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Gender and Land Rights Database

Somalia

Customary norms, religious beliefs and social practices that influence gender-differentiated land rights

- Under Xeer, the customary law, a woman is not an independent legal person; she is always under the jurisdiction of others. Before marriage, she is the responsibility of her father. If the father of an unmarried woman dies, another relative, usually the paternal uncle, may substitute for the father until she is married. Once married, she falls under the jurisdiction of her husband (14).



- Traditionally, Somali women live in a well-organized patriarchal society, where the relations among individuals are based on kinship or the clan, which decides the position of every individual within the group. Kinship is traced through the father and as a result, men occupy a higher position than women in the social hierarchy. In such a society, a woman’s role is chiefly seen in relation to child bearing, child rearing and household tasks. Women’s responsibilities are largely predefined, especially in nomadic and agricultural settings. The decision making rests with the male head, who serves as the arbiter in disputes and the custodian of family properties. Women were also excluded from political authority and economic autonomy and the ideology of kinship acknowledged their rights and duties only as mediated by men (22).



- In the Lower Shebelle region, although women represented about 20 percent of all household heads, they were least likely to register their lands due to cultural factors that restricted their participation in public programmes. The tendency was for women to register their land in the names of brothers and sons (13).



- Female Genital Mutilation (FMG), the practice of partial or total removal of the external genitalia, is widely practised in the country and affects 95–98 percent of females, primarily between the ages of 4 and 11. The practice is carried out to ensure virginity and thus protect the family’s honour. Cultural discrimination is exercised toward women who are not circumcised (23).



- Xeer is the set of rules and obligations developed among traditional elders to mediate peaceful relations between competitive clans and subclans. Although there are certain differences, the most significant principles of xeer, many of which affect women, are common across all clans. These include the following:
i. collective payment of diya, blood compensation, usually paid with camels and other livestock, for death, physical harm, theft, rape, and defamation and to provide assistance to relatives;
ii. maintaining interclan harmony by sparing the lives of socially-respected groups, birimageydo, including the elderly, the religious, women, children, poets and guests, entering into negotiations with “peace emissaries” in good faith and treating women fairly without abuse;
iii. family obligations, including payment of dowry, inheritance of a widow by a dead husband’s brother, dumaal, a widower’s rights to marry a deceased wife’s sister xigsiisan, and the penalties for eloping;
iv. resource-utilization rules regarding the use of water, pasture, and other natural resources; provision of financial support to newlyweds and married female relatives; and the temporary or permanent donation of livestock and other assets to the poor (14).



- If a woman commits a crime, the clan of her husband or father must pay compensation on her behalf; if she is wronged, the clan of her husband or father receives compensation, xaal (14).



- If a woman has been killed, the clan of the killer usually pays half of the blood price, mag or diya, which is paid if the victim is a man (14).

Traditional authorities and customary institutions

- Religious orders have played a significant role in the country. Members of Sufi orders are commonly called “dervishes”. Dervishes wandered from place to place, teaching and begging. Dervishes have been important as founders of agricultural religious communities called jamaat. A few of these were home to celibate men only, but usually the jamaat were inhabited by families (12).

 

- The wadaddo constituted the oldest stratum of literate people in the country and were associated with religious devotion, study or leadership. They functioned as basic teachers and local notaries and as judges and authorities in religious law among nomad communities. Some belonged to a religious brotherhood, or to a lineage with a strong religious tradition. In the latter case, they were not necessarily trained, but were entitled to lead prayers and to perform ritual sacrifices at weddings, on special holidays and during festivals held at the tombs of saints (12).

 

- In Puntland, the elders, issimo, play a very active political role in addition to their traditional roles as representatives of their clan groups and as the primary mediators in interclan and intragovernmental conflicts. They do not generally play a direct role in government but are involved in politics behind the scenes, except when they are required to publicly step in to ensure stability and find a resolution to a political crisis.
As traditional leaders, they solve up to 90 percent of conflicts and disputes between clans and adjudicate the full range of diya liabilities – the blood compensation paid by one group to another. They resolve most cases before they reach government. If the traditional leaders make a decision, then that is what the government implements; the government reports both to the parliament and to the elders. The issimo can mobilize people to follow what the government wants but can also suggest alternatives through dialogue and consensus discussions (14).

 

- In Somaliland, the institutions of the central government are linked with the traditional structures of the aqil, the elders.
In the present system, there is a chief aqil, who is charge of from five to ten aqil and functions as an intermediary between the aqil and the regional governor. The aqil are primarily the functionaries of the mag-paying groups and are registered at the Ministry of Interior.

Below the aqil are the village headmen, who cover settlements within a radius of about 5 kilometres. The aqil work at the district level, with the elected district council and local mayor. They perform vital roles, especially in relation to security and law and order, where they handle at least 80 percent of all cases. They also are the main interlocutors between rural communities and the district, regional and government authorities, especially in cases of conflict, drought and other environmental disasters (14).

Inheritance/succession de facto practices

- Under sharia, women can only inherit 50 percent of what their brothers can inherit from the family (20).



- Membership in clan families, primary lineages and clans are traced through males from the same ancestral line (12).



- In the southern part of the country, contrary to Islamic practice, when a man dies, his widow and daughters have no rights to his land, which is inherited by his sons. If the sons are too young to inherit, then the land usually passes to the deceased husband’s brothers or sons by earlier marriages. The widow is able to work the land on their behalf as long as she does not remarry (14).



-  In pastoral communities, women get a cash payment or smaller livestock instead of camels, as a reduced share of their inheritance (14).

Discrepancies/gaps between statutory and customary laws

- Due to the prolonged absence of governance and civil war, the statutory norms, when they are in place, are often bypassed by customary rules and traditions.



- Although the Family Law states that females and males have equal rights of inheritance, both sharia law and customary practices often prevent women from getting equal shares or any shares at all (20).



- Although women have statutory rights to own and acquire land, traditionally women tend to register land in the names of their husbands or, if they are the head of the household, in the names of their sons or brothers (13).

Sources: numbers in brackets (*) refer to sources displayed in the Bibliography