e.g., non-government organizations
providing legal assistance).
Customary A system of customs, norms and practices that are repeated by members of a particular group
justice for such an extent of time that they consider them to be mandatory. 170 Somali customary law —
xeer — can best be understood as an unwritten set of contracts that exist between clans and sub-
clans, based upon the principles of peacekeeping, customary precedent and Islamic precept.
Xeer draws its authority from cultural, customary or religious beliefs, rather than the authority
of the state. 171 While the civil war weakened elder influence and the effectiveness of xeer, it
remains highly relevant and the dominant form of dispute resolution in most areas and for most
Somalis.
Discrimination Differential treatment on the basis of, inter alia, a person’s gender, race, clan or age that results
in denials of rights, exposure to violence or exclusion. Particularly relevant in the Somali
context is the normalization of discrimination. When discrimination becomes normalized, the
result can be inaction (which can be as detrimental as overt discrimination), acceptance, or the
subject of the discrimination buying into the denial of rights and opportunities to their group. A
key example is the lead role of women in FGMC and their perpetuation of the notion that the
practice is imperative for marriage. Equally important in Somalia is the intransience of the
characteristics that lead to the principal forms of discrimination; while the discrimination felt
by youths may pass as they marry and become autonomous clan members, women and
individuals from minority clans are unable to shed these defining characteristics. 172
Gender The socially and culturally constructed differences between men and women; it should be
distinguished from sex which relates to biological differences. These gender ‘identities’ vary
across cultures and over time, and have important implications for protection, vulnerability and
development. Gender identity, for example, informs how society values and allocates duties,
roles, responsibilities, opportunities and freedoms to women, men, girls and boys. Expectations
concerning normative behaviors manifest in gender divisions of labor, differences in access to
benefits, and participation in governance and decision-making. Because such results impact
allocations of power, gender identities become reinforced and eventually self-constituting.
Particularly relevant to the Somalia context, female gender roles and responsibilities often
168 Accessto justice is protected under article 14 of the International Covenant on Civil and Political Rights (1966) and articles 8
and 10 of the Universal Declaration on Human Rights (1948).
169 United Nations Development Programme, Programming for Justice: Access for All: A Practitioner’s Guide to Human Rights-
Based Approach to Access to Justice (Bangkok: UNDP, 2005) 5.
170 This definition was adapted from R. Yrigoyen Fajardo, K. Rady and P. Sin, Pathways to Justice: Access to Justice with a
Focus on Poor, Women and Indigenous Peoples, UNDP Cambodia and Ministry of Justice, Royal Government of Cambodia
(2005) 34.
171 This description was adapted from International Council on Human Rights Policy (ICHRP), When Legal Worlds Overlap:
Human Rights, State and Non-State Law (2009) 43

172These definitions pertain to the Somali context, see for global USAID definitions and policies:
https://www.usaid.gov/ads/policy/200/205
33
Term Definition
expand during periods of conflict as women assume tasks usually assigned to men. Reciprocally,
men who have lost assets and/or were unable protect their families, often find themselves
unable to fulfil their own gender identities. This can have a variety of ramifications. In certain
contexts, these tensions can result in a transformation in gender relations for the betterment of
women and girls. Such normative transformations, however, are generally highly contested,
thus creating a risk that traditional gender stereotypes become even more deeply entrenched.
Gender The process of examining the roles and responsibilities, or any other relational dynamic,
analysis involving women, and men, boys and girls, with a view to identifying deficits, opportunities and
detecting vulnerabilities and outstanding needs, and devising solutions for the entire policy and
program cycle. A closely related concept is gender sensitivity, which is the recognition of gender
differences, concerns, interests and inequalities, arising from men and women’s different social
positions and gender roles. The goal is to enable gender responsive planning and program
implementation i.e., activities that respond to identified gender concerns and that promote
gender equality. This differs from gender mainstreaming which is the process of integrating a
gender equal perspective into all stages and levels of the development process with a view to
attaining equality and preventing harm or the reinforcement of discrimination through gender
blind actions and policies. It is generally accepted that mainstreaming alone is insufficient to
bring about positive and sustainable change for women and girls affected by discrimination and
marginalization by virtue of their gender. The resilience of patriarchy and entrenched nature of
discrimination requires that gender-specific interventions and mainstreaming take place in
concert.
Gender Equal entitlements of women to rights, benefits and results as men have, but that there may
equality have to be differential or preferential treatment for women in order for them to enjoy their
entitlement to equality, which is called a substantive equality approach to the rights. In more
practical terms, gender equality is the equal valuing and absence of discrimination on the basis
of a person’s gender in authority, opportunities, allocation of resources or benefits and access to
services. Because the forces and structures that maintain inequality are often built up over time
and highly resilient, measures can be set in place to compensate for the disadvantages women
face and thus create a more ‘level playing field’; examples used in Somalia include
representational quotas, scholarships for women and priority hiring.
Legal aid A construct designed to assist people navigate the justice system, make informed decisions and
obtain justice remedies. International justice and human rights standards prescribe that states
make legal aid available in criminal cases to those who require it. In development, conflict and
fragile contexts, however, legal aid can be a critical tool in ensuring that persons who are poor,
marginalized, or otherwise in need of special legal protection, are able to access fair legal
remedies in civil, administrative and criminal matters. Legal aid can include advice, assistance
drafting pleadings, or mediation/representation at little or no cost. Importantly, legal aid does
not necessarily need to be provided by lawyers; paralegals or trained community representatives
can equally provide services relevant to empowering disadvantaged groups to uphold their
rights. 173
Legal A “process of systemic change through which the poor and excluded become able to use the law,
empowerment the legal system, and legal services to protect and advance their rights and interests as citizens
and economic actors.” 174 Functionally, it is about making the protections of the law accessible to
ordinary people. 175 It is grounded in the idea that marginalization and poverty persists, at least
in part, because certain groups do not enjoy legal rights or the power to exercise their rights.
Breaking this cycle requires a legal and political framework that specifically addresses the needs
of marginalized groups, for example through legal rights literacy, enhanced access to justice and
resource protections. 176
Sexual and Violence that is directed against a person on the basis of gender. It constitutes a breach of the
gender-based fundamental rights to life, liberty, security and dignity, equality between women and men, non-
violence discrimination, and physical and mental integrity. Sexual violence was used as a tool of war
(SGBV) during the Somali civil conflict, with the result that rape constitutes one of the most pervasive
forms of abuse suffered by Somali women and girls today. Despite religious and legislative
protections (albeit of varying strength between the different states) SGBV is considered a matter
Taken from UNDP-UNODC Global Study on Legal Aid (2016) 8-9. See further UN Principles and Guidelines on Access to
173
Legal Aid in Criminal Justice Systems (2013).

