Governance Without Government in the Somali Territories

Somalia is often described as the “most failed state,”[i]a “‘lawless” country,[ii]or simply a place where there is “nothing” left.[iii] Despite decades of war, the country enjoys some of the fastest internet connections on the continent.[iv]The world’s most ambitious experiment in mobile money has led much of the country to become cashless. In the midst of this apparent “disorder” much seems to be working and some sectors of the economy, such as telecommunications, are even thriving. This article explores how law and politics work in the Somali territories (the term territories is used to encompass the variety of governance arrangements and in recognition of the campaigns for self-determination of some regions).

Conceptualizing the complex governance arrangements in the Somali territories is challenging and this article begins by discussing the various ways and categories that have been attempted, from “ungoverned spaces” to concepts “hybridity,” and the implications of such concepts on understanding the protracted violence and the variety of ways that communities have constructed and maintained order. The variety of governance arrangements is then introduced, from the efforts by the Somali Federal Government to extend control beyond the capital Mogadishu, to the self-governing and well-established regions of Somaliland and Puntland, to the role of insurgency groups such as Al Shabaab and smaller, less recognized, proto-states such as Khatumo State. 

Law and politics work in a variety of ways across the Somali territories, and differ significantly. However, despite claims to the contrary, there is “law” and “governance,” and the article discusses the common threads that are shared within these differing arrangements. Factors such as the continued relevance and influence of customary, or xeer law, as well as the use of Shari’a law and other local forums for dispute resolution, have been essential. Both the presence and lack, or erosion of, networks of trust are also an important aspect to understanding the business of politics and how the variety of legal systems operate. An additional factor that has deep influence on the varying modes of governance includes transnational factors, including the active and ever-present diaspora community across all sectors of Somali society (from remittances, to parliamentary representatives, to businesses, among others). This transnational aspect is an essential component of everyday governance across the region.

Finally, the article discusses the implications of Somali realities for broader questions of nation and state-building. In the literature about “ungoverned spaces” or failed states, there are often assumptions about the role of international interventions, or the potentially transformative role of civil society groups, on changing these regions into the types of governed spaces that typically characterize rich western countries. By briefly reflecting on the longstanding ideas of anarchy, or statelessness, and the myriad of ways in which societies have adopted or even sought out such arrangements, even enabling some sectors to thrive, the article attempts to reframe debates on “ungoverned spaces” to focus on questions about what is working in such societies and why.

Conceptualizing Modes of Governance in the Somali Territories

Like almost all states in Africa, Somalia is a colonial construct with Somali communities spread well into neighbouring Ethiopia, Kenya and Djibouti. When referring to governance in the Somali territories, particularly the way in which communities are governed at the local level, it is easier to include these cross-border regions that are inhabited by the Somali people. Putting the state to one side enhances focus on the variety of different modes of governance in the Somali territories while at the same time bringing into relief how the state has become the object of struggle and violence. Despite the geographic spread of the broader Somali community, the Somali territories are relatively ethnically homogeneous, particularly compared with the rest of Africa or the neighbouring Middle East. Nearly the entire population is ethnically Somali and Muslim, although there are some important exceptions (including minority groups such as the Bantus, who have been marginalized and suffered disproportionately from the conflict, although have not been principal to it). This has made the persistence of violent conflict all the more perplexing for many, given that many of the common fractures of conflict, namely ethnic and religious lines, are not central to the Somali conflict. Clans, or families, have had a more salient role in conflict, although they have been far from being the defining feature, as business, politics, aid and the seemingly unending competition for resources have all been major factors in the ongoing violence.[v]

Since the fall of Said Barre’s government in early 1991, Somalia has been without a central government that has been able to exert control much beyond the capital, Mogadishu. What has emerged in its place has been a variety of entities, or informal systems, that have attempted to provide security and governance. This article cannot cover the full range of systems over the last 25 years (many have come and gone) but will try to capture the array of local authorities that have emerged. What is clear is that there are multiple paths and processes in which different entities have engaged as they have sought to create political order and, perhaps most importantly, security. Some have developed state-like formations while others more local security-based structures, such as neighbourhood watch groups. While the latter could not be compared with a state, when combined with other services such as private education, private hospitals or private water distribution, it does suggest some of the myriad of ways governance continues to occur in “ungoverned spaces.” Before examining the variety and variations of the modes of governance that have emerged in the Somali territories, it is useful to explore the prevailing ways of conceptualizing governance in what is often termed a “failed state.”

