| Column |
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- [SW Column] (Faisal
Ahmed Hassan &
Frank Douglas Heath )
From Destruction to Confederation - Whither
Somaliland? Comments on a Self-Portrait:
Rebuilding from the Ruins :Posted on 23 Nov
2002
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Opinions expressed in this column
are those of the contributors and not necessarily those of SW.
From Destruction to Confederation
By Faisal
Ahmed Hassan ,
E-mail:
hassan_faisal@hotmail.com
Somalia property is situated in the Horn of Africa with
a population of some 15 million. They inhabit a territory twice the size
of France, approximately a million square kilometers, or 360,000 square
miles. Shortly after the Suez Canal opened in 1869, the Somali territory
was occupied by four colonial period-Britain, Italy, France and Ethiopia.
At the end of the colonial period, the territories then known as Italian
Somaliland and British Somaliland joined to form the Republic of Somalia.
Thirty years later, in January 1991, its government collapsed and was
dismantled, whereupon each of the 60 Somali clans reaffirmed its
sovereignty. Clan leaders assumed responsibility for maintaining law and
order. It would not be inaccurate to say that private individuals
participating in a free market for security services now assure order in
Somalia. Several questions arise. How was this market-based political
system brought about, what problems arose, what solutions exist, and what
has been achieved thus far?
The republic's central government was not abolished by
an act of the government itself or through a referendum. It just happened.
And it could happen because there was a popular consensus. This consensus
started forming 1978, when Somali central government lost its war with
neighboring Ethiopia. From the time of that defeat, the people were ready
to return to their previous form of governance. Under the former system of
government, the clans had provided such laws, judges and police as might
be needed to prevent or resolve conflicts. The opportunity to return to
clan government arose in 1991, when the people had rid themselves of their
dictator. With the government in limbo, the Somali civil and military
servants were no longer paid, and since the people in each community
regarded them as basically intruders, they fled together with the
dictator. Thereupon, the people dismantled all government property. This
was done partly in a spirit of opportunism, but partly also as a conscious
effort to prevent the re-establishment of a central government.
The transition to a different political system was not
easy. As happened in the Soviet Union, bandits, the scrap merchants of
Mogadishu took advantage of the temporary lack of authority to commit
crimes with impunity. Some former generals and colonels lined up with
former politicians and soldiers in an effort to establish central
governments on a town-by-town basis. They imposed taxes, and some even
established quasi-diplomatic relations with foreign governments and
terrorist organizations.
Meanwhile, the clans themselves were faced with
numerous problems. In the urban areas, where most modern business is
conducted, statutes had replaced customary law. Consequently, the
traditional law of the land had not continued developing to meet the
requirements of a global economy. The clans moreover, which prior to
independence had served mainly to protect the customary law, had now
become somewhat transformed into political pressure groups. Many Somalis
who had opted out of the customary law system during the heyday of the
Republic were unwilling to submit themselves again to the traditional
ways. In many places politicians had confiscated land from the clans, and
the clans were now repossessing those lands. Foreign reporters as well as
Somali intellectuals filled the newspapers with horror stories to support
their view that without a central government the nation was doomed, and
these stories discouraged people from investing their time, knowledge,
money and skills in the Somali economy. As if this were not enough, Muslim
fundamentalist wanting to replace the clan system with a theocracy waged
occasional small wars to remove perceived obstacles from that path.
Many people thought the Somali government had only
broken down and could be repaired. The United Nations, for one, acted on
precisely that assumption. It provided food aid, helped repair
infrastructure, organized political meetings, trained prospective civil
servants, wrote a constitution and sent in an expeditionary force 39,000
soldiers. Several billions of US dollars were spent. But no new government
was formed. Other International organizations also tried, and failed. Even
purely Somali Initiatives failed. The Grand Bocame conference of 1993, the
Grand Borama Conference of 1993 and the Grand Garowe Conference of 1998
each created central governments for a part of the Somali territory, but
these mini-governments failed to receive recognition from foreign
governments and were largely boycotted and ignored by the local
population.
The Rationale for Confederation
The Digil and Mirif clans in the (Southwest) of Somalia established a type
of government that was similar to that of the Republic of Somalia in 1960
and also of the Republic of Somaliland in 1993 (Northwest), Ismaamulka
Dhulbahante in 1993 (North central) and Puntland (Northeast). All these
four local governments experienced a lot of difficulties. A recent report
written by 400 Somalis describes these difficulties, which appear to be
common to every modern Somali government: a haphazard growth of government
offices, bloated staff, multiple layers of taxation, surcharges, scanty
public services, widespread nepotism, and corruption. The politicians tell
us that they can remedy this situation only if they get more power and
more money. But Frank D. Heath, in a lengthy article entitled "Whither
Somaliland? The Rationale for Confederation" suggests that not these
governments are at fault, but the democratic system on which they base
their power.
Democracy is an authoritarian system. Its politicians dispose of awesome
powers over the population. They amass these powers by first establishing
a standing police force and army and then turning them into a monopoly.
Thereafter they monopolize the law-making process and the courts of
justice. Invariably, they restrict property rights and freedom of
contract. As a result, the people are hampered in their efforts to obtain
knowledge and they are made to suffer innumerable misuses of power. In
such a society, conflict prevails. If the economy of a democratic nation
is robust, the productive people will find enough ways to dodge the
politicians and their servants and continue producing wealth, albeit at a
slower pace. In a poor country, on the contrary, the economy is fragile. A
few misguided government policies are enough to obstruct all economic
activity. In such a country, democracy is a sure way to even more poverty.
It will achieve little else beyond mutual hate among the people, chaos and
the tyranny of the politicians.
In a clan-based society, on the contrary, the people
are free to make their own decisions provided they respect the customary
law, particularly property rights and freedom of contract. The policing,
judicial, and law-making powers of the clans are dispersed among the
population. This arrangement takes good care of the people's need for
knowledge and it neutralizes their propensity to pursue their
self-interest and misuse legal force. As a result, the people are free to
produce. In short, the clan system is in principle perfectly geared to
foster peace and prosperity.
