The Law Of The Somalis: Xeer

[Geeljire]

The Somali Legal System (Xeer)​

An example ,here ,we have the xeer symbols of Somalis in East Africa . They use still now these Symbols for their social regulation . Traditional Somali Costomary Symbols extracted from the book: "The Search for the Ugaas in the Xeer Tradition” by the Dr. Ali Moussa Iye.Chief of Intercultural Dialogue Section in Unesco
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Xeer The Father and Child of the Somali Nation
The Somali nation did not begin with the common use of the Somali language by the clans, but rather with the collective observance of Xeer. Xeer is thus referred to as being both the father and child of the Somali nation.


The Xeer takes it place among such great legal systems of the world as the Roman law, the English common law, the Law Merchant, and the Jewish traditional law (Halacha). It must be extremely old and is believed to have developed in the Horn of Africa. There is no evidence that it developed elsewhere or was greatly influenced by any foreign legal system. The fact that Somali legal terminology is practically devoid of loan words from foreign languages suggests that the Xeer is truly indigenous.


​

 

[Geeljire]

Highlights of the Xeer

There is time in this short talk to give you only some of the highlights of the Xeer. First, law and, consequently, crime are defined in terms of property rights. The law is compensatory rather than punitive. Because property right requires compensation, rather than punishment, there is no imprisonment, and fines are rare. Such fines as might be imposed seldom exceed the amount of compensation and are not payable to any court or government, but directly to the victim. A fine might be in order when, for example, the killing of a camel was deliberate and premeditated, in which case the victim receives not one but two camels.

Fines are used in another interesting way. It is expected that a prominent public figure such as a religious or political dignitary or a policeman or a judge should lead an exemplary life. If he violates the law, he pays double what would be required of an ordinary person. Also, it should be noted, since the law and crime are defined in terms of property rights, the Xeer is unequivocal in its opposition to any form of taxation.

Second, in order to assure that compensation will be forthcoming even in cases where the perpetrator is a child, or penniless, or crazy, or has fled abroad, the Xeer requires that every person be fully insured against any liability he might incur under the law. If an individual cannot make the required payment, a designated group of his kin is responsible. Van Notten describes in an interesting way how this happens:

A person who violates someone's rights and is unable to pay the compensation himself notifies his family, who then pays on his behalf. From an emotional point of view, this notification is a painful procedure, since no family member will miss the opportunity to tell the wrongdoer how vicious or stupid he was. Also, they will ask assurances that he will be more careful in the future. Indeed, all those who must pay for the wrongdoings of a family member will thereafter keep an eye on him and try to intervene before he incurs another liability. They will no longer, for example, allow him to keep or bear a weapon. While on other continents the re-education of criminals is typically a task of the government, in Somalia it is the responsibility of the family.

If the family tires of bailing out a repeat offender, they can disown him, in which case he becomes an outlaw. Not being insured, he forfeits all protection under the law and, for his safety, must leave the country.


A third point about the Xeer is that there is no monopoly of police or judicial services. Anyone is free to serve in those capacities as long as he is not at the same time a religious or political dignitary, since that would compromise the sharp separation of law, politics, and religion. Also, anyone performing in such a role is subject to the same laws as anyone else -- and more so: If he violates the law, he must pay heavier damages or fines than would apply to anyone else. Public figures are expected to show exemplary conduct.

Fourth, there is no victimless crime. Only a victim or his family can initiate a court action. Where there is no victim to call a court into being, no court can form. No court can investigate on its own initiative any evidence of alleged misconduct.

Last, the court procedure is interesting. From birth, every Somali has his own judge who will sit on the court that will judge him should he transgress the law. That judge is his oday, the head of his extended family consisting of all males descended from the same great grandfather, together with their spouses and children. Several extended families make up a jilib, which is the group responsible for paying the blood price in the event a member kills someone of another jilib or clan. The oday, or judge, is chosen carefully, following weeks or months of deliberation by elders of the clan. He has no authority over the family but is chosen solely for his knowledge of human affairs and his wisdom, and he can lose his position if his decisions are not highly regarded in the community.

