Xeer (pronounced [ħeːr]) is the traditional legal system of Somalia, Somaliland, Djibouti, the Somali region and the NFD. One of the three systems that inspires formal Somali law, the others are civil law and Islamic law. [1] It is believed to have been dated before Islam, although it was influenced by Islam and retains the elements of belief, procedure under pre-Islamic rule. In this system, elders, known as xeer begti, mediate and help settle court cases, taking into account precedents and customs. [2] Xeer is polycentric because different groups within Somali society have different interpretations of Xeer. Xeer judges are composed of heads of extended families. These heads of family are chosen on the basis of their legal knowledge and wisdom, but otherwise there is no formal training, and each judge is allowed to formulate his own legal doctrines and principles. Several judges are chosen by the parties concerned to preside over each case, this delegation being called “ergo”. [4] The number of judges involved in a case is usually about ten, although there may be only two. [2] After independence, the Republic was faced with the task of unifying legislation and judicial structures of Italian, British, customary and Islamic legal traditions. After a military coup in 1969, the new regime began a program of legal reform based on scientific socialism.
From the early to mid-1970s, the debate over family law reform led to the creation of a commission to draft legislation. The draft prepared by the Commission was adopted in 1975 with significant amendments by President Siad Barre and the Secretary of State for Justice and Religious Affairs, Abdisalem Shaykh Hussain. The code sought to abolish customary law and repealed previous British and Italian family law laws. Article 1 of the Family Code of 1975 stipulates that the main teachings of the Shafi`i school and the general principles of Islamic law and social justice serve as residual sources of law. The EAJ program, funded by the United States Agency for International Development (USAID), aims to sustainably improve the quality and coverage of judicial services, while promoting the interpretation and application of rights-based laws and judicial standards by state and customary institutions. The programme continuously engages in research and learning to deepen understanding of justice mechanisms in Somalia and contextualize perceptions of justice in order to refine and adapt the programme for optimal impact. The marriage must be registered within 15 days (40 days for residents of rural areas) with the nearest court or district authority. Failure to register is punishable by a fine.
The essential elements of marriage within the meaning of Article 6 are: the proposal and acceptance by the contracting parties before two witnesses. A forced marriage is invalid. A man may not enter into a second marriage without the written permission of the District Court. The court`s approval requires the establishment of one of the following conditions: sterility of the wife, of whom the husband was unaware at the time of marriage, which was confirmed by a medical association; incurable chronic or contagious disease of women, certified by a doctor; sentencing the wife to more than two years` imprisonment; the unjustified absence of the wife from the marital home for more than one year; or the existence of a social necessity (the reasons for which are not defined). Talaq: The Family Code stipulates that the right to talaq belongs to the husband “subject to the approval of the competent court”; The court cannot approve the divorce until the reconciliation efforts (60 days) have failed, and the court cannot approve more than one talaq at a time. Divorce by a minor or mentally ill person or under duress is invalid Judicial system: After independence, Sharia and customary courts were officially recognized as Qadi courts. Their judicial role is very limited and jurisdiction is limited to civil cases such as marriage and divorce. Background and sources: Gavlak, “Somalia`s New President Works to Build Peace,” Christian Science Monitor, September 14, 2000; Mahmood, “Somalia” in Statutes of Personal Law in Islamic Countries, 2nd edition, New Delhi, 1995; Nelson, ed., Somalia: A Country Study, 3rd edition, Washington, D.C., 1983; Pearl, A Textbook on Muslim Law, London, 1979; Redden, “Somalia” in Modern Legal Systems Cyclopedia, Volume 6, Buffalo, NY, 1990.
In xeer, crimes are defined as violations of property rights. Justice is addressed to the victim in the form of material compensation. If the accused is found guilty, some form of material reparation must be paid. If no reimbursement can be made, punishment is due, measured on livestock (usually healthy female camels), to be paid to the victim or his family. There is no concept of detention under xeer. In some cases, seniors may advise that neither party seek redress or reprisal.