Xeer (pronounced[ħeːr]) is the traditionallegal system used bySomalis inSomalia,Djibouti,Somali Region of Ethiopia, and theNorth Eastern Province in Kenya. It is one of the three systems from which formal Somalilaw draws its inspiration, the others beingcivil law andIslamic law.[1] It is believed to pre-dateIslam. However, Islam influenced it, with Xeer incorporating many Islamic legal principles.[clarification needed] Under this system, theelders, known as thexeer begti, serve asmediatorjudges and help settlecourt cases, takingprecedent andcustom into account.[2] Xeer ispolycentric in that different groups within Somali society have different interpretations of xeer.
Somali society is traditionally structured around a patriarchalclan based system, subdivided intosub-clans, thenlineages, and finallymag groupings. These groups are bound together either byfamily ties orcontract.Xeerjustice usually revolves around the latter groups, as these are the smallest. In these groups, each member is responsible aiding in the payment for thecrimes of another and must accordingly bear some fraction of any decidedpunishment if the accused cannot afford to do so themselves. Within this system, only thevictim or immediate family of a victim can bringcriminal proceedings toxeer mediation. If the victim is a man, his father, brothers, or uncles can bring complaints. If the victim is a woman, complaints can be brought forward by the men in her family or the men in her husband's family.[3]
Inxeer, crimes are transgressions againstproperty rights. Justice is directed in the form of material compensation to the victim. If the accused is found guilty, some materialrestitution must be paid. If restitution cannot be given,mag retribution is due, measured in terms oflivestock (usually healthy femalecamels), to be paid to the victim or the victim's family. There is no concept ofimprisonment underxeer. In some cases,elders may advise that neither side seeks restitution or retribution. Theverdict is enforced by the victim's family or else by all able-bodied clansmen within the area wherein the verdict is to be executed.[3]
Xeer judges are made up of the heads ofextended families. These family heads are chosen for their knowledge of the law andwisdom, but otherwise, there is no formal training, and each judge is allowed to formulate their owndoctrines andlegal principles. Multiple judges are chosen to preside over each case by the involved parties, with this delegation being called an "ergo".[4] The number of judges involved in a case is usually around ten, though it can be as few as two.[2]
In each case, the goal is to reach consensus between the parties.Arbitration traditionally takes place under a large tree, and the mediators ask each party to submit to the judge's ruling. In modern times,meeting halls are often used instead of sitting under a tree.[2] Each party has the right to appointa representative to speak on its behalf while a recorder loudly repeats any important points that are made. If a fact is disputed, its veracity must be obtained by thetestimony of three witnesses. If this cannot be done, anoath must be sworn. Should proceedings become heated, the presiding judge may order a recess, wherein both parties discuss issues relating to the case in small informal groups. Once the mediation has been decided, anappeal may be requested, although all parties must agree.[3]
Different groups within Somali society undertakeoral agreements with each other to definexeer law.[2] Despite this informal nature, there is a series ofgenerally accepted principles, agreements, and ideas that constitutexeer, referred to collectively as "xissi adkaaday". These are:
