Version classiqueVersion mobile
OpenEdition Books

Grass-roots Justice in Ethiopia

 | 
Alula Pankhurst
, 
Getachew Assefa

Regional Case Studies

7. Customary Dispute Resolution in the Somali State of Ethiopia: An Overview

Mohammed Mealin Seid et Zewdie Jotte

Texte intégral

Profile of the Region

1Somali Regional State is the second largest regional state, next to Oromia, occupying a large geographical area in the Eastern and South Eastern parts of the country. It is situated between 4° – 110° Ν latitude and 40°-48° Ε Longitude (Investment Office, 1992:21). It shares the largest boundary (over 2500 km) with the Republic of Somalia in the East and South East. It also is bounded by Oromia in the West; Afar Regional State; the Dijibouti Republic in the North and Kenya in the South. The Somali Regional State has an estimated total area of 281,900 km2 (Investment Office, 1992: 21).

2Topographically, over 80 percent of the total area is lowland plain that contributes to the low altitude of the region that ranges from 500 to 1600 meters above sea level. Most of the region has an arid and semi-arid climatic condition, which accounts for the sparse vegetation in the region. Uncontrolled deforestation of natural vegetation, inadequate rainfall, and drought are factors aggravating desertification. Scarcity of natural resources is one and the major source of dispute. More specifically, shortage of food and water for both animals and human beings are major problems leading to conflict.

3The Somali regional state was not fully covered during the 1994 population and housing census. However, the CSA indicated that there are 3,439 860 [1,875,996 (54.5%) males and 1,563,864 (45.5%) females] people living in the region. This total figure includes 56,695 people who are included through estimation from areas not covered during census. From the total population of the region, as the CSA report reveals, 85.7% live in rural areas while the rest, 14.3%, are urban dwellers. Based on the 1994 census projection for the 2008 the region will have a population of about 4.5 million. Ethnic Somalis constitute 96% of the population of the Regional State.

4The livelihood of the Somali people depends on livestock production that makes grazing land and water the most important resource. These resources have an influential impact in shaping the overall way of life. Some of these resources such as grazing land and cisterns (birka) are communally owned while others like wells (Ella) are individually owned. A survey conducted in the region shows that Birka (Cistern), ponds (hard) wells (ella), and rivers are the major points in the region that serve for human as well as for their livestock production (IPS, 2000:23).

5Trade is a major economic sector by which an influential portion of the Somali society makes a living. The majority of commodity exchanges are made with the Somali Republic. Different food items, drinks, cloths, etc, are informally imported from the self-declared Republic of Somaliland. Cattle, sheep, goats and animal products are similarly exported to Somaliland.

CDR in the Somali Regional State

6In the Somali Regional State about 95.7% of the population is ethnic Somali, and share the same religion, custom and language (CSA, 1999). This homogeneity prevents the diffusion or intermingling with alien social norms. Therefore, Somalis relied on their traditional values. Their own way of dispute resolution is among the traditional values they profoundly rely on.

  • 169 Interview with the Somali Regional State Police Commissioner.

7Empirical data from police and courts show that the society in the Somali Regional State prefer to solve their disputes through CDR mechanisms. Disputes in the Regional State are of two types, namely, collective dispute and individual dispute.169 In the case of collective disputes, the situation is handled politically with the help of elders. In the case of individual disputes, often, it is solved by the elders even before the case comes to the knowledge of the formal institutions. Even if a case has already come to the attention of the police, usually the elders try their best to take the case and solve it in the traditional way.

  • 170 In the case of the civil matters, the Ethiopian Civil Procedure Code of 1965 allows the withdrawal (...)
  • 171 In 2003/2004, the Korahai Zone police record shows a Report of 99 homicide cases, 100 armed robbery (...)

