GUIDANCE NOTE
Last updated: June 2022

Article 7 QD stipulates that protection can only be provided by:

 
Where no actor of protection meeting the requirements of Article 7 QD can be identified in the home area of the applicant, the assessment may proceed with examination of the availability of internal protection alternative.

The Somali State

The President is the Head of the State, the symbol of national unity, and the guardian of the Constitution.

On the FGS level, the legislative power is exercised by the Federal Parliament. The executive branch consists of the Council of Ministers. Local parliaments are also based in FMS. Puntland has developed significant institution-building and governance mechanisms. However, it is still affected by a number of issues.

The Judiciary consists of the Constitutional Court, the Federal Government level courts and the FMS level courts. Under the Provisional Constitution, the judiciary power shall be independent of the legislative and executive branches. Puntland has by far the most advanced (formal) judicial system among the FMS. Islam is the State religion and Sharia is the basis of both statutory and customary law.

The formal justice system is only a portion of the composite justice system that operates in Somalia that includes also customary justice and Sharia courts. Independence and impartiality of the judiciary is not always respected by the government. Furthermore, local courts often depend on local clans and are affected by clan politics. The right to a fair and public trial is often not enforced at all, with the authorities not respecting most rights relating to trial procedures.

Women, children and minority group members often experience problems with regard to access to justice.

The state security architecture remains deeply fractured, with impacts in all other domains. As a consequence, the FMS’ security, political, and administrative powers are often still weak. Several issues have a considerable impact on the effective capacity of the SNA to engage in military operations against Al-Shabaab with the group having also infiltrated NISA. The PSP has been described as the only functioning state police service among the FMS police services. On the other hand, PMPF has supplanted various official policy functions in Bosasso and has become involved in Puntland politics, clan rivalries, and geopolitical conflicts, while being used to combat Al-Shabaab and ISS forces as well. It still works as the praetorian guard of current Puntland’s administrations. PMP has also fought the PMPF over access and control of Bosasso. Both PMPF and PSF operate outside of Somalia’s constitution and security architecture, with the latter working as a private auxiliary group.

The Somali multi-faceted justice system is still experiencing significant weaknesses and is unable to effectively detect, prosecute and punish acts that constitute persecution or serious harm. Furthermore, law enforcement is continuously challenged by the different conflicts taking place in Somalia, including the conflict with Al-Shabaab. Therefore, it can be concluded that, in general, the Somali State would not be considered an actor of protection meeting the criteria under Article 7 QD.

Authorities of Somaliland

The authorities of Somaliland dispose their own legislative, executive and judiciary branches.

Despite some issues experienced by the Somaliland armed forces, they have managed to deny Al-Shabaab a foothold in the area.

Justice provision in Somaliland operates similarly to that in the rest of Somalia, whereby it combines statutory courts with both xeer and Sharia. All three systems are recognized by the Constitution of Somaliland.

Somaliland doubled the number of (statutory) judges in less than a decade and has introduced mobile courts to deal with the access to justice for rural areas harder to reach. However, a number of issues still affect (statutory) justice, such as high legal fees and widespread allegations of corruption. In Somaliland defendants generally enjoyed a presumption of innocence and the right to a fair trial.

Women, children and minority group members often experience problems with regard to access to justice.

It can be concluded that the authorities of Somaliland, in areas under their control, may, depending on the individual circumstances of the case, be considered able and willing to provide protection that meets the requirements of Article 7 QD. In disputed areas between Somaliland and Puntland, the criteria under Article 7 QD would generally not be met.

When assessing the availability of protection by the authorities of Somaliland, individual circumstances such as home area, age, gender, clan, social and economic situation, actor of persecution and type of human rights violation must be taken into account. Protection by the Somaliland authorities is generally not considered available for members of minority groups, LGBTIQ persons and women, especially in cases of sexual and gender-based violence.

Al-Shabaab

There is no functional formal judicial system in Al-Shabaab-controlled areas. Al-Shabaab has established courts in the territory under its control, as well as beyond it, through the introduction of mobile courts, including in Mogadishu. These courts implement the Sharia law in its strictest form leading to executions and corporal punishments.

Al-Shabaab carried out arbitrary arrests on the basis of questionable or false accusations. Its courts did not permit legal representation or appeals. The group administered justice without consulting the victims or taking into account the broader circumstances of an offence.

The lack of due process and the nature of the punishments would not qualify the parallel justice mechanism operated by Al-Shabaab as a legitimate form of protection. Further taking into account its record of human rights violations, it can be concluded that Al-Shabaab does not qualify as an actor of protection who is able to provide effective, non-temporary and accessible protection.

Considerations on clan support

Most Somalis rely on support from patrilineal clan relatives. Clans can provide different forms of support for their members.

Under the xeer system, clan elders act as mediators or arbiters, and play a central role in the resolution of local and intra-clan disputes.

 
The support provided by clans in Somalia cannot be considered as meeting the requirements of Article 7 QD^[7].