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

Somalia’s years of postcolonial independence are marked by disputes over how to build a stable, modern, and functioning legal system – and what to do with shari‘a. From the start of the transition to independence in 1950 until the disintegration of the Somali state in 1991, state actors adopted an instrumental view of state law and shari‘a.

Author

Mark Fathi Massoud

Type

Chapter

Information

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

 , pp. 110 – 156

DOI: https://doi.org/10.1017/9781108965989.005

Publisher: Cambridge University Press

Print publication year: 2021

BOOK CHAPTER

CHAPTER THREE – Constraining Shari‘a: Postcolonial 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

LAW IN TRANSITION, 1950–1960

SomlegalAds

Creating Legal Capacity

Passing Laws, Establishing Courts, and Compartmentalizing Shari‘a

UNIFYING LEGAL SYSTEMS, 1960–1969

The 1960 Constitution: “First, an Islamic State”

Closing the Shari’a Courts and Opening a New Judiciary

Legal Integration

Asserting Judicial Authority

AUTHORITARIAN LEGALITY, 1969–1991

Destroying the Law

Rebuilding the Law

Shari‘a Against the Regime

Resistance and Collapse

CONCLUSION

INTRODUCTION

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

Somalia’s years of postcolonial independence are marked by disputes over how to build a stable, modern, and functioning legal system – and what to do with shari‘a. From the start of the transition to independence in 1950 until the disintegration of the Somali state in 1991, state actors adopted an instrumental view of state law and shari‘a. As in British Somaliland, postcolonial authorities in the newly independent Somali Republic used law to achieve their political goals. They also shared the view that shari’a – when understood as an independent, fixed, and sacred constraint on political power – would pose a threat to the state’s legal order and power. Successive governments treated shari‘a as an expedient and flexible tool to use for their own purposes. This Islamic legal politics – how political leaders confronted, asserted, and constrained shari‘a to achieve political, economic, and social goals – became a central feature of the state’s relationship with its people.

Somalis were not alone in wrestling with the high-stakes question of the role of religion and religious law in a post-independence government. The mid-twentieth century created a period of hope for Africans that colonial rule would be replaced by independence and pan-African or pan-Arab unity. In this context of hope, leaders in the newly independent Sudan, like their neighbors in Somalia, were also asking themselves whether and how to integrate shari‘a into the legal system.[1] A similar question had come up in Israel, where officials debated whether and how to integrate Hebrew language and Jewish law to replace British law inherited from Mandatory Palestine.[2] More recently, across Muslim-majority countries transitioning from decades of authoritarian rule, political elites also faced the thorny issue of what to do with Islamic law, including in Iraq after Saddam Hussein, Egypt after Hosni Mubarak, Afghanistan after the Taliban, Tunisia after Ben Ali, and Libya after Qaddafi.

The central argument of this chapter is that the postcolonial state’s political genesis is as much about remaking religion as it is about remaking law. First, law plays an important role for political elites seeking to build a postcolonial state. They create and use legal systems to build the kind of postcolonial state they envision. Their efforts saturate society with ideals of law and modernity. British administrators encouraged Somalis to see the legal order as a unified one, but they also fragmented legal power – state, Islamic, customary – in order to contain shari‘a. Second, there is no natural or presumed relationship between the colonial categories of religion, law, and custom in the postcolonial state. Postcolonial democratic and authoritarian regimes, each for their own purposes, completed the work of colonial officials by further constraining shari‘a and xeer (Somali custom, used as a form of common law to resolve disputes) and pushing to unite Somalia’s legal orders once and for all.

Establishing a postcolonial state using the power of law also gives rise to an uneasy relationship with religion. Just as colonial administrators had invoked their own forms of shari‘a to shore up their rule – by, for instance, establishing religious family courts and bringing envoys from Sudan to convince Somalis that Islamic revolutions against colonialism were not actually consistent with Islam – postcolonial political authorities aligned shari‘a with their aims. On the one hand, they insisted that their activities were consistent with Islam. On the other hand, they silenced the forms of Islamic legal power that they could not control. But not all uses of shari‘a were the same. Elites used shari‘a as a legal practice, as a method of argument, as a rhetorical style, and as a politically-invoked power for state-building.

This chapter focuses on Somalia’s transition to independence and its first thirty years of postcolonial independence, until the state’s 1991 collapse. In particular, it investigates how political officials sought to build the Somali state by promoting law and constraining shari‘a during the transition to democracy (1950–1960), the first attempt at independent, democratic government (1960–1969), and the twenty-two-year dictatorship of President Mohamed Siyad Barre (1969–1991).

Starting in 1950, colonial administrators and Somalis working under them in British Somaliland and Italian Somalia undertook legal unification as part of the decade-long preparation for sovereignty. They wrote new laws to create a state legal order; restructured the old colonial legal systems to prepare the two colonies for unity; established the region’s first law school in Mogadishu; and continued to restrict and formalize the application of shari‘a. Late-colonial administrators and the Somalis working with them used the law to push the region toward independence and promote a sense of progress and modernity that Somalis would take with them into the new nation.

Once the two colonies united to form the Somali Republic in 1960, Somali leaders still faced the task of unifying the legal system, which led them to combine the two colonial judiciaries created by the British and the Italians. The 1960s were Somalia’s only democratic period, and during that time political elites struggled to put the young nation’s future ahead of geographic and clan rivalries. They subsumed shari‘a into the state by abandoning the British-instituted system of Islamic family courts and giving jurisdiction over family law to the country’s newly combined civil judiciary. Despite abolishing the Islamic courts, public officials called shari‘a the basis of the unified country’s first postcolonial constitution. They understood shari‘a as part of the governing structure, but indentured it to state law.

The Somali Republic’s democratic experiment did not last. In 1969, General Mohamed Siyad Barre led a military coup that installed him as president. Siyad Barre’s reign reveals how autocrats use law to uphold their authority. More importantly, Siyad Barre treated shari‘a as a threat he needed to contain, despite continuously claiming that the regime’s version of shari‘a was the correct one because, in his view, socialism was consistent with Islam. Siyad Barre’s relationship to shari‘a reveals how shari‘a’s plurality in practice – its proliferation of interpretations of sources, reasonings, and rulings – is precisely what threatens autocrats and leads them to write more laws.

Investigating how Siyad Barre crafted and used an extensive bureaucratic and legal apparatus helps make sense not only of his authoritarian legal politics but also of Somalis’ profound lack of trust in the state and the law since that time. Though the regime was initially popular because of its promises to make justice more accessible to ordinary Somalis, it ultimately succumbed in 1991 to a devastating civil war. That civil war had ignited as a result of the regime’s catastrophic economic policies, its disastrous effort to annex eastern Ethiopia, and its execution of religious leaders for speaking out against state laws they saw as inconsistent with Islamic teachings.

This period of Somali history, from the transition to independence to the collapse of the government a generation later, reveals how different political leaders – colonial, democratic, and authoritarian – used law and invoked religion to create a national antidote for political disagreements. Taking cues from the colonial administrators who preceded them, postcolonial leaders wrote legal documents and passed many new laws, including a new constitution, to cement authority, centralize state power, and singularize the legal system. Siyad Barre’s desire to craft a unifying and lasting legal order that subsumed shari‘a was not unique to his authoritarian state. It was endemic to different governments, including the administrators of British Somaliland and the democratic government that preceded Siyad Barre. Each set of political elites tried to fit law and Islam into its image. Despite the differences in their goals, these colonial, democratic, and authoritarian regimes from 1950 to 1991 were united by a common approach: singularize the law and constrain the power of religion. But God’s will and authority provided a baseline from which Somalis would judge each political regime’s actions and it became the source of their unremitting resistance to state authority – the seeds germinating an Islamic rule of law.

LAW IN TRANSITION, 1950–1960

In the 1950s, British Somaliland and Italian Somalia remained under the control of colonial administrators preparing for independence. The colonial project of promoting law while compartmentalizing shari‘a became a postcolonial project and left Somalia with a legacy of simultaneous “dualism and pluralism.”[3] Fractured, layered, and parallel legal orders cut across geographically divided areas of the Horn of Africa. “Dualism” refers to the twin state legal systems inherited from British Somaliland and Italian Somalia. “Pluralism” describes how these different state legal systems overlapped with and had jurisdiction over Islamic and indigenous law, which also rested on their own plural foundations and were shaped by trade, colonialism, and intertribal disputes.

In the transition to independence, courts were important politically but not legally. Setting them up created the illusion of institution-building for the benefit of state elites, though the nascent institutions were not necessarily relevant to people’s daily lives. British anthropologists working in British Somaliland suggested that most disputes they witnessed in the run up to independence were settled not through the courts but through the payment of diyya (roughly translated as blood money) – itself a dispute resolution process of mixed indigenous and Islamic origin. “Diyya-paying groups” were made up of men, often a few hundred and rarely more than a thousand. Their leaders (who were also aqils) collected monetary or other payments from their members to give compensation to communities harmed by their individual or collective actions. Some estimates suggest there were 300 such groups in British Somaliland alone before independence. The diyya-paying groups were not a form of resistance to new laws and courts as much as an acceptable form of dispute resolution that colonial officials found it easier to allow than to suppress. For all their reshuffling of court hierarchies, late colonial administrators preparing for independence were essentially working around still-functioning forms of customary law. In fact, scholars of the region at the time concluded that there existed a “rule of law” among Somalis – not through attempts to establish a state system, but through diyya-paying groups:

Outside [diyya-paying groups], disputes are settled basically in terms of self-help and administrative intervention, [but] within them there may be said to be a rule of law, for their members have some powers of punishment with which to impose the terms of the treaty which unites them. They have no constitutionally defined leaders and their affairs are regulated by the component elders in ad hoc councils.[4]

The courts and legislative activity to set up the state had a limited impact, relative to diyya-paying groups, at least among ordinary people. But the process of constructing this formal legal framework still mattered to foreign colonial administrators. They sought out legal justification for their continued intervention to ensure that the postcolonial Somali state would look and act more like a modern (European) state. They passed laws, established courts, and built Quranic schools and legal education programs: legal techniques and religious frameworks were central to their activities. These changes in the transition to independence shaped the legacy that Somali leaders inherited. In a telling moment in his July 1959 address to the new Legislative Assembly, a year before independence, the first Somali Prime Minister spoke of the importance of maintaining such a juridical approach and a fealty to legal principles, just as colonial administrators had done: “All means must be employed within the framework of legality,” he advised fellow politicians, “in order to obtain the union of all Somali territories … under the same flag.” He concluded that writing and following laws “constitutes … a duty … because it is impossible to distinguish between Somali and Somali.”[5]

Italy’s failures during World War II and the founding of the United Nations shaped the preparations for 1960 sovereignty. After Sheikh Hassan’s death in 1920 and the subsequent demise of his anticolonial movement, British administrators in Somaliland focused on maintaining law and order, as they did in other colonies.[6] To rebuild legitimacy, promote trade, and prevent further resistance, colonial administrators continued to integrate shari‘a and xeer into the colonial legal system. According to historian Brock Millman,

A system of law emerged that recognized [xeer] and [shari‘a] – the common law and common sense – as a source of Protectorate law. A judicial system to enforce this legal amalgam gradually developed which withstood all efforts of the legal department to much reform it. For the duration of the Protectorate, it was difficult to determine where the justice system stopped and where the administration began. To enforce the law a police force was constructed … [and] a handy little army which … was effectively a unit of the British line.[7]

Further south, Italian colonial officials were also using legal techniques to justify their rule over Italian Somalia, the settler colony centered in Mogadishu. Like the British, Italian administrators established a local system of courts that applied local versions of shari‘a and xeer.[8]But legal directives always ensured that Italian principles superseded indigenous and religious ones, even in cases where no party was Italian. Qadi tribunals in Italian Somalia applied shari‘a and xeer to disputes only “where the parties were of Islamic faith and [only] to the extent that they did not conflict with … general [Italian] principles of law.”[9]

Although Italian forces invaded British Somaliland during World War II, by 1941 Allied forces retook the region and surrounding areas, including south into Mogadishu. Following Italy’s defeat, victorious parties had to decide what to do with its colonial holdings, including Italian Somalia. The British chose to administer Somaliland, Somalia, and the Ogaden (later the western region of Ethiopia) until 1950. That year, unable to decide between returning the former Italian Somalia to Italy or ceding it to Britain, the United Nations Security Council put it to a vote of the General Assembly, which decided that Italy would administer what was to be called the United Nations Trust Territory of Somaliland under Italian administration (Amministrazione fiduciaria italiana della Somalia). The Trust Territory became the UN’s ten-year project to prepare Italian Somalia for its independence in 1960. The trusteeship agreement stipulated that the Italian administration would “foster the development of free political institutions and … promote the development of the inhabitants of the territory towards independence.”[10] Following World War II, rising Somali political leaders organized to establish their political independence from European colonial authorities. They did so largely through law and through arguments about the relationship between law, shari‘a, and national identity.

