SOMALILAND: A TRADITIONAL OF LAW

Somaliland: A Tradition of Law

A research paper by Nicola Gladitz

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.[i] 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.[ii] Trade via Somali ports continued to flourish and Arab traders in the middle ages introduced
Islam to the region,[iii] 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.[iv]

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.
[v] Despite these positive developments, the United Nations has refused thus far to recognize
Somaliland’s independent Statehood.[vi]

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,[vii] 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 year[viii] 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.[ix] 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.[x]

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.[xi] 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.[xii] 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.[xiii]

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.[xiv]

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 ancestor[xv], although
men who find themselves without enough brothers and cousins to form an effective jilib, may form a
new jilib with fellow clansmen[xvi]. 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.[xvii]

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.[xviii

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.[xix]

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.[xx] 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.[xxi]

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.
[xxii]

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.
[xxiii]

The role of the judge to settle conflicts more closely resembles that of arbiters in western countries and
is usually bestowed on elder clansmen.[xxiv] 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.[xxv] 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.[xxvi]

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.[xxvii]

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.
[xxviii] 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.[xxix]

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.[xxx]

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.[xxxi]

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.[xxxii]

Remedies

Somali laws, and consequently crime, are defined in terms of property rights.[xxxiii] 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.
[xxxiv]

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:[xxxv]

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.[xxxvi]

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.[xxxvii]

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.[xxxviii]

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.[xxxix]

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. [xl]

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,
[xli] describes rights as akin to a “protective perimeter” around a right-holder, beyond which others may
not trespass.[xlii] Since rights protect their bearers’ freedom, rights function as a defensive mechanism.
[xliii] 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.[xliv]

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.[xlv]

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 survive[xlvi] and the first modern codification of the
Somali language in writing took place in 1972.[xlvii] 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.[xlviii] 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.”[xlix] 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,[l] matures into a principle and eventually a law, or Xeer.[li] In the words of Hanad
Sahardeed, a Diaspora-Somali from Canada, these Xeer are passed down from generation to generation,
simply by oral communication.[lii]

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.[liii]

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 parties[liv] (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.[lv]
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.”[lvi] 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.[lvii]
 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. [lviii]

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.[lix]

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.[lx] 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.[lxi] 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.[lxii] In reality though, according
to Weris Ali Warsame, chairperson of the United Somali Women's Roots Organization, no rape cases are
ever tried.[lxiii]

Adultery

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

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.[lxv]

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.[lxvi]

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.[lxvii] 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.[lxviii] 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.[lxix]

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.[lxx]

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.[lxxi]

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.[lxxii] Islamic Sharia law
usually governs this subject matter.

Religion

The vast majority of Somalis are Sunni Muslims[lxxiii] and in the case of Somaliland, Islam is enshrined as
the official state religion in the Constitution.[lxxiv] 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.[lxxv]

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 Law[lxxvi] 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.”[lxxvii]

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.”[lxxviii]

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.[lxxix]

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.[lxxx] 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