Examining Governance on a Spectrum

In many respects, the Somali territories represent an outlier, or an extreme example of what is seen as state failure. However, looking at the extremities can often be the most telling, bringing certain characteristics and fissures into stark relief. It fits squarely into the “orthodox failed states narrative”[vi]that has developed momentum along with the global war on terror. Often described as a region that needs to be fixed, particularly in the context of preventing an enabling environment for terrorists to launch strikes internationally, the conceptualization of the region as a “failed state” carries with it many assumptions that overlook various concepts of statehood or trajectories of state-building. Rooted in the concept of “failed states”, “failing states” or “weak states” is the assumption that there is an endpoint states must reach, to escape such characterizations, that is very much rooted in the model of Western liberal democracy. Thus, in the failed states debate, states are assessed, and often ranked, on how they stand in relation to this particular model.[vii]The criticism of this approach has been substantial and sustained, not least by scholars of the Horn of Africa who have highlighted the extent to which this approach neglects the plurality of public order, or public authorities that might exist in a given time or place, as well as the variety of legal structures that may be influential and overlooked in more normative assessments of state effectiveness.[viii]

Failed states are typically described as regions where there is a “total vacuum of authority”[ix]or places where anarchy prevails and warfare is “random.”[x]These states may be characterized variously as ungoverned or ungovernable, but at the core is the view that the way governance exists in failed states is an anomaly, something that needs to be corrected and is precariously close to a complete state of Hobbesian anarchy. The concern is not only that disorder will spread to neighbouring regions but that these spaces will give rise to transnational actors that will connect with terrorist groups (such as al Qaeda), will foster Islamic extremists that can potentially target western interests in-country, in neighbouring countries or at home, or that they will disrupt the global economy, as the pirates of the coast of Puntland, Somalia were seen to do. Fixing, or launching large-scale state-building initiatives in “failed states” has been the prescription, but has increasingly gained critics and sceptics as the large scale efforts in political engineering in Iraq and Afghanistan have not brought about the intended or desired results, at least within short timeframes, by international sponsors such as the United States. This has, however, not led to wide scale reversals in conceptualizing governance. Despite growing scepticism about the ability of external actors to engineer new political orders, for the most part these regions are still described as “failed” and “ungoverned.” 

In recent years an emerging literature, mostly drawing on the experiences of communities in Africa providing security has emerged focusing on concepts such as ‘hybrid governance;’ ‘twilight institutions;’ ‘vernacular’ politics; or an emphasis on ‘public authorities.’ These concepts vary but share a rootedness in empirical understandings of how governance works on the ground, often in communities where the state has limited reach and authority. They also share an approach that is descriptive, rather than normative as much of the good governance agenda, or the failed or weak states debate.

In this vein, the concept of a hybrid political order incorporates concepts of multiple sovereignties[xi]and institutional multiplicity.[xii]allows consideration of processes of stabilisation and peacebuilding in the aftermath of conflictsfrom an historical perspective, taking into account the fluidity of configurations of power and the shifting boundary between formal and informal authorities.

Within hybrid political orders, political actors can resort to different techniques to renegotiate their role and position vis-à-vis the other participants.For instance, in their comparative study of minority governance in ethnic enclaves in Lebanon and Kosovo, Stel and Van Der Borgh (2017) highlight “the importance of institutional brokering or bridging in hybrid settings,”[xiii]and, in general, the strategic role of mediating actors, both formal and informal. Political or development reforms in conflict situations can thus ‘work with the grain’ or build upon the existing frameworks, views and practices of accountability and governance.[xiv]However, the convergence of formal and informal institutions can erode a still frail democracy to the extent of rendering it ‘defective’ and keeping the state in a grey zone between authoritarianism and consolidated democracy. While customary and traditional institutions can have a more in-depth knowledge of local dynamics,[xv]in the empirical realm the relationship between formal and traditional/customary authorities can be fraught with tensions and characterized by “substitution, complementarity and incompatibility, with the latter leading to conflicts.”[xvi]Hybrid political orders can indeed feature a variety of actors mobilising resources and prestige to gain influence within the state in a negotiation arena…in more or less formalized and routinized ways.”[xvii]De Waal (2015) recognises in this arena the features of a marketplace in which elected and unelected authorities can display their adroitness at buying loyalties, not least by using the threat of violence as leverage, and at extracting economic resources from foreign donors. In the political marketplace, leaders weigh in their influence over their own following and invest their patronage networks in the construction of new linkages. 

