ANALYSIS René Brosius 26 November 2021
Somalia is considered the prototype of a legally pluralistic environment. Nevertheless, the proper handling of legal diversity has not yet succeeded. While traditional finding of law remained essentially untouched during the colonial period, there have been various attempts to incorporate the Xeer and religious law into a state legal system since the country’s independence in 1960. Depending on the spirit of the times, traditional law was fought, attempts were made to incorporate it, to “tame” it, or to tolerate or integrate it. It is striking that a previously unknown construct in Somalia -the state- claimed to represent “modernity” and to rise above the supposedly backward traditional law. If one detaches oneself from this state-template thinking, however, a centuries-old cosmos of order opens up that is more flexible, resilient and open than modern theories of the state would like to suggest to us.
The Xeer, or traditional law, is a complex body of norms and rules that apply both within clans and between different clans in Somalia. They are not static norms, but often sets of rules adapted to particular communities and passed down orally, which may include certain regional specialties. For example, in the south of the country there may be more specific rules regarding the use of agricultural land or livestock, while in the more nomadic north there may be rules regarding the use of water points or certain land-related rights. In addition, the Xeer is used for peace and assistance agreements, clan subordination agreements, or in the area of conflict management. Over the centuries, a mixture of case law and pansomali common law has thus emerged, which, despite its differences in detail, is part of Somali identity.
Because the law is so closely intertwined with Somali society, the relationships between the parties to a dispute are always a topic of discussion in the legal process. These include long family ties or protective agreements between certain clan groups. Although there are no formal rules of procedure, certain procedural methods have become entrenched. While smaller conflicts are resolved on a local basis, and as a rule certain elders, to whom special qualities such as wisdom and a great knowledge of tradition are attributed, assume the role of judges, in larger conflicts, for example between two or more families or between different clans, particularly recognized elders are nominated as emissaries of interests. Again, there are no fixed rules. The composition of the arbitration assemblies are therefore regularly situational decisions.
The primary purpose of the Xeer is to ensure peace and non-violent coexistence within the community and between different tribal groups. In an environment without a state, this is a safeguard logic of not getting permanently involved in violent conflicts. The conflict resolution potential of the Xeer is therefore very large and can draw on a wealth of experience. From everyday crime to capital offenses, from family disputes to neighbourhood conflicts, a large proportion of conflicts can be managed in this way. Xeer works without a coercive apparatus, without a state-run and expensive court structure, and without law enforcement. It relies on consensus. The parties to the dispute, including offenders and victims, must agree to the solutions. With the payment of compensation, for example as compensation for physical damage, a result that has been reached, not only has legal force, if one wanted to call it that, but the offender is also considered socially rehabilitated. The idea of resocialization, which is inherent in many Western criminal law and penal systems, is thus already incorporated by the community’s judgment.
During the civil war, the Xeer and the Sharia experienced a renaissance. As early as the early 1990s, sharia courts were established in some districts of Mogadishu, through which learned elders and religious leaders assumed certain regulatory functions, applying religious or traditional law depending on the nature of the case. Since about 2014, there have been attempts by the Somali government to use the Xeer as the basis for a future legal system. The goal was to capture existing traditional practice and harmonize it with the goals of the provisional constitution (of 2012). For example, discriminatory regulations against women and children were to be avoided. In this way, the aim was to use the social legitimacy of the Xeer and at the same time formalize it legislatively, or rather recognize it – and satisfy the interests of international donors. Part of the plan, similar to the Qadi courts in the Ottoman Empire, was to provide state support for certain elders who would take on the tasks of finding justice. A precondition for this was training on the (modern) principles of the constitution. Even though this project was limited to very few places in the Banadir region, it was a promising attempt to forge a bond between Somali society and international values.
From today’s perspective, these good beginnings have unfortunately not been followed up. The current government attempted to reverse this development in 2017 in favour of a state-dominated solution. To this end, it used the possibility of appointing elders to the courts. As a result, elders were replaced partly for political reasons and partly for reasons of clan affiliation. It was no longer the abilities of the respective elders that mattered, but loyalty to the government. As a result, elders became judges who had neither professional aptitude nor social recognition. After this rendered the dispute resolution centres dysfunctional, the additional approach was to also remove certain substantive areas from the jurisdiction of these courts and assign them to the newly created state courts (often military courts). This strategy has led to considerable tensions and conflicts that have not yet been resolved.
In its functionality, its basic social acceptance and because of its broad material basis, the Xeer could play an important role in a future Somali legal system. However, various attempts at usurpation in the past have had a negative impact on the credibility of the structures. Many elders have not emerged unscathed from the conflicts of recent decades. The intermingling of political, economic and, in some cases, religious interests of some elders, whether during the colonial period, during the dictatorship or during the civil war, has damaged both the role of elders as trustworthy mediators in cases of conflict and the solution path through traditional institutions itself. The system of compensation also reached its limits during the civil war, with many victims, so that many conflicts remain unresolved. Despite the initial cooperation between the Union of Islamic Courts and the elders, traditional arrangements were later opposed as un-Islamic by the increasingly Salafist Islamic Courts. This, too, has further weakened the importance of the traditional courts and thus of the Xeer, at least in urban centres.
Large segments of the Somali population have experienced the developments of the last 2-3 decades in particular and therefore have mixed feelings about the Xeer. On the one hand, it is widespread throughout the country and has the ability to create quick and comprehensible law for the people. On the other hand, various attempts at usurpation, including by international organizations or domestic political forces, have made the contours of the Xeer and its procedures less clear to many Somalis. The structure of Somali society has also changed in many ways. There are very wealthy individuals, but also a high density of firearms. This not only affects the will to compromise and unify, but financial influence has also damaged the credibility of certain proceedings. In addition, there is an urban-rural and young-old divide within society. A good two-thirds of Somalia’s population is under the age of 30. This generation is influenced by an internationally positioned diaspora and connected to their friends and relatives in the outside world through digitalization. Urbanization and the increasing ability to escape certain social frameworks through flight or emigration also influence the acceptance of traditional conflict resolution strategies. The often romanticized accounts of nomadic Xeer are therefore insufficient as a basis for ascribing to Xeer per se a central role in a future legal system. This requires, above all, a reorientation of the role of the state.
For broad areas of law, the Xeer is an important source of law. The approaches of leaving large parts of the law to social self-organization should therefore be pursued. That is, the original attempts to create optimal conditions for the application of the Xeer through the creation of dispute resolution centres, while offering supplementary services to the elders, should be pursued. To this end, the state would have to abandon its claim to be the bearer of the monopoly on the use of force and the law. Instead, its task would be to provide organizational support for the work of the traditional courts and to focus materially on those areas where traditional sources of law do not provide solutions. This would not only save resources for the state itself, it would also reduce conflicts and unlock the full potential of the Xeer.