While being the most important institution for accountability in the country, and one many Somalis yearn for to deliver and entrench stability, the judiciary has undergone minimal, cosmetic reforms during and after the transition. Following widespread allegations of corruption and mismanagement in the judiciary, marqaati decided to study this vital government arm to understand the status quo, and use the findings to advocate for further judicial reforms.
The findings reveal a weak institution whose independence is seldom respected by other arms of government.
To assess the extent of judicial corruption, we used the Diagnostic Checklist for Assessing Judicial Corruption, which is found in Transparency International’s Combating Corruption in Judicial Systems advocacy toolkit. We reviewed relevant documents such as the Provisional Somali Constitution, judicial conduct rules, and recent court rulings. Furthermore, we interviewed judicial workers and 30 court users in Mogadishu between Feb-Apr 2014 and Jul-Sept 2014.
The major limitation was inadequate funding for the interviews section of the study. This was wholly funded by marqaati internal donations.
Another constraint was the security situation, which led a multitude of court users to decline interview.
- Judicial independence is enshrined in the Somali constitution; however, it is hardly the case in practice.
- Judges and other judicial officers have poor working conditions, making them susceptible to bribery and threats.
- Appointment of judges is not transparent, resulting in unqualified or incompetent individuals sitting as judges.
- Poor administrative process to ensure judges are selected in an objective manner and placed in court locations where they don’t have ties to politicians.
- No known auditing of the judiciary.
- The judiciary doesn’t publish its annual budget or expenses.
- Judges are liable to prosecution for misconduct, but despite widespread allegations of misconduct this has not been done before or after 2012 when the government came out of transition.
- There is little transparency in the judiciary, with no information on judicial selections procedures and judicial recruitment.
- Education within the judiciary is very poor, with many judicial officers having no formal education in their line of work.
- There are no security guarantees for members of the judiciary except for a handful at the Supreme Court. Judges and lawyers being threatened or even being killed as a result.
- Civilian courts refuse to take terrorism-related cases for fear of retribution.
- The police and other law enforcement agencies selectively respect court orders; in some cases court orders are ignored.
- Paying bribery to judges in civil cases has become a matter of course, resulting in some instances the same judge making conflicting judgements in the same case.
- The judiciary is involved in a power struggle with the executive, resisting much-needed reforms to the flawed judicial system and the judicial council.
- The executive selectively enforces judicial decisions; it also sometimes interferes in the judicial process.
- The executive removes judges from office without following the proper judicial procedure; 21 judges were recently removed from office by the President – a move rejected as unlawful by the Chief Justice.
- The Attorney General is not recognised by the Chief Justice, who regards the former as having being illegally installed into office.
- Lawyers are involved in bribing judges.
- None of the litigants and defendants interviewed respects the courts as legitimate; they all cite injustice and corruption as the reason they disregard the courts.
- Somali journalists do not report on judicial corruption as much as corruption in other arms of government.
- There is little interest in the Somali civil society in addressing judicial corruption. As such there is less public debate about judicial corruption than corruption in the executive and legislature.
- There is little support from the international community to reform the judiciary in Somalia.
- The court structure must be completed, including the establishment of the constitutional court.
- Judicial independence must be respected by other branches of government; by law, judicial independence is guaranteed but not respected by the executive.
- Judicial decisions must be enforced without selection by law enforcement agencies.
- Judicial appointments must be transparent and merit-based.
- Judges should receive continuous training in legal analysis, judgement writing, case management, and anti-corruption.
- Working conditions for judges and other judicial officers must be improved, including improvement in pay and security.
- The judiciary appointment body must be made independent of the executive and the legislature.
- Qualified judges should have security of tenure.
- Removal of judges should be done according to a fair and transparent process.
- A confidential whistleblower procedure should be created to enable the reporting of suspected or actual breaches of conduct or corruption by judges, court administrators and lawyers.
- Judges should make periodic asset disclosures.
- Judges with conflicts of interest must disqualify themselves or be disqualified by the Judicial Service Commission as soon as it becomes apparent.
- The Bangalore Principles of Judicial Conduct must be implemented to bring the Somali justice system up to international standards.
- The judiciary must publish annual reports of its activities and spending.
- Civil society organisations should be more involved in monitoring of the judiciary for incidences of corruption.
- Somali academics should comment on court judgements in the media, to help the general public understand the work of the courts