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September|October 2005
The Prudent Jurist By William H. Simon
Evil Twins By John Wolfson
Elder Counsel By Louisa Lombard
U-Hell By Nicholas Hengen
Torture, Inc. By Tara McKelvey
Was the Plant a Plant? By Demian Bulwa
Cases & Controversies

Elder Counsel

How Somalia's aged tribal justice system keeps the peace in a country known for chaos.

By Louisa Lombard

THIS APRIL A YOUNG MAN SAW AN IDLING STATION WAGON, jumped in, and began maneuvering the car through the maze of rutted dirt paths that make up the center of the Somalian city of Galkayo. He raced past the city's typical street scenes: old men sipping sweet tea at outdoor cafes, suave money changers fanning themselves with bundles of bills, women and girls draped under flowing burkas. There is one paved road out of Galkayo, and the thief aimed for it.

But the car's owner, a man of about 25, powered by fury-induced adrenaline, followed hot on the thief's trail in a borrowed car. When the owner caught up with the thief, he forced him to the side of the road, jumped out of the car, and lunged toward the culprit, ready to fight. A quick-thinking bystander pulled out his cell phone and dialed a traditional elder. The old man promised that a delegation of elders would arrive momentarily. The bystander approached the man whose car had been stolen—and whose fist was drawn back, ready for a punch—and told him about the call. The man lowered his fist, agreeing to turn the matter over to xeer (pronounced like "hair" with a long "h"), the traditional, elder-mediated form of justice used throughout Somalia for centuries. The thief, knowing he wasn't going to get away with his heist, acquiesced.

A delegation usually consists of 10 elders, five from the accused's ethnic group and five from the victim's, but it can be as few as two—as long as each side is equally represented. In this case, there were 10, and when the elders arrived, they followed their custom of placing a mat under the shade of a tree to delineate the area where their authority is supreme and decorum must be observed. Speaking in Somali, an elder asked both the victim and the thief, "Will you give me your head?," a literal request to relinquish their fates to the elders' decision. Both men agreed.

Though any man present at a hearing may speak while arguments are being heard, the elders decide how to resolve the matter, a process of consensus-building that can take days. In the case of the stolen car, though, a previous settlement had set a clear precedent, and compensation was rapidly decided upon. Both sides agreed and moved on.

SOMALIA, THE WEDGE-SHAPED COUNTRY IN EAST AFRICA nestled between Kenya and Ethiopia and bordering the Indian Ocean, has lacked a central government for the past 15 years. It's known by the images of anarchic, gun-waving youth on the streets of its capital city, Mogadishu. But the country has a more ordered side, grounded in tradition and custom. Today justice is defined in the country much more by well-ordered xeer meetings than by teenagers with Kalashnikovs.

These courts have existed for centuries, long bringing a measure of legal calm to the country. In the years before the civil war that tore the country apart, starting with the overthrow of longtime dictator Siad Barre in 1991, the state itself was the primary abuser of human rights, and its courts were known for their brutal, politically motivated persecutions. Somalis, the majority of whom are nomadic goat and camel herders, generally continued to resolve their disputes using xeer, rather than the new state system with its courtrooms and jails.

Passed down orally, the traditional laws are modern in some ways. They include, for example, stipulations about the conduct of war that seem to mirror the much younger Geneva Conventions. But the traditional laws can be harsh and unfair: Individual rights are sometimes sacrificed in the name of stability. And even with xeer in use, bursts of fighting and crime occur, particularly in the turbulent Mogadishu. By and large, though, people say that xeer is a law that people respect, a justice system strong enough to hold together communities that have been fragmented by the upheaval of recent years.

"Xeer will never stop being used," said Dahir Mohamed Grasi, an elder in the town of Garowe for the past 46 years. He propped one hand on his gold-filigreed walking stick even while seated, giving him a kingly aspect, despite his otherwise modest appearance. "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," he added.

