Somalia: a tradition of Law a research paper by Nicola Gladitz



Download 86.45 Kb.
Date conversion20.04.2016
Size86.45 Kb.
Somalia: A Tradition of Law
A research paper by Nicola Gladitz




Contents


I. A Brief Historical Overview 3

From First Origins to Post-colonialism 3

A Split in Two 3

Acknowledgements 3



II. Societal Structure and its Legal Implications 4

How a clan is organized 4

Xolo 4

Jilib 4


Juffo 4

Reer 5


Persons of special status 5

The Status of Non-Clan Members 5



III. The Judicial Process 6

Prosecution 6

The Role of the Judge 6

The Court in Session 6

Appeal 7

Remedies 7

Restitution 7

Compensation 7

Penalty Fines 8

Enforcement 8



IV. Rights and Laws 9

Rights 9


Rights in One’s Body 9

Rights in One’s Freedom 9

Rights in One’s Property 9

Formation of Laws 10

Areas of Law 10

Marriage and Family 10

Transgressions against the person 11

Property 12

Economic Regulation 14

Religion 14

Legal Disputes with Foreigners 14

V. Selected Cases 14

The Missed Inheritance 14

A Particularly Heinous Murder 15

First Possession of an Elephant (or: Pierson v. Post in Somalia) 15

Grand Theft Auto 15



I. A Brief Historical Overview

From First Origins to Post-colonialism


Signs of human life in the territory of today’s Somalia go back as far as 9000 BC.1 A rich history, documented by surviving cave paintings, burial sites, pyramid structures and ruined cities, tells about flourishing trade with Egypt and Mycenaean Greece from what used to be known as the Kingdom of Punt.2 Trade via Somali ports continued to flourish and Arab traders in the middle ages introduced Islam to the region,3 of which Mogadishu became the center on the African east coast. Although numerous “kingdoms” came and went throughout Somalia’s history, most of the activity took place along the strategically valuable cities and coastal areas. The inland areas were populated mostly by nomads, who lived with and off their livestock, moving it between grazing lands.

The borders of modern Somalia were only established by the Europeans during their scramble for African colonies in the late 19th Century, and were often drawn arbitrarily to suit European politics rather than along traditional boundaries between tribes.4

After the British and Italian colonialists withdrew from their respective territories in 1960, the people in their former territory elected to join together, creating the United Republic of Somalia. It soon became apparent, however, that participation in the democratic process came down to clan allegiances and in 1969 the country fell under Siad Barre’s dictatorship. Although purporting to move beyond clan favoritism, his government was comprised predominantly by members of his extended family and favored his clan’s region in the south around the capital city of Mogadishu.

A Split in Two


After Siad Barre’s ouster in 1991, the people living in the formerly British protectorate in the north, Somaliland, acted on the realization that under clan driven majority-rule democracy their region’s interests would never be effectively represented. As a consequence they unilaterally declared independence. Somaliland has since successfully regressed to life under traditional Somali law and social structure and key indexes of its economy, stability, and life expectancy have been on the rise ever since.5 Despite these positive developments, the United Nations has refused thus far to recognize Somaliland’s independent Statehood.6

Despite progress in the north, Somalia as a whole has been at, or close to, the top of every major failed state index in recent years,7 due largely to the chaos in the large southern territory, which used to be under Italian colonial rule. As millions US dollars and Euros flow to Mogadishu every year8 the donor’s expectation that Somalia reinstate a central democratic government, pits clan against clan in a fight for power and thus contributes to corruption and inter-clan warfare.9 Police and military forces in the region no longer work for a government, but volunteer or hire themselves out to local “war-lords” who operate outside of the customary law system and even in violation of it.10


Acknowledgements


In light of the limited amount of information available, this paper relies heavily on the work of Michael van Notten, a Dutch lawyer and legal scholar, who researched Somali law from a privileged vantage point after marrying a Somali woman and joining her clan. His work would not be complete or even published, however, without the work of his posthumous editor, anthropologist Spencer MacCallum.11 Credit further goes to my father Peter Krieg, who traveled to Somalia to meet with local scholars, clan elders, and community workers and published his interviews and findings on Somali law and society in his film The Golden Apple: Somalia between Clan and State.12 Thus this paper relies on accounts of what traditional law in Somalia used to be, and on how it is practiced today in the Somaliland territory.

