UNSOM’s Joint Justice and Corrections Service (JJCS) is mandated to support the Somali government by providing strategic policy advice, in line with the UN Global Focal Point Arrangement on Rule of Law (GFP) and within the framework of the Comprehensive Approach to Security (CAS), to establish effective and accountable rule of law institutions. JJCS is an integrated team, which co-locates personnel from other UN entities (UNDP, UNOPS, and UNODC) and implements joint justice and corrections programmes. The combination of JJCS’ strategic advice with programmatic delivery by UN agencies, funds and programmes has enabled an effective mechanism to deliver support and strengthen the rule of law in Somalia.
Somalia’s justice system remains in a very nascent state. While Federal Member States (FMS) have started establishing their justice systems, it has been done mostly in a disjointed manner without a political agreement on a federal justice architecture (Justice and Corrections Model). The justice system, particularly in the FMS, lacks the minimum administrative, financial and professional capacities. Court decisions are rendered with scant rationale, generally referring to sharia law without elaboration. This contributes to, inter alia, legal uncertainty and a lack of confidence in the formal justice system. In most of the FMS, justice personnel do not receive regular salaries (or any at all), which prompts some to collect unauthorised court fees. The lack of accountability, oversight, and institutional independence erodes the communities’ confidence in state justice institutions, resulting in traditional justice mechanisms remaining the prominent providers of justice services primarily in rural areas. In some locations, courts register the decisions reached by elders under Xeer or through mediation, granting a degree of state recognition to traditional justice. However, traditional justice mechanisms tend to be discriminatory, particularly against women, youth and minority clans, and overlook the protection of individual rights in contradiction of human rights standards.
- Justice and Corrections Model: JJCS has focused on supporting the development of the Justice and Corrections Model (JCM) as part of the Constitutional review and Federalization processes. A political agreement was signed on 24 January 2018 in Jowhar by all Ministers of Justice FGS and FMS. In August 2018, another version of a JCM was proposed by the FGS Cabinet. These views and ongoing consultations FGS-FMS will shape the final pollical agreement on Somalia’s justice and corrections architecture.
- Transition Plan and newly recovered areas: The justice chain (police, justice and corrections) is critical to security and provision of basic rule of law services to the population of newly recovered areas. JJCS is actively engaging through the CAS Strand 2C (Justice) on the stabilization plans for such areas, by designing mechanisms that combine alternative dispute resolution (ADR) and reinforce formal judicial structures.
- Key justice institutions at the Federal level and in Benadir developed: Strengthened capacity of the Policy and Legislative Drafting unit at the FGS Ministry of Justice and improved case management, including through new electronic systems for the Supreme Court and the Benadir Court of Appeal and Regional Court, as well asthe Attorney General’s Office.
- Establishment of key justice institutions in the FMS capitals and regions: Through the Joint Justice and Joint Corrections Programmes and the GFP the JJCS supported the establishment of the Ministry of Justice, Attorney General’s Offices and Courts in the capital cities of the FMS.
- Anti-Corruption: JJCS supported the review of the draft Anti-Corruption Commission Establishment Act which is currently before the Lower House. The MoJ established an “Ethic and Integrity Unit” and Task Force to guide anti-corruption activities in Somalia.
- Access to justice: Justice services have been delivered especially to marginalised groups, e.g., women and internally displaced persons, through the provision of legal aid services, mobile courts, and the establishment of community dispute resolution centers.
- Coordination mechanisms: Improved coordination through continued support to the Rule of Law CAS Strand 2C Working Group established under the national Aid Coordination Unit and with support of theGFP.
- Mogadishu Prison and Court Complex and the death penalty: On 23 February, 2019 Phase I of the Mogadishu Prison and Court Complex (MPCC) was inaugurated for high risk (Al Shabab/Al Shabab associated) and piracy cases. The complex is one of the FGS’s priorities to establish the rule of law, combating terrorism and providing security for court personnel. On 3 February 2019 as a result of extensive engagement between the international community, UN, the UN and FGS signed a Memorandum of Understanding which includes a landmark death penalty clause stating that nobody detained or convicted in the MPCC will be executed.
