EMBEDDING HYBRIDITY INTO GLOBAL RESPONSE: THE CASE OF SOMALIA

Zoë Meroney Contemporary Conflicts & Global Responses

Spring 2014

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INTRODUCTION AND CONTEXT Somalia has experienced decades of weak and conflicting forms of

governance. Since 1991 it has been considered one of the quintessential

examples of a failed state. Multiple autonomous regions within the state have led

to fractured governance and numerous justice systems. “Formal” authority has

not translated into an effective set of state institutions. Justice, security, and

services exist more as informal and non-state institutions while the state lacks

capacity. Peacekeeping, peacemaking, statebuilding, and peacebuilding efforts

have all met with limited to no success and have struggled to fulfill their

mandates.

The population of Somalia presents quite a contradiction. The Somali people

are for the most part a homogenous population, sharing a common ethnicity,

language and religion. However, in truth, the population is divided into multiple

clans and subclans that comprise a much more significant element of Somali

identity (Annex I). The clan system has operated through its own system of law

(xeer) and reconciliation as well as a system of compensatory payments for

wrongdoing (diya) that exists parallel to state “structures.” Attempts at imposing

a classic state structure at the national level has not interacted with these local

clan and community contexts. Throughout Somalia, local communities have

adapted to “failed state” conditions. Different groups from civil society as well as

clan members have, “at times managed to provide some basic services, operate

piped water systems, regulate marketplaces, and collect modest levels of taxes

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and user fees to cover salaries.”1 This provision of services is quite significant

and imbues clans and civil society groups with a greater deal of trust and

legitimacy than the central state.

A modern state structure has thus been unsuccessful in uniting the disparate

clan elements and not only resulted in a repressive regime post-independence

but ultimately in complete state failure. Clans rebelled against Mohamed Siad

Barre’s autocratic regime causing the fragmentation in Somalia to become further

entrenched.2 The divisions today are in great part the result of the different clans’

resistance to Barre’s government.

Further complicating the fragmented and weak nature of Somalia are the

forces of political Islam that have gained traction, particularly since state failure.

The Islamic Courts Union, an armed militia, was formed in opposition to the

Transitional Federal Government. The ICU has taken advantage of the

decentralized and fragmented nature of Somalia, often using guerrilla tactics.

Factions have since split off and formed Al-Shabaab, a youth militant Islamic

group, with terrorist ties.3 As can be seen in Annex II Al-Shabaab and other

Islamist forces control large portions of central and southern Somalia.

This further undermines the legitimacy of the central government as well as

complicating and undermining efforts on the part of international actors.

1 Menkhaus, Kenneth, “Somalia: Governance vs. Statebuilding,” in Call, Charles T. and Vanessa Wyeth, ed.s, Building States to Build Peace, Lynne Reiner: Boulder, 2008, p. 196 2 Kaplan, Seth, “Rethinking Statebuilding in a Failed State,” The Washington Quarterly, 2010, V33N1, p. 83 3 Ibid, p. 87

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This paper will argue for applying a bottom-up hybridity approach to

statebuilding and peacebuilding efforts in Somalia. It will specifically focus on rule

of law and justice as a key arena where the complexity of context requires a

more nuanced approach to building capacity. Somalia is representative of a ‘new’

type of global conflict where identity, actors, and methods of warfare are varied

and less clearly defined. International response must react in kind with more

creative approaches that move beyond a top-down Western statebuilding

approach. International actors in Somalia must acknowledge the context they are

operating within and seek to work with non-state actors and groups who possess

a great deal of legitimacy and the trust of communities. Broader implications for

international actors operating in fragile and conflict-affected settings globally can

be drawn from a close examination of Somalia’s trajectory.