When an offense is committed, the offender goes first to his oday, who then forms a court with the oday of the plaintiff. If the two odays cannot resolve the matter, they form another court made up of odays representing additional families, jilibs, or clans. A virtue of each person knowing from birth who will be one of his judges, and vice versa, is that an oday knows each person in his extended family intimately and can observe and counsel him before what might seem to be a small problem escalates into a crime.

Once a court forms and accepts jurisdiction over a case, its first action is to appoint a recorder, who will repeat loudly during the hearing each important point made by the speakers. The court then announces when and where it will hear the case. When the court session opens, the court invites the plaintiff to state his case. The plaintiff has the right to appoint a representative to make the presentation on his behalf. During the presentation, the plaintiff has opportunity to confer with his family to make sure that he has not forgotten anything. When the plaintiff has finished, the court asks him to summarize his case and state his demands. Lastly, the court asks the defendant to present his defense and any counterclaims.

Then the court adjourns to deliberate on whether any witnesses should be heard. A disputed fact is admitted as evidence only when three witnesses have testified to its truth. The parties can also call in experts and character witnesses. If the victim has died or has been wounded, the court will instruct a religious dignitary to assess how the victim died or was wounded. These dignitaries assess injuries usually by applying the standards enumerated in the commentary of the twelfth-century Muslim scholar al-Nawawii's Minhaaj at-Talibiin. When the plaintiff has elaborated his case with witnesses and evidence, the defendant is given a chance to refute the plaintiff's charges, arguments, and evidence. It is not customary to cross-examine witnesses.

Finally, the court adjourns again to evaluate the evidence. If less than three witnesses support a fact, or if the witnesses contradict each other, the court will proceed to oath taking. There are several types of oaths. The simplest starts by the oath giver saying, "I swear by my virility." Alternatively, he can say, "I swear by Allah." A stronger oath is the so-called triple oath, in which he swears the same oath three times. A stronger oath yet is the one that is repeated 50 times. Also, there is the so-called divorce oath, in which the oath giver swears by his marriage(s). If it is later found out that he lied, his marriage(s) become null and void.

It should be noted that even when the plaintiff fails to convince the court of his case, the court will usually not rule in favor of the defendant until the latter has taken an oath of innocence.

 

[Geeljire]

Court Procedures and legal terminologies

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As with law systems in Western states, the Xeer legal system also demands a certain amount of specialization of different functions within the legal framework. Thus, one can find odayal (judges), xeer boggeyaal (jurists), guurtiyaal (detectives), garxajiyaal (attorneys), murkhaatiyal (witnesses) and waranle (police officers) to enforce the law.

When an offense is committed, it is categorized in many ways: if it is related with blood it's criminal "Qoon or Qoomo," and if it's not related with blood, which could be – civil suit or conflict or disagreement on some thing – it becomes a "Garr." In a murder case, the offender flees to a safe place – including outside the country – to avoid prosecution or execution "Qisaas." However, if the case is not murder, the offender always goes first to his/her leader "oday," – "Oday" could be any leader or elder within the family or close relative – who then forms a court with the oday of the plaintiff. If the two odays cannot resolve the matter, they form another court made up of odays representing additional families, jilibs, or clans. According to xeer, it is incumbent upon the aggrieved clan to make the necessary investigations into an incident and determine the harm committed before presenting their case to other clans.

A case is always heard at the lowest level of the clan that is possible. This ranges from the qoys (nuclear family), up through the reer (closest relatives), jilib (first diya group), andlaaf (sub-clan) to the qolo (clan). The elders chosen to act as judges over a dispute are known as xeer beegti. The most senior xeer beegti within a qolo or clan becomes the personal legal adviser of the leader of the clan. For a given case, however, the xeer beegti are usually a mixed group drawn from the aggrieved clan, the offending clan and possibly a neutral, third-party clan if needed. Xeer cases prevent several different types of individuals from participating in dispute adjudication; persons who have close family relations with the parties, persons who have personal grievances against either party, and persons who have previously sat in judgment of the same case are all excluded. As mentioned before, religious and political leaders are also not allowed to be judges in a case.