Creating Legal Capacity

Somalis made a variety of arguments to legitimize their claims for independence and justifications for uniting the two colonies. One of their primary arguments was rooted, at least rhetorically, in the law. Creating and enforcing law is central to establishing and maintaining a state, and Somalis did not want law to be a barrier to their own statehood. Specifically, Somali elites saw their inheritance of two colonial legal systems – one from the British, the other from Italians – as a major obstacle to statehood and unity.[11] Forming one state with a single legal system was their solution to that problem. Legal rationales for unification were accompanied by economic ones: free trade of livestock and goods would suffer under the “artificial frontiers” enforced by colonial law, exacerbating cross-border conflict.[12]

Somali political elites as early as the 1940s saw legal reform as a necessary precondition for independence and unity. They wrote legal memoranda to colonial and UN officials to share these arguments and to advocate uniting the two colonies. These memos articulated Somalis’ vision of a single Somalia in areas under the control of different colonial powers. Because of multicolonial rule, different Somalis were trained to use different laws and procedures depending on the colonial authority governing their locality. But Somali unity, they said, required combining the various colonial legal systems. In terms similar to those of British colonial administrators, Somali leaders argued that establishing a common set of courts within a single nation would increase people’s access to justice and prevent violence:

In the case of claims between people from different territories, the aggrieved party is required to cross the frontier and travel hundreds of miles into a country to which he is a stranger. He has to go to a court the members of which look upon him as an “outsider”, and one whose laws and procedure are different from the ones he knows. As a result of the cumbersome obstacles put in his way of speedy legal redress the aggrieved party seldom goes to court. The aggrieved retaliates against the next person related to the opposite party who comes within his reach. One raid leads to another counter-raid in ever-widening circles and, frequently, result in a tribal feud through which many lives are lost and numerous herds of livestock are looted. Had there been no artificial frontiers it would be possible to obtain direct legal redress against the person or persons concerned in the minimum trouble and delay, and all that harm and damage would have been avoided.[13]

In addition to making these arguments for independence and unity, Somali elites and colonial administrators in the run-up to independence reinvigorated the legal hierarchies of the colonial project. Rather than fundamentally changing those hierarchies, they embellished them. They brought law closer to the people than ever before by continuing to devolve power and by training new lawyers to work in the state structure.

Starting in 1950, administrators in the Trust Territory drafted new regulations designed to expand the hierarchy and number of positions allocated to Somalis by appointing chief aqils and junior aqils (Somali: caaqil/caaquilo, roughly translated as “clan” leaders). Chief and junior aqils served as head local authorities and assistant local authorities, respectively, on behalf of the colonial administration.[14]District commissioners from Europe, however, continued to retain final administrative and judicial power throughout the region.[15]Meanwhile, in British Somaliland, in addition to employing aqils, district commissioners were appointing another group of paid staff called illalos. These illalos worked as armed constables, “preventing crime and apprehending offenders against the peace within the Protectorate.”[16] According to the Somali Police Force, illalos protected the public by “bringing offenders to court, guarding prisoners, patrolling townships, and accompanying nomad[s] over grazing areas.”[17]

In addition to devolving power, colonial administrators and Somalis in the 1950s invested in legal education programs. Legal education promised to create a self-perpetuating legal system by training the next generations of lawmakers. In Mogadishu, Italian administrators constructed the Horn of Africa’s first university, which was not much more than a law faculty. Established on November 10, 1954, as the Higher Institute of Legal, Economic and Social Studies, it was reorganized in 1956 as the University Institute of Law and Economics. (This institute would, in 1969, become Somali National University.[18]) It began by offering a course of studies “to provide training for the practice of … lawyers, judges and administrators” and “to study the special problems of Somalia in the field of political, legal, and economic science.”[19]While shari‘a was not the focus, Islamic law was taught to first-year students. In the academic year for which data are available (1959–60), the institute enrolled thirty to sixty students per class year in the three-year degree course in law and economics (Table 3.1). Eight of these students were women, one of whom was Somali, and the other women of unknown, likely Italian, origin.[20] Four full-time professors were hired from Italian universities in Padua, Turin, and Rome, in addition to a number of Somali and foreign lecturers, including three judges, a magistrate from the audit office, an Italian lawyer with the Mogadishu bar, a labor law expert from Italy, a Somali licencie trained at Al-Azhar University in Egypt, and a teacher of Somali ethnology.[21]

Table 3.1 Courses at Somalia’s first university (University Institute of Law and Economics)

Year OneYear TwoYear Three
Public LawCriminal LawConstitutional Law
Private LawJudicial LawLabor Law
Islamic LawInternational LawEconomic Geography
Political EconomyAdministrative Law IAdministrative Law II
History of Political DoctrinesFinanceEconomic and Financial Policy
SociologyStatistics
Arabic IArabic II
English IEnglish II

Source: UNESCO, Public Education in Somalia (Geneva: UNESCO, 1960), pp. 73–77.

In British Somaliland, where few resources existed, Britain maintained the region “almost as they found it” nearly a century earlier, still without tap water outside of Hargeisa’s government areas.[22] There was no state law school in the region; indeed, the first law school in the northern Horn would not open until 2002. However, Quranic schools that taught Arabic language and Islamic philosophy and law grew in preparation for independence. Before World War II, there were nineteen Quranic schools enrolling 400 students (all boys); most were located in the northern town of Sheikh. By 1958, two years before British Somaliland’s independence, the number of Quranic schools had increased to 230. Together with thirty-eight local government authority schools, these programs enrolled nearly 2,000 students (1,746 boys and 221 girls). Thirteen “intermediate courses” enrolled an additional 914 students (856 boys and 58 girls).[23] The twelvefold expansion in the number of Quranic schools in British Somaliland and the establishment of Mogadishu’s University Institute of Law and Economics show how administrators sought to ensure that Somalis had at least some legal capacity by teaching them state law and shari‘a.

Passing Laws, Establishing Courts, and Compartmentalizing Shari‘a

To ensure the success of the new state, colonial administrators turned to law. They spent the 1950s drafting laws to legitimize the great number of governmental changes they were making to prepare Somalis for independence. It was a period of significant legislative activity and state institution-building, taking place in parallel in both British Somaliland and the Trust Territory. These formal legal changes were European attempts not only to create the foundation for a postcolonial judiciary but also to ensure that this judiciary would oversee religion.

New laws restructured the colonial legal systems with an eye toward the independent state to come, and its relationship with religion. Chief among these was the Trust Territory’s 1956 judiciary law.[24] This law removed the opportunity of appeal to Italy and created a domestic supreme court, called the Court of Justice, in Mogadishu. Shari‘a was recognized as one of the three substantive sections of this high court (the other two were “ordinary” and “special” accounts).[25] The court’s “Shariatic” section would have final authority over all cases involving shari‘a. Qadi courts in the Trust Territory would continue to hear disputes between Muslims, and they had jurisdiction over crimes committed by Muslims “to the detriment of Muslims.”[26] The 1956 judiciary law also set up a Tribunal of Qadis capable of hearing appeals from the qadi courts. In civil matters, three qadis served as an appellate court. In criminal matters, two qadis and a regional judge (usually an Italian) would sit as an appellate court over a qadi court’s decision.[27] Finally, the law created a Higher Judicial Council tasked with “supervision and protection of the rights of judges.”[28]

In 1944, British administrators in Somaliland created a law that officially established the courts of qadis and constrained them jurisdictionally to deal only with family (also called “personal status”) matters.[29] Other subordinate courts dealt with crimes and civil matters of less than 1,500 rupees.[30] Perhaps legitimizing its role as an overseer of Islamic jurisprudence, the British administration abolished all formal aqils’ courts and granted jurisdiction to qadis’ courts only in “matters affecting the family life of the Somalis such as marriage, divorce, guardianship, succession, and maintenance.”[31] Litigants could appeal to the Court of the Chief Qadi. Further south in the Trust Territory, aqils’ courts continued to function, but a 1958 amendment to the 1956 judiciary law similarly restricted qadis’ jurisdiction only to cases related to marriage, divorce, and notarial acts.[32] Like colonial authorities in Malaya and Egypt, officials in British Somaliland and the Trust Territory sought to ensure that judges of Islamic law had no jurisdiction over criminal matters.[33]

In the Trust Territory, as nationalism grew and independence approached, officials were supposed to replace Italians with Somalis in administrative and judicial posts in order to achieve a “fuller transfer of judicial power.”[34] But three of the six Qadi tribunal judges were nonMuslim Italians and the other three seats lay vacant, which in practice meant that three Italians had supervisory authority over all Islamic-related disputes in the Trust Territory (Table 3.2). The Italians’ failed attempts at transferring judicial power undercut Somali elites’ desire to create a meaningful justice system that would endure the transition to independence.

Trust Territory administrators were hoping to make it easier for Somalis, particularly in rural areas, to access the courts instead of turning to pre-existing forms of dispute resolution tied to religion and custom. In 1958, administrators expanded the number of districts in the Trust Territory from six to thirty.[35] Each had a district judge with criminal jurisdiction over cases involving punishments of up to three years of imprisonment. Qadis focused on cases involving Muslims only, while the district judges could hear any case involving a non-Muslim.[36]

In sum, the last decade of colonialism left Somalis with two colonial legal legacies – one in British Somaliland in the north and the other in the Italian administration of the Trust Territory in the south. Their geographic limits and their own internal pluralism constrained these two legal legacies. Administrators sought legal solutions to the problem of how to build a state by passing laws, setting up courts, and establishing Quranic schools and a law school. Many Somalis, however, continued to use xeer in daily life. The following decade would see a single, united Somali Republic. Its political leaders would continue to invest in legal techniques to build the state and manage religion. They incorporated shari‘a into the state, constraining its social power by subsuming it under the state’s authority. Their activities were designed to create one legal system under state control. But their new laws and courts would fail to address indigenous Somali concerns beyond the surface level.

Table 3.2 Courts and judges in the UN Trust Territory and British Somaliland (as of 1959, in reverse hierarchical order)

UN Trust Territory of Somalia[37]British Somaliland Protectorate[38]
Court of Justice

6 judges – President, Magistrate of Accounts, 2 judges, and 2 qadis sitting in three sections (ordinary, shariatic, special accounts) – all were Italian except for the qadis

High Court

Until 1960, appeal from High Court to Court of Appeal for Eastern Africa and Privy Council[39]

Appeal Court of Assize

1 appellate judge – an Italian – and 6 assessors

First-class district courts

District officer or assistant district officer sits as judge

Court of Assize

1 regional judge and 6 assessors

Second-class district courts Imprisonment under 6 months; fines under 700 Rupees
Regional Courts

6 regional judges, 3 of them Italian

Subordinate courts (17 judges) and qadis’ courts (1 chief qadi and 12 qadis)
District courts

30 judges – 22 non-Somali district commissioners, 7 Somali district court judges, and 1 Italian judge who sat as the district judge in Mogadishu

Qadi tribunals

3 Italian judges; 3 seats vacant

Qadi courts (48 qadis)

Total:6 justices of the Court of Justice; 1 Appeal Court of Assize judge; 1 Court of Assize regional judge; 6 regional judges; 30 district judges; 3 judges of the qadi tribunals (all Italian); 48 qadis

Total: 1 Chief Justice; 1 Senior

Magistrate; 1 Resident Magistrate; 1

Magistrate (non-professional Somali); 17 subordinate court judges; 1 chief qadi; 12 qadis

Source: Derived from Haji N. A. Noor Muhammad, The Development of the Constitution of the Somali Republic (Mogadishu: Ministry of Grace and Justice, Government of the Somali Republic, 1969).