When democracy is introduced in a clan-based society, the most numerous
clans are bound to win the popular elections and to seize and misuse all
the powers of government. The other clans will then form a coalition to
dethrone the majority clan by force. If they are successful, they can
exercise their newly acquired powers only by establishing a dictatorship
themselves. This shows that democracy is not a viable system when a
population consists of several close-knit ethnic groups such as clans.
Some politicians understand this fundamental weakness of democracy and
propose to dilute democracy and to mix it with the clan system. One might
as well try to mix fire and water because democracy is all monopoly and
the clans are all competition. They are each other's opposites. Whoever
proposes to establish a mix of democracy and clan in Somalia will achieve
nothing but a complete destruction of that society.
The Republic of Somaliland (Northwest), just like Ismaamulka Dhulbahante,
Puntland, Southwest and the Republic of Somalia, failed for two major
reasons. One is that one cannot mix two incompatible systems, a command
society and a free society. The other is that the politicians of these two
governments had neither the skills for establishing a free society nor the
intention to do. They levied taxes wherever they could and wasted their
revenue on salaries for their civil and military servants. They scared off
local and foreign investors. They also sought to obtain financial aid from
the United Nations and promised in return to refrain from uniting the
entire Somali nation. The government that was created a year ago in Arta
is suffering from these same defects.
The proper foreign policy of any Somali government
should be to pursue a Somali confederation of sovereign clans, taking
Switzerland and the United Arab Emirates as a model. This confederation
should be based on customary law, not on democratic law.
The Somali nation has always been based on customary law and there is no
reason to change that. The Somali customary laws are basically sound and
can easily be adapted to the requirements of the present population and
the global economy. By letting these laws develop, the Somalis would soon
see that independent insurance companies establish themselves in their
nation. These companies would relieve the clans of most of their heavy
insurance burden. That would take away most of the disadvantages that are
presently associated with the clan system.
Many politicians think that the clans are just clusters
of families. In reality, a clan is a complex political, legal, economic
and social system that has rendered highly valuable services to the
Somalis during the past millennium. The clans' customary laws generally
respect property rights, without which no wealth can be created. The
politicians, in their quest for money and power, seek to abolish the
customary laws and institutions. They say that the Somali nation will
prosper only by introducing democracy. They ignore that a nation that is
divorced from its own political and legal culture cannot prosper. Also,
the politicians ignore that Europe and North America became prosperous not
because of democracy, but despite democracy.
The Somalis can attract the foreign skills and investment they need for
jump-starting their economy by establishing freeports. These are large
industrial parks adjacent to seaports and airports that cater in
particular to foreign investors. They are excellent environments for
stimulating co-operation between foreign and local business people. Such
freeports will not be viable, however, in a democratic context. African
democracies do not respect property rights. All foreign investors know
that.
There is only one way in which the Somali can achieve
peace and prosperity and spark off a movement towards establishing a
nation-wide government. That is by disregarding the various Somali states
and republics and aiming for a confederation of sovereign clans. That is
not a policy that will appeal to politicians who favor democracy. Indeed,
only the traditional leaders of the Somalis, the sultans and the other
elders, have the skills and the authority to lead the Somali nation to a
better future. If the participants of the meeting at Garowe, Bocame and
Borama realize this, they will see an opportunity for leadership. By
establishing a confederation of Horn of Africa clans, they may well set in
motion similar movements among the other part of Africa. And ultimately
that may enable them to bring about a confederation of Somali clan
confederations and Horn of Africa. In the Somali culture, a leader is not
someone who exercises force, but someone who sets the right example.
Faisal Ahmed Hassan.
E-mail:
hassan_faisal@hotmail.com
Comments
on a Self-Portrait:
Rebuilding from the Ruins
by Frank Douglas Heath
heathfdn@sierra.net
A recent publication of the Somaliland Centre for Peace
and Development,
A Self-Portrait of Somaliland: Rebuilding from the Ruins,*
describes what happens when a profoundly tribal society tries to introduce
democracy. It describes the mixed, hybrid type of government that was
created for Somaliland and shows that it functions badly. Haphazard growth
of offices, bloated staff, multiple layers of taxation, surcharges, scanty
public services, widespread nepotism, and corruption are all identified in
Self-Portrait.
Is it possible to remedy these malfunctions by giving
the politicians more money and more power? That approach risks aggravating
the present situation. Antagonism between politicians and traditional
leaders would surely intensify. In these comments, therefore, we shall
first analyze and evaluate each of the two political systems that went
into the making of Somaliland's hybrid government. That analysis will tell
us whether it is at all possible to mix democracy into the clan system. If
it is not, then attempts to remedy the abysmal performance of the present
hybrid government through reform will be futile. An alternative will be
essential. We shall examine such an alternative.
Two Political Systems
A Deputy Speaker of Somaliland's parliament told the
authors of Self-Portrait, "We need to come up with a system that
accommodates one man one vote, but allows every community (beel) to
be represented. So far, no one has come up with such a formula."
The Speaker was alluding to two different ways of
collective decision-making, one using majority rule and the other
consensus. Majority rule is typical in a democracy, whereas consensus is
most commonly found in a kritarchy. Democracy, the type of centralized
government favored in Europe and America, was invented by the Greeks some
twenty-six centuries ago. As is true of all centralized government, its
laws are contrived by politicians. Kritarchy, a term composed of the Greek
words kriteis (judge) and arch (principle), is much older than
centralized government. Its laws are derived from the customary conduct of
the population. Customary law generally reflects the laws of social
conduct inherent in human nature. One can therefore say that democracy is
based on political law whereas kritarchy is based on natural law.
Somalis are familiar with both systems. Before being
colonized, the Somalis based their society on respect for their customary
law. The traditional political system of the Somalis is a near-kritarchy.
