TakingITGlobal - Panorama - Traditional legal...

Published on: Dec 12, 2002

Topic:

Type: Opinions

https://www.tigweb.org/express/panorama/article.html?ContentID=848

The Somali nation inhabits a vast semi-arid or arid environment in the horn of Africa that is more suitable to traditional animal husbandry. In addition to this dry environment and the dominant pastoral life style, the people share a common experience shaped by a century of colonial rule; a common language, albeit dialect differences; a common religion, the belief and practice of Islam, a pervasive political culture made up of a highly segmented lineage social order; and also boast a rich oral culture with various styles of oral poetry that acts as a powerful tool in influencing public opinion. These common cultural roots of the Somali people created a strong sense of Somali identity and exclusiveness in contrast to others; nonetheless, this has not yet been transformed into a single viable political unit. As such there was no Somali state before the colonial penetration during 19th century since independence and rival clans distinguished the political landscape.

Historically, a complex linkage between the pervasive clan-based political culture, economic production dominated by traditional animal husbandry, and judicial instructions characterized the pre-colonial Somali pastoral society. Fundamental cultural elements of the segmentary linkage system, universal Islam and dominant pastoral life style together shaped the values and norms that distinguished Somali society and had a great imprint on the traditional legal system practiced by Somali nomads for centuries, customary law and Sheria.

An encompassing kinship order divides the total Somali nation in the horn of Africa into various political groupings. In his classical work on northern pastoral Somali society -pastoral democracy), Lewis (1961) designated the most important political groups of Somali society as clan-family, clan, clan, primary linkage and Diyah-paying group (Diyah, means blood compensation) from the highest political grouping, the clan-family, which consists of more than a million souls whose members trace decent to a common ancestor, to the smallest social unit, The Diyah-paying group, whose members range from a few hundred to a few thousand. In this elaborately segmented social organization, the Diyah-paying group and the clan are the most important functional units.
Each Diyah-paying group usually husbands their livestock within a roughly defined territory, and other communal resources. Except at times of conflict, neighboring Diyah-paying groups and lager social units often intermingle and congregate in a grazing region, as wider sharing of nomadic resources and mobility constitute a pastoral strategy that encourages the sharing of often scarce pastoral resources, between rival groups. Those are variously distributed within a given season and from one season to the next.
Economic cooperation and political solidarity, sectional by the force of kinship is most pronounced in the corporate Diyah-paying unit. The Diyah-paying institution reinforces lineage solidarity as each unit has/had a collective obligation to honor certain debts and make claims for restitution for wrong deeds committed against its members. Collective interest in the camels (camels of each lineage bear a distinctive brand-sumad-) and control of essential productive resources reinforce lineage solidarity.
Two parallel courts (Sharia and secular) functioned at the district level, located close to the majority of the nomadic population and agricultural rural areas. In spite of the existence of these courts, customary law didnot lose its importance and function in the Somali pastoral society, where people could not travel to the majority towns to seek justice based on secular laws existed at regional level and courts of appeal and a supreme court operated in Mogadhisho Capital city. However, the above-mentioned legislative decree Number 3 integrated the previously separated Sharia and secular courts and the laws that they applied in the Somali Republic.
From 1960-1969, elected civilian governments ruled the country, but in October 1969 the military took over power by a bloodless coup. To achieve its policy aimed at controlling and imposing absolute power and authority upon clan-based society, the centralized military government (1969-1991) introduced special courts:
The national security courts, with a wide range of powers, that usurped many responsibilities carried out by the ordinary courts, including crimes against the state. In this period, abuse of human rights increased and the role of traditional leaders has diminished as it was down graded to a bare level of peace making. The military government ruled the country for 21 years until clan-based opposition fronts ousted it in January 1991. Since then the civil war broke out and triumphant factions competing for control of the state dismembered the country into clan fiefdoms.
Now the judicial system that exists in autonomous states is in conformity with the culture, religion and tradition of Somali society, and which international norms and Human rights.

The Diyah-paying group is the most stable legal and political unit of Somali society. Strong agnatic ties and the Diyah obligation, xeer(unwritten Somali customary),are chiefly responsible for the cohesion and harmony obtaining at this level. The Diyah-paying unit grants each Somali his identity as each and every Somali belongs to such a unit and it also guarantees the protection of his life and property. Above this unit, which lies at the bottom of segmented political groupings at various levels, the most important functional unit is the clan. The clan usually delimits the upper level of political action as member of the clan join forces as the need arises against other clans to protect its vital interests. The clan is associated with a particular territory, which along with water wells and trade village controlled by the clan defines the range of clansman frequent with their herds in the search for nomadic resources.