With an approach that focuses on ‘hybrid political order,’ informal or traditional leaders can not only lend their support to, but also bestow legitimacy on, formal authorities. Legitimacy is commonly defined as “the capacity of a political system to engender and maintain the belief that existing political institutions are the most appropriate or proper ones for the society.”[xviii] When looking at how different actors defend and seek to advance their position in statebuilding efforts, or at gaining power to control the state apparatus and the associated financial benefits, the issue of legitimacy has a particular relevance.

The approach of hybrid political orders enables the opportunity to both capture and conceptualize a greater variety of governance structures in the Somali territories. Key to understanding how governance works in an area typically described as ‘ungoverned’ is to draw out and identify the legal frameworks (such as customary law and sharia law), the variety of public authorities (including elders, poets, and to some degree politicians and businesspeople) and the range of private, and public, institutions that provide what is often expected of a state in the international system. By considering such diverse actors, it becomes easier to discern the different elements that interact and contribute to varying forms of governance.

The Array of Governance Structures in the Somali Territories

Given the variety and number of various governance arrangements that have arisen within the Somali territories over the last 25 years (many of which are long rooted in previous amalgamations and societal structures), it is not possible to introduce them all. They range from very much independent state-like entities, such as Somaliland and Puntland, to remarkable efforts at community-level policing and security, which, in some cases, appear to offer the building blocks of the state. As will be discussed, in the context of the Islamic Courts Union, smaller courts at the neighbourhood level merged, over years, to form one of the most ambitious and effective regional and credible state-like structures Somalia had seen since 1991.

The most notable entity to evolve out of the dissolution of the Somali government is the Republic of Somaliland. Located in the north-western part of the country, roughly comprising the former British Somaliland Protectorate and sharing a disputed western border with Puntland, Somaliland is a fascinating example of locally-led state-building. While Somaliland formally declared independence from the south in 1991, there was an earlier period of independence in 1960 after declaring independence from the UK and voluntarily uniting with the South, a region that had been colonized by the Italians, to form the Somali Republic. This brief interlude in the 1960s has been important in the Somaliland independence narrative, and for the justification of the borders that it now claims.

In many respects, Somaliland is a leader for democratic transitions on the continent, and certainly more so than many countries in its neighbourhood. The US NGO, Freedom House, assesses it as “partly free”[xix]reflecting the government’s general respect for civil liberties and political rights. In 2017 Somaliland held multi-party elections that, while delayed, were widely seen as transparent and fair.[xx]This follows several rounds of similarly democratic elections including the 2003 presidential elections where the opposition candidate, Ahmed Silanyo, defeated the incumbent president, Dahir Riyale Kahin, by 80 votes: quite certainly one of the narrowest margins for presidential elections on the continent and even more notable given that the results were not contested and power was peacefully transferred.

Visitors to Somaliland are struck by the extent to which it looks and feels like a state, leading to a slow but steady stream of positive press coverage in western media echoing the call by many elites in Somaliland for international recognition.[xxi]There are Somaliland passports that have, at times, had more international acceptance than passports from the Federal Government in Mogadishu. There is a Somaliland police force that fulfils much of what one would expect of a national police force, albeit often in a more informal and ad hoc way.[xxii]The military maintains security and control over much of the territory; intelligence services regularly foil terrorist plots; and the Ministry of Finance’s Customs Department polices the ports. 

While Somaliland has turned increasingly cashless through mobile money payments (and particularly Zaad, the product introduced by the leading telecoms company Telesom), Somaliland prints and regulates its own currency, the Somaliland shilling, and offers central and commercial banking through the Central Bank of Somaliland. The economy is largely dependent on remittances and remittance companies such as Dahabashiil, which are also are powerful political and social actors.

