Pastoral
Justice
A Participatory Action Research Project on
Harmonization of Somali Legal Traditions:
Customary Law, Sharia and Secular Law
Puntland State of Somalia was founded in a consultation conference in March 1998,
arranged both by political parties and by traditional leaders in northeastern Somalia.
They decided to form a regional administration in a future federal Somalia. They
approved a charter for a transitional three year period, elected a parliament, appointed a
president and set up a judiciary. Although the resources were very limited the ambition
to create a viable system was there for all to see.
As a part of the Diakonia Legal and Human Rights Programme for northeastern Somalia,
Puntland, Diakonia requested the assistance of the Puntland Development Research
Centre (PDRC) to conduct interactive participatory research at the entry point:
"Harmonization of Somali Legal Traditions: Sharia, Xeer and Secular law." The main
objective of the research was to contribute to the ongoing search by the Puntland
administration for the development of a judicial system that is in conformity with the
culture, religion and tradition of Somali society, and which at the same time respects
international norms and human rights. Another aim was to initiate a dialogue for the
various stakeholders - Religious and traditional leaders, representatives of Civil Society,
the Puntland Government and the donor community.
This book is the outcome of this pilot project. It reflects the reality of life in Somalia
today, the widespread use of Customary law in the resolving of disputes, the increased
role of religion in the judicial system, and both the lack of knowledge and the history of
abuse of secular law. It also indicates the need for a dialogue to create a legal system
based on the Somalian context which at one and the same time respects the global norms
of human rights.
Contents
Foreword
7
Chapter 1: Background and Context
Cultural Roots and Traditional Legal Institutions
Of Somali Society
Methodology
Research Objectives
11
18
19
Chapter 2: An Introduction to Somali Customary Law
Historical Evolution of Customary Law
Salient Features of Customary Law
Functions and Roles
Main Provisions of Xeer-Daarood
23
24
25
26
Chapter 3: An Introduction to Islamic Sharia
Historical Evolution of Sharia
Salient Features of Sharia Law
Functions and Roles of Sharia
Main Provisions of Sharia
37
41
42
44
Chapter 4: An Introduction to Somali Secular Law
An Overview of Somali Secular Law
Classification of Secular Law as Practiced in Somalia
Major Secular Law Components Focused
59
60
64
Chapter 5: A Comparative Analysis of the Three Legal Systems
Specific Features, Sources and Structures
Sharia v/s Customary Law
Secular Law v/s Customary Law and Sharia
Position of the Three Legal Systems on Gender and Human Rights
Impact of the Civil War on the Three Legal Systems in the Puntland Regions
Future Roles of the Legal Systems
87
88
93
101
106
110
Chapter 6: Harmonization of the Three Legal Systems
Harmonization Possibilities
Harmonization Strategies
Implementation Strategies
Actor Roles
Challenges to Harmonization
Recommendations on Harmonization
115
119
120
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122
123
Appendix
Appendix I: References
Appendix II: Glossary
Appendix III: Human Rights Treaties
Appendix IV: List of Participants of Conclusion Workshop
Appendix V: Discussion Paper for the Concluding Workshop
125
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