Last updated: June 2022
Somalia is a Federal State which is composed of two levels of government: the federal government and the federal member states, which include both state and local governments [Actors, 2.1].
The President is the Head of the State, the symbol of national unity, and the guardian of the Constitution [Actors, 2.1].
On the FGS level, the legislative power is exercised by the Federal Parliament, consisting of the House of People and the Upper House. The executive branch consists of the Council of Ministers. Local parliaments are also based in FMS. [Actors, 2.1]
Puntland has developed significant institution-building and governance mechanisms. However, it is still affected by a number of issues, including security, humanitarian, political, and socio-economic challenges, such as tensions with FGS, clashes with Somaliland and Galmudug, clan rivalries and presence and activities of Al-Shabaab and ISS. [Actors, 7.6.1]
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. [Actors, 2.1, 2.3.1, 7.6.4]
The formal justice system is only a portion of the composite justice system that operates in Somalia. Mediation or arbitration through customary law elders, as well as adjudication through Sharia courts coexist, complement or replace official justice venues. Very broadly, their subject specialisation can be described as follows:
- Official justice system: in principle all cases, civil and criminal;
- Customary (xeer) justice: main source of justice for the settlement of clan disputes, conflict resolutions, land disputes and (group) collective responsibilities;
- Sharia courts: primarily for family matters, business and commercial disputes [Actors, 2.3].
For the justice mechanism operated in Al-Shabaab controlled areas, see Al-Shabaab under 4.2 Parties or organisations, including international organisations.
Since 2014, xeer has been adopted as a supplementary approach to justice by the Ministry of Justice (MoJ) of the FGS. Officially renamed to Alternative Dispute Resolution (ADR), ADR centres have been established in all FMS, however not in all administrative regions. More than 80% of all civil and criminal cases in Somalia are settled through a customary (xeer) system, which is perceived by many Somali citizens as effective, fast and compliant with Sharia law but most importantly provides enforceable judgments. [Actors, 2.3.2]
Several issues affect the statutory administration of justice in Somalia, including limited staff and budget, limited preparation and training, lack of enforcement of both civil and criminal decisions and widespread corruption. Access to justice is also hindered by costs. Against this backdrop, statutory justice is not the preferred means to seek and access justice among the Somalis. [Actors, 2.3.1]
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. [Actors, 2.3.4]
Women and children can only have access to customary (xeer) justice through a male representative, since they are not considered by the society as responsible. Stigma is associated to women directly seeking justice and presenting their case to a male-dominated justice system and in the context of a patriarchal society [Actors, 2.3.2]. In comparison with most customary justice providers, Sharia courts are more accessible to and amenable towards women and women’s rights [Actors, 7.7.4].
Minority group members often lack protection by state authorities and continue to experience issues with regard to access to justice. Access to statutory justice is also hindered by costs, which is a variable that interacts with clannism, as minority clans tend to be poorer and less well-connected [Actors, 2.3.1]. Women from minority groups find themselves with little protection either from customary clan-based justice systems or formal legal procedures [Targeting, 4.1].
Al-Shabaab controls a significant part of South-Central Somalia and has expanded its influence beyond that.
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 and overlap or outrightly replace that of the federal government, which is often unable to enforce its presence and central power. [Actors, 2.2]
Capacity issues, such as untrained and unqualified units and lack of equipment, have a considerable impact on the effective capacity of the SNA to engage in military operations against Al-Shabaab. NISA is also experiencing a number of issues, including infiltration by Al-Shabaab and political instrumentalization, affecting its effectiveness. 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, with the UAE trying however to discourage its use as presidents’ personal militia. PMP has also fought the PMPF over access and control of Bosasso. Both PMPF (funded by UAE) and PSF (funded by US) operate outside of Somalia’s constitution and security architecture, with the latter working as a private auxiliary group [Actors, 2.4, 7.6.2]. For more details on the structure and activities of the FGS and FMS armed forces, see Actors of persecution or serious harm.
AMISOM’s effectiveness is also impacted by a number of issues, such as mandate, resources and capabilities, regional dynamics and other international actors. Furthermore, an AMISOM expert has stated that ‘an under-resourced force that is unable to protect itself is hardly in position to proactively protect civilians’ [Actors, 5.1]. For more information on the structure and activities of AMISOM, see AMISOM under Actors of persecution or serious harm.
As from January 2021, the US military troops in Somalia have largely been withdrawn [Actors, 5.2]. For more information on the structure and activities of AFRICOM, see AFRICOM under chapter Actors of persecution or serious harm.
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.