II. Societal Structure and its Legal Implications


Traditionally, the Somali people have no central government.1 Instead, the people organize in a loose-knit community in which thousands of small groups are linked together by ties established through either family relation or contract.13

How a clan is organized


While I often use the term “clan” loosely in this paper, a detailed look at the Somali social structure is helpful in understanding Somali law and society.

Xolo


Xolos are prominent “super-clans,” among them the Daarood, Hawiye, Dir, and Digil-Mirifle are each of which is comprised of several million members who trace their origins back to a common ancestor.14

Jilib


Within each of these great clans, are numerous subgroups, or jilibs. Each jilib is comprised by 300 to 3000 males, and their families. The men are usually descendants of a common ancestor15, although men who find themselves without enough brothers and cousins to form an effective jilib, may form a new jilib with fellow clansmen16. In that case, their common ancestor will be more remote. A jilib is legally significant because its members are responsible for each other when it comes to payment of blood-money.

Several jilibs may form alliances and thus ultimately establish their own clan, or xolo.17


Juffo


A juffo is a sub group of a jilib, whose male members share a common great-grandfather. Members of a juffo are legally responsible for each other’s security and debts arising out of minor violations of the law. They will also jointly lend support when one of their young men wants to marry and his family is unable to pay the customary bride money, the yarad.18

Reer


A sub-group of the juffo is called a reer and is made up by a handful of households or nuclear families that live close together. Unlike the juffo and the jilib, the reer does not carry its own legal or political responsibilities.

Persons of special status


Political, jural, and religious dignitaries of a clan are expected to behave as exemplars. Therefore, if they transgress against a law, they must pay higher fines and penalties than others.

The Status of Non-Clan Members

Foreigners

Foreigners don’t have a legal personality of their own, but are treated as guests of the clan among whom they live. Foreigners therefore need a patron to act as their guardian. The patron’s jilib pays compensation when his client violates someone’s rights, and initiates proceedings when his client has been transgressed against.

Foreigners cannot own or rent land but can lease land from their patron’s clan.

Former Bondmen / Serfs

Used to lack legal personality and would be attached to host jilibs. More recently, many former serfs have formed their own jilibs. However, they are not allowed to own land or camels.19
Husbands living with wife’s clan

A husbands presence is tolerated by his wife’s clan as long as he remains insured by his own jilib and does not bring his own camels with him. He may not own land in the territory of his wife’s clan, and his children will belong to his own clan, not to the wife’s.20 This policy ensures that the stability of a clan won’t be threatened by divided loyalties within.
Somalis living under protection of a clan not their own

If, for instance, a person has committed a murder and fled to the protection of another clan, such person may not own land or camels while living among his protectors.21
Members whose clans are too scattered to provide protection

Such persons usually associate with a well-established jilib of their host clan.
Insufficient brothers or cousins to form a jilib despite clan membership

The solution to this is that such people will bond together with fellow-clansmen in similar position to form their own jilib. They will usually seek long-term lease of land parcels from landed fellow clansmen.

III. The Judicial Process

Prosecution


Only the victim’s immediate family, not the clan or a third party, has standing to bring a procedure before the court. If the victim is a man, his father, brothers, or uncles can bring complaints. If the victim is a woman, complaints can be brought by men in her own family, or by men in her husband’s family.22

The Role of the Judge


To become a judge in Somalia, one first has to become the head of an extended family. Family heads are usually chosen for their wisdom and knowledge of law. Yet no formal legal training is required of a judge and a judge is free to develop his own doctrines and legal principles. If a judge’s verdicts do not resonate with the feelings of fairness within the community, that judge will simply not be asked to preside again.23

The role of the judge to settle conflicts more closely resembles that of arbiters in western countries and is usually bestowed on elder clansmen.24 Judges in a particular proceeding are selected by the parties. If the parties are from the same clan and jilib, the bench is usually comprised of two or three judges. More judges will preside over a dispute between members of different clans.25 Once a court has formed and accepted jurisdiction over a case, the judges seek to negotiate a consensus. This emphasis on consensus ensures that all parties involved stand behind the outcome. According to a Somali proverb, the decisions of a meeting (i.e. court) are made by all the people.26

