Challenges and Chances in the Somali Legal System

ANALYSIS René Brosius 11 December 2020

In many ways, dealing with Somalia is a look into the unknown. The complex social structures, violent conflicts and strong traditions have left researchers, traders, explorers, colonial powers and scientists both fascinated and perplexed. Somali society has opened itself up to only a few, but hardly to anybody fully. Therefore, Somalia is still a field of research that needs to be almost rediscovered, especially against the background of a rapidly changing society. Scientifically stripped of colonial and post-colonial administrative ethics and romanticism, one encounters a fascinating coincidence of different sources of law and a great variety of preconditions for their application. In Somalia, what is law is a matter of negotiation. The process of finding justice is therefore of particular importance.

How legal pluralism came to be

The different sets of norms cannot rely on any state construction that regulates this diversity of law. Somalia is considered the most striking example of a failed state. It is questionable whether this concept applies at all, or whether the collapse of Siad Barre’s regime was just a façade of the state. Even the regime, with its police and military superiority, had not succeeded in establishing effective state power throughout the entire national territory. Tradition and religion remained as an alternative regulatory framework. The regime’s fight against tradition and religion drove them out of the public eye, but only marginally diminished their importance for large sections of the population. After the collapse of the regime, this regulatory framework was revived. To some extent, during an unpeaceful period and in the absence of the state, it took over essential basic needs of everyday life such as security, family law rules and rules for economic transactions. A stable order in Somalia will therefore only be possible in recognition of the legal pluralism that actually exists.

The different legal regimes

If one wants to categorise law in Somalia, one can identify four different legal regimes. The traditional law, Xeer, is as widespread as it is diverse. It was initially the customary law of the nomads of northern and central Somalia, but over the centuries it has become established throughout Somalia through (violent) internal migration. Whether the Xeer can be considered a classical source of law must be left open at this point. At the very least, it is made up of a large number of unwritten general exercises and inter-tribe agreements, the extent of which varies according to the region. It is used, for example, to seal friendship as well as peace agreements between tribe (segments) and only a part of it is put down in writing. In the event of conflict between different clan groups, it is therefore important to know which agreements, oral rights or agreements can be invoked in a particular case and whether these are accepted by the other side as a legal basis. The oral presentation in “Shirkas” is therefore of particular importance in the procedure.

Formally, Sharia is certainly the most dominant source of law in Somalia. Almost 100 percent of Somalis are Muslims and strongly influenced by Sufism. Sufism is an original concept of God and faith and had a special significance for the spread of Islam in the world. In Somalia, there is a long tradition of Muslim orders, which in turn combined cultural traditions with their practiced religiosity. Thus, there are strong links between tradition and religion throughout Somalia. It is therefore not always easy to distinguish between the Xeer and Islamic law. Many traditional customs are perceived as compatible with Islam or even predetermined by Islam, thus increasing their significance. Tradition and faith have entered into a legal symbiosis, giving each other authority and acceptance.

Legal Pluralism: The coexistence of legal systems

This coexistence of different norms and jurisdictions has shaped life on the Somali peninsula for many centuries. While customary law has both civil and criminal law aspects and focuses on the pacification of a situation through compensation as an essential feature, Sharia is more strongly based on behavioural norms and, in the area of criminal law, is more strongly characterised by punishment and retribution for offences. While the Xeer is often used for major conflicts, in particular capital crimes, murder, manslaughter, theft, ownership rights to land and water points, Sharia law is strongly applied in the area of family law, such as marriage or inheritance law.

Other sources of law include international law, UN regulations and regulations of the African Union and IGAD (Intergovernmental Authority on Development). Somali government structures continue to be supported by UN-mandated AU troops. These are subject to their own legal regime, and the numerous UN organisations secure their support measures through (contractually) agreed standards with government institutions. Due to their importance for security policy, infrastructure and development aid measures, they occupy such a large space that they must currently be regarded as a source of law in Somalia.

At present, the most weakly developed law is the law of the state. Although a provisional constitution has been in place since 2012, as well as individual laws, such as the electoral law from 2020, these norms suffer considerably from problems of acceptance and legitimacy. On the one hand, they claim to be universally valid, but suffer from both formal legitimacy and deficits in law enforcement.

The question of What is law in Somalia cannot be answered clearly. Numerous political science studies describe Somalia as the ideal of a regulatory framework without a state. That may be possible, even necessary, for some parts of the law. For a country that is three times the size of Germany in terms of territory, but has only between 11 and 16 million inhabitants, the establishment of a nationwide judicial structure would presumably lead to an overload of already scarce resources. Recourse to existing, accepted and available structures for the people therefore seems obvious. However, the complete abandonment of statehood cannot be the solution for Somalia. Neither tradition nor religion can fully cover complex issues in the context of globalisation, climate protection or the representation of Somalia in international organizations. There are also human rights considerations. The rights found in the basic and human rights catalogues, in particular the right to life and security of person, the right to liberty, freedom of belief, freedom of opinion, assembly and travel, the right to property, the right to privacy and the right to equality before the law are primarily addressed to the state. How can they be demanded from purely civil society structures?

What will the future look like?

In addition, two-thirds of the population of Somalia is under 30 years of age. The upcoming generation is influenced by an internationally oriented diaspora and is connected to their friends and relatives in the outside world through digitalisation. Urbanisation and the increasing possibility of escaping rigid frameworks through flight or emigration will further push back traditional conflict resolution strategies. A model of cooperation between the various sources of law geared to further development is therefore needed, which may assign the state a different role than in the classic Western interpretation – that of mediator.

René Brosius is a doctoral candidate at the Chair of African Legal Studies at the University of Bayreuth. He is primarily dealing with issues of law and economics in Somalia.