8The data for this chapter was collected from the Korahai Zone, which is the nucleus of the Region. The 2one has a total population of around 242,276. The number of cases that is solved by the formal justice system in the Zone is very limited. For example, in 2003/2004, there were only 6 criminal and 57 civil cases brought to the formal courts of the Zone. Most of these were also withdrawn by the request of the parties to be solved by the CDR system in place.170 This happened mostly because the disputants with their respective odayaal demand influentially that the matter is better solved through CDR. These requests are often met with positive responses of the formal justice institutions, including the courts of law regardless of the types and nature of cases in question.171

Description of CDR System in the Regional State

9Somalis can be divided into six great clan families, which is further divided into many clans that are also subdivided into patrilineal kinship groups. These groups are also divided into dia-paying groups, which is the smallest of the social organization next to the family. The dia-paying groups are common among the Somalis and the Ethiopian Somalis are not exception to this (Gorman, 1981). Almost 85.7% of the Society in the Somali Region is pastoralist, moving from place to place by following the rain and pastures and this precludes frequent interaction among the numerous clans of Somalis. On the other hand, the nature of their way of living itself demands more cooporation among the members of the family and the clan at large. Such circumstances have incited Somalis to develop their own mechanism of dispute resolution. There is no single Somali clan who does not have its own dispute resolution institution. In most of the cases every clan has additional mechanisms of dispute resolution, which the clan uses in its relation with other clans. The jurisdiction of the former type is limited to the cases arising between two disputants of the same clan, while the latter governs when there is dispute between two persons of different clans. These types of CDR are eligible to all members, even though women and the members of the outcaste groups are allowed to take part only through representation. The governing rules are what the Somalis call Xeer which is equivalent to the English term of treaty or contract.

  • 172 Interview with an elderly Somali.

10The origin of the word Xeer itself has a philosophical significance. The story goes as follows: Somalis are known to construct a house of their own architecture. This house contains many items and all the items are surrounded and tied together by a long rope called Xeer. Similarly, treaties or contracts hold together different members with conflicting interests; hence, the name Xeer for the Somali law or treaty.172 The lawyers in the traditional system are called Xeerbeegti, which is the combination of two words, namely, Xeer and beegti that has two meanings. The first is ‘measuring’ and the second is ‘guiding’, so xeerbeegti could mean treaty measuring or treaty guiding. The xeerbegti are the legislators and the judges as well in the Somali traditional system.

  • 173 The process of election follows normal ‘democratic’ procedures. For example, the ugas strictly sees (...)

11Xeerbeegti are members elected by their respective clans and families. Their election is based on their capacity to present convincing arguments, honesty, their knowledge of the values and traditions of the society, neutrality and their personal experience in responding to the difficulties they face. In electing xeerbeegtis the male members of the concerned families come together, where every participant is eligible to present his idea by giving reasons and at the end of the discussion the chair-person, probably the ugas of that clan or sub clan, will present and announce those who will be the future xeerbeegti by citing the opinion of the majority.173 The xeerbeegti are not required to be formally trained about the Xeer. They just learn experientially from what they have seen or heard from others throughout their lives. Women and out-caste groups can neither vote nor be eligible for election.

  • 174 In earlier times, there was abwaan. Abwaan is a person with an extra-ordinary capacity of solving p (...)

12The Xeerbeegti have a jurisdiction over any kind of dispute arising in their area. There is no distinction between criminal and civil cases. Legally speaking, therefore, there is no limit to their material jurisdiction. In most of the cases there may be more than one Xeerbeegti. In such cases, there will be hierarchical levels. For instance, a sub-clan may have their own Xeerbeegti and higher than this several sub-clans forming one clan do have one common Xeerbeegti. If a person is dissatisfied with the decision of the sub-clan ‘Xeerbeegti’, he can appeal to the clan Xeerbeegti.174

13Normally, the Xeerbeegtis perform their jobs under a specified tree in the rural areas. In the urban areas they select a house when a case arises. Any party can submit his case freely to any Xeerbeegti, then that Xeerbeegti will inform his colleagues about the case. The other party to the dispute will be called by the Xeerbeegtis themselves and announce a time for hearing. In the process of hearing, anyone can come and listen the hearing except women. At the beginning of the hearing, the plaintiff will present his claim in the presence of the defendant and then the defendant will counter present his argument. Both of the parties are free to select representatives or if the Xeerbeegti found that one of them is incapable in presenting precise argument, they tell him to be represented by a person of his choice.

