The Creation of
the Supreme Court of Somalia (SCS):
Needless to say, a country without a judicial system can not belong to the community of Nations. There will never be justice without a functioning justice system. There can not be any order or governance without an impartial judiciary. In a society with no laws, the laws of the jungle shall prevail. Unfortunately, ours is the only country in the world that fits these descriptions. It is both a shame and a travesty for us to accept this situation to go on forever. The world has ignored us for the last 15 years because they could not figure out what our problems were and how to deal with us. They kept their distance because we hurt them when they come close. They withheld their support because we have proved ungrateful in the past. They watched us enslave and butcher each other because they could not find anybody to talk to. In other words we are a unique society that the rest of the world can neither understand nor care for. The UN tried to mediate between the warring factions and after 13 meetings gave up. The Arab League tried twice and failed both times. The AU had a shot at mediation and gave up. Finally IGAD persistently mediated and after 2 painful years succeeded in putting together a semblance of authority and government based on a primitive system of clan aristocracy that failed to function from the word go. It was however the only system that has survived for more than a year now, and which is increasingly getting accepted as the days go by. We should therefore build on this primitive system and hope that it will mutate into something more civilized as the years go by. It will at least stop us from continuing to kill each other. If this happens then it will have achieved a limited objective for which it was designed in the first place.
But even a primitive democracy needs a system of checks and balances. With the absence of an Attorney General and his judicial officers, who will arbitrate in a dispute at any level? With a parliament unwilling or unable to meet and make laws, who will protect the common man from the injustices that he is subjected to every day? How will a small shoe-shining Bantu boy who ekes a living in the mean streets of Mogadishu find justice when his client refuses to pay him and then shots him dead after he complains? Who will a poor dispossessed farmer in Jilib complain to when his farm is forcibly taken away from him? Where will the lonely Midgaan girl run to after she has been raped by the ‘high caste’ Somali man in Burco? All those people will not find justice in a Somalia without a functioning government and a justice system that is in complete disarray. This unfortunate vacuum is being hurriedly filled by an informal justice system that took up a religious name for the lack of a better one. They are actually nothing more than a group of people trying to fill a void and slowly Talibanizing the Somali society. Somalia is today worse than what Afghanistan was before the Taliban was interdicted. It is being ignored by the world community just as Afghanistan was before September 11th. It is now attracting attention after the near miss catastrophe of the American owned cruise liner off the Somali coast.
So who is going to mediate between the two wings of the Somali Parliament? This job ideally belongs to the speaker of that parliament but because he has no clue what his job actually is we got to find another venue for mediation. The speaker in a press statement yesterday actually asked the UN to start another process of mediation. He was obviously unaware that he was delegating his job to Mr. Fall of the UN. Mr. Fall would love to do that if only to add one more success item to his resume and to extend his contract with Mr. Kofi Annan. The people in Jowhar have said they want nothing of that. The sly power broker of Kismaayu who offered to mediate between his faction and that of the president is not sure which way to turn right now. Time is fast running out for the speaker and his cronies in Mogadishu. Their ranks are shrinking by the day and they are showing signs of desperation. That is a dangerous position for an armed man to find himself in and the temptation to lash out is ever present. We got to find a way out for these trapped but well armed individuals who are holed up in the second most dangerous city in the world. That solution must however be a Somali solution because outside interference, especially from the UN will only make things worse and prolong our suffering. Here is how we could do that:
· The President in consultation with the Prime Minister must name a new Attorney General. That person must be qualified for that job and must be seen to be so. A list of probable candidates must be compiled and the job of selecting the best should be contracted to a reputable international agency so as to minimize any possible accusations of nepotism and influence peddling.
· The President in consultation with the Prime Minister and the Attorney General should appoint a 9-member Supreme Court of Somalia (SCS) as soon as possible. The 9 members shall be selected in accordance with the 4.5 formula.
· The Attorney General shall establish a Judicial Service Commission whose first duty shall be to define and regulate the duties of the Judges.
· The first national duty of the SCS shall be to arbitrate between the two factions of parliament that has camped in two different cities. The issue before them is a constitutional one and the Somali Constitution and the new Charter shall be the basis for the arbitration of that dispute. Its findings shall be final and there shall be no higher authority to appeal to. Any refusal or violation of their order shall be viewed as a contempt of Court and also a treasonable act.
This shall be the beginning of the concept of the due process of law as is known and practiced throughout the world. The alternative is the sliding further down towards the abyss and the final destruction of the Somali state as happened to both Afghanistan and Iraq. Who knows – may be Bin Laden is building a new bunker in Somalia right now. Recent events in Somalia, like the assassination attempt on the Prime Minister, the near hijacking of the Cruise ship off the Somali coast, the maneuvers in Mogadishu by the ‘Islamic Courts’ and the proliferation of arms and ammunition are all ominous signs of bigger things to come. Let us be aware and act NOW.
Abdulkadir Khalif Khalif8888@hotmail.com