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The Evolution of Blood-Money for Homicide in Somalia

Published online by Cambridge University Press:  28 July 2009

Paolo Contini
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Extract

For sociologists and lawyers Somalia presents a fascinating observation ground.

Most of this long and narrow strip of land straddling the Horn of Africa is a dry savannah punctuated by graceful acacias spreading out their thorny leaves like giant umbrellas. Most of the inhabitants are nomadic herdsmen whose principal measure of wealth is the camel and whose main occupation and preoccupation is combating the ever-recurrent droughts by periodic treks in search of water and grazing.

Type
Articles
Information
Journal of African Law , Volume 15 , Issue 1 , Spring/Printemps 1971 , pp. 77 - 84
Copyright
Copyright © School of Oriental and African Studies 1971

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References

2 See Angeloni, R., Diritto Costituzionale Somalo, Giuffrè, Milano, 1964Google Scholar; Costanzo, G. A., Problemi Costituzionali della Somalia della Preparazione all' Indipendenza (1957–1960), Giuffrè, Milano, 1962Google Scholar; D'Antonio, M., La Costituzione Somala-Precedenti Storici e Documenti Costituzionali, —Presidenza del Consiglio dei Ministri, Roma, 1962Google Scholar; Florio, F., Istituzioni di Diritto Pubblico della Somalia, Giuffrè, Milano, 1963.Google Scholar

3 See Contini, P.. The Somali Republic: an Experiment in Legal Integration, Frank Cass, London, 1969Google Scholar; Muhammad, Haji N. A. Noor, The Development of the Constitution of the Somali Republic, Government of the Somali Republic, Ministry of Grace and Justice, Mogadiscio, 1969.Google Scholar

page 78 note 1 First Charter of the Revolution, October 21st, 1969, and Law No. 1 of October 21st, 1969.

page 78 note 2 E.g., E. Cerulli, Somalia, Istituto Poligrafico dello Stato, Roma, 1957, Vol. I, 209.

page 78 note 3 Yusuf Abdi v. Gulaid Samater, Subordinate Court of Civil Appeal, Civil Revision Case No. 3 of 1957. This principle is a variation from the Islamic law concept of dia, which is payable not on a collective basis but by the offender himself or by his closest relatives.

page 78 note 4 For a detailed description of Somali clans and their inter-relationships, see Lewis, I. M., A Pastoral Democracy, O.U.P., London, 1961.Google Scholar

page 78 note 5 The word herr conveys both the meaning of tribal agreements and the broader concept of customary law. This rather complex expression is defined by I. M. Lewis, op. cit., 162 as denoting a body of explicitly formulated obligations, rights and duties which “binds people of the same treaty (herr) together in relation to internal delicts and defines their collective responsibility in external relations with other groups”.

page 79 note 1 Op.cit., 161.

page 79 note 2 Op. cit.

page 80 note 1 The Indian Penal Code was applied in British Somaliland and the Italian Penal Code in Italian Somalia.

page 80 note 2 See S. Santiapichi, Il Prezzo del Sangue e l'Omicidio nel Diritto Somalo, Giuffrè, Milano, 1963.

page 80 note 3 Omar Ismail v. Askar Abdullahi, C.A. 9·52, quoted in Santiapichi, op. cit., 10.

page 80 note 4 Under the Indian Penal Code in force in British Somaliland a murderer was punished by being “hanged by the neck until he is dead” or by “transportation for life” (the latter was subsequently changed to “life imprisonment”). Other kinds of homicide were punished by imprisonment.

page 80 note 5 Usually male agnates descended from a common ancestor of the third or fourth ascending generation. This sub-division of the dia-paying group is called jiffo-paying group (Lewis, op. cit., 172).

page 81 note 1 For a critical discussion of this evolution of case-law concerning dia in Italian Somalia, see Santiapichi, op. cit. It seems also that occasionally a judge, in imposing a fine in addition to a prison term, would order that the amount of the fine should be paid partly to the State and partly to the victim's dia-paying group. Thus the public and private law elements were intertwined in the same action of the courts.

page 82 note 1 I. M. Lewis, op. cit., 170.

page 82 note 2 For a description of the road towards independence, see G. A. Costanzo, op. cit.; P. Contini, op. cit.

page 83 note 1 Constituent Assembly, Verbatim Records, 24th meeting, May 30th, 1960; see also M. D'Antonio, op. cit., 58.

page 83 note 2 Hussein Hersi and Ahmed Aden v. Yusuf Deria Ali, Civil Appeal No. 2 of 1964; Akil Gulaid Jama v. Abdullahi Ali, Supreme Court Full Bench, Civil Appeal No. 25 of 1964; Habr Awal. Abdulla Saad v. Arap Samaneh. Boho Samaneh, Civil Appeal No. 7 of 1962. See P. Contini, op. cit., 66–74.

page 83 note 3 On this point a lower court, in a prior judgment, had instead decided that dia should not be applicable in respect of crimes committed in the capital (Faduma Nur v. Dilaho Giumale, Guidice Regionale del Benadir, February 22nd, 1961).

page 84 note 1 Neither in the preparatory work on the constitution nor during the debates in the Constituent Assembly was there any indication that this provision was intended to apply also to tribal membership.