Once a court is formed and has accepted jurisdiction over a case, its first action is to appoint a recorder who will memorize, repeat and summarize the oral proceedings for the elders.The court then announces when and where it will hear the case.

When the court session opens, the court invites the plaintiff to state his case. The plaintiff has the right to appoint a representative to make the presentation on his behalf. During the presentation, the plaintiff has the opportunity to confer with his family to make sure that he has not forgotten anything. When the plaintiff has finished, the court asks him to summarize his case and state his demands. Lastly, the court asks the defendant to present his defense and any counterclaims.

Then the court adjourns to deliberate on whether any witnesses should be heard. A disputed fact is admitted as evidence only when three witnesses have testified to its truth. The parties can also call in experts and character witnesses. If the victim has died or has been wounded, the court will instruct a religious dignitary to assess how the victim died or was wounded. These dignitaries assess injuries usually by applying the standards enumerated in the commentary of the 12th-century Muslim scholar al-Nawawii's Minhaaj at-Talibiin. When the plaintiff has elaborated his case with witnesses and evidence, the defendant is given a chance to refute the plaintiff's charges, arguments, and evidence. It is not customary to cross-examine witnesses.

Finally, the court adjourns again to evaluate the evidence. If less than three witnesses support a fact, or if the witnesses contradict each other, the court will proceed to oath taking. There are several types of oaths. The simplest starts by the oath giver saying, "I swear by my virility." Alternatively, he can say, "I swear by Allah," or sometimes put his right hand on the Qur'an. A stronger oath is the so-called triple oath, in which he swears the same oath of Allah three times. A stronger oath yet is one that is repeated 50 times which is participated by 50 members of the defendant's "Juffo or Jiffi"; this oath is taken when the victim is murdered mysteriously and the body is found in the territory of a clan which denies the crime, or if an accused defendant refuses the allegations. Also, there is the so-called divorce oath "Xila fur," in which the oath giver swears by his marriage(s). If it is later found out that he lied, his marriage(s) become null and void.

Even when the plaintiff fails to convince the court of his case, the court will usually not rule in favor of the defendant until the latter has taken an oath of innocence.

The final verdict is referred to as garr in Somali.

 

[Hafez]

Somalis should stick to the Sharia saaxib. It's cool that you guys had a traditional legal system but so did almost every other nation on earth. The 'xeer' system is clearly outdated sxb and some of the laws literally make no sense.

Sharia Al-Islamiyya is going nowhere sxb.

 

[Geeljire]

Contemporary use

Xeer is most intact in Northern and Western Somalia; in the south, Italian authorities attempted to eradicate it during the pre-independence period. Nonetheless, it survives to a large extent everywhere, even in urban areas, and it remains virtually unchanged in the countryside. The 4.5 million Somalis living in the Ogaden reportedly solve 90% of their disputes with the first court that is formed under Xeer law. Ethiopian authorities often intervene in the remaining 10% of cases, though they usually fail to solve the dispute in a way satisfying all parties. Another Xeer court is consequently formed, perhaps with more judges, and the dispute is finally settled using the customary Somali legal system.

Even during the Siad Barre administration, Somalis were making use of Xeer where authoritative intervention by the state did not interfere.

The autonomous Somaliland macro-region of Somalia has also attempted to incorporate Xeer into its government by appointing 25 elders into the upper house of parliament. This has done little to convince many of the citizens of the legitimacy of the central government.

