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Chapter Four – Restoring Shari‘a: Islamic Courts In A Shattered Somalia – from Part II – Struggles of a Broken Nation, 1991–2021 in Shari‘a, Inshallah: Finding God in Somali Legal Politics

In 2013, I traveled to Addis Ababa, Ethiopia, to meet a senior government minister from Somalia’s Transitional Federal Government (TFG). He had recently left Mogadishu and I asked him to reflect on his years working to rebuild Somalia’s government, his successes and failures, the country’s legal development, and what the Islamic Courts Union and a series of failed international humanitarian interventions had left behind. He spoke about his country’s legacies of colonialism, violence, democracy, and authoritarian rule; his political strategies; and his struggle to survive attacks from militants who claimed shari‘a as their inspiration.

Author

Mark Fathi Massoud

Type

Chapter

Information

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

, pp. 159 – 207

DOI: https://doi.org/10.1017/9781108965989.006

Publisher: Cambridge University Press

Print publication year: 2021

BOOK CHAPTER

CHAPTER FOUR – Constraining Shari‘a: Postcolonial Legal Politics

from Part II – Struggles of a Broken Nation, 1991–2021

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

THE GROWTH OF SHARI‘A COURTS, 1991–1999

SomlegalAds

The Rule of Law Breaks Down

Shari‘a Courts Spring Up

THE ISLAMIC COURTS UNION: COURTS AS POLITICAL ACTORS, 2000–2007

Shari‘a Courts Unite

The Courts Begin Building the Rule of Law

The Islamic Courts Union Is Destroyed

GOD’S WILL, MILITARIZED, 2007–2021

The Legalism of Al-Shabaab

The Difficulty of Reestablishing a State Judiciary

Constitutional Shari‘a

CONCLUSION

INTRODUCTION

In 2013, I traveled to Addis Ababa, Ethiopia, to meet a senior government minister from Somalia’s Transitional Federal Government (TFG). He had recently left Mogadishu and I asked him to reflect on his years working to rebuild Somalia’s government, his successes and failures, the country’s legal development, and what the Islamic Courts Union and a series of failed international humanitarian interventions had left behind. He spoke about his country’s legacies of colonialism, violence, democracy, and authoritarian rule; his political strategies; and his struggle to survive attacks from militants who claimed shari‘a as their inspiration. Shari‘a inspired him too. He wished to see an Islamic state rise from Mogadishu’s ashes – a state that would protect all citizens’ political rights and fundamental freedoms. He, the Somalis he represented, and those who fought against them all felt strongly about shari‘a; they just defined it differently according to their differing goals. “The Somali people know shari‘a will not disadvantage them,” he told me firmly. “They trust shari‘a more than any other law.”[1] Ending our second day of meetings together, he summarized his years-long efforts trying to restore the rule of law to his country and to earn the public’s trust, saying, “Look … you have to use Islam to win the hearts and minds of the Somali people, [and] to make the law attractive to [them].”

Somalis seizing control of national institutions, those helping them, and those battling against them have long had their hearts and minds set on the law. All have used what they publicly label “shari‘a” to achieve their political, economic, and social objectives. Their efforts to advance either law and order – stability at the cost of repression – or the rule of law bear striking resemblance to one another; both goals lead them toward, rather than away from, religion. Political elites know that their adversaries create or appropriate their own version of shari‘a to promote different understandings of legal change, public order, and God’s will. Meanwhile, international lawyers and aid workers seeking legal order in Somalia have either compartmentalized or ignored shari‘a, defining it as a religious law that, if it is to be integrated into the state at all, must be subordinated to international law.

By analyzing the thirty years following President Siyad Barre’s 1991 escape from Mogadishu and the subsequent collapse of the Somali government, this chapter shows how shari‘a courts were beginning to help build stability and a path toward the rule of law in Somalia. This experiment in grassroots state-building was cut short, however, largely by outside military intervention.

By turning to the law, establishing local courts for self-governance, and then linking individual courts into legal system, Somalis in the 1990s and 2000s repeated patterns characteristic of pre-democratic and early democratic Western Europe and colonial and early postcolonial North America, where state-building relied upon courts, and judges invoked God’s will. Before the founding of the English Puritan movement and modern European states, John Calvin wrote that the law “is the best instrument for [people] to learn more thoroughly each day the nature of the Lord’s will.”[2]Two centuries later in the American colonies, judges in trial courts – called county courts – constructed the foundation of American independence and democracy on this same principle of God’s will. These judges were influential political and religious figures who “believed unswervingly in their right to rule in the name of God and according to [God’s] divine plan.”[3] Courthouses not only sentenced criminals in God’s name. They were also “jack-of-all-trades” administrative bodies, the “workhorse of … government … They ran the show.”[4] Following American independence, nineteenth-century judges and lawyers regularly invoked God’s will by perpetuating the legal maxim that “Christianity is part of the common law.”[5] Summarizing America’s early legal and political development, historian Lawrence Friedman writes that “It would be hard to overemphasize the influence of religion… It was the duty of the law to uphold, encourage, and enforce true religion.”[6]

Somalia is no exception to this process also found in Western civilization, in which human beings invoke God’s will and the law as their state-building partners. Between 1991 and 2021, Somalia was not simply a chaotic and lawless place, as media reports suggest. These “stateless” years are instead a case study in how shari‘a courts – like the courts that sprang up in the early history of democracies – are the seedlings of stable governance and the rule of law. As Islam was one of the only credible institutions left when the Somali state collapsed in 1991, it is no accident that the courts that took shape were – in name at least – shari‘a courts. As this chapter shows, when these courts merged and became more vocal about national politics, they attracted enemies in high places whose attacks they could not withstand.

This chapter, “Restoring Shari‘a,” uncovers the long-term legal politics of religion: how political authorities and nonstate actors prioritized or rejected God’s will to achieve their political, economic, and social objectives. Their efforts to promote or challenge the rule of law in Somalia drew from how they viewed shari‘a and practiced it. (Chapters 5 and 6 also address questions about the interplay between religion and the rule of law over the same thirty-year period in Somaliland, after it broke away from Somalia in May 1991.) Somalia’s political authorities have yet to make good on their promises of a stable Islamic state responsive to the needs of all citizens. This chapter is an effort to document a generation of their attempts.

The stereotype of Somalia as a lawless state was never closer to reality than in the years immediately following its 1991 collapse. As people fled the country and state institutions fell apart, militiamen emptied the army’s weapons depots and obtained guns on the black market. By amassing this arsenal and recruiting foot soldiers to patrol territory, these militiamen became warlords. They installed checkpoints on key thoroughfares and busy intersections, demanding payment from those who left their homes and villages to meet relatives or trade goods and services; revenue from such tolls enabled the warlords to buy more weapons and recruit more soldiers.[7]

Groups of elders, religious leaders, political elites, and others who survived the civil war tried to promote stability despite the rule of warlords and the lack of functioning state institutions. Some of them were inspired to help by their religious faith alone, others by the possibility of power or wealth, and others by a combination of religion, politics, and profit. They appropriated different versions of what they called shari‘a to counter the absence of the rule of law and of the state itself. Their aspirations led to similar responses to the violence, banditry, and warlordism. These strategies included (1) creating courts that used shari‘a to deal with business and family matters, crimes, and social or moral decay; (2) forming political organizations, militias, and social movements rooted in Islamic faith and Islamic legal institutions; and (3) rebuilding and reasserting the state’s foundation in Islamic law. Together, these three overlapping efforts, discussed in this chapter, reveal how law and religion are tied to building a state. In Somalia since 1991, shari‘a emerged as a universalizing legal language among distinct political actors who addressed what they saw as the nation’s political, economic, and social breakdowns. As the ubiquitous system that disparate actors already had in common, shari‘a also became the unifying force that brought to life people’s varying aspirations and allegiances.

Religious leaders who set up shari‘a courts in Mogadishu during the 1990s were among the first to respond to the disintegration of state institutions after Siyad Barre’s ouster. The religious leaders were not seeking national power. Their courts were for neighborhoods, designed for local people – typically from a shared family lineage – to resolve their disputes with one another. As the warlords sought, separately, to control transport lifelines and to implement their own brand of law and order built on the threat of violence, individual religious leaders turned to the law to create peaceful ways to solve ordinary conflicts. The judges in these courts mainly helped people manage petty crimes like theft or resolve family disputes over marriage dissolution and inheritance. In other words, they helped bring some order to people’s everyday problems.

In the 2000s, something remarkable happened in Mogadishu. Each shari‘a court had its own unofficial armed police force and, when the courts and their militias united, they fought back against and expelled Mogadishu’s most notorious warlords. Western intelligence agencies and governments were caught by surprise by the rise of the Islamic courts; the United States government, for instance, was actually supporting the warlords because they had agreed to help catch terrorists hiding out in Somalia. When acting as a group, the judges and their armed and unarmed staff called themselves Itihad al-Mahakim al-Islamiyya (Arabic: Islamic Courts Union or ICU). Within weeks of the ICU’s expulsion of Mogadishu’s warlords, grateful and hopeful Somalis began to unlock their doors, clean up their streets, and reopen their schools and hospitals – all in the name of Islam.

The ICU was a diffuse organization, with rival leaders sending conflicting messages about the group’s goals. Some of its leaders had national political ambitions, while others wanted to resolve disputes and bring people closer to Islam. The ICU’s political successes and the support Somalis gave them did not go unnoticed overseas. Western governments and neighboring Ethiopia deemed the ICU a threat to the American-led global war on terror. Within six months of cleaning up Mogadishu and expelling the city’s warlords, the ICU collapsed, in part from its own internal disagreements but also from a US-supported and Ethiopian-led military invasion designed to put an end to what Western political leaders and policymakers labeled Somalia’s “armed Islamist” threat.[8] After the ICU was defanged, its politically moderate judges fled to Yemen, Eritrea, and neighboring countries. A military wing that called itself Harakaat al-Shabaab al-Mujahidun, or simply al-Shabaab (Arabic: Youth) remained behind. Since 2006, al-Shabaab militants have used people and weapons – along with the name, discourses, and symbols of Islam – to promote their own punishing version of law and order by ridding the region of anyone else they could: the warlords, government officials, aid workers, and everyday East Africans unaffiliated with al-Shabaab’s militias.

Through the Islamic courts, nonstate actors attempted to build the rule of law – but they were not alone. Political authorities seeking to rebuild the state also combined law and religion to achieve their goals. At first, these efforts were hampered by Somalis’ strong mistrust of the state, exhausted as the public was from twenty-two years of Siyad Barre’s dictatorship. For personal security reasons, those claiming state authority met outside Somalia with international lawyers and Western foreign policy experts who tried to help them. They met north of Somalia, in Djibouti, in 2000 when they founded the Transitional National Government (TNG), and then a new batch of political leaders met south of Somalia, in Kenya, in 2004, this time as the Transitional Federal Government, or TFG. Between 1991 and 2021, these numerous political leaders made at least fifteen attempts to put together a central government in Mogadishu. Transitional Federal Government officials worked in exile or out of a small compound in Baidoa, Somalia. In a 2010 brief to the US Supreme Court, a group of academic experts characterized the TFG as “not a government in any common-sense definition of the term. It effectively administers hardly any territory, and provides no services to the citizens who find themselves in the limited zones where it is even present.”[9]

In the face of al-Shabaab’s efforts to destroy them, TFG officials renewed their commitment to rebuilding Somalia’s political and legal institutions, obtaining support from the United Nations and Western aid agencies and governments. In the 2000s and 2010s, TFG officials quarreled amongst themselves as they waged a taxing, one-step-forward-two-steps-back war with al-Shabaab. But the threats and violence did not stop them from drafting a constitution largely supported by the international development community. When completed in 2012, the constitution declared Somalia an Islamic state whose primary source of law was shari‘a. Focusing on the varying political actors who tried to create stability during the first generation after Somalia’s 1991 collapse – the local shari‘a courts and the Islamic Courts Union, al-Shabaab, and the TNG and TFG – this chapter examines their repeated and conflicting attempts to restore shari‘a on their own terms – and to rebuild Somalia or destroy it.

THE GROWTH OF SHARI‘A COURTS, 1991–1999

Following the collapse of Somalia’s state institutions, the first institutions attempting to provide stability were nonstate religious courts. Lawlessness was expensive, particularly for families and local traders, and in these courts disputing parties could present their claims to neutral judges without resorting to violence. These religious courts earned people’s trust because their judges claimed to rule according to God’s will. This link with Islam enhanced the perceived stability and sanctity of these new legal spaces. Though it is unclear how much training in shari‘a these judges actually had, they used what they called shari‘a to bring stability to their locales by resolving disputes and catching criminals.

Those who established, joined, and used these shari‘a courts had varying visions of shari‘a. Some argued that the courts signaled a new “time … to employ … the tolerant form of Islam.”[10] Others, instead, wanted to make the courts empower local religious police and enforce strict social mores. Still others wanted the courts to focus only on providing economic security and resolving disputes, paying heed to neither a rigid nor a flexible view of social ethics. With such divergent political goals and viewpoints in play, the courts attracted political activity and fringe groups. This diversity of economic, social, and political goals resulted in some unpopularity, as many people wanted the courts to focus only on their own priorities.[11] Some were also, with good reason, suspicious of attempts by any shari‘a court to exercise political power beyond its limited geographic jurisdiction in a country where little political authority remained. But the courts were the earliest attempts to build local stability in the aftermath of the civil war, and they did so by invoking the power of both law and religion.

