- I was sitting at dinner with a potential client in May of 2008. ”We need to harmonize the three legal systems. You know, we have here in Somaliland the traditional system, the shariah system, and the courts. Each of which does their own thing and this is a problem for us.” I had been in Hargeisa only a couple of days when I first heard this lecture. I heard a similar version of the same lecture less than a month ago.
I didn’t really buy it in 2008 and I definitely didn’t buy in last month. But that is less important than the other question: why didn’t I buy it?. The short answer is that there are many reasons, including: there are bigger problems to tackle first and most countries have to deal with multiple sources of law. The real crux of my opinion is this: no legal system will be fully matured until it has developed a set of rules and criteria for dealing with conflicts of laws. So it does not matter one lick if those various legal systems are in tension with one another or are completely aligned, or exist somewhere in the middle of those extremes.
The state of the legal systems themselves is not the preeminent question. What matters more than the state of the legal systems themselves is how we deal with the legal systems. What are the rules for navigating the system? I have written a bit about this on our blog and I have written quite a bit about it for clients.
Let me particularize why I feel that all the hand-wringing over harmonization is wasted effort and money that could be put to better use. One of the primary examples that is used is a rape case. The common rhetoric goes like this:
Here in Somaliland we have three legal systems. If there is a rape case and the case is adjudicated by the elders then the alleged perpetrator will not get any jail time and will just be forced either to marry or to pay some compensation to the family of the victim. There are different sets of punishments if the case is adjudicated in shariah courts, and even more different punishments if the case is adjudicated in the normal court system. Since there is this divergence then we have a problem.
My problem is with the conclusion at the end of that.
Indeed, I do not find it problematic that there are different punishments if the case is adjudicated in different systems. Many of my friends who work in the criminal justice system in the US long for a system where they could push some of their criminal cases to, a system of community responsibility or religious unassailability, but those alternate systems do not exist in the US. It is one of the strengths of Somali society that a single case can go to three different directions and hope to achieve three different outcomes.
At this point in the discussion I will grant those agitating for a full-scale harmonization effort that we can all agree that no single case should be given multiple opportunities to go through multiple adjudications. This can easily be handled by a small adjustment to the Organization of the Judiciary Law tightening the res judicata principles. These principles are what tell us that a case can only be adjudicated once and that multiple adjudications are inefficient and difficult for the parties as well as for our society as they strain the already limited resources that any society is able to give to its judicial sector.
The dirty little secret is that while a small amendment to the Organization of the Judiciary Law would do the trick, there is an even more simple solution. Currently, the Civil Procedure Code Article 317 says that if both of the parties to a dispute agree to go through a mediation or ADR process that they cannot adjudicate that in court. Also Article 331 obliges mediators and ADR facilitators to register their final agreements with the Court system so that the Court system can assist in the enforcement of the final resolution. While the relationship between ADR and the Courts is complex in any country, the point here is that when Somalis go through a traditional dispute resolution process with the elders, they do have access to the state structures.
Further, the Courts should not be fully retrying cases that have gone through ADR as it is inefficient. While there is corruption within the courts and while some judges obviously can be incentivized to take decisions unfairly, those instances are not – in our experience – the norm.
The norm is that the Courts have been retrying some cases, but largely they have been doing so based on the lack of any Article 331 registration by the ADR providers in Somaliland (which are largely the elders network). Were more elders to register their final decisions with the courts, the entire system would benefit from such efficiencies and particularities, as I’ve argued before.
So, in my mind the discussion about harmonization largely misses the point. Especially when the result of such discussion is work plans that focus on either trying to document the complex and varied nature of the traditional dispute resolution rules which are constantly changing and designed to be malleable and responsive to particular situations or on attempting to bring the formal law more in line with the traditional. Both ways are a waste of money in my opinion.
I will caveat this idea that I do feel that rape, genuine rape that is not simply teenagers having sex outside of marriage, should be reserved for the courts because of the increased protections that the formal system can provide to victims and because such activities are extraordinarily difficult to prove under any of the systems (which require the more particularized rules of evidence and procedure which the formal court system does have – albeit not always uses precisely).
This discussion is largely a reflection of the tension which we as humans are constantly experiencing. The tension between certainty (rigidity) and flexibility (resiliency). As many know, my first degree was in structural engineering where I studied how real engineers (I never was among them) design buildings and bridges. These structures are designed to withstanding all kinds of loads including wind and earthquakes which require that the structures be flexible enough to withstand these variable loadings as well as strong and stable enough to continue holding up whatever it is they are supposed to be holding up. The San Francisco earthquake in 1989 when the top layer of a double decker bridge collapsed onto the bottom layer was a vivid portrayal of the consequences of too much rigidity at the expense of flexibility.
Similarly, civil wars are often also the result of too rigid of a social, legal, and political system. This is why it is important to understand that perhaps harmonization is not always a uniform net positive. Perhaps it is, at times. And perhaps it is not, at other times. What is important is that we understand the effects that having multiple legal systems have on our society.
Casey Kuhlman (Watershed legal service)