174 Making the Law Work for everyone: Vol 1 – Report of the Commission on Legal Empowerment of the Poor, UNDP (2008) 3;
Report of the Secretary-General on Legal Empowerment of the Poor and Eradication of Poverty A/64/133 (2009).
175 Open Society Foundations, ‘Legal Empowerment: An integrated approach to justice and development (Draft Working Paper),
2012, 1; http://www.opensocietyfoundations.org/why-legal-empowerment.
176 See further http://www.opensocietyfoundations.org/projects/justice-and-development/background
34
Term Definition
to be dealt with in the private sphere and violations are rarely afforded the requisite level of
seriousness at both the customary (xeer) and state (police and courts) levels.
Shari’ah Translated as ‘the path or the road leading to the water’. 177 Can be broadly understood as a set of
principles and norms governing the lives of Muslims including, but not restricted to, legal
provisions. 178 The 2012 Federal Government of Somalia (FGS) Provisional Constitution states
that shari’ah should form the basis of the justice sector and this is widely supported by users of
the justice system (equivalent provisions exist in the Constitutions of Puntland and
Somaliland). As a rule-based system, grounded upon the principles of justice, equality and
freedom, Shari’ah provides a framework for overcoming extant challenges such as collective
responsibility, retaliatory killing, legal inequality and SGBV, especially when compared to xeer.
Social The forces, beliefs, structures and processes that prevent individuals or groups from wholly or
exclusion partially participating in society, with the result that they are unable to access resources, exploit
opportunities, participate in decision-making and governance, and/or assert their rights. In
Somalia, social exclusion particularly impacts women, girls, members of minority clans,
displaced persons, and young men. In addition to the difficulty such groups face accessing
opportunity and resources, historically engrained social exclusion exposes them to violence and
other rights violations, and make it difficult to obtain redress.
Women’s A modality for both thinking about gender equality, and a means to realizing its ends. It
empowerment understands gender inequality as being rooted in power imbalances between males and females.
Women engaging in the public sphere and private sector, enjoying equitable access to the
opportunities and resources, and using their agency in meaningful and constructive ways, are
all positive manifestations of women’s empowerment by asserting power and control over their
lives.
177 Fazlur Rahman, Islam (University of Chicago Press 1979).