Some scholars have held that people grew to trust the courts when they saw them as part of a long legacy of Islamic empires in the region and a more recent tradition of Somalis fighting colonial and authoritarian domination by promoting a shared religious identity.[12]Others have argued that the courts were more pragmatic than religious – spaces for building confidence and order.[13] This section of the chapter shows that the courts were both religious and pragmatic. It should not surprise legal scholars that the courts invoked religion and pragmatism to build trustworthy local institutions. Indeed, religious symbols – Bibles, robes, and courtroom benches reminiscent of church altars – abound in modern Western courts that are no longer presumed to be religious. In using religion to build stability, the shari‘a courts bear striking parallels to those courts that played an influential role in the early development of democratic states.[14]

The Rule of Law Breaks Down

Foreign policy specialists often refer to the decade after 1991 as the beginning of Somalia’s “stateless” period. The government’s demise left no political or judicial power under state control, and no state institution could exercise authority over the Somali people and territory. As one Somali aid worker told me, “The rule of law broke down. It was thuggery and warlords.”[15] In this chaotic political context, competing militias, each led by its own military commander, took control of roads, neighborhoods, and regions, while Somalis turned to those they had long trusted to resolve disputes: religious leaders and elders in their extended families or “clan” networks. By 1994, these religious and community leaders had begun to open and operate their own small courthouses, affiliated neither with each other nor with any larger organization. They called themselves judges and they used their interpretations of God’s will as the source of their decision-making.

These courts were not the first attempt after Siyad Barre’s fall to use religious discourse to build respect for law, public order, and peacemaking. In 1990, at the height of the civil war, a group of more than sixty intellectuals, naming themselves “Islamic Call,” had published a manifesto that used Islamic teachings to reject violence and authoritarianism, calling for peaceful dialogue among warring rivals.[16]

In addition to the scattered shari‘a courts, two important political organizations began promoting Islamic faith and Islamic law soon after the government’s collapse in January 1991. The first was a decentralized organization called al-Itihaad al-Islamiyya (Arabic: Islamic Union), that opened religious schools and relief clinics in an effort to educate Somalis to replace local customs – corrupted as they were by colonial influences and postcolonial state development projects – with Islamic law. Al-Itihaad al-Islamiyya, which had formed when it broke off from Somalia’s chapter of the transnational Muslim Brotherhood, was known for its militancy. Its members claimed responsibility for various deadly attacks, including one in Ethiopia in the 1990s. Taking cues from nearby Sudan’s leading lawyer and political operative, Hassan al-Turabi, al-Itihaad al-Islamiyya’s leader Sheikh Hassan Dahir Aweys sought power by gaining control of local institutions left behind after the collapse.[17] The second organization was a Sufi movement of the Somali Muslim Brotherhood called al-Islah (Arabic: Reform, sometimes transliterated Al-Islaah). Founded in the 1970s, al-Islah also opened schools and health clinics after the state’s collapse. In contrast to al-Itihaad al-Islamiyya’s religious militancy, al-Islah publicly called for “restoration of the rule of law” through “respect for Islamic principles” and democratic ideals.[18]

These disparate and divided Somalis all responded to the need for public order and social stability, which there was no government to provide. They also capitalized on Somalis’ skepticism of state-building projects and the ongoing fear that government agencies, if they returned, would “appropriate economic resources at the expense of others” and “use the law … to protect this advantage.”[19] As one Somali lawyer told me, Siyad Barre’s decades of authoritarian rule “made people turn” away from state law and “to[ward] religion,” which turned Islam into the preferred solution to local political and legal troubles.[20]

However, these three groups – al-Itihaad al-Islamiyya, al-Islah, and the new courts – could not bring immediate peace to Somalia because of the depth of the country’s instability coupled with drought, famine, and forced starvation.[21] According to Physicians for Human Rights, an international relief organization, at least 14,000 people were killed in violence in Mogadishu alone in early 1992.[22] In response, the United Nations constituted its first-ever military intervention for humanitarian purposes in April 1992. It was called the United Nations Mission in Somalia (UNISOM). Because of violence in Somalia, UN operations were based in Kenya: aid workers hoping to promote peace and the rule of law had do so from a distance. In August 1992, the United States joined the effort by providing military transports.

The following year, 1993, is seared into the history of humanitarian intervention. It also cemented Somalia’s notoriety as a war zone without legal strictures. In January, a US-led Unified Task Force (UNITAF) began to coordinate operations with UNISOM by bringing approximately 35,000 foreign troops into Somalia. The troops’ primary goal was to distribute aid, ensure stability, and protect personnel and supplies from warlords, militias, and bandits. The most infamous of the militia leaders was Mohamed Farah Aideed, a former military general who had helped oust President Siyad Barre and whose political faction refused to cooperate in the March 1993 Conference on National Reconciliation, killing what was left of the national peace process. General Aideed rose to prominence in part because nearby Sudan had sent thirty tons of aid to al-Itihaad al-Islamiyya, which harbored Aideed for a time.[23]

In June 1993, an attack on UNITAF killed at least two dozen people, among them Pakistani peacekeepers and American soldiers. The attack confirmed that Aideed and his faction were a threat not only to Somalis but also to UNITAF and the United States. As a result, in October 1993, US Special Forces tried to capture Aideed and his deputies. But the operation failed disastrously, leaving hundreds of Somalis and eighteen American soldiers dead. Militants were spotted dragging American soldiers’ desecrated bodies along the streets around central Mogadishu’s Bakaara Market.[24] The event came to be known as the Battle of Mogadishu or Black Hawk Down, named after a book whose title comes from the downing of two US Army Black Hawk helicopters.[25] In the battle’s aftermath, the US recalled its troops from Somalia. By the spring of 1995, UN peacekeepers had also retreated, leaving the country and its people to fend for themselves.[26]

Amidst the violence and failed humanitarian interventions, some Somalis focused on trying to restore the national government’s authority. A Somali transitional government committee of sixty people drafted a new constitution that included provisions promoting and protecting both Islamic religion and human rights. In November 1993, just weeks after the Battle of Mogadishu, the committee adopted their draft constitution. But as violence was engulfing the nation, the committee’s work came to a standstill and the document was never ratified.[27]

Somalia’s collapse and the withdrawal of UN peacekeepers left a gap in political power, filled in the 1990s largely by local warlords who commandeered specific areas for themselves. They lined their pockets with payments for goods and services passing through and delivered in their areas. Crime was rampant – and respect for the rule of law absent – as each warlord made his own rules, and as the warlords’ militias fought one another. As people tried to survive, theft and other forms of petty crime increased, as did more serious crimes like murder.

Local traders were exhausted. Unmaintained roads prone to flooding made travel difficult. Warlords set up frequent roadblocks where they demanded large sums from traders trying to move goods – such as food, charcoal, fuel, and qat (a shrub with stimulating and appetite-suppressing leaves that many Somalis chewed daily, sometimes for hours) – into place for sale. The country’s closed airports and seaports led to the collapse of livestock exports, and Somalia’s isolation weakened not only the traders but also the warlords themselves. The traders sought a more stable authority on their side.

Shari‘a Courts Spring Up

In 1993 or 1994 – the precise date is unknown – a cleric named Sheikh Ali Dheere (also known as Ali Mohamed Rage) decided to use his training in Islam and his skills in dispute resolution to set up an informal shari‘a court that would help local traders and shop owners resolve their disputes, help people arrange legal agreements for large purchases like homes and cars, and try people for crimes. He created one of the first known shari‘a courts after the Siyad Barre regime’s fall.[28]Violence in Somalia at this time resulted in a paucity of oral accounts and written sources of these courts, so it is difficult to know precisely when the courts started and how many there were, particularly in the years immediately following Siyad Barre’s ouster.

Sheikh Ali Dheere’s staff apprehended thieves and bandits and brought them to trial. The court’s success led religious and community leaders in the Abgaal sub-clan of the Hawiye clan to establish another shari‘a court in northern Mogadishu, also addressing issues from marital disputes to theft and murder.[29] These courts opened at a remarkably tense moment; just as some Hawiye clan members were setting them up, others in their extended families were also rising to power as warlords or working for those warlords.[30] Mogadishu’s northern and southern neighborhoods were also deeply divided: each was run by a different sub-clan of the Hawiye lineage group, and the two areas also had their own self-declared national presidents.[31]

The shari‘a courts – unlike the 1990 Islamic Call or organizations such as al-Itihaad al-Islamiyya – did not generally take public positions on national political affairs. But they were not mosques, either. Their work focused on institutionalizing Islamic law. The courts provided security and dispute resolution services to businessmen of the same patrilineal groups by employing, in many cases, militias to apprehend bandits on transport corridors.[32] The courts operated for the most part independently of one other and were, at the start, jurisdictionally limited to their neighborhood or sub-clan network.

For this reason, many skeptics saw the courts as disguises for clan authority and xeer (Somali custom) – in other words, as Islamic in name only. But the courts were careful to avoid prosecuting people of different clans or sub-clans in order to avoid triggering clan-oriented violence. (Both warlords and Somalia’s national governments were also accused of masking clan operatives’ attempts to seize authority beyond their lineage group.) The courts accepted financial support from charitable donations (Arabic: zakat) and their own road tolls; the judges’ belief in and encouragement of the Islamic pillars differentiated them from warlord-controlled militias that demanded their own tolls from travelers facing their guns. Some of the shari‘a courts also accepted money from as far away as Sudan, Saudi Arabia, and Iran. But businessmen who wanted their property protected were the primary backers. The courts relied on those businessmen who, according to one Western observer, did not care whether the courts used “Islamic law or Napoleonic law or common law. Any law [would] do.”[33]

Apart from business leaders, other Somalis saw the courts as a mechanism for reforming social mores. Many of these persons blamed Somalia’s collapse on moral decay leftover from Siyad Barre’s socialist regime. As one Somali war survivor told me, the courts were people’s alternative to Siyad Barre and a new “vision of an Islamic state. How can a country [that is] 100 percent Muslim talk of … socialism? [Socialism] is atheism, [and] we cannot accept that.”[34] Some of these persons hoped to protect Somalis from further moral degradation, particularly to enforce gender norms and sexual purity, and they turned to the shari‘a courts to provide that protection. Some courts worked closely with informal religious police, like the mutawain in Saudi Arabia, making sure strict versions of Islamic law were observed, particularly by women.[35] In criminal matters, some courts were known to execute people convicted of murder; there are conflicting reports about whether the courts resorted to amputations.[36] Some Somalis reported that, on balance, they supported the judges for “taking responsibility for imposing some kind of rule of law and meting out punishments.”[37] To many Somalis in the 1990s, however, survival was a zero-sum choice: either alleged criminals had to give up their rights to due process and appeal, or everyone else had to yield to the rule of the gun.

Somalis across the political spectrum saw the shari‘a courts – and religious law itself – as alternatives to warlord-ruled “fiefdoms,” economic standstill, and political impasse. The judges punished thieves, rapists, and murderers, assisted with public education, welfare, garbage removal and other social services, and helped both business leaders and the self-described religious police.[38] The courts often worked alongside local Islamic businesses and charities. But the courts’ procedures were typically more like mediations (Somali: masalaxo) – in which judges help disputing parties come to a mutual agreement – than arbitrations, in which judges issue binding rulings.[39]

Most of these Islamic courts appeared in the mid-1990s in northern Mogadishu. But not all those who set up courts did so for the same reasons. Militants, particularly those from al-Itihaad al-Islamiyya, who tended to live in southern Mogadishu, also wanted to establish shari‘a courts. They saw courts not only as dispute resolution schemes but also as political actors – steps toward a more comprehensive Islamic state. But General Aideed, who maintained powerful influence over southern Mogadishu, was critical of this idea.[40] Thus, while shari‘a courts were operating in northern Mogadishu as early as 1993, southern Mogadishu’s first shari‘a court did not appear until 1998, two years after Aideed’s death.[41] Ironically, at the same time some of northern Mogadishu’s shari‘a courts succumbed to local warlords. Some who established shari‘a courts in southern Mogadishu had no political ambition at all, while others were former members of al-Itihad alIslamiyya who saw shari‘a courts as a potential foundation for an Islamic state.

By 1999, when Somalia was at the bottom of the UN human development index, five active shari‘a courts operated independently in or near southern Mogadishu. They were neither an organized movement nor a government, but they were the closest thing to either that existed. Each court had its own chairperson, its own council of business and religious leaders, and sufficient funds for its own militia. Each court’s militia had acquired armored personnel carriers and employed 200 to 250 gunmen known as bailiffs; each bailiff received two meals per day and earned a salary equivalent to 30 US dollars per month.[42] Many of the courts’ bailiffs had previously worked for warlords. In the words of one foreign observer I met, these men moved from hit jobs for warlords into “legitimate jobs [that were] no longer shameful. They were not jihadis. They were [still] kids with guns, only now with respectable jobs.”[43]

In April 1999, the shari‘a courts and their militias came together for the first time and took over Mogadishu’s Bakaara Market. By June 1999, they had driven out the warlords and had eliminated the roadblocks between Mogadishu and Afgoi – fifty of them on a thirty-kilometer road.[44] The citizens of Mogadishu, according to policy analyst Stig Jarle Hansen, were “tired of the … various ideologies [of] nationalism, fascism, Marxism, and clannism” that led to anarchy.[45] In creating shari‘a courts, local religious leaders offered a new route “by which social order [could] be restored” beyond the clan networks that, changed as they were by colonial and authoritarian rule, “failed to achieve a [national] political resolution.”[46] Amidst interclan rivalries and a nonfunctioning judicial system, the shari‘a courts became Somalia’s most durable promise of legal order.

