Análises da Somália

"Customary laws develop in a country like Somalia in the absence of a central legislating body. Rules "emerge spontaneously as people go about their daily business and try to solve the problems that occasionally arise in it without upsetting the patterns of cooperation on which they so heavily depend" (Van Notten, 15: 2005).

Van Notten contends that the Somali customary law closely follows the natural law and therefore should be preserved.

The extended family is the core of Somali society. Families descended from common great grandparent form a jilib, the basic independent jural unit, and a number of jilibs in turn form a clan. Each family, jilib, and clan has its own judge, whose role is to facilitate the handling of disputes by deciding where the liability lies and what compensation should be paid. For example if a man is murdered, the murderer's clan gives the victim's clan one hundred camels (the blood price). Verdicts are widely discussed, and a judge who does not base his decision on norms prevailing in the community is unlikely to be asked to settle further disputes. Thus while a judge may form his own principles, his customers will decide his competence as a judge.

The family of the successful plaintiff can resort to self-help to enforce a payment, or the court can order the men of the community to do so. Every clansman is insured by his jilib. For instance, if A violates B's right and it is held that A should pay compensation to B, A's jilib will provide the compensation. Hence the jilib functions as "a safety net, venture capital, protection, and insurance" (Van Notten, 74: 2005).

If a clan member constantly violates others' rights and his jilib repeatedly pays compensation, the jilib can expel him. On the other hand, there is nothing to stop someone from leaving his jilib and joining another, if it will have him, or setting up his own. A person without a jilib is unthinkable, an outlaw, because he is not insured against liabilities he might incur toward others. Hence he loses all protection of the law.(...)

Nevertheless, since 1991, the United Nations has made efforts to promote the establishment of a democratic government in Somalia. Van Notten strongly argues that such government is incompatible with the Somali customary law, which prizes life, liberty, and property. He asserts that democracy is not even a viable option:

"When the electorate is composed of close-knit tribal, religious, linguistic or ethnic communities, the people invariably vote, not on the merits of any issue, but for the party of their own community. The community with the greatest numbers wins the election, and the minority parties then put rebellion and secession at the top of their political agenda. That is nothing but a recipe for chaos." (van Notten, 127; 2005)

Van Notten contends that the argument that a central government is a prerequisite for making treaties with foreign government agencies is flawed because the Somalis have long dealt with foreign governments and their agencies on a clan-by-clan basis. (...)

Questions arise as to rampageous warlords when discussing a country without a central government. Van Notten explains that warlords exist because of the efforts to form a central government, not because of its absence:

"A democratic government has every power to exert dominion over people. To fend off the possibility of being dominated, each clan tries to capture the power of that government before it can become a threat. Those clans that didn't share in the spoils of political power would realize their chances of becoming part of the ruling alliance were nil. Therefore, they would rebel and try to secede. That would prompt the ruling clans to use every means to suppress these centrifugal forces… in the end all clans would fight with one another." (van Notten, 136; 2005)

He thus asserts that efforts by the United Nations are not only futile, but also harmful to the Somalis. (...)" Stateless in Somalia, and Loving It by Yumi Kim

PS: Não são as guerras civis e guerras entre "Estados" (monopólios) originarias precisamente na disputa pelo "monopólio" e não pela suaausência? Quantos mortos têm provocado?

No caso da Somália, as más notícias parecem sempre ter origem na oposição a que um determinado grupo, no caso, um "tribunal islamico", seja bem sucedido em conseguir ou "alcançar" um monopólio territorial, esmagando e desarmando os "opositores". Ficariam melhor por isso? (ter em conta as condições concretas e quanto muito as similares na região). No caso relatado na notícia, parecem estar a afastar o "perigo islâmico".