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The Application of Shari’a Laws in Somalia
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by Abdurahman M. Abdullahi (Baadiyow)
Friday, March 20, 2009

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Shari’a has been accepted and partially implemented in Somalia throughout its history. However, modern call for Shari’a is ascribed to the Islamic movements advocating its comprehensive application in the remaining aspects of life. Since the vacuum of the state collapse in 1991, Islamists in Somalia intensified their activities through social services. The fruits of their sustained efforts are reaped in the form of growing Islamization trend in the whole society. This tendency was manifested in the constitutions of “Somaliland” and Puntland, as well as in the National Charters adopted in the Reconciliation Conferences Djibouti (2000) and Kenya (2004). Moreover, selected elements of Shari’a were applied by the “Islamic Courts” set up in certain localities within communities. These Courts had developed later into an armed political movement under the “Union of the Islamic Courts” in 2006. As a result, the political landscape has changed and the unity government between the Transitional Federal Government (TFG) and Alliance of Re-liberation (ARS) was formed. Being the key demand for the emerging Islamists, the Council of Ministers have recently approved the bill of Shari’a.

The government decision seems remarkable in responding to the demands of the proponents of Shari’a. The expected outcome was that all Islamists will rally around the government. Nonetheless, in the contrary, armed Islamic oppositions interpreted the decision as a political manoeuvre intended to invalidate their Jihad; and totally repudiated the offer . Moreover, there is no consensus among Somali Islamic scholars on how to approach Shari’a implementation. Furthermore, the international community and the neighbouring countries are unhappy and have concerns on the growing role of Islam in the state.  On this issue, there are many relevant questions that beg clear-cut answers. These questions include what is the agreed meaning of Shari’a? What parts of Shari’a are already applied in Somalia and what parts are not?  What school of Islamic jurisprudence (Fiqh) should be used? When and by what means should the application of Shari’a begin and under which conditions? What is the role of Ijtihad and who will have the relevant authority in Somalia?
The use of the expression of “application of Shari’a” may not be the most accurate term. Instead, we suggest the use of “the completion of the application of Shari’a”. The first expression alludes that the Shari’a was never been applied in Somalia, a misleading view articulated by the minority of extremists. The second expression serves to confirm that certain parts of the Shari’a have always been applied in the society. Thus, the task is simply to complete the process of Shari’a application gradually. The definition of Shari’a could be traced from the verbal Arabic noun “Shari’a” that appears in the Qur’an only once at 45:18 verse. Moreover, its derivative form appears three times at 42:13, 42:21, and 5:51 verses. According to the modern definition, Shari’a is the comprehensive body of Islamic laws that should regulate the public and private aspects of the lives of the Muslims. Shari’a is not a single code of laws; rather, it consists of four sources that legal experts refer to. The first two sources are the Qur’an and the Sunna, and the other two complementary sources are consensus (Ijma) and analogy (qiyas). Moreover, some schools of thought accept other additional sources as secondary sources where the first four primary sources allow.
Glancing back into historical relationship between the Somali state and Islam, it could be characterized as ambivalent. On the one hand, the two constitutions adopted in 1960 and 1979 agree that Islam is the religion of the state. On the other, colonially inherited European laws were intact and western culture and norms were widespread among the elites. In the first Constitution, Somalis were to be governed in accordance with “the general principles of Islamic Shari’a” (article 1:3). It also affirmed that “the doctrine of Islam shall be the main source of laws of the state” (article 50) and “laws and provisions having the force of law shall conform to the Constitution and to the general principles of Islam” (article 94:1). Moreover, the Constitution of 1960 states that “Every person shall have the right to freedom of conscience and freely to profess his own religion; however, it shall not be permissible to spread or propagandize any religion other than the religion of Islam” (article: 29).  The second Constitution of 1979 was secularized in line with the socialist ideology of the military regime. It only offered lip-service to Islam and reconfirmed that “Islam shall be the state religion” (article 1:3). 

The National Charter adopted in Djibouti Conference (2000) is regarded the most Islamized in the history of Somalia.  Besides reiterating the status of Islam as it had been set down in the first Constitution of 1960, it included two important additional provisions. It reinforced the requirement that “Islam shall be the religion of the state and no other religion or ideas contrary to Islam may be propagated in its territory” (article 2.2). Moreover, “the Islamic Shari’a shall be the basic source for national legislation” and “any law contradicting Islamic Shari’a shall be void and null” (article 4:4).  The current Transitional Federal Charter that was adopted in 2004 back away from the Islamic articles in the Charter of Arta because of the foreign influence. It just reaffirms that “Islam shall be the religion of the Somali Republic” (article 8:1) and “the Islamic Shari’a shall be the basic source for national legislation” (article 8:2). 

The ideal approach in the application of Shari’a is to give precedence to the creation of a well-informed Islamic society before imposing Shari’a in a top-down manner. In the practical approach, this process should begin with the establishment of the appropriate mechanisms and institutions. The state should promote public education about the Islamic Shari’a and initiate programs of gradual harmonization of the indigenous culture, state laws with the Islamic legal framework and moral values. The completion of the application of the Shari’a should be viewed as a national project and an orderly process that avoids any hasty and slapdash implementation. It should account for the required financial resources and human capital that is professionally competent to carry out the complex task of Shari’a. It should be debated publicly and participated by all groups and affiliations of the religious spectrum. Any short–cuts and haphazard policies adopted and implemented to circumvent this gradual process in response to the emergent political pressures is certainly counterproductive. 

In conclusion, the government should develop strategies to overcome the challenges to the Shari’a program. The most central is the challenges of garnering consensus among Somali Islamic scholars in order to develop cohesive approach and methodology. Moreover, the state should establish institutions and secure required technical and financial support. To that aim, it is recommended that the government should initially appoint an interim commission of inclusive Islamic scholars and experts to advice the government on the issue of Shari’a. This commission must be administered directly from the office of the Prime Minister and offered clear mandate. Moreover, the government should seek the assistance from the states and non-state institutions in the Islamic Conference who were engaged in such project for years. Finally, Shari’a project should be well explained to the external stakeholders and their concerns should be addressed. They should be convinced that Shari’a administered in a right way will eventually contribute for the stability in Somalia and will most likely drain support for the armed extremist groups. 


Abdurahman M. Abdullahi (Baadiyow)
E-Mail: [email protected]



 





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