The Dispute Resolution Process and its Outcomes

14As indicated earlier, Somalis are divided into many clans and numerous sub clans. Each sub-clan may have its own Xeerbeegti who enacts rules and applies them as well. These types of rules are called Xeerguri (which literally means ‘local treaty’). Xeerguri applies only to the disputes among the members of the same sub clan. In addition to that a clan having several sub-clans forms their own xeer. Such Xeer is enacted and applied by members from different Xeerbeeqti of the sub-clans.

15It is not possible to discuss exhaustively all the Xeer of even a single sub-clan within the scope of this study. But, it is illustrative to give an account of the Xeerdarood – the Xeer of the largest of the Somali clan lineages. In the Somali Regional State, they occupy seven out of the nine zones. Among the Darood is the Ogaden, which occupies six zones out of the seven. So, Xeerdarood is the Xeer used by all the Daarood members.

The Xeerdarood

16Somalis believe that society cannot live together without predetermined treaties or rules. Here, it is worth mentioning the Somali slogan in enacting the Xeer governing sub-clan which is Tol Xeerleh which means agnates bound, by treaty (Lewis 1999). Having in mind its importance, the xeerbeegti embark on enacting the rules which will govern the future disputes.

17The rules in Xeerdarood mainly focus on the disputes arising from damage to the person and homicide. And the penalties they apply are mostly fine in the form of compensation. The most commensurate compensation to be paid is in the heads of cattle. The Xeerdarood rules also provide for penalties applicable in cases of theft, robbery and other crimes. Cases relating to family and personal matters and evidentiary disputes are handled on the basis of the Shari’a law.

18With respect to the amount of compensation, there is slight variation from clan to clan or among the sub-clans. For instance, one sub-clan may enact rules governing homicide, that provides for 100 camels plus one machine gun as compensation, while the other sub-clan may reduce the amount of the camel to 40 camels like that of the Cawlyahan sub-clan which is a member of the Ogaden clan.

19A new body of Xeer may be initiated and enacted in a situation where families from different sub-clans with different Xeerguris may come together and reside at the same locality. In such a case, immediately elders would be selected from all the families and they say ‘rag aan xeer loo hayn xero la isuguma geeyo’, which means that men are not brought together without the Xeer. As a result, they discuss, agree and enact the Xeer that would govern their future disputes.

20In terms of time, a significant historic moment for the making and consolidation of Xeerdarood was the 1940s when the Ogaden region was under the British administration. At the time, the British administration convened the elders of the Darood grand clan and informed them to come up with Xeer to govern their future conducts. Those elders were from the xeerbeegti of different clans of Darood, which included Ogaden, Majerteen, Mareexan, Abayonnis and Dhulbahante. The place of the meeting was Warder Town in Ogaden Region. After a long discussion, the elders enacted a Xeer called Xeerdarood. Consequently, the British administration has accepted that Xeer to govern the Somalis, and accorded it a legal recognition.

21In addition to that the British selected some persons from different xeerbeegti of each clan and sub-clan and assigned them to be the judges in every town. Those judges were from the traditional xeerbegti, on whom the society had put their trust even before the British rule, consequently their role was respected, their decisions have moral force and they used to solve all types of disputes.

22But the British administration also took further measures in relation to the Xeerbeegti which replaced it with what was known as gadhcas. The gadhcas were supported by the British and their decisions were enforced by British forces, which in turn reduced the importance of tribal soldiers that were used to enforcing the decisions of the Xeerbeegti. This situation remained the same under the central Ethiopian administration of Emperor Haile Sellassie I. The gadhcass was dissolved under the Derg Regime. Because of this interference into the dispute settlement means of the people of the Region, a modified version of dispute resolution mechanism emerged which is known as Odayaal, which literally means elders. The Odayaal has similarity with the Xeerbeegti. The one way in which it differs from Xeebeegti is that it is not a composition of predetermined persons.

The Odayaal

23In this system, when disputes arise, the Odayaal of the clan around the area are selected to solve the dispute, provided that the dispute is between two parties of the same clan. If it is between two parties with different clans or sub-clans, the Odayaal of both sides will be called for resolving the dispute.

