Somalia's centuries old traditional law system
Posted: Thu May 17, 2007 1:25 am
"The second important institution was the law council. The
key function of the xeerbeegti was, like the shir, to resolve conflict, albeit
legal conflict. The council dealt with legal disputes that concerned
dia-paying groups or lineages or clans or individuals, including issues
such as murder, insult, injury, divorce, inheritance, theft, robbery and
affray. In the traditional legal system justice was done and was seen
to be done, as it were, behind ‘a veil of ignorance’ (Rawls 1973:
11). Ideally no one was given advantage in the system, even when
the disputants were not equal because of natural talent or wealth or
personality or lineage affiliation. The law council was supposed to
listen to both sides (Lewis 1961: 229–31). The muduci (plaintiff) and
mudaacaly (defendant) had the burden of proving their case. Each could
either speak for himself or herself or appoint a lawyer (afhayeen) and, if
the case was complex, the lawyer would also have an assistant lawyer
(hojiye) whose task was to remind the lawyer about the key issues in the
case – if he forgot any. In complex cases the law council also appointed
a recorder – ladhaye or doodqaade – to record the proceedings orally for
the benefit of the council, reminding them of the main points. The
council based its judgement on the evidence submitted to it; hence in
reaching a judgement it depended heavily on the presentation of the
plaintiff, the rebuttal of the defendant, and the testimony of witnesses.
That was why rhetoric – the ability to persuade – was important in
Somali society and politics. The council consisted of four members to make sure that, in case a split occurred, a simple majority would not impose its view.1"
Source: Jama Mohamed. Kinship and Contract in Somali politics
key function of the xeerbeegti was, like the shir, to resolve conflict, albeit
legal conflict. The council dealt with legal disputes that concerned
dia-paying groups or lineages or clans or individuals, including issues
such as murder, insult, injury, divorce, inheritance, theft, robbery and
affray. In the traditional legal system justice was done and was seen
to be done, as it were, behind ‘a veil of ignorance’ (Rawls 1973:
11). Ideally no one was given advantage in the system, even when
the disputants were not equal because of natural talent or wealth or
personality or lineage affiliation. The law council was supposed to
listen to both sides (Lewis 1961: 229–31). The muduci (plaintiff) and
mudaacaly (defendant) had the burden of proving their case. Each could
either speak for himself or herself or appoint a lawyer (afhayeen) and, if
the case was complex, the lawyer would also have an assistant lawyer
(hojiye) whose task was to remind the lawyer about the key issues in the
case – if he forgot any. In complex cases the law council also appointed
a recorder – ladhaye or doodqaade – to record the proceedings orally for
the benefit of the council, reminding them of the main points. The
council based its judgement on the evidence submitted to it; hence in
reaching a judgement it depended heavily on the presentation of the
plaintiff, the rebuttal of the defendant, and the testimony of witnesses.
That was why rhetoric – the ability to persuade – was important in
Somali society and politics. The council consisted of four members to make sure that, in case a split occurred, a simple majority would not impose its view.1"
Source: Jama Mohamed. Kinship and Contract in Somali politics