In 1960, however, the colonial powers pushed Somalis to adopt democracy.
That system created such a chaotic situation that few were unhappy when,
nine years later, a dictator stepped in to clean things up. Eventually,
however, the Somalis became disillusioned with dictatorship as well. In
1991 they dismantled their European-style government altogether and went
back to their traditional political system based on respect for the
customary law.
While democracy and kritarchy each has its supporters,
most Somalis prefer their customary laws and institutions, which they call
xeer. In their experience, the xeer constitutes the heart of
the Somali nation. They believe that without the xeer the Somali
nation would fall apart, lose its identity, forgo its solidarity, forfeit
its civilization, relinquish its culture. The xeer is the cord
holding the house of the Somali people together. Indeed, it is thanks to
their customary law that the traditional political system of the Somalis
took the form of a kritarchy, not a democracy.
A few Somalis, for the most part politicians, dislike
the xeer. They prefer democracy. They do so for different reasons.
For some it is merely nostalgia for the "good old days" when they had
democracy. Conveniently, they have forgotten the mess that democracy
created during the 1960-1969 period. Certain of them claim the United
Nations will not recognize their republic unless it becomes a democracy.
That view is mistaken. The UN recognizes the United Arab Emirates and the
Sultanates of Oman and Brunei, none of which is a democracy. Still other
Somali politicians favor democracy because they want to share in the
financial aid that rich democracies seem to 'give' to poor ones. They
refuse to see that most such aid is a means of establishing and
maintaining control. Some of the more prominent politicians favor
democracy because it offers them an opportunity to rule over their own
clansmen, or over other clans. Lastly, various foreign governments,
international government agencies, and some opportunistic business
enterprises are urging Somalis to opt for the democratic system because
they expect to make its operators subservient to their own objectives.
Kritarchy
Kritarchy is utterly different than democracy. Under
kritarchy, there are no politicians to establish rules and limit other
people's freedoms. Anyone who respects the natural rights of others is
free to govern himself. He is free to pursue his own objectives with his
own means. Kritarchy is the political system that respects customary law,
particularly the right of private property and freedom of contract. It
embraces the rule of law including the principles by which judges first
establish the facts of the disputes brought before them and then resolve
those disputes.
One basic feature of kritarchy is that the judicial,
police and law-generating powers are dispersed among the population. Any
person is free to establish a court of justice or a police force. The
activities of judges and policemen are coordinated by the competitive
market process rather than by a supreme court and police minister. The
laws of a kritarchy are not contrived, but are discovered by judges in the
course of resolving conflicts that come before them.
A society cannot exist without principles and rules to
handle the problems of knowledge, self-interest and abuse of power. That
kritarchy offers the best arrangements for coping with these three eternal
problems is well shown by Professor Randy E. Barnett in his book The
Structure of Liberty, Justice and the Rule of Law (Oxford: Clarendon Press
1998). Barnett argues that only when individuals are secure in their
property and free to make contracts can they make the best use of their
resources. For then they have available to them not only what they alone
know or what is common knowledge, much of which is dispersed in society
and comes in the form of prices, but also knowledge they can obtain
contractually from neighbors, experts and others in the community.
Kritarchy also minimizes partiality in the courts and abuses of power by
leaving everyone free to contract with the court of justice and police
force of his choice. Therefore, the more nearly a society resembles a
kritarchy, the better its people are able to pursue happiness, peace and
prosperity.
Democracy
Democracy belongs to the European tradition of
government, a tradition that, because of its authoritarian nature, is
altogether alien to traditional Somali culture. Democracy became popular
in Europe because it promised to be less authoritarian than the prevailing
monarchies of the time. It promised to dilute the awesome power of a
centralized government by having several teams of politicians periodically
compete for possession of it. The problem is that, however the contest
turns out, democracy still leaves the population divided into two groups,
those who command and those who must obey. By contrast, few of the
traditional political systems of Africa were authoritarian to begin with.
Democratic governments dispose of truly awesome powers
over the population. While these powers are supposed to be used to defend
every person's right to life, liberty and property, the truth of the
matter is that they are regularly used to restrict those very rights.
Politicians do this with impunity by first establishing a monopoly over
the country's policing powers. That monopoly enables them to control the
legislative process and the courts of justice. With such control, the
politicians can phrase their commands as 'laws' -- rules that have
judicial approval and appear to be popularly mandated. With the backing of
these 'laws,' politicians can curtail almost any right or freedom they
wish. Indeed, democratic 'law' sets the stage for what sometimes is called
the "tyranny of the majority" but really is the "tyranny of the
politicians."
As a rule, the citizens in a democracy offer little
resistance to such tyranny. Usually they hope that the next team of
politicians will correct the mistakes made by the present team. But
democracy's device for replacing bad politicians with good ones is rarely
effective. It is often rendered ineffective by the development of a
two-party system with rival political programs that are more or less
alike. In this way, the two teams simply take turns in plundering the
nation. Other well-known ways of defeating popular choice include
tinkering with the registration of voters, limiting the casting of votes,
improper counting procedures, and campaign finance rules that benefit
incumbents to the detriment of challengers. A myriad of measures develops
to perpetuate the illusion that democracy represents the will of the
people, hiding the fact that powerful interests really control the
political process.
It might be supposed that democratic elections would
work tolerably well in a society where political parties dealt with
fundamental issues and offered real choices. However, these two conditions
are rarely fulfilled since most voters ignore political programs, focusing
on the personality of the candidates. As a result, politicians enjoy a
wide freedom of action without any concern that the voting population will
recall them.
