Somalia's Judiciary Attacked but Not Defeated

Gunmen killed Judge Sheikh Mohamad Abdi Aware outside of his mosque last week in Bossaso, a scorching Aden Gulf port on the northeastern coast of Somalia. Judge Aware, despite whatever debate he may have stoked in Somalia, devoted his life not only to the rule of law but to the pursuit of justice according to the sometimes conflicting state, Islamic, and Somali customary law systems in an incredibly volatile political environment.

Back in 2007, a group of local rights workers and I carried out the UN Rule of Law and Security Programme's first child justice survey across the entire north half of Somalia. What tears me up personally about Judge Aware's death is that I believe I met him and yet I cannot remember his face. There were so many times when the imagination became so obsessed with who the bad guys were that it was hard to really focus on the good guys. The painful truth here, which I believe illuminates why foreign interventions often stumble, is that once murdered the dead's lifetime of positive accomplishments, like those of Somalis as a whole, were forever obscured beneath the headline, "Shot dead." Aware accomplished and represented much more than an early death. Although this is a blog format, I believe this topic is so important and so often misunderstood that I'm compelled to write a personal editorial essay.

The rights team and I met with kids detained in the ridiculously hot and uncomfortable prison in Bossaso where the accused from the court where Aware served were remanded and punished. All prisoners, thieves, murderers, rapists, hijackers, those awaiting trial, and children either accused of crimes or simply homeless and troublesome slept on the same floor together. Rumors abounded of men abusing the teenagers. Three girls accused of chronic pickpocketing and a pregnant woman resided in the largely empty women's wing. It was deeply disturbing to listen to some of the detained plea for a new trial, or even a first trial. But looking closely, we found that the trouble was not always coming from poor leadership or ill-will; it was usually the incredible lack of qualified legal officials and funds...

The UN's Rule of Law and Security Programme, with all its kinks and challenges, was working with the Ministry of Justice to dramatically improve these conditions. European donors had helped to expand and improve the prison, so things were getting a little better here and there. We also got a chance to meet with police officials in the new academy in nearby Aarmo. Again the UN with European donors had rightly chosen Somalia's northeast, the state of Puntland, to pave a foundation in rule of law with improved policing, courts, and legal aid. It was, I believe, the most critical factor in rebuilding Somalia. To construct this vital force of society upon which everything in Somalia relied, the global community should have rallied around the Puntland Ministries of Justice and Interior. But there were two factors persistently sabotaging the rule of law effort before the criminal groups including the Islamic youth militia, "Shabab," and those referred to as "pirates" had begun their criminal sprees.

The international community did not have faith in the Somali leadership, partly because they only took the time to get know government officials and gang leaders, rather than traditional elders and non-traditional progressives, and partly because they simply could not get through the debates on how to get Islamic and Somali traditional leaders to work together with the state. As a result of this fog, many donors looking in from the outside were timid, afraid they were throwing their money in pits to support leaders who would either go corrupt or be killed. Some believe that this is exactly what happened.

But having met many of the state justice officials, Islamic leaders, and Somali traditional elders and discussed with them everything from child rape to forced marriage to the death penalty, I believe that despite their chauvinism, pig-headedness, and antiquated methods they were the best thing to happen to modern Somalia. The fact that they were under-supported, obscured beneath the body count headlines was exactly the reason criminal gangs rose in power. It was not simply the Justice ministry lacking funds; it was the Somali society losing faith in a Justice ministy which could not keep up with demand that undermined it.

By the time the team and I arrived to the top court in Bossaso where Judge Aware worked, the team and I were covered in sweat, with Bossaso's white dust speckling our hair and clothes. I arrived fuming about seeing the pregnant woman and under-aged girls rotting in the prison. As our armed guards waited outside, all eyes fell on me, expectantly. The clerk of the court decided against my wishes to interrupt an actual trial just to introduce me to the judge sitting on the bench. People watched patiently, but I expected them to explode. We finally got the chief judge, and two appeals judges, to join us in a back room to discuss the kids in prison. One of them was also an Islamic sheikh of the moderate Shafii school. Immediately, I launched into a harangue on the rights of the kids and the pregnant woman. I expected a fight. Instead, the chief said, "We agree with you."

