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					                                       Pastoral

                                        Justice


                A Participatory Action Research Project on
                Harmonization of Somali Legal Traditions:
                 Customary Law, Sharia and Secular Law




Puntland State of Somalia was founded in a consultation conference in March 1998,
arranged both by political parties and by traditional leaders in northeastern Somalia.
They decided to form a regional administration in a future federal Somalia. They
approved a charter for a transitional three year period, elected a parliament, appointed a
president and set up a judiciary. Although the resources were very limited the ambition
to create a viable system was there for all to see.

As a part of the Diakonia Legal and Human Rights Programme for northeastern Somalia,
Puntland, Diakonia requested the assistance of the Puntland Development Research
Centre (PDRC) to conduct interactive participatory research at the entry point:
"Harmonization of Somali Legal Traditions: Sharia, Xeer and Secular law." The main
objective of the research was to contribute to the ongoing search by the Puntland
administration for the development of a judicial system that is in conformity with the
culture, religion and tradition of Somali society, and which at the same time respects
international norms and human rights. Another aim was to initiate a dialogue for the
various stakeholders - Religious and traditional leaders, representatives of Civil Society,
the Puntland Government and the donor community.

This book is the outcome of this pilot project. It reflects the reality of life in Somalia
today, the widespread use of Customary law in the resolving of disputes, the increased
role of religion in the judicial system, and both the lack of knowledge and the history of
abuse of secular law. It also indicates the need for a dialogue to create a legal system
based on the Somalian context which at one and the same time respects the global norms
of human rights.
Contents



Foreword                                                                       7

Chapter 1: Background and Context

Cultural Roots and Traditional Legal Institutions
Of Somali Society                                                             11
Methodology                                                                   18
Research Objectives                                                           19


Chapter 2: An Introduction to Somali Customary Law

Historical Evolution of Customary Law                                         23
Salient Features of Customary Law                                             24
Functions and Roles                                                           25
Main Provisions of Xeer-Daarood                                               26


Chapter 3: An Introduction to Islamic Sharia

Historical Evolution of Sharia                                                37
Salient Features of Sharia Law                                                41
Functions and Roles of Sharia                                                 42
Main Provisions of Sharia                                                     44


Chapter 4: An Introduction to Somali Secular Law

An Overview of Somali Secular Law                                             59
Classification of Secular Law as Practiced in Somalia                         60
Major Secular Law Components Focused                                          64


Chapter 5: A Comparative Analysis of the Three Legal Systems

Specific Features, Sources and Structures                                     87
Sharia v/s Customary Law                                                      88
Secular Law v/s Customary Law and Sharia                                      93
Position of the Three Legal Systems on Gender and Human Rights               101
Impact of the Civil War on the Three Legal Systems in the Puntland Regions   106
Future Roles of the Legal Systems                                            110
Chapter 6: Harmonization of the Three Legal Systems

Harmonization Possibilities                                115
Harmonization Strategies                                   119
Implementation Strategies                                  120
Actor Roles                                                120
Challenges to Harmonization                                122
Recommendations on Harmonization                           123


Appendix

Appendix I: References                                     125
Appendix II: Glossary                                      126
Appendix III: Human Rights Treaties                        130
Appendix IV: List of Participants of Conclusion Workshop   131
Appendix V: Discussion Paper for the Concluding Workshop   133

				
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posted:8/8/2012
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