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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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Kamal
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write Ahmed Ali Mire | Dec 18th, 2002
that is all write and it was prepared well. thank you Kamal
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