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Chapter Two – from Part I – Colonialism and Its Aftermath, 1884–1991 in Shari‘a, Inshallah: Finding God in Somali Legal Politics

On a cool afternoon in Hargeisa, I met with a prominent sheikh. As we shared a pot of tea while sitting cross-legged together on a large rug in his office, I mentioned I had come to see him for a book I was hoping to write about law in Somaliland and Somalia. He nodded, raised a corner of his lips into half a smile, and began by discussing his grandfather. The sheikh called his grandfather “the most prominent sheikh in [colonial] Somaliland … famous and very rich.” He had sired more than seventy sons and daughters from many wives, I was told.

Author

Mark Fathi Massoud

Type

Chapter

Information

Shari‘a, Inshallah: Finding God in Somali Legal Politics

, pp. 65 – 109

DOI: https://doi.org/10.1017/9781108965989.004

Publisher: Cambridge University Press

Print publication year: 2021


BOOK CHAPTER

Chapter Two – Contesting Shari‘a: Colonial Legal Politics

from Part I – Colonialism and Its Aftermath, 1884–1991

Shari‘a Inshallah Finding God in Somali Legal PoliticsPublished online by Cambridge University Press:  13 May 2021

By Mark Fathi Massoud


Mark Fathi MassoudMark Fathi Massoud is a Professor of Politics and Legal Studies at the University of California, Santa Cruz. He is the author of Law’s Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan. He has held Carnegie, Guggenheim, and Mellon Foundation Fellowships.


In this chapter

INTRODUCTION

MULTIPLE COLONIAL LEGACIES

SomlegalAds

BUILDING A COLONY THROUGH LAW

Composing “Legal” Agreements

Managing Custom and Dispute Resolution

Devolving Power to Local Elites: Hiring Aqils and Formalizing Dispute Resolution

Establishing Two Sets of Courts: Civil and Islamic

Italian Somalia: Charter Company Shari‘a

SHAPING A COLONY THROUGH RELIGION

Sheikh Hassan’s Rise

Bringing Shari‘a into Battle

CONCLUSION

 

INTRODUCTION

I have sought and found the Prophetic guidance To tell the unbelieving white invaders:

This land is not yours.

Sheikh Mohamed Abdullah Hassan, Dardaaran

(“The Will”), composed during his struggle against British colonialism[1]

Shari‘a Inshallah Finding God in Somali Legal Politics
Somaliland (national border as claimed by Somaliland), 1991–present.

On a cool afternoon in Hargeisa, I met with a prominent sheikh. As we shared a pot of tea while sitting cross-legged together on a large rug in his office, I mentioned I had come to see him for a book I was hoping to write about law in Somaliland and Somalia. He nodded, raised a corner of his lips into half a smile, and began by discussing his grandfather. The sheikh called his grandfather “the most prominent sheikh in [colonial] Somaliland … famous and very rich.”[2] He had sired more than seventy sons and daughters from many wives, I was told. Colonial officials had appointed him to the prestigious post of qadi (judge of an Islamic court). Once a Somali man was brought to his grandfather’s court for killing a British soldier, and his grandfather the qadi ordered the killer to pay fifty camels in diyya (roughly translated as blood money). A British official asked the qadi why the families of slain Somalis received 100 camels, but this diyya judgment would be only fifty camels. The qadi responded that, under shari‘a, the murdered British man was considered ahl al-kitaab (a Jew or Christian; literally, in Arabic, “a person of the book”), so the diyya was half of what a Muslim would receive. Had the deceased been neither Jewish nor Christian, the qadi continued, compensation to the British man’s family would have been even less – only one-third the number of camels for a murdered Muslim.

Colonial officials and Somalis in the Horn of Africa disagreed over whose law ought to prevail. They each tried to impose a distinct vision of law, including religious law, onto the other and onto society. Radically plural legal practices, institutions, and personnel mediated the delicate balance both parties struck between tradition and modernity, rights and duties, and faith and secularism, as individual actors also sought to fulfill their own desires for political influence, economic wealth, or adherence to the rule of law. This use of legal mechanisms to achieve economic, social, or political goals – that is, legal politics – shaped colonial relationships between British officials and Somalis.

Insofar as British officials were concerned with religion, they were not trying to purge Islam from Somali life so much as change how Somalis used it outside their mosques. British officials sought to update or “modernize” Islam to fit their civilizing and state-building missions.[3]But even as they sought to stem the rise of versions of shari‘a with which they disagreed, they seemed to submit to Islamic legal politics themselves by promoting their own version of shari‘a. As Somalis attempted alternatingly to benefit from and resist colonial domination, they too turned to a blend of legal and religious discourse. Drawing on the case of the British Somaliland Protectorate (hereafter “British Somaliland”), this chapter documents the colonial legal politics of religion.

British colonial officials and Somalis fought not only by forming militias and killing each other but also by engaging in a battle of ideas over what law means. The war of words concerned which group – Europeans or Africans – was best suited to resolve people’s disputes, to interpret and teach law, and ultimately to win the support of the nomadic and pastoral Muslim communities spread across the northern Horn of Africa’s grasslands and deserts. This discursive contestation over who had the power to control law, and whose interpretations of shari‘a were more legitimate, ran through the colonial project and remains the key legacy that has shaped Somali politics since, including its postcolonial periods of democratic and autocratic rule, the state’s 1991 collapse, and the ensuing attempts at reconstruction, resurrection, and constitutionalism.

My research for this chapter draws primarily on colonial records I consulted in the United Kingdom. I have supplemented this documentary evidence with fieldwork and interviews I conducted with Somalis who worked for or lived under the British colonial administration, or with their descendants. The chapter focuses on British Somaliland, though I draw parallels to Italian Somalia (Somalia Italiana) where relevant. This chapter shows how both colonial officials and those resisting them expressed their developmental goals, revolutionary hopes, and political fears through legal and religious discourses. Surprisingly, both colonial administrators and anticolonial activists used the same political strategy to pursue their opposing goals of building a governing apparatus or tearing it down: establishing law and courts to help people resolve their disputes. But in neither case was promoting law enough to build the rule of law, nor even to establish stable legal institutions that would someday ensure the rule of law. At the same time, both British administrators and those who fought them used Islam as a tool of legal politics, with each side invoking shari‘a against the other in a battle for political power.

Legal pluralism served colonial interests by making Somalis seem ungovernable. It was through colonialism’s separation of shari‘a, xeer (Somali custom), and English common law that a rigid and tripartite form of legal pluralism took shape. In it, three separate legal systems vied for legal power: religious, traditional, and “modern.”[4] This legal pluralism became a tool of colonial authority. The idea that the Horn of Africa was an ungovernable space – in part because Somalis were still applying non-British-approved versions of shari‘a and customary law – began to become entrenched. Rigid jurisdictional boundaries between legal systems were further hardened by Somalis and colonial-era anthropologists whose research on dispute resolution and kinship made its way back to the region.[5] Colonialism compartmentalized the people and the procedures of dispute resolution, shaping how Somalis viewed themselves as clan-oriented people navigating through a troubled legal scene and pulled between the demands of religious law, clan law, and foreign law.

Paradoxically, even as the British attempted to build a secular colonial state, they also waged an Islamic resistance of their own. In particular, the anticolonial nationalist movement led by Sheikh (Sayyid) Mohamed Abdullah Hassan, a Somali leader who had studied in Mecca, had to confront a British colonial administration that deployed its own transnational Islamic discourse – using statements by religious leaders and envoys in Mecca and Sudan – against Sheikh Hassan. Confronting diversity among Muslims in their understandings and practices of Islam, the British became partisans in the battle, promoting some views of shari‘a over others and capitalizing on debates between Muslims over whether Sheikh Hassan’s actions were consistent with shari‘a. Shari‘a was an important part of the state, restricted to the Islamic courts that the British had instituted. These courts and written communications from British officials explained dutifully to Sheikh Hassan and his followers the administration’s official view of shari‘a’s meanings, with support from Mecca.

After exploring the Horn of Africa’s multi-colonial legacy, the chapter turns first to the law and discusses four essential features of colonial legal politics, with a focus on British Somaliland: (1) drawing up colonial charters or political agreements between colonial officials and local notables designed to allow foreigners to enter the territory; (2) managing disputes by controlling local custom; (3) employing a new class of legal professionals to resolve disputes; and (4) establishing Islamic (qadi) courts. After examining the importance of legal politics in creating the colonial state, the chapter then turns to religious politics, particularly the ways in which British officials and Somali intellectuals took Islam into war by fighting discursive battles over the meaning of shari‘a.

The chapter thus illuminates key events in which both law and religion came to matter for colonial officials and their adversaries: the treaties between British officials and Somali elders that forged Britain’s coastal outpost in the mid-1880s; the establishment of courts to resolve people’s disputes; and the two-decade war (1899–1920) between the British administration and the followers of Sheikh Hassan. That war was among the longest and greatest tests that shari‘a ever put on a British colonial administration. Estimates suggest that 200,000 to 300,000 Somalis were killed because of this conflict – that is, nearly a third of the Somali population of approximately one million – which makes it one of the most devastating wars in the region’s history.

Sheikh Hassan was not the only Somali to use Islam in the struggle against colonial rule. Other Islamic-oriented anticolonial movements in the region included the struggle that led to the Lafole massacre (1896), the Biimal revolt (1896–1908), and the revolts led by Sheikh Hassan Barsane (d. 1926) and Sheikh Bashir (d. 1945).[6] The shared use of Islam by colonial rulers, by those who struggled against colonialism, and by those who sought to repress anticolonialism was a central and enduring feature of shari‘a politics in the Horn of Africa. The chapter concludes by examining the implications of this colonial legal politics for the study of law, shari‘a, and state development.

MULTIPLE COLONIAL LEGACIES

The Horn of Africa is home to a population consisting primarily of Muslims of Somali lineage. Colonialism split the Horn into five areas: British Somaliland, Italian Somalia, French Somaliland, the Ogaden area of eastern Ethiopia, and the Northern Frontier District of Kenya. A small number of non-Somalis (mostly Europeans, Arabs, and South Asians) and non-Muslims (Jews and Christians) also lived in the Horn during the colonial period.[7] The region, which “flanks the [trade] route to India,” has been colonized by perhaps more foreigners than anywhere else on the continent – first by the Egyptians with Turkish assistance through most of the nineteenth century and then, starting in the 1880s, by the Ethiopians, the British, the Italians, and the French.[8] Each of these foreign empires carved up a different part of the Horn for itself. While the Germans never formally colonized the region, their watchful gaze, and rumors of negotiations with Italy to purchase land in Italian Somalia, reemphasized the region’s importance to European empires.

As early as 1870 the British government expressed interest in adding the Horn of Africa to its colonial empire. British military records suggest that the army conducted its own reconnaissance of the region around that time to determine which foreign actors controlled the coastline. They found that each Somali group along East Africa’s coast had its own sultan. These nobles, who were sometimes also called chiefs, knew Somali and Islamic law. But there was no European presence, which helped the British government justify its plans to secure trade routes to Aden (across the Gulf of Aden) and South and East Asia.[9]

Though Egypt did have some military presence in Somaliland, in 1884 an opening emerged for the British. Egypt had begun to turn its attention to a nationalist and Islamic revolution in Sudan, led by the self-proclaimed Mahdi (“anointed one”).[10] Because Sudan is upstream on the Nile River, Egypt’s essential source of water for agriculture, the revolution there threatened Egypt’s security. As the Egyptian military shifted its focus away from the East African coast, a British constabulary began policing the region. Accounts vary as to the precise rationales for the British entry that year, but colonial communications reveal a desire to maintain Britain’s regional dominance.[11] The British probably also sought to be the first Europeans to fill the power vacuum left by the Egyptians; French, German, and Italian competitors were nearby. In addition, the region’s strategic location linked Europe and the Suez Canal with South and East Asia, and the Horn offered known resources, including fish, camels, goats, and sheep. Finally, British military officials were cognizant of Sudan’s nationalist rebellion, in which some British generals and soldiers had been killed, and likely wanted to stave off the possibility of another Mahdist rebellion on the Somali coast. Working with Somali sultans and elders would maintain local order and help open trade discussions between Somalis and the British, who needed resources like food and camels for their military outpost in Aden.

