Alternative Dispute Resolution in Somalia
Somalia became independent from the UK and Italy in 1960. The Somali Civil War began in 1991 creating mass fleeing and total state collapse of all institutions. In 2004, a transitional government was established, and the current internationally recognized Federal Government of Somalia was inaugurated in 2012.
Forms of dispute resolution have been practiced in Somalia from time immemorial through the “Xeer” mediation or arbitration system. Xeer is the traditional legal system in Somalia that operates through the convening of traditional elders, one of three branches of the Somali legal system. (The other two branches are shariah and institutional judiciary.) These traditional elders are well respected and usually follow a set of precedence or consistent principles for each claim. Xeer is believed to pre-date Islam and became further reinforced, once Islam was introduced to the country.
Independence Era: Protecting the Nation, Preserving ADR principles
Somalia has played a significant role in pan-African mediation. In 1972, Somalia’s then President, Siad Barre, mediated and brokered a peace agreement between Tanzania and Uganda, curtailing war. The agreement, also known as the “Mogadishu Accord,” represents a successful example of diplomatic mediation and an achievement for all African Union members.
Following Somalia’s independence, a proliferation of investment legislation followed, intending to protect state resources, and ensuring Somalia’s sovereignty. Almost of all of the investment legislation highlighted ADR as the preferred form of dispute resolution.
Somalia became a member of the World Bank’s International Centre for the Settlement of Investment Disputes (ICSID) in 1968. Somalia signed two bilateral investment treaties in 1981 and 1983 with Egypt and Germany, respectively. Both treaties designated investor state arbitration in the dispute resolution clause/article.
Somalia signed into law the Foreign Investment Law No. 19 of 1987, designating ICSID as the preferred dispute resolution forum. At that time, Somalia was very advanced in comparison with many African counterparts, most of which were still under colonial rule. The use of dispute resolution through the Xeer system has remained constant.
Civil War: Xeer for All
Xeer usually involves material compensatory measures and is not punitive. An agreed-upon consensus is final, binding and enforced by traditional tribal elders. Given Somalia’s civil war, total collapse of the state, and the ills of conflict (a surge in sexual violence, robbery, murder, etc.), the Xeer system became inundated with criminal claims that had no place in its dispute resolution practice, but nevertheless were handled in the absence of the judiciary.
Present Day: Reformation and Reintegration
Since the formation of the Federal Government of Somalia in 2012, the Government has established the ADR Division, first housed in the Ministry of Justice, and now based in the Attorney General’s Office. The latest legislation including ADR is the Foreign Investment Law of 2015, designating the ICC or ICSID as optional.
The country’s first arbitration bill is ready for parliamentary vote and will come under the “ADR reform package,” which includes the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as “the New York Convention.”
In 2019, Somalia is set to ratify the United Nations Convention on the Enforcement of International Settlement Agreements, also known as “the Singapore Convention,” under the ADR reform package to be presented to Parliament.
By Maryan Hassan, Senior Fellow-Somalia/UK, Weinstein International Foundation