In today’s Somaliland the parties and their respective elders will seek leave from an official court to agree and be bound by the traditional procedure and verdict, which is later submitted to the court. The court’s officer then formally signs the verdict and adopts the decision.27

The Court in Session


The traditional forum for these arbitrations is under a big tree, but more modernly meeting halls are used to gather decision makers. Each party has the right to appoint a representative to make the presentation on his behalf. A recorder will repeat loudly each important point made by the speakers.28 If a fact is disputed, its truth must be attested to by at least three witnesses. A party may call on experts and character witnesses, but it is not customary for them to be cross-examined.29

If facts are in dispute, or not supported by enough witnesses, the court will request that witnesses take oaths. In the most basic kind of oath, the oath-sayer swears “by [his] virility,” or “by Allah.” Such an oath is made increasingly stronger by repeating it either three, or even fifty times. A different kind of oath is called the divorce oath, in which the oath-giver swears by his marriage(s). If it turns out later that the oath-sayer lied, the marriage(s) are annulled.30

A plaintiff’s failure to convince the court of his grievance does not automatically result in a verdict for the defendant. Rather, the defendant has to swear an oath of innocence before such a verdict will be given.

Bobe Yusuf Duale with the Academy for Peace & Development in Hargeisa, explains the nature and traditional tools used in indigenous meetings: If a discussion heats up to the extent that the participants are on the verge of fighting, the presiding chairman orders a recess. A recess may also be ordered as a result of new issues that arise.

During recess, which may last anywhere from an hour to a week, the issues are again discussed in pairs and in groups. It is common, during these informal meetings, for the parties to chew khat, a narcotic stimulant, exchange insults and abuses, but then also to laugh with each other and conduct friendly conversations. These negotiations also ensure that everybody can have a say in the reaching of an agreement. After the chairman reconvenes the meeting, if tensions rise again, he may summon a poet to deliver a poem on peace-making and reconciliation. Alternatively, the chairman may call on a religious leader to recite a verse from the Koran on how to talk to each other and reach agreement.31

Appeal


Either side has the right to appeal a verdict, but both sides have to agree to an appeal. If they do, each party must select a different set of judges, larger in number than that of the first court, and which must be selected from a wider group of families or clans. If the appeals court reaches the same verdict, then the verdict is final. If not, another appeal may be brought, up to a dozen, depending on the rules of the clan. But if the aggrieved party refuses to go along with the appeal, it is entitled to self-help according to the original verdict.32

Remedies


Somali laws, and consequently crime, are defined in terms of property rights.33 The most common remedy is restitution, although compensation and even fines may be imposed in some situations. There is no imprisonment.

Restitution


Thus justice is generally served by making the person whole, i.e. by ordering the wrongdoer to pay restitution to the victim to put him in the situation in which he was before.

While some form of restitution award is usually the result, in order to establish peace, the elders may advise, that neither side of warring fractions shall assert any claim of retribution, nor owe any restitution to the other. If the people are convinced that this is in their best interest, such a resolution has been, and will be, adopted by the clan elders at a meeting, explains Abdi Hussein Warabe, himself a clan elder.34


Compensation


If restitution is not possible, then the victim is due compensation instead. Compensation is calculated in terms of healthy female camels, aged three to six years, measured at current market value (typically between one and two hundred US dollars). The parties may stipulate to payment in money or other livestock, for which there is a fixed rate of substitution: One camel equals three cows, or alternatively ten goats or sheep.

a. Compensation for bodily harm


Below is a table of the legal maximum of compensation owed to a victim of unintentional bodily harm. If the harm was done intentionally, the compensation will be double. The parties are free, however to agree on less than these values:35


Killing of a man

60-70 camels

Killing of a woman

30-35 camels

Killing of a baby boy

30 camels

Killing of a baby girl

15 camels

Rape

Number of camels depends on who was the perpetrator and who was the victim. More camels are due for a young unmarried girl.

Loss of an eye

50 camels (100 for both eyes)

Loss of nose

50 camels

Loss of an ear

36 camels (72 for both ears)

Loss of the tongue

50 camels

Loss of a tooth

Up to 35 camels, depending on which tooth

Loss of an arm

Right arm: 40 camels, Left arm: 30 camels

Loss of a finger

Up to 5 camels, depending on how much of the finger

Loss of a thumb

10 camels

Loss of a leg

40 camels

Loss of a toe

5 camels

In addition to paying compensation, a wrongdoer’s family must also nurse the victim back to health in their home. If the victim dies during the recovery, his family is owed 100 camels for a man, and 50 for a woman.36


b. Compensation for Theft


If a person steals an animal from another, he has to return two similar ones to the victim.