The primacy of customary law over the formal judicial system is ubiquitous across Somalia

Local acceptance and testimony

Many Somalis remain skeptical of any form of central authority and perceive the government's courts as unjust. In the words of a local Somali living in Garowe:​

“ Xeer will never stop being used, Xeer is stronger than any government's laws. The government laws don't satisfy the people; they do not bring about a sufficient justice, and so they do not bring peace between the groups. ”
— Dahir Mohamed Grasi

Most Somalis, progressive and conservative alike, still support this system. Many people believe that xeer is the justice system best suited to Somalia, a nation where the oral tradition of xeer and the emphasis on long-lasting relationships make it effective in a way that a more conventional system would perhaps not be. In the words of a program officer at a local non-governmental organization:

“ Xeer is accepted by the people. You cannot deny that. It is a strange culture, the Somali culture. But there is a beauty to it. All agreements are reached and all disputes are resolved through consensus. There is no fighting. There is never any fighting. ”
— Abdirahman Raghe

 

[Geeljire]

Somalis should stick to the Sharia saaxib. It's cool that you guys had a traditional legal system but so did almost every other nation on earth. The 'xeer' system is clearly outdated sxb and some of the laws literally make no sense.

Sharia Al-Islamiyya is going nowhere sxb.

Somalis use Shariah saaxiib, and they also use xeer as well. it goes along with the Islamic concept of ''Urf''- Xeer is not outdated , the fact that its being able to be used today is a testimony of that and its modernized (technological enhanced) version of it is used. Plus Xeer is the secret to why Puntland and Somaliland has had stabile peaceful governance for decades now. The reason for the rule of law to support trade and economic development. Xeer makes perfect sense to Somalis maybe not in western/european or Arab sense but for us it is accepted. Very few indigenous legal systems throughout the world has survived and still in use.

Sharia Law is an interpretation that varies. Shariah law is law of the land, but it is moderate interpretation..but there will be areas like shariah financing, divorce settlements, family issues, all will be shariah based

It will be kind of be like malaysia model or indonesia. The rest will be based on Somali legal laws called (Xeer) .

 

[Hafez]

Somalis use Shariah saaxiib, and they also use xeer as well. it goes along with the Islamic concept of ''Urf''- Xeer is not outdated , the fact that its being able to be used today is a testimony of that and its modernized (technological enhanced) version of it is used. Plus Xeer is the secret to why Puntland and Somaliland has had stabile peaceful governance for decades now. The reason for the rule of law to support trade and economic development. Xeer makes perfect sense to Somalis maybe not in western/european or Arab sense but for us it is accepted. Very few indigenous legal systems throughout the world has survived and still in use.

Sharia Law is an interpretation that varies. Shariah law is law of the land, but it is moderate interpretation..but there will be areas like shariah financing, divorce settlements, family issues, all will be shariah based

It will be kind of be like malaysia model or indonesia. The rest will be based on Somali legal laws called (Xeer) .

العرف (which means customs) comes from the root word عرف which means that which is known/familiar. Is the xeer system popular enough for it to be classed as the standard customs of the Somali community? When I went there last year I heard of no such thing, maybe that's just in the south.

 

[Geeljire]

العرف comes from the root word عرف which means that which is known/familiar. Is the xeer system popular enough for it to be classed as the standard customs of the Somali community? When I went there last year I heard of no such thing, maybe that's just in the south.

Yeah its popular widely used everywher but its mostly used down North and Western Somalia plus the Ogaden region. It is pretty much the reason why all other Somali regions have stability and governance then the South. The fact that the South was unable to balance modern institutions with traditional was the reason for instability and lack of reconciliation between clans.

 

[Geeljire]

Fundemental principles of the Xeer
The fundemental principles which form for the basis for the political philosophy of the Xeer are couched in a poetic and metaphorical style, probably in order to facilitate their memorisation. They constitute to what might be called a rythmic preamble to Somali democracy. I have here selcted a few of these principles to illustrate the depth of its founders' political thought.
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1.Principle of Equality
Soomaal waa wada Soomaal, ninna nin caaro ma dheera '' Somalis are all equal, and no one is more equal than another''

This principle institutes equality among all members of the Xeer community. Why does the second part of the sentence, Ninna ma caaro ma dheera, add further precision? Does it reflect the will of the founders to go beyond the formal equality and their aspirations to a real and total equality? Does it stresss the need to challange the patterns of a past during which this equality was not effective? in any case , this explicit rejection of any exception illustrates the principles of egalitarianism that used to characterize Somali society.