178 Abdullahi A An-Na’im, Islamic Family Law in a Changing World: A Global Resource Book (Zed Books Ltd 2002).
35
Annex 2. The International Legal Context
Somalia Relevance in the Somali
Instrument 179 Principal provisions status context
Universal Confirms that all human beings are born N/A The Constitutions of the FGS,
Declaration on free and equal in dignity and rights and Somaliland and Puntland each
Human Rights such rights and freedoms will not be guarantee basic equality between
(1948) limited by a person’s sex. citizens, regardless of, inter alia,
clan and gender. These are powerful
tools to underscore equality as the
guiding premise of programmatic
interventions. For some, the
elevation of Shari’ah as the highest
law somewhat weakens this,
however, an academically informed
understanding of the relevant
Sunna and Fiqh, Qiyas and Ijma’
confirm this not to be the case.
Convention on The CEDAW affirms that gender equality Although Somalia is not a signatory state but
the Elimination is a precursor for development and FGS is yet to several of the provisions are
of All forms of peace. It establishes legal standards for ratify enshrined in other pieces of
Discrimination the attainment of gender equality CEDAW, legislation; irrespective the CEDAW
against Women through the elimination of discrimination the Cabinet constitutes a framework for
(CEDAW) against women in all aspects of political, has monitoring and oversight, and its
(1981) social, economic and cultural life. It approved it provisions base standards that can
highlights the importance of equality and subject to inform program development.
equal opportunity in political and public ratification
life as well as education, health and by
employment. Ratifying Governments are parliament.
required to set in place measures to
enable and expedite gender equality in
law and fact as well as confronting the
underlying social political inequalities
that perpetrate asymmetrical power
relations based on gender.
Declaration on A tool that recognizes the depth of N/A A particularly relevant advocacy
the Elimination gender-based violence and its many tool insofar as it calls out gender
of Violence forms; it covers physical, sexual and bias in the administration of justice;
against Women psychological violence, as well as violence and harmful traditional or
(1993) both at home and in the public sphere. It customary practices and women’s
specifically calls out violations of human vulnerability to rights violations in
rights in situations of armed conflicts. armed conflict
These include murder, systematic rape,
sexual slavery and forced pregnancy.
179 The following conventions have also been ratified by Somalia: The ICESCR (1976) and ICCPR (1976)was ratified in 1990; the
International Convention on the Elimination of All Forms of Racial Discrimination (1969) and the International convention on
the suppression of and punishment of the crime of apartheid were ratified in 1975; the African [Banjul] Charter on Human and
Peoples' Rights (1981) was ratified in 1985; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (1987) was ratified in 1990; the Protocol to the African Charter on Human and People’s Rights on the Rights of
Women in Africa (the Maputo Protocol) was signed in 2006; the CRC (1989) was ratified in 2015; the Elimination of the Worst
Forms of Child Labour Convention, 1999 (No. 182) was signed in 2014; the Convention on the Rights of Persons with
Disabilities (2008) was signed in 2018. Note that although FGS is yet to ratify CEDAW (1981), the Cabinet has approved it
subject to ratification by parliament. Note that space constraints prevent an examination of UN agency gender strategies; see
particularly the UNDP Global Gender Equality Strategy 2008 – 2013 (GES), and the Eight-Point Agenda for Women’s
Empowerment and Gender Equality in Crisis Prevention and Recovery (BCPR-8PA).
36
Beijing Established a women’s empowerment N/A A broad framework for
Declaration and agenda for states to conform to the understanding women’s needs
Platform for principles of women’s equality enshrined holistically and a solid methodology
Action (1995) in the UN Charter and other tools of for the achievement of women’s
international law. It identified 12 priority empowerment and gender
areas for the achievement of women’s mainstreaming across diverse
empowerment and advancement: sectors.
• Women and poverty
• Education and training of women
• Women and health
• Violence against women
• Women and armed conflict
• Women and the economy
• Women in power and decision-making
• Institutional mechanisms for the
advancement of women
• Human rights of women
• Women and the media
• Women and the environment
• The girl child
Rome Statute of Defines rape, sexual slavery, enforced No An important tool if international
the prostitution, forced pregnancy, enforced crimes committed in the context of
International sterilization or any other form of sexual the civil conflict were to be
Criminal Court violence of comparable gravity as a crime prosecuted. Note however that this
(1998) against humanity. does not preclude national or
regional mechanisms; and the non-
applicability of a statute of
limitations pertaining to
international crimes. And, care
must be taken in balancing justice
for international crimes and the
maintenance of peace and stability.
United Nations Highlights the linkages between women, N/A UNSC 1325 firmly establishes the
Security peace and security and the importance of illegality of sexual violence as a tool
Council women’s important roles in conflict of war and importantly recognizes
Resolution resolution and peacebuilding. male survivors of SGBV. The
(UNSC) 1325 Specifically, it calls for all actors to resolution also reiterates the
(2000) 180 ensure women’s participation in peace importance of women in building
processes from the initial phase of and sustaining peace.
conflict prevention to negotiations to
post conflict reconstruction and
development. It is a reaffirmation of
“women’s central role in the prevention
and resolution of conflicts and in peace
building”. It emphasizes states’
responsibility to end impunity for crimes
against humanity and war crimes,
including sexual and other forms of
violence against women and girls.
UN system-wide Highlights the need for strategies to N/A
policy on gender include a clear statement in support of
equality and gender equality; activities aimed at the
empowerment production of gender equality, and the
of women collection data are disaggregated by sex.
(2006)
United Nations Principle 2 states that States should N/A The Constitutions of the FGS,
Principles and regard the provision of legal aid a duty Somaliland and Puntland each
Guidelines on and responsibility. They should consider, recognize the rights individuals to
Access to Legal where appropriate, enacting specific access the courts, as well as a
Aid in Criminal legislation and regulations and ensure defense and to forms of legal aid.
that a comprehensive legal aid system is
180 see further UNSC Resolutions 1820, 1888, 1889, 1960, 2106, 2122, 2242.
37
Justice Systems in place that is accessible, effective,
(2012) sustainable and credible. States should
allocate the necessary human and
financial resources to the legal aid
system. With respect to provision of legal
representation in civil cases, this is
considered a best practice, but one that is
strongly encouraged in cases of indigent
persons.
Sustainable Goal 5: Achieve gender equality and N/A The inclusion of goal 16 importantly
Development empower all women and girls recognizes the linkages between
Goals (2015) Goal 16: Promote just, peaceful and access to justice and legal
inclusive societies empowerment, and peace,
development and security. Goal 16
will likely facilitate a renewed
emphasis on justice sector
development as well as funding
flows for such purposes.
38
Annex 3. Regional Instruments
Instrument Key provisions
African Charter on Articles 4 emphasizes women’s right to security, respect for their bodily integrity,
Human and Peoples’ protection from exploitation, and prohibition of cruel inhuman treatment. Article 11
Rights on the Rights of provides for the protection of women in armed conflicts making States responsible
Women in Africa (2003) for the protection of populations affected by conflict, especially women and girls,
and Protocol with specific provision for protection from SGVB, sexual exploitations, and
prohibition of girls and women from participating in hostilities.
The African Union The policy establishes a vision for and commitment to gender mainstreaming and
Gender Policy (2009) women’s empowerment to accelerate progress towards gender equality, gender
justice, non-discrimination and the enjoyment of fundamental human rights in
Africa. The goal is to adopt a rights-based approach to development through
evidence-based decision-making and the use of gender-disaggregated data.
Nairobi Forward- Drawn from the UN Charter, UDHR, ICCPR, CEDAW and the Declaration on the
Looking Strategies for Participation of Women in Promoting International Peace and Co-operation, the
the Advancement of strategy identifies measures to eliminate gender-based discrimination and overcome
Women (1985) the obstacles delaying women’s advancement.
International Conference A new strategy emphasizing the linkages between population and development, and
on Population and focused on the specific needs of women and men as opposed to demographic targets.
Development (1994) It emphasizes the importance of providing women with greater choice through
expanded access to education and health services, skills development and
employment.
Commonwealth Plan on Outlines responses to the differential impacts of global changes and challenges on
Gender and women and men, girls and boys in the realization of the MDGs and the objectives set
Development (1995) out in the 1995 Beijing Declaration and Platform of Action. It recognizes the
interconnections between human rights, democracy and gender equality.
The Solemn Declaration The Declaration commits parties to, inter alia, accelerate the implementation of
on Gender Equality in gender specific economic, social, and legal measures aimed at combating the
Africa HIV/AIDS pandemic; ensure the full and effective participation and representation
of women in peace processes; launch sustained public campaigns against gender-
based violence and trafficking in women and girls; reinforce legal mechanisms to
protect women and end impunity in crimes committed against women; ensure the
active promotion and protection of women’s human rights by raising awareness or by
legislation; promote the implementation of legislation to guarantee women’s land,
property and inheritance rights including their rights to housing.
The New Partnership for The NEPAD (endorsed by the 2002 Summit of the African Union) was established to,
Africa’s Development inter alia, accelerate women’s empowerment and gender equality. The peer-review
(NEPAD) and the mechanism aims at fostering the adoption of policies, standards and practices to
African Peer Review engender political stability, growth, sustainable development and accelerated
Mechanism (2003) regional and economic integration.
39
Annex 4. Donor Instruments
American Bar Association Rule of Law Initiative (ABA ROLI)
ABA ROLI firmly believes that achieving gender equality and social inclusion (GESI) is essential to
realizing human rights, sustainable development goals, and a better future for all. In its efforts to
promote the rule of law, ABA ROLI takes a two-pronged approach to advancing GESI: it designs and
implements both gender-focused programs and programs that take inclusive, gender-responsive
approaches to promoting the rule of law and solving complex development challenges. ABA ROLI’s
targeted gender programs improve women’s legal protections and enhance their access to justice;
respond to sexual and gender-based violence (SGBV) through interventions focused on prevention,
protection, and accountability; advance the rights of lesbian, gay, bisexual, transgender, and intersex
(LGBTI) people; promote women in the legal profession; facilitate women’s equal and meaningful
participation in the legal reform and transitional justice processes; and measure progress on women’s
rights through an array of tools, including the Status of Women Assessment Tool, the Women’s
Economic Empowerment Barrier Assessment Tool, and the Access to Justice Assessment Tool
(AJAT). In addition, ABA ROLI leads Women and Girls Empowered (WAGE)—a multi-year global
programming consortium to advance the status of women and girls worldwide. These targeted
strategies are complemented by a gender integration approach, ensuring that gender perspectives
constitute an integral component of ABA ROLI’s initiatives across all practice areas. To this end, ABA
ROLI builds gender-sensitive design, research, and reporting into its programs, which facilitates
ongoing analysis of these programs’ gender impacts. 181
United States Agency for International Development (USAID)