A sustained British presence, rendered official by treaties between British officials and Somali elders, began about 1884. From that year through 1960, British officials would stake their claim to the territory along the African coast of the Gulf of Aden not by force, but by signing legal agreements with Somali sultans, giving them official duties, writing new laws, and developing a colonial relationship with shari‘a. The British saw Somali sultans as the official representatives of the region’s diverse nomadic and kinship communities. Collectively, the treaties established what Great Britain would call the British Somaliland Protectorate. The British promised “friendly tribes” military protection while agreeing not to interfere with Somali affairs, settle on Somali lands, or marry Somali women. In turn, the Somalis promised to allow British people and British coastal vessels to move freely and conduct trade and pledged not to cede any territory to non-British Europeans. On the one hand, these agreements meant British Somaliland was not an official colony overseen by London’s Colonial Office and, thus, merited less attention from the metropole than, say, India or the Gold Coast. The British, particularly early on, were not attempting to create a state in the same way they did in the twentieth century in places like colonial Nigeria, India, or Sudan. On the other hand, Somalis certainly did not escape British meddling.

In the mid-1880s, as the Egyptians were departing the northern Horn and the British were arriving, Italians began to settle the Horn’s lush eastern coast, just south of British Somaliland. The British and Italian colonial projects differed in two primary respects. First, the British government ran its colony directly, employing a small network of British district commissioners and military officials, sometimes seconding them to Somaliland for short periods from other overseas colonial postings. The Italian Foreign Ministry, on the other hand, began its colonial project by outsourcing it to charter companies that were under strict instruction to “maintain good relations with … native[s] … in order to attract their trade.”[12] The Filonardi Company governed areas of southern Somalia from 1893 to 1896. Following a gap from 1896 until 1899, the Benadir Company took over until 1905. (Italy governed Italian Somalia directly from 1905 to 1941, when it fell to British military occupation.)

Second, the British and Italian colonial projects differed in type of settlement. While the British agreed not to settle non-Somalis in British Somaliland, the charter companies of Italian Somalia were busy creating settler colonies for Italians. One of their goals was to ease overcrowding in the young kingdom of Italy, formed in 1861. Italian traders married Somali women, converted them to Christianity, and started families. By the mid1950s, a few years before independence, about 5,000 Europeans lived in Italian Somalia, while only about 250 Europeans lived in British Somaliland.

However, as neighboring colonial projects, British Somaliland and Italian Somalia were also similar in many respects. Both Britain and Italy sought natural resources, trade, and a foothold in the Horn’s strategic location, and both administrations were intent on writing laws and enforcing them. The Filonardi Company in Italian Somalia, for instance, quickly passed laws decreeing all uncultivated lands (terre incolte) Italian government property and granting Italy the exclusive right to exploit “minerals or deposits of any sort of metals, minerals, mineral oils, and precious stones.”[13] Both colonial administrations also integrated shari‘a into their work, promoting it as a form of judicial development – but only insofar as they found Islam to be compatible with their foreign rule and European principles of law and morality.

Of all the colonial projects in greater Somalia, that of the British dominated through its combination of longevity and territorial expanse. It encompassed the northern Horn for seventy-six years, from approximately 1884 until 1960. While Italian Somalia occupied more land, Italian rule ended about twenty years earlier. Mussolini’s government integrated Italian Somalia into Italian East Africa (Africa Orientale Italiana), which included parts of Ethiopia and Eritrea, in 1936.[14] In 1941, during World War II, the British military captured Italian Somalia and controlled it for almost a decade before handing the territory over to the United Nations in 1949. The United Nations, in turn, invited Italian officials to administer ex-Italian Somalia until its independence in 1960.

The other colonial projects took smaller territorial bites out of greater Somalia. Starting in about 1888, the French government settled a tiny bay area, just north of British Somaliland, that they called Côte Française des Somalis (French Somaliland). It was renamed Territoire Français des Afars et des Issas (French Territory of Afars and Issas) after a failed 1967 plebiscite on independence, and it became Djibouti after gaining independence in 1977. Complex relationships among European, Ethiopian, and Kenyan elites meant that European colonial officials agreed to cede other areas of Somali-occupied land to Ethiopia and Kenya. In addition, Ethiopian power had extended into the Somali-inhabited Ogaden region during the 1880s, under Emperors Menelik and Menelik II.[15] As a consequence of these multiple colonial legacies, today Somalis remain divided into five political regions (Table 2.1).

Prior to the arrival of colonial officials, pastoral communities interacted with one another largely through their elders.[16] There was no single ruler or government. Elders used local custom to make decisions. Custom was informed by shari‘a, which arrived in the Horn of Africa from Mecca centuries before European administrators did. Shari‘a was also embedded in the template that elders used to mete out punishment and award compensation in cases of personal injury or community harm. Despite their differences in colonial heritage, and the differing laws that various empires brought with them, Somalis I met agreed that their shared legal history was Islamic. Shari‘a was “the law,” one religious leader told me in Hargeisa, during “the three hundred years before the British” arrived.[17] A Somali aid worker in Nairobi agreed, saying “Somalis were in one territory when they received Islam, [so] the largest reference to any legal system is Islamic.”[18] While there was great variation in how Somali people practiced shari‘a, Somali leaders gave primacy to orthodox versions of shari‘a, according to Islamic standards in Mecca. Colonization would come to influence people’s understanding of Islam. By introducing the notion and institutions of the state, colonization allowed authorities to infuse shari‘a into the workings of state institutions, fundamentally altering the context and scope of shari‘a and making Islamic legal politics possible.

Table 2.1 Somali populations in the five regions of the Horn of Africa

Political regionColonial nameOccupying power and period of controlIndependence
SomalilandBritish Somaliland ProtectorateGreat Britain, 1884 (approx.)–1960June 26, 1960

May 18, 1991[19]

Somalia

Somalia Italiana (Italian Somalia, renamed 1950–1960 as United Nations Trust Territory of Somaliland)

Italy, 1885 (approx.)–1941

Great Britain, 1941–1950

United Nations, 1950–1960 (employing Italian administrators)

July 1, 1960
DjiboutiCôte Française des Somalis (French Somaliland), renamed 1967–1977 as Territoire  Français des Afars et des IssasFrance, 1888 (approx.) – 1977June 27, 1977
Northern Frontier District (Kenya)British East AfricaGreat Britain, 1888 (approx.) – 1963December 12, 1963
Ogaden (Ethiopia)N/AN/AN/A

Source: Compiled by the author.

BUILDING A COLONY THROUGH LAW

Colonial administrators and Somalis disagreed about which legal orders and legal personnel were best suited to govern the Somali people and resolve their disputes. In British Somaliland, this colonial legal politics had four central features: (1) composing formal agreements between colonial officials and Somalis; (2) managing dispute resolution processes; (3) giving power to new classes of legal elites; and (4) establishing Islamic courts and other legal institutions. In general, these colonial interventions facilitated the emergence of new hierarchies among both customary Somali methods of dispute resolution and institutions the British established. Although Somalis had for centuries linked xeer and shari‘a into a single form of dispute resolution, British colonial attempts to decouple them – by compartmentalizing shari‘a into courts that heard only cases of family law – shaped how Somalis saw Islam not only as their faith but also as a source of state law, built atop and separated from religion.

The British reconfigured Somali dispute resolution methods into a British-controlled hierarchy of legal personnel and institutions, including Islamic courts, as they sought to create a state-like structure in Somaliland. Shari‘a thus became a tool for the British and the Somalis who worked for them to alter the division of labor in the administration of justice. This management of religion – specifically, indenturing religion to the state – encouraged Somalis to move away from tradition and toward modernity, separating their Islamic beliefs from a growing awareness and use of state law. The British sought to increase their power by granting themselves final authority over shari‘a. With this authority, the British government portrayed itself as the “ruler” of the world’s “greatest Mohammedan empire.”[20]

Composing “Legal” Agreements

British colonial officials used techniques of law to enter and govern Somali territory. Specifically, they designed, drafted, and recorded agreements with Somali elites. Legal discourse and contractual commitments complemented military prowess as an expedient way to enter a land, advance a colonial enterprise, and lay the foundation for a state system. When the British arrived in the Horn of Africa, they needed to build sufficient trust with the Somali populations to enable trade for sheep and cattle to feed soldiers stationed at the British outpost in Aden. To build this trust, the British adopted a strategy not dissimilar to those they had used in other colonies: give their agreements with Somalis a legal form, while allowing Somalis to continue to govern themselves. Such an “indirect rule” propagates subordinate forms of authority, breaks lines of responsibility, and diffuses resistance.[21]

In 1827, the British government began formalizing occasional agreements with Somali communities, typically following attacks on British ships off the African coast.[22] To earn the support of Somalis facing Ottoman and European imperial scrambles for African territories, British officials in the 1880s promised full protection and order. On August 1, 1884, the British government gave bold public notice of its intent to occupy the Horn of Africa’s northern coast by informing ports along the Gulf of Aden that “Unless the Turkish Government takes immediate steps to occupy the coast areas, His Majesty’s Government would send a force there to preserve order.”[23] British officials had actually begun their occupation months earlier using the art of law. They had been quietly arranging written agreements with Somali sultans, many of whom were trained as sheikhs through their study of shari‘a and fiqh.

The sultans, seen as respected members of their communities, were suspicious of foreigners, especially non-Muslims.[24] Somalis suggested privately to me that British government representatives negotiated with sultans in order “to silence” them and, thus, disarm the potential for Islam to grow in local political life.[25] Between 1884 and 1887, the British recorded ten agreements with seven Somali communities. Perhaps to showcase both British authority and Somali communities’ feeling of independence from British imperialism, the British government labeled each document an international “treaty.”

The language of each treaty was formal and the text was short, one to two pages long. They were written in English and recorded on hide. It is unclear whether even the most capable Somalis were able to decipher the legal texts. But those who signed them knew their contents. These local sultans and elders saw themselves as “kings of the land,” and Somalis I met who descended from these men recalled to me the essential provisions of the treaties, which had been passed down orally.[26] (There was no official Somali script until the 1970s, and I have been unable to find evidence of the existence of Arabic versions of the treaties, which educated sultans and sheikhs who had studied overseas in Cairo or Mecca would have been able to read.)

Generally, the ten treaties included similar provisions that promoted the contradictory notions that Somalis were both independent from and reliant upon foreign intervention. Though the treaties do not mention Islam, each one legalizes distinct diplomatic moves toward Britain’s colonial goals.[27] The Eisa treaty, for instance, which is similar to the other agreements made during this period, includes the following preamble: “We, the undersigned Elders of the Easa [sic] tribe, are desirous of entering into an Agreement with the British Government for the maintenance of our independence, the preservation of order, and other good and sufficient reasons.”[28] In the handful of treaty articles that typically followed, the Somali signatories would cede many rights, including agreeing not to “sell or give for occupation” any portion of their territory (Article 1), not to restrict free trade or the movement of British persons and vessels (Articles 2 and 3), not to traffic in slaves (Article 4), and, critically for colonial purposes, to allow the British to establish an “agent” entitled to respect in the territory (Table 2.2).

Table 2.2 Treaties protecting colonial interests

Treaty dateTreaty parties            Relevant treaty details
British treaties with Somali elders
May 1, 1884British government and Mijjertein eldersNot allowing foreign occupation, free trade for British
July 14, 1884British government and Habr Awal eldersNo contact with foreign power without British approval
Dec. 11, 1884British government and Gadabursi eldersNot allowing foreign occupation, free trade for British
Dec. 26, 1884British government and Habr Toljaala eldersNot allowing foreign occupation, free trade for British
Dec. 31, 1884British government and Isa (Eisa) elders“Maintenance of [Eisa] independence,” not allowing foreign occupation, free trade for British
Jan. 13, 1885British government and Habr Gerhajis eldersNot allowing foreign occupation, free trade for British
Jan. 27, 1886British government and Warasangli eldersAssisting wrecked ships (Article III)
Feb. 1, 1886British government and Habr Gerhajis eldersNot allowing foreign occupation, free trade for British
Feb. 1, 1886British government and Habr Toljaala eldersNot allowing foreign occupation, free trade for British
Mar. 15, 1886British Government and Habr Awal eldersNot allowing foreign occupation, free trade for British
Treaties among foreign powers
Sept. 7, 1877British and Egyptian governments (via Sultan Khedive)Assurances not to cede authority over the Somali coast to foreign powers; Britain neither recognizes nor refutes Sultan Khedive’s claims to sovereignty
Mar. 15, 1883Italian government and Sultan of AssabDemarcates Red Sea coastal territory of Ablia (Aussa)
May 14, 1897British government and Abyssinian EmpireSets boundary between British Somaliland and Ethiopia

Note: This table includes only the ten treaties that the British Government made with Somali communities and recorded collectively in its Foreign Office Confidential Prints in June 1887, along with three treaties among foreign powers, also available in British colonial records.