2. The Human Origin of the Law
Eebbahey xogun iga abuurey, Abbahayna xeer buu ii dhigay.''God created me from semen, but my ancestors designed Xeer for me''

This principle sums up the Xeer founders' concern with the debate on the distinction between nature and culture,divinity and humanity. For them God is the creator of the universe and is responsible for the perpetuation of human species, while human beings are the authors of their own laws. This affirmation may appear to be obvious today. But we should bear in mind that in the 7th or 16th century most of the peoples around the world believed in the divine origin of the law promulgated by kings and chiefs in order to justify their power. The modernity of this principles resides in the fact that it introduces new conception of law and emphasises its temporality. This recognition of the human origin of law , the possibillity of questioning the excercise of power and challenging it if necessary. This illustrates the philosophical preoccupations of the masters of the Xeer.


3. The inviolabillity of the Law
Xeerka Soomaalidu waa geed jeerin ah. ''The Somali Xeer is like the Jeerin tree; it is not possible to jump over it''

The metaphor of the Jeerin tree is meant to illustrate the inoviabillity of law. The Jeerin tree is a small bush of the wild with two characteristics: it is very low and at the same time covers a wide range. It is dificult to either pass under or jump over it.

4.The Necessity of Law
Xeer waa kab lagu socdo. '' The Xeer is like the shoe one wears for walking''

The metaphor of shoes is very strong in Somali culture. In an environment covered with all sorts of thorn bushes, shoes appear as indespensable tool to mover around, It is worth noting in this respect that the different articles of the Xeer are called dhagaley, meaning ''laces'' used to tie shoes.

5.The Recognition of the Rule Law
Soomaali xaragga iyo xeerba wuu isku dilaa. Soomaali boqol ama buulo maahee, biili malaha.
''Somalis can fight for right or wrong, but , once a conflict is resolved through the rule of law, no act of retaliation is permitted''

This principle, which illustrates the recognition of the primacy of the law, is crystal clear and does not need any explanation. The Xeer is a holistic system that intervenes in all aspects of the social life. Its ultimate goal is to safeguard peace, consensus and cohesion with society.

 

[Geeljire]

What Lessons to Draw from the Xeer?
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The Xeer is a concrete example of the existence of the African endogenous responses to the issue of democracy and governance. Today we have all witnessed the failure of imported political models developed by and for other societies that were inherited from colonial domination. Most debates and scholarship about this failure focus on analysing the capacities of African societies to assimilate digest, and use the Western system of democracy presented as a unviersal model. Thus many efforts are made to identify factors hindering African cultures and societies from making a better use of the borrowed model. Some analysts even question Africans' genetic make-up in trying to explain the failure of democracy in the continent. Most of these observers, including African scholars who have inernalised Western values, continue to raise the wrong question i.e: how could we tropicalise,africanise and indegenise Western models of democracy in Africa? by doing so, it is not suprising that they are misled in their prescripions by the wrong answers they recieved.

Due to their relative Homogeneity, Somalia offer good laboratory conditions to engage in this process. Somalia could use its system as an oppurtunity to rebuild a new political system from scratch based on the Xeer ethics.

