In July 2020, Kalmoi Shale Ahmed, a Wajir assistant chief was arraigned before a Garissa court and charged with defiling a minor.
Appearing before chief magistrate Cosmas Maundu, he denied three counts, among them defiling a minor in Wagberi’s Wajir County. He also pleaded not guilty to the offence of distributing obscene or intimate images contrary to section 37 of the computer misuse and cybercrime act.
Although the crime was committed in Wajir, Ahmed was prosecuted in Garissa since the case had caused a lot of tension in Wajir.
In 2018, a 15-year-old girl was gang raped by three men in Wajir. Elders in that area attempted to solve the case through the maslah court system which is widely spread among the somali. Their attempt failed amid calls for the case to be prosecuted quickly.
Maslah cases have become more and more common and the public is worried. Muktar Osman blames the maslah system for the increase in the number of defilement and rape cases in the region.
The Chairman, Garissa Human Rights Defenders said that “Maslah system has been a stumbling block to accessing justice. This has contributed to increase in the number of sexual violence,” he said.
Speaking to RoGGKenya, Osman also said that most women in the Somali community need to be empowered in order to fight for their rights. “Somali women living in the villages depend on their male relatives for financial support hence they fear going against them,” said Osman.
Fred Matiangi, the Interior Cabinet Secretary is on record several times warning chiefs against using the maslah system to settle rape cases.
Promotion of injustice
The Maslah system is a traditional Somali dispute resolution court. It gives priority to compensation of the victim’s clan, instead of punishing the perpetrator.
For many decades, the maslah court has been a challenge to serving justice for women and girls who are survivors of psychological, physical and sexual violence.
The maslah court violates Article 47 (1) clearly indicating that: “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”
It goes on to state in Article 50 (1): “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”
Section 179 of the Criminal Procedure Code provides ‘that the court may promote reconciliation and facilitate the settlement in an amicable way of proceedings for common assault or other offence of a personal or private nature not amounting to felony, and not aggravated in degree, on terms of payment of compensation or others approved by the court and may order the proceedings to be stayed or terminated’.
Acting beyond its mandate
Maslah courts might be serving justice for petty offenders but they have gone beyond their mandate. Article 159 (2) (c) of the Constitution encourages the Judiciary to promote the use of alternative dispute resolution. For instance, reconciliation, mediation, arbitration and traditional dispute resolution mechanisms are acknowledged by the supreme law of Kenya.
However, Article 159 (3) cautions against the use of traditional dispute resolution in instances where the method contravenes the Bill of Rights, is repugnant to justice and morality and/or is inconsistent with the Constitution or any written law.
Most perpetrators of Gender Based Violence (GBV) get away with light sentences. Most of the traditional courts are male dominated and decisions tend to favour men.
Maslah court and some other traditional courts take advantage of the fact that sex is a taboo topic in most African cultures. Married women are also viewed as their husbands’ properties hence there is a lot of secrecy in cases of Sexual and Gender Based Violence (SGBV).
Culture of communal secrecy and shame
The culture of secrecy is so much that those involved do not want to talk to the media. Most people who were interviewed by RoGGKenya did not want be mentioned.
An administrative chief from Wajir county who spoke to RoGGKenya and requested anonymity, said that “the situation is worsened by ‘communal shame’ where the stigma of domestic violence, defilement and rape is shared by the community.”
He added that in order to continue with the secrecy culture, every village has a maslah elder and traditional clerk who compiles cases at the village level.
It is the clerk who hands over the case to maslah elders who will then decide what to do at court meetings.
Although rape and defilement are treated seriously among the Somali community, the girl or woman who has been raped is never brought before the elders to defend herself.
How Maslah works
It is the clerk of the Maslah who explains to the elders what happened to the girl before they decide on the compensation to be given to her family.
Use of maslah courts is deeply rooted such that Somalis in other parts of the country also use it. In some cases, the victim and perpetrator’s family travel back to their village to solve their cases instead of using available courts.
Some cultures also consider it an abomination to report sexual gender based violence cases to outsiders including the police.
As a result, most of these cases are never taken to statutory courts and are resolved by rituals with no due consideration for the victim.
The chair of the Maslah will then refer to past cases of rape and how they were determined before settling on how to resolve the case at hand.
The chair can bring in new compensation brackets in terms of the number of camels. If the previous case had asked for five camels, he can say that for the present case the perpetrator’s clan has to pay 20 camels.
Since camels are expensive, the clan will have to go around collecting the animals until they get the number required.
In case the perpetrator repeats the offence, then the clan will hand him over to the offended group to do with him as they please.
Due to the patriarchal nature of the community, victims of sexual offences, mainly women, have no option but to adhere to the ruling, which can be as absurd as the perpetrator being ‘punished’ to marry the victim.
Out of court settlement
There are even cases where some elders force GBV survivors to settle disputes out of court at a fee.
In some cases where it was reported to police and the case is in court, some people tend to shy away from giving evidence.
According to the 2019 Kenyan census, Wajir County has a population of over 600,000 people and covers 55,841 square kilometres. However, the big population and vast area is served by only one court. This could be one of the reason why the residents seek Alternative Despute Resolution System.
Room for improvement
Maslah can be useful for minor offences if properly regulated. This should however be accompanied by community sensitization on the thin line between culture and the law.
Also, the elders should be vetted by the National Council on the Administration of Justice (NCAJ) .They must prove to be people of high integrity and with understanding of ADRS.
Continuous use of ADRS has contributed to low reportage of gender based-violence cases across the country. This is a major cause for concern as it translates to continual suffering for the majority of GBV survivors. There is also lack of information on the extent of the problem to enable decision-makers respond.
What journalists should do:
- Educate your audience on the dangers of solving sexual violence cases though maslah.
- Explain to your audience the mandate of maslah court. Which cases they can handle and which ones are off limit.
- Find out the number of reported cases of sexual violence in your area. You can get the data from police stations. Also find out how many cases were solved in maslah courts.