Incompatibility of Democracy with a Clan System
In one situation in particular, popular elections will
always be ineffective. That is where the population is made up of various
close-knit ethnic groups such as clans, tribes or tight racial, linguistic
or religious communities. In that situation, regardless of issues or even
of personalities, voters cast their ballot for the party to which all
people of their given ethnicity 'belong. Accordingly the most numerous
ethnic group will command the government. The less numerous groups will be
powerless to change government policy through the voting process. Their
only alternatives will be to join a coalition, secede, or seize power and
establish a dictatorship. For that matter, almost any action by opposition
parties will serve as a pretext for the ruling party itself to establish a
dictatorship.
Efforts to prohibit ethnic political parties have
proved futile. Citizens always find ways to express their ethnic
loyalties, and politicians always are tempted to politicize those
loyalties. There is no economically feasible way that an ethnically
neutral party can win the support of the various ethnic communities.
It is equally futile to introduce federalism, regional
autonomy, or decentralization, or to limit the number of parties. These
devices may have some value when the population is homogeneous, but they
are useless where the population is divided into close-knit ethnic groups.
All they can possibly do is postpone the inevitable moment when a
dictatorship will be established. Professors Alvin Rabushka and Kenneth
Shepsle have clearly demonstrated this in their book Politics in Plural
Societies: a Theory of Democratic Instability (Columbus, Ohio: Merrill
1972). Their analysis supports the conclusion that the adoption of
democracy in Somaliland would produce two undesirable results:
- It would divide the nation into
two groups, those who command and those who are forced to obey.
- Because the electoral device
could not work, democracy would inevitably degrade into dictatorship.
As a matter of fact, democracy has been unable even to
make a start in Somaliland because the clansmen employed by the government
see themselves neither as servants of the nation nor as assistants to its
ministers. They describe their job as kursi bu haista (I own a chair) and
maximize that chair for the benefit of their family and clan. Knowing that
government can forbid anything, they spare no effort in exploiting that
nuisance value. When someone of their own clan asks for a permit they give
it free of charge, but all others must pay dearly. This practice is known
among European nations as abuse of power and corruption. Not so among the
Somalis, where it is called hawl fudeydin (that which makes the job easy).
Somalis have found a way around this problem by
bringing their elders along. This procedure originated as follows. When
two Somalis who belong to different clans meet each other for the first
time, the situation is called hor imaad, a military term that denotes
enmity. That changes when elders accompany both parties. In that case
there is the guarantee that if an injustice is committed it can be
promptly redressed. Indeed, only when, at the first meeting, the elders
are present can a basis for cooperation be established for commerce,
marriage, the resolution of a conflict or whatever. So a Somali who seeks
a service from the government will ask the particular civil servant to
bring his elders along. A deal can then be worked out whereby the civil
servants of both clans are obliged to render equal services to each
other's members without charging a fee.
This system works across the whole line of government
activities, including the duties of policemen. Self-Portrait quotes the
mayor of Erigabo who confirms: "If someone refuses to pay tax, we can't
arrest him or her, because that might divide the police along clan lines."
A Somali policeman wishing to arrest a suspect belonging to another clan
must first seek permission of the elders of that clan. He can obtain that
permission only if his own elders accompany him. Likewise, a clansman can
only be brought before a court of justice if one of his elders is a part
of that court. Similarly, the verdict of a government court can be
enforced only if rendered in accordance with the procedural and
substantive laws of the clan of the convicted person.
"Bizarre Thing"
The name that the Somalis give to western-style
government is waxan, which means "the thing." This nuance of vocabulary
shows that there is no place in their mind for a centralized, monopolized
government. They do understand, of course, the three main functions of a
clan, to wit that it recognizes and protects their rights, that it renders
justice when an injustice has been committed, and that it provides social
security. Western-style governments in Africa claim to offer the same
three services. Judging by results, however, they fail in all three areas.
Primarily they engage in plundering the population. Therefore they stand
in ill repute. Calling such governments "a thing" is actually a very
polite term. Many Somalis say they are devices for "rendering moral what
is immoral and legal what is illegal" (xalaleinta xaramta iyo xeerdarada).
To sum up, it is irrational to suppose that democracy
could ever function in Somaliland. The chief reason is that it would
divide the population into a small group of powerful rulers and a large
group of powerless citizens. In an egalitarian society like that of the
Somalis, such a division is totally unacceptable. In Somali political
culture, power always remains with the people. If it is ever delegated to
an executive committee (fulinta gudiida), it is only for a very specific
purpose, with an explicit instruction from the collective that made the
decision, for a short time period, and with ample guarantees that the
executive will respect the customary law. These four conditions ensure
that no person will put himself above the law--that no politician will put
himself above another Somali and order him around.
Creating a Hybrid System
Given that democracy is unworkable in Somaliland and
certainly incompatible with its culture, politicians, wanting a
centralized government, promote the idea of "adapting democracy to the
local situation." But they never concede any of democracy's basic
features, namely, that it must always allow its operators to:
- monopolize the country's
policing powers.
- monopolize the country's
judicial powers.
- monopolize the country's
'law'-making powers.
- organize popular elections to
create the illusion that the people control these powers.
None of these four features is compatible with the
Somali political culture, according to which all government powers must
remain dispersed among the entire population. Dispersal implies
competition, the opposite of monopoly, and indeed, according to Somali
law, every Somali is free to perform services of government. Some people
specialize in such services. They are called odayaal (arbiters, judges).
Somali law holds that every person shall at all times be free to appoint
the judge of his choice. That guarantees competition among judges.
Competition, in turn, helps to guarantee that people get the service they
want, for the lowest possible price.
Mixing competition with monopoly is like mixing water
with fire. The mixture degenerates into a steaming mess. Ignoring this
difficulty, however, politicians propose doing just that. One class of
proposals for a mixed government stresses the importance of political
parties. But what will these parties be used for? Political parties are
only necessary when all the powers of government have been transferred to
the happy few. A population that accepts political parties implicitly
admits and accepts that:
- political power is no longer
with the people,
- protecting life, liberty and
property is the monopoly of the politicians,
- customary law is no longer
valid, and
- customary institutions are no
longer operational.
