by M. Trunji
Thursday, May 23, 2019
In the last three years of the Trusteeship period, much time was devoted to the preparation of a constitution for the future Somali independent State. For this purpose, two Committees were appointed: a Technical Committee and a Political Committee in September 1957 (Decree N.140 of September 6, 1957) The Political Committee, was chaired by Honorable Aden Abdulla Omen , in his capacity as the President of the Legislative Assembly, A second important step towards self-government was taken in January 1960 which resulted in the transformation of the Legislative Assembly, elected in 1959, into a Constituent Assembly, for the purpose of framing the constitution of the future State. (Law n. 6 of January 8, 1960)
Between October 1957 and May 1959, the Technical Committee prepared a preliminary draft constitution of 141 articles, accompanied by 316-page commentary. In parallel, the Minister of the Constitutional Affairs has produced a shorter draft constitution Between April 4, and May 9, 1960 both drafts were examined in details by the Political Committee. The Committee approved a new draft of 100 articles and submitted it to the Constituent Assembly, comprising the ninety deputies of the constituent Assembly and twenty additional Somali members representing political parties, cultural, economic and religious organizations. On May 23 the Constituent Assembly began its debate on the political Committee’s draft and approved it with a few changes. On June 21 the Constitution was adopted by acclamation by the Constituent Assembly, and being promulgated by the Provisional P resident of the Republic, it came into force on July 1, 1960.
The 1960 Constitution established an Islamic State
The role of Islam is reflected in six different articles of the 1960 Constitution
Article 1 (3) of the Constitution established that “Islam shall be the religion of the State”. This made Somalia an Islamic State, meaning that the State recognizes Islam as the only official religion in the country.
Article 6, under the title “The Republic within the International Order”, reads. “The Somali Republic shall encourage solidarity among the people of the world, and in particular among the Africans and Islamic people”, reads the preamble .
Article 35, dealing with education, prescribed that the teaching of Islam shall be compulsory for pupils of Islamic faith in primary and secondary state schools, and that “Teaching of Holy Koran shall be a fundamental element in primary and secondary state schools for Muslims”.
Article 29, under the title freedom of religion reads: “Every person shall have the right to freedom of conscience and freely to profess his own religion and to worship it subject to any limitations which may be prescribed by law for the purpose of safeguarding morals, public health or order. However, it shall not be permissible to spread or propagate any other religion other than the true faith of Islam. This article is an amendment adopted by law n. 16, of June 29, 1963, of article 29 of the constitution. The original text, which gave broader scope of conscience of religion, read:
“Every person shall have the right to freedom of conscience and freely to profess his own religion, to worship it, and impart its teaching, subject to any limitations which may be prescribed by law for the purpose of safeguarding morality, public health or order”.
The amendment came as an endeavor to control the spread of religious fanaticism and its inherent peril, after a priest affiliated to the Mennonite Mission operating in Somalia was stabbed to death by a fanatic Somali. The Mennonite Mission, a protestant mission, based in the United States of America, and operating schools and hospitals in Jamama, Jowhar and Mahadday came under virulent attacks which eventually led in July 1962 to the murder of a Protestant Priest, Mervin Grove Russel, whose spouse also suffered severe injuries in the attack.
As to personal status, Article 30 (2) of the Constitution provides:
“The personal status of Muslims is governed by the general principle of Islamic Sharia”
The President of the Republic must be a Muslim prescribed article 71(1)
On top of the above-mentioned articles of the constitution, there were two key provisions embedded in the 1960 Constitution concerning the role of Islam in Somali legislations which raised intense debate among the legislators of the time. .
The first provided that “The Doctrine of Islam shall be the main source (fonte principale) of the laws of the State (article 50) and
The second that “Laws and provision having force of law in Somalia shall conform to the Constitution and the Doctrine of Islam” (article 98)
The genesis of these two articles and their insertion in the Constitution is, perhaps, in order. The idea of making Islamic Doctrine the “main source” of Somali legislations was introduced by Sheikh Ibrahim Hashi during the deliberations of the Political Committee on the two draft constitutions, one prepared by the Technical Committee and the other submitted by the Minister for Constitutional Affairs. (Giuseppe A. Costanzo, quoting transcript of the session of the Constituent Assembly, May 3,1960, pp,12-3) The proposal has been accepted without discussions. In the same session of the Political Committee, a new draft article giving more role of the Islamic Doctrine in the Constitution was introduced by Sheikh Abdulgani Ahmed, The new article read: “Laws and provisions having force of law in Somalia shall conform to the Doctrine of Islam” This proposal was also accepted by the Political Committee, despite some reservations held by a number of religious experts. For instance, Sheikh Abdullahi Beghedi, member of the Committee mentioned above, urged the proponent of the proposal to withdraw it for, in his view, the provision of article 50 was enough to safeguard the Islamic Doctrine in the Somali legislation. (Giuseppe A. Costanzo, quoting transcript of the session of the Political Committee, May 3, 1960, p 16) The two principles reflected in article 50 and 98 of the constitution were seen as imposing a confessional character on the planned constitutional project for Somalia which did not reflect in any of the two draft constitutions prepared by the Technical Committee and by the Minister of Constitutional Affairs.
