Sunteți pe pagina 1din 6

1

The Application of Shari’a Laws in Somalia


Abdurahman M. Abdullahi (Baadiyow)i

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 offerii. 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
2

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 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
4

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.
5
i
Abdurahman M Abdullahi (Baadiyow) specialized in the history of Islam in the Horn of Africa. He is the Chairman of
the Board of Trustees of Mogadishu University. You can reach him (abdurahmanba@yahoo.com)
ii
Hizb al-Islamiya and Al-Shabab rejected the Shari’a bill of the government. In particular, Al-Shabab said that Shari’a
is not something needed to be voted but it is an obligation rule by the Muslims, and the cabinet’s vote for the
adoption of the Islamic religion means that the new government is not based on un-Islamic constitution.

S-ar putea să vă placă și