JUSTICE AND RULE OF LAW IN SOMALIA

Somalia has an incredibly complex set of overlapping justice and law

systems that have emerged from the clan system, Islam, colonial rule, and post-

colonial structures. Clan law was the primary justice system in Somalia until

colonial powers established civil law systems based upon their own home

systems.4 The clan system, xeer, is based around the idea of recompensing a

clan member for damages from wrongdoing. Sharia courts tend to work well with

the clan courts and deal with matters of property and inheritance.

During colonial rule common law was instituted by the British, based on

precedent, while in the south the Italians established a separate legal system.

4 Afyare Abdi Elmi, Understanding the Somalia Conflagration: Identity, Political Islam, and Peacebuilding, Oxford: Pluto Press, 2010, p. 17  

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After independence Somalia attempted to establish a legal system that

incorporated some aspects from the many different legal systems that existed but

this was done ineffectually with unity at the upper levels but very disparate

systems at the local levels.

British colonial rule developed a very clearly delineated set of laws that

categorized which matters would be dealt with by customary, sharia, and British

civil law. In the area of Italian jurisdiction a separate civil law code was

implemented. In both cases Western law was imposed as the primary system,

operating over customary and sharia law. However, notably Somalis were able to

resolve certain types of disputes, such as divorce or reimbursement suits, in the

clan or sharia courts.5

In 1960 Somalia gained independence and became a democratic state

with numerous political parties. An effort was made to create a single judicial

system from the British, Italian, Sharia, and clan systems.6 A Committee was

created that culminated in a convoluted mixture of laws and legal system

formats.

The country’s civil and penal codes were based on the Italian legal system, while criminal procedure was based on the Indian Code. In addition, shari’a was maintained for family, inheritance and minor civil matters, and xeer was recognised as a legitimate option for the settlement of clan disputes…Despite this progress on a formal level, however, these reforms did not have a strong nationwide impact in practice.7 In 1969 however, a military coup put Mohamed Siad Barre’s repressive

5 Le Sage, Andre, “Stateless Justice in Somalia: Formal and Informal Rule of Law Initiatives,” Centre for Humanitarian Dialogue, 2005, p. 17 6 Ibid, p. 18 7 Ibid.

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socialist regime into power. Ultimately, this led to the rebellion of numerous clans

resulting in his overthrow and state failure in 1991.8 This left Somalia without

functioning law and justice institutions, leading to today’s environment with the

clan system and sharia law acting as de facto legal systems. Regions such as

Somaliland and Puntland have also established functioning systems of their own

that are unrelated to the Somali state as a whole. The fragmentation and

decentralization is further emphasized by civil society organizations in some

regions who have provided some semblance of public services in lieu of the state

having the capacity to do so.

INTERNATIONAL RESPONSE

Why have attempts at statebuilding and peacebuilding in Somalia continued

to inadequately address the problem? As Seth Kaplan argues, “Previous

attempts to help Somalia have foundered because they have been driven by the

international community’s agenda, rather than by Somali realities. The UN,

Western governments, and donors have tried repeatedly to build a strong central

government - the kind of entity that they are most comfortable dealing with - in

defiance of local sociopolitical dynamics and regional history.”9

There have been over a dozen peacekeeping and peacemaking attempts

in Somalia led by the U.S., UN, African Union, and others, all of which have fallen

short. The “Blackhawk Down” fiasco, including the death of eighteen U.S.

Soldiers and countless Somalis, led to the withdrawal of international and

8 Afyare Abdi Elmi, Understanding the Somalia Conflagration: Identity, Political Islam, and Peacebuilding, Oxford: Pluto Press, 2010, p. 18  9 Kaplan, Seth, “Rethinking Statebuilding in a Failed State,” The Washington Quarterly, 2010, V33N1, p. 82

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governmental actors from Somalia. The UN then moved its base to Nairobi,

Kenya and has been operating from there since then.10 In 2004 the Transitional

Federal Government (TFG) was formed after consultation with the Inter-

Governmental Authority on Development. The TFG was viewed with suspicion by

Somalis and has struggled to build and maintain any type of legitimacy since.