Neighbouring Puntland shares much with Somaliland in terms of independent state-like characteristics. It holds multi-party elections, has its own constitution, security forces and police. Like Somaliland, its government arose out of extensive local conferences during which a traditional council of elders led discussions and encouraged compromises to construct an inclusive government with legislative, executive and judicial branches. Differently from Somaliland, however, Puntland is not seeking independence from the South but rather aspires to a significant role in a federal Somalia. Therefore it actively engages in state-building initiatives that are being led from Mogadishu and political leaders from Puntland are often engaged in the national government. It sees its separate state-like structures as a necessary means for overcoming the absence of government in the South and providing security and services to people in Puntland. There is also a significantly lower incidence of poverty in Puntland, as well as higher rates of literacy and participation in the labour force, compared with other regions.[xxiii]

Over the years a number of small proto-states have emerged, but none has reached the scale and legitimacy of Somaliland or Puntland. These smaller “states” typically have a trajectory of a few years before dissolution. Examples include the South West State of Somalia, the Galmudug State, Azania, and Khatumo State. These states are often primarily occupied by a particular clan that has not found the representation or access to resources that larger governance entities have offered. The experience of Khatumo State is indicative of the fragmentation of governance. Khatumo State is located within eastern Somaliland and declared autonomy in 2012. It does not recognize the independence of Somaliland and people there, primarily from the Dhulbahante clan, do not consider themselves “Somalilanders.” A longstanding region of conflict, in 2016 peace talks were convened between Khatumo State and Somaliland with little success. An interim president has been appointed, with presidential elections planned for 2018.

From the Islamic Courts Union to Al Shabaab

Perhaps the most well-known, or popularized in the international media, approach to “governance” in the Somali territories is the role of the Islamist group, al Shabaab (shorthand for Harakat al-Shabaab al-Mujahideen or HSM). The rise of al Shabaab has been misunderstood and the history of the organization is often muddled with the global history of Islamic terrorism.[xxiv]While al Shabaab declared allegiance to al Qaeda in 2012, the relationship between the two groups has been tumultuous and al Shabaab is better understood as product of local Somali politics. The story of al Shabaab is tied to the remarkable rise and fall of the Islamic Courts Union (ICU).

The ICU started as an informal group of small neighbourhood courts in Mogadishu in the 1990s when warlord politics prevailed. This was a local response to addressing security concerns and improving the business environment. Funded by local businessmen, clan elders were empowered to challenge warlords and armed youth. In the early days these courts were ad hoc and there was little coordination between them; they often had local legitimacy but they were also easily challenged by the warlords whose monopoly on security they were undermining. It was not until the mid 2000s that coordination between these courts emerged. Where the earlier courts were often divided and in conflict with one another, under the ICU, shared values were promoted of Shari’a and Islam as part of a grander nation-building strategy for Somalia that sought to erode clan divisions. The ICU became popular among many communities in south Somalia, as citizens appreciated the security and peace it brought at the local, street level. Schools reopened, warlords were silenced and businesses found a far more conducive environment for trade.

The success of the ICU was appreciated far less by the international community that had long been backing a series of ineffective central governments including, at the time, the Transitional Federal Government headed by Abdullahi Yusuf Ahmed. Ethiopia, in particular, was deeply opposed to the ICU due to its own national security concerns, including peripheral regions such as the Ogaden that were engaged in a longstanding conflict with Addis Ababa, and the support that its arch-rival Eritrea was giving to the ICU. Ethiopia engaged its ally, the United States, in its quest to delegitimize the ICU abroad by aggressively framing it as a terrorist organization. While the ICU did have a segment that was sympathetic to international efforts for a pan-Islamic caliphate, and was aligned with what might be considered radical Islamists, this was not the dominant characteristic of the ICU, in which moderates retained influence. The more extremist and jihadist views tended to be held in the military wing; indeed, after the overthrow of the ICU by Ethiopian troops (supported by the United States) and the Transitional Federal Government, the moderate elements were undermined and the more radical elements splintered into al Shabaab. The effect of overthrowing the ICU served to galvanize and radicalize Somalis, the youth in particular.