USAID’s Gender Equality and Female Empowerment Policy (2012) 182 acknowledges gender equality
and female empowerment as core development objectives, fundamental for the realization of human
rights, and key to effective and sustainable development outcomes. It underscores that no society can
develop successfully without providing equitable opportunities, resources, and life prospects for males
and females so that they can shape their own lives and contribute to their families and
communities. The goal of the policy is to improve the lives of citizens by advancing equality between
females and males, and empowering women and girls to participate fully in and benefit from the
development of their societies. This should be promoted by integrating gender equality and female
empowerment throughout a programming cycle and related processes i.e., in strategic planning,
project design and implementation, and monitoring and evaluation.
Under the policy, USAID investments are aimed at three overarching outcomes. In strategic planning
at the country or project level, these outcomes will be adapted and translated into specific results with
associated targets and indicators. These outcomes, which are especially important for people who are
marginalized or excluded due to ethnicity, gender identity, sexual orientation, lack of income,
disability or other factors, reflect the gamut of activities that USAID undertakes across multiple
sectors and fields:
• Reduce gender disparities in access to, control over and benefits from resources, wealth,
opportunities and services.
• Reduce SGBV and mitigate its harmful effects on individuals and communities.
• Increase capability of women and girls to realize their rights, determine their life outcomes,
and influence decision-making in households, communities, and societies.
Finally, the policy sets out seven guiding principles:
• Integrate gender equality and female empowerment into USAID’s work.

• Pursue an inclusive approach to foster equality.
• Build partnerships across a wide range of stakeholders.
• Harness science, technology, and innovation to reduce gender gaps and empower women and
girls.
181 ABA ROLI's Strategic Approaches to Advancing Gender Equality, forthcoming.

182 www.usaid.gov/sites/default/files/documents/1865/GenderEqualityPolicy_0.pdf;
See further ‘Integrating Gender Equality
and Female Empowerment in USAID’s Program Cycle’ https://www.usaid.gov/ads/policy/200/205
40
• Address the unique challenges in crisis and conflict-affected environments.
• Serve as a thought leader and a learning community.
• Hold ourselves accountable.
See Also:
• US national action plan on women peace and security 183

• UK national action plan on women, peace and security 184
• The Netherlands National Action Plan for women, peace and security 185
• The Norwegian National Action Plan for women, peace and security 186
• DFID Strategic Vision on Girls and Women 187
• The Swedish Aid Policy Framework 188
183www.usaid.gov/sites/default/files/documents/1868/National%20Action%20Plan%20on%20Women,%20Peace,%20and%2
0Security.pdf
www.gov.uk/government/uploads/system/uploads/attachment_data/file/385958/141211_--‐
184
_FCO726_NAP_Implementation_Plan_FINAL.pdf
185 https://wo-men.nl/wp-content/uploads/2016/05/FINAL-NAP-2016-2019.pdf
186 https://www.peacewomen.org/assets/file/NationalActionPlans/norway-nationalactionplan_march2006.pdf
187 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/67582/strategic--‐vision--‐girls--‐
women.pdf
188 http://www.regeringen.se/49b737/contentassets/6eef64a9a36e48ff9a95e4d6ad97ce84/aid--‐policy--‐framework
41
Annex 5. Review of National Law Instruments
This annex provides a brief overview of the FSG, Somaliland, and Puntland Constitutions with a view to highlighting key trends and protection provisions. It is
limited insofar as it does not include a review of all subsidiary legislation such as the Penal Code, Code of Criminal Procedure, Land Law, Juvenile Justice Act,
as well as recent legislation (including that at the draft stage) on sexual violence. The main take away is that, despite some notable deficits, the FGS, as well as
Puntland and Somaliland, have made significant progress in establishing a legal framework that protects the rights of women, children and other marginalized
groups. While some major human rights treaties remain unsigned, it is clear that effort has been made to replicate international rights and entitlement
provisions, as well as address some locally-specific phenomena and practices that are rights abrogating. Some key deficits have been acknowledged and
attempts to close them made; these include a trend away in the law from collective responsibility towards a system that upholds individual rights, and
acknowledgement that minority clans and women have historically been denied rights available to other Somalis. The key challenge remains the courts’ lack
the institutional capacity and resources to implement new provisions in the law.
FGS Constitution Somaliland Constitution Puntland Constitution