SOMALI CULTURE AND POLITICS ARE ORGANIZED around the country's seven clans, each of which traces its heritage to a different ancestor. These clans are then divisible into subclans, smaller family groups called lineages, and diyah groups. Xeer justice generally revolves around these latter groups, which can number anywhere from a few hundred to a few thousand people and are formed when there are enough men of sufficient wealth in a lineage to constitute their own group—a process called, literally, "counting testicles." Each member is responsible for the crimes committed by anyone else from his diyah group. If someone in a group commits an offense, the whole group must pool its resources and contribute toward a payment (camels, other livestock, or money) to the victim's diyah group, with elders setting the amount of compensation using xeer.

The various subclans have entered into oral agreements with each other that stipulate the punishments to be handed down for specific crimes. When, for example, a dispute arises between two lineages over access to a source of water, elders of a neutral lineage will travel to mediate between the warring groups. The whole process rests on the integrity of the elders, their skill as mediators, and their just application of xeer agreements. There is no strict formula for deciding who becomes an elder; it is a combination of heredity, reputation, and proven skill. Dahir Mohamed Grasi's subclan nominated him to become an elder, but not until he proved his worth by successfully negotiating the return of some stolen camels. Elders must remember the precedents that have been set by past cases, as well as more general guidelines that are passed down as proverbs. One proverb declares, "Abandoning tradition calls forth God's wrath."

While meting out punishment is important, the elders' mandate is to build peace. They shape their judgments to the circumstances at hand. If a crime is particularly brutal—for example, a murder on the day a peace agreement between two clans was signed—the elders can assign a harsher punishment. Their goal is to ensure that the matter is laid to rest and to deter retaliation and future crime. As the elder Dahir Mohamed Grasi explained, "The elders are the busiest people in the country because they are the ones responsible for peace."

THOUGH XEER IS BELIEVED TO BE PRE-ISLAMIC, it evolved as the religion took root in Somali society and it maintains the conservative elements of Islamic law. Most obviously, all elders are male and women are not allowed to speak at xeer proceedings. "We have no rights," said Weris Ali Warsame, the chairperson of the United Somali Women's Roots Organization. Even when women are killed, their lives are traditionally compensated with half as many camels as men's. For example, while the xeer code theoretically includes punishments for rape, in reality, Weris said, no cases are ever tried.

A xeer proceeding in Weris's town illustrates women's low legal status. According to Somali tradition, a widow must marry her deceased husband's brother. But one widow refused her brother-in-law's overtures, and he shot her. Though her diyah group will receive compensation for her injury through xeer, she still must live with her attacker.

Women aren't the only group discriminated against under xeer rules. In Somali society, there are groups that live in a client-patron relationship with the dominant clan in the region. Each such group is confined to a particular trade; for instance, the Yumaal are the blacksmiths and the Yibia are soothsayers. These lesser groups may not marry outside their caste, and they are shut out of xeer hearings. Similarly, people who have moved far from their original home can be vulnerable at xeer hearings, because the subclans of the region have not entered into xeer agreements with the subclans of the migrants. They might be killed in vengeance without a trial or ordered to leave the area.

BUT MOST SOMALIS, EVEN MODERNIZERS, still support this system. Abdirashad Salad, known to all as Baabul, had just graduated from law school when the state and its courts collapsed. In the years since, he has come to believe that xeer is the justice system best suited to Somalia. In a country where some 85 percent of the population is illiterate, the oral tradition of xeer and the emphasis on long-lasting relationships make it effective in a way that a more modern system would probably not be.

"Xeer is accepted by the people," explained Abdirahman Raghe, a program officer in the Somalia office of the War-Torn Societies Project. "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."

Raghe might have been indulging in some hyperbole there. But the resolution of the car chase incident backs him up. The punishment that the elders chose was that the thief return the car. Having to go through the process created shame and disgrace enough, and all sides have since moved on.

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