Sources: Great Britain Treaties with the Tribes on the Somali Coast (Eisa, Gadabursi, Habr-Awal, Habr Toljaala, Habr Gerhajis, and Warsangali treaties), June 1887, Foreign Office Confidential Prints, Bodleian Law Library, Oxford University, file 5453; “Lieutenant General Sir Reginald Wingate’s Special Mission to Somaliland,” June 12, 1909, Foreign Office Confidential Prints, Bodleian Law Library, Oxford University, 9507/13.

The British government viewed these agreements both paternalistically and imperially and bound itself to a single basic promise: to protect Somalis from belligerent attacks. In a memorandum to the Foreign Office in London, a British official shared his view that “Our Protectorate Treaties amount to an undertaking to intervene actively on behalf of the protected tribes in case of unprovoked attack on them or their territories.”[29] It is unclear what kind of “unprovoked attack” the British or their Somali counterparts may have been worried about, but in the imperial race to carve up the African continent in the 1880s, the British wanted access to strategically located coastal regions before other Europeans took them.

By the summer of 1887, just over three years after signing its first treaty of protection with elders of the Mijjertein community, Britain’s legal occupation of the northern coast of the Horn of Africa was complete, and the boundaries of British Somaliland were drawn. The British government duly notified “the [European] Powers that the Somali Coast from Ras Jibuti to Bandar Ziada had been placed under British protection.”[30]Great Britain’s claims to the northern Horn of Africa were thus rendered official, at least to European competitors, through treaty documents and notifications. To ensure European rivals did not supersede British claims to authority, the British also signed treaties with them. An Anglo-Italian Protocol in the 1890s, for instance, ensured that the British and Italians knew their respective spheres of influence along the coast as well as the spaces controlled by Abyssinians in the interior.[31]

If the treaties were designed to build trust in the British colonial project through promises of protection and non-intervention, did the British keep their side of the bargain? Evidence is scattered, but three points suggest the British sought, at some expense, to ensure that they complied with the treaties they signed. First, the British set up and used militias of British officers and Somali soldiers to protect Somali communities, particularly from raids by other Somali communities seen as hostile. Second, the British did not allow European settlements in Somali areas, just as they had promised – a point repeated, with affirmation and support, by many Somalis I met during my fieldwork. And third, while the British initially allowed a Roman Catholic mission to open in May 1909 in the coastal town of Berbera, this religious institution was eventually shuttered following complaints by Somalis who felt that the British were using the school and church to convert Somali Muslims to Christianity.[32]

And what about the Somali elders whose names appear on these treaties? What was their incentive to formalize contracts with foreigners whom they likely did not trust? Somalis could not have known what level of colonial intervention these free trade treaties and a British “agent” would eventually license. The treaties gave Somalis little work to do in exchange for promises of protection, except to refrain from killing British persons. Protection mattered, particularly as camel raids and other offenses between rival communities were common. And Somali elites were already well accustomed to making and respecting oral agreements, as they had done for centuries with one another. The British treaties also reinforced the elders’ stature as the key leaders of their communities.

Managing Custom and Dispute Resolution

While political agreements with Somali elders allowed the British government to plant a foothold in the region, British officials turned to law once again to build trust among a skeptical population. This time, they did not use legal documents but instead co-opted existing mechanisms of dispute resolution. That is, the British hired local agents to serve the colonial administration by resolving everyday disputes. According to this strategy of colonial legal politics, as the administration’s paid judges resolve more disputes over time, their work strengthens local trust in the colonial empire and its project of grafting a formal state-like structure over diverse communities, tying local interests to the colonial project.

The British hoped to create new dispute resolution processes among Somalis, but they knew Somalis were already resolving disputes their own way. Somalis had for centuries practiced a bilateral and bottom-up system of dispute resolution known as xeer. In this indigenous system of common law, elders (in Somali, odayal) in rival communities resolve each dispute through precedent generated by decisions recognized between those two communities. If a grave offense is committed by a member of one community against a member of another community, that offense becomes collectivized and elders from the two communities meet and discuss it. When sitting in this capacity, the most respected elders are called guurti. Compensation is determined by the resolutions of similar past incidents between the communities. If the offense is new, the elders’ decision holds precedential value only between those two communities and only for similar future offenses. Xeer is thus divided into two categories: ugub (new decisions that set precedent) and curad (precedent from prior decisions). A diffuse Somali common law thus emerges bilaterally, organically, and orally in response to disputes. These contractual relationships and precedents form the basis of dispute resolution between Somali groups.

Because xeer varies across dozens of communities known informally as clans and sub-clans, Somalis debate the extent to which religious law forms the foundation of the xeer system. One Somali interviewee explained the difficulty of distinguishing the sources of oral judgments: “I don’t know how people resolve disputes – [is it] xeer, Islam, or a blend … Who are we to decide what they relied on?”[33] The xeer system may be described as prima facie non-religious, though it is similar to and likely draws from religious rules, depending on the two communities involved. That is, religion is neither necessary nor sufficient for xeer. Though Somalis disagree on whether shari‘a is the foundation of xeer, no one disputes that shari‘a is woven into xeer’s fabric, particularly in cases of punishment or compensation. This deep interrelationship between shari‘a and xeer is important because the British had other plans for structuring the Somali relationship with shari‘a. In particular, by separating dispute resolution principles into those drawn from tradition (xeer) and those drawn from faith (shari‘a), British administrators constructed a colonial state with the power to manage religion.

As in other colonies on the continent, the British turned to African elites to mediate people’s disputes. Changing Somali dispute resolution procedures aimed to allow the British, in their words, to rule through influence rather than coercion. According to Hargeisa district commissioner (and later British Prime Minister) Winston Churchill, “Political officers must at all times bear in mind that the [Somali] tribes should be managed through influence … Coercion is a mistake … Moreover, it would be impolitic to use the relatives of tribesmen to coerce them in a matter deeply affecting the private life and habits of the people.”[34]Descendants of Somali sheikhs who worked in British Somaliland told me that their ancestors had been powerful and united across the region, despite perceived tribal or ancestral differences. Many of these sheikhs had relied on Minhaj al-Muslim (Arabic: The Way of the Muslim), an Algerian text based on the Prophet Muhammad’s teachings, for dispute resolution. The British tried to create a new elite who would turn away from al-Minhaj and instead use the Indian penal code that colonial officials brought with them to the Horn in the early twentieth century. The goal was to reduce sheikhs’ social influence by transferring religious authority to personnel and institutions the colonial administration created and managed.

Devolving Power to Local Elites: Hiring Aqils and Formalizing Dispute Resolution

The British were not the first outsiders to attempt to control dispute resolution mechanisms as part of a broader strategy of centralizing a governmental system and imbuing it with self-reinforcing legitimacy. The Egyptians, the Ottoman Empire’s representatives in the Horn, had done the same for decades during the nineteenth century, employing “salaried chiefs” called aqils (Somali: caaqil/caaqilo; Arabic, “wise person”).[35] The British resurrected the aqil as a category in Somali political life, increasing aqils’ prominence by hiring them and endowing them with authority to resolve disputes – using xeer – across the British-controlled territory. Both Egyptian and British efforts to devolve power to paid subjects of the administration were designed to enable foreign authorities to enter communities that were accustomed to transferring political and legal power through hereditary lineage.

While some British officials argued it would be unwise to employ “natives” as their agents along the Somali coast, British decision-makers put faith in their aqils and “were interested in maintaining” this Egyptian-founded system, according to aqils I later met.[36] British documents also reveal how they integrated Somali legal structures into their administration:

[When] we took over the administration of the Somalis from the Egyptians … we found that they had adopted a method, which we have carried on, of appointing headmen or “aqils” to represent each small section of the tribes with the aim of destroying the power of the hereditary sultans … presumably on the principle of “divide et impera” and it has certainly had the effect of dividing[,] for what power of control there ever was has passed from the hands of a few sultans to innumerable petty headmen … It is, however, doubtful how much real power these sultans ever had.[37]

Somali sultans and sheikhs I met during my fieldwork made the same point. Aqils as a group were designed to be the go-to source for local, everyday forms of dispute resolution. They also had the painful task of collecting taxes on behalf of the administration and became a police force of sorts for the British.[38] The British also served as a kind of police force for the aqils: “The soldiers of the British [would] arrest … those who refused our decisions,” according to one aqil I met who had worked for the colonial administration.[39] The aqils were subservient to British rule. The British would arrest aqils who refused to comply with directives, in some cases exiling them hundreds of miles away to the Seychelles.[40]

By employing aqils, British administrators formalized dispute resolution roles in a familiar way, thus allowing Somalis to accept, however tacitly, some amount of colonial intervention in daily life. The British codified the work of aqils and other dispute resolvers in the political structures they were attempting to create for Somali populations. These other legal personnel included the guurti, oday, qadis, sheikhs, and sultans (Table 2.3). If a problem was too large for aqils to resolve, such as a conflict or war between rival communities, the aqils would “assign … it to the guurti to solve.”[41] Guurti were ad hoc groups of elders chosen from among the most notable members of their communities to resolve specific disputes.

Table 2.3 Somali dispute resolvers in British Somaliland

TitleLegal roleHow transformed by the British
Aqil (caaqil/caaqilo/ooqal)Dispute resolvers and tax collectors“Aqil” position first used by Egyptian administrators in the nineteenth century. British officials also championed them. Sultans saw aqils as sultans’ deputies. British officials saw aqils as the colonial administration’s deputies
Oday (oday/odayal)Respected eldersN/A
Guurti (guurti/guurtiya)Oday who sit together as a decision-making body for large-scale conflicts such as intertribal war (literally, “detective”)

N/A

Qadi (qadi)Judge of an Islamic courtCreated by British colonial administrators
Sheikh (sheikh/ shuyukh)Leader in the community with superior knowledge of IslamBritish officials sought to reduce sheikhs’ influence by transferring Islamic authority to qadis in the administration’s Islamic courts
Sultan (sultan/ salateen)Leader of a Somali clan or kinship/familial unitPredated the colonial administration; the British sought to transfer power from what had been a small number of sultans to a larger number of aqils

Source: Author, derived from historical records and in-person interviews.

I met descendants of aqils, sheikhs, sultans, and other dispute resolvers who occupy positions similar to those of their fathers and grandfathers and to whom cases and decisions have been passed down orally. In their words, the British “activated” and “formalized” dispute resolution personnel and “paid them [each] a small salary” as compensation for their work.[42] But the process also entrenched rivalries. When I asked a sheikh whose grandfather was a qadi why his grandfather was not an aqil, he replied curtly that the aqil “was something that [showed] you belonged to those white people who came. People [like us] looked down on [the] aqil. It wasn’t something of pride.”[43] To dilute the religious authority of people like his grandfather, the sheikh said to me, “The British … created a new secular elite.” Though colonization created the positions of qadi and aqil, it also institutionalized a hierarchy and rivalry between Somalis occupying these two positions within the administration.

The British were so focused on creating competing legal elites that Somalis would come to view dispute resolution as the essence of the colonial enterprise. The British tried to compartmentalize Somalis’ legal order, dividing dispute resolution into distinct categories. “We learned from [British colonial officials] what is different between xeer and shari‘a, and how [to] run the formal law,” the former colonial aqil told me.[44] This British-instituted separation of xeer and shari‘a led a sheikh to tell me that sultans and aqils were Somalis’ preferred dispute resolvers while, to British officials, “The sheikh was the dirty man in the mosque.”[45]

As the British saw it, local legal personnel were a means to forestall violence and instability, though British officers were certainly arming Somali personnel in the event that this legal strategy failed. Somalis I met clearly felt that, although the British had built a military of Somali soldiers, British colonial administrators “were not interested in” creating a stable and powerful local legal profession, as they had been doing in colonies like Sudan or India.[46] After all, the British had signed a “protectorate” agreement whose primary goal was securing the territory rather than settling on or developing it. British administrators fragmented legal power and did not open any higher education institutions or law faculties. And, unlike in other British colonies, few Somalis were sent overseas for training in English common law.