Who worked for this Islamic legal order? Most of the judges and court staff were respected figures, often elders, in their communities. They made decisions by drawing on a mixture (Somali: barax) of shari‘a and custom, which were entwined and assimilated into one another through decades of decisions.[47] Calling these courts “Islamic” helped them transcend both clan politics and state politics, though few court officials were renowned experts on Islamic law and theology.[48] But some of them were trained sheikhs who, like Mohamed Abdullah Hassan a century before, used their religious education to promote dispute resolution and their oratorical skills to instill a sense of religious identity in the public. Others, called wadaad, advised people on marital matters and performed ritual blessings of sick people and waterholes. Wadaad, who call people to prayer, were as pious as the sheikhs, though typically not as educated. Somalis held both wadaad and sheikhs in high social regard. Custom discouraged people from attacking them. They earned respect, in part, from their commitment to ethical living and nonviolence, including their refusal to eat meat from stolen animals.[49]

The idea of shari‘a courts began to spread beyond Mogadishu. Leaders from the Hawaadle clan, in the town of Beledweyne, 350 kilometers north of Mogadishu, also set up a local shari‘a court.[50]And about 1,000 kilometers north of Beledweyne, community leaders in Puntland developed their own shari‘a courts with their own sets of rules. Puntland simultaneously developed its own national charter, separate from Somalia. The charter prohibited torture “unless sentenced by Islamic shari‘a courts in accordance with Islamic law.”[51]

International monitoring groups refer to the shari‘a courts as one of the few spaces of safe, local governance in Somalia during the 1990s.[52]While most were tied to various lineages of the same Hawiye clan, the majority of the population in the areas where the courts operated claimed these same patrilineal origins; residents thus felt comfortable turning to the courts. The courts’ promotion of a shared Islamic identity, moreover, helped people accept the judges’ decisions – even when, later, courts began to exercise jurisdiction beyond their specific clan or sub-clan communities.[53]

To Somalis, the warlords seemed to lack moral agency, which made the search for an alternative more urgent. As residents yearned for some kind of order, they also seemed willing, in the words of one aid worker, “to trade [rights] for … protections of peace and security.”[54] As in places like Myanmar, where the judiciary used “law and order” to control citizens and dismantle the rule of law, the threat always existed that radical elements might attach themselves to the courts, and co-opt people’s desire for stability, in order to seize power or wealth.[55]

THE ISLAMIC COURTS UNION: COURTS AS POLITICAL ACTORS, 2000–2007

From 2000 to 2007, the remit of the shari‘a courts expanded. The courts dealt not only with civil and criminal cases but also united against the warlords. People increasingly trusted and turned to the courts for support. As in the past, leaders of the courts still disagreed about how they should be involved in politics. But when the courts merged and formed the ICU, their militias ultimately expelled the warlords and brought peace to Mogadishu, which the individual shari‘a courts of the 1990s had not done.

During this period of growth in the courts’ political power, both the international aid community and Somalia’s government, such as it was, continued to be mostly absent from the country. Officials came and went by airplane, sometimes on single-day trips. Successive governments in exile – the TNG and then the TFG – were the result of at least a dozen national reconciliation conferences held outside Somalia after 1991.[56] Thus, state-level decisions to promote legal development in Somalia were typically made abroad, with little hope for domestic implementation. Other rebuilding efforts came from the Somali diaspora and their allies as far away as England, the United States, and Canada, or from international lawyers in the boardrooms of UN headquarters in Geneva and New York. Those left behind in Somalia complained that Somalis should make rules for themselves, not adopt those crafted with foreign influence – even if they had to draft their new laws under trees rather than in lavish foreign hotels (Somali: geedka hoostiisa).

As the courts merged and became political actors, they had to navigate a complex landscape of power shaped by the government in exile, warlords, and international forces. By consolidating, the courts continued to replicate patterns familiar from the early histories of democracies, in which such unification of individual courts into local governments is a key step. In early modern Europe, for instance, the Catholic Church created one of the West’s first consolidated legal systems, known as canon law, which formed a foundation upon which national legal systems would grow throughout Western Europe.[57]Seventeenth-century Christian martyrs would later object to excessive fines, torture, and “royal interference in adjudication” because these were “against the will of God,” thus helping to strengthen courts, synthesize their “common law,” and limit the “arbitrary power of the king.”[58] That is, the next step in creating state institutions that can respect the rule of law is for individual judges to merge their efforts and to become more deeply political actors by fusing law to religion.

Shari‘a Courts Unite

In 2000, as the courts began unifying their judges and militias, Somalia’s political leaders were engaged in a separate state-building project. In Djibouti, at the Arta reconciliation conference, these leaders focused on creating what would become the TNG and a new parliament. Back in Somalia, there was still no state judicial system, and the nonstate shari‘a courts were providing legal services to specific neighborhoods. Al-Itihad al-Islamiyya’s former leader, Sheikh Hassan Dahir Aweys, however, had a different plan: he hoped to unite the shari‘a courts and construct a national judiciary out of them.

Aweys’s first step was to create an Islamic Implementation Council (later renamed the Joint Islamic Courts Council), which was the first iteration of what later would become the ICU. The council’s goal was twofold: coordinate the activities of the different shari‘a courts and engage in negotiations with the TNG for the courts to join Somalia’s government.[59] By combining disparate courts and their militias, the council also created Somalia’s first militia united against the warlords. Aweys and his deputies hoped this armed support would help convince the TNG to make the shari‘a courts the foundation of Somalia’s rebuilt judiciary. When asked at the time about the council’s work, one of its leaders, Sheikh Hassan Sheikh Mohammed Adde, told the Christian Science Monitor that “Islamic law is the only thing that will save this country.”[60]

But the council’s initial goal of destroying the warlords and rebuilding Somalia’s judiciary was short-lived. Though the TNG absorbed some of the shari‘a courts into its fledgling government in 2001, it was suspicious of Sheikh Aweys given his troubled past. He was a suspect in the 1998 bombings of US embassies nearby, in Tanzania and Kenya. In 2001, the US government declared him a terrorist and, later, so did the United Nations.[61] Later, the US banned all contact with Aweys, refusing to negotiate with him even as his political authority grew in Somalia.[62]

While Sheikh Aweys and his deputies wanted to use the shari‘a courts to help fulfill their national political ambitions, Somalia’s towns, villages, and neighborhoods told a different story. The people knew the shari‘a courts would improve public safety, particularly in places where the courts also set up schools and hospitals. Few could argue with the courts’ social services and their growing viability as an alternative to the warlords. The courts’ diffuse structures comprised judges, Sufi clerics, local politicians, community leaders, traders, shop owners, and elders. The courts earned people’s support “because they spoke of rights, and supported” people, according to a Mogadishu-based academic I met who was familiar with their operations in the 2000s.[63]An aid worker in Nairobi told me, “The courts did not just impose justice. They were also the police. If [you had] a problem, you would go to the [shari‘a] court.”[64] As a human rights activist in Mogadishu related, the courts’ legitimacy came “not just because they called themselves courts. They [also] created a sense of new opportunity for Somalia.”[65]

It was precisely the courts’ Islamic identity that helped Somalis accept them – even those who felt the courts might have been too punitive or might have gone too far to achieve security and stability. For the first time since Siyad Barre was deposed, Somalis willingly submitted to an institutionalized legal authority. As a UN official told me, even aid workers reluctantly saw the benefit of religious courts: “I myself want to keep shari‘a to family law, but … the [courts] had a lot of support. People … wanted stability, not because of good governance but because [the courts] rose above the tribal divides.”[66] Although individual shari‘a courts had been devoted to helping people from a single clan or sub-clan group in the 1990s, as the courts merged in the 2000s, judges began to define the courts’ jurisdictions regionally rather than by clan, which allowed them to work across hereditary lineage groups. Their multi-clan jurisdictions and shared Islamic identity helped the courts as a whole foster order and stability between rival groups, not just within them.

However, it was also precisely the courts’ Islamic identity that led to international concern about their growing influence. The Ethiopian government, in particular, saw the growth and consolidation of Somalia’s shari‘a courts as a threat, given that former members of alItihaad al-Islamiyya had been joining the courts’ leadership and rank and file.[67] In trying to unite Somalis, the courts had been encouraging dialogue among “a broad spectrum of religious groups, from moderate to radical Islamists.”[68]

From 2002 through 2004, as the shari‘a courts were spreading across and outside the capital, peace talks in Kenya – called the Eldoret conference – were creating Somalia’s new TFG.[69] (The TFG would move to a small compound in Baidoa, Somalia, in 2005.) Eldoret was Somalia’s fourteenth multilateral peace conference.[70] It led to the adoption of a provisional federal constitution and established a parliament of 275 members chosen according to the “4.5” scheme: the four largest family lineages (Darood, Hawiye, Dighil, and Mirilfe confederation, and the Isaaq and Dir confederation) each received sixty-one seats, while minority groups were allocated thirty-one seats in total. Between September and November 2004, parliament chose a president, Abdulahi Yusuf Ahmed, and speaker, Sharif Hassan Sheikh Adan. President Ahmed, in turn, appointed a prime minister, Mohamed Ali Gedi, and his cabinet ministers. Some Somalis resented these appointments, not least as the president and many of the ministers were themselves former warlords. The TFG also announced that it would set up Somalia’s Supreme Court and courts of appeal. But, like the TNG before it, the TFG was a government in exile, as many of its senior officials had deeper connections to aid workers and the Somali diaspora than to ordinary people still in the country.

Soon after the founding of the TFG, around 2005, ten of Mogadishu’s shari‘a courts united. With unity, they became a more potent political force. They created a new Supreme Council of Shari‘a Courts to oversee their work. The new council persuaded additional courts to join a common militia, just as the earlier councils had done.[71]The united courts contributed approximately eighty soldiers each to a shared armed force.[72] Inspired by Islamic faith, they joined into a single movement whose goal was to defeat the warlords entirely and return political order to Somalia once and for all.

It was then that Mogadishu’s courts first called themselves Itihaad alMahakim al-Islamiyya or ICU. Other regions followed Mogadishu’s lead, including Hiran, Middle Shabelle, Mudug, Nugal, and Bari. These communities were “tired of … conflicts and insecurity and … saw the shari‘a court system as the ultimate remedy.”[73] The ICU’s purpose was to give the disparate shari‘a courts a “superstructure.”[74] The consolidation of the shari‘a courts into a single ICU was fueled by fears of Ethiopian domination, concerns that a small set of family lineages dominated the TFG, declining loyalty to factionalized warlords, increasing crime rates, and Islamic solidarity.[75] Some scholars have labeled this period of uniting the Islamic courts as Somalia’s “golden age.”[76] According to journalist Andrew Harding, “a new force had risen up from within Somalia. Organically and from the grassroots. No wonder people were so hopeful about the Islamic Courts.”[77]

The Courts Begin Building the Rule of Law

From the 1990s to 2006, Somalia’s shari‘a courts and then the ICU developed as grassroots mechanisms of self-governance that recall the role courts often played early in the history of democracies. By 2006, it was becoming clear that the courts’ strategy of building local security might work on a national scale. According to one news report, the courts’ “attempt at justice was welcomed” and led neighborhoods to set up their own courts to find and try accused gunmen, rapists, thieves, and murderers.[78] Echoing Somalis I met who lived through the period, a sheikh told me that ordinary Somalis – “simple people,” in his words – spent what little money they had to donate food and weapons to the ICU, begging them to “please protect us from the warlords.” The courts were, in his words, “part of the people.”[79] They had “popular legitimacy,” according to a foreign observer.[80]

In addition, the courts “were … tools [to] enable the business community to escape plunder by the various warlord militias.”[81] Although Somalia remained one of the poorest countries in the world, its economy actually improved between 2000 and 2005, relative to its own past performance and to the economies of neighboring African countries. According to a study in the Journal of Economic Behavior & Organization, while the life expectancy of people in Somalia fell by two years during the civil war of the 1980s, life expectancy had “increas[ed] by five years since … [1991]. Only three [African] countries improved life expectancy as much.”[82] Technology also leapfrogged that of neighboring countries; using a mobile phone in Somalia was “cheaper and clearer than … anywhere else in Africa.”[83]The ICU functioned for a variety of reasons. Demand for more Islamic courts came from businessmen who were not religious extremists or militants.[84] But these business leaders were not the ICU’s only backers. Militants on the courts’ fringes were amassing weapons for war, and they saw the ICU as a conduit to achieve their own goals of an austere Islamic state. Other Somalis saw the ICU as a hopeful way out of inter-clan rivalries that were destroying the TFG from the inside and making it, they thought, a puppet government for Ethiopia, Kenya, the United States, and other foreign interests. For traders, shop owners, and other citizens, the ICU, like the disparate shari‘a courts before it, offered a way to transport people and goods without warlords’ roadblocks and tariffs. The ICU, unlike the warlords, “had a proven track record of restoring security and was associated with the provision of other social services and charitable works.”[85] The ICU’s social services agencies showed “good organization and accountability,” while others were “plagued by corruption and theft.”[86] The ICU provided a kind of security that the warlords could not.

Xeer, or locally rooted customary law, was vital to the work of the courts; though the courts labeled themselves Islamic, they were not exclusively Islamic.[87] Like all courts, they were legal assemblages.[88] In resolving family disputes about marriage, divorce, and inheritance, judges drew from a combination of xeer and shari‘a. Most of the judges had rudimentary knowledge of Islamic law, and it is unclear which rulings were based on shari‘a and which were based on custom, especially given the wide variety of precedents and versions of shari‘a and xeer available. Some judges used what amounted to hybrid versions of shari‘a, not necessarily tied to any specific school of Sunni Islamic law.[89] Other judges, with limited education, were guided by the hope that what they were doing was consistent with what they believed to be God’s will.[90]

Although many ICU staff, particularly early on, were from the same Hawiye clan, the courts’ Islamic identity was meant to lessen the importance of the clan in people’s lives.[91]The ICU’s main consultative council (Arabic: shura) was made up of religious, community, and business leaders. The united courts, according to Somalis I met, “were successful because they were listening to the people [and] they were part of the people.”[92] The preponderance of the courts’ work focused on family matters and crime, including murder, banditry, looting, and roadblocks.

