Two peoples living thousands of miles apart, one in the horn of Africa, the other in south-central Asia, employ similar systems of justice and conflict resolution.
The Pashtuns (also known as Pathans) live in eastern and southern Afghanistan; and in Pakistan, mostly in the old North West Frontier Province, now Khyber-Pakhtunkwa, the Federally Administered Tribal Areas, and northern Balochistan.
The Somalis are found in Somalia, a country which has been without a national government since 1991; the de facto state of Somaliland; Djibouti; and parts of Ethiopia and Kenya.
Until the colonial era, both peoples lived in stateless societies without courts of law. They both have very complex clan and tribal loyalties, and these sub-units have historically engaged in feuds among themselves, which were settled, if at all, by traditional methods of adjudication.
The 43 million Pashtuns are divided into four confederacies: the Batani, Gharghasht, Karlani and Sarabans, which in turn consist of hundreds of tribes and sub-tribes. The 16 million Somalis comprise six major clans: the Darood, Dir, Digil, Hawiye, Isaaq and Rahanwayne. These are also subdivided into a host of sub-clans and lineage groups.
Perhaps this is the reason neither people, despite a very strong consciousness of common ethnic, cultural and religious identity (virtually all are Sunni Muslims), has ever generated a modern state-building form of nationalism.
Pashtunwali is the non-written ethical code of the Pashtuns. It dates back to pre-Islamic times and is widely practiced among Pashtuns. They have relied on it to conduct themselves as individuals and as a society in their dealings between themselves and with others. The pashtunwali serves as a set of guidelines for regulating the otherwise anarchic Pashtun society.
One of its principles is badal, a concept which requires a Pashtun to seek justice or take revenge against the wrongdoer. There is no time limit to when the injustice can be avenged. If badal is not exercised, the offended man or his family will be considered stripped of honour. The exercise of this principle can lead to generations of bloodshed, feuds, and hundreds of lives lost for one insult.
However, once the desire for an honorable peace is clear, the tribal elders gather in a jirga, which is obeyed without question by the Pashtuns. It is an assembly of tribal elders, who take decisions on issues based on consensus. In tribal regions, the jirga is still used as a court for criminal offences.
Somali clans are bound to each other by a social contract known as xeer. Under xeer, there is no authority that dictates what the law should be. It is instead formulated by elders as they determine the best way to resolve a dispute. Disputing parties bring their concerns to them, and the proceedings continue until a resolution is achieved.
Law, and consequently crime, is defined in terms of property rights. Because such rights, if violated, require compensation, rather than punishment, there is no imprisonment, and fines are rare. Such fines as might be imposed seldom exceed the amount of compensation and are paid directly to the victim.
Through xeer, Somalis are committed to paying restitution in the event that physical harm or death is inflicted by a member of one group against a member of another. If a member of one group murders someone, it is the responsibility of the murderer’s group to collectively pay restitution to the group of the victim. If payments are not made or accepted, then vengeance will be taken against any member of the offender’s group.
Xeer can give relationships regularity and reduce violence by creating structures of deterrence. Though enforced by custom and not written law, it is widely followed among Somalis.
The unrecognized state of Somaliland is founded on clan-based power sharing and balanced political representation and it headed off incipient violence soon after its declaration of independence through a shir beeleed (clan conference). The country has incorporated traditional institutions into its government by appointing clan leaders to the 82-member Guurtiida (House of Elders), the upper chamber of parliament. If a clan elder dies or retires, the seat is passed down to one of his descendants. Over the past two decades, clan elders have negotiated inter-clan disputes and kept the peace.
As Muslims, Pashtuns and Somalis may also avail themselves of the Islamic code of justice, the Sharia; however, in most cases not involving religion, pashtunwali and xeer take precedence in the traditions of these two ethnic groups.
But this also helps explain the attraction of Islamists – al-Shabaab among the Somalis and the Taliban in the Pashtun areas. For brutal as they are, their religious fervour enables the Islamists to bring feuding clans together through their harsh and rigid implementation of the Sharia, which supersedes pashtunwali and xeer, and thus, in a way, brings a modicum of peace and safety to these fractious societies. It accustoms them to a form of government that transcends tribe and clan.
Henry Srebrnik is a professor of political science at the University of Prince Edward Island.