Customary law and the joys of statelessness: idealised traditions versus Somali realities

Abstract

There is some truth in the statement that in Somalia the periods and regions least affected by struggles about the state have provided better living conditions than the ones more affected by statehood. It is also true that the state, especially in the final stage of its existence leading up to its collapse in 1991, was of a predatory nature and, rather than contributing to development, affected it adversely. There is no doubt that no state at all is better than some of the experience the Somali have made with actually existing statehood (but not in comparison with many alternative courses history could have taken). In some recent writings about Somalia, however, the advantages of statelessness have been grossly overstated, and the disadvantages of not having a functioning nation-state in a world of nation-states have grossly been neglected. Especially the Somali customary law (xeer) has been romanticized and praised as a cost-efficient mechanism for the provision of 'justice' in the absence of statehood. This paper examines the actual working of customary law and finds it to be based on negotiation, often between unequals with a number of structural advantages for the demographically, economically and militarily stronger side. Xeer does regulate the use of violence to a degree, but it does not produce 'justice' in the universal or Western sense of the term, as some of its advocates seem to assume.

Courts, Clans and Companies: Mobile Money and Dispute Resolution in Somaliland

“…Ideally, xeer and traditional elders should represent all clan members who need such representation equally; however, their role is often politicized. Our research found that clan elders tend to intervene most vigorously for individuals involved in mobile banking disputes who are either wealthy, have powerful relatives who can mobilize the elders, or who are directly connected to the elders, a finding that reflects broader literature on the contemporary application of xeer law more generally (Schlee 2013).…”

“…In this context, trust and clan relationships play an important role in guiding personal and financial transactions even though the platforms they use may not have formal guarantees. Xeer law, with its preference for the more powerful (whether the more economically powerful businesses, more dominant clans or its bias towards men) does not necessarily provide 'justice' in the sense of offering all sides equal opportunities for a fair hearing and outcome (Schlee 2013). It does, however, have a role in regulating interactions and preventing disputes from escalating to violence.…”

Pathways to care: IDPs seeking health support and justice for sexual and gender-based violence through social connections in Garowe and Kismayo, Somalia and South Kivu, DRC

“…This is commonplace even though it is prohibited by some laws such as the Puntland Rape act, which forbids tribal elders from resolving rape offences ( Stremlau, 2019 ). Schlee (2013 ) argues that xeer should not be seen as preserving the role of equal justice, but rather is a form of bargaining for paying damages between clans or subclans, which often have significantly differential powers and resources to bargain. Moreover, women's ideas of justice are left out of the equation, as we demonstrate below.…”

A Snapshot into Challenges of Policing Rural Zimbabwe

“…Patriarchal practices in African communities have been noted to exist mainly due to weak states or traditional authorities wielding more power, as can be noted also in Somalia and other countries (Schlee, 2013). Community norms and mores tend to guide behaviour, rather than established laws and in some instances, this preserves peace and improves community wellbeing (Leeson, 2007).…”