Another class of proposals for a mixed government
stresses the importance of 'the rule by law.' No word is said about what
kind of law. What the politicians have in mind is to impose laws of their
own devising and give them priority over the customary law.
Still another way the politicians propose to establish
a mixed government is by putting some of the traditional leaders in
parliament. Democratic parliaments, however, tend to legitimize whatever
the government is doing. Such parliaments would mainly serve to put the
population to sleep by putting feathers in the hats of the traditional
leaders.
Politicians who propose these various forms of mixed
government pretend that they are introducing new, even daring, political
systems. In reality, such schemes could only paralyze and destroy the
traditional system of governance. A government based on hybrid rules and
hybrid institutions would quickly fall apart into as many sub-groups as
there are ethnic communities. These sub-groups would use their political
powers arbitrarily, creating chaos in the process.
These attempts at hybrid government would also generate
conflict between the politicians, on the one hand, and the ethnic leaders
and entrepreneurs on the other. Politicians already accuse ethnic leaders
of encouraging the clans to sabotage the democracy whereas, in reality,
the clansmen simply conduct themselves as they have done since time
immemorial. They accuse entrepreneurs of corrupting government employees
whereas, in reality, the entrepreneurs are simply protecting themselves
against attempts of the government to extort money from them.
A mistake many politicians make is to think that clans
are merely families. In reality, a clan is a complex political, legal and
social system enabling Somalis to live together with a high degree of
harmony. These hybrid governments are gradually but surely destroying the
traditional structures, undermining respect for the customary laws and
institutions and belittling the many good things the communities achieved
through those institutions. Consequently, the traditional leaders despise
the proponents of Western-style government and all the more so when these
pose as saviors of the nation.
Entrepreneurs are the real creators of wealth in any
country. They voluntarily use the inventions and savings of some people to
produce goods and services for other people. They are the real civil
servants of the nation. A successful entrepreneur is someone who rightly
guesses what goods and services people will want. He risks his time and
reputation and his own and other people's money to serve his fellow human
beings. When people are free to invent, save and produce, taking risks for
which they alone are responsible, everyone prospers. Entrepreneurs see
African democracies constantly restricting that freedom. They see
politicians everywhere putting obstacles on the road to their nation's
prosperity. Consequently entrepreneurs in Africa, like the traditional
leaders, have nothing but contempt for the democratic politicians.
In short, it makes no difference whether the plan is to
introduce democracy wholly or only in part. In a clan-based society, it
will inevitably generate poverty, hate, chaos and, eventually,
dictatorship.
Republic of Somaliland
Those who met at the 1993 Grand Borama Conference chose
to create a government for Somaliland that would be a mix of the
indigenous political system and a foreign state system. They entrusted the
implementation of this project to a small group of politicians who would
work under the supervision of a committee of 25 traditional leaders. In
doing so, however, they made three big mistakes. They did not consider
whether it was even possible to mix these two political systems. They
chose politicians who had neither skills for the job nor any intention to
do as they were instructed. And lastly, they established no procedure for
correcting or removing those politicians in the event they botched their
assignment.
From its inception, this hybrid government deviated
from the course that the Conference members had set out:
Harmony: Rather than
promoting harmony and cooperation among the clans, the new government
embraced policies that engendered animosity and distrust. It gave itself
vast powers of taxation and regulation which led to jealousy and fear.
Within a year, civil war broke out. Some of the rebels felt excluded from
the newly created powers, while others feared that the new powers would
supersede those of the clans. The armed rebellion paused in 1997, but the
conflict has not really been settled. Self-Portrait rightly warns that
"throughout the country... peace remains fragile," and "perceived regional
disparities are the most widely held form of grievance, and potentially
one of the most troublesome."
Administration:
Instead of working in harmony with the clans, the new government put
itself above them and created an administration that went immediately out
of control. All Somaliland needed was a small administration to conduct
foreign policy and take care of defense. Had it limited itself to those
two tasks while working in close cooperation with clan leaders, the new
government might have done something useful. Instead, it created a vast
array of ministries employing 25,000 civil and military servants. Today
almost all of its revenue is being spent on salaries and debt service.
Despite this, salaries are minuscule and no money is left for training.
Corruption prevails, and the Somaliland shilling has inflated by more than
a thousand percent.
Development: Instead
of encouraging economic development, the new government scared off both
local and foreign investors. Provided it recognizes and protects property
rights, a poor country can become rich by attracting and cooperating with
foreign investors. The new government, however, showed no understanding
either of property rights or of investors. It displayed its ignorance
through a foolish Foreign Investment Law and inept day-to-day dealings
with both local and foreign investors. Dictatorial decrees interfere with
even the simplest currency exchange transactions.
Unity: The new
government ignored the wishes of the people to unify the Somali nation and
adopted policies leading to further splitting of the nation. By seeking
United Nations recognition, it showed its willingness to recognize the
political borders of Ethiopia, Kenya and Djibouti, something all Somalis
contest. The correct policy for preserving the independence of the Somali
clans is to establish a Confederation of Somali Peoples. Any two or three
Somali clans could start such a confederation. Establishing industrial
freeports attractive to foreign investors would then greatly stimulate the
economy of the Confederation's members. Such an economic stimulus would
motivate other Somali clans in the Horn of Africa to participate.
Support: Instead of
soliciting support for a mixed form of government, the new government set
out to abolish the indigenous structure and establish a pure democracy.
Had the politicians been interested in making the new, mixed government
work, they would have given veto powers to the supervisory committee of
traditional leaders. No such powers were given, however, and consequently
the traditionalists never had any influence on the Republic. Instead, the
new government surrounded itself with people who were ready to abolish all
of the customary laws and institutions -- people ready even to establish a
dictatorship in order to introduce democracy.
