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Tuesday, February 21, 2006
Stateless in Somalia, and Loving It
by Yumi Kim
[Posted on Tuesday, February 21, 2006]
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Somalia is in the news again. Rival gangs are shooting each other,
and why? The reason is always the same: the prospect that the weak-to-invisible
transitional government in Mogadishu will become a real government with actual
power.
The media invariably describe this prospect as a "hope." But it's a
strange hope that is accompanied by violence and dread throughout the country.
Somalia has done very well for itself in the 15 years since its government was
eliminated. The future of peace and prosperity there depends in part on keeping
one from forming.
As even the CIA factbook admits:
"Despite the seeming anarchy, Somalia's service sector has
managed to survive and grow. Telecommunication firms provide wireless services
in most major cities and offer the lowest international call rates on the
continent. In the absence of a formal banking sector, money exchange services
have sprouted throughout the country, handling between $500 million and $1
billion in remittances annually. Mogadishu's main market offers a variety of
goods from food to the newest electronic gadgets. Hotels continue to operate,
and militias provide security."
To understand more about the country without a government, turn to
The Law of the Somalis, written by Michael van Notten (1933-2002) and edited by
Spencer Heath MacCallum, sheds light on the little known Somali law, culture
and economic situation. Somalia is often cited as an example of a stateless
society where chaos is the "rule" and warlords are aplenty.
The BBC's country profile of Somalia sums up this view as widely
publicized by the mainstream media: "Somalia has been without an effective
central government since President Siad Barre was overthrown in 1991. Fighting
between rival warlords and an inability to deal with famine and disease led to
the deaths of up to one million people."
The first sentence is indeed true: when the president was driven
out by opposing clans in 1991, the government disintegrated. The second
sentence, however, depicts Somalia as a lawless country in disorder. As for
disorder, Van Notten quotes authorities to the effect that Somalia's
telecommunications are the best in Africa, its herding economy is stronger than
that of either of its neighbors, Kenya or Ethiopia, and that since the demise
of the central government, the Somali shilling has become far more stable in
world currency markets, while exports have quintupled.
As for Somalia being lawless, Van Notten, a Dutch lawyer who
married into the Samaron Clan and lived the last dozen years of his life with
them, specifically challenges that portrayal. He explains that Somalia is a
country based on customary law. The traditional Somali system of law and
politics, he contends, is capable of maintaining a peaceful society and guiding
the Somalis to prosperity. Moreover, efforts to re-establish a central
government or impose democracy on the people are incompatible with the
customary law.
Van Notten distinguishes between the four meanings of the word
"law" - statutory, contractual, customary, and natural law. The common
misunderstanding is that legitimate rules only come from formally established
entities and that therefore a country without a legislature is lawless.
Refuting that misunderstanding, van Notten explains that a perfectly orderly
and peaceful country can exist when people respect property rights and honor
their contracts. While natural laws denote peace, liberty, and friendly
relations, statutory laws represent commands. Statutory laws reflect the
preferences of legislators, who impose "morality" on those they govern and
regulate their ability to voluntarily enter into contracts. This, according to
van Notten, is wrong from the standpoint of both morality and law.
Customary laws develop in a country like Somalia in the absence of
a central legislating body. Rules "emerge spontaneously as people go about
their daily business and try to solve the problems that occasionally arise in
it without upsetting the patterns of cooperation on which they so heavily
depend" (Van Notten, 15: 2005). Van Notten contends that the Somali customary
law closely follows the natural law and therefore should be preserved.
The extended family is the core of Somali society. Families
descended from common great grandparent form a jilib, the basic independent
jural unit, and a number of jilibs in turn form a clan. Each family, jilib, and
clan has its own judge, whose role is to facilitate the handling of disputes by
deciding where the liability lies and what compensation should be paid. For
example if a man is murdered, the murderer's clan gives the victim's clan one
hundred camels (the blood price). Verdicts are widely discussed, and a judge
who does not base his decision on norms prevailing in the community is unlikely
to be asked to settle further disputes. Thus while a judge may form his own
principles, his customers will decide his competence as a judge.
The family of the successful plaintiff can resort to self-help to
enforce a payment, or the court can order the men of the community to do so.
Every clansman is insured by his jilib. For instance, if A violates B's right
and it is held that A should pay compensation to B, A's jilib will provide the
compensation. Hence the jilib functions as "a safety net, venture capital,
protection, and insurance" (Van Notten, 74: 2005).
If a clan member constantly violates others' rights and his jilib
repeatedly pays compensation, the jilib can expel him. On the other hand, there
is nothing to stop someone from leaving his jilib and joining another, if it
will have him, or setting up his own. A person without a jilib is unthinkable,
an outlaw, because he is not insured against liabilities he might incur toward
others. Hence he loses all protection of the law.