Accidental damage

Where a person accidentally damages the property of another, he has to pay the victim as much as necessary for the latter to replace the item.37

Penalty Fines


Penalty fines may be imposed when a wrongdoer refuses to honor a verdict. Fines are owed to the victims family and are usually paid by the wrongdoers entire family.38

Enforcement


If a verdict calls for retribution, it is enforced either by the victim’s family, or by all able-bodied clansmen in the area where the verdict is to be executed. If necessary, they are ordered by the court to use prescribed levels of force against the condemned party. A clansman’s refusal to comply with such an order will result in a fine.39

Where the parties and their judges are from different clans, the court has no power to enforce its verdict and the enforcing falls to the victim’s clan, at that clan’s discretion. Thus judges in this situation may require the parties’ agreement to enforce the court’s verdict before judging the case. 40


IV. Rights and Laws


In his writings on the Somali legal system, Van Notten relies on the two separate concepts of natural rights and natural law. The political philosopher Tara Smith, whom Van Notten cites in his book,41 describes rights as akin to a “protective perimeter” around a right-holder, beyond which others may not trespass.42 Since rights protect their bearers’ freedom, rights function as a defensive mechanism.43 What makes these rights “natural,” is, to borrow from the framers of the American Constitution, that they are “self-evident.” And similar to the founding document of the USA, the Somalis recognize persons’ rights in their life, liberty, and property.

Laws are distinguished because they are shaped by people and may regulate in detail the obligations arising as a result of individual rights, as well as establish guidelines for what a person should do. Thus rights are absolute values held by the community through time, while laws may change over time.


Rights

Rights in One’s Body


Somali laws protect people from intentional and unintentional injury to the person. Thus murder, manslaughter, torture, assault are prohibited. Exceptions apply to killing in wartime and the wounding of female children in the cultural custom of genital mutilation.44

Rights in One’s Freedom


Somali law recognizes some inherent freedoms. These include

  • freedom of speech, limited by others’ rights to be free from insult or defamation

  • contract, except where curtailed by Islamic Law, such as in rights to marry (a man may marry up to four wives, but a woman may only have one husband) and the prohibition on buying and selling alcohol.

  • movement,

  • trade, and

  • appropriate unclaimed objects, except such as are traditionally held communally, like grazing lands.

Each freedom carries with it the obligation not to impinge on other’s freedom. A person’s freedom is further limited by obligations such as civic duties like repairing a well or enforcing a verdict required by a court of law.45

Rights in One’s Property


Somali law distinguishes between ownership of movable property and land.

Movable property


Somali law recognizes the right to acquire, use, and dispose of movables such as livestock, shelter, clothing, food, household utensils, and weapons, as long as one respects the property rights of others.

Land


The right to possession and ownership in land depends both on a person’s status, and the primary use and location of the land.

Formation of Laws


Little is known about the origins of the traditional Somali legal system, called the Xeer (the literature uses this term to refer both to individual laws, and the comprehensive body of Somali customary law), in part because the Somali language is primarily spoken and rarely written down. Although some speculate about an early Somali script, no ancient writings survive46 and the first modern codification of the Somali language in writing took place in 1972.47 Despite the absent of ancient written records, scholars believe that the customary Xeer legal system predates both colonial and Islamic influences and has been developed by the Somali people since time immemorial.48 Somalis today believe that In fact, the proposition that laws could be “made” rather than discovered as part of a natural order would strike traditional Somali judges “as weird, if not obscene.”49 As Ahmed Dualeh of Hargeysa University explains, a Xeer (law) is a law arrived at by agreement, usually originating from an event, such as a killing of another clan’s member. If, instead of retribution, the injured clan agrees to accept monetary compensation instead, then this sets a precedent which, if reinforced by a large number of verdicts in similar cases,50 matures into a principle and eventually a law, or Xeer.51 In the words of Hanad Sahardeed, a Diaspora-Somali from Canada, these Xeer are passed down from generation to generation, simply by oral communication.52

