IDLO’s Country Director for Somalia Adam-Shirwa Jama, responds to IDLO LinkedIn group members' questions:
Many thanks to the members for your interest in IDLO’s work in Somalia. Apologies if we didn’t manage to answer all your questions, we’ll arrange another session in the near future.
Q - According to the World Bank’s World Development Report “Conflict, Security and Development” (2011), it takes 41 years to fully transform rule of law institutions. This is especially true in countries with legal pluralism, such as Somalia. For many Somalis, the customary justice system provides the only access to justice they have ever seen. What is your long-term strategy to build their trust in formal justice institutions?
A - You are absolutely right. Customary Justice (Xeer) remains the only foundational system of justice and public order for Somalis, especially in rural areas. In recognizing that, IDLO Somalia, in addition to our formal justice sector programming, has been working on reform and customary justice in Somalia, strengthening the linkages between the formal justice system and the traditional dispute resolution system in order to improve access to justice in Somalia.
But deepening the rule of law takes time and requires a holistic approach. The reestablishment of an efficient, effective and impartial judiciary with high integrity is a critical part of that approach. In Somalia, laws are outdated, human capital is poor and there is a perception of corruption within the formal justice sector. Consequently, I think when adopting such a holistic approach, a good step to take is to start by making the constitutional and law-making process inclusive and transparent.
To address that issue, IDLO has supported the Ministry of Justice in establishing the Legal and Policy Drafting Unit, facilitating a legislative drafting process which was adopted by the cabinet recently. This process requires the government agency which is drafting the bill to consult with the public so that people know that the government serves them and it is not a predator state. In addition to law-making (in the past three years we have assisted the Somali government in drafting the Judicial Service Commission Law (JSC), Constitutional Court Law, and Human Rights Commission Law among others), our long term approach is to also enhance the capacity of the justice actors.
To this end, we have been delivering targeted training to judges, prosecutors and defense lawyers in Somalia; the latter group never having received any support from the international community. We have also supported the development of a Justice Sector action plan which includes improving judicial integrity and are also working on structural issues, such as the independence of the judiciary. The establishment of the JSC is critical in improving the public’s trust in the formal justice sector. We will continue to support the JSC raise awareness of its mandate, foster public trust and confidence in the justice sector, and undertake legal awareness campaigns to improve the knowledge of the general public.
Although these undertakings will take time, I am confident that they will enhance the public’s trust in the formal sector.
Q - I’d like to ask you to share one example of best practice and one lesson learned while strengthening the ROL in Somalia that might be applied to other similar contexts?
A - In terms of best practice, I’d refer to our ability to work directly with and to engage our local partners and counterparts. By consulting with the Somalis (both institutions and civil society) at every step, we have taken a highly inclusive approach, which allows us to not only gain trust, but also promote greater sustainability of our projects by ensuring local ownership of these critical interventions. As soon as people realise that you are here to help and it is they who determine their future, things tend to go well.
In terms of lessons learned, one of the problems we have repeatedly encountered in Somalia is the continuous change of our interlocutors (principally Ministers). For eg. over the past four years, we have had four Ministers of Justice. This, of course, poses challenges for the implementation of justice programmes. We have been forced to consider how to best maintain continuity in implementing the priorities agreed with the former Minister. To achieve this, we first ensured that our projects contributed towards national priorities and secondly, got the buy-in of the presidency and Prime Minister’s office guaranteeing that these programmes would continue despite any personnel changes at the MoJ. We have learnt that it is critical to engage different levels of government to avoid interruptions to programs in these situations.
Q - What would your partners say was your biggest contribution in Somalia - what has been IDLO’s biggest impact in the country?
A - Although it is difficult to quantify what our biggest contribution thus far has been, I think some of the repeated positive feedback we receive is around our role in putting the Rule of Law agenda at the “high table”. We have, from the start, been making the argument that the rule of law is an integral part of the stabilization and strengthening of security in the country.
My personal proudest moment, however, has to do with the critical role we played in the constitutional process.
Q - As UNAIDS Country Director, I would like to know if there is any work you are doing in the area of HIV and Law especially in relation with stigma and discrimination against people living with HIV?
A - IDLO has a Cooperation Agreement with UNAIDS to address HIV discrimination. We work closely with UNAIDS staff at HQ, regional and country levels on human rights and legal issues. In 2009 we published, with UNAIDS and UNDP, the Toolkit on Scaling Up HIV-related Legal Services. The Toolkit is our manual for strengthening and expanding legal services for people living with HIV and other key affected populations. We also offer an e-learning course on HIV law and policy which addresses HIV-related stigma and discrimination. In sub-Saharan Africa we have provided technical and financial support for HIV-related legal services in Benin and Burkina Faso, and are also in contact with related initiatives in Southern and Eastern Africa.
In November, IDLO and UNAIDS will be hosting the 3rd Inter-regional Consultation on HIV-related Legal Services and Rights, in Harare, Zimbabwe, just prior to the International Conference on AIDS and STDs in Africa (ICASA). The Consultation will include lawyers providing legal services for PLHIV and other key affected populations in Botswana, South Africa and Zimbabwe (from Sub-Saharan Africa), representatives of regional networks of key affected populations, and also participants from Latin America and Middle East / North Africa regions.
Q- We don't hear as much in the press about Somali pirates. Is that because the world has grown weary of the issue or that piracy is actually down? If piracy is down, what accounts for this in your view?