UNIFYING LEGAL SYSTEMS, 1960–1969

In 1960, Somali political leaders and colonial administrators in British Somaliland and the United Nations Trust Territory led both regions to political independence within a week of one another (June 26 and July 1, respectively), to create a united Somali Republic on July 1, 1960. The 1960s were the Somali Republic’s only period of democracy, and the decade was marked by extreme political turbulence as the nation confronted its multiple colonial legacies. The decade also saw considerable state activity dealing with the law, particularly from 1960 to 1964. Chief among political leaders’ concerns was how to unite the legal institutions of Italian Somalia with those of British Somaliland. Of a few dozen trained lawyers in the country in the 1960s, many were foreigners who, with Somali counterparts, helped make changes in the constitution, in legal codes, and in case law.[40] Foreign lawyers, primarily from Europe and North America, worked with Somali government officials to try to create a single, unified, and clearly delineated legal system. These foreigners sought to unify legal systems that they knew little about, changing laws and refining legal orders – including shari‘a and xeer – with which they had little experience. According to Somali government documents, this work was meant to instill “law and order”; it was “the core of almost all administrative handlings” during this period.[41]

Given the new nation’s legal pluralism, and the many laws added before independence, Somali elites reasonably asked themselves which legal system should govern the country, which laws should remain, and which laws should be abandoned. These questions of how to organize the legal system arose in four key contexts in the early postcolonial period: the drafting of the 1960 constitution, the shuttering of the Islamic courts and the integration of the judicial structure in 1962, political leaders’ focus on drafting legal codes, and the Supreme Court’s assertion of judicial authority. At these junctures, state officials confronted their colonial past and revised it to suit their purposes. The colonial administration had also set shari‘a on an institutionalized path, and postcolonial leaders further institutionalized it, making it part of the judiciary and abolishing the old shari‘a courts.[42] The postcolonial democratic government rhetorically embraced shari‘a and distanced itself from colonialism, even while carrying forward the colonial project by building on colonial law to create state law. Foreign lawyers contributed to this project, too, by helping to write those state laws and by working to convince Somalis that following shari‘a’s modes of argument would allow Somalis to subsume shari‘a and xeer into the state’s legal system.

The 1960 Constitution: “First, an Islamic State”

The question of whether to build the new state on Islamic or Western legal principles or some combination, became critical in drafting the Somali Republic’s first constitution, approved on June 21, 1960, just days before independence. Government officials at the time linked the constitution to the Universal Declaration of Human Rights and claimed that it was “essentially a democratic instrument based on western models, and especially on the model of the Constitution of Italy, and it represent[ed] the culmination of the efforts to evolve a modern political structure for a traditionally democratic society.”[43]

But others disagreed with the notion that Western law should be central to the constitution, and over how to integrate Western and Islamic legal orders. Religious law had been taken into account from the start: two religious experts were among the thirty-member constitutional “drafting political committee” appointed by the Ministry of Justice in March 1960.[44] In the end, the 1960 Constitution named Islam as the state’s official religion.[45] It also framed Islam as the “main source” of legislation, which required voiding any law contradictory to Islamic principles.[46] Finally, constitutional drafters decided that the Somali president must be Muslim.[47] In its reports to foreigners living and working in Somalia, the government made clear that the Somali Republic’s Supreme Court would have the power to review “any legislation which is contrary to the … constitution and [to] the general principles of Islam.”[48] Although the Supreme Court did not initially use this power, the government was giving its courts authority to void some of the laws that had just been passed in the transition to independence, using the name of Islam. The Somali Republic was, according to one of its first Supreme Court justices, “First … an Islamic State [and] secondly … a representative, democratic Republic.”[49]

Closing the Shari’a Courts and Opening a New Judiciary

From the start, however, postcolonial Somalia was an Islamic state more in name than in practice. Some Somalis, particularly in the former British Somaliland, scoffed at the idea of being governed by shari‘a.[50] Despite foregrounding Islam, the nascent Somali government in fact sought to manage the power of shari‘a by integrating it into the judicial structure and abandoning the shari‘a courts created by colonial administrators.

At its founding, the Somali Republic operated two court systems – one in the south based primarily on Italian law, and one in the north based primarily on British law. Each system had a distinct relationship with Islamic and indigenous law. In 1961, the Somali government decided to draft an Act of Union law designed to set up a single, new, national legal system. The first step in that process, however, was to make both systems – Italian-origin and British-origin – applicable, just as they had been under colonialism until the single judiciary could be finalized.[51] The Act of Union law focused on codified laws and institutions of the state, not on shari‘a or xeer. It “authorized the continuation of the existing laws and regulations in the respective regions until they were replaced by uniform laws applicable in the entire territory of the Republic.”[52] The law came into effect in September 1962 by legislative decree, and even then it affected only the northern area (formerly British Somaliland).[53] The law did not come into effect in the southern area (formerly Italian Somalia) until October 1963, nearly three years after it was drafted.[54] The delay was significant because it meant that the two colonial judicial systems continued to operate after independence, as they had in the colonial period.

One cause of the delay in setting up a single national legal system was tension between Somalia’s now united populations of north and south. Seventy percent of the country’s northern population rejected a June 1961 referendum on the Somali constitution, saying the government in Mogadishu had “legally abrogated the Act of Union” because, to these northerners, the government favored southern Somalis’ priorities, sidelining those of northerners.[55]

A second cause of the delay in uniting the legal systems was the unanswered question of whether and how to integrate shari‘a courts into existing civil and criminal court structures in northern and southern areas of the Somali Republic. The full scope of the debates is unclear, but Somali government records suggest that Somali leaders disagreed – just as they had done while preparing the 1960 constitution – over the importance of Islamic legal institutions, while they simultaneously appropriated Islamic legal power for themselves rhetorically and politically. Some Somalis argued that specialized Islamic courts were essential in any Islamic state. But others, including foreigners whose views prevailed, prepared a more careful argument about the legal importance of shari‘a. In essence, they argued that because Islam is the basis of all laws in Somalia, and because qiyas (analogy) and ijma (agreed-upon opinions of scholars) are two of the primary sources of shari‘a, then a judge who is trained in multiple legal orders (Islamic, British, and Italian, among others) would be best placed to practice qiyas and ijma. Thus, judges trained in both Islamic and Western sources would better conform to the goals of Islamic jurisprudence than judges who relied solely upon Islamic sources.[56] As in the colonial period, they urged Somalis to practice shari‘a principles, paradoxically, by applying European law.

The democratic government shuttered the specialized shari‘a courts – which operated primarily in the former British Somaliland – and replaced them with “district courts” that dealt with family matters and applied Islamic family law to Muslim litigants. No state-run courts bearing the title “shari‘a” would exist after this time.[57] In other words, to make good on the 1960 constitutional promise to create an Islamic state, postcolonial elites destroyed the shari‘a courts, at least in name, and brought non-Islamic sources into their areas of jurisprudence. Colonial officials had compartmentalized shari‘a into family courts, and then postcolonial leaders eliminated those courts, continuing and finishing the work of colonial officials to contain shari‘a’s power.

The small group of European and American lawyers working in Somalia following its independence capitalized on the reasoning behind the 1962 judiciary law as they drafted new codes for the country. Aware that analogy is part of legal reasoning in shari‘a and fiqh, these lawyers wrote codes with extensive comments and examples to enable shari‘a-trained judges to transfer their methodologies into common law adjudication.[58] In these ways, Western lawyers used tenets of shari‘a to convince shari‘a-trained legal personnel to turn to non-Islamic sources. They took a broad view of the intellectual and political origins of legal thinking and the use of analogy in order to encourage local judges to do the same. They adopted Islamic modes of reasoning and styles of writing in an effort to prompt judges who would otherwise use shari‘a not to do so. This rhetorical co-opting of Islamic styles of argument led to a divergence between the methods of communicating about law and the methods of engagement in legal practice, as well as between law’s substance and its intellectual and political origins.

Much like colonial administrators in British Somaliland, Somali political leaders wanted judges trained not only at Islamic learning centers but also in non-Islamic approaches to law, commerce, and policy.[59] Together, these political actors created a “perception of the superiority” of the state legal system over shari‘a, while justifying state power using Islamic legal precepts and the Islamic notion that judges ought to be conversant in many legal discourses and rules.[60] The legal system was designed to be multi-scalar, multi-systemic, and simultaneously religious and non-religious in order to meet Islam’s specific insistence on the universality of learning.

Legal Integration

In addition to drafting the landmark 1960 constitution and 1962 judiciary law, Somali political leaders spent the 1960s passing a range of other state legal codes, and Somali judges generated new case law related to shari‘a and xeer through Supreme Court decisions. Such officials clothed the state in law, conscious that citizens would see, encounter, and access the government through law. To make good on the state’s promise to integrate the judiciary’s British and Italian sources into a single judicial system, political leaders throughout the 1960s focused on legal development. They attempted to weave shari‘a and xeer into the legal fabric of the new state.

Independence in 1960 did not abolish colonial law – quite the contrary. The Somali government itself admitted that “legislative provisions [of the 1960s] were enacted to continue the received [colonial] law.”[61] The project of drafting new legal codes and making new laws was initially a colonial one, and it extended into the post-colonial state. That is, institutions of the rule of law, and legal rules themselves, were constructed in the context of a particular history. Somali experiences with the colonial legal order, and the ways in which colonial administrators had dealt with Islam and custom, shaped the new legal system. A foreign lawyer who worked in Mogadishu at the time wrote that “all codified law in Somalia originates from a foreign source [but] is subject … to the influence of Islamic and Somali customary law.”[62]Somali lawyers and religious leaders I met likewise told me that lawyers preferred the system in which they were trained and, because Mogadishu had more power as the seat of government than did political elites in Hargeisa, the country’s legal system favored a combination of Italian law for civil and criminal matters and shari‘a for personal matters, rather than the combination of English common law and shari‘a that had prevailed in the north.[63]

Between 1960 and 1964, the national government in Mogadishu busied itself with the daily enterprise of the law. Officials wrote and enacted new laws on nearly every possible topic and governmental institution, including “the organization of the government, the civil service, the judiciary, local government, public order, political elections, citizenship, the penal code, [and] the criminal procedure code.”[64]Legal integration, as the government called it, was not easy, as some of these new laws were clearly unconstitutional. The 1963 public order law, for instance, allowed district commissioners to sequester the goods of clans that did not pay diyya. Seizing the possessions of whole groups of people, though, was a violation of the constitutional prohibition on collective punishment. The district commissioner for Hargeisa wrote that he “was keenly aware [that his sequestering of a clan’s vehicles] was at once both legal and unconstitutional.”[65] The electoral law was also a source of contention for giving district commissioners, whom many Somalis saw as corrupt, the power to appoint electoral officers.[66] Other laws seemed to disfavor certain segments of the population, especially those living in the north. A 1963 taxation law, for example, sought to unify tax laws in the Somali Republic’s two regions, but those in the former British Somaliland saw the tax as an intentional form of discrimination against them in particular, leading to demonstrations, injuries, and deaths.[67]

In 1964, to achieve full legal integration, the government created a “consultative commission for legislation.”[68] This nine-member integration commission, as it was known, was chaired by an Italian lawyer, and most of its members were either Europeans or Somalis with European legal training. Its task was to integrate the plural colonial legal systems, flattening them into a single legal order. The government also created a separate legislative department in the Ministry of Justice and Legal Affairs that was also tasked with “legal integration.”[69]

Attempts to subsume xeer into the state legal order came through the 1962 penal code and the 1963 public order law, which allowed disputes to be resolved using customary law. “The xeer,” Somali officials argued, “needed an enforcement mechanism which the Public Order Law of 1963 provided.”[70] Once they turned to xeer, officials focused primarily on reconciling the varying colonial criminal and civil codes. The government created a new commission to revise the criminal law by preparing “uniform criminal legislation.”[71] The commission decided to define crimes according to the penal code that Italy had created for Somalia. The Somali penal code that came into force in August 1965 was “almost a word for word replica of the Italian penal code.”[72] The penal code further integrated shari‘a and xeer into the government’s criminal laws, so as not to “disregard the people’s past reliance on [these] rules and sanctions.”[73] Despite borrowing the penal code from the Italian colony, the government adopted its criminal procedure code from British-colonial India, “modified to suit the Somali situation.”[74]

Asserting Judicial Authority

Somalia’s young legislature was drafting legal codes to integrate the British and Italian legal systems with one another and subsume shari‘a and xeer into those codes, and the young Supreme Court was busy compiling case law and asserting its own judicial authority over shari‘a and xeer. As in any democratic state, judges were trying to build the state’s judicial functions and foster adherence to legal rules. Their decisions speak to how tensions among law, religion, and custom – those overlapping colonial categories – played out in the creation of the postcolonial state. Three Supreme Court cases stand out as examples of the ways in which the young Somali judiciary in the 1960s continued the colonial project of putting artificial barriers between these colonial categories, prizing state law over indigenous and religious law.