Areas of Law


Under the customary laws of Somalia, it is forbidden to commit acts of homicide, assault, torture, battery, rape, accidental wounding, kidnapping, abduction, robbery, burglary, theft, arson, extortion, and fraud, as well as acts akin to tort like the unintentional causing of damage to another’s property.53

Marriage and Family


Contracts about family matters such as marriage, children, divorce, and inheritance, are usually formed with the help of a religious official, or sheik, whose help is sought also if these matters are in dispute. The sheik will usually apply a mix of traditional and the Shafi’i school of Islamic law, according to the preferences of the parties54 (and presumably his judgment). Since Islam has been adopted by the Somali people voluntarily and gradually, it’s laws and principles have become integrated into the customary law.

In Somali society, the right to choose one’s husband or wife is in the hands of the parents. While girls can be married off as soon as they reach puberty, boys are eligible when they are 20 years old.55 Since men can marry up to four wives, presumably they can choose their second and subsequent wives. For the first marriage, however, it is usually the parents who negotiate the marriage contract. It is generally agreed, that the husband will provide the household money and the wife will manage the house, and breach of these duties by either party can be grounds for divorce, effective when one spouse says three times “I divorce you.”56 Among the terms to be negotiated are the livestock the couple is to receive from the groom’s family, and the house and its decorations and utensils that are given to the couple by the bride’s family.

Parents also decide whether they want their children to undergo circumcision, excision, or clitoridectomy.

Survivor’s Rights and Inheritance


If a husband dies, his wife will usually be offered to marry one of his brothers. If she declines, her late husband’s clan is no longer obligated to pay her household money. If she is pregnant, however, she must stay with her late husband’s clan until the child is two years old, after which the child will remain with the father’s family until adulthood. As discussed under the section on agricultural land, a widow is further entitled to the fruits of her late husband’s land and livestock while she lives.

If a wife dies, her family will usually offer the husband one of her sisters in marriage. Neither party is obligated to enter into such a marriage.

Somali law allows for testamentary freedom so that people are free to pass on their belongings to whomever they choose. Where landholdings are small, this can protect the integrity of parcels to go to only one child, rather than be divvied up. Where a person dies intestate, his sons and unmarried daughters inherit equally. Women no longer stand to inherit from their parents once they marry.

Transgressions against the person

Homicide


Somali law makes no principal distinction between intentional and unintentional killings. For any kind of unlawful killing, the victim’s family must be compensated within one year. Although the basic sanction, as in traditional Islamic law, is an eye for an eye, and thus at least in theory requires the murderer or one of his clansmen to be executed, the family of the victim and perpetrator of an unintentional killing usually settle for blood money as compensation (see table above). If the killing was done with intent, however, the victim’s family is likely to ask for the death either of the perpetrator, or, if he has fled, for the death of two people of the murderer’s clan, preferably ones of similar status as the victim. Thus a murderer’s family has a significant incentive to apprehend a transgressor and have him held accountable.57

The courts have some leeway in deciding whether compensation may substitute for retaliation, and in the setting the amount and time of blood money due. But if an amount greater than 100 camels is agreed on, then the case will not be allowed to serve as precedent. 58

A special problem presents itself in the case of a killing between two next of kin, where the murderer would be required to pay restitution to essentially his own family. In order to avoid what would amount to an empty gesture, the murderer of a nearest kin will be ordered to pay the appropriate amount instead to the farthest of kin of the victim.59

Assault


Any infliction of bodily harm obligates the assailant to pay compensation to the victim. The amount due to the victim depends on what body part was harmed, the extent of the harm, and on the consequences. Thus if an unmarried woman is physically harmed so that she will likely not be able to marry, e.g. because her looks are distorted from the injury, the full blood price is due.60 The infliction of an injury that requires that the wounded get medical attention and care obliges the wrong doer to pay for that care, or nurse the injured back to health in his own home. If the victim does not recover but rather dies, then the full blood price is also due.