In contrast to the flexible but basically exclusive kinship ties, Somali customary law, xeer emphasizes values of interdependence and inclusiveness, and it forms another important basis for the primarily kinship-based social order- it acted as it still does, as an important mechanism in maintaining social relations between often vital groups competing for scarce resources.

Applied parallel with xeer, Sharia functioned in the past and continues to serve as a vital legal tradition to pastoral Somalis in setting disputes with the force of religious section. The symbiosm of xeer and sharia (Islamic law) together reinforced the moral uprightness and piety that provided profound meaning and helped refine accepted legal principles and procedures which were applied and enforced by the traditional leaders, Wadaado and Qaddis (religious men and Islamic judges).

Prior to the colonial occupation of the country (turn of the 19th century), Islamic principles, sharia, and customary codes, xeer, existed as the main frame reference for the political, legal and cultural life of the nomadic society. Clans and their lineage divisions were led by titled elders: in principles all senior adult man although the opinion of some elders carried more weight than others. Within the framework of the Somali traditional decision-making process, the "shir" or informal council/assembly was and still in the fundamental institution of government at Diyah-paying group, sub clan or even clan level. The sharia is summoned as the need arises at all levels of the social strata and attended by all adult males. Its decisions or deliberations on Xeer were reached by consensus and carried legal force. The para-mouth leader (Isim) of the clan or large sub clan for malaises agreements reached by consensus by clan elders in the institution of Shir (meeting).

In July 1960, two parts of the Somali nation Northern (for British protected) and Southern (former Italian Trust Territory) attained independence united and formed the Somali state. Sharia and secular law courts in the former colonies (Northern and Southern parts) operated separately, until the legislative decree number 3 of the 1962 was enacted to unite them. In fact, customary and Sharia laws have co-existed alongside the inherited British and Italian secular laws. British colonial authorities had given more consideration to the application of Xeer by providing the following:
In all cases, civilian and criminal, to which only Somalis are parties every court shall be guided by Somali customary law (including Xeer provisions based on the Sharia) so far as it is applicable and is not repugnant to justice, equity and conscience or is consistent with any written law in force in Somaliland.

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by kamal nidam adan
Published on: Dec 12, 2002
Topic:
Type: Opinions
https://www.tigweb.org/express/panorama/article.html?ContentID=848