The first major case was Somali National Congress v. the State (1963), in which the Supreme Court of the Somali Republic created its own authority to review legislative action. In a ruling reminiscent to lawyers at the time of the Marbury v. Madison case in the United States, the court held that it had the power to decide the constitutionality of a provision of an electoral law and many other matters: until a separate constitutional court is established, “the ordinary [supreme] court can exercise jurisdiction on constitutional matters.”[75]

Once the Supreme Court had confirmed judicial power to review legislative action, it turned its attention to asserting similar constitutional authority over customary law. In perhaps the earliest and most important ruling on the legitimacy of xeer, the Supreme Court held that Somalis must be able to leave their diyya-paying groups, and that the new constitution is a higher legal authority than Somalis’ centuries-old indigenous law.[76] The case was brought by Abdullahi Ali – the nephew of a man named Yusuf Boni, who had been killed after being hit by a taxi – against both the taxi driver, Dahir Ahmed Bagan, and his aqil, Gulaid Jama. For his part, the aqil argued that his diyya-paying group was not liable for Boni’s death, as the taxi driver who killed Boni had previously left the diyya-paying group. The Supreme Court ruled that membership in a diyya-paying group is granted by birth and on the “basis of Somali social organization maintained by consent between tribes.”[77] But the Supreme Court ultimately ruled for the aqil, arguing that his diyya-paying group was not liable for Boni’s death. Because the constitution provides for free association, the Supreme Court wrote, Somalis must be able to leave their diyya-paying groups at any time. In other words, the constitutional requirement of free association trumped the xeer requirement that Somalis be members of diyya-paying groups by virtue of their births into those groups.

The third major case asserting the state’s constitutional authority over competing legal orders was Hussein Hersi and Ahmed Adan v. Yusuf Deria Ali (1964). In this case, a diyya-paying group refused to pay diyya (in this instance, fifty camels) for a girl killed in a traffic collision. The defendants argued that diyya payments violated the constitutional prohibition against collective criminal punishment.[78] The court observed the long history of diyya as a criminal penalty in shari‘a but merely a civil penalty in xeer. It then ruled in favor of the girl’s clan, ordering the defendant diyya-paying group to compensate for the girl’s death. While courts cannot impose criminal penalties on “whole villages,” the court judgment argued, there is a longstanding collective responsibility under xeer to pay diyya in the case of homicide.[79] With this judgment, the Supreme Court compartmentalized indigenous law into a distinct legal category, despite its roots in and a relationship to shari‘a. Doing so allowed the court to rule that xeer provided the governing rule in this case, delineating the importance of custom not only for Somali society but also for its laws. The court’s decision was also its assertion that the state – through its courts – had the constitutional power to create a hierarchy of Somalia’s legal orders. In this case, xeer principles were applied over shari‘a principles, but the court’s involvement in the first place rendered the national constitution, and the court’s interpretation of it, supreme over both custom and religion.[80]

With one hand, Somali officials and judges used colonial law as the basis for state law, simultaneously downgrading xeer and shari’a while using them to harness judicial power and build state institutions. With the other hand, they distanced themselves rhetorically from colonialism. In its “orientation course” to foreigners working in Somalia in the 1960s, the Somali government invoked a combination of legal and religious rationales for their rhetorical rejection of colonialism and colonial law. Legal rationales included citing Italian “harsh and oppressive laws … forced labor … and discriminatory laws which could not help but breed hatred among the indigenous people” alongside “Ethiopian malpractices.”[81] The government’s religious rationales against colonial law asserted how “very humiliating [it is] for a Muslim society to accept European or …

Christian domination.”[82] Despite this rhetoric, the democratic administrations of the 1960s extended rather than curtailed colonial-era laws and activities, particularly through the process of writing new laws and trying to dominate shari‘a and custom. Domination occurs in multiple forms, however: the Somali Republic in the 1960s relied upon foreign aid; by 1969 the biggest donors were Italy (USD 90 million), the USSR (USD 59 million), and the United States (USD 47 million).[83]

AUTHORITARIAN LEGALITY, 1969–1991

While state leaders worked to create new laws, their democratic government and reliance on foreign aid did not solve Somalis’ bigger economic concerns, especially among the masses of citizens living in poverty. Politics and law seemed disconnected from everyday life. By 1968, things started to fall apart. That year, the government recorded a budget deficit of 22 million Somali shillings, met largely through emergency foreign aid.[84] The economic downturn led government officials to direct state resources to themselves and their clans, which in turn caused further decline. Agricultural and livestock exports – primarily bananas and goats shipped to Italy – also suffered following the 1967 closure of the Suez Canal.[85]

A dearth of human resources in state and society exacerbated the economic decline. Education continued to be restricted, which left little human capacity for government. While a National Teacher Education Center had been set up by Eastern Michigan University with support from the United States Agency for International Development, the only higher education program in Somalia during the 1960s was that of the University Institute of Law and Economics, which had reduced its single degree course from the three years to two. By 1969, there were only forty-six university graduates in Somalia.[86]Tribalism began to take hold in legislative politics too. In the 1969 national election, sixty-four political parties put forward nearly 1,000 candidates to contest the 123 parliamentary seats. But most of these political parties were formed hastily in the run-up to the election, as efforts to ensure that a clan or sub-clan would have some kind of government representation amidst the economic collapse. Political disagreements, clan politics, and the steep economic decline helped to sow discontent with the democratic administration, opening the way for a military takeover. One leading lawyer summarized this period by saying that, although the 1960s were a democratic period, “There was no stability. [There was] crisis, corruption, clannism, nepotism – [and] people were fed up.”[87]

General Mohamed Siyad Barre – a two-decade veteran (1941–1960) of the Italian colonial police force and a rising member of the postcolonial Somali armed forces – took power by coup in October 1969, one day after the assassination of Somali President Abdirashid Ali Shermarke. Quickly thereafter, Siyad Barre suspended constitutional provisions and parliamentary functions. He began to make significant legal changes to build a legal infrastructure subservient to his rule. His government, calling itself the Supreme Revolutionary Council (SRC), dissolved the judicial structure and replaced judges with regime supporters. The SRC passed new “decree-laws” while professing its allegiance to a political philosophy of “scientific socialism” and its alliance with the Soviet Union.[88]

But Siyad Barre struggled to convince Somalis of his views, which many saw as denigrating religion. Many people equated socialism with atheism, which was against Islam, and Siyad Barre’s regime also allowed alcohol consumption, which Islam prohibits. Religious leaders were still involved in resolving people’s disputes privately and in brokering peace between rival communities. Many religious leaders thought that Islam and scientific socialism were incompatible, and preached accordingly. But Siyad Barre publicly insisted that there were no inconsistencies between Islamic and socialist political teachings, as both are based on classless, egalitarian societies.[89] At a news conference, for instance, Siyad Barre stated, “There is no chapter, not even a single word, in our Koran that opposes scientific socialism. We say, ‘Where is the contradiction? The contradiction was created by man only.’”[90] In connecting shari‘a with socialism, Siyad Barre tried to reframe people’s relationship to their faith by promoting his own understanding of shari‘a. He bent shari‘a to fit his socialist-inspired decrees that conformed to authoritarian rule. He also asserted publicly that “There is no conflict between Islam and socialism, as they both enshrine the principles of human dignity, mutual respect, cooperation, progress, justice and well-being for all.”[91] Despite Siyad Barre’s efforts to promote socialism by linking it with Islam, shari‘a had not disappeared from social life. His regime’s legacy is characterized neither by socialism nor by shari‘a, but by its authoritarian invocations of both.

During the 1970s, Siyad Barre took steps to ensure Somalis put nation before both clan and faith – such as abolishing indigenous and religious titles like sheikh and sultan, and employing informants whom the government labeled its “victory pioneers” (Somali: guul wade). A Western diplomat in Somalia summarized foreigners’ views of this turbulent time of ideological clashes: “Somalia [under Siyad Barre] is a country of three M’s – Marx, Mohammed and the Mad Mullah.”[92] Like the governments that had preceded it, Somalia’s military regime was infatuated with creating a unified set of legal solutions to the country’s social and political ills. And, in another echo of those colonial and democratic administrations, Siyad Barre tried to constrain the power of shari‘a by subsuming it under his rule.

To build a new state through law, Siyad Barre had to destroy the legal apparatus of the democratic state that preceded him. Like the democratic administration that his coup cut short, his regime also had to publicly embrace its own version of shari‘a to legitimize its authority. Siyad Barre could not ignore Islam, so he asserted that his actions were consistent with it. Embracing shari‘a rhetorically was the essential tone of governance, as it was in the democratic government, repeating the colonial pattern of using shari‘a for political ends. The Siyad Barre government’s efforts to build a socialist state – alongside environmental protection laws to protect forests and grazing lands, improvements to higher education, converting to the metric system, and even a motor vehicle insurance requirement – were designed to bring the regime closer to the people’s daily experience through its laws and policies.

Law enforcement and courts continued to maintain order after the 1969 coup, which led many Somalis I met during my field work to speak of daily life during the early years of the regime as relatively normal. Indeed, many Somalis “initially supported” Siyad Barre for these reasons.[93] Some told me that despite the fact that Siyad Barre was a dictator, they felt that “In terms of human capital, investment, [and] decentralization … the country was on the right track.”[94] Siyad Barre’s own minister of urban planning was known to favor democracy, despite working for an authoritarian administration; he would go on to become a democratically elected president of Somaliland after it broke away from Somalia. Siyad Barre’s regime also gave refuge to, and allowed Somalia to become a hub for, freedom fighters from other parts of Africa. When I asked one person why he spoke fondly about Siyad Barre’s dictatorship, he replied, “Because the legal system worked well and was efficient. There was [even] a [state] compensation system in place” to provide redress for injuries to people or their livestock, and the regime expanded labor protections and the right to work.[95] Siyad Barre received strong early support from Somalis, given his goal to remove cronyism from a political machine that many Somalis saw as broken. So long as people did not threaten his regime’s grip on political power, Somalis who lived and worked under it told me, life seemed to go on as normal – at least until 1975. “It was a strong government [that] people accepted … But no one could speak his voice,” one person said of her recollection of the period.[96]

Destroying the Law

Siyad Barre’s government began remaking the state through a sweeping legal assault after the 1969 coup. The regime felt it “had no other recourse open to it” than to destroy the judicial system built during the 1950s and 1960s.[97] In February 1970, the regime abolished the 1960 constitution and took control of legal institutions:

[Siyad Barre] dissolved Parliament, deposed the former civilian government, abolished the Higher Judiciary Council, and assumed all legislative, judiciary and executive powers … Thus all functions and powers conferred by the then-existing laws were transferred to the Supreme Revolutionary Council. The Supreme Revolutionary Council then immediately changed all the laws previously established … which were deemed to be incompatible with the spirit of the revolution.[98]

The SRC changed the nation’s name from the Somali Republic to the Democratic Republic of Somalia. Judges and other legal personnel unsympathetic to the regime became targets of the regime’s legal assault. Justices of the Supreme Court were suspended and the court was reconstituted with regime supporters. Many of those not dismissed had resigned, among them high-ranking British-trained lawyers and judges, including two attorneys general, Ahmed Sheikh Mohamoud and Musa Haji Deria, and the president of the Supreme Court, Mohamed Sheikh Ahmed.[99] All remaining judges in the country were “obliged to be committed to the construction of a socialist state.”[100] The judiciary was restructured; the new hierarchy sequestered shari‘a into district courts that were closely monitored by the state (Table 3.3).

The revolution was written through law and justified with religion. While the SRC nullified the constitution and most of the country’s laws, it did not leave a legal vacuum. The regime replaced existing laws with new legal structures and decrees of its own, using law to “turn … the state into the people’s enemy.”[101] The judiciary became, in the words of a law professor I met, “the hand of the revolution.”[102] The administration governed by military authority through two new charters: the First Charter of the Revolution and the Second Charter of the Revolution. Together, these two documents served as the Siyad Barre regime’s national constitution. But it quickly became apparent to the Somali people that the government’s socialist structure was not going to serve them as they had hoped.

