Xeer, pronounced [ħeːr], is the polycentric legal system of Somalia. Under this system, elders serve as judges and help mediate cases using precedents. It is a good example of how customary law works within a stateless society and is a fair approximation of what is thought of as natural law. Several scholars have noted that even though Xeer may be centuries old, it has the potential to serve as the legal system of a modern, well-functioning economy.
According to one report, 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. An analogous phenomenon is said to have occurred among the neighbouring Oromo nation, the latter of which is now under Abyssinian rule.
Under Xeer, there is no authority that dictates what the law should be. The law is instead discovered by judges as they determine the best way to resolve a dispute. As such, the Somali nation by tradition is a stateless society; that is, Somalis have never accepted the authority of any central government, their own or any other. Under Xeer law Somalia forms a Kritarchy and conforms in many respects to natural law. The lack of a central governing authority means that there is a slight variation in the interpretation of Xeer amongst different communities. The laws that are widely accepted are called "xeer guud" and those particular to a specific community are referred to as "xeer tolnimo".
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.
The Xeer legal system is assumed to have developed exclusively in the Horn of Africa since approximately the 7th century. 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.
Xeer remained the only foundational system of justice and public order for Somalis until the arrival of Europeans in the late 1800s. After nearly a century of trade ties stemming from European exploration and maritime access to the Indian sub-continent, Britain and Italy established more permanent settlements in Somali territory with the formation of the British Somaliland protectorate in 1886 and Italian Somaliland in 1893.
The two European authorities imported their own national legal systems, but the degree to which the latter applied to the Somali clans varied depending on the purpose and aim of each of the foreign powers. The British, who were principally interested in securing the flow of cattle supplies to Aden in Yemen just across the Red Sea from the Somali lands, were content to rule indirectly. The Italians, on the other hand, established significant settlements in the south.
In British Somaliland, the judicial system included the Protectorate Court responsible for all penal matters, first- and second-class district courts, and Kadis Courts. Indirect rule there imposed a more coherent set of laws by explicitly distinguishing between the various jurisdictions of customary, shari’a and state statutory legal systems. The 1898 Principal Order-in-Council recognised that Somalis were bound by customary law. The 1937 Kadis Court Ordinance and the 1947 Subordinate Court Ordinance recognised the application of shari’a to issues including marriage, divorce, family relationships, personal material responsibilities, and inheritance. By contrast, cases in which the British administration held particular interest were subject to the jurisdiction of the Common Law, Somaliland Ordinances, applicable UK laws, and the Indian Penal Code, as applied at the high court and district courts. Together with limited legal training for Somalis, this served to instil adherence to a common law judicial system in the northern Somali regions.
By contrast, in Italian Somaliland, the Italian civil and penal codes were adopted. However, at first they were applied particularly to foreign nationals rather than Somalis. According to Law No. 161 (5 April 1908), the Italian authority instead recognised Somalis as subject to customary law and shari’a, and Royal Decree No. 937 (8 June 1911) established separate shari’a courts to preside over Somali family and inheritance matters. By the end of the pre-independence period, however, both Somalis and foreign nationals were subject to a judicial system in three parts. Civil cases were heard by district, regional and appeals courts; penal cases were addressed by assize courts of first-instance and of appeal; and Somalis and other Muslims had access for family matters and minor civil disputes to be heard by qadi courts of first-instance and appeal. The supreme court heard appeals issuing from each of these subordinate courts, as well as deciding matters of jurisdiction between them.
Despite the obvious differences in the content of their laws and the distinctions between the British common law legacy in the north and the Italian civil law legacy in the south, the development of the judicial system in both areas was remarkably similar on three fronts. First, both administrations established the supremacy of codified and secular Western law, particularly for significant criminal matters. Second, however, both administrations allowed affairs between Somalis to be settled through customary xeer, at least when threats to the general public order were not concerned. Third, independent judicial mechanisms were established to apply shari’a to family and minor civil matters. Overall, this judicial system maintained a formal governance apparatus that was able to regulate, but not displace, the continued practice of Somali customary justice.