24When the dispute is across clans or sub-clans, the plaintiff usually convinces the Odayaal of his clan or sub clan or family to invite the Odayaal of the other side to resolve the dispute. Then, Odayaal of both sides will see the case with the existing Xeer and decide accordingly. If there is no existing Xeer on the issue at hand, the dispute will be resolved through negotiation and compromise. Consequently, that decision will became a Xeer governing the future dispute between the respective families, sub-clans or clans. The settlement would normally be in payment of some cattle. It is usually said that ‘halkii xoolo maraan ayuu xeer maraa’ which roughly means that it is where the cattle go that the Xeer also goes.

The Dispute Settlement Process of the Odayaal

25The Odayaal do not have a specific place for hearing and resolving disputes, nor are they specific persons. It is only when disputes arise that the Odayaal and the place of adjudication are selected. The process of dispute settlement usually starts by the plaintiff informing the Odayaal of his family or clan about the problem. Then, these Odayaal invite the Odayaal of the other side to come for resolving the dispute. Moreover, they prepare the place for adjudication and inform the other side’s Odayaal about the same.

26When the Odayaal of both sides come together, both of the disputants will be called to appear before the Odayaal and would be heard. The plaintiff would be given the opportunity to speak first and the other side will be allowed to respond. If the two arguments are in conflict, every one would be told to prove his case. The most common forms of evidences used are oaths and witnesses. The plaintiff is required to bring two witnesses. These witnesses would be subjected to cross-examination and impeachment by the respondent. Impeachment is usually based on the grounds of nin safeed (friendship with the enemy); nin sooreed (corruption or taking of bribe); Lugjiid (being a bother in law of the disputant,); naasjiid (being a relative from the maternal line); and oodjild (being a neigbour of the party). If the witness is impeached convincingly on the basis of these reasons the plaintiff will be told to present some other witnesses.

27If the plaintiff doesn’t have witnesses, the respondent will be required to take an oath denying the case, and the case would be decided in his favor. This process is identical to that of the Shari’a law. As indicated earlier, the traditional dispute settlement system of the Somali follows the Shari’a law in assessing evidences or in procedural matters when they are resolving disputes.

28The odayaal do not get any fixed remuneration for their services. However, the plaintiff usually pays the cost incurred by the Odayaal while the adjudication is under way. This cost is normally for chat and some other consumables such as soft drinks. At the end, if the plaintiff wins, he will be entitled to what is known as Xumayn which means moral damage. The moral damage is additional to the exact loss incurred by the plaintiff. So, the plaintiff’s expense on the proceeding is covered through the xumayn remedy.

Mechanisms of Enforcing the Decisions of the Odayaal

29The rules of their clans bind the Somali society. Therefore, the decision handed down by the clan receives the best respect from its members. Moreover, Odayaal are representatives of the clan and their decision is considered to be the decision of the clan. Since the Odayaal are the ones giving the decision, the clan members respect their decision. Most of the society believes that deviating from the decision and the traditions of their clan results in a ‘curse’ annoying Allah. This is supported by the Somali proverb which says caada laga tagay cadho Allay keentaa which means that ‘the renunciation of traditional values leads to Allah becoming annoyed’. This attitude plays an important role in the enforcement of Odayaal’s decisions.

30Another factor that facilitates the enforcement of Odayaal’s decision is the social sanction that can be imposed on a defiant judgment-debtor. If the judgment-debtor refuses to abide by the decision, he faces criticism and segregation by others. Criticism and segregation are not easy punishments for a Somali. Because the Somalis are cooperative society, a person’s problems are solved through clan cooperation. The best illustration of this fact is that crime is a collective responsibility in the Somali society. Therefore, it a person kills another, the compensation amount could be 100 camels. But, out of these he may pay only one while the clan members will pay the remaining 99 camels. Being defiant would force one to bear all of these consequences alone. In fact, during the Xeerbeegti, there were tribal soldiers that enforce the decisions. They used to catch the deviant, tie him under a tree until the decision is enforced with additional penalty for refusing the decision. In enforcing the decision some of the tribal solders would collect the required number of cattle from the property of the deviant. During the Gadhcas, the government forces used to enforce the decision of the Gadhcas. But, nowadays, the most reliable enforcement mechanisms are social sanctions. However, in very serious cases, Odayaal request the government officials to enforce the decision and usually their request is accepted.