Somali communities typically had no contact with the protectorate administration except when disputes needed resolution and they turned to its paid representatives for help.[47] But devolving power to a group of local elites did not always work exactly as the British intended. The British government’s own reconnaissance missions discussed British administrators’ “ineptitude” in understanding the situation of Somalis, particularly because aqils, dependent on British paychecks, felt unable to speak their minds openly.[48] Sheikh Idris Wad Abderrahim, a Sudanese notable whom the British had attached to an intelligence mission to Somaliland, wrote that he was “told that all the Somali employés [sic], such as dragomans, policemen, and even the kadi himself, take bribes when they have a chance.” They also “explain things in a misleading manner in order to please [the British] … This is one of the reasons which makes the British Government unpopular with the people of Somaliland.”[49]

Somalis sought out British magistrates in addition to or instead of their aqils, sometimes shopping between different legal institutions for a decision. According to British observers, this forum shopping created new administrative burdens because dispute resolution came to occupy most of a magistrate’s time. “It has become the custom for … disputes to be brought before the district magistrate instead of their being settled by the old tribal method and his time has become completely occupied with bench work instead of being free for constructive administration.”[50] Proposals to deal with the influx of complaints varied but generally included not hearing cases below a certain monetary value or delegating all judicial authority to “natives themselves.”[51] The British “made a start in this direction by the formation of ‘aqils courts’ that adjudicate on petty cases. They have worked fairly satisfactorily but their decisions are subject to constant scrutiny of the district officer and, more important, the enforcement of their decisions must lie entirely with him.”[52] The administration kept a roster of its aqils, who rotated among the aqils courts of Somaliland’s colonial districts.[53]

The British shaped Somali politics not only through dispute resolution, but also through an intricate geopolitical system. This policy of dividing the Somali interior into districts, each with a political officer overseeing it, began in 1906.[54] By 1931, about fifty years into its colonial project in the Horn, the British administration had divided its territory into five districts, each with a district magistrate supported by police and the Camel Corps (a military force). In these five districts were more than 200 aqils.[55] Each of these 200 aqils was tasked with “representing about one thousand natives.”[56] In an address on the situation of Somaliland, Sir Harold Baxter Kittermaster argued that the aqils were useful in providing order, as “No native would dream of listening for a moment to any order or advice given except by his own particular aqil. This excessive representation,” Kittermaster continued, “is to my mind the weak point of our whole administration.”[57] Others argued that letting these “tribal elders” resolve disputes did not always work because “In the case of intertribal disputes the invariable consequence of our refusal to arbitrate is a recourse to arms, the result being that intertribal relations become embittered.”[58]

Establishing Two Sets of Courts: Civil and Islamic

The British administration sought to control nonviolent forms of dispute resolution by establishing courts. Colonial officials were so intent on controlling the institutions of dispute resolution that protectorate laws provided for imprisonment of up to one year or a fine of up to 1,000 rupees for anyone “attempting to exercise judicial powers unlawfully or [to] adjudicate without authority to do so.”[59] Colonial administrators constructed two sets of courts in British Somaliland, divided by their jurisdictions. First were Islamic courts led by qadis. These “qadi courts” dealt with those matters that the administration deemed nonpenal. Primarily these were personal status matters, such as marriage dissolution and family inheritance. (The qadi courts would become Somaliland’s postcolonial District Courts.)

The non-Islamic courts were called “civil courts” and dealt with matters that the British described as penal. These courts did not use shari‘a. The bifurcated system thereby prevented Somalis from using shari‘a to address crimes and relegated any formal or specific use of Islamic law to family disputes. Because shari‘a had been integrated into xeer prior to British arrival, Somalis were not accustomed to using shari‘a in this way – that is, tied to courts that heard only family disputes.

While Somalis used structures they had called mahakim (courts) before the British arrived, historical evidence suggests that after they arrived the idea of courts took on a new meaning tied to foreign intervention.[60] To administer the qadi courts, for instance, the British employed some Somali judges but also brought trained judges from nearby Sudan. In the words of one Somali I met, the British thought it was prudent to appoint a judge in each court “who looks like” Somalis and is also Muslim.[61] Setting up qadi courts alongside civil courts allowed the British administration to control religion, limit the power of sheikhs, and promote a specific version of shari‘a that was tied to the state. British officials presented the colonial state as an enterprise that could work for shari‘a, rather than against it. The importance of institutionalizing Islamic courts to the colonial project led some Somalis to tell me they felt that the British “did not have a war against Islam.”[62]

The British created the qadi courts to serve as institutions of justice. They would become sites of contestation, and law and religion became their languages of contestation. The British use of Islamic family courts in particular led some Somalis to tell me they believed that Somalis were “much more secular” before British colonialism, when Somalis first learned how religion could shape a European-inspired judicial structure.[63] By formalizing law into structures they called courts, the British built up Islam not merely as belief (Arabic: ‘aqeeda) – to which nearly all Somalis already subscribed – but also as state law. Building this political bridge between Islam as a form of faith and Islam as a form of law associated the religion with the colonial state, its legal institutions, and its legitimacy. The British had done this in other places as well.[64]

By defining the jurisdictions of legal institutions, colonialism delineated the boundaries between religion and dispute resolution and sought to keep those boundaries as rigid as possible. Aqils would use their xeer for cases of personal injury, qadis would use their shari‘a for family matters like marriages and divorces, and British magistrates would use their own principles of justice for criminal matters while enjoying supervisory and appellate authority over aqils and qadis. Despite these differences, aqils and qadis alike were paid by the British administration.[65] The result of using Somali subjects to graft British-controlled legal structures onto preexisting dispute resolution processes led to a complex and layered system of what became labeled as “formal” dispute resolution (including in Islamic courts that the British set up and used) and what became labeled as “informal” or “traditional” dispute resolution (through aqils and clan chiefs and other elders).

Shari‘a traversed these boundaries between formal and informal, traditional and modern. The British saw shari‘a as both the modern way to deal with family-oriented disputes and the premodern – and thus unacceptable – way to deal with criminal offenses, for which the British imported their Indian colony’s penal code. Xeer and shari‘a had been closely linked before the British arrived in the Horn of Africa. The British then decoupled the aqil from shari‘a, creating a distinction between the customary law that aqils were to use and the Islamic law that qadis were to use.

The British maintained Somali practices but subsumed them under imperial institutions. And, to showcase British sensitivity, Somalis could appeal to the local government – including the British district commissioner’s office in the area – to review a particular situation when problems arose that aqils could not resolve. To some Somalis, the system seemed to function, at least from a distance, and a form of the rule of law existed. Echoing others I met, one former senior Somali government official said to me, “During the British time, there was [very little] corruption … Nobody would dare ask for a bribe, because you could always go to the British District Commissioner and say ‘this person asked for a bribe.’ During the British things were done fairly, squarely, and by the book.”[66]

Legal personnel and institutions mattered to British colonial administrators, who encouraged Somali elders, qadis, and district commissioners to use law to resolve people’s disputes. The practice of asking Islamic courts and shari‘a-oriented judges to resolve disputes, when repeated over time among different communities, was designed to help build colonial legitimacy via Somalis’ Islamic faith. This practice took place not only in British Somaliland but also to the south, in Italian Somalia.

Italian Somalia: Charter Company Shari‘a

The law in Italian Somalia was more arbitrary and legal structure even more fractured than in British Somaliland. By the same token, Italian administrators did not restructure Somali dispute resolution processes as thoroughly as the British had done. The primary reason for these differences is that for most of the early colonial period when Italians were setting up a colonial project, Italian Somalia was governed by a charter company.[67] Italian Somalia’s first governors came from the Filonardi Company (1893 to 1896), followed by the Benadir Company (1899 to 1905). The Italian government controlled the area directly between 1896 and 1899. The basis for the Somali state legal system in Italian-controlled areas thus came largely from these trade-promoting companies. Both the Filonardi and Benadir charter companies “took advantage” of Somalis’ pre-existing social structures by giving them “official recognition” and turning “the elders” into “government agents [who] received monthly allowances from the Italian authorities.”[68]According to historian Robert Hess, “In undertaking para-governmental operations, the Filonardi Company laid the basis for indirect rule … Filonardi’s judicial system was based on the traditional role of the cadis and on the Shari’a.”[69] After the Filonardi Company’s demise, the Benadir Company took control of major ports and continued the practice of relying on shari‘a, adding another class of dispute resolvers known as “warrant chiefs.”[70] The Benadir Company, like the British further north in Somaliland, also allowed appeal from the cadis and walis (local governors) to the central administration.[71]

Again like the British, the administrators of Italian Somalia wrote laws that justified and explained their activities. The Filonardi Company, for instance, prohibited the trade of slaves and required Somalis to obtain permission to cut down trees, a critical source of the region’s cooking fuel. Vincenzo Filonardi, a navy captain and Italian Somalia’s first governor, placed his hope for the territory on a legal foundation: in his private correspondence, he stated that the administration of justice – which he saw as the “repression of abuses, impartiality, and fairness of judgments” – would earn his company “the confidence of the population.”[72]

The Italian Foreign Ministry adopted an approach that integrated local norms into the legal fabric of the colony, just as the British had done. The Foreign Ministry dictated to the charter companies that “whereas Italian law was to be applied to Italian nationals, native law was to be honored for the Somali.”[73] A contract between the Italian Ministry of Foreign Affairs and the Filonardi Company indicated that the charter company would administer ports and pay all officials, including judges, to “continue to administer justice in the name of the Sultan and in accordance with the shari‘a.”[74]

The Italians, in a key difference from the British, did not devolve power to local elites so much as subsume “native law,” which they also labeled shari‘a, into the legal codes the companies created and enforced themselves. Thus how “native” law was defined became an important part of Italian colonial and commercial authority. Somalis I met felt that Italian administrators had a “phobia” of customary law and, thus, fought against it.[75] Somalis told me they more readily accepted British intervention in the northern Horn because they saw it as minimal, especially when viewed in relation to Italian settlement in the southern Horn. British officials were “not intervening in our culture,” I was told, except to enforce the decisions of aqils, which aqils and elders had welcomed.[76]

However, like the British, the Italians sought to minimize Islam while simultaneously and paradoxically making it an important foundation upon which to introduce Italian law and order. As it was establishing courts, the Filonardi Company created a legal code for the Somalis. This code declared the charter company’s jurisdiction over “native law.” To justify the company’s legal code in relation to local law, the Filonardi Company, through an ordinance decreed by Filonardi himself, in September 1894 stated that its “law[s] will be applied according to the standards of the Muslim Shari’a.”[77] Among Filonardi’s first acts upon his arrival to the Somali coast was to introduce and regulate the post of “cadis.” The regulations stated that the only company-approved qadis would be those appointed by Filonardi himself, that they would apply shari‘a and collect taxes and fees on their judgments, and that qadi decisions would be appealable to Filonardi (Table 2.4). Qadi courts charged fees to litigants, and court revenue was divided “among the company (75%), the wali (10%), and the cadis (15%).”[78]

The Filonardi Company wrote that “justice would be administered by company-appointed cadis, or judges. Only sentences passed by cadis who represented the Filonardi Company would be recognized as legitimate.”[79] In practice, direct forms of administration by “young officers [with] no previous training or experience … and very little knowledge of local languages” meant that local officials often “interfered with … justice [by] obliging the qadis to record decisions that ran contrary to the shari‘a.”[80]

Table 2.4 Regulations governing qadis in Italian Somalia

REGULATIONS FOR THE QADIS (Administration of Justice) [Translation from the Italian]

  1. Only the decisions issued by qadis appointed by Consul Filonardi, Administrator of the Compagnia Italiana per la Somalia, shall be recognized as valid and shall be enforceable.
  2. Appeal against the qadis’ decisions shall be made, in the first instance, to the governor, and in the last resort to the Administrator of the Compagnia Italiana per la Somalia.
  3. The law shall be applied according to the provisions of the Sharia.
  4. All decisions and all notarial acts shall be recorded in the books that have been delivered to the Governor to this effect.
  5. Upon request of the parties concerned, the qadis shall release a copy of the acts and of the decisions recorded.
  6. A tax of one percent of the declared value shall be levied on all recorded deeds concerning drafts, promises of payment, sales of personal property and real estate, mortgages, and all other commercial or financial transactions.
  7. For all deeds concerning criminal cases and for powers of attorney, the tax shall be half  a Thaler or one Thaler, as fee for preparing the copy, in accordance with the value of the matter to which the decision and the recording refer.
  8. The books to be used for the transcription of the decisions and the notarial acts shall be kept by the Governor. Copy of the decisions and deeds shall be sent monthly to the Administrator of the Compagnia Italiana per la Somalia. At the bottom of each deed and decision, and their copies, the wadi shall specify the amount of tax levied.
  9. At the end of the year, the tax paid in accordance with Article 6 shall be divided as follows: 75% to the Company, 10% to the Governor, 15% to the qadis.

Drawn up in Mogadishu, on the 24th of October 1893.