Aside from these issues and assisting with contracts, the ICU’s other priorities were health care, education, and environmental protection.[93]Because Somalia’s trees were rapidly disappearing, burned into charcoal for cooking, the ICU’s environmental regulations tried to protect trees from the charcoal trade.[94] The ICU also tried to protect Somalia’s coasts: according to policy analysts, piracy was virtually eliminated within six months of the ICU’s rise to power in June 2006.[95]

The ICU’s “sudden ascendance” seemed, to the outside world, to be a “carefully planned Islamic revolution.”[96] But if it was an Islamic revolution at all, it was not a threatening one to most Somalis. The US government, however, worried that the ICU would become a haven for the al-Qaeda militants that a coalition of Western nations had been hunting in their war on terror. It did not help the ICU’s moderate judges and nonviolent religious leaders that Osama bin Laden released a tape praising the courts’ restoration of stability and saying Somalia’s success was due to its embrace of Islam. (Osama bin Laden had earlier funded al-Itihad al-Islamiyya.) In his audio tape, bin Laden said, “We warn all [Western] countries from … send[ing] international forces to Somalia … We swear … that we will fight their soldiers in Somalia and … punish them on their lands.”[97]

Unlike al-Qaeda, however, the ICU was not a global militant organization. Rather, the ICU was as fragmented as the diverse courts and militias that made it up.[98] Various Sufi tariqas (Arabic: brotherhoods) and non-Sufi organizations affiliated with the ICU helped to hire and train new bailiffs and policemen, construct new buildings, hold street cleanups, and encourage local community organizations. Others in the ICU’s membership disputed whether and how to integrate Islam into a new state. Some talked of democratic elections, while others prepared for religious rebellion and war. Contradictory statements from the ICU revealed its internal political rifts. Some of the leaders, like Aweys, were more radical and emboldened; they looked beyond Somalia to develop links with al-Qaeda. Others, like Sheikh Sharif Ahmed, who would later become Somalia’s president from 2009 to 2012, sought peace without violence.

The ICU’s ambivalence about whether and how to use violent tactics, combined with financial support it received from Eritrea, Ethiopia’s enemy at the time, provoked Ethiopia’s hostility toward the courts. As a result, Ethiopia provided financial support both to the TFG and to warlords who secured safe passage for goods from that landlocked country to Somalia’s ports.[99] Unexplained killings and disappearances of several of the courts’ militia commanders and religious leaders led to retaliatory killings of TFG officials. These retaliations were pinned on the ICU, and foreign embassies began calling it a terrorist group. This led some in the ICU to take a more political stance toward the TFG and the international community.[100] By early 2005 a new splinter group, al-Shabaab, arose “in the shadow of the courts.”[101] Al-Shabaab, which had only thirty-three core members at its founding, opened a training camp for its own militia, separate from those of the ICU.

Meanwhile, the TFG was busy drafting a new national constitution. In 2004 in Nairobi, the TFG set up an Independent Federal Constitution Commission (IFCC) tasked with drafting a constitution in line with the “principles of Islam, democracy, and social justice.”[102]They did not submit their first draft constitution to the TFG parliament until 2010.

Because of its power in the mid-2000s, the ICU “threaten[ed] to eclipse the fragile TFG.”[103] Ironically, while the IFCC was drafting a democratic constitution based on Islam, the courts were already practicing their own interpretation of God’s will, and Somalia, particularly in Mogadishu, was changing almost overnight. By the end of 2005, the ICU had a few thousand bailiffs and other gunmen on its payroll who launched a series of offensives against local warlords. The battles weakened the warlords, whom American intelligence agencies had been paying to catch terrorists. With the business community’s financial support, and a “well-funded and well-motivated militia,” ICU leaders decided to take a stand against the warlords in early 2006.[104] Facing this threat, the warlords quickly united under an umbrella group they named the Alliance for the Restoration of Peace and Counter-Terrorism, whose leadership was made up of TFG officials and warlords. The alliance funneled US counterterrorism funding – for apprehending al-Qaeda suspects – to the warlords.

Ethiopia and the alliance represented the ICU “as a breeding ground for radicalism and a potential haven for jihadi elements.”[105] Western officials, particularly from the United States, likewise “seemed incapable of perceiving what was initially a loose alliance of highly localized shari‘a courts as anything other than an al-Qaeda-linked threat.”[106]Hard-line members of the ICU saw the alliance’s actions as an attack on the ICU and “an attack on Islam itself.”[107] In the first half of 2006, battles between alliance and ICU militias killed dozens, many of whom were unaffiliated with either group. The warlords “were armed to the teeth,” but they “were not a match to the will of the people,” Somali politicians told me of this time.[108] By June 2006, most warlords had either died or fled.

The ICU had gained control of Mogadishu, uniting the city for the first time in fifteen years. BBC News called the ICU Somalia’s “strongest fighting force” and its “most popular political force.”[109] The ICU reopened the airport and seaports to the public. Diasporic communities slowly began to return. People opened their doors and removed roadblocks and trash.[110] One man told me how, when he came back from Europe in 2006, he and his friends walked Mogadishu’s streets for the first time in two decades “without guns … without fear, [and] without … harassment.”[111] Another exclaimed to me that the peace was so rapid and real that “even Somalilanders [who had seceded in 1991] started to think of a union again!”[112]

The ICU set up special courts to deal with property restitution claims that returnees were bringing against those who occupied the land and homes they had fled. The very building where the warlords had established their alliance became a shari‘a court. The warlords found refuge in Ethiopia or Congo or even within the TFG, where some of them became cabinet ministers under President Ahmed. Because the TFG was a government of reconciliation, the warlords “couldn’t be fired,” which further eroded people’s trust in it.[113] As the TFG kept one foot in Somalia – in its small Baidoa compound – and one foot outside, its power quickly faded. For example, the 275 members of the TFG parliament refused to travel into Somalia for a meeting in February 2006 unless the United Nations Development Programme (UNDP) agreed to pay each of them all travel expenses, dhaadhac daw (per diems) for hotel accommodations, and a USD 1,800 monthly allowance, which publicly alienated these elites from those whom they represented.[114] At best, many Somalis saw the TFG as just another political faction rather than as a national government.[115] The TFG’s judiciary consisted of just eight people, a Supreme Court chairperson and seven novice justices. Limited as it was, the TFG still had the international community’s support.[116]

From June to December 2006, the ICU briefly controlled much of southern and central Somalia. During these six months, the ICU claimed unfettered control from Kismayo just north of the Kenyan coast to Galkayo, which lies about 1,200 kilometers further north, near Puntland.[117] It was a “dramatic change” for the country, though Somalis recognized that achieving it was “messy [and] imperfect.”[118]According to the New York Times, ICU militiamen “allowed soccer games, planned for democratic elections, reopened movie theaters, educated girls in schools, and even permitted commercial activity in front of their headquarters during noon prayers.”[119]

The Islamic Courts Union Is Destroyed

This renaissance would not last. In June 2006, ICU chairperson Sheikh Sharif Sheikh Ahmed promised peace with the TFG and rival groups: “The joint Islamic courts do not want continuation of hostilities and will ensure peace and security following the change attained by the victory of the people with the support of Allah.”[120] His statement led to a series of peace talks between the ICU and the TFG, the first of which were held in June 2006 in Sudan. The TFG boycotted the next round of talks, claiming that the ICU was still seizing Somali territory. At another round of talks in September, ICU leaders rejected any TFG proposition that foreign troops enter Somali territory, which ultimately led to calling off the final round of talks. Though the ICU and a parliamentary delegation led by speaker Hassan Sheikh Adan did reach a preliminary peace agreement, the TFG rejected it.[121] Thus the back-and-forth negotiations came to a halt in late 2006, and both groups began preparing for military operations. The ICU was emboldened by its victories and recharged with weapons seized from warlords. The ICU militias had their eyes set on Baidoa, the small town where the TFG was based.

An international military invasion to bring down the ICU soon followed. Officials of the TFG were facing a possible invasion of their small compound. The leadership of landlocked Ethiopia felt threatened by the ICU’s control of seaports and by Eritrea’s support for the courts. And the US government was worried about the rise of an Islamic state in East Africa and possible terror attacks against American interests, as ICU leaders sent conflicting messages about their relationship with al-Qaeda. The ICU had emerged during an era when, from the US perspective, “Islam [had] replaced communism as that which must be cracked down by all means.”[122]

Ethiopia and the TFG were allied against the ICU and painted the organization “far too simplistically – as a terrorist umbrella, backed by thousands of foreign jihadi fighters.”[123] After months of lobbying by the TFG and the Ethiopian government, on December 6, 2006, the United Nations Security Council acted under its powers in Chapter VII of the UN Charter to take all necessary actions to restore international peace and security. Citing the “lack of clarity of the political agenda of the Islamic Courts,” the Security Council, in a session that lasted only fifteen minutes, adopted Resolution 1725, which authorized an African Union-led mission to enter Somalia to maintain security in Baidoa, where the TFG was about to come under fire from approaching ICU militias.[124] (That mission, called the African Union Mission in Somalia, or AMISOM, would begin in January 2007.) Resolution 1725 also reasserted the TFG’s legitimacy as Somalia’s national government and sought to bring the ICU into the UN’s peacekeeping agenda by ensuring the free movement of all persons involved in negotiations between the TFG and ICU. However, the intervention of the United Nations Security Council on behalf of the TFG and Ethiopia emboldened the ICU’s fringe elements, who felt that there was a growing international conspiracy against them and against the Islamic religion itself.

At the same time, a proxy war between Ethiopia and Eritrea took shape. Eritrea provided support to the ICU while Ethiopia funded the TFG in exile. The TFG essentially gave the Ethiopian military its blessing to invade Somalia. Weak as it was, the TFG relied on foreign support to oust the ICU, which cost it what little local support it still had. In the last two weeks of December 2006, as the ICU’s militias inched closer to Baidoa, they were weakened by skirmishes. Ethiopia saw its window of opportunity to invade Mogadishu, sending 15,000 troops alongside hefty support from US air, ground, and naval forces.[125] Unable to face a coordinated, triple onslaught from Ethiopian troops, the alliance’s warlord militias, and TFG forces, the ICU collapsed in Mogadishu and across Somalia in just a few days, even more quickly than it had risen to power six months earlier.[126] The ICU was no match for an international onslaught led by one of Africa’s strongest militaries. The majority of losses were not among militants, however, who “melted back into Mogadishu life” and later regrouped as al-Shabaab.[127]

On December 27, 2006, the ICU leadership resigned en masse. The ICU’s moderate judges and politicians fled to Eritrea, Kenya, Yemen, and elsewhere. When they saw the ICU collapsing, some of them joined reconciliation efforts or tried to become part of the TFG itself, to make change from the inside.[128] Those who did not flee Somalia reintegrated either into Somali society or into al-Shabaab, which was emboldened by the Ethiopian attack. Al-Shabaab had been a fringe group that faced the same kind of mistrust that people had of Western aid agencies and the state itself, but support for it increased after the attack.[129] The Ethiopian invasion played “into the hands of the extremists,” giving al-Shabaab, with its confiscated weapons and radical agenda, a reason to rise.[130] Thus the intervention paradoxically fed the very nationalistic, Islamist ideals that Ethiopia and the United States sought to defeat.[131]

Violence continued through the early months of 2007. Ethiopian troops and TFG forces clashed with militants, who also clashed with one another, in Mogadishu and areas outside it. More than 1,000 people were killed in this new civil war. Aid agencies and policy analysts estimate that 200,000 people fled the capital city.[132] Over the ensuing months, battles continued to rage throughout Somalia as the TFG tried to take power for the first time. Although distrusted by many Somalis, the TFG had the support of AMISOM troops. The TFG continued to take a hard line against the ICU, firing its own parliamentary speaker, Sharif Hassan Sheikh Adan, because he had earlier called for peace talks with the ICU.

The ICU, despite the problems associated with its factions, was a broad-based indigenous collective, made up of judges, religious leaders, and businessmen, that had succeeded in bringing stability to Mogadishu and surrounding areas. Many Somalis saw the ICU as a “genuine, apolitical effort” to combat crime and the chaos and uncertainty of daily life under warlord rule.[133] But in a matter of a few weeks in late December 2006 and early January 2007, all of it – the ICU, the shari‘a courts, and Somalia’s short-lived stability – was destroyed. Somalis told me that, from their perspective, Western governments and Ethiopia “did not want to have an Islamic government that is independent and strong, [and] the reason is religion.”[134] The United States and the international community were so focused on destroying Islamic extremism that they also destroyed the shari‘a courts, the legal solutions the courts had provided for Somalis, and the path toward stability and the rule of law that the courts had just begun to build.

GOD’S WILL, MILITARIZED, 2007–2021

Since 2007, Somalis trying to exert any kind of political authority have relied on their own distinct versions and interpretations of God’s will. These groups include, most notably, al-Shabaab and the TFG. While both al-Shabaab and the TFG have continued to invoke shari‘a, neither has come as close to building the rule of law from the ground up as the scattered shari‘a courts and the ICU arguably did, first locally and then regionally, from about 1994 to 2006. The international intervention that brought the Islamic courts’ experiment to an abrupt end shattered not only shari‘a but also the nascent, bottom-up potential for democratic institutions. If history shows that democracies may begin with local courts that, using religious symbols and discourse, unite into legal systems and give rise to other mechanisms of self-governance, Somalia’s trajectory from 2007 to 2021 shows the danger of pulling these institutions up by their roots. Such interventions ultimately put long-term democratic development at risk.