To that end , a step by step approach engaging all the stakeholders concerned should be adopted so as to make a smooth trasition. To test their relevance, the frameworks developed should be first experimented with at the local(town or village) or district level, where the links with the tradition are still strong. As far as the Xeer is concerned, its political philosophy can inspire this reinvention of a sutiable governance through the the following features:
1) Its mechanism of concesus building;
2) Its rule of parity and mode of representation,which faciliitate the integration and empowernment of all member groups;
3) Its democratic processes of decision-making, which allow the expression of all opinions before binding decision are reached;
4) Its mode of selection of the leadershop, which privileges integrity and knowledge over heredity,money and power.
5) Its rules for power-sharing between different institutions;
6) Its symbolic representation of authority and unity through the valorisation of minority groups;
7) Its system of civic education to prepare the young for their roles as citizens;
8) Its way of using mythology and religious beliefs to legitimise the system and encourage respect for the rule of law.

 

[Al Dhoobe]

Xeer is used everywhere in somaliland. The reer waqooyi dir(Ciise,Gadabuursi), daarood(Warsangeli, Dhulos), and Isaaq use it day in and day out. It's the main reason for peace and conflict resolution in the north

 

[Al Dhoobe]

Great post btw, wasn't expecting to see something like this on ss

 

[Geeljire]

Xeer is used everywhere in somaliland. The reer waqooyi dir(Ciise,Gadabuursi), daarood(Warsangeli, Dhulos), and Isaaq use it day in and day out. It's the main reason for peace and conflict resolution in the north

Its is something virtually universal for Somalis, the same goes for the Puntland why its has had peace and stability. This is also the reason why the south is a mess due to chronic foreing meddling and lack of consideration for xeer or reinstituting the elders to their traditional role.
In Djbouti xeer is more institutionalized and has more litterature backing it then elsewhere. Thats why i don't think splitting apart and balkanizing ourselves is the answer to our problems but rather find an indeginous solution that accomodates our social structure by the help of Xeer

Great post btw, wasn't expecting to see something like this on ss

Thanx, I found this interesting book writen by a Somali intellectual from Djibouti that goes into deeper understanding of the Xeer democracy and governance, political philosophy etc..

It went deeper into the explaining The Guddi(consititution) The Gande(parliament) and Mirix(Military chief). Ul Geydan (leaders of the battalions)
The Jilbaati (suicide-cammandos). The Illaalo(watchmen) The Ducayeeyaal (men of prayer)

I'm not going to post all of it because it is time consuming.

But i will post a bit about this Ugaas character because it is very fascinating , he seems like a Somali version of Dalai lama.

 

[Zayd]

Everything seemed excellent until principle no.2, I disagree strongly with that point. Our laws are inspired by the prescribed law, or Shar'iah, they were not derived from our own thinking. Bear in mind nearly all progenitors of every clan was a scholar, or sheikh, who probably incorporated the shari'ah dynamic into what already was a pre-islamic xeer system.

Allah is the sovereign, the xeer system is very rabbani or fitra-like, something every culture should have, and we as Muslims believe that our customs, languages, etc... were designed and prescribed by Allah in their innate and pure form. The Prophet (pbuh) was only sent to restore what was already in humans, that's why imo I don't separate xeer and shar'ia, although xeer is influenced by shari'a when it comes to jurisprudential cases.

 

[Geeljire]

Everything seemed excellent until principle no.2, I disagree strongly with that point. Our laws are inspired by the prescribed law, or Shar'iah, they were not derived from our own thinking. Bear in mind nearly all progenitors of every clan was a scholar, or sheikh, who probably incorporated the shari'ah dynamic into what already was a pre-islamic xeer system.

Allah is the sovereign, the xeer system is very rabbani or fitra-like, something every culture should have, and we as Muslims believe that our customs, languages, etc... were designed and prescribed by Allah in their innate and pure form. The Prophet (pbuh) was only sent to restore what was already in humans, that's why imo I don't separate xeer and shar'ia, although xeer is influenced by shari'a when it comes to jurisprudential cases.

That's actually very true, perhaps the author meant that it was something Somalis by the will of Allah designed as a reactionaire to their environment and circumstance or social structure . I don't think the principle means to imply that as humans we are free of prescribed design of action or destiny by Aallah.

But it does go along with the fiqh of ''Urf'' . So xeer is very much compatible with shariah.