- Corrections capacity building and infrastructure: Support delivered to the implementation of training courses for Custodial Corps Officers in the treatment of prisoners, prison management, safety and security in prisons, gender and juvenile justice, prisoner’s data management and human resource management. This capacity building improved the management and handling of prisoners in accordance with human rights norms. Support to infrastructure development in the prisons is currently underway - new prisons will be built in Galkayo, Kismayo and Baidoa.
- P/CVE – Psychosocial Rehabilitation project for High-Risk Prisoners (AS and AS associated): Design and delivery of a programme for high risk convicted prisoners in Baidoa since 2016. The programme encompasses religious dialogue, civic education and psychosocial support linked to family and community, involving youth and women in decision making and preventing recruitment by extremist groups.
- Justice and Corrections Model: There is still no final agreement between the FGS and FMS regarding the jurisdiction of the Supreme Court, Constitutional Court and Judicial Services Commission(s). There are two competing lines on the JCM: one devolving more judicial authority to the FMS (the “Jowhar” agreement), and another retaining such authority with the FGS (proposed by the FGS Cabinet). Consultations are ongoing for an eventual political agreement on a model including through the constitutional review process.
- Fundamental Rule of Law Institutions, Separation of Powers and Independence of the Judiciary: Establishment of the Constitutional Court and Judicial Services Commission is essential to oversight, transparency, and judicial independence of the formal justice system and for free and fair elections. In the absence of those two bodies, judges continue to be appointed (and dismissed) by the Executive.
- High-risk caseload and transfer of cases from military to civilian courts: The transfer of the high-risk (AS/AS associated) and piracy caseload from the military courts to the appropriate legal jurisdiction of the civilian criminal justice system continues to be delayed at the highest political levels..
- Access to justice: Despite international assistance and functioning courts in main population centers, the formal judicial system still lacks the capacity to offer a credible alternative to traditional justice mechanisms and, in some cases, Al Shabab courts.
- Irregular or non-payment of salaries and low capacity of justice personnel: Non-payment (or irregular payment) of salaries, especially in the FMS, hinders service delivery and increases the likelihood of corruption. Most of the judges in the FMS hold solely a degree in Sharia Law. Others have no degree at all.
- Social structure and power dynamics in the communities: The social context in which judges operate make it very difficult for them to act in an impartial manner as they are protected by their clans and therefore accountable to them. On the other hand, Al-Shabab courts are considered “non-clan biased” but do not uphold the rights of marginalised groups including the rights of women.
- Somalia’s development of federalism and key justice institutions: Facilitate an agreement between the FGS and FMS on the JCM and its implementation. Strengthen the technical and institutional capacity of the Judiciary, Attorney-General’s Offices, Ministries of Justice, bar associations and establish the Judicial Services Commission, Constitutional Court and Judicial Training Institute (FGS and FMS levels).
- Transition Plan through the CAS structure: Have all elements of the justice chain (police, prosecutors, judiciary and corrections) effectively linked to provide basic rule of law services to the population, with due regard to the clan culture and traditional justice mechanisms.
- Provision of basic justice services through a bottom-up approach: Increase the roll out of mobile courts, legal aid and community dispute resolution committees, particularly in the newly recovered areas, with an emphasis on ensuring women and youth participation in ADR.
- Strengthen the Corrections Service: Support the construction and development of humane prisons in the FMS capitals, registration of Custodial Corps officers and issuance of biometric identity cards, coupled with oversight mechanisms. Introduce and implement Parole and Probation mechanisms in Somaliland. Assess possible expansion of the Psychosocial Rehabilitation Project for high-risk prisoners in Baidoa to other prisons and review the Prison Law.
- High Risk Prisoners: Continue to advocate for the transfer of the high risk (AS/AS associated) and piracy caseload to the civilian justice system.
- Global Focal Point coordination role: Support the establishment of Rule of Law CAS Strand 2C Working Group at FMS level, guided by the GFP to coordinate “One UN” rule of law support and delivery and bring together all implementing partners involved in the justice sector.