Table 3.3 Somalia’s courts, as structured by the Siyad Barre regime

CourtFunction
Supreme CourtAppellate jurisdiction over civil cases and revisionary jurisdiction over criminal cases; original jurisdiction over administrative and accounting matters
Court of Appeal and Appellate Assize SectionOne Court of Appeal located in each regional headquarters
Regional CourtTwo sections (general section for cases valued over 3,000 Somali shillings, except those governed by shari‘a; assize section for heinous crimes); one regional court located in each regional headquarters
District CourtTwo sections (civil and criminal) handling all cases governed by shari‘a

Sources: Derived from Ministry of Information and National Guidance, Somalia Today, Government of the Somali Democratic Republic (Mogadishu: Ministry of Information and National Guidance, 1975), 99; Singh and Said 1973, 1–22.

Siyad Barre embraced shari‘a, at least rhetorically, during the early years of his revolution, seeking to garner support for socialism by arguing that it was consistent with Islam. The government restructured the judicial system so that new district courts would handle family disputes among Muslims, also using shari‘a. Siyad Barre made public pronouncements linking progressive socialist teaching with Islamic teaching. During his 1970 Eid al-Adha address, for instance, he stated that

Our Islamic faith teaches us that its inherent values are perennial and continually evolving as people progress. These basic tenets of our religion cannot be interpreted in a static sense, but rather as a dynamic force, as a source of inspiration for continuous advancement … Hence the need for our religious leaders to probe within the social reality of our people, and wrest from our religion its practical teachings, thus making available its ideas and actions in the interest of general progress.[103]

If Siyad Barre attempted to co-opt Islam and shari‘a, his government worked during the 1970s to destroy “tribal” structures. That is, while the regime needed to contain shari‘a, it found it easier to attack xeer. The regime framed people’s community organization as inconsistent with socialism and issued a law that prohibited “all associations of a tribal nature or whose purpose is to further tribal interests.”[104] The government abolished diyya payments, all rights previously granted to clans, and all indigenous titles given to Somalis who serve as dispute resolvers in their communities, including sheikh, sultan, bogar, garad, ogas, malag, iman, and islan.[105] The government also demanded that chiefs, aqils, and other dispute resolvers take on a new regime-created title of “peacemakers” (Somali: nabadoon), which would eliminate past references to custom and then tie their work to the new regime’s mission and identity.

The SRC argued that these changes were designed to reduce crime and allow the state to help people resolve their disputes with one another nonviolently.[106] The government claimed that most “criminal” cases were against other persons, not against the state. In 1971, the year for which data are available, only about one percent of all recorded crimes were considered political crimes “against the state” (sixty-nine instances, compared to more than 5,000 recorded violations of property, customs regulations, and hunting laws). Regime documents also argued that justice had not been served “by the corrupt practices of the past regimes, to such an extent that even the judges were not ashamed of openly demanding bribes.”[107]According to these government reports, by 1969 “people [had] completely lost confidence in the courts of law and one had either to resort to violence against his accused or had to abandon seeking for redress altogether.”[108]

Rebuilding the Law

In response to what it claimed was a loss of trust in the state judicial system during the previous democratic administration, the Siyad Barre government passed a host of new laws and “circulars” aimed at centralizing its authority and then extending that authority beyond the capital. The regime created national security “salvation courts” (Somali: mahaakim badbaado) that did not have the possibility of appeal. The courts were designed both to resolve intercommunal conflicts and to punish dissenters. A law regulating the police force integrated police officers into the national armed forces.[109] The government also formed roving “security committees” (Somali: guddiyo nabadgelyo) with the power to imprison people for years at a time. A land registration and reform law in 1975 diverted all land resources, including farms, to government ownership, replacing farmers with renters of limited experience.[110] The government’s legal work also included more benign regulations like Somalia’s first large-scale environmental resource protection laws and a law unifying weights and measures (Table 3.4).[111] With the passing of these and related laws, the government touted all the legal work it was doing to modernize the state and its citizenry.

As in the earlier colonial and democratic periods, legal pluralism was both the enemy and the friend of the political elite. Pluralism allowed them to promote a public vision of the state’s consistency with shari‘a while simultaneously limiting shari‘a’s power to restrain them. Siyad Barre’s government also claimed that it had the full support of its judges regarding these new laws. “All the blind spots in the Somali Judiciary System have been filled up by the enactment of new laws, sometimes on the recommendation of the annual seminar of the Somali judges,” the government proclaimed in 1975.[112]

Table 3.4 Siyad Barre increases state power (selected Supreme Revolutionary Council laws)

LawFunction
Law No. 1 of

January 10, 1970

Expands the police power of arrest
Law No. 3 of

January 10, 1970

Establishes National Security Courts at district, regional, and national levels, to hear political dissent cases (these courts have summary powers and no possibility of appeal; they are subject only to review by the president)
Law No. 14 of

February 15, 1970

Creates National Security Service to monitor and stifle political dissent
Law No. 54 of

September 10, 1970

Punishes political dissent through “national security” law
Law No. 64 of

October 10, 1970

Repeals habeas corpus
Law No. 67 of

November 1, 1970

Abolishes tribal titles and defends socialism
Law of

November 18, 1972

Protects environmental rights and water resources; regulates well-drilling
Law No. 81 of

December 14, 1972

Unifies weights and measures; adopts the metric system
Law No. 38 of

April 5, 1972

Expands the Supreme Revolutionary Council’s judicial powers
Law No. 23 of

January 11, 1975

Comprises hundreds of articles, including family law and women’s equality provisions
Law of October 1, 1976Devolves power to regime affiliates in local governments

Sources: Derived from Ministry of Information and National Guidance, Somalia Today, Government of the Somali Democratic Republic (Mogadishu: Ministry of Information and National Guidance, 1975); Ismail Ali Ismail, Governance: The Scourge and Hope of Somalia, (Vancouver, British Columbia: Trafford Publishing, 2010), 273.

Siyad Barre and his government took legal and psychological change seriously in their efforts to build legitimacy, government infrastructure, and development programs. Government publications complained that previous governments failed to devote resources to help people achieve a “speedy administration of justice,” which led to Siyad Barre’s “famous call” soon after the October 1969 coup for judges to hear cases “even under the trees.”[113] In its first few years after the coup, the government touted its legal development strategies as the country’s source of Islamic and socialist modernization. By 1975, the government stated that it

[had] embarked on the provision of proper courts, offices, [and] jailhouses … throughout the country. Over one hundred university graduates were absorbed into the Judiciary in the past two years … Qualified clerks [and] registrars … were also provided; the structure of the courts [was] completed by opening Regional Courts in all regional headquarters and where necessary, the Regional Courts were ordered to tour the towns in their districts frequently and thereby bring justice to the people instead of the other way round.[114]

Although the government spent considerable resources giving teeth to its goal of “bringing justice to the people” by creating courts and writing new legal codes, many of its laws and actions were still aimed at stifling political dissent (cf. Table 3.4). In 1972, Siyad Barre survived an attempted coup by two members of his own inner circle, Mohamed Ainanshe Guleid and Salaad Gabayre Kediye. Just as Siyad Barre himself had done, they made their own legal justifications for their attempts to overthrow the government. But their speeches about the need for justice landed these men in the national security courts that they had helped to create. The regime left few traces of mercy for those who disagreed, executing the men by firing squad.[115]

The regime demanded people’s participation in government in order to transform not only their views of the state but also their values and identities. But the government’s scientific socialism policy discouraged the creation of independent civic groups. The regime created state programs to take their place, such as literacy campaigns and development projects in water and sanitation. The regime encouraged people to join these programs through an ideology of government-oriented voluntarism called iska wax uqabso. The phrase translates as “do it yourself,” and the Siyad Barre regime promoted it as a form of community service. “[It was] very much imposed by the state,” those involved told me.[116] The state demanded people’s involvement not on their own terms as volunteers, but on the state’s terms as grassroots promoters of a state ideology. If any nongovernmental civic efforts existed, they “had to have the blessing [of] the regime,” according to one women’s rights activist I met. These were often restricted to community-oriented income-generation groups with a handful of participants at most. This activist said that her efforts to eliminate the practice of female genital mutilation continued, in a limited way, during the Siyad Barre regime because feminist advocacy posed “no threat to the regime” as long as she did not discuss “human rights, freedom of expression,” or changing the law.[117]

All the new laws and courts used to suppress dissent were an intrusion that turned people toward Islam, according to Somalis I met. Thus the state, with its attempts to co-opt or eliminate religion and custom, diverged from people who maintained their faith and community practices. Siyad Barre’s socialism treated the state as a patron, which meant family and community were secondary. Neighborhood committees spied on the state’s behalf, which led Somalis to mistrust the state and its program of rebuilding the law, causing some to flee the country for safety. According to a Mogadishu-based lawyer, the “first major exodus of Somalis was in the 1970s [among those] who couldn’t stomach the ‘Big Brother’ state. [Siyad Barre] really used the law and legal change. All these things were passed as laws [that] set up certain things.”[118] The new laws were publicized through radio channels that were themselves controlled by the government. In addition, the regime continued to marginalize the north, where many people thought that elites in Mogadishu ignored their grievances. But some citizens seemed to appreciate the creation of new legal doctrines; in authoritarian Somalia, new laws were still the hallmarks of a functioning and modern state, as they had been during the late colonial and democratic administrations.

Remarkably, the regime also created the first official Somali script. The Somali language, prior to 1972, was largely oral; writing had been done in Arabic, Italian, and English. That year, Siyad Barre’s government changed the language of the law from English, Italian, and Arabic into Somali; words like court, judgment, and appeal all had to be translated.[119] New terminology had to be created for banking and finance, education, governing in the ministries, and the law.[120] Setting up new terms and a legal vocabulary allowed the regime to control the language of the law. The government either invented new words or adapted words from xeer to create new legal ideas and forms. In creating a Somali script and a new Somali legal language that drew on words from xeer, the regime was also co-opting xeer. It also set up Somalia’s first Roll of Advocates to professionalize lawyers[121] and oversaw a major law review, Majalada Shaariya (translated loosely as the Somali Law Journal).[122] These actions in turn helped the regime control the law and the judicial system more deeply and extend its authority over people.

In order to inspire confidence and align itself with socialist principles, Siyad Barre’s regime opened new schools and made concerted efforts to improve the educational system. Six colleges were added to Somali National University – agriculture, chemistry, education, engineering, geology, medicine – beyond the Faculty of Law, which was still going by its Italian name, Facoltà di Legge.

By 1980, the socialist experiment was beginning to implode. The economy was collapsing, and people were reeling from the massive loss of life during Somalia’s disastrous 1977 invasion of Ethiopia. Perhaps to divert attention from the failing economy and the war, the regime renewed its commitment to higher education. Somali National University added colleges of Islamic studies, journalism, languages, and veterinary science.[123] And the government created an Institute of Evaluation of National Heritage and Mental Decolonization “where students returning from foreign universities and diplomats returning from foreign posts undergo an intensive compulsory three-month course of reorientation.”[124]

Shari‘a Against the Regime

Although the Somali state would not collapse until 1991, the regime began to crack much earlier. Fissures first opened when the regime executed a group of sheikhs who disagreed with its policies, and the failed war to annex eastern Ethiopia in a bid to unite the Somali majority region with Somalia widened them. These two events show how state law and shari‘a alone could not save the autocracy. Law was the tool the regime used to raise itself up. But shari‘a helped to bring it down.

