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6. Customary Dispute Resolution 8. Customary Dispute Resolution

Institutions in Oromia Region: The in the SNNPRS: The Case of
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GRASS-ROOTS JUSTICE IN ETHIOPIA  | Alula Pankhurst,  Getachew Assefa Regional Case Studies

7. Customary Dispute Resolution in the READ

Somali State of Ethiopia: An Overview

Mohammed Mealin Seid and Zewdie Jotte

p. 185-199 OPEN ACCESS

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Profile of the Region

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OK 1 Somali 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
TABLE OF CONTENTS
Longitude (Investment Office, 1992:21). It shares the largest boundary
CITE SHARE (over 2500 km) with the Republic of Somalia in the East and South East. It PDF FILE OF THE BOOK
also is bounded by Oromia in the West; Afar Regional State; the Dijibouti
CITED BY 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).

2 Topographically, over 80 percent of the total area is lowland plain that

CHAPTER IN PDF FORMAT
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, FREEMIUM

shortage of food and water for both animals and human beings are major Recommend to your
problems leading to conflict. library for acquisition

3 The Somali regional state was not fully covered during the 1994 population
and housing census. However, the CSA indicated that there are 3,439 860 BUY
[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
ePUB / PDF
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.

4 The 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).

5 Trade 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

6 In 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.

7 Empirical data from police and courts show that the society in the Somali 169. Interview with the
Regional State prefer to solve their disputes through CDR mechanisms. Somali Regional State Police
Commissioner.
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.

8 The data for this chapter was collected from the Korahai Zone, which is the 170. In the case of the civil
nucleus of the Region. The 2one has a total population of around 242,276. matters, the Ethiopian Civil
Procedure Code of 1965
The number of cases that is solved by the formal justice system in the Zone
allows the withdrawal (...)
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 171. In 2003/2004, the
also withdrawn by the request of the parties to be solved by the CDR Korahai Zone police record
system in place. 170 This happened mostly because the disputants with shows a Report of 99
homicide cases, 100 armed
their respective odayaal demand influentially that the matter is better
robbery (...)
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
9 Somalis 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.

10 The origin of the word Xeer itself has a philosophical significance. The 172. Interview with an
story goes as follows: Somalis are known to construct a house of their own elderly Somali.

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.

11 Xeerbeegti are members elected by their respective clans and families. 173. The process of election
Their election is based on their capacity to present convincing arguments, follows normal ‘democratic’
procedures. For example, the
honesty, their knowledge of the values and traditions of the society,
ugas strictly sees (...)
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.

12 The Xeerbeegti have a jurisdiction over any kind of dispute arising in their 174. In earlier times, there
area. There is no distinction between criminal and civil cases. Legally was abwaan. Abwaan is a
person with an extra-ordinary
speaking, therefore, there is no limit to their material jurisdiction. In most
capacity of solving p (...)
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

13 Normally, 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
14 As 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.

15 It 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
16 Somalis 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.

17 The 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.

18 With 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.

19 A 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.

20 In 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.

21 In 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.

22 But 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
23 In 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.

24 When 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

25 The 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.

26 When 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.

27 If 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.

28 The 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

29 The 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.

30 Another 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
31 The 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

32 There 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

33 In 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
34 The formal justice system recognizes the CDR as eligible for governing 175. Sec Art. 34(5) of the
certain disputes. The FDRE constitution recognizes the adjudication of 1995 Constitution of Ethiopia.

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.

35 The 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.

36 In few cases, the Odayaal may fail to enforce the decision it has reached. In 176. Interview with judges
such a case they ask the police and the other executive officials to give a serving in Korahai, Warder,
Afder Zones and on the
hand in enforcing the decision, claiming that peace and security might be
Supreme Court of the Somal
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
37 The 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.

38 When 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.

39 There 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.

40 Another 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
41 As 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.

42 Somalis 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.

43 One 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.

44 Women 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.

45 The 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.

46 Caste 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)

47 According 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
48 Customary 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.

49 Though 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 Se Ag Place of Dates
Position
. Informant x e Interviews interviews

1 Abdulahi Me’alin M 63 Addis Ababa 18/02/04 Traditional leader

Mohammed Abdi President of Afder High

2 M 28 Jigiga 20/02/04
Mohammed 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

Legal Expert in Women

6 Ikran Yusuf F 25 Jigjiga 20/02/04
Affairs Bureau

Women affairs Bureau

7 Hikmo Sheik Omer F 34 Jigjiga 20/02/04
Team Leader

8 Mohamed Ibrahim M Jigjiga 20/02/04 Police commissioner

21-02-
9 Ah Hussen M 40 Jigjiga Outcaste
2004

Mohamud Ahmed- 22-02-

10 M 48 Jigjiga Pubhc Prosecutor
Nur 2004

Abaullahi Badal 23-02-

11 M 33 Jigjiga Traditionalist
Muhumed 2004

Haji Usman Shek 23-02-

12 M 51 Jigjiga Religious Leader
Mohamed 2004

Mohamed Mohamud 23-02-

13 M 65 Jigjiga Elder
Ibrahin 2004

24-02- Head of Border Affairs

14 Dahir Elmi M 44 Jigjiga
2004 Bureau

24-02-
15 Arif Mohammed M 38 Jigjiga Public Prosecutor
2004

09-03-
16 Ahmed Ar Abdullah M 30 Kebridahar High court Judge
2004

09-03-
17 Ahmed Ali Dahir M 35 Kebridahar Wereda Court President
2004

09-03-
18 Ahmed Haji Dahir M 39 Kebridahar Shari’a. Court President
2004

10-03-
19 Hassan Dool Abdi M 52 Kebridahar Outcaste
2004

10-03-
20 Mohamed Duh Farah M 75 Kebridahar Outcaste
2004

Mohamed Badal 10-03-

21 M 41 Kebridahar Outcaste
Farah 2004

10-03-
22 Isma’il Hassan M 46 Kebridahgar Elder
2004

Ugas Mohamed 11-03-

23 M 52 Kebridahar Ugas of Ogden Clan
Dulane 2004

24 Mohamad Barud Deh M 48 Kebridahar 11/03/04 Zonal Administrator

Zonal Police
25 Mahammed Abdulahi M 37 Kebridahar 12/03/04
Commissioner

26 Awil Salat Bayila M 49 Kebridahar 12/03/04 Outcaste

Abudirashid
27 M 43 Kibridehar 12/03/04 Outcaste
Mohammedd

28 Hassan Mohamad M 39 Kibridehar 12/03/04 Outcaste

Ahmed-nur Sheik
29 M 32 Jigjiga 24/2/2004 Jig-jiga High Court Judge
Kalif

Korahai Zone Women

30 Raho Barud Deh F 43 Addis Ababa 16/3/2004
Affairs Head

Fardawsa Geele Kebridahar Women Affairs

31 F 41 Addis Ababa 21/3/2004
Hussein 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.

AUTHOR(S)

Mohammed Mealin Seid

Zewdie Jotte

© Centre français des études éthiopiennes, 2008

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