Equality and Non-Discrimination
11.1 All citizens, regardless of sex, religion, social or economic status, political 8.1. All citizens of Somaliland shall enjoy equal rights and 12.1. Everyone is equal before the law.
opinion, clan, disability, occupation, birth or dialect shall have equal rights and obligations before the law, and shall not be accorded precedence 12.2. No person shall be discriminated against
duties before the law. on grounds of color, clan, birth, language, gender, property, on the basis of color, religion, birth, nationality,
11.2 Discrimination is deemed to occur if the effect of an action impairs or status, opinion etc. property, belief, political affiliation, language,
restricts a person’s rights, even if the actor did not intend this effect. 8.2 Precedence and discrimination on grounds of ethnicity, clan or race.
11.3 The State must not discriminate against any person on the basis of age, race, affiliation, birth and residence is prohibited; and at the same time 12.3 The Constitution shall safeguard the rights
color, tribe, ethnicity, culture, dialect, gender, birth, disability, religion, political programs aimed at eradicating long lasting bad practices shall be of minorities.
opinion, occupation, or wealth. a national obligation. 35.2. Women have the same rights as men,
11.4 All State programs, such as laws, or political and administrative actions that 8.3. Save for the political rights reserved for citizens, foreigners except the distinctions made by God between
are designed to achieve full equality for individuals or groups who are lawfully resident in Somaliland shall enjoy rights and obligations the two sexes.
disadvantaged, or who have suffered from discrimination in the past, shall be before the law equal to those enjoyed by citizens.
deemed to be not discriminatory. 36.1 The rights, freedoms and duties laid down in the Constitution
27.5 It shall be ensured that women, the aged, the disabled and minorities who are to be enjoyed equally by men and women save for matters
have long suffered discrimination get the necessary support to realize their socio- which are specifically ordained in Islamic Sharia.
economic rights.
38.1 The rights set out in this Chapter may be limited by law, provided that the
law is not targeted at any particular individuals or groups.
Challenges, threats, and opportunities:
The provisions set out in the FGS and Somaliland Constitutions prohibiting inequality on the basis of gender and clan are at odds with the Puntland jurisdiction. Scope for discrimination is further
embedded in articles 12.3 and 35.2 of the Puntland Constitution by referring to ‘distinctions made by God’ and ‘minorities’ without detailed explanation. The Somaliland Constitution likewise limits
women’s rights by exempting rights, freedoms and duties ‘ordained in shari’ah’.
A further deficit is the absence of mechanisms to actualize the various equality provisions in the Constitutions.
42
Children’s Rights to Protection 189
28.2 Mother and child care is a legal duty of the State. 19. The state shall be responsible for the health, care, 31.2 A minor has a right to life, name,
28.3 Every child has the right to care from their parents, including education and development and education of the mother, the child, the disabled nationality, upbringing, education and health
instruction. In instances where this care is not available from the family, it must be who have no one to care for them, and the mentally handicapped care.
provided by others. This right applies to street children and children of unknown persons who are not able and have no one to care for them
parents, the rights of whom the state has a particular duty to fulfill and protect.
29.2 Every child has the right to be protected from mistreatment, neglect, abuse,
or degradation.
29.6 Every child has the right to be protected from armed conflict, and not to be
used in armed conflict.
29.8 In this Article, the word child means a person under 18 years of age. 31.1 A minor is any individual below the age of
28.5 No marriage shall be legal without the free consent of both the man and the fifteen (15) years.
woman, or if one or both of them have not reached the age of maturity.
29.4 Every child may be detained only as a last resort, for a limited time, in Under Somaliland’s Juvenile Justice Act (2008) the state should Juvenile Justice Act
appropriate conditions, and must be detained separately from adults with the establish children's courts, children's pre-trial detention centres
exception of the child’s immediate family. The child’s immediate family must be and children's rehabilitation centres. The law sets the age of
informed of the child’s detention as soon as practicable. criminal liability at 15 with maximum punishment to 15 years. It
29.5 Every child shall have the right to legal aid paid for by the State if the child prohibits corporal punishment, life imprisonment and the death
might otherwise suffer injustice. penalty. The Children’s Court is permitted to impose both
community-based and custodial sentences. 190
The protection of children in armed conflict and from recruitment into armed forces is not adequately provided for. An Action Plan to End the Recruitment and Use of Children in Armed Conflict has
been drafted and its provisions should be provided for in legislation. The age of majority does not meet international standards in the case of Puntland and Somaliland.
Representation and Participation
3.5 Women must be included in all national institutions, in an effective way, in 22.1 Every citizen shall have the right to participate in the 41. Every citizen not less than 18 years of age
particular all elected and appointed positions across the three branches of political, economic, social and cultural affairs in accordance with has the right to:
government and in national and independent commissions. the laws and the Constitution. (a) participate in the processes of elections and
22.1 Every citizen has the right to take part in public affairs. This right includes: 22.2 Every citizen who fulfils the requirements of the law shall to vote;
(a) The right to form political parties and to participate in the activities of political have the right to be elected (to a public office) and to vote. (b) establish or join any political party; and
parties; and (b) The right to be elected for any position within a political party. (c) compete for public office in elections, if
he/she fulfils the criteria.
22.2 Every citizen who fulfills the criteria stated in the law has the right to elect
and to be elected. 44.1 All citizens who fulfil the criteria required
by law have the right to vote and to be elected.
189 FGS Constitution 30.1 Education is a basic right for all Somali citizens. (2) Every citizen shall have the right to free education up to secondary school. Somaliland Constitution 15.7 The national
policy is that primary education shall be free. Puntland Constitution 32.1 Each and every person has a right to education
190 In
Somaliland, MOLSA is responsible for at risk children and has a role to play in preventing juvenile delinquency. MOLSA has established rehabilitation centers for street children, aimed at
preventing street children from offending.
43
Despite commitment to improved inclusion (as enshrined in the Garowe II Principles), provisions were not set out in any of the constitutional frameworks and the dominance of clan-based political
representation continues to prevent women from being meaningfully included in most political and judicial structures. This said, the 2013 New Deal Compact, endorsed by the Federal Government,
recognizes the vital role of women in peace-building, and commits to their participation as Somalia works to achieve stability. In Puntland, there is one female judge, while in Somaliland there is an
increasing number of female law graduates, a Somaliland Women Lawyers Association, and equal gender representation the Somaliland Human Rights Commission.
Inheritance and Property Rights