Being based in Nairobi keeps international actors from truly being able to

get a handle on the climate in Somalia and interact with all different levels of

state and society effectively. It has been suggested that, “international actors

need to spend more time in Somalia to improve their engagement. Improving the

accuracy of contextual analysis requires greater attention to local knowledge.”11

APPLYING HYBRIDITY The concept of hybridity and the idea of using a hybridity lens is a

relatively new addition to statebuilding and peacebuilding discourse. It responds

to the limitations identified with the liberal peacebuilding model of the 1990s that

applied a templated approach wherein international actors imposed democratic

regimes. Failed states were viewed as institution-less settings, a place to start

from scratch. “The failed states discourse does not consider the possibilities of

non-conventional governance and authority…Failed state discourse is

problematic because “the traditional interpretation of ‘failed states’ such as

Democratic Republic of the Congo and Somalia is closely tied to a view of the

modern state system that assumes that all states are essentially alike and

10 CIC, Annual Review of Global Peace Operations 2012, Lynne Reiner, 2012, p.110 11 OECD, 2011 Report on International Engagement in Fragile States: Somali Republic, OECD Publishing, 2011, p. 22

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function in the same way” (Merton 444).”12 As Roland Paris amply demonstrates

in his book At War’s End: Building Peace After Civil Conflict, the liberal

peacebuilding model met with limited success when applied on the ground in

complex conflict settings.

As Kaplan argues, “Somalia calls out for a new approach to state-building,

one that takes fully into account a country’s indigenous social fabric and

institutions, and that attempts to build from the bottom up…”13 The multiplicity of

rule of law and justice institutions, both state and non-state require adopting a

hybrid approach. The classic structure of the modern state does not find a

foothold in a fragmented and complex society such as Somalia. There are simply

too many parallel and non-state institutions imbued with hefty amounts of

legitimacy. Previous efforts to unify these structures resulted in a cumbersome

and poorly articulated law and justice system. Further, statebuilding efforts

cannot simply paper over these existing structures and begin anew.

Menkhaus argues for an approach that, “ combines what is already

working locally with what is essential nationally.”14 The central state should

operate with a limited mandate, interacting and mediating the functions of the

various local actors who possess the capacity to meet the needs of the

population. A place should be made for customary and non-state institutions to

operate effectively on the local level while also interacting with regional and

12 Cawsey, Abdullahi M., “The Success of Clan Governance in Somalia: Beyond Failed State Discourse,” http://somalithinktank.org/the-success-of-clan-governance-in-somalia-beyond-failed-state-discourse/ (Accessed May 7, 2014) 13  Kaplan, Seth, “Rethinking Statebuilding in a Failed State,” The Washington Quarterly, 2010, V33N1, p. 89  14  Menkhaus, Kenneth, “Somalia: Governance vs. Statebuilding,” in Call, Charles T. and Vanessa Wyeth, ed.s, Building States to Build Peace, Lynne Reiner: Boulder, 2008, p. 196  

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national institutions. International actors need to broaden their statebuilding

efforts to include sub-national levels and apply policy on a more micro level.

The inherent difficult with the concept of hybridity is its context specificity.

Applying a hybridity lens to statebuilding means acknowledging the unique

characteristics of a conflict's 'climate' and incorporating it into programming.

Clearly this is daunting as it complicates an international actor's mandate and

ability to create crosscutting policy.

However, despite these limitations or uncertainties it has become

increasingly clear that the global climate of conflict requires more context specific

and ingenious solutions. Hybridity then, can refer to numerous types of policies

or statebuilding and peacebuilding programs, depending on the context.

The informal and parallel institutions in Somalia have not necessarily

always been imbued with a great deal of effectiveness and trust. In the aftermath

of state failure militias controlled many areas and there was a great deal of

fragmentation in the provision of social services and security from community to

community.15 However, the informal structures rapidly adapted to conditions and

gained legitimacy quickly. As such, they must now be taken into account.