The feeling of relative social stability, despite restrictions on political activity, changed on Saturday, January 11, 1975, when the regime delivered its new family law. Lengthy and detailed, the law comprised 173 separate articles. Similar to existing laws in the Soviet Union, from which Siyad Barre drew his inspiration and financial aid, the law was designed to rearrange the order of society. New rules of succession provided equal inheritance rights to women and men. Previously, women had been entitled only to half of any male heir’s inheritance or to none at all when, in the absence of sons, family possessions typically went to other relatives.[125] The law also restricted polygamy, gave women enhanced custody rights and the right to divorce their husbands, and enforced an ex-husband’s duty to support his ex-wife and children financially. Article 5 of the law granted women equality in marriage, stating that marriage is a “contract between man and woman who are equal in rights and duties” and that marriage is based in “mutual understanding and respect.”[126] While husbands were still seen as the head of the household, there was an added condition that the parties must cohabitate, in part to cut back on polygamy.[127] Finally, marriage could no longer take place without the bride’s consent, and the law raised the minimum age of marriage to eighteen.[128]

As with previous legislation, Siyad Barre justified this law on a combination of socialist and Islamic grounds: “Islam and socialism supplement each other because both advocate the advancement of the interest of the people, of mankind – justice, dignity, prosperity, and equality.”[129] Siyad Barre had taken great care to curate his credentials as a Muslim socialist, arguing that “scientific socialism” and gender equality fit easily into Islam. The law advanced this project and built on earlier statements and government-run women’s programs. Four years earlier, Siyad Barre’s government had given Somali women a collective “Gold Medal” for their “generous contributions to and boundless sacrifices in the protection of the young revolution.”[130] Siyad Barre then took it upon his regime to make feminism a state project, announcing that the “women’s movement … of working class, peasant, and progressive women of Africa must see [itself] as part and parcel of this world-wide anti-imperialist struggle.”[131] Siyad Barre labeled the feminist struggle a “revolution within this [socialist] revolution.”[132] Just prior to the family law of 1975, the administration had released an “Equality Declaration,” which prescribed the “complete equality of men and women in their rights and duties in accordance with the Charters of the Revolution.”[133]

Siyad Barre’s family law did not emerge in a vacuum. The legal reforms that Siyad Barre implemented in and around the 1975 family law mirrored the rights of women in Islam.[134] Shari‘a grants women the right to inheritance and ownership, and provides procedures for settling divorce claims. Perhaps for this reason, some feminist activists would later tell me that Siyad Barre promoted women’s equality because “he learned it from” religion.[135] Siyad Barre’s legal reforms also outlined rights later espoused in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the international women’s treaty that entered into force in 1981. The United Nations had labeled 1975 the International Year of Women and the first-ever international women’s conference was held two months after Siyad Barre announced his law. Sudan had appointed its first woman judge in the early 1970s; Pakistan did so in 1974, while Syria appointed its first woman judge in 1975 and its first woman minister of culture a year later.

Though some Somalis and observers welcomed the legal changes supporting gender equality, opposition to the family law, particularly its section on equal inheritance rights, ran high. Religious leaders criticized the law as “un-Islamic” for going against legal principles found in the Qur’an.[136] For the first time, a government in Somalia seemed to be saying that aspects of shari‘a would not apply to family matters, a move even British colonial administrators had not made. While some women appreciated the law, the dominant interpretation of shari‘a among Somali religious leaders at this time was that the law was repugnant to Islam. They viewed the presidential decree as anti-Muslim – a blatant attempt to reduce the power of shari‘a and of the courts that handled family matters. At the same time, Siyad Barre framed the new law rhetorically as a Muslim, and feminist activists regarded it as compatible with shari‘a. That is, the law reflected rights granted to women in Islam, but it was considered to be anti-Muslim.

The 1975 family law said daughters and sons must inherit equal shares from a deceased parent, while Islamic law generally provides that daughters inherit only a portion of what their brothers do because it is presumed that many daughters will also inherit from their husbands. (Husbands do not inherit their wives’ separate property.) Different Muslim families and societies understand these provisions differently, including in Somalia. But Siyad Barre, people felt, simply dismissed Islamic provisions, and Somali people’s interpretations of Islam, as “nonsense.”[137] Not only did the law attempt a radical alteration of the social order, but it did so by taking decisions “on inheritance and divorce out of the traditional courts” and giving them to the state.[138] For generations, family issues had been settled by sheikhs or elders often using an amalgam of shari‘a and xeer. In according equal inheritance rights to women, Siyad Barre took the work of family dispute resolution away from nonstate authorities and gave it to the government, which was “unheard of at the time.”[139]

On Friday, January 17, 1975, less than a week after the presidential decree, Mogadishu’s Cabdulqaadir Mosque was stirring. Starting with the noon prayer and continuing through evening prayer, a group of sheikhs and imams spoke one by one to crowds about how the new law was a threat to Somali life and tradition, largely for violating shari‘a and the historical practices of Somalis.[140] These religious scholars said the family law’s references to socialism and equality were contrary to the Islamic laws of succession, inheritance, and post-divorce maintenance that Somalis already used.[141]

Viewing these speeches as a protest against the law and a threat to the government’s legitimacy, Siyad Barre’s regime sent its military police to the mosque. Officers quickly “encircled the mosque from all sides, cut off electricity to silence the [religious] scholars, and arrested hundreds.”[142] Those arrested included members of Islamic study circles who had been meeting privately to practice tafseer (Arabic: reading and interpreting the Quran). The regime feared that religious leaders were trying to create a sahwa islamiyya (Arabic: Islamic awakening).

The regime’s views about whether and how to accommodate social change in shari‘a conflicted with those of these religious leaders. But the plurality of shari‘a itself was part of the threat; the regime wanted to define shari‘a only on its own terms. The regime saw itself – not religious scholars – as the final arbiter of the meaning of shari‘a. Judges in the country’s national security courts sentenced the protesting religious leaders to death for “preaching the Islamic faith falsely” because they opposed socialism and gender equality.[143] Soon after their arrests, ten of the sheikhs were sentenced to public execution, six others to thirty years’ imprisonment, and seventeen more to twenty years’ imprisonment.[144] The regime then executed by firing squad the ten sheikhs who had preached against the family law – an execution of religious leaders, ostensibly, in the name of gender equality.[145]

It is difficult to know whether Siyad Barre’s regime executed the sheikhs because they opposed women’s rights, because they were seen as a threat to the regime’s goals and Islamic credentials, or some combination. Their executions, however, underscore how Somalis, especially Somali women, found themselves caught between two visions of Islamic progress – one proffered by the regime’s state feminism and the other by dissenting clerics who linked shari’a to Somali customs and practices. Women who witnessed this episode told me privately that “nothing changed” after the 1975 family law, because women “were still beaten and raped.”[146] Like the clerics, some of them, too, were critical of the law. They did not believe such a law would achieve women’s rights because it politicized them, losing sight of actual women and their concerns, and making women central in a violent debate between elite men’s visions of socialism and shari’a.[147]

Military regimes like those of Siyad Barre create “unforgivable memories … of … state terror.”[148] Many Somalis I met regarded the execution of these religious leaders in 1975 as the most unforgivable of memories. Indeed, it was in the wake of these executions that Somalis told me they first understood what it meant to live in an authoritarian state, even though Siyad Barre had assumed the reins of power by military coup six years earlier. Things had been, according to one Somali aid worker in Nairobi, “absolutely good,” before the executions.[149] People had been “happy” at first, particularly with the government’s community development projects and improvements to the legal system’s efficiency, said another in Hargeisa,[150] despite the fact that “no one could speak” against the regime.[151] In the years after the sheikhs’ executions, people were careful not to raise issues that the government might deem sensitive to its authority. “You better be careful,” an activist told me, “so you just would not bother” trying to promote rights in a meaningful way.[152]

The family law may have been as much about restricting the power of religious leaders as about building state forms of feminism.[153] But the Siyad Barre government’s execution of the sheikhs – to protect the regime’s commitment to socialism and the legitimacy of its legal authority – was a critical moment, the first fissure in a long series of cracks that would eventually cause its collapse. In the long term, the family law was rarely implemented outside the main towns. In other places, many Somalis continued to rely on the Shafi‘i laws of succession and inheritance they had already been using; the family law fell into disuse, especially in rural areas.

The 1975 family law was not popular with Somalis who believed its inheritance provisions contradicted the eleventh verse of the fourth chapter of the Qur’an, which sets out the rules of inheritance. The law was unpopular “even among women,” according to activists I met, who saw it as “contradicting shari‘a.”[154] But, as one Somali government leader told me, “Siyad Barre had to kill [the sheikhs], otherwise he was going to lose power.”[155] It was “one of the remote causes of [his] fall. Socially, Somalis always mention that. They never forgive him.”[156] The executions felt personal, cutting to the heart of people’s faith. Senior government officials I met claimed Siyad Barre’s downfall came when people realized he “was against shari’a.”[157] Sheikhs a generation later saw the execution of their own as having longterm consequences: the episode “deeply affected society’s loyalty to the state and initiated grave nonconformity between the state and society.”[158]

Siyad Barre and the sheikhs who despised him fought one another by erecting their own boundaries around Islam, as each attempted to wrest control over its meaning in politics. The family law and stifling of dissent to it does not mean that women’s rights are incompatible with Islam; Islamic feminism is precisely what women would later fight for, as Chapter 6 shows. Instead, the executions suggest that Islamic dissent is incompatible with authoritarian rule, even in a situation where there was “clear evidence that Islam was readily misused and ignored by both [Siyad] Barre and traditional sheikhs” for their own political purposes.[159] The executions of the sheikhs also show that Islamic dissent has democratic characteristics since it involves opening the law to multiple interpretations. Put another way, autocracy could not tolerate the inherently plural ways people use and interpret shari‘a.

Resistance and Collapse

After the sheikhs’ 1975 execution, the late 1970s and 1980s saw Siyad Barre hanging onto power despite disastrous domestic and international policies. Siyad Barre’s various legal changes, as well as his attempts to enforce a shari‘a discourse consistent with his deadly form of socialism, could not last. Recreating the law and trying to control shari‘a by declaring his understanding of it the correct one proved insufficient for him to hold onto power. His actions led to political resistance and social unrest – rooted in a different version of shari‘a – and, ultimately, to his ouster and the state’s collapse.

In July 1977, the Somali military invaded eastern Ethiopia. Siyad Barre claimed that Ethiopia’s Ogaden region belonged to Somalia, and that Somalia had invaded the Ogaden to protect the majority Somali population living there and annex it to Somalia. There had long been animosity to the colonial borders that separated Somali people, and this invasion was part of a drive to unify the Horn of Africa once and for all. The two governments defined the war in juridical terms: Somalia’s government said that Ethiopia’s territorial claims rested on invalid colonial treaties, while Ethiopian rulers claimed that Somalia’s invasion violated the principle of national integrity found in the charters of the United Nations and the Organization of African Unity.[160]

Somalia’s invasion failed when about one third of Somalia’s army, once labeled in the New York Times “one of Africa’s finest”, was killed within ten months, quickly ending the war.[161] Cold War complexities and mixed alliances also complicated Somalia’s ability to win the war because, like Somalia, Ethiopia was an ally of the Soviet Union.[162]After the trauma of the failed invasion, Somalis involved told me, militias formed against the regime, and the country’s civil war ignited as people turned against one another. By 1980, commentators wrote about Somalia as “more fragile … than any other country in the world.”[163] The Siyad Barre government, according to news reports, was combining torture with “widespread arbitrary arrests, ill-treatment and summary executions” as part of its strategy to maintain control in the face of widespread protest in the early 1980s.[164] The regime restricted association and movement even more, particularly in areas of the north where opposition groups were forming. Major tax increases on farmland and vehicles only furthered the feeling that the regime was losing support.[165]

To try to hold onto power, Siyad Barre engaged in his own clan politics, employing men from his clan in key governmental posts in Mogadishu.[166]In the north, military attacks on Hargeisa and other towns led to massive refugee outflows. According to one former rebel leader of the Somali National Movement, based at the time in and around Hargeisa, “stability, the police, courts, and government” all began to collapse.[167] Lawyers, judges, sheikhs, and others believed to be not on Siyad Barre’s side became open targets. A trial in Hargeisa in February 1982 resulted in death sentences or long-term imprisonment for a group of physicians, engineers, and teachers who had tried to create local self-help groups. A national security court (Somali: badbaado) found them guilty of attempting to overthrow the government. As one lawyer told me, the ten-year period from 1981 until Somalia’s 1991 collapse, particularly in Hargeisa, “was hell. People [either] ran away [or] became fighters against the state.”[168]

In Mogadishu, the regime’s political authority crumbled when the police arrested a group of religious leaders, leading to widespread demonstrations against the regime on July 17, 1989.[169] About a year later, more than 100 religious leaders, business leaders, elders, and politicians who dubbed themselves the “manifesto group” drafted a letter to Siyad Barre proposing a neutral “national reconciliation and salvation.” Aside from calling for his resignation, their recommendations were largely juridical: constitutional and legal changes to transition the country back to democracy, including terminating all repressive laws and institutions, like the national security courts, that had been established after the 1969 coup (cf. Table 3.3). Siyad Barre, himself in his seventies and in poor health, called the manifesto group “destructive” and jailed about half of its signatories.[170]Although he later released them and agreed to multiparty elections, the state self-destructed when Siyad Barre was ousted from power and fled Mogadishu on January 27, 1991.[171] He died four years later in exile in Nigeria, on January 2, 1995.[172]

The deep connection between authoritarianism and law, in particular, led to disillusionment with the project of state-building. People came away from Siyad Barre’s regime calling state law “xeer jajab” (literally, “broken law”).[173] Siyad Barre’s uses and abuses of legal systems and techniques shattered the ideal of state law: the building blocks and institutions of the rule of law had become things to be feared. When I asked one Somali about his experience of law at that time, he said that as he witnessed the regime’s actions he came to understand that “the law … is for the man in rule.”[174] Law supported the regime, not the ordinary Somali. Likewise, the regime’s attempts to limit Islam’s power in politics – through its socialist political project, its execution of sheikhs, and military bombardments of its own cities to stamp out what it saw as an Islamic-based threat – facilitated civil war, Siyad Barre’s ouster, and the Somali government’s demise in 1991.

