The misuse of Maslaha among the Somali in Kenya

Diya is an Arabic word In Islamic Sharia meaning solving matters at the local level without necessarily going to court for a judicial process. 

The practice has been successfully used to solve matters in most Islamic states and has been adopted by the Somali community and those who ascribe to Islam as a religion. 

Among the Somalis, the name of the practice changes to Maslaha or Xeer.

There are, however, some aspects of this practice and its effects on the victims more so the women, 

Maslaha entails the male elders in the community sitting under a tree to resolve a conflict between the affected families. This is a form of Alternative Dispute Resolution (ADR) which is mostly used to resolve conflicts that arise between members of the same or different clans. 

This conflict resolution mechanism has been very popular among the Somalis in solving cases of theft, murder, sexual offences like Gender-Based Violence and internal family conflicts. 

This type of conflict resolution was initially supposed to resolve minor civil matters that arise within the community. 

However, this has not been the case as most criminal matters have found favour in this conflict resolution mechanism where the culprit walks scot-free. 

This has brought injustices among the victims and their families. Community Elders have encouraged such cases to be resolved by this method to main brotherhood and unity. The original purpose of Maslaha was a way of solving matters in an amicable manner that encouraged reconciliation between members of the community.

 It was seen to be cheap as the courts would drag the matter and the advocates would make money. It was also seen as time-saving as the resolutions were reached and the family of the accused would pay the Xeer (blood-money) upon the conclusion of the matter. 

It further restored the destroyed relations between the relatives or members of the same clan who had been involved in the conflict as they mostly live in the same community.

The issue arises when the criminals in the community misuse this decent method of dispute resolution and commit crimes knowing they have the backing of their elders once they sit under the tree with the victim’s family. 

The family of the accused would give money to the family of the victim as a sign of remorse. All this time the victim’s opinion is neither here nor there and the perpetrator walks away with is head held high while the victim is in emotional and sometimes physical pain. 

This, in turn, affects the mental health of the victim. It is wise to note that in North Eastern Kenya, the Maslaha is being misused and criminal matters like sexual offences and murder should be strictly taken before a court of law so as not to compromise Justice. 

 The victims do not have any form of counselling to help them in transitioning back to their normal life. A raped lady will have to walk in the same community and she will be the talk in the village or town.

Sometimes they are intimidated and told to move out of the community as it is clear which clan rules that particular jurisdiction. 

Other than subverting justice, Maslaha has been responsible for the rise of some serious felonies since the perpetrators feel that they will receive a lighter punishment for their crime. 

Some might argue that they resort to Maslaha after finding it difficult to produce witnesses or lack of evidence before the court during the trial.

The outcomes of the ruling in the Maslaha method are never retributive as they are in the proceedings of the criminal case but are rather too lenient. 

As such, it is the community that jointly bears the brunt of the crime. It beats the original aim of the Maslaha as criminals now take it as an escape route from major criminal offences. 

Cases of men murdering their wives and general sexual offences directed to women and young girls are on the rise in North Eastern Kenya. In other cases, the men maim their wives and they still roam freely.

 This applies to both men and women as women too tend to do inhuman acts like pouring hot oil or hot water on their husbands when conflict arises. The wife, in turn, gets away with such felony by hiding behind the umbrella of Maslaha as the families of the victim bury their own. 

Rape is on a rise in north-eastern Kenya given the leniency with which Maslaha treats it. That way, the once good justice legal system is now prone to great abuse.

 Gender-Based Violence is rampant in the region and Instead of curbing this vice, the community tends to camouflage the issues by looking the other way by settling the matter using of Maslaha.

The Somali Elders deserve much respect for their efforts in trying to solve disputes in the community. The use of Maslaha system as a means of solving community disputes is a good ideology generally, but it should not be used in sexual offences at all.

 The minimal punishment for any individual who defiles an innocent girl should be prison through a court of law and not Maslaha where the perpetrators end up being free and come back to intimidate the victim.

In Kenya's justice system, Alternative Dispute Resolution is firmly anchored in the constitution under Article 159. 

This gives room for the resolution of civil matters whose final verdict is read in court and are referred to court mediators by the same court registry. 

Thus, most cases can be resolved through the above method as it facilitates faster access to justice. The Kenyan Courts, in some instances, have allowed the application of Alternative Dispute Resolution even in Murder Cases.  

A relevant precedent is in the matter of the Republic Vs. Adow Issack Kullow (2016). 

Alternative Dispute Resolution is not entirely oppressive. However, there should be a balance between the effectiveness and deficiencies of the same. 

The platform of Maslaha should, therefore, not be misused.

-Ummi Bashi is an Advocate of the High Court of Kenya?