Combining Islamic, customary and formal law in Somaliland

By: CLAIRE GERRAND


posted on: November 29th, 2018

Traditional Somali society centres on timeless, unchangeable and universal
human rights rather than on ever-changing government laws. – Michael van Notten

Somaliland is an area in the Horn of Africa that acts as an independent state and is now one of the region’s most promising economies. It considers itself separate from the nation of Somalia. To promote peace and encouraging citizens to engage with the law, the government of Somaliland combined Islamic, customary and formal law in its legal system. A citizen can choose to have their complaint heard in any of the three courts. For example, a punishment given by an Elder in the customary court may be carried out by the police, according to the rules of Islamic law.

WHAT ARE ISLAMIC, CUSTOMARY AND FORMAL LAWS?

An Islamic or sharīʿah legal system is based on the religious leader’s interpretation of the Koran. In Somaliland, around 30% of all legal cases are resolved through committees of Islamic scholars, and shari’a is the supreme law of the land. It is an informal, community-based court and therefore decisions made in the Islamic court are not enforced by the government. Islamic law in Somalia usually dictates family matters: marriage, children and inheritance.

Customary xeer law is a system of resolving disputes within Somali clans. Each person in the dispute is represented by an Elder from their clan. The Elders will reach a compromise and, depending on the crime, order a punishment. Any decisions by the Elders are enforced by the government. While xeer is not written down, it is usually consistent throughout different Somali communities and relies on information being passed by Elders teaching clan members. Customary law is available to everyone: rich or poor, minority or majority clan.

Formal law is the legal system used by the official Somaliland government. It is adapted from the British and Italian civil codes. Clans can influence the creation of formal laws in the House of Elders, where clan leaders vote on new laws.

THE FUTURE OF THE LEGAL SYSTEM IN SOMALILAND

Decisions made in sharīʿah or xeer courts undermine the credibility of the formal legal system because decisions, and therefore justice, are not consistent with the judgements made in the formal system. In certain cases, women are not allowed to speak in xeer or sharīʿah courts, and many Somali women feel that they have no voice outside of the formal legal system. Despite this:, the citizens of Somaliland trust the xeer system and its punishments. Involving the clans in the political and legal system prevents further conflict and ensures peace.

Each system has its advantages and disadvantages, and Somaliland gives its citizens the right to choose their own justice. They have chosen a unique path in using Western-based formal law, Islamic law and customary law in their legal system. Somaliland is a small nation that is limited by a lack of funds, development and international recognition. With time, this system may grow to set an example for the rest of the world.

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