By Prof. Abdurahman Abdullahi (Baadiyow)
Sharia laws have been accepted and partially implemented in Somalia throughout its history. However, the modern call for the realization of Sharia is ascribed to the Islamist movements advocating its comprehensive application in all aspects of life. “Application of Sharia” may not be the most accurate term. Instead, we suggest “the completion of the application of sharia.” The first expression alludes that Sharia was never applied in Somalia, a misleading view articulated by the minority of extremists. The second expression confirms that certain parts of the Sharia have always been used in society. Thus, the task is to complete the Sharia application process in society and state gradually.
The definition of Sharia could be traced from the Arabic verbal noun “Sharia,” which appears in the Qur’an only once in the 45:18 verse. Moreover, its derivative form appears three times in the 42:13, 42:21, and 5:51 verses. According to the modern definition, sharia is the vast body of Islamic laws that should regulate the public and private aspects of the lives of Muslims. Sharia is not a single code of rules; 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 at the 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. Conversely, 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 following “the general principles of Islamic sharia” (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 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 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).
Since the state collapse in 1991, Somali Islamists intensified their activities, particularly in providing social services, Islamic propagation, business sector, and reconciliation of clans. The fruits of their sustained efforts were reaped with the growing Islamization in society and state-building. This trend was manifested in the Constitutions of “Somaliland” in 1993 and the Puntland State of Somalia in 1998. The movement peaked with the National Charters adopted in the Reconciliation Conferences of Djibouti (2000) and Kenya (2004). Moreover, selected elements of Sharia were applied by the “Islamic Courts” set up in certain localities within communities in the 1990s. These Courts later developed into an armed political movement under the “Union of the Islamic Courts” in 2006.
The National Charter adopted at Djibouti Conference (2000) is regarded as 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 critical 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 sharia shall be the basic source for national legislation” and “any law contradicting Islamic sharia shall be void and null” (article 4:4). The current Transitional Federal Charter that was adopted in 2004 backed 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 sharia shall be the basic source for national legislation” (article 8:2).
The political landscape of Somalia has changed with the growing role of Islamists. This role was evidenced when the Government of National Unity was formed in 2009 between the Transitional Federal Government (TFG) and the Alliance of Re-liberation (ARS). Being the critical demand for emerging Islamists, the Council of Ministers approved the Sharia Bill in 2009. The government’s decision seems remarkable in responding to the needs of the proponents of Sharia. The expected outcome was that all Islamists would rally around the government and take this decision as a reasonable step to further their strategic project. On the contrary, armed Islamist oppositions interpreted the decision as a political conspiracy to invalidate their fight against the government, which they considered Jihad against the sham state supported by foreign military forces. As a result, they missed this opportunity and repudiated the offer.
Many relevant questions beg clear-cut answers on the issue of Sharia application. For example, what is the agreed interpretation of the Sharia concept? What parts of Sharia 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 Sharia be applied, and under which conditions? What is the role of Ijtihad, and who will have the authority in Somalia? Successful completion of the application of Sharia requires consensus among Somali Ulama of different persuasions and the establishment of necessary institutions tasked to undertake this project. This task cannot be an individual undertaking or a non-state group venture. Instead, it requires a legitimate authority with the necessary capacity to realize this project. The challenges of completing a Sharia application are enormous. Firstly, Islamist scholars have yet to agree on the approaches to Sharia implementation in society. Secondly, the Somali government is fragile, and an appropriate institution to lead this process was not established. Thirdly, the international community and the neighboring countries supporting Somalia’s state-building are worried about Sharia and Islamists’ growing role in the Somali state.
The ideal approach in applying sharia is to give precedence to creating a well-informed Islamic society before imposing sharia in a top-down manner. This process should begin with establishing the appropriate mechanisms and institutions in the practical approach. The state should promote public education about Sharia, initiate programs of gradual harmonization of indigenous culture, and state laws with the Islamic legal framework and moral values. The completion of the application of the sharia 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 Sharia. 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 counterproductive.
In conclusion, the government should develop strategies to overcome the challenges of the Sharia implementation programs. The most central challenge is garnering consensus among Somali Ulama to build a cohesive approach and methodology. Moreover, the state should establish institutions and secure the required technical and financial support. To that aim, it is recommended that the government initially appoint an interim committee of inclusive Islamic scholars and experts to advise the government on Sharia. This committee must be administered directly from the office of the Prime Minister. Moreover, the government should seek assistance from the state and non-state institutions in the Islamic Conference that has been engaged in such projects for years. Finally, the completion of the Sharia implementation project should be well explained to the external stakeholders, and their concerns should be addressed. They should be convinced that sharia administered properly will eventually contribute to the stability in Somalia and will most likely drain support for the armed extremist groups.
Dr. Cabduraxmaan Baadiyow
Email: [email protected]
 This is a revised and enlarged article initially published by Hiiraan.com under the title ‘The Application of Sharia Laws in Somalia.’ See https://www.hiiraan.com/op4/2009/mar/10052/the_application_of_shari_a_laws_in_somalia.aspx
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