Statute, Shari’ah & Xeer

The pre-colonial order: Xeer

Xeer is the oldest layer, and it developed without a state. It is believed to pre-date Islam and is polycentric: different oral contracts govern relations between any two clans, though common principles run across all Somali communities regarding blood compensation, marriage and property. Elders known as xeerbeegti sit as mediator-judges, drawing on precedent and consensus reached in clan assemblies (shir).

Liability is collective. A man’s diya-paying group, his mag, is a body of men linked by lineage and contract who answer together for his obligations. Diya itself is standardised compensation, historically valued in livestock, and the scale remains a recognised reference in settlements today.

The system’s guiding principle is restorative rather than punitive: a wrong is repaired between groups and social cohesion restored, which is why Xeer has remained effective at resolving disputes where court enforcement is unavailable.

Islam and Shari’ah

Islam arrived on the Somali coast from the 7th century, carried by Arab and Persian traders, and it integrated with the clan order rather than displacing it. Somalis are overwhelmingly Sunni, above 99% by most estimates, and follow the Shafi’i school of jurisprudence, historically transmitted through the Qadiriyya, Ahmadiyya and Salihiyya Sufi orders. Shari’ah courts headed by qadis operated along the coast, handling family, inheritance and commercial matters; Islamic law was applied at state scale under the medieval Ajuran Sultanate.

Somalia was therefore already legally plural centuries before colonialism: Xeer governed relations between clans, and Shari’ah governed faith, family and much of the life of the coastal towns.

The colonial era: common law north, civil law south

Britain declared a protectorate over the north (1884–86) and ruled indirectly, importing the Indian Penal Code and other Indian enactments, among them the 1872 Contract Act and the Indian Companies Act 1913, extended to the protectorate in 1947. This instilled a common-law tradition in the north. Italy took the south (from 1889) and applied its civil and penal codes, at first mainly to foreign nationals: Law No. 161 of 5 April 1908 recognised Somalis as subject to customary law and Shari’ah, and Royal Decree No. 937 of 8 June 1911 established separate Shari’ah courts for family and inheritance. A Muslim plaintiff in the south could choose between a secular judge and a qadi.

In both territories, most disputes in the interior were still decided by qadis and elders, not the colonial courts. That division of labour survived the colonial period.

Independence and unification

The two territories merged at independence in 1960, which required fusing the common-law north with the civil-law south. The new state adopted the Italian civil-law tradition as dominant for substantive law and retained the Indian model for criminal procedure. The key codes followed within thirteen years:

The Barre era: the state against custom and faith

After the 1969 coup, Siad Barre’s regime adopted “scientific socialism,” nationalised industry, suspended the 1961 constitution and set the state against both older legal orders. The 1973 Civil Code abolished clan and lineage rights over land, water and grazing, and restricted, then prohibited, diya. The 1975 Family Law (Xeerka Qoyska) granted women equal inheritance rights, contradicting classical Shari’ah inheritance rules, which allocate a daughter half a son’s share. A one-party socialist constitution followed in 1979.

State collapse

With Barre’s fall in January 1991, the formal court system ceased to function. Xeer and Shari’ah courts filled the vacuum. Clan elders and diya groups enabled commerce and safe passage in the absence of a state. Local Shari’ah courts appeared in north Mogadishu in 1994 and coalesced into the Islamic Courts Union, which took the capital in June 2006 and restored a period of order before Ethiopian forces ousted it that December; its hardline youth wing became al-Shabaab.

Rebuilding: 2000 to 2012

The state was rebuilt through a series of internationally backed conferences. The Arta process in Djibouti (April to August 2000) produced a Transitional National Government under the “4.5” clan power-sharing formula, with Abdiqasim Salad Hassan as interim president. The Transitional Federal Government followed under the 2004 Transitional Federal Charter, and the Transitional Federal Parliament elected Abdullahi Yusuf Ahmed president on 10 October 2004. The transition ended when an 825-member National Constituent Assembly adopted the Provisional Constitution on 1 August 2012 and the Federal Parliament was inaugurated on 20 August: the first permanent central government since 1991.

The 2024 amendments

On 30 March 2024 both houses approved amendments to the constitution’s first four chapters: 212 of 275 members of the House of the People and 42 of 54 senators voted in favour, and President Hassan Sheikh Mohamud signed the next day. The amendments introduce, on paper, universal suffrage and direct election of the president, and strengthen presidential powers. Puntland rejected them on 31 March and declared it would operate independently of the federal government pending a referendum; around seventy MPs argued the process was creating a new constitution rather than amending one. The constitutional review is ongoing and contested.

The formal court design (a Constitutional Court, federal courts and state courts, with a nine-member Judicial Service Commission for appointments) is likewise still partly aspirational: the Constitutional Court is not fully constituted, a pre-1991 Supreme Court structure operates in Mogadishu, and military courts try civilians; Human Rights Watch documented in 2014 that the military court had tried hundreds of people beyond its legal mandate. Somaliland, meanwhile, has run its own constitution and courts since the 1990s, and Puntland its own within the federation.