26.1 Every person has the right to own, use, enjoy, sell, and transfer property. 31.1 Every person shall have the right to own private property, 17.1 Every person shall have the right to own,
27.5 It shall be ensured that women, the aged, the disabled and minorities who provided that it is acquired lawfully. administer and benefit from property in
have long suffered discrimination get the necessary support to realize their socio- 36.3 Women have the right to own, manage, oversee, trade in, or accordance with the law.
economic rights. pass on property in accordance with the law.
Constitutional provision for women’s equal rights is incompatible with shari’ah jurisprudence concerning inheritance (under which women inherit half of what their male counterparts).
Female Genital Mutilation and Cutting
15.4 Female circumcision is a cruel and degrading customary practice, and is 36.2 The Government shall encourage, and shall legislate for the 18.2 Every person has the right to the
tantamount to torture. The circumcision of girls is prohibited. right of women to be free of practices which are contrary to Sharia protection of his/her body and integrity.
31.1 The state shall promote the positive traditions and cultural practices of the and which are injurious to their person and dignity.
Somali people, whilst striving to eliminate from the community customs and 8.2 Precedence and discrimination on grounds of ethnicity, clan
emerging practices which negatively impact the unity, civilization and wellbeing affiliation, birth and residence is prohibited; and at the same time
of society. programmes aimed at eradicating long lasting bad practices shall
be a national obligation.
While FGMC is not mentioned explicitly in the Constitutions of Puntland or Somaliland, the Ministry of Religious Affairs in Somaliland issued a fatwa in 2018 banning Type III FGMC (Infibulation).
In Puntland, the government passed a 2011 law also banning Type III FGMC, as well as a fatwa in 2013. A 2014 inter-ministerial decree developed by the Ministry of Health states that there will be no
medicalization of FGMC, and further that the Ministry has the authority to close clinics and hospitals that continue the practice, and arrest perpetrators. It should be noted that the Penal Code, Law
No. 05/1964, is applicable to all jurisdictions in Somalia, under which it is a criminal offence to cause hurt to another that results in physical or mental illness. Despite these provisions in the law
FGMC is still widespread. Drivers include the practice’s links to chastity, virginity, fidelity and dowry payments; those responsible for performing FGMC (who financially benefit) may also play a role in
its continuation. The principal challenge is how to modify a deeply entrenched custom without driving the practice underground where greater harm might result. 191
Protection Against Violence
15.2 Every person has the right to personal security, and this includes: the 24.1 Human life is the gift of Allah and is beyond price. Every 18.2 Every person has the right to the
prohibition of illegal detention, all forms of violence, including any form of person has the right to life, and shall only be deprived of life if protection of his/her body and integrity.
violence against women, torture, or inhumane treatment. convicted in a court of an offence in which the sentence laid down 18.3 Crimes against the individual right to life
10.1 Human dignity is given by God to every human being, and this is the basis for by law is death. and security such as massacre, torture,
all human rights.
‘Somaliland: The law and FGM’ Thomas Reuters Foundations (2018); ‘Somalia: The law and FGM’ Thomas Reuters Foundations (2018); ‘Gender Equality and Women’s Empowerment Strategy’
191
UNDP 5. ‘Implementation of the Beijing Platform for Action Bejing+20 Review: Somalia Country Report’ (2014) 25-26, 37-38; Gender and Conflict Note: Somalia’, LOGICA, 2013, 6.
44
10.2 Human dignity is inviolable and must be protected by all. 24.2 Every person shall have the right to security of his person. detention, and execution, unless in accordance
10.3 State power must not be exercised in a manner that violates human dignity. Physical punishment and any other injury to the person are with the law, are prohibited.
prohibited. 35.1 It is the duty of the state to protect and
24.3 Every person shall have the right to have his dignity, promote the rights of women, consistent with
reputation and private life respected. Islamic religious norms.
24.4 Crimes against human rights such as torture, extra-judicial
killings, mutilation and other similar acts shall have no limitation
periods.
The Penal Code (1962), which applies in all states, criminalizes rape and other forms of sexual violence. Crimes, however, are (i) narrowly defined so as to offer insufficient protection from SGBV, 192
and (ii) the presence of legal gaps allows the continued relevance of customary law (xeer). The Criminal Procedure Code provides further guidance on the prosecution and sentencing of SGBV offences,
however it is based on outdated Indian legislation. The punishments outlined are 5-15 years for rape, 1-5 years for other forms of sexual abuse, 2 months-2 years for facilitating prostitution and 2-6
years for doing so using threats or violence. In practice, however, sentences handed down are rarely as lengthy as that stipulated in the legislation. Finally, the Code contains no age of consent which
leaves children particularly vulnerable to abuse. Other priority areas for reform include: removing the requirement of violence or threats and introducing the concept of consent in rape cases; widening
the definition of rape to include victims of the same sex; addressing gang rape, incestuous rape, and rape in marriage; dealing with compensation for rape; and expanding the definition of sexual
assault.
States have begun to make progress on closing these gaps. The FGS Sexual Offenses Bill (2014) defines and addresses incidents of rape and other forms of SGBV, and outlines the role of public officials
and the police in investigating and prosecuting cases. It sets out a range of crimes that relate specifically to the sexual exploitation of children and people with mental disabilities, including trafficking,
sexual exploitation and the use of children or people with mental disabilities in pornography. 193 Importantly, it criminalizes obstruction of justice by any party and/or to offer settlement of cases
outside of the judicial court, and imposes a duty on public officials to investigate and prosecute sexual offences. The Puntland Rape Act (2016) criminalizes rape in marriage and prohibits
compensation as a penalty for rape and sets prison time at between 5-10 years (art 6). It also contains provisions on gang rape (art 7), sexual assault (art 8), sexual exploitation and abuse (art 10) and
sexual harassment (art 11). 194 The Somaliland Penal Code Articles 398 to 401 deal with sexual offences including rape, honor crimes and other acts committed ‘out of lust’. 195
While the Government has pledged to prioritize and comprehensively address sexual violence and enhance the capacity of the judiciary to deal with such cases, there has been little commitment in
practice and crimes still are resolved under xeer and patriarchal interpretations of shari’ah. 196
Protection from Exploitation and Forced Labor
192The Penal Code (1962) Article 298 criminalizes sexual intercourse committed through the use of threats or violence or where the second person is ‘incapable of giving consent’; Article 399
criminalizes ‘acts of lust other than carnal intercourse’ committed through the use of threats or against a person who is incapable of giving consent; Article 409 prohibits the instigation, facilitation
or aiding of prostitution, as well as the ‘exploitation’ of its proceeds; Article 408 prohibits compelling prostitution through violence or threats.
193 ‘The Complexity of Sexual and Gender-Based Violence: Insights from Mogadishu and South Central Somalia’ International Committee for the Development of Peoples and International Alert,
(2015) 7, 23, 49.