The Future of the Odayaal as a Dispute Resolution Mechanism

31The reserch has found out that the Odayaal is the most favoured means of dispute settlement among the Somalis, and is likely to continue to be preferred. There are several reasons for this to be true. First, as it stands now, the Somalis believe and rely on the clan institution more than the formal institutions. Secondly, they believe that justice can be rendered best through the clan system. Therefore, they prefer to take their cases to the Odayaal rather than to the court or other formal institutions. Thirdly, a Somali identifies himself through his clan and family. He believes that he is not the sole actor to decide his relation with others; rather he believes his clan or family has a say on his matters. Therefore, he will not be happy to take his case out of the clan. Fourthly, in the CDR process both of the parties in a dispute are represented by the odayaal of their clan, sub-clan or family. And the decision is made by those odayaal from the different clans, sub-clans or families of both of the parties. Fifthly, the way of holding the offender or the judgment debtor accountable in the Odayaal system pays attention to (and is derived from) the collective nature of responsibility in the Somali society. Criminal responsibility is not individual therefore the offender would not be subjected to individual punishments such as loss of liberty or fine. There is no incarceration or capital punishment as a mode of punishment in Xeer of the Somali society. The above reasons inspire both of the parties to have confidence in and to respect the outcome of the Odayaal decisions. Since the judges, prosecutors or the police are not formulated to represent different sub-clans or clans, they believe that neutrality is always at risk in the formal system.

Accountability of the Odayaal

32There is no formal mechanism of evaluating the works of the Odayaal, nor is there a system of holding it accountable to litigants. Nevertheless, disputants can accuse a member of the odayaal. He may accuse him as an impartial, which is not tolerable. This is supported by the Somali proverb which says Boqortinimo waxaa kaa qaadda gar leexsan, gidoon jilicsan iyo gacan gudhan. This means ‘your superiority is dissolved by biased judgment, deciding with hesitation and misery’. Corruption is another intolerable practice in the process. A well known Somali proverb says, nin soori kaa qaadday waa nin seefi kaa qaadday, which means’ a bribe-influenced man, is just like a man taken away by sword. When a disputant accuses a member of the odayaal, he has the burden of proof. If he cannot prove his case, he will be punished for defamation. But, if he proves that member will be removed from the adayaal and he is then subject to the criticism of the society.

Classification of cases before the Odayaal

33In the Odayaal system, cases are divided into two according to their duration. These are rafato and jilib carro. Rafato is the case that may take long time. In such a case, the facts of the case show that prolongation will not undermine justice and the proving of the facts need more time. Jilib carro is the one that can be decided in single assembly. The parties are not allowed even to call their witness outside from the place of hearing. This is applied when all the odayaal agree that to prolong the case will impair the justice and that misappropriation is likely to happen. When a case is brought before the odayaal, they have to proclaim whether it will be jilib carro and the time of hearing, otherwise it will be assumed to be rafato.

Existing Links between the CDR and the Formal System

  • 175 Sec Art. 34(5) of the 1995 Constitution of Ethiopia.

34The formal justice system recognizes the CDR as eligible for governing certain disputes. The FDRE constitution recognizes the adjudication of disputes relating to personal and family matters in accordance with the religious and customary laws.175 The formal justice system, however, does not allow the CDR adjudication in criminal cases.

35The existing practice regarding the Odayaal is that it adjudicates all kinds of cases – whether criminal or civil – regardless of the jurisdictional limits imposed by the formal justice system. There is an opinio juris both among the citizens and the elders that all types of cases are amenable to the jurisdiction of the Odayaal. Most of the times, it is seen that the official in the formal justice system are put in awkward position in the determination of jurisdictional issues.

  • 176 Interview with judges serving in Korahai, Warder, Afder Zones and on the Supreme Court of the Somal (...)

