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Traditional (Xeer) Law

Xeer law is the traditional legal system in Somali culture. Not surprisingly, it contains sections dealing with frankincense trees and the harvesting of resin.

As issues arise, a jury of elders will be assembled to rule on the matter according to Xeer. If the issue involved a particular field of frankincense, they are obligated to meet and hold court on the land. Harvesters, landowners, and traders are all obligated to comply with the jury’s decisions (PDRC 2003). The most important points are:

  • Gaafeysi (Rotating control): If more than one person owns the frankincense field, such as if multiple brothers share ownership, they are obligated to share the production of the field equitably by rotating who is exploiting the field each season.

  • Awaaji (Rent contract): The rent contract establishes the agreement between a harvester and the owner of the land. Renters must pay seasonal rent on schedule and must comply with the rules of exploitation. The owner must refrain from renting the field to another collector or breaching the contract without good reason.

  • Rules of exploitation:

    • Overtapping: harvesters should not make more cuts than appropriate for the tree’s size and condition, and should not make more cycles than appropriate in a single harvest season.

    • Jaqeyn: This is the practice of cutting deeply into the tree at the last tapping to extract more resin. While effective in the short term, it leads to the decline and death of the trees. This practice is proscribed by Xeer.

    • Qayo or Tarara’yn: harvesters should not wound the outer protective bark of the trees when scrapping the resin from the trees. Doing so opens the trees to attack by xare.

    • Cutting branches: livestock like to eat the leaves of the frankincense, but no one, including harvesters, should cut branches from the trees to feed the livestock. Doing so opens the trees to attack by xare.

    • Gaa’hin: harvesters need to let the B. frereana trees rest one year after every two years of successive harvesting.

  • Contract to sell: traditionally, traders will supply harvesters with food and other essentials on credit before the harvest season. The harvester is then obligated to sell the resin to the trader. In the current situation, traders negotiate prices with the harvesters before the season. Xeer would obligate them not to break this contract.

  • Aas Hiji: The king or extant ruling authority may, for one reason or another, take a frankincense field away from the owner. This may be done for the king’s benefit or to transfer it another party, as was done as part of a Diyah payment by King Osman (1865-1927), transferring a field from the Reer Sha’ib family to the Dir clan.

  • Fadhi (Settler’s right): If a harvester has been working and living in a field for a long period of time—typically 30+ years—they are afforded certain rights. The owner cannot evict the harvester or raise the rent price, and the harvester’s children may harvest the trees after he dies. As long as the field is for rent, the harvester has the right to rent the field. Occasionally this results in the long-time settler refusing to pay rent or challenging the ownership of the land, which is then resolved by the elders.

  • Male-only inheritance: Only male heirs may inherit frankincense fields. Women cannot. However, this rule also obligates a male heir to provide financial support from the frankincense income to sisters who may be in need of it. This rule goes against Sharia law, and in 2003 elders, educated people, and religious officials were already denouncing it. Therefore, while the rule still holds, it may be weakening.

  • Hadhiino (Rent only): if a woman is the only descendent of a frankincense owner, she may receive the right to receive income from renting the field during her lifetime. When she dies, though, the field passes to the next male relative. Her children, male or female, cannot inherit the field.

  • Eviction of harvesters: a landowner can evict a harvester if they do any of the following:

    • Fail to pay seasonal rent.

    • Claim ownership of the land.

    • Overexploit the frankincense trees.

    • Fail to report appropriation of part of the owner’s land by usurpers.

    • Or, if the owner genuinely need to exploit the field himself.

The following is based on the discussion of Xeer law by the Puntland Development Research Centre (PDRC 2003).

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