Rape


An unmarried woman who is raped will usually be condemned to marry her rapist, her right to refuse such a union is mostly overcome by familial and societal pressure.61 Alternatively, a rapist has to compensate his victim’s family with camels. More camels are due if the victim was young, unmarried, and a virgin, fewer will be paid in compensation for the rape of a widow.62 In reality though, according to Weris Ali Warsame, chairperson of the United Somali Women's Roots Organization, no rape cases are ever tried.63

Adultery


A man who commits adultery with a married woman is liable to pay compensation to her husband.64

Defamation


Violating or insulting someone’s honor is a serious offense in Somali culture as it is seen to hurt not only the addressee, but also his or her family. Serious insults command payment of five camels to the victim, or, in the case that an unmarried woman’s chances of marriage are destroyed by the insult, the required compensation may be as high as her blood price.

In many cases, the effect of an insult may be mitigated by a formal and ritualized apology, extended by the offender and his elder.65


Property

Personal Property (Movables)


Somali law recognizes the right to acquire, use, and dispose of movables such as livestock, shelter, clothing, food, household utensils, and weapons, as long as one respects the property rights of others.

Wrongful interference with the property of another, whether by mistake or on purpose, requires the wrongdoer to return the object or, where impossible, pay restitution to the rightful owner.66



Real Property (Land)

Grazing Land

Traditionally a society of nomadic peoples, Somalis have been reluctant to recognize individual ownership in grazing land, which includes forests. Rather, they recognize the right to possession in these lands, on a first-come, first-serve basis. In times of drought or scarcity, a clan may regard the grazing land in its area as belonging to clan members only. Even under such circumstances, however, it is regarded as immoral, and sometimes even an act of war, to refuse access to herdsman of other clans after they have asked for permission, particularly if survival of the other’s livestock is at stake.

As some clans have settled down, however, they tend to recognize individuals’ right to exercise exclusive control over small parcels of grazing land. Where this is the case, allocation of land is determined by consensus within the clan.67 However, a person cannot bequeath his parcel of land to others outside the clan and can only convey usage rights to persons affiliated with the clan, e.g. a clan woman’s husband from another clan. Such contracts end automatically, however, when the person bestowing the special affiliate status, such has the wife in the example, dies. The underlying policy for this discrimination for non-clan members is, that landowners are obliged to help in the defense of the clan’s territory against outside aggressors, as well as participate in collective clan activities. Furthermore, because children always belong to the clan of the father, allowing them to inherit land from the mother’s clan would open the door to “foreign” dominion of clan land.


Agricultural Land

The agricultural land inhabited by some Somalis is subject to much the same restrictions as grazing lands with respect to selling, renting, etc.68 However, Somalis recognize communal ownership in agricultural land by jilibs or entire clans. Such lands can be subdivided and given to individual members only by consensus of all male members. Further, Somali law recognizes the right of widows to use the land of her husband although technical ownership has passed to her husband’s children.69


Water Ponds and Wells

Private and communal property rights can be had in wells, especially where people have undertaken significant labor and expense to build these water sources. While owners are allowed to charge passing nomads a fee for access to the water, custom prohibits the denial of access.

In the case of a public watering place, the right of way is decided on a first-come first-serve basis. If two herds arrive at the same time, the smaller herd has the right of way because the loss of an animal due to dehydration would be greater to the owner of the smaller herd.70



Settlements by Religious Communities

Apart from land ownership by clan members sub-groups (jilibs), religious communities can also be granted land within a clan’s territory. If such a community shuts down, however, ownership reverts to the clan who was the previous possessor.71

Economic Regulation


As every Somali has the right to enter into contracts freely, once he does so, he is obliged by law to abide by its terms. The law distinguishes between contracts for goods, and contracts for services.

Contracts for the sale of goods


If one party to a contract for the sale of goods breaches, he must pay restitution or compensation to the other party. The other party has a right to obtain such restitution by force if necessary.

Contracts for the rendering of services


A contract for services can be terminated unilaterally. If the party performing the service walks away before completion, he foregoes the part of his reward that is still outstanding. Contracts for employment, e.g. for herdsmen, are thus structured in a way the employee receives food and shelter during his employment and a reward payment after all other terms of the contract are fulfilled.

Marriage Contracts


These are a special area of law as it is not the primarily affected parties themselves, but rather their parents who negotiate the terms of the contract (see discussion above). Furthermore, a woman’s freedom to contract is comparatively restricted as she can only be married to one husband at a time, while a man can take up to four wives, provided he treats them all equally.72 Islamic Sharia law usually governs this subject matter.