36In few cases, the Odayaal may fail to enforce the decision it has reached. In such a case they ask the police and the other executive officials to give a hand in enforcing the decision, claiming that peace and security might be out of control unless the decision is enforced. Such requests are normally met with positive responses and the executive officials help in enforcing that decision of the Odayaal. The executive officials cooperate with the Odayaal because of at least two reasons. First, the executive hold that the society rely on their Odayaal more than any other persons; so they believe that cooperating with the Odayaal will help them control the citizens. The second reason is that in the remote areas, the government army may be incapable of ensuring piece and order, and then the Odoyaal represents the government in those areas. Because of these, often the government officials, unconditionally, enforce the decisions of the Odayaal even when the latter contradict with the law. Also, the formal judicial system in the Regional State admits that it has allowed some criminal cases to be resolved by the Odayaal.176

Advantages and Disadvantages of the CDR System

37The speedy disposition of cases and its being relatively less expensive are uncontrovertibly the attractions of the customary dispute resolution system. This is also true in relation to the Odayaal and other CDR systems introduced in this Chapter. Another attraction of the system is the trust it has obtained from the populace. The individuals involved in the CDR believe that the best justice can be rendered through the CDR mechanism. The CDR is participatory. The odayaal who are the representatives of each and every family are also the judges as well as the legislators. Equally importantly, the decisions of the customary bodies such as the Odayaal are enforced by the clan or the sub-clan that is collectively responsible for the wrong done.

38When it comes to the formal justice system, the Somalis believe that it is an alien, and is a threat to their identity and values. They contend that the formal justice system is imposed on them without their consent. In the process of adjudication in the formal system, judges are not elected on the basis of equal representation, nor are they appointed in consultation with the community. So this does not accord with the sense of justice and impartiality as traditionally viewed.

39There are as well discernable downsides of the Somali CDR system. The disputes it is capable to solve are limited to the traditional disputes such as ordinary criminal and civil cases. Therefore, modern commercial disputes including use and ownership rights on land are not covered by xeer of the system. As it stands now, the CDR system cannot handle disputes born out of modern commercial interactions and civil life.

40Another disadvantage of the CDR mechanism is that it maintains discriminatory rules against women, outcaste groups and non Somali. It is discriminatory against women and disadvantaged groups in that they are not allowed to participate directly in the proceedings, nor are they allowed to serve as members of the Odayaal.

CDR System and its impact on Human Rights

41As part of the general traditions of the Somali society, some human rights are highly respected by the general public and the CDR institutions are no exception to this. Freedom of expression is one such a right. The Somalis respect freedom of expression. One Somali proverb says war baa u gaajo xun, which means ‘the worst hunger is the one for information’. Another proverb says war la helaa talo la hel which means ‘proper decision is found through proper information.’ Moreover, Somalis categorie someone who desn’t tolerate the speech of others as a coward. They say nin aan weedh sugin waran ma sugo, which means ‘he who cannot wait words, cannot also wait spear.’ All these show that they respect the free expression in a very superior manner.

42Somalis also considerably respect the freedom of thought and opinion. They realize that men always have different opinions and encourage tolerance among each other. In this respect there are so many proverbs and maxims; one of these proverbs say Nin wixii la toosan mid uun buu tuur la leeyahay, which in essence means ‘what is correct for some one is wrong in the eyes of the other’. Another saying is Waxaad ceeb mooddo ruux bay caadadii tahay, which literally means ‘what seems to you shameful is the usage of another’. These are some of the evidences that Somalis respect and encourage freedom of opinion and thought.

43One can also state that there is a sense of respect for equality in the traditional systems of the Somali. However, in reality, there are practices of discriminatory treatment in relation to women and some minority groups such as the Gabooye.

44Women in the Somali Regional State experience many forms of discrimination and prejudices. In the CDR process they undergo discrimination throughout the whole process. In the first place when xeerbeegti, gadhcas or odayaal are being selected, women are not given the chance to serve on these bodies. Nor do they vote to elect members of the above-named bodies. The elders who are only men negotiate on what types of xeer they will have, and they also serve as judges in adjudicating cases. Under these circumstances, women are excluded in the traditional legislative and judiciary systems. This is because Somali traditional values hold that women are like minors who are not capable of doing juridical acts. The Somali proverb saying that Haween waa dhallaan raad wayn which means ‘women are minors with large footprint’ supports this.

