Shari’a law: Panacea or poison for Somalia?
by Abdullahi Jama Hussein
Wednesday, February 25, 2009
“Calls for the `return to Islam` and the application of the shari’a in the modern world presuppose a historical Muslim society that was ruled by holy law, only disrupted by colonial incursions and irreligious reforms…..the shari’a has always been an important feature of Muslim societies and governments, but it has been assigned particular niches of operation, mostly in the private matters of the subjects…the shari’a enjoyed an ideological resonance as a high, indeed sacred standard of justice. Rulers claimed legitimacy in its terms, and rivals and rebels employed its rhetoric in indicating unjust or illegitimate rule. Scholars and jurists, the guardians of the shari’a enjoyed high portions of wealth and influence in most periods, often through patronage of rulers.”(Zubaida, 2003).
The central doctrine of Islam consists of vigorous and strict monotheism; the message of Prophet Muhammad PUH contains both faith and morals. In other words; it is both doctrine and law.
Sheikh-ul lslam Ibn Taymiya, a prominent scholar of eighth century, wrote that “ALLAH does not permit, in effect, to put to death certain creatures except in view of the public good. HE said: "Fighting therein is a great (transgression)  but a greater (transgression) with ALLAH is to prevent mankind from following the way of ALLAH” (II, 216) (Ibnu Taymiyah, Siyasa Shari’a).
Therefore, a righteous leader has an obligation to enforce the shari’a law and, at the same time, create conditions that motivates the folk for “obedience and restraint”.
Poking the Hornet's nest
The recent statement by AU special envoy to Somalia Mr. Nicholas Bwakira, that Somalia’s new president assured him “that Somalia will be secular”, stir up a new controversy. And, if that is true, it will be a hornet’s nest for Sheikh Sharif.
Bwakira added: “he had been assured by President Sheikh Sharif Sheikh Ahmed, a Somali cleric, that his government would not be religious”.
He also pointed out that ... “on the matter of religion, it would be the government, the State which will outline the policy, not the clerics," he said. (VOA Peter Heinlein Addis Ababa, 18 February 2009)
Seculars versus Religious.
The revival of Islam across the world has its roots in the resistance that begun in Egypt mid 19th century and the disenchantment with European colonialism-which promoted secularism. The term that begun with Ladin (non religious) is currently fashioned as ilmania (secularism).
Secularism became known to Muslims for the first time through a controversial debate promoted by very people who were supposed to be their traditional enemies. It borrows from Christian history of regular priests (who strictly follow the monastic order) and secular priests who don’t.
Therefore, secularism continues to be rejected in Muslim societies as an `alien doctrine`, promoted by Islam’s supposedly traditional enemies. Accordingly, Islam is seen as an everlasting and immutable system, covering all aspects of life, socially and morally, applicable to society as well as state. It is not just a religion; it is also a way of life.
Application of Shari’a Law.
Somalia’s legal system is a paradox since there is no central government capable of handling. However; three are the main sources the legal system is based upon: customary law and Shari’a in South-central and a combination of shari’a, customary law and secular in Puntland and Somaliland. Yet most of cases are dealt with through the customary and Shari’a legal systems.
Shari’a does not constitute a problem for the Muslims and, much of it, is embraced voluntarily by its believers whether they live in Islamic countries or not, such as refraining from forbidden things haraam.However, its codes pose challenge to the hegemony of the West-that is in my view, the very reason they oppose it.
Muslims embraced the notion of state and good governance from 6th century A.D, long before the West had known it (The western model of nation-state starts from the treaty of Westphalia 1648). The prophet was both a messenger and a commander-in-chief.
The western media continues to bedevil Islam, hence, whenever shari’a law is mentioned, it comes into people’s mind that shari’a is all about punishment (huduud) such as flogging for fornication, stoning to death for adultery and amputation for theft.
Far from it.Shari’a law embodies wide range of social,institutional,moral and criminal matters such as: The appointment of the sovereign(imam),provincial governors, war commanders, judges, prayer leaders and commanders of expeditions for the public interest…, fighting apostates,insurgents,brigands and highwaymen,. redress of wrongs, syndics of the nobility,, administration of pilgrimage, administration of alms, war spoils, tribute and land tax, penalty for drinking alchol,land reclamation and water supply, international relations, retaliation and compensation for capital offenses, crimes and punishments, protection of invironment,flora etch.
