Documente Academic
Documente Profesional
Documente Cultură
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
3
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 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.