45The Somali tradition does not allow women to go to the tree under which CDR processes are carried out. In this respect, they have famous saying ganbo geed ma tagto, which in essence means ‘women should not go to the tree’. This is without exception even when women have grievances. If a woman wants her case to be seen, she can do this only through representation. Usually her father, husband, brother or her nearest relatives represent her. If the woman has information necessary for the hearing, some men will be assigned to ask her at her home or somewhere else outside the place of the hearing.

46Caste stratification is also an essential daily component of the Somali life, wherever they are. In this respect professor Asha. Samad has written:

Genealogical lines of descent are told to children form an early age. The family clan history is told and retold through out life, including its relations with other clans. Traditionally caste was directly related to occupation, residence, political and civilian opportunities, and status through out life, however, caste is important to most Somalis even in communities abroad (Samad, 2002)

47According to the caste stratification Somalis are divided into Sab and Samaale. The latter are nomadic, have a warrior ethos and are individualistic, while the Sab are cultivators, communitarian, more cooperative and perceived as less aggressive. Some tension has long existed between these two groups. The Sab are well known for their specific professions that distinguish them from other Somalis. These professions include hunting, blacksmith, shoe-making, slaughtering and so on. The Samaale, or the Ajji, as they are sometimes called, were the dominant groups they call themselves names indicating nobility such as Gob which may show superiority. On the other hand, the other group distorted names all of which are insulting. These include Midgaan which means impure or polluted and Gun, which points to inferiority. The most common names used for them are Midgaan and Gabooye. Many informants clam that the Gabooye are still in the era of slavery. However, the interviewees from dominant clans expressed the view that nowadays things are slightly changing. In reality the Gabooye do not participate as members in the Odayaal; neither can they elect members of the Odayaal. Moreover, if there is a case between two Gabooyes or between one Gabooye and another one the elders of the clan will represent each Gabooye to which he is attached. Somalis believe that a Gabooye man cannot bring a sound thinking or idea and that is why they exclude them even to manage their own business. This is deductible form the Somali proverb which says maan midgaan macaan ma keen’, which means ‘A midgaan’s mind never brings sweet things’. Unlike the women, however, Gabooye men can go the tree and listen to the hearings going there.

Conclusion

48Customary dispute resolution is the most dominant form of dispute resolution in the Somali society. In the CDR process starting from the rule making up-to the rule application, the society’s values are respected and taken into account. The rules applicable are all part of the traditions of the society.

49Though the formal and customary dispute resolution systems live apart from each other among the Somali peopl, the Odayaal system is sometimes assisted by the government forces in implementing its decisions. This enables us to conclude that CDR in Somali Regional State is to some extent sovereign. This is because the Odayaal of a clan have an absolute and final authority of their territory and that is the internal aspect of the concept of sovereignty. In contrast, the formal system lacks the internal aspect of sovereignty, due to the fact that the decisions and instructions of the Ethiopian legal system are not usually complied with or taken into account by the majority of the society. Thus it seems the unification of the two would be a strong and complete sovereign system of dispute resolution that would enjoy utmost legitimacy in the society.

List of Informants

No.

