^{page 100 note 1} For a fuller description, see I. M. Lewis, A Pastoral Democracy, Oxford University Press, London, 1961; I. M. Lewis, The Modern History of Somaliland, Weidenfeld and Nicolson, London, 1965; I. M. Lewis, Peoples of the Horn of Africa, International African Institute, London, 1965; A. C. A. Wright, “The interaction of law and custom in British Somaliland and their relation with social Life”, [1943] Journal of the East African Natural History Society, 62.

^{page 100 note 2} Many Somali clans are led by Sultans, who are only nominal heads. The customary process of decision-making rests with the elders who control clan affairs. Civil Wrongs in Northern Somali

^{page 101 note 1} In 1958 there were over three hundred and sixty such dia-paying groups in the former British Somaliland Protectorate.

^{page 101 note 2} Herr has two meanings: (i) customary law; (ii) agreement. The word is used here to mean agreement.

^{page 101 note 3} Minhaj Et Talibin, A Manual of Muhammadan Law, according to the School of Shafii, Nawawi, Thacker & Co, London, 1914, 410–11.

^{page 102 note 1} Subordinate Court of Civil Appeal, Civil Appeal No. 9 of 1952.

^{page 102 note 2} Subordinate Court of Civil Appeal, Civil Appeal No. 2 of 1961.

^{page 102 note 3} Minhaj Et Talibin, op cit., at p. 411.

^{page 102 note 4} Dia is at present usually paid in cash unless special herr provides that dia should be paid in live camels. For purposes ot dia, a camel is valued at the rate of Sh.So.75 per camel. See Hussein Hersi and Ahmed Aden v. Yusuf Deria Ali, Supreme Court Civil Appeal No. 2 of 1964. In cases where the homicide takes place outside the State, the rate of dia payable would be that prevailing in the place where the cause of action has arisen. See H. A. Abdulla Saad v. Arap, Samaneh, Supreme Court Civil Appeal No. 7 of 1962, Somali Law Reports Hargeisa and Burao Regions (1961–1963) 171; See also [1964] J.A.L. 139.

^{page 103 note 1} Supreme Court Civil Appeal No. 21 of 1965.

^{page 103 note 2} See Wright, op. cit., at 67; J. N. D. Anderson, Islamic Law in Africa, Colonial Research Publication No. 16, 1954, p. 47.

^{page 104 note 1} Wright, op. cit.

^{page 104 note 2} Yusuf Abdi v. Gulaid Samater, Subordinate Court of Civil Appeal, Civil Revision Case No. 3 of 1957.

^{page 104 note 3} Wright, op. cit., at p. 64.

^{page 104 note 4} Lewis, op. cit., at pp. 172–3.

^{page 104 note 5} Ibid.

^{page 104 note 6} Akil means Local Authorities appointed under the Local Authorities Ordinance, 1950.

^{page 104 note 7} Lewis, op. cit.

^{page 105 note 1} Subordinate Court of Civil Appeal, Civil Appeal No. 5 of 1955.

^{page 105 note 2} Supreme Court Civil Appeal No. 3 of 1963: Somali Law Reports, Hargeisa and Burao Regions (1961–1963), 184.

^{page 105 note 3} Ambaro Farah v. Amina Ahmed, Subordinate Court of Civil Appeal, Civil Revision Case No. 11 of 1957.

^{page 105 note 4} Laws of Somaliland (1950). Vol. I. cap. 18.

^{page 106 note 1} Law No. 21 of 26 August, 1963.

^{page 106 note 3} The question whether the collective responsibility for the payment of dia is contrary to Art. 43(1) of the Constitution which provides that “Penal liability is personal. Any collective punishment shall be forbidden” is discussed later.

^{page 106 note 3} For a detailed description, see Lewis, op. cit.

^{page 106 note 4} Wright, op. cit., at p. 64.

^{page 107 note 1} Supreme Court Civil Appeal, No. 17 of 1965.

^{page 107 note 2} Supreme Court Civil Appeal, No. 31 of 1964.

^{page 108 note 1} Laws of Somaliland (1950), cap. 4, Vol. I.

^{page 109 note 1} Art. 14, Criminal Procedure Code approved by Legislative Decree No. 1 of 1 June, 1963. This Code came into force on 1 August, 1965.

^{page 109 note 2} Subordinate Court of Civil Appeal, Civil Appeal No 2. of 1961.