Secularism and Despotism.
Secularism has become political tool for the despotic regimes in the Muslim world to cling to power,however,that did not diminish the determination of Muslim populace which Ernest Gellner described as” permeated by an implicit constitution”`. Whereas, in other communities history may take the form of constant change, in Muslim communities it is bound to repeat itself.
Thus, the rising popularity of Islamization (i.e. an increased observance) put under pressure the democratization in Muslim countries, as liberals fear may put power to Islamists, as occurred in elections of Hamas (Palestine), the FIS (Algeria), and the latest Djibouti conference that elected Sheikh Sharif as president of Somalia.
Also, despots in the Islamic world exaggerate Islamist threat to oppose democratization-often with support from local liberals and foreign powers.
Moderate Islam and Militant Islam.
The media in the West has developed a perfect dichotomy as (Islam and the West), or the West and the “other”, further alienating the Muslim societies. It portrays the Muslims who seek the application of shari’a as fundamentalists, militants, extremists, hardliners and other derogatory terms. They also call moderates, those with little or no interest in the application of shari’a law. These two Muslim groups are known to western scholars and politicians, as Earnest Gellner describes them: High Culture Islam and a Low Culture or Folk Islam. Here is his definition: “High Culture Islam stresses the severely monotheistic and nomocratic nature of Islam, it is mindful of the prohibition of claims to mediation between God and man, and it is generally oriented towards puritanism and scriptualism”.”Low Culture Islam or Folk Islam is different: If it knows literacy, it does so mainly in use of writing for magical purposes, rather than as a tool for scholarship. It stresses magic more than learning, ecstasy more than rule-observance. Rustics, you might say; encounter writing mainly in the form of amulets, manipulative magic and false land deeds. Far from avoiding mediation, this form of Islam is centred on it: it’s most characteristic institution is saint cult, where the saint is more often than not living rather than a dead personage.”
All Islamic movements are known to be adherents of the High Culture Islam, past and present. Moreover, Islam offers a national identity, especially in the context of struggle with colonialism-“the modern Muslim`nation`is often simply the sum-total of Muslims on a given territory”.
Islamic State and International Law.
John Rawls, in his `Theory of Justice`, asserts that “the law of peoples does not entail that all societies should be liberal, but only that they respect certain minimal principles. Non liberal but in a minimal sense law-abiding states are termed well-ordered hierarchical societies”.
Indeed an Islamic state of Somalia stands high chance of becoming “law abiding and well-ordered hierarchical society”. Therefore, there should be no alarm bells ring over shari’a application in Somalia; certainly, it is a panacea not a poison. It will not complicate Somalia’s relationship with the world; quite contrarily, it will curb extremism, violence and piracy which are morally reprehensive and anti-Islamic. It may also silence many actors opposing the current administration of Sheikh Sheriff on the grounds of shari’a application.
One Piece of Advice for New Somali Leaders. .
We should not forget that the rationale behind the Ethiopian invasion- aided and abetted by the UN and the West- was to prevent Somali people from establishing an `Islamic state`. The Ethiopian leader Meles Zenawi gave interview to British.newspaper.He said.: “The biggest achievement so far is that the Transitional Federal Government (TFG) and the Somali people have saved the country from being taken over by the Taliban of Somalia [a reference to hardliners linked to the Islamic Courts Union or ICU]. They made no secret of their intention of establishing a caliphate there. Defeating them was no mean achievement” (Guardian.Co.UK, 25/01/2008).
By the grace of ALLAH, we defeated the Ethiopian transgressors; we also achieved a `regime change at the top of TFG. The onus now is on President Sheikh Sharif and his government who should be juggling through new eyes to keep the tricky balance between demands of the international community and the aspirations of the Somali people.
My sincere advice to the new government is, to give priority to the demands of its people rather than trying to appease its foreign backers-the latter will surely guarantee their failure.
Mr. Abdullahi Jama Hussein, a prominent peace activist.
Gellner, Earnest (1992): Postmodernism, Reason and Religion.Routledge.
Rawls, John (1971): Theory of Justice. Harvard University Press.
Sheikh-Islam Ibnu Taymiyah, Siyasa Shari’a.
Zubaida, Sámi (2003): Law and Power in the Islamic World.I.B.Tauris.