An Appropriate Political System: Confederation of
Clans
The Grand Borama Conference intended the experiment
with a hybrid government to last no longer than two years. However, it has
now been going on for eight years. Everyone appears to agree that the
experiment failed, since everyone is looking for alternatives. Three
options are presently being discussed: (1) a purely democratic,
European-style government, (2) a different form of hybrid government, and
(3) a solely clan-based government.
Self-Portrait alludes to the proper choice by quoting a
spokesman for the Warsangeli suldaan, who asked, "If clan is
indispensable, why should we not base our functional structures on it and
use it for our reconstruction and development?" He implied that these
structures should be founded on the customary law. His question calls for
an analysis of the customary law as well as of the traditional Somali
political system.
Customary Law and Politics
The Law
The Somali customary laws constitute a legal system (xeer) based on
six principles:
- The law is separate from
politics and religion.
- The law has a built-in method
for its own development.
- There is a plurality of
jurisdictions and norms.
- Those who govern must
themselves abide by the law.
- The law originates in the
reason and conscience of everyone in the community.
- Judges are specialists with
their own methods for analyzing the law.
The first of these principles, independence of law from
politics and religion, merits a brief comment. During the past four
centuries, many states have separated religion from government and
benefited as a result. On the other hand, separation of law from
government is rare. Yet in fields other than law, independence from
government has had immense success. A single example is the communications
system called the Internet. Until 1973, that system was monopolized by the
United States military. It had relatively few users. When the military
relinquished its monopoly, however, parallel systems arose in the private
sector. These developed rapidly, alongside university and governmental
networks, until no one owned the system. As with language, everyone was
free to use and enhance it. Soon, the Internet started growing at an
exponential rate. No one can be denied access to it, and everyone is free
to offer improvements. Open market systems facilitate the spontaneous
development of order without hierarchy or dictatorial authority.
Likewise, the Somali legal system is without any owner.
No one controls it, and everybody has access to it. No politician can
control the xeer and subordinate it to his or her interests. The
xeer constantly develops and improves, despite the fact that nobody in
particular is in charge of its improvement. Whoever comes up with an
innovation that suits the diverse interests of the community will find his
innovation accepted and put to use.
The xeer has a fairly complete set of
institutions for adjudicating and enforcing the law. It also contains
rules of procedure that guarantee a fair trial. Insurance obligations make
it certain that victims of an injustice will be compensated. As for
substantive law, the xeer recognizes in principle every person's
right to life, liberty and property. It is true that there are some
short-comings in the present Somali law, but the same can be said of every
other legal system in the world. By leaving the xeer free to
develop, these shortcomings may be remedied in time. The xeer
contains procedures for this purpose. The Somali legal system has
therefore all the makings for becoming one of the finest legal systems of
the world. All it needs to achieve this status is exposure to the daily
hustle-bustle of the market place of ideas, goods and services in the
context of the world economy.
Politics
The political system of the Somalis consists of a large number of
clan-based assemblies (shir). These meet whenever a political problem
arises. Examples are drought, the search for new grazing lands, the need
for a new school, the wish to prevent a conflict with another clan, and
the election of a ceremonial chief (ugas). Decisions of these political
assemblies must be compatible with the customary law. To ensure
compatibility, the Somalis require that every member of the assembly agree
with the proposed decision. This requirement is known as "consensus."
Politicians are not allowed to make laws, not even tax
laws--since taxation would be considered a violation of property rights.
So public services can only be supplied by private enterprise. This
principle is based on great wisdom. One only has to look at other African
nations to realize this. Their governments have vast powers to levy taxes.
They use these powers arbitrarily and make no serious effort to provide
public services in return. They use their powers primarily to plunder the
nation. As a result, life in most parts of Africa is "nasty, brutish and
short."
For all of these reasons we must conclude that the
political and legal system best suited to the Somali nation is its own
traditional system based on the customary law. This system on the whole
protects the life, liberty and property of the people. It is well
established and respected. Its main problem is not that it has weaknesses,
but that the promoters of centralized government have constantly
interfered with it.
Opponents of the Clan System
Many Somali politicians oppose the clan system.
Self-Portrait voices this sentiment by stating that "kinship politics
provide fertile soil for patronage, corruption, nepotism and clientelism,
while stifling the emergence of issue-based politics, meritocracy and
professionalism." However, it is not the clan system that produces all
these calamities, but the democracy that politicians are trying to put in
its place. Democracy puts awesome powers into the hands of a few clansmen,
turning the clans into monsters that try to devour each other. This would
not happen if the clans were left alone. Within their traditional
political system, the clans are perfectly capable of maintaining law and
order (xeer) so that there can be peace and prosperity (nabad iyo
ano).
Had the politicians had the interests of the Somali
nation at heart, they would not have tried, with a stroke of the pen, to
abolish the political and cultural system that took a millennium to shape.
Neither would they have tried to mix the traditional governing approach
with a foreign system. Instead, they would have sought to improve the
traditional structure by strengthening the procedures already in place for
this purpose.
The irony of the politicians' effort to displace
traditional government with democracy is that that very effort has
resulted in a tightening of clan loyalties. Somalis look at democracy as
the enemy of freedom and equality. Clan law offers an excellent defense
against attacks on these fundamental values. Somalis therefore will do
everything to strengthen their clan system when confronted with democratic
features like political parties, tax laws, and the regulation of peaceful
conduct.
Blinded by their desire for power, the politicians do
not see that if the clan system is left alone, its least desirable aspects
will soon disappear. Such happy modification of the clan system cannot
occur, however, while it is being condemned and reviled, but only when it
is accepted and embraced. One result of embracing the clan system will be
that the business environment will become conducive to the growth of
independent insurance companies. The important services that clans now
provide in insuring against liability and calamity will devolve upon these
independent companies. Much litigation and many of the present protections
against disaster will thus be brought under the economic process of the
free market, with attendant innovations and cost reduction. As a result,
individuals will depend less on their clan for support. Loyalty to clan
and culture will become independent of each person's pursuit of
prosperity, allowing real improvements in the clan system to take place.