194 See also the Sexual Offences Act Implementation Plan 2016–2019.
195 Somaliland Rape and Sexual Offences Bill (draft); Discussion Paper on the Reform of the Somaliland Penal Code, Horizon Institute (2014) 15-22.
196 ‘Implementation of the Beijing Platform for Action Bejing+20 Review: Somalia Country Report’ (2014) 8-15, 25, 30-33; see further F Musse and J Gardener ‘A Gender Profile of Somalia’
Developed for the EU Somalia Mission (2013) 8. Various instruments have been developed at the national level including the Ministry of Women and Human Rights Development’s National Action
Plan, National Action Plan on Ending Sexual Violence in Conflict; GBV strategy (2014-2016), national gender policy (2016). Other gender related policies still under development and spear- headed
by the MoWHRD, include the draft FGM policy; the draft GBV policy; the draft child protection policy; and the draft family Act. The Post-Transition Human Rights Road Map (2013-2015) and the
New Deal Compact (2014-2016) and The Reconstruction and Development Programme (RDP) drawn from the New Deal Compact all mainstream gender, and the Compact specifically intends to
‘address the fundamental causes of gender inequality through strategic priorities in order to transform the unequal power relations between men and women, resulting in improved status of women
and broader gender equality’.
45
Article 24.5 All workers, particularly women, have a special right of protection 20.2 The conditions of work of the young and women, night 37.2 Forced labor is prohibited unless in
from sexual abuse, segregation and discrimination in the work place. Every labor working and working establishments shall be regulated by the accordance with the law.
law and practice shall comply with gender equality in the work place Labor Law.
14. A person may not be subjected to slavery, servitude, trafficking, or forced
labor for any purpose.
29.3 No child may perform work or provide services that are not suitable for the 31.3. Any kind of labor that may have a negative
child’s age or create a risk to the child’s health or development in any way. impact on a child’s life, faith, culture, up-
29.7 In every matter concerning a child, the child’s best interests are of bringing or education is prohibited.
paramount importance.
There are insufficient protections against child labor, trafficking and the use of children for illicit activities leave minors vulnerable to exploitation. 197
Access to Justice Rights
33: Every person has the right to administrative decisions that are lawful, 28. Every person shall have the right to institute proceedings in a 25.1. Every person shall have the right to
reasonable and conducted in a procedurally fair manner. competent court in accordance with the law. Every person shall institute legal proceedings in a competent
34.1 Every person is entitled to file a legal case before a competent court. have the right to defend himself in a court. court.
34 (2) Every person has the right to a fair public hearing by an independent and 25.2. Every person shall have the right to
impartial court or tribunal, to be held within a reasonable time, and to determine: defense before the court.
(a) Any question of civil rights and obligations; or (b) Any criminal charge.
34 (3) Every person is entitled to defend him or herself from the case he or she is
party to, whatever the level or stage of the proceedings may be.
Legal Aid
34.4 The state shall provide free legal defense to the people who do not have the 28. The state shall provide free legal defense in matters which are 25.3. The Puntland State shall appoint a lawyer
means of doing so themselves. determined by the law, and court fees may be waived for the for any person who is unable to defend himself/
34.5 The state shall provide free legal defense to individuals or communities if indigent. 198 herself, or without the means to engage one.
they are legally pursuing the public interest. 25.4. Special law shall regulate access to justice
to those who cannot afford it.
Rights of Accused and Convicted
35.1 The accused is presumed innocent until proven guilty in a final manner by a 26.3 3. An accused person is innocent until proven guilty in a court. 27.1. Any person who is charged with a criminal
court of law. 25.1. No person shall be deprived of his liberty except in offence shall be presumed innocent until
35. (2) Every person arrested or detained has the right to be informed promptly of accordance with the law. he/she is proven guilty by a competent court of
the reason for their arrest or detention in a language that the person understands. 25.2 No person may be arrested, searched, or detained, except law.
when caught in flagrante delicto, or on the issue of a reasoned
46
35.3 Every person arrested or detained shall have the right for his or her family arrest warrant by a competent judge. 27.2. An accused person shall have the right to
and relatives to be informed of his or her situation. 25.3 The state shall guarantee to all citizens their rights and protection, security and human dignity.
35.4 A person may not be compelled to self-incriminate, and a verdict may not be freedoms and the punishment for any of their infringements shall 27.3. An accused person shall not be detained in
based on evidence acquired by means of coercion. be determined by law. a facility that is not legally recognized.
35.5 Every person who is arrested has the right to be brought before a competent 25.4 The freedoms of the person shall not override the laws 27.4. The accused shall be brought before a
court within 48 hours of the arrest. protecting the public morals, the security of the country or the court of law within 48 hours.
35.6 Every person who is arrested or detained has the right to choose, and to rights of other individuals. 27.5 The offence shall be read to the accused in
consult with, a legal practitioner and if he or she cannot afford one, the State 27.1 Any person who is deprived of his liberty has a right to meet detail and explained to him/her by the court of
must appoint a legal practitioner for him or her. as soon as possible his legal representative, relatives or any other law.
35.7 Every person brought before a court of law for an alleged criminal offence is persons he asks for. 27.6 The accused shall have the right to be
entitled to a fair trial. 27.2 Any person who is deprived of his liberty because of alleged visited by his/her relatives, lawyer, doctor, and
35.8 The accused has the right to be present at their trial. criminal offences shall have the right to be brought before a court friends; he/she shall also have the right to be
35.9 The accused has the right to challenge the evidence presented against him or within 48 (forty eight) hours of his arrest. released on bail if permitted by the law.
her. 27.3 No person shall be compelled to proffer a confession, a 27.7 The accused shall have the right to engage
35.10 The accused has the right to an interpreter if the accused person does not witness statement or testimony under oath. Any such matters the services of a lawyer to defend him/her.
understand the language being used in the court. (evidence) obtained under duress shall be void. 27.8 An accused person shall not be forced to
35.11 The accused cannot be kept in an illegal detention center, and must be 27.4 No person shall be detained in a place which is not confess to the charges against him or her.
granted visits by his or her family, doctor or lawyer. determined by law. 28.1 A person sentenced by a court shall have
35.12 Criminal liability is a personal matter and no person may be convicted of a 27.5 The law shall lay down the maximum period in which a the right to the protection of his/her security
criminal offence for an act committed by another person. person can be detained in custody pending investigations. and human dignity.
25.14 No person may be convicted of a crime for committing an act that was not 27.6 Any accused person who is convicted by a court shall have 28.2 Every convict shall have the right to be
an offence at the time it was committed, unless it is a crime against humanity the right to appeal to a higher court. visited by his/her relatives, lawyer, doctor and
under international law. 27.7 When a person is detained in custody or his detention is friends.
extended, he shall have the right to have his status communicated 28.3 Every convict shall be entitled to medical
to any person he so chooses. attention, food and education.
27.8 Prisons are for reform and correction. The state is 28.4 Every convict shall be entitled to the
responsible for the rehabilitation and skills training of prisoners universal rights granted to prisoners worldwide.
so that they can return to society with reformed characters. 28.5 Every convict shall have the right to appeal
against his or her court sentence.
Sanctions
26.1 Crimes and (their) punishment shall be laid down by the law, 26.1 The punishment for any offence shall be
and no punishment shall be administered in a manner which is imposed solely against the person who has
contrary to the law. committed the said offence.
26.2 The liability for the punishment of any crime shall be 26.2 No one shall be detained or punished for an
confined to the offender only. act, unless it is considered unlawful by the law.
Penal laws may not be applied retroactively.
26.3 No one may be subjected to a punishment
that is not issued by a court of law.
47
Annex 6. Selected Bibliography
Authored Reports
Abdullahi A An-Na’im, Islamic Family Law in a Changing World: A Global Resource Book (Zed Books
Ltd 2002)
D Acemoglu and J Robinson, Why Nations Fail (2013), 43, 68, 143-150, 332, 184, 430, 308-9; World
Bank, World Development Report (2011) 64-65
N Ali ‘Going on Tahriib: The causes and consequences of Somali youth migration to Europe’ Rift
Valley Research Institute Research Paper 5 (2016)
S Allen, H Idris and T Chopra, ‘Women’s Access to Justice and Security in Somalia’s Afmadow
District: A Snapshot’, UN-WOMEN Briefing Paper 1: 2016
M Beata Tungaraza ‘Women’s Human Rights in Somaliland’ NAGAAD, Ministry of Justice Somaliland
7
P Collier, The Bottom Billion: Why the Poorest Countries in the World are Failing and What Can be
Done About It? (2007) 20
E Duflo ‘Women Empowerment and Economic Development’ Journal of Economic Literature, 50:4
(2012)
J. Gundel, The Predicament of the Oday: The Role of Traditional Structures in Security, Rights, Law
and Development in Somalia, Danish Refugee Council (DRC) (2006)
‘Legal Aid Providers Supporting Survivors of Gender Based Violence in Somalia’ UNDP, LAW, UNFPA
(2014)
J Hussain, Islam: Its Law and Society Federation Press 2nd Ed (2004) 28-9, 32. See also, generally,
MB Hooker, Indonesian Islam: Social Change Through Contemporary Fatawa, Allen & Unwin
(2003)
Kh Husein Muhammad, Faqihuddin Abdul Kodir, Lies Marcoes Natsir, Marzuki Wahid, Dawrah Fiqh
Concerning Women: Manual for a Course on Islam and Gender 210 (Fahmina Institute 2006)
FR Islam, Open Society Foundations, ‘Legal Empowerment: An integrated approach to justice and
development (Draft Working Paper), 2012, (University of Chicago Press 1979)
F Musse and J Gardener ‘A Gender Profile of Somalia’ Developed for the EU Somalia Mission (2013)
H Myrttinen, J Naujoks and J El-Bushra ‘Rethinking Gender in Peacebuilding’, International Alert
(2014)
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Address” in A M Yakubu, A M Kani, M I Junaid (eds) Understanding Shariah in Nigeria
(Spectrum Books 2001)
M.J. Simojoki, ‘Unlikely Allies: Working with Traditional Leaders to Reform Customary Law in
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and Voice, World Bank Group and Oxford University Press (2001)
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48
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Sexual and Gender-Based Violence: Insights from Mogadishu and South Central Somalia’ (2015)
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(2018)
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LOGICA ‘Gender and Conflict Note: Somalia’, (2013)
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Central Somalia’ (2014)
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Provision and Policing in Somaliland’ (2012)
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UNSC Resolutions 1825, 1820, 1888, 1889, 1960 2106 2122 2242
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The Netherlands National Action Plan for Women Peace and Security (2016)
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The Norwegian National Action Plan for Women Peace and Security (2006)
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USAID Gender Equality and Female Empowerment Policy (2012)
US National Action Plan on Women Peace and Security (2011)
49
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Constitutions and Legislation

