IntroductionThe linguistic and religious affiliation of the peoples of the arid lowlands of northern Kenya and adjacent areas of the Horn is very heterogeneous. Although most of the populations east of Lake Turkana speak languages which belong to the Lowland branch of the Eastern Cushitic sub-family, within this branch Oromo speech (Boran, Gabbra, Sakuye, Orma) is not mutually intelligible with Somaloid languages like Rendille and Somali. Even within the Somaloid group, successful communication between monolingual Rendille and Somali is normally difficult, but a high degree of bilingualism is found.

The idea of the nation state has penetrated Kenya and Ethiopia deeply at a level much below the 'nation' state. In the colonial period districts and grazing reserves were delineated according to perceived 'tribal' boundaries, which were often only created in the process. Ethnicity in that process was not invented (as has been claimed for other parts of Africa) but it has changed: it has acquired a territorial character of a new kind. Ethnic territoriality in the mind of policy makers combined with ideas of preservation of the range which modern range ecology would regard as misconceived. These ideas led to policies that restricted the range of movement of pastoral nomads. This paper draws a line from colonial policies to modern politics, in which territorial subdivision continues. This process seems to be guided the interests of self-styled elites, while the pastoralists are adversely affected by them.

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There is some truth in the statement that in Somalia the periods and regions least affected by struggles about the state have provided better living conditions than the ones more affected by statehood. It is also true that the state, especially in the final stage of its existence leading up to its collapse in 1991, was of a predatory nature and, rather than contributing to development, affected it adversely. There is no doubt that no state at all is better than some of the experience the Somali have made with actually existing statehood (but not in comparison with many alternative courses history could have taken). In some recent writings about Somalia, however, the advantages of statelessness have been grossly overstated, and the disadvantages of not having a functioning nation-state in a world of nation-states have grossly been neglected. Especially the Somali customary law (xeer) has been romanticized and praised as a cost-efficient mechanism for the provision of 'justice' in the absence of statehood. This paper examines the actual working of customary law and finds it to be based on negotiation, often between unequals with a number of structural advantages for the demographically, economically and militarily stronger side. Xeer does regulate the use of violence to a degree, but it does not produce 'justice' in the universal or Western sense of the term, as some of its advocates seem to assume.