In early 2007, capturing Mogadishu for the first time and installing itself as Somalia’s national government, the TFG found its capital in upheaval and instituted martial law. Its support from the United Nations, United States, and Ethiopia meant discouraging the revival of shari‘a courts. “Talking about any Islamic courts [was] anathema,” one person told me.[135] To survivors, martial law and the nondemocratic takeover were reminiscent of Siyad Barre’s approach to governance. Such moves also seemed deeply anti-Islamic, not least because the shari‘a courts, and then the ICU, had enjoyed “fairly consistent support” among Somalis for a decade.[136]

Piracy returned with a vengeance; increasing numbers of container ships were captured after 2007. Somalis I met told me they began once again to feel “threatened by the revival of the warlords with American weapons and money.”[137] And rather than eliminating extremism, the ICU’s ouster fueled it.[138] Though still uncoordinated in the wake of this disorder, militants from al-Shabaab now began to gather, untethered from the ICU. Some of them had been trained as mujahideen (holy warriors) in Afghanistan. Though al-Shabaab’s founding predated the fall of the ICU, it grew stronger after the 2006 Ethiopian invasion. For this reason, aid workers called it a “product of” the war to put an end to the ICU.[139] Indeed, after the collapse of the ICU, Sheikh Ali Dheere, who created Mogadishu’s first-known shari‘a court in the early 1990s, became a spokesperson for al-Shabaab.[140]

Al-Shabaab took the ICU’s place as ruler over Somali areas outside the TFG’s control. Al-Shabaab insisted on following legal rules that it, too, linked to shari‘a. But its use of popular justice was much more severe than the shari‘a of the ICU’s moderate judges. Meanwhile, the TFG laid its own claim to God’s will and asserted that Somalia would be a democratic Islamic state, drafting a constitution to that effect in 2012. This period after 2007 exposes the strained relations between elites trying to establish a responsive, democratic state and others trying to tear it down, both of them acting in the name of God’s will. Not dissimilarly, law in postcolonial nineteenth-century America was animated by local struggles between people driven by religious ardor and “the passions of popular justice” and others, often also informed by religious principles, who sought an alternative “idea of the rule of law [that implied] fairness, equality, and consistency.”[141]

After examining the legalism that al-Shabaab enforced in areas under its control, the remainder of this chapter turns to the TFG’s attempt to reestablish a state judiciary – which was at odds with its constitution’s enshrinement of shari‘a.

The Legalism of Al-Shabaab

Al-Shabaab used a legalistic version of shari‘a as an organizational weapon. Its leaders preached a strict version of Islam opposed to any Western involvement in Somali political affairs. Many of its cadets launched suicide attacks on Somalis and foreigners. Somalis I met told me they felt al-Shabaab saw “international organizations like UNDP [as] agents of the West [that] are not supporting the traditional culture of Somali society.”[142] Many Somalis agreed with the idea that United Nations involvement would be bad for Somali politics: as one Somali aid worker unaffiliated with al-Shabaab told me, “I hate UNDP no matter what. Even if they do something good, I find a way to hate it.”[143]As a result, al-Shabaab grew its presence, particularly in the southern region of the country, from Jowhar, a town about 100 kilometers north of Mogadishu, south to the Kenyan border.

Al-Shabaab was largely decentralized, but its leaders made every effort to proclaim fidelity to law and avoid any perception of arbitrariness, even while repressing those they deemed enemies of Islam. Despite forcing their rule upon hundreds of thousands of Somalis and being responsible for hundreds of attacks and civilian deaths, al-Shabaab militants spoke publicly about how they did not act arbitrarily and instead followed a strict system of legal rules. Those rules are rooted in a specific vision of Islamic legal order. For example, when questioned by the BBC’s Africa Editor, an al-Shabaab leader said his organization does not accept recruits under age fifteen, which would be repugnant to Islamic law, and that women and older persons may “participate in battles … because that is allowed in our religion.”[144] Another militant recounted that all accused persons are put through a due legal process before anyone is punished or executed.[145] Citing a commander from al-Shabaab whom he met in 2009 in Somalia, British journalist Andrew Harding wrote that “Al-Shabaab operated within a system of strict, fair laws that had brought peace to much of Somalia.”[146]

Aid workers, I met admitted that crime and unrest are “a problem in non-Shabaab areas. There are no trigger-happy people in al-Shabaab areas.”[147] While aid workers had clear problems with al-Shabaab’s occupation, militancy, and human rights record, they privately explained to me that its “functioning systems” provided services, including courts, health care, education, food, and water, to people who did not cause political trouble.[148] Similarly, al-Shabaab’s recruits are often motivated by governance matters like “predictability, structure, law, and order.”[149] One government figure I met lamented that al-Shabaab was getting away with a severe form of rules-based repression by capitalizing on many Somalis’ perception that “We are [Muslim], [and] this is the law of Allah.”[150] But a leading government minister told me that al-Shabaab helped restore stability, notwithstanding their use of publicly administered corporal punishments: “They were harsh … but they restored order.”[151]

To some Somalis and observers, al-Shabaab also transcended clan politics, just as the shari‘a courts had done in the 1990s. “If you’re talking about the rule of law and being more fair,” a researcher who travels to Somalia told me, “Al-Shabaab was certainly more effective in that realm” than the warlords or even the TFG. Areas where al-Shabaab was forced out eventually “had more violence,” the researcher acknowledged. In the areas it did control, “even the flow of traffic and law and order [all] improved.”[152] During my research I was told of people who fled violence elsewhere to live in Somalia’s al-Shabaab areas, feeling safer under al-Shabaab as long as its rules were followed. Al-Shabaab built a repressive order on laws applied regardless of clan affiliation – in other words, members of majority clans did not receive special treatment. In areas cleared from al-Shabaab, minority clans struggled to gain land and political power from larger lineage groups.

Al-Shabaab’s approach to shari‘a was characterized by “legalism,” or rule-following, formalism, and the pursuit of technical legal details and procedures.[153] But al-Shabaab’s fidelity to Islamic legality was not accepted in all sectors. Many Somalis fled al-Shabaab areas, and Western governments labeled it a terrorist group. Even other militant organizations, including al-Qaeda, criticized al-Shabaab for its “heinous” activities and killings.[154] Indeed, as one Somali government official told me, echoing others, al-Shabaab does not have “a monopoly on Islamic interpretation … The battle is ongoing … Moderate Islamic scholars … are fighting al-Shabaab with their own military personnel … outside of what the government is doing.”[155]

From 2008 to 2012, Somalia was perhaps most known to the outside world for suicide attacks within its borders and piracy along its coastline. But some members of al-Shabaab, responsible as their organization was for many deaths in and out of Somalia, actually worked to stop piracy temporarily, much like the shari‘a courts and ICU before them. Along with other groups like Hizbul Islam, they tried to drive pirates out of their areas by “accusing them of being un-Islamic.”[156] Al-Shabaab operatives were known to condemn piracy publicly as haram (Arabic: forbidden) under Islamic law. However, as al-Shabaab’s strength weakened, people I met speculated that some of its members had begun to operate alongside or collect taxes from pirates. As the international community tried to drive al-Shabaab networks out of Somalia, piracy attacks increased from 111 in 2008 to 439 – more than one a day – in 2011.[157] Attacks decreased to 297 in 2012, after a new international marine force formed to patrol shipping lanes along the Horn of Africa.

Al-Shabaab was not the only Somali group trying to rid the coastline of piracy. Further north, in Puntland, a semi-autonomous region of Somalia, there were many attempts to eliminate piracy, including local and federal government interventions. According to an official familiar with the matter, “one man using shari‘a” did more to reduce piracy in the region than any other individual or group.[158] The man, Sheikh Abdul Qadir Farah, was a vocal critic of both al-Shabaab and pirates. Sheikh Farah preached that people should neither purchase goods that pirates offered for sale, nor allow pirates to buy goods with their stolen money. He reminded people that Islam prohibits theft and buying stolen property and that God would judge them for these transgressions on the Day of Judgment. He also told them not to use stolen money for their families and not to rent rooms or homes to pirates. “This is against Islam … The money you get [from pirates] is haram … and the penalty in Islam is death,” he told them. He also advised fathers not to allow their daughters to marry anyone known to have engaged in piracy. In other words, he used tenets of shari‘a – through his interpretation of God’s will – to make “life very difficult for the pirates … Before that, all the power of the state and the international community … couldn’t do it!”[159]

Puntland’s semi-autonomous government eventually created its own marine force, which benefitted from the work of Sheikh Abdul Qadir Farah and vocal elders and religious leaders like him.[160] In February 2013, Sheikh Farah was murdered during Friday prayers in his local mosque. Within two weeks, a military court in Puntland sentenced those responsible for his murder to death by firing squad.[161]While Sheikh Farah managed to use Islam to persuade people to mobilize their resources against piracy and put collective social pressure on pirates, al-Shabaab was intent on linking order with a repressive but legalistic version of shari‘a. To maintain its version of law and order, in 2016 al-Shabaab created its own police force in southern Somalia, which the organization claimed would “carry out harsh punishments including cutting off men’s penises as a punishment for adultery.”[162]This police force operated in al-Shabaab areas while militants attacked government buildings, hotels, and schools in TFG-controlled areas and neighboring countries. Their attacks in 2019 and 2020 killed, among others, US military contractors and personnel, Mogadishu mayor Abdirahman Omar Osman, and noted Somali journalist Hodan Nalayeh.

The Difficulty of Reestablishing a State Judiciary

As al-Shabaab rose up largely outside of Mogadishu, the TFG was trying to rebuild the Somali state, particularly its judiciary. After seizing Mogadishu from the ICU in 2007, the TFG tried to reestablish a state judiciary. The absence of shari‘a courts had meant that there was no institutional space for people to resolve their disputes and to respond to crimes nonviolently. But “People weren’t ready for a state judiciary,” one official told me. Not only were lawyers and judges in short supply, this official continued, but people “trusted … shari‘a [more] than the secular laws” of the state.[163] Even if these laws were made by Muslims and ostensibly rooted in Islam, many Somalis did not trust them because they were connected to the state. During this period, according to policy analysts, “Islam was the only belief system in Somalia that had not been discredited, and citizens went to religious leaders with their needs for protection … They … were seen as upholders of justice and fairness, since they were … dedicated to Islam.”[164]

Recognizing these difficulties, some remaining members of the ICU joined with members of the TFG to form an opposition party called the Alliance for Re-liberation of Somalia (ARS) in late 2007. The ARS joined the legislature in 2008 with 149 parliamentary seats; its leader Sheikh Sharif Ahmed, formerly a chairperson of the ICU, became president of Somalia from 2009 to 2012. Al-Shabaab stepped up its attacks during and following Sharif Ahmed’s tenure, to prevent the government from instituting order. By reestablishing courts and other justice institutions, the government might eventually rebuild people’s trust in the state. Al-Shabaab “made reference to the new government trying to destroy shari‘a” and attacked courthouses, including the Benadir Regional Court, where leading government officials and lawyers were killed.[165] Al-Shabaab did not want the TFG to succeed in reforming the judiciary; they were fighting for a kind of Islamic legal system that would prioritize al-Shabaab’s goals and interpretation of God’s will.

Somalia’s government leaders had more in mind than simply attracting moderate leaders of al-Shabaab into government positions, as the ARS was trying to do. They also tried to convince religious scholars to speak out, especially against piracy, in order to rebut al-Shabaab’s “Islamic narrative [that] portrays government as infidels.”[166] These religious scholars also spoke publicly against the desecration of tombs of Sufi saints and others. Some, however, felt the government itself was too beholden to Islamists.[167] But, as one aid worker told me, Islam is the “one legal system” to which everyone in Somalia has been exposed.[168]

After a constitution that enshrined Islam and shari‘a as core principles of the state was adopted in 2012, the Somali government turned to building state capacity and institutions to give it teeth. The president made justice one of the key pillars of his agenda, but he needed money to do it. The TFG received donor support from the UNDP, the US and Japanese governments, and the European Union.[169] Additional financial support came from the United Nations-Somalia Integrated Strategic Framework, which governed UN activities in Somalia from 2014 through 2016, and from the ensuing United Nations Strategic Framework Somalia 2017–2020. The UNDP aimed to assist Somalis in writing new laws while rehabilitating courthouse buildings and setting up legal aid programs. In 2014, the UNDP declared that it helped to draft ten new laws for Somalia while also funding ten legal aid organizations that collectively operated sixteen centers with 265 personnel who provided legal aid to nearly 15,000 people.[170] In addition, nearly 9,000 people attended “legal awareness sessions,” where they received training on their rights under international law. Similarly, the UNDP reported that approximately 3,000 people received help from the legal aid clinic at Puntland State University in Garowe. The clinic also conducted “rule-of-law trainings” – on case management, family law, criminal law and procedure, and mediation skills – with 239 government officials in Puntland.[171]

The international aid community’s extensive engagement in drafting new laws, building courthouses, and promoting legal aid programs was designed to encourage Somalis to come to state courts to seek resolutions to their problems, rather than to religious leaders, ad hoc nonstate entities, or family members. The problem, as aid workers told me, was that Somalia’s “justice sector is largely starved of resources and engagement.”[172] In other words, people were being encouraged to use a system that struggled to accommodate them. Somalia’s government relied on African Union troops for support, and its national justice system was not fully operational. The legal process, moreover, largely eschewed or ignored the Islamic provisions of the constitution – a constitution that the international aid community itself pushed to completion. According to an aid worker from Mogadishu whom I met in Nairobi, “I don’t think [UNDP’s] donors would … support the UNDP to work in a proactive, engaged way to improve Islamic laws … This is anathema to the international community.”[173]

The architects of the 2012 federal constitution saw it as Somalia’s “overarching legal system.”[174] But putting the constitution’s shari‘a principles into practice was another matter. “The Somali judiciary is not a [series of] religious courts” like the ICU was, I was told.[175] Indeed, even the courthouses were those that were set up by Siyad Barre. Government officials and aid workers found that promoting justice put them in the uncomfortable position of inviting people to bring their disputes into the very courts that last functioned when a dictator used them to oppress dissenters and religious leaders and to destroy the rule of law. Aid workers also admitted the difficulty of being based in Nairobi, far from daily life in Mogadishu, where courthouses were targeted and the most sophisticated lawyers were killed by militants. Such attacks weakened the judiciary and deterred many people from entering a courthouse or using legal aid programs.

Somali society has had to contend with contradictions among local practices, Islam, and international laws. As one person told me, “You can always say shari‘a will be the main source [of legislation, but] underground there could be huduud [crimes that carry corporal punishments] or FGM [female genital mutilation]. And Somalia is infested with qat. Sheikhs say [qat] is against shari‘a, [that] you should prohibit it. But nobody dares.”[176] Similarly, journalists have been harassed, arrested, or killed, some of them for their reporting on – or even interviewing – survivors of sexual assault. Between 2010 and 2020, the Committee for the Protection of Journalists reported at least forty journalists were killed in Somalia.[177] But, according to one aid worker, a high-profile criminal case against a journalist arrested for interviewing a woman who alleged that she had been raped by government forces “showed us that [Somalia] is still a state where institutions have in some way continued to exist.”[178] Although attorneys secured the journalist’s release, the lengthy case pitted local norms against international law.