Signed: Filonardi, Administrator of the Compagnia Italiana per la Somalia

Source: Finazzo (1966), 390–391; Vianello and Kassim, Servants of the Sharia, Vol. 1, 53–54.

Under the Benadir Company, many different people claimed to be judges. Although the governor instructed his agents to use shari‘a to resolve disputes between Europeans and Somalis, residents complained to Benadir Company inspectors that judges actually had “no standard for the administration of justice.” They expressed dissatisfaction with the company administration because “in the various stations justice [was] administered according to each resident’s individual criteria … In substance there [was] no organization of justice.”[81] This legal pluralism, however, may have helped Italian commercial and administrative elites. When shari‘a did not work for them, they forum-shopped by turning to other legal systems for help. “It was … Italian policy not to tamper with the indigenous judicial institutions. Elements of the Italian judicial system were grafted onto the traditional Islamic and Somali systems. The result of this policy was that much of the Somali testur [custom] and the Muslim Shari’a survived the colonial period.”[82]

While very few documents from the Italian administration, particularly from its later years, have survived in Somalia, Italian lawyer Alessandra Vianello and Somali historian Mohamed M. Kassim found a treasure trove of cases recorded from 1893 to 1900 in Brava, a town of about 5,000 residents on the Somali coast, governed by the Benadir Company. The two-volume, 2,200-page compilation of these cases does not reveal what was happening throughout all the Italian-occupied areas, but it does showcase how shari‘a came to matter in a legally plural colonial Somali context. Judges calling themselves cadis wrote opinions in Arabic and consistently signed their names alongside the phrase, “khaadim al-shari‘a” (“servant of the shari‘a”). As Italy was trying to cement its grip on administrative and legal power, these judges’ opinions, according to Vianello and Kassim, “constantly reiterated their reverence for … Islamic law.”[83]

Shari‘a mattered not only to Italian and British colonial officials but also to Somalis who accessed aqils, elders, and qadis to have their disputes resolved. Shari‘a mattered as well to politically engaged Somali elites. They turned the shari‘a principles they had learned in the Arabian Peninsula against colonialism, using those religious principles as the basis of their anticolonial struggles. Colonial officials and Somali elites pulled Islam toward two contradictory political goals; paradoxically, Islam was put to use both shoring up and rebelling against colonial rule. By analyzing British Somaliland’s two-decade anticolonial war, the following section shows how the process of inventing a colony through legal politics and religion does not lack challengers. Among these colonial critics were Somali sheikhs, still lauded by many Somalis as nationalist heroes, who were concerned about the impact of colonialism on Somali communities.

SHAPING A COLONY THROUGH RELIGION

Studying courts alone does not do justice to the precarious relationships that colonial administrators and Somali elites had with religion and religious law. Shari‘a provided them with a basis for dispute resolution, a rationale for their decisions, and an image of piety and control. Both British and Somali elites cared about law and specifically about Islamic law, trying to transform it, control it, and convince their adversaries to cease their own uses of it. Each elite actor – Somali and British – felt more entitled than the other to interpret God’s will for Somali people to follow. Deploying legal and religious ideas as a weapon of resistance ultimately fragmented shari‘a into different political practices in the contest for power.

To illuminate this conflict between colonial officials and anticolonial activists over the meaning of shari‘a, this section turns to the twenty-one-year war (1899–1920) between the British government and Sheikh Mohamed Abdullah Hassan (Somali: Sayyid Maxamed Cabdulle Xasan; hereinafter, “Sheikh Hassan”). This war nearly bankrupted the British Crown’s administration in Somaliland. The strength of Sheikh Hassan’s religious convictions and of his followers, some of whom were armed militiamen, prompted the British to give Sheikh Hassan the derisive moniker “Mad Mullah” in an attempt to discredit Somali activities against British colonialism.[84] Sheikh Hassan had created his own Islamic courts to resolve disputes and, in part because the British viewed these courts and Sheikh Hassan’s militias as a threat to British colonial legitimacy and power, the British waged war against Sheikh Hassan and his followers.

Differing interpretations of Islam and its uses in politics shaped interactions between the Somalis and the British. Despite being nonMuslims, the British were riveted by Islam. It was not merely that shari‘a became a rallying cry for those Somalis who wanted to wrest control from the British. It also became an obsession for the British themselves, who felt free to justify their colonial project on Islamic terms. The two groups differed over how best to flatten shari‘a discourse to meet each group’s primary goal of either colonial control or liberation from it.[85] Pulling shari‘a in both colonial and anticolonial directions enriched and complicated it, and exposed Somalis to divergent interpretations of God’s will. At root were two distinct versions of Islam and of Islam’s place in modernity. One view of shari‘a made room for British colonialism and the other rejected it.

Why does this battle over shari‘a, fought so long ago, matter to those who care about the relationship between the rule of law and religion, or legal pluralism and state development? British and Somali confrontations over shari‘a reveal how the legacies of colonialism permeate and are permeated by debates over legal and religious ideology. The discursive competition between British and Somali elites shows how shari‘a can shape war, as its interpretations take on specific meanings that become logics of disagreement. Not only did the British and the Somalis who fought British colonial rule agree on the need to find space for shari‘a in the development of their ideal views of the state and society; both sides used their own interpretations of shari‘a as a basis for discussion and, ultimately, battle. The issue was one of interpretation and representation: Who had the right to interpret and represent shari‘a? Because British and Somali elites both claimed that right, shari‘a still shapes Islam’s legacies in the Horn of Africa.

Sheikh Hassan’s Rise

Mohamed Abdullah Hassan, a Somali man who had studied Islam in Mecca in the 1880s, returned to Somaliland in the 1890s to become a civil society leader and traveling preacher of sorts, whose religious interpretations attracted supporters. News reports suggest that Sheikh Hassan was disillusioned with British rule in part because the British had handed over the western region of Somaliland, where Hassan’s powerful Mijjertain family was connected, to Ethiopian Emperor Menelik.[86]

Sayyid Hassan, as he came to be known among Somalis, gained a reputation as an orator and poet. Oral poetry was the principal medium of persuasion and mass communication in greater Somalia at this time, and, according to historian Said Samatar, “By any standard the Sayyid could be judged an artist of great power and by Somali standards as something of a literary master.” The period from 1875 to 1900 was a time of “widespread religious re-awakening” in African Islam which, occurring alongside “the increasing subjugation of Muslims … to EuroChristian rule,” gave rise to resistance movements like the anticolonial Dervish movement that Sheikh Hassan would eventually start.[87]

Sheikh Hassan was also a dispute resolver with extensive Islamic legal training in Mecca. While not all Somalis trusted him to resolve their disputes, he was widely regarded in British Somaliland as a respected “peace-maker [during a time of] inter-clan strife.”[88]Initially, the British administration did not see Sheikh Hassan’s work as a threat to colonialism. On the contrary, according to British reports,

[Hassan’s] influence seemed to be exerted for good. He settled disputes amongst those remote tribes, prevented them from raiding each other, and was regarded by the [British] Administration as being on the side of law and order generally. From time to time he corresponded with the Vice-Consul at Berbera about tribal matters, and occasionally sent down prisoners for trial in the Vice-Consular Court. Thus he acquired considerable influence over the tribes, and people were quick to realize that his rough and ready justice was preferable to the long journey to Berbera.[89]

The British had appreciated Sheikh Hassan’s work because, under his influence, once “cantankerous tribes” seemed to become more peaceful.[90] But in August 1899, Hassan declared himself a Mahdi (anointed one) and his relationship with the British began to sour as he preached an austere view of Islam for the Somali people.[91] He also lost support from some Somalis over his interpretations of zakat (charitable giving governed by shari‘a) and the use of religious texts to solve problems,[92] and because he opposed the Somalis’ widespread use of qat, a leafy branch that, when chewed, acts as a stimulant drug.[93]

The British, having seen the power of Islamic resistance during Sudan’s fourteen-year nationalist rebellion, were wary of another self-proclaimed Mahdi. Therefore they made it a priority to defeat Sheikh Hassan. Violence ensued in the northern Horn between Sheikh Hassan’s followers and Somali supporters of the British administration who, according to the British, had their own “fanatical hatred” toward Sheikh Hassan.[94] By 1901, Hassan amassed thousands of soldiers, many carrying spears or other deadly weapons.

The war with Hassan was exacerbated by his raiding Somali communities that British treaties had promised to protect. The British began to sign more treaties with Somali communities in response to violence among them over Hassan’s teachings and to what the administration saw as his threats to British interests. Perhaps formal agreements between the British and Somali groups could thwart Hassan’s advances. The British hoped “to compel the tribes to enter into agreements with [the British administration] assuring their good conduct in the future and closing the Dolbahanta country to the Mullah should he ever return.”[95]

In effect, the British had facilitated and then joined a war that was erupting between Somali communities on different sides of Sheikh Hassan’s vision of Islamic-based dispute resolution. As Hassan’s authority as a great Muslim liberator of the Somali people grew, particularly between 1900 and 1902, the British were also busy trying to maintain order in their own communities where resistance to colonial rule was also mounting. They did so by passing laws for their administration and its “friendly tribes.” These included alcohol, tax, and labor regulations,[96] sporting regulations;[97] firearms regulations;[98] ordinances to preserve game;[99] customs regulations;[100] and marriage regulations. To ensure that colonial administrators, too, complied, the administration passed regulations on the employment of officers in British Somaliland and on the activities of public officials, governing conflicts of interest and preventing commercial pursuits by British officials.[101]

In 1902, the administration’s war effort against Sheikh Hassan began to break down, and the British administration considered a policy of complete retreat from the region. London defeated the colonial administration’s withdrawal proposal, and the British stayed, albeit befuddled by Sheikh Hassan’s motives and the strength of his war against them.[102] Some said Hassan’s activities had “nothing to do with any religious movement,”[103] while others argued that it was precisely Hassan’s religious views that prompted him and his supporters to fight the British. For example, a footnote in a British report of its military activity in Somaliland says of Hassan’s followers: “These men were called Deraweˉsh, and were under oath to fight for their religion.”[104] Historians, too, agree with the explanation that Sheikh Hassan was “inspired by a religious desire to revive Islam in Somalia.”[105] His efforts reflected a “rigid interpretation of the Shafi‘i school of [Sunni] Islamic law.”[106] Seeing the “Mad Mullah” as a threat to the security of British interests in the region, in 1903 the British War Office in London became increasingly involved in Somaliland.[107]

In 1905, another round of skirmishes ended – this time with a treaty with Sheikh Hassan, the Illig Agreement.[108] But that agreement collapsed three years later. British documents claimed Sheikh Hassan’s followers were “raiding the Sultans of Obbia and of the Mijjertein … obtaining arms and munitions.”[109] In returning to war, the British focused on the illegality of Sheikh Hassan’s actions. According to them, the “Mullah had broken the agreements he had come to with us.”[110] Sheikh Hassan had been having problems with the British and also with Italian colonialism in the southern Horn and, according to the British, Hassan put pressure on them in order to punish the Italians, a strategy that quickly failed. The British sent cavalries of the King’s African Rifles into Somaliland as conflict restarted in 1908.[111] Confidential interagency memoranda between the Colonial Office and the War Office about the Mad Mullah[112] indicate that the key British strategy was dividing Somalis through increased military support from Whitehall and “entering into relations with and subsidizing all the separate and principal chiefs of the coast.”[113] Officials spent more than a decade trying to suppress Sheikh Hassan’s activities, while continuing to keep supply lines to Aden open by trading with “friendly” Somali merchants and elders and passing laws for those communities.[114]

The year 1909 became a critical juncture for shari‘a. The establishment of the Roman Catholic mission in Berbera that year inflamed Sheikh Hassan and his followers, even though the British had taken steps to close the church.[115] The British viewed Sheikh Hassan as a madman intent on imposing his views of shari‘a on the region.[116]Newspaper accounts began to portray the inhabitants of Somaliland along similar lines, as “fervid Mohammedans.”[117] Rumors swirled that the British might put their protectorate under Egyptian administration.[118] Instead, the British began a two-part contest – military and discursive – first, to “arm friendlies”[119] and, second, to engage in a full assault of words against Sheikh Hassan, arguing with him in letters over the proper interpretation of shari‘a. The next section examines these communications in detail; they reveal how competition to control shari‘a discourse played an important role in the fight over the legitimacy of foreign intervention, colonization, and state development.