Somalia is not a state without structures. Rather it is a state with too many

structures that exist in tension with one another. Reconciliation of these systems

would be too ambitious a goal but a kind of synergy or productive interchange

does seem possible. In particular, fostering the role and agency of civil society

and non-state actors in the statebuilding process is key to building trust, 15 Menkhaus, Ken, “Somalia’s 20-Year Experiment in Hybrid Governance,” World Politics Review, 2012, http://www.worldpoliticsreview.com/articles/12245/somalias-20-year-experiment-in-hybrid-governance?page=1

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legitimacy and capacity in the government.

Incorporating civil society and clan structures into the statebuilding

process also offers the potential of marginalizing the influence of subversive

forces such as al-Shabaab. If civil society has the agency to contribute and

participate in institution building there is less of a foothold for extremist groups to

establish legitimacy and build a popular base.

New efforts initiated by the Somali central government and international

actors in the justice sector acknowledge the need to include civil society in a

substantive way that will foster trust and effective state-society relations. The

Somali National Dialogue on Justice Reform was held in April of 2013. It brought

together a diverse grouping of Somalis from government officials to clan elders to

civil society organizations. In the dialogue communiqué actors resolved to make

the justice system more accountable, incorporate civil society in the development

of rule of law and justice structures, and notably to accommodate Sharia and

clan law in the formal justice system. Sharia and clan law are most trusted by

Somali civil society at this point. The reconciliation of these traditional forms of

justice with the formal legal system offers an important new avenue of state-

society interaction.16

However, this does not imply that hybrid peacebuilding is an easy project or

one that has been clearly defined as of yet. Ulf Terlinden, an expert on

Somaliland, provides an important counter discussion to proponents of the

hybridity approach. Hybridity must be considered with the proper limitations in

16 The Communiqué of the National Dialogue on Justice Reform Conference, Mogadishu, Somalia, 2013.

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mind. He describes the clan system as a flexible grid that encompasses the

population and mediates society relations. There is a danger in attempts to

formalize the clan system, which is inherently very ad-hoc and issue driven. He

argues for an approach to hybridity that is catalytic and dynamic but is careful not

to overly structure and stagnate informal processes. It is a useful tool but

international actors must be careful not to mesh formal and informal structures to

the detriment of both.17

The Berghof Handbook dealing with conflict transformation also

illuminates the challenges of a hybrid approach to peacebuilding. “The fluidity

and adaptability of custom poses two sets of problems. Firstly, the external

researcher who has the desire to “define” what custom “really” is, has a problem.

Definitions are designed to pin things down, therefore, they do not sit well with

phenomena that are characterized by their fluidity. Secondly, and more

importantly, the people on the ground also have problems, as this fluidity can

lead to much contention about how the – unwritten – norms of custom and

traditional conflict transformation should be applied in practice.”18 It is a delicate

process then, creating a dialogue between formal state structures and informal

non-state structures. However, in light of the failure of statebuilding and

peacebuilding processes thus far it seems imperative to find a method of

implementing a hybrid strategy.

The key here is a non state-centric approach. It is not that a strong central

government is not also an aim. But it is not the starting point. First, context must 17 Interview with Ulf Terlinden, Nairobi, Kenya, December, 5, 2013 18 Boege, Volker, “Potential and Limits of Traditional Approaches in Peacebuilding,” Berghof Handbook for Conflict Transformation, 2011, p. 437

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be understood, actors at all levels engaged, capacity must be built, and existing

structures utilized before a national building project can be considered.

IMPLICATIONS AND CONCLUSIONS In an increasingly globalized world, managing conflicts has taken on a

new level of complexity. Varying state structures, governance mechanisms,

economic systems, and cultural norms are interacting and intersecting in intimate

and unprecedented ways. The global system has shifted beyond simple

structures of bipolar or multipolar sovereign hegemony. Conflict is no longer

defined as simply a territorial battle between states. Conflict has been

complicated by non-state actors and non-geographically bounded actors. New

methods of warfare such as cyber attacks, drones, and terrorist action further

muddy the concept and call into question the very structure of the modern state.