Al Shabaab continues to retain control of significant swaths of territory in south central Somalia, and retains influence, despite efforts to strengthen the reach of the central government and bolster the Somali armed forces with African Union forces (along with US special operations, the Kenyan Defence Forces and the Ethiopian military). Similar to other Islamist groups such as the Taliban and the Islamic State,[xxv]al Shabaab has also engaged in governance, rooted in its political ideology. It has engaged in tax collecting, cleared roadblocks, provided Islamic justice (although highly erratic and deeply flawed) and has offered some degree of welfare and security to certain segments of different communities, as its strength and character have varied significantly across south central Somalia.[xxvi]

Communal and Private Security Initiatives

There are also a variety of security arrangements that different communities, or industries, employ. While these are not necessarily “governance,” they do reflect the breadth of ways people have adapted to access one of the most salient aspects of state provision that has been absent. Security is most often the result of clan and family ties, and the weave of xeer law, Shari’a law and blood-ties.[xxvii]These are stronger in some regions and have been eroded in others, the latter most notably by the colonial legacy of the Italians (compared with the British in Somaliland), the influence of international aid or the persistence of violent conflict. However, there have also been efforts to privatize security. These range from neighbourhood watch groups that patrol the streets, typically paid for by wealthy members of the community and in some cases largely comprised of elements from reformed criminal gangs, to very profitable companies.[xxviii] Businesses cannot operate without their own security and most have developed a specific department or arm to manage this. However, in some cases there are companies that operate across sectors, whether hotels, government or international visitors. Costs are high and this is a lucrative sector that has both contributed to the stabilization of governance institutions as well as undermining some aspects; opting out of state systems, whether for education or security, and developing parallel and superior provisions reduces incentives for the state to provide them. 

Top-Down Statebuilding Efforts for a Federal Government

While this article focuses on informal modes of governance, a brief mention of the top-down efforts to prop up and establish a central government is also warranted. The history of the central government in Somalia is very much one of international patronage. At times it was propped up by the Soviet Union, while at other times the United States. Like other countries on the continent, when the period of Cold War struggle slowed in the early 1990s, and international aid was less forthcoming, the central government weakened in the face of internal rebellion and discontent.

Said Barre (who ruled from 1960–91) embarked on some notable initiatives to foster nation-building and a more cohesive national Somali identity. There was, for example, one of the most ambitious and successful literacy campaigns on the continent. Somali was not a written language until 1972, and after much debate it was decided the language should follow the Latin script. This was highly controversial as many influential scholars argued for Arabic, and there was a push to have a unique Somali script (like neighbouring Ethiopia’s Amharic), but a pragmatic approach was taken and Latin was adopted, with leaders arguing that bureaucrats already writing in English and Italian could more easily adapt and a Latin script would help integrate Somalia globally. A year later (1973) the school system was suspended and teachers and students were dispersed across the country to teach Somalis the new orthography. Government bureaucracy was switched to Somali and there was a massive effort to alter school teaching materials, national newspapers and even novels.[xxix]Literacy rates increased significantly to 54 percent in 1975 (higher than the previous assessment of 40 percent in 2014).[xxx]

At the same time, however, Barre’s techniques for maintaining power involved stoking inter-clan conflict, pitting one against the other and also favouring certain clans with which he had family ties (most notably the Marehan, Ogaden and Dhulbahante clans). His approach of scientific socialism alienated many, outside of a small circle of elites in south Somalia. Over the years, clans fractured and formed insurgency groups including the Somali National Movement that was instrumental in the liberation of Somaliland and was largely dominated by the Isaaq clan, the Somali PatrioticMovement that was rooted in the Ogaden clan that stretches across into a large part of eastern Ethiopia, and the United Somali Congress, primarily comprising the Hawiye in the South.

The experience Somalis had with the state under the Barre regime was one of repression, antagonism and, during some periods, terror. The regime has been credited as having one of the “worst human rights records in Africa,” according to the UN Development Programme.[xxxi]The National Security Service was notorious for its brutal measures against anyone suspected of undermining the regime and there were few legal protocols for assessing the veracity of claims made by the state. Torture, arbitrary detention and extrajudicial killing were the norm. Freedom of expression, particularly through the media was negligible (some notable exceptions are of critical poetry that was able to escape government censorship, although poets and artists were also frequently detained or killed). 

The state also embarked on a highly ineffective nationalization process that led to massive corruption and economic inefficiencies. Reflecting its ideological camaraderie with the Soviet Union, elections were suspended and citizens’ property was expropriated as part of a land nationalization process for massive state-led initiatives, including farming or factories. The private sector was severely repressed, including traditional sectors such as livestock and related pastoral products. 