Decisions are enforced and oaths taken in ways that may seem
unsophisticated or odd, yet they are the custom and must be respected. If, for
instance, the defendant refuses to comply with the verdict without appealing
his case to a higher court, he can be tied to a tree covered with black ants
until he agrees. When evidence is sketchy or lacking, several types of oaths
are available. A strong oath is one that is repeated fifty times. Another type
is a divorce oath. If a man testifies under divorce oath and it is later found
that his testimony was false, his marriage becomes null and void.
Independent extended families being the basic social and economic
unit does have its weaknesses. While clansmen are under no obligation to share
their wealth with other clans, they must share it to a significant extent
within the clan. Van Notten notes this as a drawback and states that the "law
makes clansmen somewhat a prisoner of their clan." Since individuals differ in
their productivity, it is inevitable that some family members will benefit from
more successful members. In addition, as a way of promoting internal cohesion,
extended families may foment animosity against other families. Van Notten also
writes that foreigners are not recognized under Somali law unless they marry
into a clan or come under the protection of a Somali patron.
This has important economic implications. For example, because land
cannot be sold outside the clan, foreigners would generally be prohibited from
purchasing it. One way to work with this might be land leasing, which is
possible under customary law. Somali elders suggested to Van Notten that a
group of foreign investors could form their own 'clan' on a leased territory
and develop it, say for a free port, on a land-lease basis.
An important discussion centers around democracy. In 1960, when the
British and Italian colonizers withdrew from Somalia, they formed the
government of the Republic of Somalia as a democratic entity. Nine years later,
the country was under a dictatorship. Through these events, according to van
Notten, many Somalis realized that they could return to their traditional form
of governance founded on independent clans.
Nevertheless, since 1991, the United Nations has made efforts to
promote the establishment of a democratic government in Somalia. Van Notten
strongly argues that such government is incompatible with the Somali customary
law, which prizes life, liberty, and property. He asserts that democracy is not
even a viable option:
"When the electorate is composed of close-knit tribal, religious,
linguistic or ethnic communities, the people invariably vote, not on the merits
of any issue, but for the party of their own community. The community with the
greatest numbers wins the election, and the minority parties then put rebellion
and secession at the top of their political agenda. That is nothing but a
recipe for chaos." (van Notten, 127; 2005)
Van Notten contends that the argument that a central government is
a prerequisite for making treaties with foreign government agencies is flawed
because the Somalis have long dealt with foreign governments and their agencies
on a clan-by-clan basis. A common ministry of foreign affairs would pose a
grave danger because it would undermine the customary law. He suggests that
clans sharing a common interest could appoint a private company as their common
agent. Van Notten and MacCallum further dispute that a central government is
needed to provide "public" services. They propose the establishment of
freeports, land-leasing, and commercial insurance companies. Certain sectors
such as telecommunications have been thriving in Somalia's free market and
government regulation could only hinder their growth.
Questions arise as to rampageous warlords when discussing a country
without a central government. Van Notten explains that warlords exist because
of the efforts to form a central government, not because of its absence:
"A democratic government has every power to exert dominion over
people. To fend off the possibility of being dominated, each clan tries to
capture the power of that government before it can become a threat. Those clans
that didn't share in the spoils of political power would realize their chances
of becoming part of the ruling alliance were nil. Therefore, they would rebel
and try to secede. That would prompt the ruling clans to use every means to
suppress these centrifugal forces. in the end all clans would fight with one
another." (van Notten, 136; 2005)
He thus asserts that efforts by the United Nations are not only
futile, but also harmful to the Somalis.
Van Notten calls for documentation of clan law systems to
facilitate doing business with foreigners, especially, on a nationwide scale.
He argues that by compiling all the major jurisprudence under Somali law, the
customary law will more readily evolve into a coherent body of common law. But
if each clan is only bound by its own rules and custom, and if the Somalis so
far never felt the need for the "merger of clan law systems," why would
compiling rules of all different clans be necessary? Moreover, it is unclear
how such a task can effectively be undertaken when the customary law evolves
constantly, and clans have a nomadic character.
The book does not contain information regarding the Somali
presidential election in 2004, which took place in Kenya. Efforts to construct
a formal government continue but they appear to be in vain, inspiring hope in
UN bureaucrats and the news media, but only fear and loathing in Mogadishu and
the rest of the country.
--------------------------------------------------------------------
Yumi Kim studied law in London, where she now works in financial
services. Send her mail. Comment on the blog.
You can receive the Mises Daily Article in your inbox. Go here to
subscribe or unsubscribe.
Ludwig von Mises: "The positivists tell us that one day a new scientific
discipline will emerge which will make good their promises and will describe in
every detail the physical and chemical processes that produce in the body of
man definite ideas. But it is evident that such a metaphysical proposition can
in no way invalidate the results of the discursive reasoning of the sciences of
human action." - Theory and History
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