As a result of the country’s collapse, sharply differing interpretations of shari‘a now coexist in Somalia: some promote corporal punishment while others promote the rights of journalists and women’s political participation. Interpretations also differ as to whether Islam allows or discourages the chewing of qat branches. “In Somalia, the law may say something, but on the ground it’s very different,” I was told.[179] Religiosity, according to political officials I met, is on the rise, with some Somali scholars calling Islam the country’s “fountain for social cohesion.”[180] Some people believe that the calamities of recent decades occurred because people “weren’t Islamic enough.”[181] In addition, more people have returned from overseas after training with Wahhabi groups in Afghanistan and nearby nations. The combination creates “fertile ground for people to be more fanatic,” I was told.[182]

The history of some elders and sheikhs moving into and out of roles as militia leaders and warlords exacerbates anxiety about fanaticism. Officials and aid workers also fear that conservative religious figures might “take … law in their own hands” when they see people in public – at restaurants and cafes, or on the beach – who are not following their strict interpretations of Islamic dress.[183] The TFG aims to develop state courts so that people will trust and turn to the state rather than to such religious figures or elders with checkered pasts. By re-establishing a state judiciary with UN assistance and adopting a constitution that treats shari‘a as a key foundation of the state, Somalia’s governmental leaders hope to keep God’s will on their side. But they also worry that other interpretations of God’s will may breed violent conflict against their own version.[184]

Constitutional Shari‘a

Somalia finds itself in a paradoxical situation: its constitution foregrounds shari‘a, but its weak state judiciary, shaped largely by the international aid community and diaspora Somalis, lacks the ability to effectively practice a grassroots Islamic law. This section tells how this situation came about: ironically, the international community helped rush a drafting process that resulted in a constitution that enshrines shari‘a. The constitutional drafting process began about 2009, when the Somali parliament adopted shari‘a as its “basic source for national legislation.”[185] The TFG parliament thus followed up on Article 8 of the 2004 Transitional Federal Charter, which stated that Islam would be Somalia’s official state religion. In 2010, a draft constitution submitted for review included an article that proclaimed Somalia an Islamic state and required judges to use shari‘a in deciding cases. But a Somali lawyer living overseas explained to me the particular legal difficulties of creating such an Islamic state. He said that mujtahideen (persons trained in Islamic legal theory and interpretation, often for decades) would have to interpret various schools of Islamic law, which would result in disagreement and pluralism. In other words, trying to build a nation with a singular Islamic law would paradoxically pluralize state law and render it unintelligible to many people.[186]

In 2011, as negotiations for a national constitution continued, TFG officials still worked either overseas or out of their compound in Baidoa; the TFG controlled only about one square kilometer of Mogadishu. The government and Somalis continued to suffer attacks from al-Shabaab’s militants and a growing number of pirates collected their booty offshore.[187] Al-Shabaab would not be expelled from Mogadishu until August 2011, though its operatives’ attacks on the city continued after that time.[188]

Members of the TFG had outside help in drafting their constitution. Dozens of Somalis were involved, along with international aid workers, international nongovernmental organizations, UN officials, and local and foreign scholars. According to Somalis and aid workers I met, the writing process was difficult, as they tried to craft a document that represented the competing interests of everyone involved. A group of international lawyers wrote a draft and submitted it to the TFG, which immediately rejected it. Aid workers had felt the TFG’s drafts were “too Islamic,” while Somalis did not like the idea of approving a constitution written largely by foreigners or on foreign soil.[189] In response to this failed draft, the TFG formed its own committee of experts, with help from UNISOM and lawyers from the UNDP and other humanitarian groups. According to one Somali, “I came in 2011 [and] inherited a draft [constitution] that you can tell was … written [in] an atmosphere of fear … The country was ruled by al-Shabaab … Everything you look at was shari‘a.”[190]

The result was a new constitution in which “every article, even if it had nothing to do with shari‘a, had to do with it.”[191] The growing strength of al-Shabaab, the widespread support of the ICU before them, and officials’ fear of being labeled as the lackeys of Western governments made the Somali drafters of the constitution determined that Somalia would continue to call itself an Islamic state. Even “people who seem[ed] to be secular were saying that the constitution had to be based on shari‘a,” a senior government adviser told me.[192] Collectively, the group considered Somalia’s population almost entirely Muslim and thought of religion as the basis of nationhood. “We have the Qur’an and Sunna [Hadith] that … provide general principles … You cannot now say we are going to confine Islam or shari‘a to family issues [as other governments have done].”[193] Pleased with his constitutional drafting efforts, the senior government adviser claimed to me simply, “We do not have legal pluralism. We have one law according to Islam.”[194]

But the constitution did more than merely proclaim Somalia an Islamic state. The constitution’s framers also aimed to reintegrate Somalia into the international community, so they incorporated international human rights law into the text as well. One of the constitution’s key architects said that he told himself, “Don’t make mistakes [and] be honest” about these multiple commitments.[195] The result was a constitution “of contradictions” that declared the state’s official religion to be Islam at the same time that it guaranteed freedom of religion.[196] “What we meant is that nobody should use shari‘a to take away rights of citizens, especially women,” another official told me.[197]“That was a tight debate.”

In early August 2012, while fasting during Ramadan, 825 delegates in Mogadishu adopted a new national constitution for Somalia. These delegates came from all areas of civic life, among them TFG officials, community leaders, religious scholars, businesspeople, and representatives from youth and women’s organizations. It was the biggest step toward establishing a national government in Mogadishu in the more than two decades since Siyad Barre’s ouster in 1991. And, not unlike members of al-Shabaab and the ICU, TFG members also envisioned an Islamic state.

How did these constitutional architects enact an Islamic state? First, they articulated a vision of an Islamic state immediately in the preamble, which stated that the constitution itself was informed by shari‘a. Second, the constitution declared Islam the official religion of the Somali people. Third, it provided that no person could legally propagate any religion other than Islam in Somalia. These religious components of the 2012 constitution are clear. Article 1 indicates that all power is invested in Allah first and then in the Somali people.[198] Article 2 states that Islam is the state religion, that no other religion may be spread, and that no law may be enacted that is “not compliant with the general principles and objectives of shari‘a.”[199] Article 3 says that the constitution’s foundations are the two main sources of shari‘a – the Qur’an and Sunnah – and that its objective is to protect shari‘a and social justice.[200] The constitution also proclaims Somalia as “a Muslim country [that] promotes human rights [and] the rule of law.”[201] These provisions were “easily accepted” by the 825 delegates, aid workers involved in the discussions told me. One told me, “Of course, shari‘a would be – if not a source of legislation – the source of the law of the land. It was a non-starter to argue otherwise.” She continued, “the SRSG [Special Representative of the Secretary General] wanted to tick off ‘we got a constitution,’” which meant picking battles and rushing the constitution out, and not fighting over the Islamic constitution Somalis desired.[202]

The fact that the constitution was based on Islam should not have surprised anyone, either Somalis or the Western governments and aid groups that supported the drafting process. In fact, every previous constitution in Somalia had referenced Islam in one way or another. Somalia’s first postcolonial constitution in 1960 had proclaimed Islam the religion of the state.[203] The draft interim constitution of 1993 had also included provisions on religion and human rights to give weight to postwar reconciliation agreements signed earlier that year. The TFG’s draft constitution in 2010 went even further, requiring that all laws passed be consistent with Islam. There was no way to get around the staying power of Islam in politics and society. Why? As a Somali official told me, the government had to prove itself to “be a better alternative [to] al-Shabaab. The only way to do that is to say we are as good as them, and we also use Islam.”[204]

When I asked government officials from Mogadishu who worked on the constitution why it said that each law passed had to be consistent with shari‘a, one person told me that they were fighting against Somalis who were labeling the TFG an “infidel government.”[205] He recognized in hindsight that, in writing a constitution based on Islam, the TFG had thrust shari‘a into the government’s state-building priorities. Government officials also told me of their struggle to resist the “secularizing influence” of aid workers. These aid workers included not only international lawyers but also members of the Somali diaspora who wanted the constitution to be the foundation for an improved relationship with the West. Even though foreigners “criticized the constitution,” leading TFG officials told me they generally “didn’t care … At the end of the day, the West has to accept the reality of Somalia – that Mogadishu is not San Francisco.”[206]

Constitutional delegates I met told me that, in spite of the way the document foregrounded Islam, “People were [still] saying the constitution is not Islamic enough.”[207] Such critics pointed out that the government was slow to launch an umma council or structure to institutionalize ijtihad, or the interpretation of Islamic law and theology by renowned religious scholars. They also worried that the constitution’s various provisions promoting Islamic law were merely the window dressing put on by the 825 delegates. In fact, some religious groups opposed the constitution entirely, arguing that the very writing of a constitution, even one based in Islam, is itself always a “project of the West,” and thus that the resulting document could never be Islamic, regardless of what religion its text would espouse.[208]

International aid workers took short trips to Mogadishu or, as one of them put it to me, they traveled “into and out of … Mogadishu International Airport,” where they met local counterparts and rarely left the heavily fortified airport compound because of the city’s insecurity.[209] Another told me that he felt that international aid workers he met were “judgmental about” shari‘a. “They see it as huduud [crimes that carry corporal punishments]. That’s how it’s perceived or explained to them by their experts. So they’re scared of that. We try to explain to them it’s about law, and sources, and how you can [tone] down” extremism.[210] Ultimately, donors reluctantly supported the Islamic provisions of the constitution. “It’s not about written law. It’s about practices and their interpretation of what shari‘a means.”[211]

While aid workers’ means differed from those of al-Shabaab, their goal – “trying to install law and order” – seemed just the same as al-Shabaab’s.[212] Donors and foreign aid workers tried to “build the rule of law on violations of the rule of law,” they admitted to me, by “meeting deadlines instead of having debates [and] strong-arm[ing] people” to write a constitution quickly. They also appointed committees of experts and other hybrid structures of government that they felt transgressed both Somali constitutional law and international law. “It’s a culture [in the international aid community] of ignoring the rule of law … when it’s convenient. So [the rule of law] is … not taking root [and] this worries me in terms of future state-building.”[213] When I asked why donors felt they were “ignoring” the rule of law, I was told donors were simply trying “to maintain some fidelity to legality” which they hoped, in turn, would help to build the rule of law.[214] The international aid community continues to engage as many Somalis as it can, perhaps putting them at risk: “If you did engage [with the TFG or aid agencies], you were seen as not a real Muslim. So you were targeted. Activists don’t want to be exposed to that risk.”[215]

The Siyad Barre regime had taken a tough stance against religious leaders – arresting, imprisoning, and even executing them. But in the thirty years from 1991 to 2021, new courts, new leaders, and rising government officials all tried to capitalize on people’s trust in Islam to build a new kind of rule of law, under which people can have their disputes resolved through an otherwise barely functioning state. Somalia’s contemporary state judiciary has not been especially successful at this, inescapably torn between the constitution’s embrace of shari‘a and support from an international aid community that prefers to ignore it. As one official told me, “In Somalia, you can have only two things. Either you have to be powerful enough to devise your own constitution … and … implement it using [the] rule of law and force of law. Or you have to use Islam.” He continued that Somalis see the state as trying to fight al-Shabaab’s version of shari‘a by saying, astonishingly, “We will introduce Romanic-Germanic law.” The “only way to fight” what remains of al-Shabaab, he said, “is to use another religious narrative, [saying that] what they do is not [consistent with] Islam. You have to use another narrative based on shari‘a.”[216]

CONCLUSION

In April 2013, about a month before my arrival in the Horn of Africa, nine militants disguised as police officers entered the Supreme Court complex in Mogadishu. They started shooting and, by the time two hours of intense gun fighting at the courts ended with their deaths, they had killed at least twenty people. Among these were two of the country’s most prominent lawyers – Mohamed Mohamud Afrah, the head of Somalia’s bar association, and Abdikarin Hassan Gorod, a human rights lawyer who had “won the release of [a] Somali journalist who [had been] jailed after interviewing a rape victim.”[217] These two lawyers had been providing free legal aid to indigent persons, helping them access justice in Somalia’s state courts. It was the deadliest attack in Mogadishu in years. The same day, a car bomb detonated outside the Somali security offices, killing ten more people. A suicide attack a month earlier had killed ten others. A spokesperson for al-Shabaab claimed responsibility for the courthouse attack, telling Al Jazeera News that Somalia’s courthouses were a “legitimate target.”[218]

Rebuilding Somalia’s courts – whether through the efforts of local clans and religious leaders or through government programs – has been a priority response to the country’s collapse. This chapter has documented the remarkable resilience of shari‘a, in its widely varying interpretations, during this process. Many parties have responded to state collapse in Somalia by building legal institutions using religious discourse, giving shari‘a new meanings as they do so. Somalis have used law and religion – combining, redefining, and reifying them – to build the stability they seek for their communities.

Like the generation that preceded Somalia’s 1991 collapse, the generation that followed never saw a robust rule of law. But, determined not to repeat Siyad Barre’s authoritarian rule, leaders in Somalia – elders, sheikhs, government officials, and militants alike – emboldened themselves with shari‘a. The results included the shari‘a courts in the 1990s and early 2000s, the ICU from 2005 to 2006, al-Shabaab’s legalism, and the TFG’s constitution. Reflecting on Somalia’s attempts to rebuild since 1991, Issaka K. Souaré writes,

Islam is the only authority – if not misused and taken to an extreme – that possesses the essential ingredients to successfully integrate the various elements of the Somali society and provide a stable government capable of meeting the urgent social, political and economic needs of the country. This was the magical stick that the [ICU] members held in their hands … There was safety, peace and commerce. They reunited the capital, which had been carved up into fiefdoms by various warlords. In other words, they brought Mogadishu back to life.[219]

This chapter has tried to show how the scattered shari‘a courts of the 1990s and early 2000s and the ICU were, for all their faults and factionalism, nascent grassroots democratic institutions. Before their experiment in nonviolent dispute resolution based on Islam was cut short by Ethiopia’s US-backed invasion, these courts had begun to pave a path toward rule of law in Somalia. Just as Christianity “sustain[ed] modern [Western] society [and] its pervading force furnishe[d] the law,” so too has Islam sustained Somalia and furnished Somali law.[220] Islam and God’s will were as important to the founding, authority, and self-conception of Somalia’s shari‘a courts as Christianity and the Lord’s will were, centuries earlier, to the emergence and power of courts in nascent Western democracies.