Ibrahim Hashi and Sheikh Abdulghani Sheikh Ahmed, were non-elected MPs, both became members of the Political Committee of the Constituent Assembly as a result of the expansion of the composition of the Political Committee to include, among others, social and cultural organizations of the territory on the basis of the UN Trusteeship Council (GA Resolution 1415 (XV) 1959).
The Constituent Assembly discussed the draft Constitution produced by the Political Committee
The draft Constitution as approved by the Political Committee of the constituent Assembly was passed to the plenary of the Constituent Assembly (Ninety MPs and 21 additional non-elected members) for comprehensive examination and approval.
In the plenary of the Constituent Assembly, while the principle sanctioning that laws and provisions having force of law in Somalia should conform to and not inconsistent with the Islamic Doctrine was accepted, without discussion, that giving supremacy to the Doctrine of Islam over other sources of legislation has triggered an intense debate. For example, Abdirashid Ali Shermarke, a future Prime Minister and President of the Somali Republic, raised serious doubts about the practability of this principle. In the meeting of the Constituent Assembly on June 1, 1960 Abdirashid stated “If we say that the Doctrine of Islam is the “main source of legislation”, all our legislations should conform to and not inconsistent with the Sharia. If we accept this principle, theft should be punishment with hand amputation, and adultery with stoning, etc, etc. and we know that we will not do all these things because we do not apply the law of retaliation”. He did not mention, but he had certainly in minds that, in accordance with the Somali Criminal Code, offenders found guilty of theft or adultery are sent to prison to expiate the punishment of their sins. They would not be subjected to corporal punishment. “So we have to remember the verse of the Koran saying “o ye who believe Why say ye which you do not do” (Sura Saffa or Battle Array (61:2) “My intention is to avoid exaggerations, being too zealous in our attitude, and enact legislations we will not apply”, he concluded. (Giuseppe A. Costanzo, quoting transcript of the session of the Constituent Assembly, June 1, 1960).
In the annals of the judicial activities, throughout the civilian administration period, 1960-1969, there is no record of any law or provisions having force of law being challenged before the Supreme Court, formed into Constitutional Court on grounds of inconsistency with the Islamic Doctrine, for the 1960 Construction presented no loopholes which allowed enacting legislations inconsistent with or contrary to the Islamic Doctrine.
We have mentioned how the primacy of Doctrine of Islam was the heart of the 1960 Constitution; let us now turn our attention to the current Provisional Constitution in force since August of 2012.
In the provisional Constitution the role of Islam in reflected in three distinct articles.
Article 2 reads:
1. Islam is the religion of the State
2. No religion rather than Islam can be propagated in the county
3. No law can be enacted that is not compliant with the general principles and objectives of Sharia
This article largely replicates the 1960 Constitution; it reflects clear provisions safeguarding the Doctrine of Islam in the Somali legislations, making further addition redundant.
However, as though article 2, referred above, was not adequate to safeguard the Islamic religion, the Provisional Constitution has added two more articles (articles 3 and 4) which, in our view are redundant.
Article 3 reads
“The Constitution of the Federal Republic of Somalia is based on the foundation of the Holy Quran and the Sunnah of our Prophet Mohamed and protects the higher objectives of Sharia and social justice”
Article 4 reads
“After the Sharia, the constitution of the Federal Republic is the supreme law of the country”.
I had not the benefit of reading the Travaux preparatoires, the preparatory work, useful to understand the intention of the Technical Committee members entrusted with the writing of the Constitution as reflected in article 3 of the provisional Constitutions. However, unless cogent reasons are given as to the purpose article 3 is serving, it would be tempting to believe that a constitutional structure informed by the most modern technicalities, has ended up here being reduced to a purely instrumental function substantially informed by the most religious extremism, unprecedented in any Constitution in the world, including the Constitution currently in force in Afghanistan, considered as the most conservative society in the planet.