Global response to conflict must accept and respond to this new

complexity… A one-size-fits-all approach to conflict mitigation and post-conflict

reconstruction is now recognized as insufficient and incomplete. This greatly

complicates the role and mandate of interactional actors and calls for a new

statebuilding and peacebuilding paradigm….

Somalia presents a particularly apt example of the changing nature of

conflict and the need for reconsidered international responses. Unpacking the

complexity of Somalia’s social and legal structures seems an endless process.

There are layers of customary tradition, Islamic institutions, colonial structures,

and post-colonial governance mechanisms. There are regions with completely

separate sets of institutions, clan-specific geography, extremist groups controlling

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certain areas, and international and regional actors of all kinds. The multiplicity of

forces and elements in Somalia is overwhelming in its density. The international

community is being presented with these new conflict contexts, where the many

layers complicate statebuilding and peacebuilding efforts and obscure the

optimum policies. At the root of the issue is inclusivity. Giving civil society and

non-state actors an active role and agency in shaping the institutions of the state

offers the opportunity to create trust and lend legitimacy to the government in a

sustainable way.

Hybridity is one field of enquiry that interrogates these issues of context

and proposes some means of handling them. There is no template for hybridity

and therein lies the challenge. Statebuilders and peacebuilders must understand

their surroundings and evaluate the mechanisms that possess strength and

capacity. They must find the means to engage with seemingly disparate forces in

society and bring them into productive and interactive relationships. There is

hope that international actors in Somalia can move away from nationally focused

“modern state” approaches to rebuilding efforts and begin to work with the

existing environment,

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Annex I: Somalia Clan Distribution

Source: http://www.lib.utexas.edu/maps/somalia.html

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Annex II: 2010 Map of Somalia showing Regional and Islamist Division

Source: http://www.criticalthreats.org/somalia/somalia-conflict-maps-islamist-and-political

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References

Afyare Abdi Elmi, Understanding the Somalia Conflagration: Identity, Political Islam, and Peacebuilding, Oxford: Pluto Press, 2010 Boege, Volker, “Potential and Limits of Traditional Approaches in Peacebuilding,” Berghof Handbook for Conflict Transformation, 2011 Cawsey, Abdullahi M., “The Success of Clan Governance in Somalia: Beyond Failed State Discourse,” http://somalithinktank.org/the-success-of-clan-governance-in-somalia-beyond-failed-state-discourse/ (Accessed May 7, 2014) CIC, Annual Review of Global Peace Operations 2012, Lynne Reiner, 2012 Communiqué of the National Dialogue on Justice Reform Conference, Mogadishu, Somalia, 2013. Interview with Ulf Terlinden, Nairobi, Kenya, December, 5, 2013 Kaplan, Seth, “Rethinking Statebuilding in a Failed State,” The Washington Quarterly, 2010, V33N1 Le Sage, Andre, “Stateless Justice in Somalia: Formal and Informal Rule of Law Initiatives,” Centre for Humanitarian Dialogue, 2005 Menkhaus, Ken, “Somalia’s 20-Year Experiment in Hybrid Governance,” World Politics Review, 2012, http://www.worldpoliticsreview.com/articles/12245/somalias-20-year-experiment-in-hybrid-governance?page=1 Menkhaus, Kenneth, “Somalia: Governance vs. Statebuilding,” in Call, Charles T. and Vanessa Wyeth, ed.s, Building States to Build Peace, Lynne Reiner: Boulder, 2008 OECD, 2011 Report on International Engagement in Fragile States: Somali Republic, OECD Publishing, 2011 Shinn, David, “Al Shabaab’s Foreign Threat to Somalia,” Orbis V55N2, 2011