Militants from al-Shabaab and other groups remain a threat to Somalia’s government and to other forms of Islamic activism that try to build the rule of law using shari‘a. Mentioning a revival of Islamic courts outrages not only those in al-Shabaab who adopt a different version of shari‘a but also those in the aid community who know that some members of al-Shabaab trained within the ICU.

Outsiders may see Somalia as a state where Islamic militancy rules. But this chapter has revealed a tense battle over the meaning and practice of shari‘a among Somalis who share a strong sense of Islamic identity. A Somali proverb is telling: What outsiders’ eyes cannot see is still there. From different sectors – the first shari‘a courts of the 1990s, the ICU, al-Shabaab, and various politicians trying to rebuild the state – emerges a shared cry to rebuild society in the hope of achieving God’s will. But Somalis have also dealt with a strong foreign presence that pushed against such efforts to rebuild, saying, in the words of one activist I met, that self-help cannot work and that “No, we [the international community] have to shape Somali society.”[221]

No single playbook describes how to construct an Islamic state, let alone a peaceful and democratic one. Chapter 5 reveals how peacebuilders and constitutional architects in Somaliland after 1991 created a different kind of Islamic state altogether, one whose leaders and citizens would struggle to unite the values associated with the rule of law, human rights, shari‘a, and democracy.


NOTES

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

[2] John Calvin, Institutes of the Christian Religion (ed. J. T. McNeill, trans. F. L. Battles, Philadelphia, PA: Westminster Press, 1960 [1536]), book two, chapter seven, paragraph twelve.

[3] Lawrence M. Friedman, Crime and Punishment in American History (New York: Basic Books, 1993), 24.

[4] Ibid.

[5] Stuart Banner, “When Christianity Was Part of the Common Law,” 16(1) Law and History Review (1998): 27–62, p. 27.

[6] Friedman (1993), 32, 33.

[7] Many of the Somali military’s weapons initially arrived in the 1980s as part of a 200 million dollar aid package from the US to Siad Barre’s regime after he had agreed to give up his allegiance to the Soviet Union. Gregory Sanjian, “Promoting Stability or Instability? Arms Transfers and Regional Rivalries,” 43(4) International Studies Quarterly (1999): 641–670.

[8] Bronwyn E. Bruton, “Somalia: A New Approach,” Council on Foreign Relations Special Report No. 52 (New York: Council on Foreign Relations, 2010).

[9] 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, p. 23; see also Mohamed H. Mukhtar, “Somali Reconciliation Conferences: The Unbeaten Track,” 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), 123–130, p. 125, citing International Crisis Group, “Can the Somali Crisis Be Contained?” Crisis Group Africa Report No. 116 (Nairobi/Brussels: ICG, 2006), 7–8.

[10] Mukhtar (2007), 130.

[11] Oscar Gakuo Mwangi, “The Union of Islamic Courts and Security Governance in Somalia,” 19

(1) African Security Review (2010): 88–94, p. 92.

[12] Michael Shank, “Understanding Political Islam in Somalia,” 1(1) Contemporary Islam (2007): 89–103, p. 95.

[13] Mwangi (2010).

[14] Banner (1998).

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

[16] Matthew Cavedon, “Men of the Spear and Men of God: Islamism’s Contributions to the New Somali State,” 28 Emory International Law Review (2014): 473–508, p. 482.

[17] Ken Menkhaus, “Political Islam in Somalia,” 9(1) Middle East Policy (2002): 109–123, https:// bit.ly/3aOpM6k. On Turabi’s legacy, see Abdullahi A. Gallab, Hasan al-Turabi, the Last of the Islamists: The Man and His Times, 1932–2016 (London: Rowman & Littlefield, 2018) and W. J. Berridge, Hasan al-Turabi: Islamist Politics and Democracy in Sudan (Cambridge: Cambridge University Press, 2017).

[18] Cavedon (2014), 483. A faction within Al-Islah called Damul Jadiid (Arabic: New Blood) helped to organize some Sufi brotherhoods within the organization.

[19] Ken Menkhaus, “State Collapse in Somalia: Second Thoughts,” 97 Review of African Political Economy (2003): 405–422, p. 408.

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

[21] Médecins Sans Frontières, Somalia 1991–1993: Civil War, Famine Alert and a UN “Military Humanitarian” Intervention (Nairobi: Médecins Sans Frontières, 2013), https://bit.ly/3qCKRX5 (accessed January 1, 2021).

[22] Gérard Prunier, Somalia: Civil War, Intervention and Withdrawal, 1990–1995 (Geneva: United Nations High Commissioner for Refugees, 1995).

[23] Cedric Barnes and Harun Hassan, The Rise, and Fall of Mogadishu’s Islamic Courts, Chatham House Africa Programme Briefing Paper (London: Chatham House, 2007), 7. Aideed had earlier founded Ahlu Sunna Wal Jamaa in 1991 as a political faction drawn from local Sufi groups that sought to counter religious violence and the spread of Salafi ideologies from Saudi Arabia.

[24] Bakaara Market is also transliterated Bukhura Market.

[25] Mark Bowden, Black Hawk Down: A Story of Modern War (New York: Grove Press, 1999).

[26] Kenya Human Rights Institute, Interventionism and Human Rights in Somalia: Report of an Exploratory Forum on the Somalia Crisis (Nairobi: KHRI, 2007).

[27] “Draft Interim Constitution Handed to Howe; Unosom [sic] to Stay in Interim Period,” BBC Summary of World Broadcasts (London: British Broadcasting Corporation, November 13, 1993).

[28] Stanford University Center for International Security and Cooperation (CISAC), Mapping Militant Organizations: Islamic Courts Union (Stanford, CA: CISAC, 2016); Lara Santoro, “Islamic Clerics Combat Lawlessness in Somalia,” Christian Science Monitor, July 13, 1999.

[29] International Crisis Group (2006), 9.

[30] Roland Marchal, “Islamic Political Dynamics in the Somali Civil War,” in Islamism and its Enemies in the Horn of Africa, ed. Alex de Waal (London: Hurst, 2004), 114–145.

[31] Interview 133 with Stephanie, researcher and author in London, England (July 2014).

[32] Barnes and Hassan (2007), 2.

[33] Santoro (1999).

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

[35] Richard Ellis, “Muslim ‘police’ crackdown on vice in Somalia,” The Sunday Times (London), June 27, 1993. Because of their openness, the courts had both “radical and nonradical members.” Stig Jarle Hansen, Al-Shabaab in Somalia: The History and Ideology of a Militant Islamist Group, 2005–2012 (Oxford: Oxford University Press, 2013), 23.

[36] The courts did not impose a standard form of discipline or punishment. Contemporaneous news accounts indicate the courts did not resort to amputation “for fear of becoming unpopular.” Santoro (1999). Some persons I met and policy reports I found, however, suggested the courts did amputate the limbs of thieves. See Stanford University Center for International Security and Cooperation (2016).

[37] Interview 133 with Stephanie, researcher and author in London, England (July 2014).

[38] Shank (2007), 92; see also Hansen (2013), 23.

[39] Hanno Brankamp, “Somalia: Not Just Islam – How Somalia’s Union of Islamic Courts Used Local Customs,” ThinkAfricaPress, July 22, 2013, https://bit.ly/3puC9Zv.

[40] Barnes and Hassan (2007), 2.

[41] Robrecht Deforche, “Stabilization and Common Identity: Reflections on the Islamic Courts Union and Al-Itihaad,” 13 Bildhaan: An International Journal of Somali Studies (2013): 102–120, p. 113.

[42] Santoro (1999).

[43] Interview 16 with Todd, expatriate consultant and professor, in Hargeisa, Somaliland (June 2013).

[44] Santoro (1999). Afgoi is also transliterated Afgoye.

[45] Hansen (2013), 23.

[46] Mark Huband, Warriors of the Prophet: The Struggle for Islam (Boulder, CO: Westview Press, 1998), 33.

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

[48] Brankamp (2013).

[49] I. M. Lewis, Saints and Somalis: Popular Islam in a Clan-Based Society (Lawrenceville, NJ: Red Sea Press, 1998).

[50] International Crisis Group (2006), 9.

[51] US Department of State, Country Reports on Human Rights Practices for 2008 (Washington, DC: Government Printing Office, 2010), 524.

[52] International Crisis Group (2006).

[53] Deforche (2013).

[54] Interview 65 with Jen, expatriate aid worker in Nairobi, Kenya (conducted by telephone from Hargeisa, Somaliland) (July 2013).

[55] Nick Cheesman, Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order (Cambridge: Cambridge University Press, 2015).

[56] Mukhtar (2007), 125.

[57] Harold J. Berman, “Religious Foundations of Law in the West: A Historical Perspective,” 1(1) Journal of Law and Religion (1983): 3–43, pp. 7–8.

[58] Ibid., 33.

[59] Gerrie Swart, “Somalia: A Failed State Governed by a Failed Government?” 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), 109–122, p. 112.

[60] Santoro (1999). Adde is also transliterated Addeh.

[61] Andrew Harding, The Mayor of Mogadishu: A Story of Chaos and Redemption in the Ruins of Somalia (New York: St. Martin’s Press, 2016), 154.

[62] Interview 87 with Muuse, former senior government minister in Mogadishu, Somalia (conducted in Addis Ababa, Ethiopia) (August 2013); see also “U.S. Bans Contact with Islamist Leader in Somalia,” Reuters, June 26, 2006, https://bit.ly/2JVRtPt (accessed January 1, 2021); Saul Shay, Somalia between Jihad and Restoration (London: Routledge, 2017).

[63] Interview 9 with Naqeeb, professor at the University of Mogadishu, Somalia (conducted in person in Hargeisa, Somaliland) (June 2013).

[64] Interview 65 with Jen, expatriate aid worker in Nairobi, Kenya (conducted by telephone from Hargeisa, Somaliland) (July 2013).

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

[66] Interview 77 with Khadra, United Nations official in Nairobi, Kenya (July 2013).

[67] “Ethiopia Says Somalia ‘a Threat’.” BBC News, June 28, 2006, https://bbc.in/3hmoMI1 (accessed January 1, 2021).

[68] Religious Literacy Project, The Islamic Courts Union (Cambridge, MA: Harvard Divinity School, 2020), https://bit.ly/38Fufpt.

[69] A. Ibrahim Mohamed (Qoorcade), A Nation in Tatters: Somalia (Qaran Dumay) (Liverpool: Somali Education Trust, 2009), 93.

[70] Abdulahi A. Osman and Issaka K. Souaré, “Introduction,” 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), 7–22, p. 17.

[71] Swart (2007), 112.

[72] Stanford University Center for International Security and Cooperation (2016).

[73] Deforche (2013), 113, citing Andre Le Sage, Stateless Justice in Somalia: Formal and Informal Rule of Law Initiatives (Geneva: Centre for Humanitarian Dialogue, 2005); see also Barnes and Hassan (2007), 1.

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

[75] Hansen (2013), 31–33.

[76] Barnes and Hassan (2007), 7; Deforche (2013), 102.

[77] Harding (2016), 153.

[78] Marc Lacey, “In Somalia, Islamic Militias Fight Culture Wars,” New York Times, June 19, 2006, https://nyti.ms/2MeUs6E (accessed January 1, 2021).

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

[80] Interview 133 with Stephanie, researcher and author in London, England (July 2014).

[81] Hansen (2013), 33.

[82] Benjamin Powell, Ryan Ford, and Alex Nowrasteh, “Somalia after State Collapse: Chaos or Improvement?” 67(3–4) Journal of Economic Behavior & Organization (2008): 657–670, p. 662.

[83] “Somalia Calling: An Unlikely Success Story,” The Economist, December 20, 2005, https://econ.st/34QtGI3.

[84] “Profile: Somalia’s Islamic Courts,” BBC News, June 6, 2006, https://bbc.in/2WQzvB0.

[85] Barnes and Hassan (2007), 4.

[86] Deforche (2013), 112, citing Menkhaus (2002).

[87] Brankamp (2013).

[88] Michael G. Peletz, Sharia Transformations: Cultural Politics and the Rebranding of an Islamic Judiciary (Oakland, CA: University of California Press, 2020).

[89] Religious Literacy Project (2020).

[90] Brankamp (2013).

[91] Ibid.

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

[93] Deforche (2013), citing Shank (2007); see also Ken Menkhaus, “There and Back Again in Somalia,” Middle East Research and Information Project (MERIP) (2007b), https://bit.ly/2WQzIUO (accessed January 1, 2021).

[94] Shank (2007).

[95] Roger Middleton, Piracy in Somalia: Threatening Global Trade, Feeding Local Wars (London: Chatham House, 2008); Mary Harper, Getting Somalia Wrong? Faith, War, and Hope in a Shattered State (London: Zed Books, 2012), 157–158. Some historians question the extent to which ICU laws reduced piracy. See Awet Tewelde Weldemichael, Piracy in Somalia: Violence and Development in the Horn of Africa (Cambridge: Cambridge University Press, 2019), 85–86.

[96] Barnes and Hassan (2007), 1.

[97] Octavia Nasr, “Tape: Bin Laden Tells Sunnis to Fight Shiites in Iraq,” CNN, July 2, 2006, ht tps://cnn.it/3pvMC72 (accessed January 1, 2021).