The Somali nation inhabits a vast semi-arid or arid environment in the horn of Africa that is more suitable to traditional animal husbandry. In addition to this dry environment and the dominant pastoral life style, the people share a common experience shaped by a century of colonial rule; a common language, albeit dialect differences; a common religion, the belief and practice of Islam, a pervasive political culture made up of a highly segmented lineage social order; and also boast a rich oral culture with various styles of oral poetry that acts as a powerful tool in influencing public opinion. These common cultural roots of the Somali people created a strong sense of Somali identity and exclusiveness in contrast to others; nonetheless, this has not yet been transformed into a single viable political unit. As such there was no Somali state before the colonial penetration during 19th century since independence and rival clans distinguished the political landscape. Historically, a complex linkage between the pervasive clan-based political culture, economic production dominated by traditional animal husbandry, and judicial instructions characterized the pre-colonial Somali pastoral society. Fundamental cultural elements of the segmentary linkage system, universal Islam and dominant pastoral life style together shaped the values and norms that distinguished Somali society and had a great imprint on the traditional legal system practiced by Somali nomads for centuries, customary law and Sheria. An encompassing kinship order divides the total Somali nation in the horn of Africa into various political groupings. In his classical work on northern pastoral Somali society -pastoral democracy), Lewis (1961) designated the most important political groups of Somali society as clan-family, clan, clan, primary linkage and Diyah-paying group (Diyah, means blood compensation) from the highest political grouping, the clan-family, which consists of more than a million souls whose members trace decent to a common ancestor, to the smallest social unit, The Diyah-paying group, whose members range from a few hundred to a few thousand. In this elaborately segmented social organization, the Diyah-paying group and the clan are the most important functional units. Each Diyah-paying group usually husbands their livestock within a roughly defined territory, and other communal resources. Except at times of conflict, neighboring Diyah-paying groups and lager social units often intermingle and congregate in a grazing region, as wider sharing of nomadic resources and mobility constitute a pastoral strategy that encourages the sharing of often scarce pastoral resources, between rival groups. Those are variously distributed within a given season and from one season to the next. Economic cooperation and political solidarity, sectional by the force of kinship is most pronounced in the corporate Diyah-paying unit. The Diyah-paying institution reinforces lineage solidarity as each unit has/had a collective obligation to honor certain debts and make claims for restitution for wrong deeds committed against its members. Collective interest in the camels (camels of each lineage bear a distinctive brand-sumad-) and control of essential productive resources reinforce lineage solidarity. Two parallel courts (Sharia and secular) functioned at the district level, located close to the majority of the nomadic population and agricultural rural areas. In spite of the existence of these courts, customary law didnot lose its importance and function in the Somali pastoral society, where people could not travel to the majority towns to seek justice based on secular laws existed at regional level and courts of appeal and a supreme court operated in Mogadhisho Capital city. However, the above-mentioned legislative decree Number 3 integrated the previously separated Sharia and secular courts and the laws that they applied in the Somali Republic. From 1960-1969, elected civilian governments ruled the country, but in October 1969 the military took over power by a bloodless coup. To achieve its policy aimed at controlling and imposing absolute power and authority upon clan-based society, the centralized military government (1969-1991) introduced special courts: The national security courts, with a wide range of powers, that usurped many responsibilities carried out by the ordinary courts, including crimes against the state. In this period, abuse of human rights increased and the role of traditional leaders has diminished as it was down graded to a bare level of peace making. The military government ruled the country for 21 years until clan-based opposition fronts ousted it in January 1991. Since then the civil war broke out and triumphant factions competing for control of the state dismembered the country into clan fiefdoms. Now the judicial system that exists in autonomous states is in conformity with the culture, religion and tradition of Somali society, and which international norms and Human rights. The Diyah-paying group is the most stable legal and political unit of Somali society. Strong agnatic ties and the Diyah obligation, xeer(unwritten Somali customary),are chiefly responsible for the cohesion and harmony obtaining at this level. The Diyah-paying unit grants each Somali his identity as each and every Somali belongs to such a unit and it also guarantees the protection of his life and property. Above this unit, which lies at the bottom of segmented political groupings at various levels, the most important functional unit is the clan. The clan usually delimits the upper level of political action as member of the clan join forces as the need arises against other clans to protect its vital interests. The clan is associated with a particular territory, which along with water wells and trade village controlled by the clan defines the range of clansman frequent with their herds in the search for nomadic resources. In contrast to the flexible but basically exclusive kinship ties, Somali customary law, xeer emphasizes values of interdependence and inclusiveness, and it forms another important basis for the primarily kinship-based social order- it acted as it still does, as an important mechanism in maintaining social relations between often vital groups competing for scarce resources. Applied parallel with xeer, Sharia functioned in the past and continues to serve as a vital legal tradition to pastoral Somalis in setting disputes with the force of religious section. The symbiosm of xeer and sharia (Islamic law) together reinforced the moral uprightness and piety that provided profound meaning and helped refine accepted legal principles and procedures which were applied and enforced by the traditional leaders, Wadaado and Qaddis (religious men and Islamic judges). Prior to the colonial occupation of the country (turn of the 19th century), Islamic principles, sharia, and customary codes, xeer, existed as the main frame reference for the political, legal and cultural life of the nomadic society. Clans and their lineage divisions were led by titled elders: in principles all senior adult man although the opinion of some elders carried more weight than others. Within the framework of the Somali traditional decision-making process, the "shir" or informal council/assembly was and still in the fundamental institution of government at Diyah-paying group, sub clan or even clan level. The sharia is summoned as the need arises at all levels of the social strata and attended by all adult males. Its decisions or deliberations on Xeer were reached by consensus and carried legal force. The para-mouth leader (Isim) of the clan or large sub clan for malaises agreements reached by consensus by clan elders in the institution of Shir (meeting). In July 1960, two parts of the Somali nation Northern (for British protected) and Southern (former Italian Trust Territory) attained independence united and formed the Somali state. Sharia and secular law courts in the former colonies (Northern and Southern parts) operated separately, until the legislative decree number 3 of the 1962 was enacted to unite them. In fact, customary and Sharia laws have co-existed alongside the inherited British and Italian secular laws. British colonial authorities had given more consideration to the application of Xeer by providing the following: In all cases, civilian and criminal, to which only Somalis are parties every court shall be guided by Somali customary law (including Xeer provisions based on the Sharia) so far as it is applicable and is not repugnant to justice, equity and conscience or is consistent with any written law in force in Somaliland. « return.