A standard politician's criticism of the traditional
system is that it is incapable of modern administration. In plain
language, the politicians insist that public services such as schools,
hospitals, and roads cannot be provided by the traditional Somali
political system. That criticism dissolves under the splendid light of the
market economy. Because the free market process allocates resources better
than any government mechanism, the private sector can provide better
schools, better health care, and more useful roads. There are no community
services that are not best rendered by private enterprise.
At least three factors account for the superiority of
the private sector. First, governments lack the information needed to
render effective service. The necessary information is dispersed among the
population, who are best able to pursue their interests through the free
market process of price seeking, quality seeking, and choice seeking
behaviors.
Second, governments waste enormous wealth by funding
services through taxation. For every shilling that is collected in taxes,
five to seven shillings are destroyed, wasted, or prevented from being
created (see James Gwartney and Robert Lawson, Economic Freedom of the
World, 1997 Annual Report, Fraser Institute, Vancouver, Canada).
Third, in the process of rendering public services,
governments demand certain behaviors while forbidding others. Such orders
are hard to tolerate. They are made even less tolerable by their poor
results. Most people respect the rights of others and regret the
government ordering them about. A common result of this is that people
cooperate in tricking the government and evading its orders. Tax avoidance
and evasion, black markets for exchanges forbidden by government, and open
flaunting of both mandatory and prohibited behavior creates an environment
that is not conducive to the effective rendering of public services.
For every so-called public service that can be
imagined, instances can be found somewhere in the world of it being
supplied by private enterprise, to the great satisfaction of its users.
Critics of private enterprise usually shrug this off because they have so
many other grudges. They maintain, for instance, that the market has
weaknesses that must be corrected by government. They say nothing about
the weaknesses of government, which is much more fraught with defects than
the market. Critics of private enterprise also maintain that democratic
governments are needed to defend the poor against the rich. However, this
hypothesis has never been substantiated. Democracy tends to benefit those
who are politically organized at the expense of those who are less well
organized. Indeed, democracy offers some the opportunity to be parasites
on all others. The lucky ones in the democratic wheel of fortune are those
who pay the right price to the right politicians. Under democracy, those
with the least ability to pay suffer most.
When politicians field all these arguments against the
clan system, it is not really the clans but the customary law they want to
destroy, for they correctly perceive customary law as an obstacle on their
road to consolidating power over their countrymen. Under democratic law,
they can set themselves apart with concepts of sovereign immunity,
executive privilege, and constitutional authority, distorting the very
system they extol. Customary law, on the other hand, holds political
leaders accountable to the same laws as everyone else, with even higher
penalties for misconduct. Indeed, the compensation they are required to
pay for a misdeed is more than others would have to pay. The leader who
steals must pay his victim not only compensation for what was stolen, but
an additional amount because he flaunted the very rules he was supposed to
uphold.
Precedents for Confederation
The traditional way that African tribes and clans form
a nation is by confederating. This practice is not limited to Africa.
Examples of successful confederations include the United Arab Emirates and
the confederated cantons of Switzerland. Even countries that have become
mired in the difficulties and contradictions of democracy often owe much
of their success to features of confederation that were embedded in their
initial configuration. The United States was originally organized under a
set of articles of confederation that included many of the principles that
work so well in the Emirates and Switzerland. Where these principles
survive, people prosper.
The concept of confederation acknowledges that
populations that are ethnically, culturally, or linguistically diverse
cannot be expected to thrive under a single, central government. In the
Swiss canton system, the principle of one man, one vote is replaced by one
man, many votes. Every Swiss person expresses his political authority in a
local community, in a canton or region, and in the nation as a whole. An
enormous diversity of political approaches are used in the dozens of
cantons and half-cantons, and even more diversity is available in the
hundreds of different communities. This diversity doesn't promote chaos,
but instead promotes best solutions. Essential to making it work is the
freedom of movement that allows people to quit communities and cantons
with ineffective policies and move to neighboring towns and regions that
are organized more to their liking.
Switzerland is enormously prosperous despite its small
population, few mineral resources, and extremely rugged terrain. The
history of its system of cooperating cantons with extremely limited
central authority arose not in recent years, but in the first glimmerings
of the Renaissance around 1290 AD. The unsophisticated and much more
tribal Swiss of that era recognized the opportunity for competing cantons
to cooperate in mutual defense.
Even though the different cantons of Switzerland have
different languages, different religious traditions, and vastly different
cultures, they are nonetheless able to cooperate successfully. They do so
by vesting power in the individual, in the community, in the region, and
in the nation, in that order. The individual militia members are armed
against both tyranny within the country and potential enemies outside. The
communities are organized according to principles that work locally and
therefore may differ enormously from town to town. The various communities
decide how the limited powers of the confederate government will be used.
In short, the Swiss have severely limited the powers of their government.
A similar set of ideas underpins the United Arab
Emirates. Each emirate has local authority over matters of economics and
law. The emirates cooperate for foreign policy and defense. By limiting
central authority to minimal functions, enormous efficiencies are
obtained. These real world examples show that the principles of
decentralized authority work not only in theory, but also in practice.
Implementation
Somaliland basically has three options. It can pursue
dictatorship, democracy, or kritarchy. If it wishes to prosper, however,
it must stop experimenting with hybrid political systems and choose a
political system that suits the Somali way of life.
A decision in favor of kritarchy would imply abandoning
the present provisional constitution as well as plans for establishing
political parties. A good way of dismantling the present hybrid government
would be to let each clan take care of the government's rights,
obligations and belongings that it finds on its territory. In this way, no
sudden changes occur and continuity of useful operations is assured.
In the mind of Somalis, independence does not mean that
each clan will live on a political island. The clans have long observed a
set of rules that enable them to deal with one another in a civilized
manner, just as most of the hundreds of nations in the world respect
certain rules of international law when dealing one with another. An
essential rule of the Somali political system is that every person has an
inalienable right to move freely throughout the Somali-speaking realm.