Religion


The vast majority of Somalis are Sunni Muslims73 and in the case of Somaliland, Islam is enshrined as the official state religion in the Constitution.74 Islamic Sharia law is also very influential on Somaliland’s legal system and Sharia law will usually be applied to issues where Islamic law is relevant, e.g. family law, and inheritance.75

Legal Disputes with Foreigners


Foreigners are free to, and in fact do, negotiate contracts with local parties in Somalia. While civic unrest and economic instability tend to discourage private foreign investment in Mogadishu and much of the former Italian territory, the situation in the north is very different. Article 19§(1)(b) of the Somaliland Investments Law76 stipulates arbitration as the default approach to the settlement of disputes between Somalilanders and foreign investors.

V. Selected Cases

The Missed Inheritance


“A woman was invited to visit her dying father, who told her that on his death she would inherit his house. When on his death she claimed title to the house, her oday (elder) told her that an Islamic court would decide the matter. The judge ruled that according to the customary law she was indeed entitled to inherit the house, but that according to Koranic law, only brothers and uncles could inherit, not the daughters and sisters of the deceased. If she claimed her right under the customary law, therefore, he would be obliged to damn her in the name of the Prophet. Consequently, the woman gave up her right to her part of the inheritance, not wanting to live the rest of her life with the social stigma of an outcast from the Islamic community. But she is still bitter about her fate, especially since the judge was the father-in-law of one of her brothers.”77

A Particularly Heinous Murder


“A group of young men wounded and killed another by throwing hundreds of stones at him. The murder was considered so atrocious that the court condemned the families of the boys to pay 200 camels instead of the customary 100 to the family of the victim.”78

First Possession of an Elephant (or: Pierson v. Post in Somalia)


“Two people claimed an elephant. The first had thrown his spear, but not hard enough to inflict a fatal wound, and the elephant had escaped. A few hours later, the elephant ran into another hunter. This time, the elephant was severely wounded and subsequently axed down. The first hunter claimed ownership, saying the elephant had become an easy target for any subsequent hunter. The second hunter maintained that, on the contrary, the elephant had still been full of energy when he speared and axed him down. The court found for the second hunter. It declared him to be the owner, saying the first hunter’s spear was too light to have caused major damage.” The verdict was remembered, not only because everyone thought justice had been done, but also because the judge had concluded the judgment with a poetic verse.79

Grand Theft Auto


A young man stole a station wagon that was idling in the city of Galkayo and drove off on the only paved road that leads out of town. The car’s owner was quick to borrow another car, and followed the thief in hot pursuit, forced him off the road, and was ready to fight him right then and there. An observant bystander called a traditional elder on his cell phone, and told the parties that a delegation of elders was to arrive momentarily. The parties agreed to submit to the xeer. Having thus obtained jurisdiction over the matter, the elders relied on the precedent of a similar case and decided that the thief must return the car, but that the shame and disgrace drawn by the incident was enough punishment.80

Endnotes


1 Some form of central government appears to exist in Somaliland today but it is unclear how much leverage it has over the peoples’ affairs. In judicial matters, for example, official courts seem to readily defer to traditional arbitration. Proponents of international recognition tend to stress the existence and stability of Somaliland’s central government, as this is one of the UN requirements for statehood. Others argue vehemently that Somaliland is strong because of the absence of a strong central government there.

1 pg 9 - Becoming Somaliland By Mark Bradbury

2 Tyldesley, Hatchepsut, p.14

3 pg 53 - Politics, language, and thought: the Somali experience By David D. Laitin

4 Id at 22, note 3.

5 DVD: The Golden Apple: Somalia between Clan and State (Peter Krieg 2009) (on file with author).

6 Dalmar Ismail, Somaliland: An Organic Democracy’s Application to the World for International Recognition, Jan. 2009, on file with author.

7 Foreign Policy Magazine: The Failed State Index, http://www.foreignpolicy.com/articles/2009/06/22/2009_failed_states_index_interactive_map_and_rankings, last accessed on Apr. 6, 2010; BBC News: Sudan Tops ‘failed state index’ May 2, 2006, http://news.bbc.co.uk/2/hi/africa/4964444.stm, last accessed on Apr. 6, 2010.