Name of the Informant

Sex

Age

Place of Interviews

Dates interviews

Position

1

Abdulahi Me’alin

M

63

Addis Ababa

18/02/04

Traditional leader

2

Mohammed Abdi Mohammed

M

28

Jigiga

20/02/04

President of Afder High court

3

Ah Mohammed

M

61

Jigjiga

20/02/04

Outcaste

4

Maryma Hassan

F

60

Jigjiga

20/02/04

Outcaste

5

Fatuma Said

F

45

Jigjiga

20/02/04

Expert

6

Ikran Yusuf

F

25

Jigjiga

20/02/04

Legal Expert in Women Affairs Bureau

7

Hikmo Sheik Omer

F

34

Jigjiga

20/02/04

Women affairs Bureau Team Leader

8

Mohamed Ibrahim

M

Jigjiga

20/02/04

Police commissioner

9

Ah Hussen

M

40

Jigjiga

21-02-2004

Outcaste

10

Mohamud Ahmed-Nur

M

48

Jigjiga

22-02-2004

Pubhc Prosecutor

11

Abaullahi Badal Muhumed

M

33

Jigjiga

23-02-2004

Traditionalist

12

Haji Usman Shek Mohamed

M

51

Jigjiga

23-02-2004

Religious Leader

13

Mohamed Mohamud Ibrahin

M

65

Jigjiga

23-02-2004

Elder

14

Dahir Elmi

M

44

Jigjiga

24-02-2004

Head of Border Affairs Bureau

15

Arif Mohammed

M

38

Jigjiga

24-02-2004

Public Prosecutor

16

Ahmed Ar Abdullah

M

30

Kebridahar

09-03-2004

High court Judge

17

Ahmed Ali Dahir

M

35

Kebridahar

09-03-2004

Wereda Court President

18

Ahmed Haji Dahir

M

39

Kebridahar

09-03-2004

Shari’a. Court President

19

Hassan Dool Abdi

M

52

Kebridahar

10-03-2004

Outcaste

20

Mohamed Duh Farah

M

75

Kebridahar

10-03-2004

Outcaste

21

Mohamed Badal Farah

M

41

Kebridahar

10-03-2004

Outcaste

22

Isma’il Hassan

M

46

Kebridahgar

10-03-2004

Elder

23

Ugas Mohamed Dulane

M

52

Kebridahar

11-03-2004

Ugas of Ogden Clan

24

Mohamad Barud Deh

M

48

Kebridahar

11/03/04

Zonal Administrator

25

Mahammed Abdulahi

M

37

Kebridahar

12/03/04

Zonal Police Commissioner

26

Awil Salat Bayila

M

49

Kebridahar

12/03/04

Outcaste

27

Abudirashid Mohammedd

M

43

Kibridehar

12/03/04

Outcaste

28

Hassan Mohamad

M

39

Kibridehar

12/03/04

Outcaste

29

Ahmed-nur Sheik Kalif

M

32

Jigjiga

24/2/2004

Jig-jiga High Court Judge

30

Raho Barud Deh

F

43

Addis Ababa

16/3/2004

Korahai Zone Women Affairs Head

31

Fardawsa Geele Hussein

F

41

Addis Ababa

21/3/2004

Kebridahar Women Affairs Head

32

Faysal Cabdi Mursal

M

28

Jigjiga

22/2/2004

Outcaste

33

Cali Shah

M

31

jigjiga

21/2/2004

Outcaste

Notes

169 Interview with the Somali Regional State Police Commissioner.

170 In the case of the civil matters, the Ethiopian Civil Procedure Code of 1965 allows the withdrawal of cases by the request the parties for settlement through extra-court means.

171 In 2003/2004, the Korahai Zone police record shows a Report of 99 homicide cases, 100 armed robbery cases and 16 cases of attempted homicide. However, it was found out that only 6 of these cases were entertained by the Zonal High Court which indicates the high proportion of out-of-court settlement of cases. The figure for other zones of the Somali Region also show similar pattern of settlement of cases.

172 Interview with an elderly Somali.

173 The process of election follows normal ‘democratic’ procedures. For example, the ugas strictly sees to it that there are no repetitions of spoken ideas in order to avoid redundancy and save time. In relation to this, Somalis have a famous saying, ‘hadal baa hadhay baa loo hadlaaye anaa hadhy looma hadlo’, which means one should speak because a concept remains untold but not because he remains unspoken.

174 In earlier times, there was abwaan. Abwaan is a person with an extra-ordinary capacity of solving problems and very high intelligence. He was not electable but recognized after his abilities were seen. The abwaan used to serve as the advisor of the Xeerbeegti. When Xeerbeegti confronts with very tough cases, they used to ask him help. Nowadays, the term abwaan and his role diminished and it is replaced by the term ugaas, garaad,, sultan or beel daajiye. All these names are interchangeable. The term ugaas is the one common among the Ogaden, who constitute two-thirds of the population in Somali Region.

175 Sec Art. 34(5) of the 1995 Constitution of Ethiopia.

176 Interview with judges serving in Korahai, Warder, Afder Zones and on the Supreme Court of the Somali State.

© Centre français des études éthiopiennes, 2008

Conditions d’utilisation : http://www.openedition.org/6540