Bringing Shari‘a into Battle

Alongside the war, a discursive battle over the meaning of shari‘a was heating up between British officials and Sheikh Hassan and his followers. According to British reports, Hassan fought the British colonial project using words as well as weapons: “The significant thing is that [Sheikh Hassan] repeatedly sought to achieve in verse what he had failed to achieve in arms,” which was to inspire Muslims to remove British authority from the region.[120] British administrators grew increasingly concerned about Sheikh Hassan’s ability to unite Somalis by promoting Islam, which overcame rivalries tied to familial or clan heritages.[121] And Sheikh Hassan did not fight solely against British colonialism. He had followers in the Ogaden region of Ethiopia, where his family originated; in French Somaliland, where he was known to have been acquiring weapons; and in Italian Somalia.[122] The British shared reports of Sheikh Hassan’s activities, and his intercepted letters, with other colonial powers. In these reports, the British called Sheikh Hassan’s letters “severe” and “inspired by religious principles in the Quran.”[123]

Letters that Sheikh Hassan and the British exchanged either directly or via emissaries – largely between 1908 and 1920, at the height of the British Somaliland war – enacted their discursive fight. Both British archives and Somali oral histories record these communications.[124]The British tried to integrate their own social, political, and economic views into Islam and Sheikh Hassan did the same. Shari‘a became the reloadable legal weapon in their war.

British officials and Sheikh Hassan argued about who can interpret shari‘a, who understands its tenets better, and who can use it for political purposes. British officials directly accused Sheikh Hassan of not following shari‘a. They argued that Sheikh Hassan “run[s] the risk of [distancing himself] from Islam if he keeps on killing Muslims, raping their wives, and taking over their property.”[125] Hassan, in turn, responded by encouraging the British themselves to uphold shari‘a and obey Islam, and accused them of failing to understand the Qur’an:

From the Servant of The Almighty God … It is the duty of us both to obey the order of Islam, to repent and to follow the orders of God and the rules of the Holy Mohammedan Law (Shari‘a Mohammediya). If you do this we will do the same, but it is a sin to order others to be upright and not to be so yourselves. God says “You order people to be righteous and forget your own selves” and if you are reading God’s book, are you not able to understand this?[126]

According to Colonial Office documents, “The Mullah’s prestige received a severe blow by … the head of the Mullah’s sect at Mecca, who denounced his brutalities and excesses, and accused him of being a religious imposter.”[127] It is unclear whether the British asked religious leaders in Mecca to reject Hassan, or whether they denounced Hassan of their own volition, without British involvement.[128] But the British certainly advertised the contents of these communications. The Mullah’s war against British colonialism was also making headlines as far away as North America. The New York Herald reported in March 1909 that some Somalis were deserting Sheikh Hassan “owing to the threat to excommunicate him from the Mohammedan religion which was made in March last [1908] from Mecca and which very possibly may be carried into effect.”[129] British reports at this time were also clear about wanting to rid Somaliland of what they saw as a radical or “fervent” Islam: “From a purely military point of view it cannot be doubted that the best and safest policy would be to crush the Mullah once and for all.”[130]

In a 1909 letter, Sheikh Hassan again accused British officials of involving themselves in Somali political, religious, and legal affairs by establishing courts, imprisoning wayward Somalis, and interfering in disputes between believing Muslims over shari‘a:

[Both] I and the Tribes of Idowar and Dolbahanta are all your subjects (from the beginning) and when we had a religious difference which you did not have, you interfered among us without reason and helped one against the other and destroyed others without cause as well, although we are all your subjects from the beginning. You are requested to explain the reasons which induced you to act in this way … You are always insulting your subjects by putting them to death, flogging them, casting them into prison, looting them, inflicting fines on them, cursing and punishing and blaming them.[131]

The British fought shari‘a discourse with more shari‘a discourse. They told Sheikh Hassan plainly that his actions were “contrary to Sharia Mohammediya.” He replied that if the British understood shari‘a so well then they should “send ulemas” to argue religious law with him and that if he was found in the wrong, he would “repent and give up all” his arms, horses, and property.[132] Hassan then told British officials that they – not he and his followers – were the ones actually violating shari‘a:

If, after arguing with your learned men (Ulemas) under the Holy Mohammedan Law, we are [wrong], we will truly repent before God and the Prophet and will give back all that we have unlawfully taken, as a repentant man should do; and we will never again fight the Christians, their subjects, or the Abyssinians … This is on condition that your learned men (Ulemas) convince us that we were wrong, and I swear by God (three times), the Faith, the Prophet, the Throne and Seat, the Slate and Pen, the Angels … On the other hand I must ask you, if we confute your accusations by the Holy Mohammedan Law, what would you do with us, as it is you who have created sedition such as never been seen or heard of before? … If, however, we defeat you by the Holy Mohammedan Law, you must give us back all our property, such as the dhow, its crew and cargoe [sic], [and] the ninety-five men you killed at Galadi.[133]

The battle took a regional turn when British officials reached out to their counterparts in Sudan, which had become a British holding in 1898. The British administration sent Muslim Sundanese envoys to Somaliland to discuss shari‘a with Sheikh Hassan, as he had requested. The British then penned an open response in Arabic to “all Dervishes.” The response also raised the issue that Mohamed Saleh, the leader of Sheikh Hassan’s tariqa (brotherhood) in Mecca, had told him he was following the “wrong path”:

As you, Oh Dervishes, request us to send our learned men (Ulemas) to discuss and argue with you, with the object of discovering whether your actions and hostilities are right and based on the teaching of the Holy Mohammedan Law (Sharia Mohammediya), we must point out to you that we know of no learned men (Ulemas) so well versed in theology and more greatly to be relied upon that the famous Ulemas of Mecca. The celebrated El Seyid Mohammed Saleh himself, the head of the Salehiya Tarika, has written to you on this subject explaining that you are in the wrong and advising you to repent before God the Almighty and follow the right path. If Seyid Mohammed Ibn Abdullah has any objections to make against the statements of El Seyid Mohammed Saleh on this subject, the way to the Holy Mecca is open to him and we have given him the Aman (peace) of God and His Prophet and of the Government in order that he may go to the House of God and return if he has the intention of so doing. We conclude this letter with Salaams.[134]

Here, the British were offering Sheikh Hassan protection to return to Mecca, talk to Sayyid Mohamed Saleh, and ideally (for the British), to relearn shari‘a in a way that would put an end his anti-colonial struggle.

Their bid to get Sheikh Hassan to leave Somaliland was unsuccessful. But the British continued to capitalize on Sayyid Mohamed Saleh’s disagreements with Sheikh Hassan, and debates among Muslims over how to interpret shari‘a’s relationship to colonialism. British officials wrote to Sheikh Hassan’s followers that

Sheikh El Seyid Mohammed Saleh [in Mecca] … is your Head and Leader. [He] supported you from the beginning, but … after having watched your doings, [he] has written to you fully explaining that your deeds have been contrary to the Holy Mohammedan Law (Shari‘a Mohammediya) and order[ed] you to repent and to ask the forgiveness of God.[135]

In that letter, British envoys from Sudan requested that Sheikh Hassan send his own envoys “who could speak Arabic [to] discuss these matters” and disagreements over how to interpret shari‘a for the Somali people.[136] But Sheikh Hassan, according to the letter, did not respond to that request.

Communications continued to sour over the struggle for authority and particularly the issue of who understood God’s will better. Self-proclaimed mujtahids (interpreters of Islamic jurisprudence) also wrote letters to British officials using shari‘a to justify their decision to rise up against the British government.[137] Some staff members in London’s colonial office, in return, offered their services to negotiate with Hassan. One official, in particular, argued that, despite being based in London, he had “quite an exceptional knowledge of Mohammedan law,” indicating that at least in London the dispute with Sheikh Hassan was thought to be over religion, not colonial domination. British officials in Somaliland responded that knowledge of shari‘a would be of no use without “knowledge of negotiation and the administration of Oriental countries.”[138]

Contemporaneous recollections of discussions British colonial officials had with envoys they sent to meet with Sheikh Hassan indicate that the envoys did indeed try to change Hassan’s views of shari‘a. They thought Hassan did not understand the Qur’an as the British and their Muslim supporters understood it:

They [Sheikh Hassan and his aides] further pointed out that the presence of Christians ruling over a Mohammedan country was altogether unjustified and is contrary to the Mohammedan law. When we [envoys from Sudan] explained to them the difference between temporal power and religious authority [in shari‘a], he failed to understand it, arguing that any Moslem who places himself in a position of subordination to a Christian must necessarily be acting contrary to the Mohammedan Religion, and, being an ignorant man and only knowing how to read the Koran without understanding it, we found it practically impossible to alter his opinions or views on this point.[139]

When the British and their Sudanese envoys attempted to correct Sheikh Hassan by letting him know those important Somali elders disapproved of his actions, Hassan responded that those elders “have no knowledge or sense or a spark of religion, and in fact know nothing” about Islam.[140] The British acknowledged their discursive battle by referring to Hassan ultimately as “neither a good Mohammedan or Christian.”[141] These words reflect British officials’ insistence that shari‘a, and the Islamic religion itself, were consistent with the predominant European Christian worldview of the time, which supported colonialism.

The British use of shari‘a, like Sheikh Hassan’s, was rhetorical and strategic. But it was also ideological. The battle of words between Sheikh Hassan and the British colonial administration that began in 1909 continued alongside actual military raids of rival communities that year, and it lingered on and off for another decade. Hassan and the British both had to shift their attention back and forth between military strategy and shari‘a. According to the anthropologist I. M. Lewis, “Although [Sheikh Hassan] never lost sight of his primary [religious] purpose … the pressure of circumstances made it inevitable that he should become increasingly preoccupied with the organization and military needs of the Dervishes.”[142] Sheikh Hassan died in 1920 – presumably of malaria or influenza, historical records are unclear – as the British were still waging war against him. The British colonial administration never regained its footing; the years between Sheikh Hassan’s 1920 death and World War II brought continued political and economic stagnation to Somaliland.[143]

CONCLUSION

This chapter has shown how colonial administrators tried to build a state, primarily in British Somaliland, through two primary channels: law and religion. British administrators, the Somalis who worked under them, and those who resisted colonial authority all used their own legal and religious tools – including distinct versions of shari‘a – to achieve their goals. The British protectorate scheme was designed to build trust in the colonial enterprise through legal structures that invoked but also carefully controlled religion. The scheme took shari‘a seriously as a necessary part of the governing structure and the government’s interactions with a Muslim-majority population. But by constructing both qadi courts and civil courts, the British controlled the process of dispute resolution and sought to confine shari‘a to family matters.

Understanding state development in the Horn of Africa involves coming to terms with elites’ conflicting allegiances to different forms of law, including the ways in which they turn to shari‘a to achieve their political, economic, and social goals. Divided as the region was by multiple forms of colonialism, British colonial officials engaged in their own form of legal politics by writing treaties, creating courts, controlling dispute processes and personnel, reinvigorating aqils as a political tool, and fighting over the appropriate uses of shari‘a in politics. Somalis in turn either submitted to British control or fought against subjugation using Islamic legal practices and discourses of their own. In this way, colonial shari’a was shaped by both local and transnational practices, relationships, and struggles for political power. Elites attempted to change the meanings of shari‘a and people’s relationships with law, religion, and the state. In the process, the colonial encounter built up, changed, and politicized religion.

Somalis I met during my fieldwork generally spoke critically of the colonial enterprise. But they also spoke appreciatively of British officials’ stated goals not to interfere in Somali society. “When the British used to run the state affairs, also the customary people – the chiefs, aqils – would solve problems side by side. British people … never interfered. They didn’t have a plan to get rid of customary [law],” said one Somali lawyer I met. “From the British we learned a lot – the modern city, the modern state, and the rule of law based on the courts and structures of the state like police and army. They established it,” he concluded.[144]

What does this case study of colonial politics reveal for scholars interested in how building up the law, including religious law, fosters state development?

First, law is an essential component of colonial state-building, particularly during times of fragility and violence. In British Somaliland, colonial officials promoted law to achieve imperial goals by codifying treaties with Somalis along the coast, importing civil and criminal codes from colonial India, creating Islamic courts, passing colonial legislation, and encouraging dispute-resolution processes designed to promote British legitimacy. The British restructured Somali society into a hierarchy: people with disputes and people – agents of the British government – trusted to resolve those disputes. Local elites helped monitor other locals in a manner designed to shore up the legitimacy of British officials as protectors of Somalis from each other and from outsiders. In its courts and through its aqils, the colonial administration helped to create a new state elite that would separate the people’s Islamic faith from the state’s Islamic law.

