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It will be impossible to reconstruct Somalia without addressing its complex past. Yet the current definition of transitional justice appears too narrow to be beneficial, since it limits the space for local-based procedures in favour of Western concepts like the state, rule of law and democracy.

I recently attended a conference where I had the chance to hear the speech of one Somali diplomat, whose identity or post is not what is important here. What he said, however, matters much more as he has indeed brought on the table many issues concerning the Federal Republic of Somalia’s future. Although his speech was preceded by a disclaimer that his opinions were not necessarily those of the Somali government he is representing abroad, it is fair to assume that many of his statements necessarily correspond to actual policies put in place by the federal government which appointed him, as media evidence seems to suggest. Starting from this conference, yet moving forward to analyze current Somali affairs, in this article I would like to engage on questions of reconciliation and (transitional) justice in Somalia: I argue that it’s a proper time to bring these elements in the debate, or rather to bring them back again in the debate, now that the federal system has been set to govern the country, but its realization is yet advancing with manifest strain and tension: in fact, we need to ask what can be held accountable for the slow implementation of the federalist project, and in doing so, it doesn’t seem reasonable to only take into account the flaws in the constitutional text, or the logic of clanpolitics, as a number of analysis have tried to do so far.

To pinpoint the core of the matter, the main concern I am confronted with is the diplomat’s affirmation regarding what to do with Somalia’s past, namely: “the past? Let’s just forget that”, while focusing all efforts to re-build a functioning state, first of all through the securitization of the territory, as he went on to suggest. But is it really the case that the Somali state can be re-built without even attempting any reconciliation among Somali population? In other words, where does the pivot of the discussion about peace and justice in Somalia lie (or should lie)? In the top-down state engineering or in the social norms regulating the harmonious relations among citizens and between them and the state? These are not rhetorical questions, and their answers call for historical as well as social analysis, as I will try to underline now.

The first point that I would like to stress is the following: if we look at the different reconciliation processes which have taken place over time since the collapse of Siad Barre’s regime, the emphasis has prevalently been on the need to resurrect the state or to gather all relevant leaders/warlords around the same table, taking for granted that they would fairly represent the vast majority of the Somalis population. This modus operandi reveals that the international community presupposed a convergence of the socio-political dynamics shaping the Somali society with the ones characterizing western countries: accordingly, they mobilized concepts such as “state institutions”; “representation”, “democracy” without even scrutinizing their factual compliance with local patterns of political behavior. Thereafter, in the face of the poor governance established by those leaders, which nourished rather a state of protracted war, the same international actors would conclude that Somali and African societies in general are hostages of corruption, nepotism, ethnic hatred and similar issues which they treat as “pathologies” that need to be cured. While there is some space to partly concur with what is said above, it is still interesting to note that western institutions were not, anyhow, the ones whose effectiveness was to be put into question in this discourse: poverty, clan rivalry, weak African leadership were to blame, and not much of this myopic way to see things has changed nowadays.

Nevertheless, there is a reality that we need to face: the solution to these exacerbated political issues is not derived from “better” governance alone or, in the case of Somalia, from the federalist structure per se; what is missing in the framework of action of the international community is, first of all, the understanding, or the willingness to understand, the role of history as well as of historical consciousness for reconciliatory processes; secondly, there has not been a serious engagement to include or at least mediate the tenets of the “social contract” of the Somalis, namely the norms which regulate at least three dynamics: the social interactions among people; the definition of citizenry (not so much in a legal way but in the sense of recognized participation in common activities); and the criteria for community membership. As many scholars have underlined, this form of indigenous governance is capable of producing remarkable levels of governance, but unfortunately it is often neglected in the state-building process, notwithstanding their relevance for the everyday life of the people who are supposed to live in that precise state. Hence, what happens is that there is a discrepancy between the rights and duties of the citizen so as described in the federal constitution (articles from 10 to 42) and the kind of “civil society” defined by Somali traditional norms. The overlapping of these two types of both public and private spheres has relevant implications, mistrust and lower loyalty towards the state. To be sure, these traditional norms are not a relic from a primordial past that must change in order to enter an alleged “modernity”.

The tradition of the Somali population, that is prevalently (especially in the north) but not exclusively pastoral is shaped, I argue, first of all in reaction to the harsh environmental conditions which have forced life to be mobile, fast, less hierarchical, more communitarian and violent because resources are scarce and unequally distributed on the territory. That’s why the Somalis developed a different way to secure themselves from risks and a different system to ensure social security, to which the clan is an essential part. The imposed top-down approaches to state-building are overlooking this aspect and, by claiming and financing the imposition of the state as the competent body to both manage risks for the population and create safety nets for the “citizens”, they also demonstrate to ignore history. They ignore, for example, that the legacies of both colonialism and Barre’s autocratic rule have left behind little trust and much suspicion towards the state among the Somalis, who are unlikely to change this attitude for the short-term period. Hence, the citizens that the state is trying to reach are not there, because a culture mediating the relation between the state and the population is missing in Somalia, and needs to be built from scratch.

But before doing that, reconciliation among citizens is required: in a society so threatened by resource scarcity, yet well equipped with traditional institutions devoted to settle disputes, the fact that reconciliation processes have been hindered has particularly plenty of social implications. Therefore, the priority given by the federalist government to security issues may not be the ideal path forward, since it would mean operating on the consequences and not on the root causes. The legitimacy of state institutions is, after all, still missing and for a good reason: it is redundant to say that the lack of legitimacy is likely to influence internal stability as well. The state, rather than a prerequisite for stability, should be conceived instead as a major achievement following the enactment of agreed-upon political practices.