Long after the regime’s collapse, Somalis remain divided over Siyad Barre’s legacy. Many describe him derisively as “one of our warlords.”[175]Others claim the regime made social improvements, at least early on: creating the Somali script, improving literacy rates, and expanding educational programs, social services, and sanitation. Some told me that there remains “a great deal of fondness for the Siyad Barre regime.”[176] At least for a short time, economic development and law and order came at the cost of the stifling of dissent. Siyad Barre did create his own “cult of personality,” hanging self-portraits and banners for his Supreme Revolutionary Council along Mogadishu’s streets and holding celebratory parades for the informants in the national security service.[177] The regime consolidated its authoritarian legal apparatus through the rulings of its national security courts, which used criminal law to silence dissent. Siyad Barre’s legacy not only includes executions of religious leaders, the 1980s civil war, and the 1991 state collapse but also remains hidden in mass graves still under investigation by the Somaliland Genocide Committee. His legacy lies, as well, in varied attempts – ultimately unsuccessful – to legitimize his rule and to constrain shari‘a, which in the end proved more powerful to the Somali people than his autocracy.

CONCLUSION

This chapter has shown how late-colonial, democratic, and authoritarian governments in Somalia all sought to unify legal systems and overcome legal pluralism. It has also shown how, in different ways and to varying degrees, both the democratic administration after colonial rule and Siyad Barre’s authoritarian regime attempted to co-opt shari‘a and Islam while making them subservient to state law (in the first case) or stifling their power and generating dissent (in the second).

Across three distinct periods – the transition to independence, the democratic administration, and the Siyad Barre regime – public officials created and enforced a centralized legal order to build a postcolonial state. Their attempts to unify the law succeeded instead in further fragmenting it. But law is not enough to give governments the power they seek. Political elites also invoked Islam and tried to contain shari‘a during these three periods. They tried to subsume religious power into the government, justify their rule according to it, and overcome the capacity of religious faith to develop nonstate forms of authority. Resistance to state authority, particularly against Siyad Barre’s authoritarian regime, likewise drew on shari‘a principles.

By the time the Somali government collapsed in 1991, Somalis who survived the chaos and destruction had little faith remaining in the state or in the law, after a century of disastrous colonial and postcolonial state-building projects. Through the transition to independence in the 1950s, the democracy in the 1960s, and the Siyad Barre regime in the 1970s and 1980s, Somalis did not develop an enduring trust in the state project of using law, and limiting shari‘a, to create a singular political authority over the Somali people. If anything, law seemed to be in the service of elites and at the expense of Somalis and even of religion, which made people view not only the state but even the law with suspicion.

In the late-colonial period, colonial administrators busily wrote and passed laws in an effort to make the new nation-to-be more “modern,” while also transferring (or failing to transfer) positions inthe judiciary from Europeans to Somalis. In the democratic period, Somalia’s government ironically closed the shari‘a courts in its attempt to build an Islamic state, and foreign lawyers used the tenets and rhetorical style of shari‘a to encourage judges trained in it to apply Western (non-shari‘a) sources of law. Those paradoxes suggest how varied the instrumental uses of shari‘a were, and how widely legal practice and legal rhetoric can diverge. And in the authoritarian period, Siyad Barre pushed the unification of law to an unsustainable extreme and executed religious leaders for disagreeing with his unconventional interpretation of shari‘a. In his push for a unified legal system and a modern state, he, too, carried forward the trajectories that colonialism had set in motion.

Put another way, just as there was never a single, coherent legal and political order in postcolonial Somalia, there was also no single, coherent religious order under government control. During the transitional period prior to independence, British and Italian administrators continued to make shari‘a subservient to state law, a practice that postcolonial elites continued when they shut the colonial Islamic courts and divided the judiciary. Siyad Barre seemed to promote his socialist ideology through shari‘a, using it as a pretext for power. When religious leaders disagreed, religion – like legal pluralism – became a threat to state power rather than a source of it.

As Part II of this book will show, so also goes the story of Somalis’ turn to legal and religious solutions to resolve crisis, promote order, or contribute to civil society development after the state’s 1991 collapse. They, too, have promoted intensive legal change toward their own view of a single legal system, while each political regime and organization adopts its own instrumental version of shari‘a and sets Islam’s political boundaries – just as colonial, democratic, and authoritarian governments in Somalia did for decades.


NOTES

[1] Mark Fathi Massoud, “How an Islamic State Rejected Islamic Law,” 66 American Journal of Comparative Law (2018a): 579–602; Zaki Mustafa, The Common Law in the Sudan: An Account of the “Justice, Equity, and Good Conscience” Provision (Oxford: Clarendon Press, 1971).

[2] Izhak Englard, “Law and Religion in Israel,” 35(1) American Journal of Comparative Law (1987): 185–208.

[3] Sam Amadi, “Religion and Secular Constitution: Human Rights and the Challenge of Sharia,” unpublished research paper, Carr Center for Human Rights Policy (Harvard Kennedy School, 2004), 14.

[4] I. M. Lewis, “Modern Political Movements in Somaliland, Part I,” 28(3) Africa: Journal of the International African Institute (1958b): 244–261, p. 248.

[5] Haji N. A. Noor Muhammad, The Development of the Constitution of the Somali Republic (Mogadishu: Ministry of Grace and Justice, Government of the Somali Republic, 1969), 29, emphasis added.

[6] United Kingdom Central Office of Information, “The Somaliland Protectorate,” (London: UK Government Overseas Services, undated), 4.

[7] Brock Millman, British Somaliland: An Administrative History, 1920–1960 (London: Routledge, 2014), 301.

[8] Federico Battera and Alessandro Campo, “The Evolution and Integration of Different Legal Systems in the Horn of Africa: The Case of Somaliland,” Global Jurist Topics, April 20, 2001, p. 3, https://bit.ly/3aKa5gF (accessed January 1, 2021).

[9] Noor Muhammad (1969), 14, citing “Judicial Regulations,” Decree No. 1638 of June 20, 1935.

[10] Article 3.1, United Nations Draft Trusteeship Agreement for the Territory of Somaliland under Italian Administration, Fifth Session of the General Assembly, Supplement No. 10 (A/ 1294), January 27, 1950 (adopted as United Nations General Assembly Resolution 442.V, December 2, 1950). Other United Nations trust territories in Africa included areas that would later become Rwanda, Burundi, Ghana, Togo, and Cameroon.

[11] Mohamed Jama, “A History of the Somal,” unpublished paper from Mogadishu, Somalia, 1963, pp. 27–28, SOAS University of London, L.VH 967.73, 218.869.

[12] Ibid., 57–77.

[13] Somali Delegation to the Third Session of the United Nations, “Memoranda and Petition from the Somali Peoples on the Future of ex-Italian Somaliland and the Unification of all Somali Territories under UN Trusteeship” (1949), cited in Jama (1963), 57.

[14] Ismail Ali Ismail, Governance: The Scourge and Hope of Somalia (Vancouver, British Columbia: Trafford Publishing, 2010), 66.

[15] Ibid., 91.

[16] 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 III, p. 514.

[17] Somalia Police Force, “History,” https://bit.ly/2KYoPxF (accessed January 1, 2021).

[18] UNESCO,     Public Education  in  Somalia  (Geneva:    UNESCO,    1960),  73; Mohamed Haji Mukhtar, Historical Dictionary of Somalia (Oxford: Scarecrow Press, 2003), 235.

[19] UNESCO (1960), 74.

[20] Ibid., 77.

[21] Ibid., 74.

[22] Ismail (2010), 86.

[23] United Kingdom Central Office of Information (undated), 5.

[24] Law on the Organization of the Judiciary of 1956, United Nations Trust Territory of Somalia.

[25] Noor Muhammad (1969), 16.

[26] Ibid., 15. 27

[27] Ibid., 16.

[28] Ibid., 17, 18. The administration also established a military court in Mogadishu to deal with penal military matters. Law No. 10 of February 20, 1958.

[29] Subordinate Courts Ordinance of July 1, 1944.

[30] Noor Muhammad (1969), 25.

[31] Ibid.

[32] Amendment to Judiciary Law, Somalia Trust Territory, June 8, 1958, cited in Noor Muhammad (1969), 18.

[33] 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).

[34] Noor Muhammad (1969), 18.

[35] In 1955, only one of the Trust Territory’s six provincial commissioners was Somali. By 1957, all provincial and district commissioners were Somalis. 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), 121.

[36] Law No. 9 of February 19, 1958; Noor Muhammad (1969), 17–18.

[37] Noor Muhammad (1969), 18–19, 97.

[38] Ibid., 24–26.

[39] Ibid., 26.

[40] Martin R. Ganzglass, “A Common Lawyer Looks at an Uncommon Legal Experience,” 53(9) American Bar Association Journal (1967): 815–818, p. 817.

[41] Omar Osman Mohamed, Administrative Efficiency and Administrative Language in Somalia (Mogadishu: Somali Institute of Development, Administration, and Management, 1976), 36.

[42] Elisa Giunchi, “The Reinvention of “Shari‘a” under the British Raj: In Search of Authenticity and Certainty,” 69(4) The Journal of Asian Studies (2010): 1119–1142.

[43] Haji N. A. Noor Muhammad, The Legal System of the Somali Democratic Republic (Charlottesville, VA: The Michie Company, 1972), 27–29.

[44] Ibid.

[45] Article 1.3 of 1960 Constitution of the Somali Republic, as amended in 1963.

[46] Article 50 of 1960 Constitution of the Somali Republic, as amended in 1963.

[47] Article 71.1 of 1960 Constitution of the Somali Republic, as amended in 1963; see also Haji N. A. Noor Muhammad (1969), 75.

[48] Somali Institute for Public Administration, Perspectives on Somalia: Orientation Course for Foreign Experts Working in Somalia (Mogadishu: Somali Institute of Public Administration, 1968), 37.

[49] Noor Muhammad (1969), 35.

[50] Interview 136 with Philip, retired international lawyer who worked in the 1960s–70s in Mogadishu, Somalia (reached via telephone from San Francisco, California) (September 2016).

[51] Law No. 5 of January 31, 1961.

[52] Iqbal Singh and Mohamed Hassan Said, Commentary on the Criminal Procedure Code (Published under the Authority of the Ministry of Justice and Religion) (Mogadishu: Wakaladda Madbacadda Qaraka – Xamar, 1973), vi; see also Noor Muhammad (1969), 34.

[53] Law on the Organization of the Judiciary, Legislative Decree No. 3 of June 12, 1962.

[54] Noor Muhammad (1969), 135.

[55] Hussain Ali Dualeh, From Barre to Aideed – Somalia: The Agony of a Nation (Nairobi: Stellagraphics, 1994), 17.

[56] Noor Muhammad (1969), 135.

[57] The 1962 Law on the Organization of the Judiciary revised the court system hierarchically as follows: a Supreme Court, Courts of Appeal, Regional Courts, and District Courts.

[58] Ganzglass (1967), 817.

[59] Abdulkadir Hashim, “Shaping of the Sharia Courts: British Policies on Transforming the Kadhi Courts in Colonial Zanzibar,” 38(3) Social Dynamics (2012): 381–397.

[60] Barbora Rýdlová, “Civil War in Somalia: A Colonial Legacy?” Research report (Charles University: Institute of Political Studies, 2007), 25.

[61] Noor Muhammad (1972), 45.

[62] Martin R. Ganzglass, The Penal Code of the Somali Democratic Republic, with Cases, Commentary, and Examples (New Brunswick, NJ: Rutgers University Press, 1971), xx–xxi.

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

[64] Ganzglass (1967), 815.

[65] Ismail (2010), 191–192.

[66] Ibid., 201.

[67] Dualeh (1994), 18.

[68] Ismail (2010), 129.

[69] Ganzglass (1971).

[70] Ismail (2010), 193.

[71] Ganzglass (1971), xix.

[72] Singh and Said (1973), vi, xii. The earlier penal code of October 1960 was also largely a “replica” of the July 1931 Italian penal code. Ganzglass (1971).