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Constitution of Puntland (2009)
Constitution of the FGS (2012)
Puntland FGM Policy (2015) (unofficial translation)
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Puntland Juvenile Justice Law (2016)
Puntland Rape Act (2016) (unofficial translation)
50

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Somalia

Gender Equality and Social

Principal Access to Justice Challenges

Principal Access to Justice Goals

Aims and Objectives

University Press (2001) 8.

Sweden (2011), N Svensson (ed.) 229.

18 For example, in 1992 a drought killed up to 300,000.

Rights in Somaliland’ NAGAAD, Ministry of Justice Somaliland 7.

Vulnerable and Marginalized Groups

displacement.org/countries/somalia), however other estimates reach as high as 1.1 million (see

55 ‘Country operation profile – Somalia’, UNHCR (2013).

Report’ (2014) 23, 32-33.

Intimate Partner Violence

WOMEN Briefing Paper 1: 2016, 5.

Female Genital Mutilation and Cutting

The Normalization of Sexual Violence in Somalia

Denial of Humanitarian Assistance

Council and LAW (2014) 36

Child Labor and Trafficking

Council and LAW (2014) 34-36.

accordance with the law”.

inheritance (dumal) she can lose her claim to land.

Research Institute Research Paper 5 (2016).

Hargeisa, Somaliland-UNDP (2012) 4-5.

WOMEN Briefing Paper 1: 2016, 2

Fully understanding these implications requires a more sophisticated explanation of shari’ah-based

Synthesis of These Deficits

The challenge of prosecuting sexual violence cases at court

Hargeisa, Somaliland-UNDP (2012) 31-35

Dispute Resolution under Xeer

Xeer Processes and Relationship with the Courts

Deficits and Challenges

Understanding Xeer in Current-Day Somalia

Seeking Justice for Crimes Involving Sexual Violence

WOMEN Briefing Paper 1: 2016, 7

Five Principal Access to Justice Inhibitors

147 Ibid, pp. 39-42.

3. Different conceptualizations of justice informed by deeply entrenched

Committee for the Development of Peoples and International Alert, (2015) 7.

24:3, 337-351 (2016).

Somalia, Danish Refugee Council (DRC) (2006) iii, 9.

Committee for the Development of Peoples and International Alert, (2015) 7.

Creation of More and Better Justice Options

162 Sexual Violence Oversight Committee (SVOC) in South-Central Somalia.

Human Rights, State and Non-State Law (2009) 43

Legal Aid in Criminal Justice Systems (2013).

177 Fazlur Rahman, Islam (University of Chicago Press 1979).

United States Agency for International Development (USAID)

Finally, the policy sets out seven guiding principles:

• Integrate gender equality and female empowerment into USAID’s work.

181 ABA ROLI's Strategic Approaches to Advancing Gender Equality, forthcoming.

• US national action plan on women peace and security 183

FGS Constitution Somaliland Constitution Puntland Constitution

(2015) 7, 23, 49.

United Nations, Interagency, and NGO Reports

Constitutions and Legislation

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