Every move they made, they explained, was critical to the stability of the city. Every day dozens of people were flooding into the city's slums, escaping either the harsher than normal droughts or fighting in the south. And with every influx of new, impoverished inhabitants, there were more fights, more thieves. Many believed that hijacking foreign ships was the only industry that had any future in it since only the UN agencies were willing to donate and invest in livestock and only the Gulf states bought Puntland fish and lobster.

The ministry's pool of trained officials got stretched every month or two when one of their league just blew up, quit, and decided to leave for Dubai or Sweden. To make matters even more difficult, the judges had to satisfy the state in order to secure their accounts, satisfy the Islamic leaders to be sure of divine protection, as well as to reduce the chances of being targeted by radicals, and satisfy the Somali traditional elders who were those with the greatest power in the region.

In the case of the "pirates", sentencing one of their kind for crime was to take on the broader population which was starving for economic circulation at a time when some foreign ships were stealing from the fisheries with impunity. To sentence Islamic radicals for crimes committed in line with their political goals was to take on those who had lost complete faith in a state stretched beyond its means and reliant on Western donors for every rifle. And so, here's what surprised me, finding non-judicial resolutions for the imprisoned girls and re-locating the pregnant woman was to take on the only thing society had left intact, Somali traditional law.

The appeals judge explained it this way. Several times he had seen these cases and asked the girls' parents to take them out of the prison and return them home, but the parents refused, claiming the girls had shamed them. Others told the judge that to send the girls to the street was to make them homeless and vulnerable to prostitution or trafficking. We followed the judge in asking the local women's organizations to take the girls under their wing, but even there the care-providers frowned. They could hardly keep up with the huge load they had, they couldn't take on new protection cases.

That's when I believe I met Aware, we got up to go and shook hands with dozens of people, following up with a workshop later. Now, looking at these men in the eye, knowing that I disagreed with them on so many things from marriage law to the death penalty, I was suddenly struck with that feeling which plagued them and united them as a vital, but shrinking cadre. I was never able to help resolve the case of those kids and the pregnant woman in the prison; and it weighed on me, just a tiny fraction of what likely weighed on them.

I advocated with everyone I could in the ministry and the UN so that I could alleviate that weight, but eventually my colleagues and I could not find any mutually beneficial issue. To take a stand, to insist that an aid agency or orphanage take the kids would without a doubt bring on the wrath of the parents and their clan leadership for undoing their wishes and exposing the girls to Western influences without their permission. And so Judge Aware, like the others, mucked around in these kinds of cases for a long time. Eventually, he took a stand for state and Islamic law over that of the clan. He decided at last, and based on hard evidence, to take down several pirate thugs despite threats. And then their advocates shot him to death.

Judge Aware's surviving colleagues have near their reach the reigns of law for northeastern Somalia. With success there, chances are better to bring greater rule of law to the south. But their number, those who can equally satisfy not only the state but also the Islamic and traditional leadership, which requires gravitas, are dwindling. If the international community at last recognizes the critical importance of the Puntland Ministries of Justice and Interior and their backers for stability for the country, perhaps greater effort will be taken not only to enhance the police academies, prisons, and law school, but also to protect the judiciary leaders and encourage candidates residing overseas to return home. With this critical effort judges like Aware will not be so easily gunned down on the street simply for being tough on crime and society may eventually re-gain confidence in its leaders.

There are some trouble-makers, sure, just like in every country, but there are also a great number of scarred and imperfect heroes who, if they are highlighted amid the whirlwind of obituaries for the country, may just have the power to resurrect Somalia.

[Photo: Bossaso court house, Daniel J Gerstle]