[73] Irving Kaplan, Margarita K. Dobert, James L. McLaughlin, Barbara Marvin, H. Mark Roth, and Donald P. Whitaker, Area Handbook for Somalia (Washington, DC: US Government Printing Office, 1977), 343.

[74] Ganzglass (1971), xix.

[75] Somali National Congress v. the State, November 5, 1963, judgment by Dr. Giuseppe Papale, President, Supreme Court of the Somali Republic, cited in Noor Muhammad (1969), 147.

[76] Aqil Gulaid Jama v. Abdullahi Ali, Supreme Court Full Bench Civil Appeal No. 24 of 1964, judgment by Dr. Aldo Peronaci, President, Supreme Court of the Somali Republic, cited in Noor Muhammad (1969), 61–62.

[77] Noor Muhammad (1969), 61–62.

[78] Article 43.1 of the Constitution of the Somali Republic, 1960.

[79] Law on the Organization of the Judiciary, Article 82, approved by Royal Decree No. 937, June 11, 1911, British Somaliland Protectorate.

[80] Hussein Hersi and Ahmed Adan v. Yusuf Deria Ali, Supreme Court Civil Appeal No. 2 of 1964, judgment by Haji N. A. Noor Muhammad, Vice President, Supreme Court of the Somali Republic. 9(3) Journal of African Law (1965): 170–183; see also Noor Muhammad (1969), 73–74.

[81] Somali Institute for Public Administration (1968), 17.

[82] Ibid.

[83] See Noor Muhammad (1969), 24.

[84] “Statement by the Minister of Finance, H. E. Hagi Farah Ali Omar, on the Budget Estimates for Financial Year 1968,” Bollettino Ufficiale Della Repubblica Somalia, 1968, p. 51.

[85] Ibid., 23–24.

[86] Mohamed (1976), 10. In pointed contrast to the small number of university graduates in Somalia, hundreds of Somalis were studying for university degrees abroad (451 in the USSR, 268 in Italy, 131 in West Germany, 98 in the United States, 52 in Czechoslovakia, and 33 in the United Kingdom). See Ministry of Planning and Coordination, Somalia in Figures (Mogadishu: Ministry of Planning and Coordination, 1967), British Library, London, C.S.C. 179/10.(2.).

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

[88] Ministry of Information and National Guidance, Somalia Today, Government of the Somali Democratic Republic (Mogadishu: Ministry of Information and National Guidance, 1975), 58–64.

[89] George James, “Somalia’s Overthrown Dictator, Mohammed Siad Barre, Is Dead,” New York Times, January 3, 1995.

[90] John Darnton, “Somalia Trys [sic] to Live by Both the Koran and ‘Das Kapital,’” New York Times, October 11, 1977, https://nyti.ms/37Ala0x (accessed January 1, 2021).

[91] David D. Laitin, “Revolutionary Change in Somalia,” 62 Middle East Research and Information Project Reports (1977b): 6–18, p. 18.

[92] As quoted in Darnton (1977).

[93] Interview 36 with Yasir, senior government official in Hargeisa, Somaliland (June 2013).

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

[95] Interview 109 with Qasim, lawyer and government consultant in Hargeisa, Somaliland (June 2014).

[96] Interview 125 with Sohir, NGO executive director and women’s rights activist in Hargeisa, Somaliland (June 2014).

[97] Ministry of Information and National Guidance (1975), 97.

[98] Ibid., 58.

[99] Ismail (2010), 221.

[100] Girolamo Marotta, “The Active Functions of Judges,” 9 Somali National Reports to the 9th International Congress of Comparative Law (Tehran, 1974): 15–23, p. 16; see also Ministry of Information and National Guidance (1975), 97.

[101] A. Ibrahim Mohamed (Qoorcade), A Nation in Tatters: Somalia (Qaran Dumay) (Liverpool: Somali Education Trust, 2009), 85.

[102] Follow-up interview 11 with Faris, professor and government official in Hargeisa, Somaliland (June 2013).

[103] Statement of Mohamed Siad Barre, as quoted in Laitin (1977b), 18.

[104] Law No. 67 of November 1, 1970.

[105] Noor Muhammad (1972), 31.

[106] Ministry of Information and National Guidance (1975), 99–104.

[107] Ibid., 97.

[108] Ibid.

[109] Ibid., 91.

[110] Abdulahi A. Osman, “The Somali Conflict and the Role of Inequality, Tribalism and Clanism,” in Somalia at the Crossroads: Challenges and Perspectives in Reconstituting a Failed State, eds. Abdulahi A. Osman and Issaka K. Souaré (London: Adonis & Abbey, 2007), 83–109, p. 95.

[111] Law No. 20 of January 15, 1973; see also Ministry of Information and National Guidance (1975), 94.

[112] Ministry of Information and National Guidance (1975), 100.

[113] Ibid., 99.

[114] Ibid., 99–100.

[115] Ismail (2010), 225. The men were executed alongside a third man, Abdulkadir Dheel.

[116] Interview 78 with Majda, lawyer and human rights activist in Mogadishu and Hargeisa (conducted in Nairobi, Kenya) (July 2013).

[117] Interview 55 with Fawzia, women’s rights activist and former NGO executive director in Hargeisa, Somaliland (June 2013).

[118] Interview 78 with Majda, lawyer and human rights activist in Mogadishu and Hargeisa (conducted in Nairobi, Kenya) (July 2013).

[119] For instance, “appeal” had been appello (Italian); it was then translated into rafan (Somali).

[120] Laitin (1977a).

[121] “Somaliland Legal Profession,” Somaliland Law (2020), https://bit.ly/3nUOypl (accessed January 1, 2021).

[122] Interview 5 with Na’im, lawyer and legal consultant in England (conducted by telephone from London, England) (June 2013). Many people referred to the Somali Law Journal using the Arabic title, al-majala (simply, the magazine).

[123] Mukhtar (2003), 235.

[124] Henry Tanner, “Soviet Giving a Lift to Marxist Junta Trying to Pull Somalis Out of Poverty,” New York Times, July 15, 1975, https://nyti.ms/36HFIVt (accessed January 1, 2021).

[125] Elisabetta Forni, “Women’s Role in the Economic, Social and Political Development of Somalia,” 19 Africa Spectrum (1980): 19–28, p. 24; Iman Abdulkadir Mohamed, “Somali Women and the Socialist State,” 4 Journal of the Georgetown University-Qatar Middle Eastern Studies Student Association (2015): 2.

[126] Forni (1980), 24.

[127] Abdullahi An-Na’im, ed., Islamic Family Law in a Changing World: A Global Resource Book (London: Zed Books, 2002), 81–82.

[128] Forni (1980), 24.

[129] Darnton (1977).

[130] Ministry of Information and National Guidance (1975), 53.

[131] Forni (1980), 24.

[132] Ibid.

[133] In one of the many dissonances of the Siad Barre administration, the Equality Declaration also notes that “the husband is the head of the family by law.” Ministry of Information and National Guidance (1975), 53.

[134] Women’s Rights in Islam and Somali Culture, report of UNICEF and the Academy for Peace and Development, December 2002.

[135] Interview 131 with Shamsi, women’s rights activist in Hargeisa, Somaliland (June 2014).

[136] Interview 5 with Na’im, lawyer and legal consultant in England (conducted by telephone from London, England) (June 2013).

[137] Interview 124 with Najib, former senior government minister in Hargeisa, Somaliland (June 2014).

[138] Brief of Amici Curiae Academic Experts in Somali History and Current Affairs in Support of Respondents (No. 08-155), Mohamed Ali Samantar v. Bashe Abdi Yousuf, et. al., Supreme Court of the United States, January 27, 2010.

[139] Interview 6 with Rashida, lawyer in Hargeisa, Somaliland (conducted by telephone from London, England) (June 2013).

[140] Interview 5 with Na’im, lawyer and legal consultant in England (conducted by telephone from London, England) (June 2013).

[141] These laws came primarily from the Shafi‘i school of Sunni Islamic law, which is one of the four schools of Sunni Islamic law, the others being Hanbali, Maliki, and Hanafi.

[142] Mohamed (2015), 6–7.

[143] Laitin (1977b).

[144] Mohamed (2015), 7.

[145] Historical records differ as to the actual number of executed sheikhs; some say ten, others eleven, and others twelve. Darnton (1977). The Siad Barre government claimed these were imposters, not religious leaders. Interview 5 with Na’im, lawyer and legal consultant in England (conducted by telephone from London, England) (June 2013).

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

[147] Interview 55 with Fawzia, women’s rights activist and former NGO executive director in Hargeisa, Somaliland (June 2013).

[148] Mohamed Haji Ingiriis, “‘We Swallowed the State as the State Swallowed Us’: The Genesis, Genealogies, and Geographies of Genocides in Somalia,” 9(3) African Security (2016): 237–258.

[149] Interview 85 with Ibrahim, NGO program adviser in Nairobi, Kenya (August 2013).

[150] Follow-up interview 96 with Adam, independent researcher and consultant in Hargeisa, Somaliland (June 2014).

[151] Interview 125 with Sohir, NGO executive director and women’s rights activist in Hargeisa, Somaliland (June 2014).

[152] Interview 55 with Fawzia, women’s rights activist and former NGO executive director in Hargeisa, Somaliland (June 2013). 153

[153] Mohamed (2015), 8–9.

[154] Interview 55 with Fawzia, women’s rights activist and former NGO executive director in Hargeisa, Somaliland (June 2013).

[155] Interview 85 with Ibrahim, NGO program adviser in Nairobi, Kenya (August 2013).

[156] Ibid.

[157] Interview 87 with Muuse, retired senior government minister in Mogadishu, Somalia (conducted in Addis Ababa, Ethiopia) (August 2013).

[158] Hassan Sheikh Ali Nur Muhammad, Muhammad Danial Azman, and Roy Anthony Rogers, “Before Things Fall Apart: The Role of the Soviet Union in Somalia’s Troubled Past (1969–1978),” 25(2) Intellectual Discourse (2017): 409–427, p. 417, citing personal communication with a sheikh in Mogadishu, December 2012.

[159] Muhammad et al. (2017), citing Mark Bradbury, Becoming Somaliland (Bloomington: Indiana University Press, 2008), 37.

[160] Michael T. Kaufman, “Somalia Announces Mobilization, Dispatch of Its Troops to Ogaden,” New York Times, February 12, 1978, https://nyti.ms/2IdCakq (accessed January 1, 2021).

[161] John Darnton, “For Many Somalis, It Was a War That Wasn’t,” New York Times, March 19, 1978, https://nyti.ms/343ebwj (accessed January 1, 2021).

[162] When the Soviet Union began supporting Ethiopia, it fell out of favor with Siad Barre, who then reached out to Western nations for support. When Ethiopia turned Marxist, Siad Barre sought US support, which brought USD 200 million in aid, largely in weapons deliveries to the Somali military. Kaufman (1978).

[163] Gregory Jaynes, “In Somalia, Every Day’s an Emergency,” New York Times, November 3, 1980.

[164] George James, “Somalia’s Overthrown Dictator, Mohammed Siad Barre, Is Dead,” New York Times, January 3, 1995, https://nyti.ms/3mKxbXJ (accessed January 1, 2021).

[165] Liberty: Magazine of the Somali National Movement (No. 1, Spring, January 9, 1986), zc.9. b.1695, British Library, London.

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

[167] Interview 100 with Hassan, legal aid attorney and former police official in Hargeisa, Somaliland (June 2014).

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

[169] H. A. A. Aideed, “The Siyad Barre Regime’s Genocide of the Somaliland People,” in War Destroys, Peace Nurtures: Somali Reconciliation and Development, eds. R. Ford, H. Adam, and E. Ismail (Lawrenceville, NJ: Red Sea Press, 2004).

[170] James (1995).

[171] Bradbury (2008), 46.

[172] James (1995).

[173] Interview 101 with Ruben, university lecturer and consultant in Hargeisa, Somaliland (June 2014).

[174] Interview 113 with Majed, legal aid attorney in Hargeisa, Somaliland (June 2014).

[175] Interview 129 with Xalwo, women’s rights activist in Hargeisa, Somaliland (June 2014).

[176] Interview 109 with Qasim, lawyer and government consultant in Hargeisa, Somaliland (June 2014).

[177] Interview 136 with Philip, retired international lawyer who worked in the 1960s–70s in Mogadishu, Somalia (reached via telephone from San Francisco, California) (September 2016).

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