Justice and Terror: Al-Shabaab’s Informal Justice Mechanism

• By Daisy Muibu
• January 5th, 2019

As the African Union Mission in Somalia (AMISOM) draws down its approximately 22,000 forces, with a goal to transfer full responsibility to the Somali National Army and other national forces by 2020, questions remain as to whether Somali forces will be able to effectively quell the threat posed by al-Shabaab on their own. Military force has remained the main approach the Somali government and its international partners have adopted towards curbing the threat posed by al-Shabaab. But despite the military and security gains AMISOM and government forces have made in liberating areas previously under al-Shabaab’s control, little overall stability has been achieved in Southern Somalia. Al-Shabaab has proved to be resilient and continues to demonstrate sophisticated organizational planning and execution of attacks. The group’s resilience is driven by several factors. Most notably, al-Shabaab remains a viable local actor due to its provision of basic services, particularly, security and justice. This article argues that military might alone will be ineffective at decisively quelling the insurgency in Somalia. Any military approach needs to be accompanied by efforts to rebuild and/or strengthen existing justice mechanism across the different Federal Member States operating in Somalia.

Al-Shabaab’s system of informal justice stands out as key among other aspects of the organization that serves to ensure its resilience. Observers and the public have noted that al-Shabaab provides consistent and thorough justice that is otherwise lacking, and in doing so has carved out an indispensable niche for itself. Al-Shabaab’s role as mediator was precipitated by the movement’s organizational evolution from a dispersed and unorganized movement shortly after the Ethiopian intervention in December 2006, to a cohesive bureaucratic movement operating as a quasi-state in areas over which it controlled. Today al-Shabaab continues to govern large portions of territory in central Somalia’s Lower and Middle Shabelle regions, and in southern Somalia’s Lower and Middle Juba, Gedo and Bay regions.

Al-Shabaab’s system of informal justice stands out as key among other aspects of the organization that serves to ensure its resilience. Observers and the public have noted that al-Shabaab provides consistent and thorough justicethat is otherwise lacking, and in doing so has carved out an indispensable niche for itself. Al-Shabaab’s role as mediator was precipitated by the movement’s organizational evolution from a dispersed and unorganized movement shortly after the Ethiopian intervention in December 2006, to a cohesive bureaucratic movement operating as a quasi-state in areas over which it controlled. Today al-Shabaab continues to govern large portions of territory in central Somalia’s Lower and Middle Shabelle regions, and in southern Somalia’s Lower and Middle Juba, Gedo and Bay regions.

Within its areas of control, al-Shabaab’s courts are used to punish crime and resolve disputes. The group most commonly mediates over land or property disputes, as well as clan grievances. These courts generally adhere to Sharia law. However, as an entity, al-Shabaab is not isolated from Somali community, especially its clan system. Consequently, it is not clear whether al-Shabaab courts rely solely on Sharia, or if their rulings incorporate customary law to varying extents, especially during the mediation of clan disputes.

Nevertheless, the broad appeal of al-Shabaab’s courts can be found in the group’s ability to render relatively quick and thorough verdicts and enforce those decisions. The group’s justice and dispute resolution efforts have been describedas swift, effective, and, importantly, fair, and non-corrupt. Consequently, anecdotal accounts suggest that people travel out of AMISOM and government held regions to seek al-Shabaab’s courts. Moreover, according to the most recent UN Monitoring Group report (2018), al-Shabaab continues to provide Islamic court services in areas that it no longer physically controls.

But, is al-Shabaab’s informal justice’s enduring appeal a strength more than it is a weakness on the part of the Somali government and its international partners? The answer seems to lean more towards the latter.

On the one hand, al-Shabaab’s courts have been described as fair and even-handed. In a system where clan domination and impunity are rife, the support of al-Shabaab’s justice mechanism is seen to provide protection for vulnerable communities. Bananay explains it this way, al-Shabaab’s “support doesn’t necessarily bring economic benefits, rather it provides self-defense from persecution and protection from manipulation by individual clans and predatory economic interest.”

On the other hand, the popularity of al-Shabaab’s courts are seen to be the result of failure on the part of the Somali government and its forces to provide services and build trust and legitimacy among locals. Reports of alleged human rights violations by members of the Somali army in areas like Afgoye town in Lower Shebelle, for example, create opportunities for al-Shabaab to successfully exploit grievances. Somali security forces are, to an extent, composed of loose coalitions of powerful clan militias and have been seen to promote certain clan interests over others. In Lower Shebelle, for example, the UN Monitoring Group reported that members of the Somali National Army play a variety of roles, ranging from soldier of the state to clan militia.

The regular support Somali federal forces provide to certain clan militias during interclan conflicts, have not onlyalienated other clans like the Bantu, Rahenweyne, and Biimaal, but have also enabled al-Shabaab to successfully presents itself as a viable alternative authority. According to a source for the UN Monitoring Group, some members of minority clans like the Bantu have declared support for al-Shabab in order to get justice and hold on to their farms. Consequently, Bananay explains, marginalized and minority communities become more receptive to al-Shabaab, while Somali forces, notably the army, are perceived to operate in the interests of Mogadishu elite and the clan militias that form it.