^{page 109 note 3} Supreme Court Civil Appeal No. 2 of 1964: [1965] J.A.L. 170.

^{page 109 note 4} Judgment dated 11 March, 1957, of the Court of Justice, the highest court in former Trust Territory of Somalia under Italian Administration. The court held: “... in absence of provisions in customary law for the payment of damages under Shariat law, the judge can apply by way of analogy the criteria applied in similar cases.”

^{page 110 note 1} (1808), 1 Camp. 493.

^{page 110 note 2} [1917] A.G. 38.

^{page 110 note 3} Heuston's edition of Salmond on the Law of Torts, London, 1957, 625.

^{page 110 note 4} Rose v. Ford [1937] A.C. 34.

^{page 110 note 5} 9 and 10 Viet. c. 93.

^{page 111 note 6} The above ruling approves the decision of the Subordinate Court of Civil Appeal in Musa Jebril v. Dahir Jama (Civil Revision Case No. 14 of 1954) where it was held: “We know of no rule under Somali custom that a wound caused in the town shall be outside the provisions of any tribe's herr.” The decision in Musa Jebril v. Dahir Jama did not relate to traffic accidents, but to wound compensation.

^{page 112 note 1} Constitution, Art. 1(2).

^{page 112 note 2} Ibid., Arts. 49. 51.

^{page 112 note 3} Ibid.,.Arts. 77, 82.

^{page 112 note 4} Ibid., Arts. 92, 94.

^{page 112 note 5} Ibid., Parts II and III.

^{page 112 note 6} Law on the Organization of the Judiciary, approved by Legislative Decree No. 3 of 12 June, 1962.

^{page 112 note 7} Ibid., Art. 2(3).

^{page 112 note 8} Ibid., Art. 3(3).

^{page 112 note 9} Ibid., Art. 4(3).

^{page 112 note 10} Ibid., Art. 5(3).

^{page 113 note 11} Constitution, Art. 7.

^{page 113 note 12} Supreme Court Civil Appeal, No. 5 of 1962: Somali Law Reports-Hargeisa and Burao Regions, (1961–1963); 160, [1964] J.A.L. 141.

^{page 114 note 1} See [1964] J.A.L. 139–141. Mr E. Cotran has here criticized this judgment stating that the Supreme Court should have decided the case on the basis of customary law and not on Shariat law. This criticism fails to take note that under Article 98 para. (1) of the Constitution, the Supreme Court has a duty to examine whether the rule of customary law in question is in conformity with the general principles of Islam.

^{page 114 note 2} Cited above, p. 109, n. 3.

^{page 115 note 1} Constitution, Art. 43(1).

^{page 115 note 2} Proceedings of the Constituent Assembly, 11–12, Vol. 3, No. 34 of 30 May, 1960.

^{page 116 note 1} See comments by the Technical Committee on the Draft Constitution (1959), 90–91.

So far as the Northern Regions of the Republic are concerned, the provisions of the Collective Punishment Ordinance, No. 8 of 1955, provided that the Governor may impose fines in money or in kind, as he may decide on all or any inhabitants of any township, village, area or on the members of any tribe, sub-tribe, or community, if after enquiry he is satisfied that they or any of them have committed any of the offerees refered to in section 2 of the Ordinance: Laws of Somaliland, (1950), Vol. II, cap. 7

^{page 116 note 2} In the Constituent Assembly, Hon. Mohamed Scek Mohamed Dahir moved an amendment to Article 43 para. (1) of the Constitution which was as follows:

“Add to article 43(1) the following:

‘nor will there be any civil collective responsibility for dia’.”

The amendment was defeated by 33 against, 19 for, and 12 abstentions. See Proceedings of the Constituent Assembly, 22, Vol. 3, No. 24 of 30 May, 1960.

^{page 116 note 3} For the text of the provision, see supra.

^{page 116 note 4} Supreme Court Full Bench Civil Appeal, No. 24 of 1964.

^{page 117 note 1} Constitution, Art. 12(2) provides:

“Political parties and associations which are secret, have an organization of a military character or have a tribal denomination shall be prohibited.”

^{page 117 note 2} Ibid., Part II.

^{page 117 note 3} Ibid., Part III.

^{page 117 note 4} Ibid., Art. 26(1) which provides:

“Every person shall have the right freely to form associations without authorization.”

^{page 117 note 5} Ibid., Art. 26(2) which provides:

“No person may be compelled to join an association of any kind or to continue to belong to it.”