Second, just as colonial officials used aqils and qadis to promote colonial authority and legitimacy, so too did they resist opposition to their authority by using religious law, employing envoys from Sudan and using statements of leading sheikhs from Mecca to counter local opposition. That is, colonial authorities pretended that their sometimes inhumane actions were both legal and religiously correct, by using shari‘a to mask what was otherwise a form of political and social domination. The manipulation of law and religion framed colonialism, as colonizers seemed free to use the religion of their subjects to justify their repression of anti-colonialism. Paradoxically, Islamic legal practices were simultaneously created, transformed, and restricted during this time.

Third, shari‘a equally allured elites engaging in state development or resisting it. They used it in their repertoire of political practices. Islam was important enough that both British and Somali elites alike felt the need to engage with it. Their battles did not merely involve weapons. They fought over a specific and layered configuration of law – one that alternated between religious and secular, traditional and modern, local and foreign – that they had created. This discursive contestation occurred both among Somalis and between the different groups of Somalis and colonial officials.

Colonialism and resistance to it elicited different versions of shari‘a from Somalis, British administrators and their Sudanese envoys, and Meccan sheikhs. Religious law mattered not only for state-building but also for trying to tear down state structures. Differing messages from local aqils and qadis, and from Mecca and Sudan, were filtered through the war between Sheikh Hassan and the colonial administration. In these ways, colonial rule in the Horn of Africa shaped Islamic religious tradition and Islam’s relationship with local custom, foreign intervention, and peacebuilding.

At some level, the British created an Islamic state by formalizing shari‘a into state development. But, just as they formalized shari‘a, the British also fragmented it by making Islamic courts deal narrowly with family matters. The meanings of religious law changed over time as local elites interacted with colonizers and vice versa. British and Somali elites alike used religious and legal discourse to express their hopes, their fears, and their strategies of resisting one another’s authority. In so doing, they capitalized on the seemingly unchanging and immortal idea of God’s will, convincing pious populations to follow the shari‘a of one of them and not of the other. Divergent understandings of Islam shaped Somalis’ views not only about what God’s will is, but also about what God’s will does.


NOTES

[1] Said Samatar, Oral Poetry and Somali Nationalism: The Case of Sayid Mahammad ‘Abdille Hasan (Cambridge: Cambridge University Press, 1982), 1.

[2] Interview 127 with Sheikh Oweis, sheikh and senior university administrator in Hargeisa, Somaliland (June 2014).

[3] These efforts to bring religion into colonial politics are in contrast to the attempts to purge religion from politics in Europe, during the Soviet Union’s Bolshevik revolution and through World War II. Adeeb Khalid, Islam after Communism: Religion and Politics in Central Asia (Oakland, CA: University of California Press, 2014); Pedro Ramet, ed., Religion and Nationalism in Soviet and East European Politics (Durham, NC: Duke University Press, 1989).

[4] Somalis have given various names for each of these systems, including the “modern” system introduced largely by the British (cf. Table 1.2 of this book).

[5] See, for example, I. M. Lewis, The Somali Lineage System and the Total Genealogy: A General Introduction to the Basic Principles of Somali Political Institutions, presented March 18, 1958, to the Royal Anthropological Institute, MS 191 (London: RAI Archives, 1958a).

[6] Abdurahman M. Abdullahi, “Perspectives on the State Collapse in Somalia,” in Somalia at the Crossroads: Challenges and Perspectives in Reconstituting a Failed State, eds. Abdulahi Osman and Issaka Souaré (London: Adonis & Abbey, 2007a), 40–57, p. 41.

[7] Saadia Touval, Somali Nationalism: International Politics and the Drive for Unity in the Horn of Africa (Cambridge, MA: Harvard University Press, 1963), 11–13.

[8] Untitled cutting, June 18, 1909. Liverpool Daily Courier. Sudan Archive, Durham University, SAD 287/3/78.

[9] Colonel Stanton, “Memorandum on Turkish Claims to Sovereignty over the Soumali [sic] Territory,” June 3, 1870. Foreign Office Confidential Prints, Bodleian Law Library, Oxford University, document 1949.

[10] Robert O. Collins, A History of Modern Sudan (Cambridge: Cambridge University Press, 2008); Mark Fathi Massoud, Law’s Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan (Cambridge: Cambridge University Press, 2013a), 51–53.

[11] “Letter from Wilfred G. Thesiger at the British Legation,” Addis Ababa, October 11, 1917. Sudan Archive, Durham University, SAD 125/8/21.

[12] Robert Hess, Italian Colonialism in Somalia (Chicago, IL: University of Chicago Press, 1966), 39, citing a June 15, 1893 letter from Foreign Minister Brin in Rome to Filonardi, from Documenti diplomatici italiani presentati al Parlamento italiano dal Ministro degli Affari Esteri (Blanc): Somalia italiana 1885–1895 (Rome, 1895), doc. 71, p. 121.

[13] Hess (1966), 42, citing “Provisional Ordinance for the Government and Administration of Territory under the Protection of Italy,” annexed to the Filonardi Report, No. 171, September 16, 1894. Pos. 75/1, f. 3, Archivio Storico dell’ex Ministero dell’Africa Italiana (ASMAI), Rome, Italy.

[14] On the politics of colonialism in Somalia Italiana and Africa Orientale Italiana, see Hess (1966) and Alberto Alpozzi, Il Faro di Mussolini: L’opera Colonial più Controversa e il Sogno dell’Impero nella Somalia Italiana, 1889–1941 (Turin: 001 Edizioni, 2015).

[15] Touval (1963), 47–48.

[16] Touval (1963), 31–36.

[17] Interview 52 with Sheikh Zaki, sheikh and former senior judiciary official in Hargeisa, Somaliland, July 2013.

[18] Interview 80 with Karim, aid worker in Nairobi, Kenya (August 2013).

[19] Somaliland was an independent country for five days (June 26–30, 1960) until it united with Italian Somalia on July 1, 1960, forming the Somali Republic. Somaliland reasserted its independence on May 18, 1991, during the civil war after the collapse of the government in Mogadishu. While Somaliland has developed some diplomatic and trade relationships, the United Nations has not recognized its May 1991 reassertion of sovereignty.

[20] “The Pacification of Somaliland,” Egyptian Daily Post, May 20, 1909. Wingate Collection, Sudan Archive, Durham University, 287/2/234.

[21] Luis Eslava, Local Space, Global Life: The Everyday Operation of International Law and Development (Cambridge: Cambridge University Press, 2015).

[22] United Kingdom Central Office of Information, “The Somaliland Protectorate,” (London: UK Government Overseas Services, undated), p. 3.

[23] “Lieutenant-General Sir Reginald Wingate’s Special Mission to Somaliland,” dated June 12, 1909. Foreign Office Confidential Prints, Bodleian Law Library, Oxford University, 9507/09.

[24] Interview 62 with Bilan, NGO executive director in Hargeisa, Somaliland (July 2013).

[25] Interview 89 with Sheikh Abdirahman, sheikh and senior government official in Hargeisa, Somaliland (June 2014).

[26] Interview 37 with Sultan Mansoor, sultan in Hargeisa, Somaliland (June 2013).

[27] Touval (1963), 36.

[28] Great Britain Treaties with the Tribes on the Somali Coast (Eisa, Gadabursi, Habr-Awal, Habr Toljaala, Habr Gerhajis, and Warsangali treaties), June 1887. Foreign Office Confidential Prints, Bodleian Law Library, Oxford University, file 5453.

[29] “Memorandum by Mr. Bertie on Questions Affecting the Somali Coast Protectorate, Harrar, and Abysssinia, August 1892 to October 1893,” August 6, 1892. Foreign Office Confidential Prints, Bodleian Law Library, Oxford University, 6410/3.

[30] “Lieutenant-General Sir Reginald Wingate’s Special Mission to Somaliland,” dated June 12, 1909. Foreign Office Confidential Prints, Bodleian Law Library, Oxford University, 9507/10.

[31] Winston Churchill, “A Minute on the Somaliland Protectorate,” May 5, 1894. Colonial Office Confidential Prints, Bodleian Library, Oxford University, 702/73.

[32] “Private Correspondence of Sir R. Wingate to Sheikh Abdel Kader in Burao, Somaliland.” Sudan Archive, Durham University, SAD 287/2/140.

[33] Interview 79 with Karim, aid worker in Nairobi, Kenya (August 2013).

[34] Winston Churchill, “Letter from Hargeisa Commissioner to political officer in Wadamago,” March 17, 1905. Colonial Office Confidential Prints, Bodleian Library, Oxford University, 770/12.

[35] Mark Bradbury, Becoming Somaliland (Bloomington: Indiana University Press, 2008), 100.

[36] Untitled manuscript, February 1880. Foreign Office Confidential Prints, Bodleian Law Library, Oxford University, 4099/18.

[37] Address by Sir Harold Baxter Kittermaster, 1931. Colonial Office Confidential Prints, Bodleian African and Commonwealth Library, Oxford University, paragraph 6, mss. Afr. s. 2341(1).

[38] Sir Reginald Wingate, in his report of a 1909 mission to Somaliland, mentions meeting with four aqils in Berbera, writing, “I understand that the British Government pays these Akhils a sum of about 10,000 Rupees a year in exchange for the right to levy Customs Dues and take Commerce into the Government Enclosures.” “Lieutenant-General Sir Reginald Wingate’s Special Mission to Somaliland,” unpublished report, June 12, 1909. Sudan Archive, Durham University, SAD 287/3/132.

[39] Interview 114 with Mustafa, senior government official and former aqil of British colonial administration (June 2014).

[40] Ismail Ali Ismail, Governance: The Scourge and Hope of Somalia (Vancouver: Trafford Publishing, 2010), 62.

[41] Interview 114 with Mustafa, senior government official and former aqil of British colonial administration (June 2014).

[42] Follow-up interview 70 with Kabir, lawyer and senior university administrator in Hargeisa, Somaliland (July 2013).

[43] Interview 126 with Dhahir, senior university administrator in Borama, Somaliland (conducted in Hargeisa, Somaliland) (June 2014).

[44] Interview 114 with Mustafa, senior government official and former aqil of British colonial administration (June 2014).

[45] Interview 52 with Sheikh Zaki, sheikh and former senior judiciary official in Hargeisa, Somaliland (July 2013).

[46] Ibid.

[47] Interview 59 with Kalim, former NGO executive director in Hargeisa, Somaliland (July 2013).

[48] Reginald Wingate, “Lieutenant-General Sir Reginald Wingate’s Special Mission to Somaliland,” unpublished report, June 12, 1909. Sudan Archive, Durham University, SAD 287/3/146–148.

[49] Ibid., Foreign Office Confidential Prints, Bodleian Law Library, Oxford University, 9507/89.

[50] Ibid.

[51] Ibid.

[52] Ibid.

[53] Ibid.

[54] “Note by the Commissioner on Mr. Churchill’s Confidential Minute,” December 28, 1907. Colonial Office Confidential Prints, Bodleian Library, Oxford University, African No. 896, African Print No. 904, p. 2.

[55] Address by Sir Harold Baxter Kittermaster, 1931. Colonial Office Confidential Prints, Bodleian African and Commonwealth Library, Oxford University, paragraph 6, mss. Afr. s. 2341(1). Interview 46 with Xabiib, senior government official in Hargeisa, Somaliland (July 2013).

[56] Ibid.

[57] Ibid.

[58] “Letter from Somaliland Commissioner Cordeaux to Secretary of State,” September 11, 1909, in “Affairs in Somaliland, May 1908–December 1909,” Colonial Office Confidential Prints, Bodleian African and Commonwealth Library, Oxford University, 926/115.

[59] “The Laws of the Somaliland Protectorate: Containing the Ordinances, Orders in Council and Orders of the Secretary of State in Force on the 1st Day of January 1950,” prepared by Sir Henry Webb (London: Waterlow & Sons, 1950), Volume 1, 28.

[60] Follow-up interview 69 with Axmed, lawyer and university lecturer in Hargeisa, Somaliland (June 2013).

[61] Interview 25 with Raouf, senior United Nations official in Hargeisa, Somaliland (June 2013).

[62] Interview 126 with Dhahir, senior university administrator in Borama, Somaliland (conducted in Hargeisa, Somaliland) (June 2014).

[63] Interview 50 with Caziz, lawyer and human rights activist in Hargeisa, Somaliland (July 2013).

[64] On integrating religion into the state by separating beliefs from law in colonial Egypt and Malaya, see Iza Hussin, The Politics of Islamic Law: Local Elites, Colonial Authority, and the Making of the Muslim State (Chicago, IL: University of Chicago Press, 2016). On Sudan, see Massoud (2013a), 44–84.