The lack of a functional formal justice system is another short-coming of the Federal Government and existing Federal Member States. Although member states have, to varying extents, established their own justice institutions, these courts lack oversight mechanism and the ability to enforce decisions. Factor in the pervasive corruption and domination of clan interest within these courts, and it is easy to see why there is little public confidence in the formal justice system.

The other existing dominant justice mechanism in the region is customary law, notably Xeer. But this too is not without its flaws and its legitimacy is questionable in some areas. Xeer is a dominant traditional justice system that most Somalis have exposure to. However, due to its local nature, certain aspects of Xeer are not universal, and its mechanisms vary across different territories. Moreover, the process offers little accountability especially for dominant clan members, and minority groups, such as the Bantu, have historically faced discrimination under this system.

In this environment, al-Shabaab tends to emphasize local grievances, corruption, and mis-governance of existing justice mechanism. The group is savvy in its messaging and points to social injustices as evidence of Somali-elitism and clan domination. Al-Shabaab presents itself as an alternative to the status quo – as a movement that transcends clannism through Islamism. In reality, al-Shabaab is just as subject to clan considerations as any other entity in Somalia. The difference is that the group manipulates the clan system in favor of its ideological agenda.  Al-Shabaab, for example, provides protection for minority clans against dominant clans and in doing so mitigates clan conflict in areas under its control. This is especially true for al-Shabaab’s mediation efforts, which serve to ingratiate the group to disgruntled clans, particularly along Shabelle and Jubba rivers. Moreover, Somalis turn to al-Shabaab courts because, compared to the formal and customary laws, their courts provide the most consistent and thorough justice.

But, we can say that al-Shabaab’s justice measures are not so much a universally accepted system as they are an effective intimidation apparatus leveraged against other clans. Al-Shabaab’s overreaches in the brutality of its rulings it imposes. The group’s harsh enforcements can range from financial penalties, corporal punishment, amputations, to executions for different types of alleged crimes including fornication, apostasy, homosexuality, theft, unlawful killing or practicing magic. These brutal sentences are hardly acceptable to most Somalis. Furthermore, the fear of locally-recruited spies motivated by  increased air-strikes targeting al-Shabaab leaders, have led to several trials and executions of accused spies in the last years. Couple this with the difficulty faced by Somalia’s federal and local authorities to effectively addressed the mistrust, fear of domination, and marginalization by dominant clans that certain communities experience across Somalia, opportunities arise for members of certain clans to use the threat of al-Shabaab’s courts to intimidate their rivals.

Conclusion

The withdrawal of AMISOM prompts a reevaluation of the approach towards the insurgency in Somalia. A focus on justice is an important aspect for Somalia’s security architecture because the country’s development of local governance and security structure will be supported in large part by the re-emergence of justice systems across the country. These systems regulate a wide variety of local affairs, from constitutional crises in Federal Member States, to settlement of marital disputes.

Al-Shabaab is not the first armed Islamic actor to draw some support through its provision of justice and security. Al-Itihad Al-Islam (AIAI), an Islamist armed group that rose in the 1980s, managed to build some grassroots support within the Gedo region because it was able to restore law and order, and introduce Islamic courts (Maruf and Josef, 2018). Similarly, the Islamic Courts Union’s declared intent to usher in an alternative means of governance and justice, one devoid of clan loyalties and rooted in sharia law, also served to draw local support for the group.

Moving forward, military might alone will be ineffective at decisively quelling the insurgency in Somalia. Any military approach needs to be accompanied with coordinated efforts to rebuild and/or strengthen existing justice mechanism across the different Federal Member States operating in Somalia – undoubtedly a difficult task. This justice system will likely be a mix of customary (Xeer), religious (Sharia), and modern law.

Furthermore, the Somali government needs to need to build political consensus and demonstrate justice mechanism that are legitimate and indiscriminate. Doing so will provide more social order, less impunity and trust in Somali governance institutions. A military approach without, or with inconsistent attempts to re-build or introduce viable and effective local justice mechanism will not be effective overall.

Daisy Muibu is a Doctoral student at American University where she focuses primarily on matters of police legitimacy and law enforcement responses to terrorism in the Horn of Africa. Her other interests include the evolution of foreign fighters’ experiences in the Somali-based terrorist group, al-Shabaab. Some of her upcoming and most notable publications include:

February 2019: “Al-Qaida and Al-Shabaab: A Resilient Alliance,” in War and Peace in Somalia: National Grievances, Local Conflict and Al-Shabaab, eds. Michael Keating and Matt Waldman (London: Hurst Publishers) 351-363

February 2019: “Foreign Fighter Influence in Al-Shabaab – Limitations and Future Prospects,” in War and Peace in Somalia: National Grievances, Local Conflict and Al-Shabaab, eds. Michael Keating and Matt Waldman (London:  Hurst Publishers) 376-389

November 2017: Foreign Technology or Local Expertise? Al-Shabaab’s IED Capability, Combating Terrorism Center 10 no. 10 https://ctc.usma.edu/november-2017/