This rule, which had such a beneficial effect on the Swiss nation, lets
the individual person vote with his feet, moving his family to places with
different policies and opportunities.
Eventually, an assembly of elders (shir) should be
formed to establish a Confederation of Somali Peoples. Such a
confederation should explicitly honor the sovereignty of each
participating clan and pledge respect for its customary laws. Most of
Somaliland's clans will surely agree to become its initial members.
Gradually others will join, including those located in Kenya, Ethiopia and
Djibouti. These clans will become interested as soon as Somaliland's
economy starts to develop. Many foreign and local investors have already
expressed interest in establishing business ventures in Somaliland. They
do not want to begin, however, while there remains a hybrid government.
They are waiting for the moment when the customary law once again will
rule supreme.
The founding charter of a Somali confederation should
avoid the term "territory." The Confederation should be a political
organization without a territory, somewhat like the United Nations. In
that way, the central governments of Kenya, Ethiopia and Djibouti will not
perceive the Confederation as a threat to the integrity of their
territories. The Confederation need not worry about negotiating free
movement across the borders of these countries. Even the most powerful
central government cannot prevent migrating economic actors from crossing
its borders. Business people are usually very skilled, and in any event
more motivated than the politicians, to promote the free movement of
ideas, people, and merchandise. They will be much more effective than
politicians in removing obstacles to free trade in the cross-border
economy.
Foreign governments and their international agencies
should leave the Somalis alone. By trying to establish a consolidated
federal state among the Somalis they promote the continuing impoverishment
of the Somali people. It took two thousand years for more than three dozen
European nations to form a union, which even today is the subject of mass
protests and demonstrations. It would be folly indeed for European
politicians to insist on the consolidation of five dozen Somali clans
within one decade. They have no moral authority whatever to teach the
Somalis how to live, in view of the history of total warfare, mass
exterminations, and brutality in Europe in the twentieth century alone.
Even were we to concede that the European approach to political union
works in Europe, it would stretch credulity to suppose that it could be
applied overnight in an altogether different cultural setting.
Conclusion
The authors of Self-Portrait have made it abundantly
clear that Somalis are deeply attached to their traditional form of
government. In addition, they show beyond any doubt that the hybrid
government formed in 1993 has gone totally out of control. They did not
endeavor to find the causes for these two phenomena, but left that task to
their readers. The present memorandum has endeavored to seek and find
those causes.
We have found that the people of Somaliland value their
traditional political, legal and social system not because it is based on
kinship, but because its rules are based on custom rather than on
political whim. The strength of Somali law derives from two features in
particular. One is that it recognizes every person's right to life,
liberty, and property. The other is that it offers politicians no
opportunity to influence the law. It is worth noting that it was under
this legal system that the Somali nation became one of the most numerous
in Africa.
Kinship will always remain a vital factor in the life
of individuals. However, its prominence in social, legal, and political
structures will diminish over time, as more effective approaches become
available. The day will come when Somalis will entrust most of their legal
affairs to independent insurance companies. As a result, their dependence
on clans to insure against liability and calamity will diminish. On the
other hand, their high regard for their customary laws and institutions is
bound to grow without limit. Already today, Somalis consider their
customary law system to be vital to the cohesion, prosperity and well
being of their society.
As for Somaliland's hybrid government, we found that it
failed because the Grand Borama Conference attempted to mix two
contrasting systems, a command society and a free society. As a practical
matter, consolidated power cannot be stopped halfway. When a politician is
given one finger, he takes the whole hand. He is like a camel in a
sandstorm. If the camel puts his nose in your tent and finds the wind is
not blowing in there, the rest of him will follow.
The difficulties arising from this hybrid system were
not foreseen, and no blame should attach to its failure. As problems
became apparent, people tried to reverse course, but with limited success.
Learning from the mistakes of the past is the source of wisdom.
The decision to create a hybrid system was fully in
keeping with all the other government-building experiments the Somali
nation has had to suffer through since the end of World War II. What all
of these experiments had in common was that they all ignored the rules of
social conduct inherent in human nature, the principles known collectively
as "the customary law." The consequence of that fatal oversight was that
the politicians destroyed their nation. The lesson to be learned from this
is that for any nation-building effort in Somaliland to be effective, it
must not attempt to create a central government. It must strengthen the
customary law system so that natural rights are more respected and the
rule of law becomes fully operational.
Self-Portrait correctly observes that whatever wealth
was created during the past eight years was created by private enterprise.
It indicates that much more wealth would have been created had the
government followed more sensible policies. If Somaliland is to move
forward into freedom and prosperity, it must put a stop to all efforts to
establish a democratic government, which can only further disrupt property
rights and frustrate entrepreneurial incentive. The people of Somaliland
must give their full support to the traditional system that is already in
place and that has evolved over the centuries. In this system, control
vests primarily in the individual, secondarily in his jilib (sub-clan),
thirdly in his clan, and finally in the cluster of clans now called
Somaliland. This cluster of clans could now take the form of a limited
confederation whose only activity would be to conduct foreign policy and
coordinate military defense. In such a system, each individual speaks for
himself, defends himself and his family, and exercises authority over his
own interests. Each clan speaks for itself and exercises authority over
its interests. Each village or town attends to the common needs of the
clans residing there. Each region attends only to the common needs of its
clans, towns or villages.
Only in this way will the people of Somaliland be able
to come into full technological, scientific, economic, and cultural
participation in the world. They need only follow their own traditions and
allow those traditions room to grow. Peace, prosperity and stability will
follow from a decentralized approach as morning follows the dawn.
When Somaliland has revitalized its traditional
structure, it will begin to develop. Its customary laws and institutions
will become more prominent, its economy will start growing, and the
political relations among its clans will become more structured. By
achieving these objectives for themselves, the people of Somaliland will
set the stage for peace and prosperity throughout the entire Somali
nation.
[Column]