A – Although I am not expert on this issue, I think there have been a number of contributory factors – principally, continued stability in Somalia (especially in areas where piracy has had strong bases, like Puntland and GalMudug), of course the high presence of international community navies off the coast of Somalia (the Indian Ocean and the Red Sea), and lastly that the companies which own ships have decided to employ armed guards so that vessels are better protected. Having said that, to do away with piracy completely, we need to be focusing on the causes of that menace - chiefly a weak state and lawlessness in the country.
Q - What is the "private sector solution" for Somalia? How could corporations step up to help and how might IDLO facilitate their involvement?
A - IDLO’s country programme essentially contributes to peace and state-building goals. We are of the view that the private sector has a role to play in promoting peace and post-conflict economic recovery. We know that some of the attractions of Al-Shabaab (an Al-Qaeda affiliated terrorist group in Somalia) for young boys (less so, girls) are due to economic reasons; there is a severe lack of jobs and economic opportunity in the country.
The private sector can serve a positive role in easing tensions and spurring economic development.
Although the private sector has been doing well despite the absence of government, some say it has now reached a peak and will require state help. Laws and policies are absent. Almost all the justice actors (lawyers, judges and prosecutors) will require training on simple areas of law, like contract law. This is where IDLO can complement the World Bank and others who are involved in this arena.
Part of IDLO’s organizational strategy is to facilitate innovative legal approaches to support sustainable development and economic opportunity; to this end, we have advised on the Foreign Direct Investment (FDI) Bill, which the cabinet recently submitted to parliament for discussion and approval. If passed, this would be of great interest to the private sector, as legal systems are key determinants for foreign direct investors when considering investment in emerging markets.
Q - What can IDLO do to support Somalia's drive for a new Constitution?
A – Constitutional development in Somalia is critical for peace and state-building efforts. The international community should support a process that is led and owned by Somalis, enabling communities to shape the new Somalia they would like to live in. Our approach has always been as technical advisors (on the drafting, consultation and adoption processes); let the Somalis be the policy-makers on what goes in the draft.
However, we have been asked to further support the constitutional process and are considering facilitating the consultation and civic engagement aspect of this. There has been little consultation, targeted or otherwise, to date. This will be the area on which our support will now focus, subject to donor funding.
Q - Could IDLO do more to combat human trafficking and sexual exploitation and abuse in the region? What are your recommendations?
A - Although IDLO Somalia is not currently directly engaged with work to combat human trafficking, we are contributing to the eradication of sexual exploitation and abuse. In 2015, we began implementing a Gender-Based Violence project in various regions across Somalia to better understand the access to justice barriers facing survivors of sexual/gender based violence. IDLO will endeavour to do more in combating sexual exploitation and abuse by fostering a culture of justice, eliminating impunity and strengthening both informal and formal justice systems. IDLO hopes to continue work in this arena by providing more direct technical support to the Attorney General’s Office and the Ministry of Justice, and implementing a holistic, cross-sectoral approach.
Q - There have been recent accounts in the press about corruption in Somalia's oil and gas industry. Is anti-corruption training part of that solution or is it really just a window dressing that allows corruption to carry on with a veil of honesty?
A – There is a huge perception that corruption is endemic in Somalia. There have been reports that it mars every aspect of Somali society. Businesses are used to the climate of lawlessness - avoiding taxes, selling expired food and drugs, occupying public properties and profiting from them. Accusations against government are also numerous too, both in terms of public funds being used as personal income and of course political corruption and vote-buying. I don’t think this is such a strange phenomenon in a country that has undergone decades of lawlessness and has been the poster-child of failed states. However, all is not lost and I am optimistic that by employing a comprehensive anti-corruption strategy, we can significantly reduce the practice.
The good news is that the international community recently made “Accountability and Transparency” a priority. Also, the Somali government has, in recent years, made some progress on reforming the public finance management sector through the Cabinet's approval of the Public Procurement, Concessions and Disposal of Assets Act in 2014, which is to be presented to parliament for enactment. Once enacted, the law will re-establish the public procurement regulator: the Public Procurement, Concessions and Disposal Authority (PPCDA), which will regulate public procurement, concessions and the disposal of assets in the country. In the interim, the government has established the Interim National Procurement Board (INPB) to validate all new procurement and concession contracts until the establishment of the PPCDA.
In 2014, the Ministry of Finance also sponsored two critical bills: the Procurement Amendment Bill and the Audit Bill. Both Bills have been approved by the Council of Ministers and are currently before the Somali Federal Parliament. Once these laws are enacted, they will provide critical foundations for stronger financial governance in Somalia.
However, laws are just the beginning of the story in combating corruption.
In addition to the capacity building of officials, it is vital that we create a vibrant and powerful civil society that will act as a watchdog and counter the “culture” of corruption. In addition to our capacity-building support on procurement, IDLO Somalia is now bringing civil society organizations to the fore so that they are better equipped to spot, flag and report corrupt practices. We are also in discussions with our developmental partners to look into introducing integrity pacts in Somalia.
Consequently, yes, training is needed but as a component of a broader strategy.
Q - What do you make of the U.S. re-opening its diplomatic mission in Somalia?
A - Obama’s government re-established diplomatic relations with the current government in January 2013, so the opening of their diplomatic mission is the latest step in restoring diplomatic ties with Somalia, following its withdrawal from the country two decades ago. The US remains one of the biggest donors in the country from security and rule of law programs to humanitarian support.