The second matter I wish to deal with now is: what can Transitional Justice (TJ) bring to Somalia? Somali society is in desperate need to re-conciliate after the widespread violence connected to the civil war. Intra-clanic fights; confrontation between nomad/pastors and settled farmers; the emergence of discriminated minorities: these are some of the thorny issues of Somali past are still to be addressed in the post-1991 context. However TJ as commonly understood (including by United Nations) implies too much of state institutions or western-born concepts like the rule of law, to be a viable solution for African problems, it is argued here. In fact, if many African political crises are somehow the outgrowth of the “politics of the belly” (to quote Jean-François Bayart), namely of clientelist practices involving the state and the private sector or the broader population, the solution out of this deteriorated political situation should then come from other political bodies which enjoy people’s legitimacy, the latter built around both common definitions of what is justice as well as generalized perceptions of what is desirable and appropriate for the community’s common good.

At the moment, the state is thus not representing the ideal political body considered able to attract adequate degrees of legitimacy. That’s why the strengthening of state institutions advocated by TJ theories may not be what is firstly needed here, especially if reconciliation and the coming to terms with the past in reverse are not included at any level in the post-conflict recovery process. I intend to underline the need to develop African recipes for reconciliation which can be more responsive to population’s needs: these kinds of indigenous institutions, including the clan, can convey values which are intelligible to the population because they are born out of the local social contract: the respect of this social contract would alone ensure a satisfying degree of national safety while, on the other hand, “the creation of a national army” prioritized by Somali the federal government is not necessarily a synonym for peace-building. I am affirming this because the univocal notion of citizenship proposed by the state is hardly fitting into the reality of the constellation of clans already equipped each with its own respective definition for establishing who is a member.

So, while TJ’s truth-telling initiatives could help establishing an egalitarian approach that affords acknowledgment and dignity to all, the state framework is an inhibitor which would deliberately fragment that “all” into exclusionary definitions of citizenship and partisan factions, eventually jeopardizing the whole process. While these issues should be properly addressed, the specific provocation: “stop being slave of the tribal system and start behaving like a nation” that the diplomat directed to the Somali diaspora, is an indication of the government’s adoption of a mono-strategy to deal with the future of Somalia.

How could Transitional Justice manage the societal diversity? Just for clarity, it should be underlined that even the realization of a state-led reconciliation process based on TJ’s principles would not necessarily mean the consolidation, right away, of a national identity: Somalia is still composed of clans, and the clan is not just a political entity, but also a welfare provider for its members, as well as a security net: it performs a way more complex social role of than usually represented in international media, and it is even more efficient than the state in doing so in the Somali context: the clan makes the life of its member less insecure and problematic, yet more communitarian and more connected to kin through nets of duties and moral obligations. So, once more, reconciliation in Somalia should rather start from the full resurgence of the social contract and the traditional norms, the only ones that at the moment are able to attract the trust of the people and that are thus granted social legitimacy. The reconstruction of fragmented societies through Transitional Justice should be based on cultural forms and systems of knowledge which can be recognized by the concerned population: in the recent history of the international community engagement in Somalia, this would represent a novelty, and it would substantially change the meaning of transition itself: a transition from solely state-based approaches towards the inclusion of local social contract-based elements.

The last point of the discussion is about people. Not only institutions, whether western or Africans, count. People also matter, and people as a matter of fact make the institutions alive. How can history be just forgotten in order to leave space to new nation-building imperatives? Memories of the people are extremely important as they are actively contributing in determining current people’s life decisions; the historical consciousness is too relevant in this discourse to be left instead in the corner; better yet, the fundamental peace effort for Somalia may come exactly from those who have experienced the war and endure painful memories.

To conclude, I firstly stated that the federalist structure of Somalia is faces obstacles for its full implementation in virtue of a missing agreement on who is a citizen, and how relationships among citizens and between them and the state should be regulated. I then underlined that the inclusion of provisions contained in the Somali social contract and in the norms known as “xeer” in the current political development would increase the overall legitimacy of the process. I went on to say that, however, without reconciliation in a post-war traumatized and truth-seeking population, social cohesion is hard to be achieved. I then questioned the potential role of Transitional Justice, a point which I wish to expand now: in the case of Somalia, the current definition of TJ appears too narrow to be beneficial, since it limits the space for local-based procedures of definition of justice as well as consequent means to achieve it: it does so somehow implicitly, in the specific focus given to state, rule of law, democracy and other conceits belonging to the western political dictionary. I have claimed instead the need for a bottom-up reconciliation process in Somalia, based on the indigenous social contract or at least the integration of some of its tenets: these already include, in fact, measures for dispute settlement and are thus preconditions for a working variation model of TJ which would have more chances to be applied successfully. However, as it appears, this solution entails a direct challenge to the well-established strategies of state-building proposed by the west: the key point turns thus around the poor legitimization that Afro-based transitional justice processes would receive by international actors, notwithstanding the rather higher social recognition they would get internally. In other words, TJ as it is framed today in the general debate is at risk of creating an ideological alliance with the theories of the state, which in the African context would be nothing but detrimental, just as the past political record clearly shows. Most likely, it would reiterate the endless confrontation between the alleged “modernity” of the west, on the one hand, and the African tradition on the other, without bringing forward a valid as well as agreed-upon path to reconciliation.

* Marco Zoppi is a PhD fellow in Histories and Dynamics of Globalization at Roskilde University, Denmark. He is currently researching on the Somali diaspora in Scandinavia. He holds a MA in African Studies pursued at the University of Copenhagen. His personal interests include Geopolitics, history of Africa and colonialism. He can be contacted at: [email protected]



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