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OnIslam.net

The Traditional Community Courts in Somalia

Pursuing Justice, Persevering Traditions
By Abdullahi Jamaa, OnIslam Correspondent
Ciyaar.Somali1
Access to justice amongst the overwhelming majority of the Somalis largely depends on their culture and folklore.

A gust of wind occasionally blows red sands into the eyes of a group of grey-haired elders who are meeting under the shade of an old acacia tree in Wajir, a town in Kenya’s Muslim dominated Northeastern province.

An informal proceeding has just began, a presiding elder is sitting in the middle of the semi-circular meeting, stroking his elongated beard while holding a dangling prayer bead on his right hand.

The mats are wide enough to accommodate about 30 elders, a powerful indictment of a lengthy discussion.

The sitting set up bears the hallmark of the pristine Somali culture, a conservative community that remains true to its tradition during these contemporary days when the circles of modernizations seem to envelope most parts of Africa.

Somalis, urban and rural dwellers alike, embrace the deeply entrenched customary courts as the most efficient among the herding community where clan loyalty holds sway.

This capricious day, the Somali elders are arbitrating on a case that involves the murder of a young man late last month in the remote hamlet, their mission is to apply justice and reconcile parties through a long-standing traditional justice system.

How It Begins

These informal arrangements summon for parties to appear before the elders, which have already been issued a few days ago and have been delivered through individuals or their clan members.

“We have met here to settle the case that involves the sudden death of our son. While we console the bereaved family we must know that death is a reserve of Allah, he is the giver and taker of life, we also remind ourselves that we must accept the powers of Allah as we pray that today we will have a consensus on this case” presiding elder Abdiqasim Yussuf takes on to chair the court.

“Whilst the murder was not intentional, we believe that a grave crime has been committed, we understand the two boys were having fun and wrestling causing the sudden death” he says

To be a presiding elder, you have be an orator, a historian, a traditionalist and man who knows the world of Somalis like the back of your hand. And it’s the turn of elder Abdiqasim Yussuf to orate his ruling with wisdom.

The accused is not appearing anywhere in the sitting, but in this particular court, as required by the Somali customary law; he is represented by his clan members who according to the Somali way of life should shoulder the burden of the case.

The accused family rendered an apology at first and presented a small token of gifts as is suppose to be the case.  The apology here goes to the elders and in part to the aggrieved clique who have to accept it first before any further deliberation.

“We first and foremost register our condolences to everybody in this sitting, especially to the bereaved family, we accept that our son has resulted the death of his long term friend” says the father of the accused who is part of the forum.

One by one, the elders started deliberating the case, many of them employing heavy use of poems, proverbs and historical anecdotes in their quest to find justice for both of the families.

It is exactly two hours down the discussion, by this time the presiding elder have listened to every body and it was indeed the time to deliver the verdict.

To be a presiding elder, you have be an orator, a historian, a traditionalist and man who knows the world of Somalis like the back of your hand. And it’s the turn of elder Abdiqasim Yussuf to orate his ruling with wisdom.

“It is said that words do not fill up a tank and if words were to fill a tank today we would have filled a thousand tanks.  Whatever the matter, it is also said that if people come together they can even mend a crack in the sky I am sure this is not the first murder case and it will never be the last one” the presiding elders starts his conclusion. “Men of wisdom have spoken with golden words and I am only here to summaries what my kinsmen have said”

The cherished elder read historical murder cases that were settled among the Somali communities, some about a decade ago, others beyond a decade. Based on these cases, his ruling was therefore very simple. The family of the accused was required to pay compensation, the equivalent of 100 camels, to the bereaved family.

Yet the compensation won’t be a burden to the accused family only, a portion of it must be paid by all clans as a sign of ownership that the deceased was a son for all the clans.

According to members of the community the informal arrangement coupled with the fundamental creed of Islam provides an unrivalled access to justice. The perfect amalgamation of the Somali culture and that of Islam provides a superb blend in this kind of courts.

An Inherited Tradition for Justice

Informal forums like the one above are common in most areas settled by Somalis, like this case, many disputes, whether they are economic, social or political, are amicably settled through the elementary dictates of the tradition of Somalis, a 99% Muslim community.

Somalis, urban and rural dwellers alike, embrace the deeply entrenched customary courts as the most efficient among the herding community where clan loyalty holds sway.

Access to justice amongst the overwhelming majority of the Somalis largely depends on their culture and folklore. Many thought that as Somalis modernized their customs would eventually die out, but this has not occurred.

The nomadic community has been hesitant to take modernized approach to justice; this is because they believe that the Western justice prototype remains retributive, cruel and punitive and is guided by endless written procedures.

According to members of the community the informal arrangement coupled with the fundamental creed of Islam provides an unrivalled access to justice. The perfect amalgamation of the Somali culture and that of Islam provides a superb blend in this kind of courts.

The community is involved in the entire process, from the exposure of problems to dialogue and resolution while restoring relationships among various groups of the society.

“Dispensing justice through our culture is the best way to reconcile individuals and parties. As you know that cotemporary courts allow even those guilty murders to deny their heinous crimes, but in our case, judgement are determined by individual confessions” says village elder Ahmed Mohamed

For most times there is no need of witnesses, people confess their crimes and seek forgiveness, many among the largely rural community trust it as the best way to seek justice for both the accused and the accuser.

“It is all about staying true to our culture and our religion,” says one elder.

This indigenous justice system remains potent for social control in the community as it stresses much on the need for forgiveness and reconciliation.

“Greet emphasis is placed on peaceful resolution of disputes and promotion of social harmony while upholding the principles of fairness through customs and traditions” say the presiding elder of the murder case.

Settlement of cases is done through critical deliberation and discussion rather than by vigorous inducement. Correction of wrongdoing especially of heinous cases like murder is done through compensation.

“Somalis have always been guided by unwritten laws, traditions and practices like inclusiveness, consultation and consensus,” says elder Mohamed Jimale.  “Our justice system is primarily by example and through the oral teachings of elders. Every adult member of the community gets involved in solving a conflict and they all focus on the need to resolve issues so as to attain peace and social harmony”

Its proceedings are short and unwritten since the knowledge of handling cases have been passed on from generation to generation. The system is also cheap and accessible to everyone in the community.

"In some circumstances parties are sworn under the Koran. No one can lie because the consequences are so severe to weigh up,” says Sokor Mohamud.

Crimes such as murder are punishable by heavy fines whereas cases about families like divorce and inheritance are referred to concerned families with judgment based on the Qur’an. To assault a woman is considered a felony only second to murder attracting a punitive ruling with weighty reparations.

 

Related Links:
Background on Somalia
Somali Courts Leader in Kenya
"Who Speaks for Islam?"

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