It was not entirely surprising that, when the state collapsed, violence between groups flared in the early 1990s. Tensions were high and the continued efforts to divide communities as a means of control led to longstanding grievances. Some of the successful parts of the state, such as the education system, were eroded and corrupted over time. With the exception of the security and intelligence services, it was clear that other sectors of the state were weak and been deeply neglected.

Law, Politics, and Media

After elaborating the great variety and vibrancy of governance structures in the Somali territories, it is with some hesitation that this section attempts to generalize about the legal and political frameworks that undergird most (state) politics. This starts with the premise that, in many parts of the region, something is working. Understanding what is working, and how, can provide the fundamental building blocks for understanding governance. 

Just as there is the tendency to describe the political and legal environment in the Somali territories as a place of anarchy, distrust and disorder, there are competing tendencies to over glamourize or idealize the ‘informal’ structures. This is not to suggest that statelessness, or an extremely minimal state, is better than statehood as Leeson and others have argued but to indicate the ways in which customary and religious law has managed to regulate key aspects of society, including violence, business and personal relations, providing a foundation for governance. The case of media and ICTs illustrates how this has worked in practice as xeer (Somali customary law) and sharia law have been used to resolve a wide range of disputes.

Different principles of xeer and sharia law are regularly drawn on depending on the nature of the dispute. For example, when it comes to investment in telecommunications and infrastructure, xeer has provided grounding in how to protect and resolve property disputes. Given the newness of ICTs and many media platforms, there is not necessarily precedent within xeer for adjudicating such disputes but it can provide direction by considering how other property disputes have been resolved. There is precedent within xeer law for addressing property issues, and particularly livestock, that has been applied to telecommunications infrastructure and continues to retain influence.[xxxii] Clans traditionally provide security and support for caravans that might be passing through their territory. By hosting the guest caravan, often in exchange for gifts to the local leader, clans make themselves responsible for any attack on the guests as an attack on the host.[xxxiii]In the context of telecoms infrastructure, companies are often careful to employ people on the basis of clan affiliation to ensure that their property and interests will be protected as well as that there will be sufficient access to recourse in the case of disputes. 

Similarly, xeer has been used to regulate libel and slander. Poetry has been historically been regulated and there are standards for addressing such speech where families will consider how an insult or the damage of one member’s reputation affects the group as a whole. Both sides are typically eager to resolve such disputes to restore and maintain the clan’s good standing in the wider society. There are, however, limits to this approach: In some cases an individual or clan will not recognize the legitimacy or authority of the traditional elders. Media outlets do not always represent clans. Larger outlets are often more diverse and may not be rooted in one single community. Since xeeris mediation of a bilateral agreement between two clans, it becomes far more complex when dealing with an organization that may be affiliated with one clan (typically on the basis of ownership) when the person who is accused of slander is from another clan. And media outlets have, at times, resisted the intervention of elders, particularly when it is seen to threaten their freedom of speech.

While xeer is still prevalent across much of the Somali territories, its authority has waned in some places due to ongoing violence and corruption. Furthermore, as Schlee makes particularly clear, the governance that xeer or sharia law have provided, should not be confused with justice, in the western-sense of the term.[xxxiv]Women are of course marginalized by xeer and customary law, as are less powerful clans and interests. It works in varying ways across the territories, in some places having more relevance, respect and authority, while in other areas the influence of elders has been eroded and religious leaders have been politically captured by extremists or international actors.

Statebuilding and Somali Realities

The Somali territories have moved on from the period of politics that was dominated by warlords and militias, but efforts at extending state governance have continued to face opposition. While the narrative among all actors, whether elders, politicians, businesspeople or civil society groups continues to be one of state-building and peace-building (and the two are often conflated), resistance remains. Spoilers are always present in conflict resolution processes, but, in the case of the Somali state, the presence of spoilers has been particularly prominent. For some, the continued conflict and state-building process has been an opportunity to access the deep pockets of the aid efforts of the international community. Given that the state-building initiatives have largely been externally driven and funded, political patronage has been outward looking, with fewer incentives to be accountable to Somalia’s citizens. As Somalia’s largest revenue source is remittances from the diaspora, the weak tax base and lack of local industry have also hindered the opportunities for those governing to extract resources locally and develop networks of patronage rooted in the state (as has been the case for other conflict-affected state-building efforts in resource rich countries such as the Democratic Republic of Congo or Sierra Leone). Thus the incentives for supporting, or hindering, the prevailing top-down state-building efforts vary. A range of “spoilers” in Somalia is notable. While some parties have had an interest in perpetuating violent conflict, including encouraging warlordism or large-scale violence, others have traded in the business of private protection and have incentives to hinder efforts to reduce criminality and efforts to extend formal legal institutions.[xxxv]Perhaps most notable is the complicated relationship between certain business sectors and the state. The experience of the telecommunications industry and the efforts to make communications laws is particularly instructive.