Xeer is most intact in northern Somalia, though in the south, the Italians 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. Even though there are statuary laws permitting taxation, taxation is still illegal under the Xeer. Citizens facing up to tax collectors quickly call their judges to peacefully settle the matter.
The primacy of customary law over the formal judicial system is ubiquitous across Somalia:
|“||For instance, someone guilty of homicide may be brought before court for trial under positive law, but if settlement is reached outside the court in accordance with xeer, he or she may be set free without punishment. This is particularly so where law enforcement and the courts are weak or non-existent, where warrants cannot be enforced, and relatives apprehend the offender. When the relatives settle an offence according to customary laws outside the judiciary system, judges and law enforcement officers cannot prevent the release of the offender brought to them by the relatives who now insist on his release.||”|
|“||Traditional Somali society centers on timeless, unchangeable and universal human rights rather than on ever-changing government laws.||”|
—Micheal van Notten
Law and, consequently crime, are defined in terms of property rights. The law is compensatory rather than punitive. Because property rights 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 figure 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.
Some shortcomings of Xeer that have been cited include the occasional suspension of individual liberties for the sake of communal stability. For example, women are not allowed to speak at Xeer hearings, though they are ultimately protected under the law. People who have migrated to locations far removed from their homes can also find themselves without adequate representation at Xeer proceedings. Additionally, Xeer preferentially applies to groups within the existing Somali clan system. As with civil law, the Somali customary law is also vulnerable to instances of crime and violence. In general, however, Xeer is respected by the people, with many expressing confidence in its ability to maintain societal order in times of strife. To address areas in need of change, the late Dutch legal expert Michael Van Nooton also offers numerous solutions in his comprehensive study on Xeer, The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa (2005).
Somali customary law has a distinct separation between law and religion, similar to many Western secular states. Except in matters of family and inheritance, on which religion is paramount, in which case Somalis follow Shari'a law. Though even in such cases if there is conflicting views between Xeer and Shari'a, Xeer normally takes precedence. There is a Somali saying:
Which clearly shows how religion is a matter of a private, individual business, while the law is communal and public, subject to all.
Unlike Western states, however, Somali society surprisingly also makes a distinct separation between law and government. Whereas in most Occidental legal systems government officials determine and write the law, in the Xeer legal system government is expressly prohibited from interfering with the law.
To this effect, even though anyone can perform the duties of a judge if chosen to do so, no one acting as either a political or religious leader may be a judge.
In order to assure that compensation will be forthcoming even in cases where the perpetrator is a child, or penniless, or mentally ill, 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 are 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. Customary law is similar in this and many other respects throughout the world.
Every Somali has his own judge, appointed at birth, who will sit on the court that will judge him. 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.
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.
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.
The Somali are born into extended families or clans, which are politically independent. No clansman will accept being ruled by a member of another, any more than being ruled by someone from his own clan. The clans may band together to form a juffo, and the size increases.
A jilib, which may number several thousand people, protects the rights of its members and engages in social and political activities as the need arises. A jilib consists of several extended families, which is the group responsible for paying the blood price in the event a member kills someone of another jilib or clan.
George Ayittey explains the dynamics of the clan structure as fluidic, depending on each individual Somali's needs:
|“||If the alliance (jilib) no longer serves him, the Somali will leave it and form another. Indeed, jilibs continuously break up into several parts, each becoming an independent new jilib. They do not band together to form a unified state.||”|
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. 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), and laaf (sub-clan) to the qolo (clan). The elders chosen to decide in a dispute are known as xeer beegti, which is essentially a group of elders acting as judges. 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 forms and accepts jurisdiction over a case, its first action is to appoint a recorder who will memorise, repeat and summarise 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 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.
The final verdict is referred to as gar in Somali.
Many Somalis remain sceptical 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.||”|