This is Working Paper no. 2 in the International Development Law Organization (IDLO)’s Enhancing legal empowerment series.
In recent years, the idea of promoting legal empowerment as a means of increasing access to justice has sparked growing interest in donor circles. At the same time, recognition that non-state justice is the reality for many of the world’s poor has led to greater acceptance of the need to include customary justice systems within the scope of legal reform and development efforts. Indeed, the question is now becoming how, rather than if, efforts should be made to promote greater access to justice through engagement with customary justice systems. However, a second dilemma arises once the decision to engage is made: how to do so in a way that has local legitimacy, that maintains the positive aspects of customary law that make it popular with justice seekers, and that also promotes the modification of the rules and practices that do not comply with international human rights standards or that disadvantage vulnerable sections of the community.
To shed light on the issue, this chapter examines the short- and mediumterm impact of attempts by traditional elders in Somaliland and Puntland to revise elements of Somali customary law (xeer) with the aim of bringing it into greater alignment with both Islamic law (shari’a) and international human rights standards. Supported by the Danish Refugee Council, the elders initiated a process of dialogue culminating in Regional and National Declarations in the two de facto autonomous regions, which contain revisions to xeer in a number of key areas. Six years after the first dialogues commenced, the research on which this chapter is based indicates that the Declarations can be linked to certain positive changes in customary justice, including the abolition of harmful practices such as ‘widow inheritance’, advancements in women’s inheritance rights, and a shift towards individual and away from collective responsibility for serious crimes. Other objectives, however, particularly in relation to enhancing access to justice for vulnerable groups such as displaced populations, minorities and victims of gender crimes, do not seem to have met with the same level of success.