Whither Somaliland? Comments on the Self-Portrait

Whither Somaliland? Comments on the Self-Portrait
by Frank Douglas Heath heathfdn@sierra.net

The Self-Portrait* describes what happens when a profoundly tribal society tries to introduce democracy. The government that was created for Somaliland is described as a mix, a hybrid. 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 the 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 Deputy Speaker alludes to two different ways of collective decision-making, one using majority rule and the other consensus. Majority rule is typical of a democracy, whereas consensus is often used 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
in all centralized government, its laws are contrived by politicians.

Kritarchy, a term composed of the Greek words kriteis (judge) and archè (principle), is much older than centralized government. Its laws are derived from the customary conduct of the population. Customary law generally approximates 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, which is quite close to natural 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 also lost faith in dictatorship. 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 laws 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 are democracies. 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 most prominent politicians favor democracy because it offers them an opportunity to rule over their own clansmen, or over other clans.

Lastly, there are various foreign governments, international government agencies. and some
opportunistic business enterprises. These urge Somalis to opt for the democratic system because they expect to make its operators subservient to their own objectives.

Kritarchy

Kritarchy is utterly different from 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, 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 with its principles by which judges establish the facts of the disputes brought before them and resolve these 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 market mechanism instead of by a supreme court and a police minister. The laws of a kritarchy 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 power. That kritarchy has 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 can use 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 closer a society resembles a kritarchy, the better its people are able to pursue happiness, peace and prosperity for themselves and their fellow human beings.

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.

It promised to dilute the awesome power of a centralized government by having several teams of politicians periodically compete with each other for possession of it. The bad thing is that, however the contest turns out, the population is still divided into two groups, those who command and those who must obey.

By contrast, most of the traditional political systems of Africa were never authoritarian to begin with. Democratic governments dispose of truly awesome powers over the population. These powers are meant to defend every person's right to life, liberty and property. However, they are regularly used to restrict those same rights.

The politicians can do this with impunity because they first establish a monopoly over the country's policing powers. A monopoly over the police enables them to control the legislative process and the courts of justice. With such control, the politicians can couch their commands in the form of 'laws' -- rules that have judicial approval and appear to be popularly mandated.

With the backing of these 'laws' the politicians can violate almost any rights and freedoms. Indeed, democratic 'law' sets the stage for what sometimes is called the "tyranny of the majority" but really is the "tyranny of the politicians."

The citizens of a democracy tend to offer little resistance to this tyranny. They usually hope that the next team of politicians will correct the mistakes made by the present team. However, 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 obstructing popular elections 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.

Democratic elections might work tolerably well in a society where political parties are based on political programs dealing with fundamental issues and offering real choices, and where people vote for programs and not for personalities. However, these conditions are rarely fulfilled, especially the last one. Most voters tend to ignore political programs and focus on
the personality of the candidates. As a result, the politicians can freely act over a broad field without any concern that they will be recalled by the voting population.

Incompatibility of Democracy with a Clan System There is one situation in particular where popular elections will always be ineffective. That is where the population is made up of a variety of close-knit ethnic groups such as clans, tribes or tight racial, linguistic or religious communities. In that situation, a voter always casts his ballot for the same political party, the party to which all people of his given ethnicity 'belong.'

Consequently the most numerous ethnic group will command the government. The less numerous groups being powerless to change government policy through the voting process, the only alternatives available to them are to join a coalition, secede, or seize the power and establish a dictatorship.

Actually, almost any action by opposition parties will provide the ruling party with a pretext for establishing a dictatorship. Efforts to prohibit ethnic political parties have proved futile. Citizens
always find ways to express their ethnic loyalties, and politicians are always tempted to politicize those loyalties. Under such circumstances there is no economically feasible way that an ethnically neutral party can attract the attention of the various ethnic communities.

Similarly, it has proved useless 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 when 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 leads to the preliminary 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. It would rapidly degrade into a dictatorship because the electoral device is unworkable.

Actually, 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 their 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 everybody else has to 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, however, 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 only be enforced 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 a 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. Somalis say they are devices for "rendering moral what is immoral and legal what is
illegal" (xalaleynta xaaramta iyo xeer darada).

To sum up, it is irrational to suppose that democracy could ever function in Somaliland. Any attempt to impose it would divide the population in 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 would be totally unacceptable. In their 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 period of time, 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 person 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, the politicians promote a notion of adapting democracy to the local situation. However, they will 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 population 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. This dispersal implies competition, the opposite of monopoly.

In fact, according to Somali law, every Somali is free to perform services of government. Some people specialize in these 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. This competition in turn guarantees 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 have made various proposals to do 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, the power to protect life, liberty and property is the monopoly of 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 of 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.

Yet another way the politicians propose to establish a mixed government is by putting some of the traditional leaders in parliament. However, democratic parliaments tend only to legitimize what 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 will only paralyze and destroy the traditional system of governance.

A government based on hybrid rules and hybrid institutions will quickly fall apart into as many sub-groups as there are ethnic communities. These sub-groups will use their political powers arbitrarily, creating chaos in the process.

In addition to clashes among the clans, these attempts at hybrid government will create endless conflicts between the politicians on the one hand and the ethnic leaders and entrepreneurs on the other. Politicians will 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.

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.

Ethnic leaders are well aware that these attempts at hybrid governments are gradually but surely destroying the traditional communities. They regret the loss of respect for the customary laws and institutions, and they regret the loss of the many good things their communities achieved through those institutions. Consequently, they 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 their 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 so doing, 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 the skill for the job nor the intention to do as they were instructed. And lastly, they established no procedure for correcting or removing these
politicians in case 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 between the various
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 tune with the various 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 these two tasks while working in close cooperation with the 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.

The Somaliland shilling has inflated by more than a thousand percent. Corruption prevails. Eonomic development: Instead of encouraging economic development, the new government scared off both local and foreign investors. A poor country, provided it recognizes and protects property rights, 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 its foolish Foreign Investment Law and
in its day-to-day dealings with both local and foreign investors.

Dictatorial decrees interfere with even the simplest currency exchange transactions. Unity: The new government opposed the dream of a unified Somalia and adopted policies leading to further splitting of that nation. It was supposed to embrace independence without forsaking that dream.

Yet 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 Somalia's 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 the other Somali clans in the Horn of Africa to participate in the Confederation.

Support: Instead of encouraging a group of intellectuals and politicians who would be supportive of 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 its supervisory committee of traditional leaders. No such powers were given, however, and consequently the traditional leaders never had any influence on the Republic.

Instead, the new government formed a group of intellectuals and politicians ready to abolish all of the customary laws and institutions--a group ready even to promote a dictatorship in order to introduce democracy.

An Appropriate political system: Confederation of Clans The Grand Borama Conference intended the experiment with this 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.

This inquiry requires an analysis of this law as well as of the traditional Somali political system.

Part II to follow.