[98] Jeffrey Gettleman, “Islamists Calm Somali Capital with Restraint,” New York Times, September 24, 2006, A1, https://nyti.ms/2KEK3k4 (accessed January 1, 2021).

[99] Andrew Cawthorne, “US says al Qaeda behind Somali Islamists,” Reuters, December 15, 2006, cited in Barnes and Hassan (2007), 6.

[100] Barnes and Hassan (2007), 3.

[101] Hansen (2013), 31.

[102] Ali Hirsi Ahmed, Constitution-Making in Somalia: A Critical Analysis, 1960–2013, MA Thesis, Institute of Diplomacy and International Studies (Nairobi: University of Nairobi, 2014), 46.

[103] International Crisis Group (2006), 1.

[104] Barnes and Hassan (2007), 4.

[105] Harper (2012), 170.

[106] Ibid.

[107] International Crisis Group (2006), 12. Swart (2007), 113.

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

[109] “Profile: Somalia’s Islamic Courts,” BBC News, June 6, 2006, https://bbc.in/3rxw7sX (accessed January 1, 2021).

[110] Barnes and Hassan (2007), 4.

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

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

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

[114] Mukhtar (2007), 125, citing International Crisis Group (2006), 7–8.

[115] International Crisis Group (2006), 22.

[116] Andre Le Sage, “Somalia’s Endless Transition: Breaking the Deadlock,” Strategic Forum No. 257 (Washington, DC: Institute for National Strategic Studies, National Defense University 2010).

[117] Interview 87 with Muuse, former senior government minister in Mogadishu, Somalia (conducted in Addis Ababa, Ethiopia) (August 2013). Like any authority, the ICU did not have total support. It faced opposition in Kismayo, where residents saw the ICU as the disguise of a clan seeking to dominate their own clans. Barnes and Hassan (2007), 5.

[118] Interview 133 with Stephanie, researcher and author in London, England (July 2014).

[119] Gettleman (2006); see also Cavedon (2014), 497.

[120] “Somalia: Mogadishu Islamic Leaders Claim Victory Over Rivals,” United Nations Integrated Regional Information Network (IRIN) News, June 5, 2006, https://bit.ly/3quIJAq (accessed January 1, 2021).

[121] Swart (2007), 116.

[122] Issaka K Souaré, “Conclusions: Towards a Revived Somali State,” 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), 209–210.

[123] International Crisis Group (2006), 1.

[124] United Nations Security Council, “Security Council Approves African Protection, Training Mission in Somalia, Unanimously Adopting Resolution 1725 (2006),” United Nations Security Council Press Release SC/8887, December 6, 2006, https://bit.ly/34PMszi (accessed January 1, 2021).

[125] The US military’s goal was to ensure that the ICU cannot “be reconstituted as a political entity.” Shank (2007), 90.

[126] Fred M. Shelley, Governments around the World: From Democracies to Theocracies (Santa Barbara, CA: ABC-CLIO, 2015), 379.

[127] Barnes and Hassan (2007), 6.

[128] Interview 9 with Naqeeb, professor at the University of Mogadishu, Somalia (conducted in person in Hargeisa, Somaliland) (June 2013).

[129] Harper (2012), 171, citing a blog post by anthropologist Markus Virgil Hoehne, who in turn cites a report of the West Point Center for Combatting Terrorism.

[130] Harding (2016), 155.

[131] Harper (2012).

[132] “Somalia: Escalation and Human Rights Abuses,” AfricaFocus, April 9, 2007, https://bit.ly/3hqjcEE (accessed January 1, 2021); see also “Help Thousands Displaced, Civil Society Urges Aid Agencies,” United Nations Integrated Regional Information Network (IRIN) News, April 18, 2007, https://bit.ly/3rsKrTo (accessed January 1, 2021); see also Barnes and Hassan (2007), 6–7.

[133] Cavedon (2014), 479, citing Menkhaus (2002).

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

[135] Interview 12 with Daniel, expatriate lawyer and NGO program manager in Hargeisa, Somaliland (June 2013).

[136] Barnes and Hassan (2007).

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

[138] Harper (2012), 172–173.

[139] Interview 85 with Ibrahim, NGO program adviser in Nairobi, Kenya (August 2013). 140

[140] Deforche (2013).

[141] Samuel Walker, Popular Justice: A History of American Criminal Justice (Oxford: Oxford University Press, 1980), 4.

[142] Interview 14 with Maxamed, independent researcher and consultant in Hargeisa, Somaliland (June 2013).

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

[144] Harper (2012), 91.

[145] Mary Harper, Everything You Have Told Me Is True: The Many Faces of Al Shabaab (London: Hurst, 2019), 107.

[146] Harding (2016), 159.

[147] Interview 82 with Mille, expatriate aid worker in Mogadishu, Somalia (conducted in Nairobi, Kenya) (August 2013).

[148] Ibid.

[149] Harper (2019), 22.

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

[151] Interview 86 with Barkhado, retired senior government minister in Mogadishu, Somalia (conducted in Nairobi, Kenya) (August 2013).

[152] Interview 133 with Stephanie, researcher and author in London, England (July 2014).

[153] Judith Shklar, Legalism: Law, Morals, and Political Trials (Cambridge, MA: Harvard University Press, 1964). Legalism is a feature of the democratic societies that Shklar studied as well as colonial administrations, authoritarian states, and militant organizations. See Mark Fathi Massoud, Law’s Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan (Cambridge: Cambridge University Press, 2013); Jens Meierhenrich, The Legacies of Law: Long-Run Consequences of Legal Development in South Africa, 1652–2000 (Cambridge: Cambridge University Press, 2008); Jens Meierhenrich, The Remnants of the Rechtsstaat: An Ethnography of Nazi Law (Oxford: Oxford University Press, 2018).

[154] Dominic Wabala, “East Africa: Al Qaeda Criticises Al Shabaab Over ‘Heinous and AntiIslamic’ Activities,” STAR, September 7, 2012, https://bit.ly/3ryCyf8 (accessed January 1, 2021).

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

[156] Harper (2012), 158.

[157] Jatin Dua, “After Piracy: Mapping the Means and Ends of Maritime Predation in the Western Indian Ocean,” 9(3) Journal of Eastern African Studies (2015): 505–521; see also Jatin Dua and Ken Menkhaus, “The Context of Contemporary Piracy: The Case of Somalia,” 10(4) Journal of International Criminal Justice (2012): 749–766.

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

[159] Ibid.

[160] Robert Young Pelton, “Puntland Marine Police Force Enter Eyl: Force Welcomed by Mayor and Locals but not by UN Somalia-Eritrea Monitoring Group,” Somalia Report, March 2, 2012, https://bit.ly/3mUyBib (accessed January 1, 2021).

[161] “Somalia: Puntland Court Sentences Al Shabaab Chief Godane and 11 Others to Death,” Garowe Online, February 27, 2013, https://bit.ly/38DJ8bP (accessed January 1, 2021).

[162] Jamestown Foundation, “Al-Shabaab Aims for ‘Hearts and Minds’ with Establishment of Islamic Police Force,” Vol. 14, Issue 17, August 19, 2016, https://bit.ly/3pp04cA (accessed January 1, 2021).

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

[164] Hansen (2013), 23

[165] Interview 84 with Edith, human rights researcher in Nairobi, Kenya (August 2013).

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

[167] Harding (2016), 242.

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

[169] Marcus Manuel, Raphaelle Faure, and Dina Mansour-Ille, Somalia: Country Evaluation Brief. Chr. Michelson Institute, Overseas Development Institute, and the Norwegian Agency for Development Cooperation (Oslo: NORAD, 2017), 13. Interview 84 with Edith, human rights researcher in Nairobi, Kenya (August 2013). On the ways donor aid depoliticizes statebuilding programs, see Jutta Bakonyi, “Seeing Like Bureaucracies: Rearranging Knowledge and Ignorance in Somalia,” 12(3) International Political Sociology (2018): 256–273; Mark Fathi Massoud, “Work Rules: How International NGOs Build Law in War-Torn Societies,” 49(2) Law & Society Review (2015): 333–364.

[170] Elizabeth Kang’atta, Christine Fowler, Abdisalam Farah, Abdullahi Yusuf Mohamed, and Magdalene Wanza Kioko, “Access to Justice Project: C.2 Project Annual Report, 2014,” United Nations Development Programme Somalia (2015).

[171] Ibid.

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

[173] Ibid.

[174] Interview 81 with Warsame, lawyer and adviser to the Transitional Federal Government of Somalia (conducted in Nairobi, Kenya) (August 2013).

[175] Interview 80 with Gul, aid worker in Nairobi, Kenya (August 2013)

[176] Interview 134 with Hatim, United Nations official and adviser to the Somali constitution in Mogadishu, Somalia (reached via telephone from Princeton, NJ) (November 2015).

[177] Data at https://cpj.org. For an example, see Committee to Protect Journalists, “Somalia: Journalist Shot and Killed in Mogadishu,” June 6, 2016, https://bit.ly/3mTSi9b (accessed January 1, 2021).

[178] Interview 84 with Edith, human rights researcher in Nairobi, Kenya (August 2013).

[179] Interview 82 with Mille, expatriate aid worker in Mogadishu, Somalia (conducted in Nairobi, Kenya) (August 2013).

[180] Abdurahman M. Abdullahi, “Recovering the Somali State: The Islamic Factor,” in Somalia: Diaspora and State Reconstruction in the Horn of Africa, eds. Abdulkadir Osman Farah, Mammo Muchie, and Joakim Gundel (London: Adonis & Abbey, 2007b), pp. 196–208.

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

[182] Ibid.

[183] Interview 15 with Evelyn, United Nations official in Garowe, Puntland (conducted by telephone from Hargeisa, Somaliland) (June 2013).

[184] Harding (2016), 245.

[185] “Refounding Somalia: Constitution and Islam,” Pambazuka News, May 3, 2012, https://bit.ly/2VM8DkX (accessed January 1, 2021).

[186] On the legibility of Islamic law in postcolonial politics in Sudan, see Jeffrey Adam Sachs, “Seeing Like an Islamic State: Shari‘a and Political Power in Sudan,” 52(3) Law & Society Review (2018): 630–651.

[187] Interview 86 with Barkhado, retired senior government minister in Mogadishu, Somalia (conducted in Nairobi, Kenya) (August 2013).

[188] “Al-Shabaab in Somalia: US Air Strike ‘Kills 60 Militants,” BBC News, October 16, 2018, https://bbc.in/3hmIhA0 (accessed January 1, 2021); see also “U.S. Troops to Help Somalia Fight al-Shabaab,” BBC News, April 14, 2017, https://bbc.in/2WPKNFx (accessed January 1, 2021).

[189] Interview 135 with Matilda, international lawyer and adviser to the Somali constitution in Mogadishu, Somalia (reached via telephone from Princeton, NJ) (December 2015).

[190] Interview 86 with Barkhado, retired senior government minister in Mogadishu, Somalia (conducted in Nairobi, Kenya) (August 2013).

[191] Ibid.

[192] Interview 81 with Warsame, lawyer and adviser to the Transitional Federal Government of Somalia (conducted in Nairobi, Kenya) (August 2013).

[193] Interview 86 with Barkhado, retired senior government minister in Mogadishu, Somalia (conducted in Nairobi, Kenya) (August 2013).

[194] Interview 81 with Warsame, lawyer and adviser to the Transitional Federal Government of Somalia (conducted in Nairobi, Kenya) (August 2013).

[195] Ibid.

[196] Ibid.

[197] Interview 86 with Barkhado, retired senior government minister in Mogadishu, Somalia (conducted in Nairobi, Kenya) (August 2013).

[198] “After Allah the Almighty, all power is vested in the people and can only be exercised in accordance with the Constitution and the law and through the relevant institutions.” Article 1, Provisional Constitution of the Federal Republic of Somalia, 2012.

[199] Ibid., Article 2.

[200] Ibid., Article 3.

[201] Ibid., Articles 2, 4.

[202] Interview 135 with Matilda, international lawyer and adviser to the Somali constitution in Mogadishu, Somalia (reached via telephone from Princeton, NJ) (December 2015).

[203] Somalia was not alone in this regard, as legal debates over the place of shari‘a had been occurring across the African continent. On the case of Nigeria’s shari‘a debates in the 1970s, see, for example, David D. Laitin, “The Sharia Debate and the Origins of Nigeria’s Second Republic,” 20(3) Journal of Modern African Studies (1982): 411–430.

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

[205] Interview 86 with Barkhado, retired senior government minister in Mogadishu, Somalia (conducted in Nairobi, Kenya) (August 2013)

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

[207] Ibid.

[208] Ibid.

[209] Interview 135 with Matilda, international lawyer and adviser to the Somali constitution in Mogadishu, Somalia (reached via telephone from Princeton, NJ) (December 2015).

[210] Interview 134 with Hatim, United Nations official and adviser to the Somali constitution in Mogadishu, Somalia (reached via telephone from Princeton, NJ) (November 2015).

[211] Ibid.

[212] Interview 135 with Matilda, international lawyer and adviser to the Somali constitution in Mogadishu, Somalia (reached via telephone from Princeton, NJ) (December 2015).

[213] Ibid.

[214] Ibid.

[215] Interview 65 with Jen, expatriate aid worker in Nairobi, Kenya (conducted by telephone from Hargeisa, Somaliland) (July 2013).

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

[217] Mohamed Ibrahim, “Coordinated Blasts Kill At Least 20 in Somalia’s Capital,” New York Times, April 14, 2013, https://nyti.ms/2LhsF51 (last accessed January 1, 2021).

[218] “Dozens Killed in Attacks in Somali Capital: Al-Qaeda-linked al-Shabab Claims Responsibility for Two Attacks in Mogadishu That Left More Than 30 People Dead,” AlJazeera News, April 14, 2013, https://bit.ly/33QsWSV (accessed January 1, 2021).

[219] Souaré (2007), 209–210.

[220] A. H. Wintersteen, “Christianity and the Common Law,” 29 American Law Register (May 1890), 273–285, p. 285.

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

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