[65] Interview 42 with Faisal, senior government official in Hargeisa, Somaliland (July 2013).

[66] Interview 17 with Amburo, former senior government minister and United Nations official in Hargeisa, Somaliland (June 2013).

[67] Hess (1966), 70.

[68] Alessandra Vianello and Mohamed M. Kassim, Servants of the Sharia: The Civil Register of the Qadis’ Court of Brava, 1893–1900, Vols. 1 and 2 (Leiden: Brill, 2006), 30–31. The names of fifteen elders and their monthly allowances from the Benadir Company appear in the Archivio Storico del Ministero dell; Africa Italian Fasc. 75/12 (Appendix). Also cited in Giovanni Piazza, “La Regione di Brava nel Benadir,” Bollettino della Societa’Italiana di Esplorazioni Geografiche e Commerciali, Fasc. I & II (January and February 1909): 7–29.

[69] Hess (1966), 179.

[70] Ibid.

[71] Ibid., 72.

[72] Vianello and Kassim (2006), 53, citing Giuseppina Finazzo, L’Italia nel Benadir: L’azione di Vincenzo Filonardi, 1884–1896 (Rome: Ateneo, 1966), 295–296.

[73] Hess (1966), 39, citing a June 15, 1893 letter from Foreign Minister Brin in Rome to Filonardi, from Documenti diplomatici italiani presentati al Parlamento italiano dal Ministro degli Affari Esteri (Blanc): Somalia italiana 1885–1895 (Rome, 1895), doc. 71, p. 121.

[74] Vianello and Kassim (2006), 13, citing Gustavo Chiesi, Law Colonizzazione Europea dell’Est Africa (Turin: Unione Tipografica Torinese, 1909), 246.

[75] Follow-up interview 70 with Kabir, lawyer and senior university administrator in Hargeisa, Somaliland (July 2013); Hess (1966).

[76] Interview 114 with Mustafa, senior government official and former aqil of British colonial administration (June 2014).

[77] Hess (1966), citing “Provisional Ordinance for the Government and Administration of Territory under the Protection of Italy,” Article VI, annexed to Filonardi Report, No. 171, September 16, 1894, Archivio Storico dell’ex Ministero dell’Africa Italiana (ASMAI), Rome, pos. 75/1, f. 3.

[78] Hess (1966), 43, citing “Ordinance for the application of the Muslim Shari’a,” signed by Filonardi, October 24, 1893, Historical-Documentary Collection of the Garesa at Mogadishu, item 33.

[79] Ibid.

[80] The qadi in this court record decided to dissolve a marriage contract because “the [Italian] Consul thought it advisable” to separate the husband and wife. Brava Qadi Record (QR) 515.3, dated 26 Shawwal 1316 (approximately March 6, 1899), in Vianello and Kassim (2006), 1121.

[81] Hess (1966), 74, citing communication from “Eduardo Cappa, Brava, to Elia Raicevich, Inspector of the Benadir Company,” March 11, 1903. Archivio Storico dell’ex Ministero dell’Africa Italiana (ASMAI), Rome, pos. 75/6, f. 60.

[82] Hess (1966), 184.

[83] Vianello and Kassim (2006), 1.

[84] I. M. Lewis, A Modern History of the Somali: Nation and State in the Horn of Africa (London: Boydell and Brewer, 2003), 72. Some historians place the earliest mention of the “Mad Mullah” moniker at 1899, in an official report in which Somaliland consul-general J. Hayes-Sadler wrote, “the Mullah has gone religious mad.” John P. Slight, “British and Somali Views of Muhammad Abdullah Hassan’s Jihad, 1899–1920,” 10 Bildhaan: An International Journal of Somali Studies (2011): 16–35, 19. According to historian Said Samatar, the label “Mad Mullah” (Somali: Wadaad Waal) was also used by some Somalis, including people in Berbera from the Qaadiriya religious order. Samatar (1982), 183. The meaning of waal (typically translated as “mad”) is disputed, however, and ranges from insane to reckless to brave. Samatar (1982), 184.

[85] Mark Fathi Massoud, “The Politics of Islamic Law and Human Rights: Sudan’s Rival Legal Systems,” in The New Legal Realism, Volume 2: Studying Law Globally, Heinz Klug and Sally Engle Merry, eds. (Cambridge: Cambridge University Press, 2016a), 96–112.

[86] “The Pacification of Somaliland,” Egyptian Daily Post, May 20, 1909. Wingate Collection, Sudan Archive, Durham University, 287/2/234.

[87] Samatar (1982), 3, 93, 137. Samatar continues that, “of the 120 poems which have so far been collected and verified as his, almost two-thirds are poetic diatribes attacking colonial infidels and their Somali collaborators.” Samatar (1982), 152, citing collection of Sheikh Jaama’ ‘Umar ‘Iise (Aw Jaamac Cumar Ciiseo), Diiwaanka Gabayadii.

[88] Lewis (2003), 68.

[89] Sir Geoffrey Francis Archer, Personal and Historical Memoir of an East Africa Administrator (Edinburgh: Oliver & Boyd, 1963), 57–58. Archer copied these statements from Wingate’s 1909 report on file at the Sudan Archive, Durham University, SAD 125.

[90] Ray Beachey, The Warrior Mullah: The Horne Aflame 1892–1920 (London: Bellew Publishing, 1990), 39.

[91] “Lieutenant-General Sir Reginald Wingate’s Special Mission to Somaliland,” June 12, 1909. Foreign Office Confidential Prints, Bodleian Law Library, Oxford University, 9507/17.

[92] Sheikh Hassan worked within Hanbali traditions of Sunni Islamic law, while many Somalis followed the Shafi‘i school of Sunni Islamic law. While practices associated with these two schools were not totally dissimilar, they differed significantly in interpretation, in approaches to solving problems, and in the payment of zakat (Follow-up interview 70 with Kabir, lawyer and senior university administrator in Hargeisa, Somaliland, July 2013).

[93] Beachey (1990), 38.

[94] Africa No. 3, 1902, p. 17. Wingate Collection, Sudan Archive, Durham University, SAD 125/1.

[95] Ibid.

[96] Ordinance No. 5 of 1901. Document 7603, Foreign Office Confidential Prints, Bodleian Library, Oxford University.

[97] Sporting Regulations, January 1, 1902. Document 7640, Foreign Office Confidential Prints, Bodleian Library, Oxford University.

[98] Fire-arms Regulations of 1899. Foreign Office Confidential Prints, Bodleian Library, Oxford University.

[99] Preservation of Game Ordinance, July 10, 1901. Document 7665, Foreign Office Confidential Prints, Bodleian Library, Oxford University.

[100] Customs regulations of 1902, 682. Foreign Office Confidential Prints, Bodleian Library, Oxford University.

[101] Regulations for the Employment of Officers in the British Protectorate on the Somali Coast. September 1, 1902. Document 7762, Foreign Office Confidential Prints. Bodleian Library, Oxford University.

[102] Communication of J. L. Baird, Member of the British Parliament for Rugby and Acting Agent and Consul General in Abyssinia (1902). Sudan Archive, Durham University, SAD 296/1/ 157.

[103] Foreign Office Confidential Prints, Document 9508/7, Bodleian Law Library, Oxford University.

[104] “Dispatch relating to Field Operations” by Lieutenant-Colonel Swayne to Consul-General Sadler.” Africa No. 3, 1902, p. 31.

[105] Slight (2011), 22.

[106] Lewis (2003), 81.

[107] Sudan Archive, Durham University, SAD 273/7/6–7.

[108] Lewis (2003), 74.

[109] “Affairs in Somaliland,” May 1908–December 1909, Colonial Office Confidential Prints, 926/ 143. Bodleian African and Commonwealth Library, Oxford University.

[110] Ibid., 926/144.

[111] In December 1908, the King’s African Rifles Ordinance created a battalion of people “charged with the defence of the East Africa, Uganda, British Central Africa, and Somaliland Protectorates.” Colonial Office Confidential Prints, 919/1–23. Bodleian African and Commonwealth Library, Oxford University.

[112] “Affairs in Somaliland,” May 1908–December 1909, Colonial Office Confidential Prints, 926/1–144. Bodleian African and Commonwealth Library, Oxford University.

[113] “Ibid., 926/144.

[114] Winston Churchill, “A Minute on the Somaliland Protectorate,” Colonial Office Confidential Prints 896/3. Oxford University Bodleian Library. October 28, 1907, also at Durham University Sudan Archive, SAD 125/1/3.

[115] Private Correspondence of Sir R. Wingate to Sheikh Abdel Kader in Burao, Somaliland. Sudan Archive, Durham University, SAD 287/2/140.

[116] Sudan Archive, Durham University, SAD 237/3/140.

[117] Sudan Archive, Durham University, SAD 287/2/134.

[118] Untitled cutting, New York Herald, March 15, 1909. Sudan Archive, Durham University, SAD 286/2/26.

[119] Sudan Archive, Durham University, SAD 286/2/27.

[120] Wingate (1909), SAD 287/3/181; see also Samatar (1982), 181.

[121] Lewis (2003), 76.

[122] British intelligence reports suggest Sheikh Hassan was receiving weaponry and support from “Jibuti.” Sudan Archive, Durham University, SAD 287/1/196.

[123] The original diplomatic communication uses the French “passages trés sevéres” and “inspirée aux principes religieux du Coran.” See “Reports on Activities of the Mullah as of March 1, 1909.” Wingate Collection, Sudan Archive, Durham University, SAD 286/2/3.

[124] Copies of correspondence between British officials and Sheikh Hassan. Wingate (1909), SAD 446/5/301–309.

[125] Ibid.

[126] Ibid.

[127] “Confidential Memorandum Respecting Affairs of Somaliland.” March 4, 1909. Foreign Office Confidential Prints – Colonial Office. Bodleian Library, Oxford University.

[128] Muftis and other scholars in Mecca at the time were writing about European powers in Africa and the nature of the Islamic state, particularly as embodied by the Mahdi in Sudan. See Heather J. Sharkey, “Ahmad Zayni Dahlan’s Al-Futuhat Al-Islamiyya: A Contemporary View of the Sudanese Mahdi,” 5 Sudanic Africa (1994): 67–75.

[129] Untitled cutting, New York Herald, March 15, 1909. Sudan Archive, Durham University, SAD 286/2/26.

[130] Wingate (1909), SAD 287/3/181.

[131] July 1909 letter from Sayed Mohamed Ibn Abdullah El Hashmi (Sheikh Mohamed Abdullah Hassan) to the British Government. Wingate Collection, Sudan Archive, Durham University, SAD 288/2/109, also at Sudan Archive, Durham University, SAD 446/5/301.

[132] “Interview with the Messengers who took the letter from the Mission to the Mullah, Sheikh, Somaliland.” June 14, 1909. Sudan Archive, Durham University, SAD 446/5/315.

[133] Letter from Sheikh Hassan. Sudan Archive, Durham University, SAD 446/3/303, also at Wingate Collection, Sudan Archive, Durham University, SAD 125.

[134] Page two of the response from Wingate and Slatin Pasha “to all the Dervishes,” June 16, 1909, in the town of Sheikh, Somaliland, Wingate Collection, Sudan Archive, Durham University, SAD 125.

[135] Letter from Wingate (Governor-General of Anglo-Egyptian Sudan) and Slatin Pasha (Sirdar of the Army) to El Seyid Mohammed Ibn Abdullah. Sudan Archive, Durham University, SAD 125/6/328.

[136] Ibid.

[137] Letter from Hashim El Shafii El Sumii. Wingate Collection, Sudan Archive, Durham University, SAD 288/6/122–25.

[138] Wingate (1909), SAD 287/3/148.

[139] Notes from the Interview with the Messengers who took the letter from the Mission to the Mullah, June 14, 1909. Sudan Archive, Durham University, SAD 125/6/337.

[140] Letter from Seyyid Mohamed Abdullahi (Sheikh Hassan) to the British Government. Wingate Collection, Sudan Archive, Durham University, SAD 288/2/109.

[141] Supplement to the Report on Lieutenant-General Sir Reginald Wingate’s Special Mission to Somaliland, July 1909, p. 7. Sudan Archive, Durham University, SAD 125/7/2.

[142] Lewis (2003), 81.

[143] Patrick Kitaburaza Kakwenzire, “Colonial Rule in the British Somaliland Protectorate, 1905–1939” (Ph.D. thesis, University of London, 1976).

[144] Follow-up interview 70 with Kabir, lawyer and senior university administrator in Hargeisa, Somaliland (July 2013).

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