In recent years there have been intense efforts to formalize the ICT industry and regulate the media. Initiatives by the World Bank have been on the forefront of this and have included efforts to pass a National Communications Act that would have, among its duties, managing interconnectivity, spectrum allocation and to formally tax and raise revenue from the ICT companies. The National Communications Act, initially proposed in 2014, has yet to be passed by parliament. The very powerful technology companies have been ambivalent in their support at times encouraging the Act and at other times clearly undermining it. Allegations of corruption abound with claims from the Act’s supporters that formalizing the sector is actually not in the interests of the technology companies who have struggled to reach agreements with the government over tax issues. And in many respects the informal ways of doing business have become so entrenched and, arguably for many, effective that there is little incentive for government intervention on the part of these companies.

Legal reforms have, however, focused on what are largely considered to be international ‘best practices’ for ICT and media law. Examples from rich countries have been studied, expertise from international organizations (such as the World Bank) and consultancy groups has been provided, and the law has been assessed or evaluated according to these best practices by media advocacy groups such as Article 19. This focus on the formal legal system, however, overlooks other forms of legislation and law that regulate media companies, journalists and speech more generally in the Somali territories.

Conclusion 

The state under Said Barre was so predatory, invasive and strangling for so many sectors of the economy that some research has suggested that Somalia has been better off after government collapse. Leeson, for example, has argued that Somalia is “better off stateless” and that the state under Barre was so predatory that “anarchy” has actually improved development and citizen welfare.[xxxvi]While Leeson highlights the positive trends within the private sector, including the vibrant telecommunications industry, the livestock sector, including the cross-border cattle trade with Kenya, and investment from multi-national companies, perhaps more surprising is the improvement he cites in the provision of public goods.[xxxvii]

On any visit to the major cities of Hargeysa, Mogadishu or Garowe, or even smaller towns, one is struck by the number of educational offerings. From religious primary schools sponsored by Saudi Arabia to private universities staffed with holders of PhDs from the diaspora in Canada and the US, the education market is vibrant. There are institutions training doctors, offering computer science and teaching law. While these institutions are almost exclusively private, they are steadily improving in quality and affordability, increasingly their accessibility. Similarly, water and electricity suppliers are mostly private, but have improved markedly, increasing opportunities for other sectors of society to grow. 

Echoing these arguments that Somalia has actually improved in the absence of government have been calls for “constructive disengagement” from international efforts at statebuilding.[xxxviii]Along with the caution that there can be a tendency to over idealise local governance structures, navigating the lines between intervention and disengagement from the Somali territories is particularly fraught. However, one of the major areas of neglect is consideration of what is actually working, and how and why. Any law-making process, whether constitution-making or a new communications act, must strongly consider what is already effective and how this can serve as a foundation. Similarly, broader efforts to restructure governance and political institutions, whether domestic or internationally driven, must also evaluate and build on the existing structures that provide valuable provisions of justice, security and in some cases, such as Somaliland and Puntland, even perform like state-like entities. Conceptualizing such spaces as ‘failed states’ only obscures these possibilities. 

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Nicole Stremlau is Research Professor in the Humanities at the University of Johannesburg and Head of the Programme in Comparative Media Law and Policy, Centre for Socio-Legal Studies, at the University of Oxford. She has conducted extensive research in Eastern Africa. Nicole is the recipient of a European Research Council grant that examines the role of social media in conflict and migration, with a specific focus on the Somali territories. Her recent books include Media, Conflict and the State in Africa (Cambridge University Press, 2018) and Speech and Society in Turbulent Times (Cambridge University Press, 2018).

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