8 US Aid Disaster Assistance: Somalia, http://www.usaid.gov/our_work/humanitarian_assistance/disaster_assistance/countries/somalia/template/, last accessed on Apr. 6, 2010; European Commission Assistance to Somalia: Fact and Figures Apr. 22, 2009, http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/175&format=HTML&aged=0&language=EN&guiLanguage=en, last accessed on Apr. 6, 2010.

9 Robert Draper, Shattered Somalia, National Geographic, Sep. 2009, at 71; Spencer MacCallum: A Peaseful Ferment in Somalia, 1998, http://rkba.org/libertarian/maccallum/MacCallum-Somalia98.html, last accessed on Apr. 6, 2010.

10 Michael van Notten: The Law of the Somalis, The Red Sea Press, Inc. 2005 at 21.

11 Id.

12 DVD: The Golden Apple: Somalia between Clan and State (Peter Krieg 2009) (on file with author).

13 Michael van Notten, supra, at 19.

14 Id at 20.

15 Id at 20.

16 Id at 50.

17 Id at 20.

18 Id at 20.

19 Id at 50.

20 Id at 51.

21 Id at 50.

22 Id at 50.

23 Id at 38, 39.

24 Id at 21.

25 Id at 66.

27 Bobe Yusuf Duale, DVD: The Golden Apple, supra.

28 Michael van Notten, supra, at 66.

29 Id at 67.

30 Id at 67.

31 Bobe Yusuf Duale, DVD: The Golden Apple, supra.

32 Michael van Notten, supra, at 65-66.

33 Spencer Heath MacCallum, The Rule of Law without the State, Sep. 12, 2007, Mises Daily.

34 DVD: The Golden Apple, supra.

35 Michael van Notten, supra, at 70.

36 Id at 71.

37 Id at 71.

38 Id at 69.

39 Id at 21.

40 Id at 65.

41 Id at x.

42 Tara Smith, Moral Rights and Political Freedoms (Rowman & Littlefield Publishers, 1995) at 19, quoting Carl Wellman, A Theory of Rights (Totowa, N.J.: Rowman & Allanheld, 1985)

43 Tara Smith, supra, at 23.

44 Michael van Notten, supra, at 51.

45 Id at 51.

46 Accredited Language Services International: Somali. Available at http://www.alsintl.com/resources/languages/Somali/. (last visited on April 20, 2010.)

47 Christina Rodell Olgaç: Socialisation, language and learning in a Somali diasporic community in Rinkeby, Africa & Asia, No 1, 2001, pp69-78, 70. Göteborg, 2001.

48 Mohamed Farah Hersi, Research Guide to the Somaliland Legal System. Available at http://www.nyulawglobal.org/globalex/somaliland.htm. (last visited on April 20, 2010.)

49 Id at xi.

50 Id at 15.

51 DVD: The Golden Apple, supra.

52 DVD: The Golden Apple, supra.

53 Michael van Notten, supra, at 49.

54 Id at 60.

55 Id at 57.

56 Id at 60.

57 Id at 55.

58 Id at 55-56.

59 Id at 56.

60 Id at 56.

61 Id at 57.

62 Id at 70.

63 Louisa Lombard: How Somalia’s aged tribal justice system keeps the peace in a country known for chaos. Legal Affairs, available at http://www.legalaffairs.org/printerfriendly.msp?id=891 (last accessed Jan 27, 2010).

64 Michael van Notten, supra, at 58.

65 Id.

66 Id at 57.

67 Abbas Idris (John Drysdale), DVD: The Golden Apple, supra.

68 Michael van Notten, supra, at 53.

69 Id at 54.

70 Id at 57.

71 Id at 54.

72 Id at 60.

73 See Country Profile of Somaliland, available at http://www.somalilandgov.com/ (last visited Nov. 26, 2009).

74 Mohamed Farah Hersi, Research Guide to the Somaliland Legal System, supra.

75 Id.

76 Republic of Somaliland: The Foreign Investments Law, Promotion, Protection, and Guarantee of Investments. Available at http://www.somalilandgov.com/investments_law.htm. (last visited on Nov. 29, 2009.)

77 Michael van Notten, supra, at 179.

78 Id at 183.

79 Id at 184, 185.

80 Louisa Lombard: How Somalia’s aged tribal justice system keeps the peace in a country known for chaos, supra.





The database is protected by copyright ©essaydocs.org 2016
send message

    Main page