Gap in the creed: When 'tradition' gets in the way of justice

Amina Jibreel (not her real name) was only fifteen years old when she was abused physically and sexually by their neighbour. Upon informing her parents, they sought justice but the locals pushed for social conflict resolution.

“After all, you don’t want to bring shame to your family and daughter, who will marry her now?” they said. 

Conflict resolution at home is not something new in African societies. In the Somali Cushitic community the form of social conflict resolution is known as Maslah.

Maslah entails male elders in the community sitting under trees to resolve conflicts between families or clans. This is a form of Alternative Dispute Resolution.

This type of conflict resolution was initially supposed to resolve minor civil matters that arise within the community and not felonies.

However, criminal matters are becoming a common feature before the elders despite them not being within their jurisdiction. No wonder culprits in most cases walk scot-free, including rapists and child molesters.

“A child gets raped, the elders make you wait for their resolution. They drag the case, they continue receiving payment while your grievances don’t proceed,” says Mzee Ramadhani Jillo, a resident in Fafi Constituency in Garissa County.

“Most of them are corrupted, they are bribed. Your child is left bearing physical and emotional pain. All these times evidence of sexual abuse is losing its effectiveness. Maslah on GBV cases is just a joke,” he says.

According to the Constitution article 159(3) traditional dispute resolution mechanisms shall not be used in a way that: contravenes the Bill of Rights, is an obstacle to justice or is inconsistent with the Constitution or any written law. A law that many do not abide by.

If the aggrieved dare to report these cases to police officers and the courts, they face many obstacles. The main one is stigma.

“The whole society will try to stop you, saying it is a shame and you don’t need to publicize it and as the mother you have no say. At least nowadays one can opt to report to the Nyumba Kumi elders, the Chief and the Police. Things are changing for the better,” says Khadija Hassan A GBV survivor.

“We are sensitising the community step by step, we work as an integrated system. We include religious leaders, community leaders, men and women in fronting changes. We also work together with the Government and Non-governmental organisations,” states Makah Kassim an Activist from Women’s Right Network.

“At the community level, we work with partners to ensure that protective mechanisms are enhanced, especially child protection volunteers, community leaders, and religious leaders, who identify children with the need of care and protection and also refer them to child protection officers.,” says Zainab Ahmed, a Child Protection Specialist at UNICEF in Garissa County.

“When we all work together it gives the responsibility to community members because at the community level, we need to enhance protection mechanisms so that the welfare of children is taken care of,” Ms Ahmed says.

Back then Maslah was seen to be a cheap and fast option. Resolutions were promptly reached and the family of the accused would pay Xeer or blood money upon the conclusion of the matter.

This is in contrast with the conventional courts where cases drag on for days and months as advocates milk money from victims and theirfamilies. 

“I remember I was asked to shower and cleanse myself, though my mum opted to save the clothes. By the time she gathered the courage to report to the police, it was already late. We could not get a doctor’s report, and we had to accept our fate,” says Amina, who is now 32 years old.

“It was then I learnt I was pregnant, I had to get married to the man who raped me. At first, I couldn’t even look at him, my stomach sank. He continued to rape me whenever he wanted. I was at his mercy with no intervention.  I attempted suicide twice. By then my elder brother had started working so he took me under his wing,” she says.

“The perpetrator should not be allowed to marry their victims, the offender must be punished by law. Settling sexual abuse through marriage is simply allowing the offender to walk away free, cleansed and with his head held high,” says Makah Kassim.

According to the Sexual Offences Act 2006,  A person guilty of sexual assault offence is liable upon conviction to imprisonment for a term of not less than ten years and may be enhanced to imprisonment for life. 

Unfortunately, most victims of Sexual Abuse and Gender-based Violence are children. 

The 2019 Violence Against Children Survey found that 46 per cent of 18 to 24-year-old young women who participated in the survey had faced at least one type of violence — physical, emotional or sexual — during their childhood. More than 52 per cent of young men in the same age group had also been abused in one way or another.

According to the findings, 58 of every 100 children have been sexually abused -- while 29 per cent of boys and 24 per cent of girls reported to have been forced into sex. The main perpetrators were mainly not strangers and their homes featured as the most unsafe place.

“Sometimes at the community level especially for criminal cases some community members might decide to solve and not take it to court and this is contrary to the rights of children,” says Ms Ahmed.

“Criminal cases should not be solved at the community level and community members have been sensitised that issues like sexual violence and murder cannot be solved at the community level and they should not be a block to justice,” she says.

The misuse of the local dispute resolution mechanisms poses a serious threat to the search for justice and reverses the social and developmental milestones achieved by the pastoralist communities.